L
lequebecfume
- 34
- 0
Vol. 142, No. 13 — June 25, 2008
Registration
SOR/2008-196 June 11, 2008
CRIMINAL CODE
Evaluation of Impaired Operation (Drugs and
Alcohol) Regulations
P.C. 2008-1033 June 11, 2008
Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 254.1 (see footnote a) of the Criminal Code (see footnote b), hereby makes the annexed Evaluation of Impaired Operation (Drugs and Alcohol) Regulations.
EVALUATION OF IMPAIRED OPERATION
(DRUGS AND ALCOHOL) REGULATIONS
QUALIFICATION REQUIRED OF EVALUATING OFFICER
1. An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.
PHYSICAL COORDINATION TESTS
2. The physical coordination tests to be conducted under paragraph 254(2)(a) of the Criminal Code are the following standard field sobriety tests:
(a) the horizontal gaze nystagmus test;
(b) the walk-and-turn test; and
(c) the one-leg stand test.
EVALUATION TESTS AND PROCEDURES
3. The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are
(a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;
(b) eye examinations, which consist of
(i) the horizontal gaze nystagmus test,
(ii) the vertical gaze nystagmus test, and
(iii) the lack-of-convergence test;
(c) divided-attention tests, which consist of
(i) the Romberg balance test,
(ii) the walk-and-turn test referred to in paragraph 2(b),
(iii) the one-leg stand test referred to in paragraph 2(c), and
(iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;
(d) an examination, which consists of measuring the blood pressure, temperature and pulse;
(e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;
(f) an examination, which consists of checking the muscle tone and pulse; and
(g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.
COMING INTO FORCE
4. These Regulations come into force on July 2, 2008.
REGULATORY IMPACT
ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
Drug-impaired driving has been an offence in Canada for many years. However, detecting drug-impaired driving is difficult since there is no equipment similar to the breath testing instruments for alcohol that can detect and measure the concentration of alcohol in the blood. The objective of the Regulations is to give the police a workable tool for investigating drug-impaired driving.
Description and rationale
For about 10 years, Canadian police forces have been using the Drug Recognition Expert (DRE) program first developed in the USA in the 1980s and now run by the International Association of Chiefs of Police (IACP) to develop the necessary evidence to support a charge of drug-impaired driving. Officers trained in Standard Field Sobriety Testing (SFST) have a suspected impaired driver perform a series of physical coordination tests at roadside to determine whether the person is impaired. If the person fails the SFST and is not impaired by alcohol, the driver is taken to an officer trained in DRE who takes physical measurements (pulse, eye dilation, etc.) and has the person perform further tests. If the DRE officer concludes the person is impaired by a drug, the officer asks for a bodily fluid sample (blood or urine) to be analyzed to confirm the presence of the drug. This check protects the suspect.
There are now trained DRE officers in all provinces except Quebec. However, the DRE program has been operating on a voluntary basis with the police asking suspected drug-impaired drivers to participate in the DRE procedures. If they refuse, there is nothing the police can do.
The Tackling Violent Crime Act has amended the Criminal Code to provide the necessary framework to make the DRE program effective. The Act makes it an offence to refuse to participate in SFST and the DRE tests. The Act provides that the qualifications of DRE officers and the details of the SFST and DRE tests are to be prescribed by regulations. The Regulations simply put in legislative terms the SFST and DRE tests that have been performed by Canadian police officers for the past 10 years. Without the Regulations, the drug-impaired driving provisions of the Tackling Violent Crime Act will be inoperative.
The Regulations:
Provide that to be a DRE officer, the officer must be accredited by the International Association of Chiefs of Police;
Prescribe the required physical coordination tests that are three of the SFST tests; and Prescribe the tests and procedures that constitute the drug recognition evaluation.
