HAWKE J.:

I. OVERVIEW

1Mr. Wilson faced the following charges (the wording below is a condensed version):

(1) On the 2^nd day of December, 2024, at the City of Brantford, did operate a conveyance while their ability to operate it was impaired to any degree by alcohol, or a drug, or both, contrary to Section 320.14(1)(a) of the Criminal Code.

(2) …..On the 2^nd day of December, 2024, at the City of Brantford, did knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code, contrary to Section 320.15(1) of the Criminal Code.

2On December 2, 2024, Mr. Wilson was involved in a motor vehicle collision with another vehicle in Brantford.

3Mr. Wilson spoke to P.C. Martin at the scene. She took some information from him and then conducted a sobriety test. Thereafter she arrested Mr. Wilson for Impaired Operation and she made a demand for an evaluation by an Evaluating Officer. She was qualified as an Evaluating Officer and she took Mr. Wilson to the station for an evaluation.

4At the end of the evaluation she made a urine sample demand to Mr. Wilson and he refused to give a sample.

5After evidence was heard at the trial, the parties made written submissions.

6On March 16, 2026, I made an evidentiary ruling that the utterances made by Mr. Wilson at the roadside where inadmissible because they were compelled by statue, the Highway Traffic Act, and this resulted in a Section 7 breach of the Charter.

7On March 16, 2026 I also gave rulings on trial issues.

8On Count 1, Mr. Wilson was found NOT GUILTY. This was as a result of the exclusion of the roadside utterances and the fact that the Crown did not proffer any other evidence of Mr. Wilson operating a conveyance.

9This left Count 2 - Refuse Demand, where proving that Mr. Wilson operated a conveyance was not an element of the offence.

10On the Refuse Demand count Mr. Wilson was found NOT GUILTY. I ruled that the Crown did not prove one of the elements of the refuse offence. Specifically, I found that the Crown did not prove there was a ‘valid demand’ because the Crown did not prove the statutory preconditions under Section 320.28 (4)(a), regarding the necessary reasonable grounds, by the Evaluating Officer, needed for a ‘valid demand’.

11This decision was based on two separate findings, each of which is independent from the other, and each of which are in my view fatal to the Crown’s case.

Regarding Issue # 1 – P.C. Martin, in her capacity as a Evaluating Officer, did not have the necessary grounds because she did not complete the evaluation, given that she did not conduct Step 1 – Breath Alcohol Test. Built into this ruling is a rejection of the Crown position that i) doing Step 1 of the 12-Step Drug Influence Evaluation in this case would have been illegal; and ii) that doing what amounted to a 11-Step evaluation, satisfied the statutory preconditions.
Regarding Issue # 2 - Reasonable grounds for the demand need to be proven on both a subjective and objective basis and I found that the Crown was unable to prove the latter.

12As a result the Defendant was found NOT GUILTY on Count 2 - Refuse Demand.

13My reasons, for the decisions above, follow below.

II. SECTION 7 CHARTER APPLICATION

INTRODUCTION

14As noted above, Mr. Wilson was involved in a motor vehicle collision.

15At the scene he spoke to P.C. Martin and as part of that he identified himself as the driver of one of the vehicles in the collision and he answered questions about the collision. His Application states that he did these things because he wanted to comply with his statutory obligation to participate in the investigation of a motor vehicle collision under Section 199 of the Highway Traffic Act.

16The Crown wanted to have these utterances admitted at trial and filed an Application regarding voluntariness.

17The Defence Application sought exclusion of the utterances from the trial asserting that they were statutorily compelled statements and as such are a breach of Mr. Wilson’s Section 7 Charter rights, citing R. v. White, 1999 689 (SCC), [1999] 2 SCR 417.

HIGHWAY TRAFFIC ACT SECTION 199

18The duty to report an accident is in Section 199(1) of the Highway Traffic Act.

199 (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall report the accident immediately to the nearest police officer and provide the officer the information concerning the accident as may be required by the officer under subsection (3)

THE EVIDENCE

19P.C. Martin testified that she arrived on scene at 7:35 p.m. She observed a Ford Explorer facing westbound on Brock Street parked in the middle of the road. She saw two males that were standing in the middle of the intersection looking at the collision. She approached both of them and asked if either of them was involved in the collision. There were no other officers on scene. One male advised that he was the driver of the Ford Explorer and he provided a driver’s licence. He matched the photo on the licence and his licence had a name of Terrance Wilson with a date of birth of 1958, September 28^th. She then asked how the collision happened. Mr. Wilson said he was going through the intersection when a vehicle hit him.

