In a recent decision from Saskatchewan, a driver has been acquitted of impaired by drug despite the evidence of a Drug Recognition Expert (DRE). The expert had relied on the following evidence in forming his opinion:
• Reddish face;
• Cannabis on his breath;
• Red eyes;
• Inability to cross his left eye;
• Eye lid tremors;
• Internal clock was too fast;
• Balance issues;
• Green tongue;
• Blood pressure was high;
• Finger to nose test showed a lack of fine motor skills;
• Admission of using cannabis that morning, some five hours previous.
In considering the totality of the evidence, the trial judge noted the following. There was no evidence as to how long cannabis stays in the blood stream and no evidence as how the length of time it was in the system would affect the level of impairment. The judge further noted that during the DRE test, the accused’s pulse, pupils, eye movements, Horizontal and Vertical Gaze Nystagmus tests were within the normal range. The accused’s inability to cross his left eye was not inconsistent with other people’s inability to do the same. Ultimately, the Court was left with a reasonable doubt about the guilt of the accused despite the expert evidence.
This decision demonstrates the importance of a thorough and effective cross-examination of a DRE officer in cases involving allegations of impaired by drug.