The only direct costs of the DRE program are to train the police. There will also be costs for the courts and forensic laboratories as the DRE-trained officers lay more charges of drug-impaired driving. Making DRE mandatory rather than voluntary could double the number of charges laid annually by each DRE officer. There will be savings to the extent that the DRE program takes drug-impaired drivers off the roads thereby reducing collisions with their attendant deaths, injuries and economic costs. The training costs are relatively modest and can be absorbed as part of the police training budgets.
Consultation
In 1999, the Drugs and Driving Committee of the Canadian Society of Forensic Science appeared as witnesses at the House of Commons Standing Committee on Justice and Human Rights and supported the development of DRE legislation in Canada. Following a 1999 recommendation from the House Committee, to consider ways to improve the enforcement and prosecution of drug-impaired driving, federal, provincial and territorial officials consulted on this topic.
The Department of Justice carried out a public consultation on the subject of drug-impaired driving in 2003, prior to the drafting of DRE legislation. The legislation was originally tabled in 2004. The law enforcement community is supportive of the legislation and is familiar with the DRE process.
An early draft of the Regulations was provided to the provinces in January 2008 and discussed at a meeting of the Impaired Driving Working Group of the Coordinating Committee of Senior Officials which reports to Deputy Ministers responsible for Justice. A revised draft was provided to the provinces in March 2008 and they were provided the opportunity to respond by email. All provinces are supportive.
Implementation, enforcement and service standards
The RCMP has a DRE program and carries out training not only for itself but also for other Canadian police forces. As more officers gain experience with DRE, the RCMP is training some of them as DRE instructors. Over time, as more officers are certified as DRE instructors, other police departments are expected to establish their own DRE training programs.
The requirement in the Regulations that a DRE officer be certified by the International Association of Chiefs of Police ensures that the program will be run to internationally-recognized standards. The IACP requires periodic re-certification of DRE officers and monitors compliance with the program.
Contacts
Greg Yost
Counsel
Criminal Law Policy Section
Telephone: 613-941-4126
Hal Pruden
Counsel
Criminal Law Policy Section
Telephone: 613-941-4138
Footnote a
S.C. 2008, c. 6, s. 20
Footnote b
R.S., c. C-46
Registration
SOR/2008-196 June 11, 2008
CRIMINAL CODE
Evaluation of Impaired Operation (Drugs and
Alcohol) Regulations
P.C. 2008-1033 June 11, 2008
Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 254.1 (see footnote a) of the Criminal Code (see footnote b), hereby makes the annexed Evaluation of Impaired Operation (Drugs and Alcohol) Regulations.
EVALUATION OF IMPAIRED OPERATION
(DRUGS AND ALCOHOL) REGULATIONS
QUALIFICATION REQUIRED OF EVALUATING OFFICER
1. An evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.
PHYSICAL COORDINATION TESTS
2. The physical coordination tests to be conducted under paragraph 254(2)(a) of the Criminal Code are the following standard field sobriety tests:
(a) the horizontal gaze nystagmus test;
(b) the walk-and-turn test; and
(c) the one-leg stand test.
EVALUATION TESTS AND PROCEDURES
3. The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are
(a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;
(b) eye examinations, which consist of
(i) the horizontal gaze nystagmus test,
(ii) the vertical gaze nystagmus test, and
(iii) the lack-of-convergence test;
(c) divided-attention tests, which consist of
(i) the Romberg balance test,
(ii) the walk-and-turn test referred to in paragraph 2(b),
(iii) the one-leg stand test referred to in paragraph 2(c), and
(iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;
(d) an examination, which consists of measuring the blood pressure, temperature and pulse;
(e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;
(f) an examination, which consists of checking the muscle tone and pulse; and
(g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.
COMING INTO FORCE
4. These Regulations come into force on July 2, 2008.
REGULATORY IMPACT
ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
Drug-impaired driving has been an offence in Canada for many years. However, detecting drug-impaired driving is difficult since there is no equipment similar to the breath testing instruments for alcohol that can detect and measure the concentration of alcohol in the blood. The objective of the Regulations is to give the police a workable tool for investigating drug-impaired driving.