20At this point the focus of the interaction changed because of observations P.C. Martin made during the conversation and at 7:41 p.m. she read a Field Sobriety demand. (i.e. 6 minutes after arriving on scene.)

21Mr. Wilson provided a sworn affidavit as part of his Charter Application. In the Affidavit his sworn evidence is:

He was driving a white Ford Explorer and was involved in the collision.
Immediately after the accident he urgently had to go to the bathroom so he left to a private spot to do so.
He returned and while speaking to a witness he was approached by a police officer.
This officer asked where he had been and the explanation was given.
Then he spoke to a second male officer who asked what happened. He explained that he did not know because he was unsure the cause of the accident.
Next he spoke to P.C. Martin who asked if he was the owner of the Ford.

22Next in the Affidavit Mr. Wilson states:

I was aware of my duty under the Highway Traffic Act to identify myself as the driver, to explain my involvement in order to assist in completing the police investigation after a collision, and so I assisted to this end.

23Mr. Wilson goes on to say that at no time did P.C. Martin discuss his right to remain silent, that his statements would be part of a police investigation or that they could be used in court.

24Mr. Wilson was cross-examined on this Affidavit.

ANALYSES

25The question was whether I believed Mr. Wilson’s evidence asserting that he made the utterances to P.C. Martin in order to comply with his statutory obligation.

26Whether I believed Mr. Wilson about his belief was really about whether I thought that cross-examination on his Affidavit damaged his credibility on the point.

27My impression of Mr. Wilson while testifying is that he is uses very simple English. His idea of what it meant to have to report an accident was equally simple. His evidence was weak when it strayed into alternative ways for reporting the accident in general and at the scene, but in my view this did not damage his credibility.

28The Crown pointed to the following pieces of testimony:

He spoke to three officers;
With the first he identified himself as the driver and explained why he left the scene;
With the second officer he identified himself as the driver;
When asked why he didn’t actively report the collision to these two officers he said that he thought that would come later on in the investigation; and
He also told P.C. Martin he was the driver and when asked why he didn’t report how the collision happened he explained that this interaction was more based on the test for impaired. (Note: This last suggestion to Mr. Wilson is inconsistent with P.C. Martin’s evidence who testified that he did tell her what happened.)

29The Crown submitted that given this testimony that the Defendant was not actively reporting the collision, and therefore it was not a compelled statement under the HTA.

30I disagree. What more was he to do, exactly? While standing beside the accident should he have said to an officer “I’d like to report an accident”? With the two officers who approached him first should he have told them that they should stop what they were doing at the scene and take a report from him instead?

31I find that:

I accept Mr. Wilson’s evidence;
Mr. Wilson’s utterances were compelled by statute; and
Mr. Wilson has met his onus in proving a Section 7 breach of the Charter.

32The Crown submitted that if there is a breach, then one considers the analysis under R. v. Grant.

33I disagree. I do not think the Grant analysis applies in the case of statutory compulsion leading to a Section 7 Charter breach.

CONCLUSION

34The utterances in question were excluded from the trial evidence.

III. COUNT 1 – IMPAIRED OPERATION

35The Defendant was found NOT GUILTY on Count 1 - Impaired Operation given:

The exclusion of the utterances to P.C. Martin at the scene; and
The Crown did not proffer any other evidence on the trial of Mr. Wilson being the operator of a conveyance.

IV. COUNT 2 – REFUSE DEMAND

INTRODUCTION

36At an end of the evaluation, P.C. Martin in her capacity as an Evaluating Officer gave Mr. Wilson a section 320.28 (4) (a) demand for a urine sample.

37The issue is whether the Crown has proven that the demand was a ‘valid demand’.

THE OFFENCE

38The wording of the Refusal offence section is:

320.15. Failure or refusal to comply with demand

(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

39This offence has three elements:

A ‘valid demand’;
The actus reus, which is the failure or refusal to provide the requisite sample;
The mens rea, which is either knowledge that the demand has been made or that the accused intend to produce the failure or refusal.

40The Crown must prove two things, in order to prove a ‘valid demand’ (i.e. to prove the first element above).

Prove that the statutory preconditions for the particular demand in issue were met; and
Prove that the officer communicated a demand to the accused.

41In this case the statutory preconditions for the demand are found in Section 328.28(4)(a). (I have added emphasis to highlight the issues in this case.)

320.28(4) Samples of bodily substances —If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in subsection (5) or that a combination of alcohol and one or more of those types of drugs—is impairing the person’s ability to operate a conveyance, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of oral fluid or urine that, in the evaluating officer’s opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the body of one or more of the types of drugs set out in subsection (5);….

