Subjective speculation to sweep across the Nation How Drug Recognition Experts will handle Cannabis on Canadian Roadways


It seems like a done deal.

Legal cannabis will be in the hands of Canadians before the year is up, if, of course, Bill C-45 (the Cannabis Act) passes through its third and final reading in the Senate on June 7, 2018. Assuming it does, government approved retailers will begin stocking the sticky product sometime in late August or early September. With only a couple months to go, law enforcement officials are finalizing strategies to combat high drivers. While THC impairment screening devices are in the research and development stage, police forces will be relying on specially trained officers to identify drug impaired motorists.

These specially trained officers are known as “Drug Recognition Experts” (“DRE”), receiving the designation after completion of programming offered in jurisdictions spanning North America. Much like the preliminary steps taken in alcohol-impaired driving investigations, DRE’s make findings based whatever limited evidence is available at the time. For example, if a police constable forms reasonable suspicion of impairment by alcohol, the next step is to demand a breath sample on an Approved Screening Device. The result of that screening determines the officer’s next steps. In this context, the officer’s opinion regarding impairment is subjective only until the Approved Screening Device issues a reading. If the result is a “FAIL”, the officer can reasonably conclude that the driver is intoxicated. Discretion then allows the officer to issue an Immediate Roadside Prohibition (in British Columbia), or to continue the investigation with another breath test at the detachment, paving the way for criminal charges. 

In the case of marijuana-impaired drivers, police lack one very important resource: sound, scientific instruments to test for THC levels. Forget the debate over what constitutes “impairment” from marijuana – we can’t make any use of an identifiable range when there is no quantifying tool.

Acknowledging this, the Government of Canada has attempted to soothe concerns by assuring the public that DRE’s are absolutely qualified, that their subjective opinions are sufficient, and that their judgement is sound. But, in reality, police officers are just normal people with a job to do, and are not in any way immune to making mistakes – but in their role, fallacy holds serious consequences for public confidence.

DRE procedure is both standardized and systemic, meaning that the techniques don’t change – regardless of circumstances. Aka, it is a “one size fits all” approach. Observation is the key focus of these investigations – DRE’s making note of a subject’s behavior, attitude, and candour throughout the process. Specific observations relating to blood pressure, pulse, and ocular activity are also recorded. Subjects are asked to perform “field tests” similar to those requested in alcohol impairment investigations – walk a straight line, stand on one leg, touch your nose, etc.

The key concern with this methodology is the blind faith in an officer’s ability to provide a subjective opinion that is free from bias. Interestingly, a blood or urine test to confirm toxicology is only requested after DRE has concluded (decided) that a driver is drug-impaired. So if you’re being investigated for such an offence, your best case scenario is to waste 2-3 hours at the police detachment under observation, plus further invasive testing, before the DRE establishes that you weren’t driving stoned – you were  tired after a long night of work, just like you said.

If the Government chooses to develop an administrative penalty system for high drivers in the same way they did for alcohol impaired drivers, we are likely to see increased praise for police when fines from impounds and prohibitions come pouring in. Criminal lawyers in British Columbia are already cringing at the thought of another regime that strips individuals of their right to make full answer and defence to allegations against them – this time, in relation to drug  offences, which can create significant problems for future travel and employment prospects. 

If law enforcement’s strategy to protect our roadways involves unethical arrests, and even worse, false convictions, public perception of police integrity is sure to be compromised, and our progressive marijuana laws could end up doing more harm than good.

If you’ve been charged with drug impairment offences, it is crucial that you contact an experienced criminal lawyer without delay. We are conveniently located in Richmond, B.C., only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.