Description and rationale
For about 10 years, Canadian police forces have been using the Drug Recognition Expert (DRE) program first developed in the USA in the 1980s and now run by the International Association of Chiefs of Police (IACP) to develop the necessary evidence to support a charge of drug-impaired driving. Officers trained in Standard Field Sobriety Testing (SFST) have a suspected impaired driver perform a series of physical coordination tests at roadside to determine whether the person is impaired. If the person fails the SFST and is not impaired by alcohol, the driver is taken to an officer trained in DRE who takes physical measurements (pulse, eye dilation, etc.) and has the person perform further tests. If the DRE officer concludes the person is impaired by a drug, the officer asks for a bodily fluid sample (blood or urine) to be analyzed to confirm the presence of the drug. This check protects the suspect.
There are now trained DRE officers in all provinces except Quebec. However, the DRE program has been operating on a voluntary basis with the police asking suspected drug-impaired drivers to participate in the DRE procedures. If they refuse, there is nothing the police can do.
The Tackling Violent Crime Act has amended the Criminal Code to provide the necessary framework to make the DRE program effective. The Act makes it an offence to refuse to participate in SFST and the DRE tests. The Act provides that the qualifications of DRE officers and the details of the SFST and DRE tests are to be prescribed by regulations. The Regulations simply put in legislative terms the SFST and DRE tests that have been performed by Canadian police officers for the past 10 years. Without the Regulations, the drug-impaired driving provisions of the Tackling Violent Crime Act will be inoperative.
The Regulations:
Provide that to be a DRE officer, the officer must be accredited by the International Association of Chiefs of Police;
Prescribe the required physical coordination tests that are three of the SFST tests; and Prescribe the tests and procedures that constitute the drug recognition evaluation.
The only direct costs of the DRE program are to train the police. There will also be costs for the courts and forensic laboratories as the DRE-trained officers lay more charges of drug-impaired driving. Making DRE mandatory rather than voluntary could double the number of charges laid annually by each DRE officer. There will be savings to the extent that the DRE program takes drug-impaired drivers off the roads thereby reducing collisions with their attendant deaths, injuries and economic costs. The training costs are relatively modest and can be absorbed as part of the police training budgets.
Consultation
In 1999, the Drugs and Driving Committee of the Canadian Society of Forensic Science appeared as witnesses at the House of Commons Standing Committee on Justice and Human Rights and supported the development of DRE legislation in Canada. Following a 1999 recommendation from the House Committee, to consider ways to improve the enforcement and prosecution of drug-impaired driving, federal, provincial and territorial officials consulted on this topic.
The Department of Justice carried out a public consultation on the subject of drug-impaired driving in 2003, prior to the drafting of DRE legislation. The legislation was originally tabled in 2004. The law enforcement community is supportive of the legislation and is familiar with the DRE process.
An early draft of the Regulations was provided to the provinces in January 2008 and discussed at a meeting of the Impaired Driving Working Group of the Coordinating Committee of Senior Officials which reports to Deputy Ministers responsible for Justice. A revised draft was provided to the provinces in March 2008 and they were provided the opportunity to respond by email. All provinces are supportive.
Implementation, enforcement and service standards
The RCMP has a DRE program and carries out training not only for itself but also for other Canadian police forces. As more officers gain experience with DRE, the RCMP is training some of them as DRE instructors. Over time, as more officers are certified as DRE instructors, other police departments are expected to establish their own DRE training programs.
The requirement in the Regulations that a DRE officer be certified by the International Association of Chiefs of Police ensures that the program will be run to internationally-recognized standards. The IACP requires periodic re-certification of DRE officers and monitors compliance with the program.
Contacts
Greg Yost
Counsel
Criminal Law Policy Section
Telephone: 613-941-4126
Hal Pruden
Counsel
Criminal Law Policy Section
Telephone: 613-941-4138
Footnote a
S.C. 2008, c. 6, s. 20
Footnote b
R.S., c. C-46