THE ISSUES

42There are two issues and they both are about whether the Crown has proven the statutory preconditions highlighted above:

Issue # 1 – Did the Crown prove that the Evaluating Officer completed the evaluation?
Issue # 2 – Did the Crown prove that the Evaluating Officer had reasonable grounds to believe that one or more types of drugs were impairing Mr. Wilson’s ability to operate a conveyance?

43As this is a matter of the Crown proving elements of an offence the required standard of proof is beyond a reasonable doubt.

44When examining these issues, I think it is helpful to keep the big picture in mind: “Culpability for the refusal offence is based on disobedience with lawful compulsion.”¹

45Before moving to Issue # 1, I will review some preliminary topics that underpin the analyses of both Issue # 1 and Issue # 2.

PRELIMINARY TOPICS

STATUTORY INTERPRETATION

46One cannot approach the two issues without a clear understanding of:

the legal definition of evaluation in the Criminal Code sections
the role of an Evaluating Officer in conducting an evaluation

47I wrote extensively about the definition of evaluation, and then about how that definition determines the role of the Evaluating Officer, in a case called R. v. Takov, 2025 ONCJ 316. I distributed this case to the Crown and Defence counsel on the current case. This particular analyses is in paragraphs 45-72, inclusive. I will not repeat or summarize that analyses in this judgment, as it doesn’t lend itself to being easily summarized. I set out my conclusions below and I rely upon them heavily, both in general and in specific application, in this judgment.

48The primary conclusions regarding statutory interpretation from Takov are:

The statutory interpretation of the word evaluation in the Criminal Code, is one, and only one, very specific evaluation — the 12-Step Drug Influence Evaluation (12-Step DIE) (As determined by the International Association of Chiefs of Police - Drug Evaluation and Classification Program)
In the 12-Step DIE, the person who conducts the evaluation is usually referred to as a DRE [Drug Recognition Expert]. A DRE’s certification covers a number of areas. However, when DREs are acting in the role of conducting the 12-Step DIE, their expertise is circumscribed to the role of evaluator, as described in the standardized 12-Step DIE. Therefore, they have no expertise that allows them to add, change, or ignore any part of the “drug influence evaluation” or how it is conducted.²
Given that an Evaluating Officer under the Criminal Code and its Regulations is a Certified Drug Recognition Expert (DRE) accredited by the International Association of Chiefs of Police, the bullet above applies to them.

49Legal definitions are pillars when conducting any analysis in a case. It follows that given an evaluation is the 12-Step DIE it becomes necessary to access the 12-Step DIE in cases like this one.

50I chose to rely on two manuals. These manuals are the Participant Manuals for officers enrolled in the Drug Evaluation and Classification Program, which if completed successfully, along with completing supervised testing, results in certification of Drug Recognition Experts (DRE) by the International Association of Chiefs of Police. Note: The Evaluating Officer in this case has been certified through this process. These manuals [2023] are:

i) PRE-SCHOOL: Preliminary Training for the Drug Evaluation and Classification Program – Participant Manual (abbreviated to ‘P.S.’ in citations below)

ii) DRE: Drug Recognition Expert 7-Day School – Participant Manual (abbreviated to ‘7 Day’ in citations below.

51These manuals are published by the International Association of Chiefs of Police. I refer to them collectively as Manuals in this judgment.

52I accessed the Manuals on-line, at the website of the National Highway Traffic Administration of the US Department of Transportation, at https://www.nhtsa.gov/enforcement-justice-services/drug-evaluation-and-classification-program-advanced-roadside-impaired.

EXPERT EVIDENCE – EVALUATING OFFICERS

53Section 254(3.1)(the predecessor of Section 320.14(1)(a)) was the subject matter of a Supreme Court of Canada decision: R. v. Bingley, 2017 SCC 12. In that decision the Supreme Court held that the DRE’s evidence about the evaluation, including the opinion given, was expert-opinion evidence that was admissible without a need for a Mohan voir dire. (Note: this is now part of the legislation.)

54It is interesting to note that:

i) Throughout the decision, the only evaluation ever referred to, directly or indirectly, is the evaluation the DRE was trained to conduct i.e. 12-Step DIE.

ii) One example of this is: “That Parliament has established the reliability of the 12-step drug evaluation by statute….”³

55I am going to interrupt the interpretation of evaluation for a moment in order to include some points about DREs made in Bingley, that still apply today. They are:

(i) A DRE’s determination is a result of administering the prescribed evaluation. That is the only expertise conferred on a DRE⁴;

(ii) The focus of the analysis at trial must be on the DRE’s administration of the evaluation, not on the reliability of the steps underlying the evaluation, which have been prescribed by Parliament⁵;

(iii) The statutory framework does not change a trial judge’s role regarding expert evidence and examples include: absence of standardized approach can affect weight of a DRE’s evidence; and this may include being unable to explain how an opinion was determined based on the 12-step evaluation⁶; and

(iv) There are a number of possible issues that may arise in assessing a DRE’s evidence including: the officer may fail to conduct the drug recognition evaluation in accordance with his or her training; and a DRE may draw questionable inferences from his or her observations⁷.

BACKGROUND RE: THE 12-STEP DIE

56In order to facilitate an understanding of the 12-Step DIE and the Evaluating Officer’s evidence, I will begin by reviewing key concepts and definitions in the 12-Step DIE.

57The following is a suitable starting point⁸:

All human beings are different, and a “normal” or “standard” human does not exist. However, experience and scientific studies have produced an average range of values, or expected values, of non-impaired people that can be used for comparison purposes.

In the Drug Evaluation and Classification (DEC) Program we use the terms Average Value or Expected Range.

Average Value is a single value that represents the middle of the range that the majority of healthy, non-impaired people would exhibit. This means when ALL the sizes were measured using the DRE protocol in a large number of pupils in healthy, non-impaired adults, the average pupil size was approximately 6.5 mm.
Expected Range describes a range of values above and below the average for the majority of healthy non-impaired people. The average pupil size in near-total darkness is 6.5 mm, but the “Expected” range is 5.0-8.5 mm for healthy or non-impaired person.

Normal can be used to describe conditions that are not measured numerically such as muscle tone.

For DREs, the closer the finding is to the average value, the more likely the person is not exhibiting impairment in that function. The farther away from the average value and nearer the edge of the expected range, the more likely the person is exhibiting impairment in that function.

58In the Glossary of Terms, impairment is defined as follows⁹:

Impairment: one of the several items used to describe the degradation of mental and/or physical abilities necessary for operating a motor vehicle.

59A significant part of the 12-Step DIE is about Indicators that may be consistent with any one of seven possible Drug Categories.

60Firstly, there are Major Indicators:

For DRE purposes, Major Indicators are physiological signs specifically addressed and are, for the most part, involuntary, reflecting the status of the Central Nervous System (CNS) homeostasis¹⁰. (Emphasis added)

61The Major Indicators of drug impairment are¹¹:

Horizontal Gaze Nystagmus (HGN)
Vertical Gaze Nystagmus (VGN)
Lack of Convergence (LOC)
Pupil Size
Reaction to Light
Pulse Rate
Blood Pressure
Body Temperature
Muscle Tone

62Secondly, there are General Indicators:

For DRE purposes, General Indicators are behaviours or observations of the subject observed, and not specifically tested for. Major and General Indicators are of equal value in making a decision in the totality of the evaluation.¹²

63There is a Chart/Matrix in the 12-Step DIE that summarizes which Major Indicators are expected, and which General Indicators may be present, with each of the seven Drug Categories. (See Chart/Matrix, Appendix A.)

64The 12-Step DIE cautions the DRE/Evaluator to be on the lookout for medical conditions - both physical and mental. It emphasizes that: Some conditions mimic drug impairment (i.e. have the same Indicators); and sometimes it is a case of both a medical condition and drug impairment. Major possible medical conditions are discussed in detail, but it is emphasized that the list of possibilities is long (2,500 to 12,000 diseases and conditions) and that the DRE should look and enquire closely at all times (i.e. go beyond the standard medical questions in the 12-Step DIE if anything is noticed) Also, medical impairment is a possible opinion from an evaluation in Step 11 – Opinion of the 12-Step DIE.¹³

ISSUE # 1 – DID THE EVALUATING OFFICER COMPLETE THE EVALUATION?

INTRODUCTION

65By way of review, one arrives at this question given the following sequence of things:

i. A Section 320.28(4) demand was made for a urine sample by the Evaluating Officer

ii. Mr. Wilson refused to provide a sample and was charged with Refusal under Section 320.15

iii. The Crown has the onus of proving the elements of the Refusal offence

iv. The first element for the Crown to prove is a ‘valid demand’

v. In order to prove a ‘valid demand’ the Crown must prove the statutory preconditions required in Section 320.28(4) for the demand for a urine sample

vi. Section 320.28(4) states “if, on the completion of the evaluation, the evaluating officer has reasonable grounds….

vii. Has the Crown proven the first precondition i.e. the completion of the evaluation

66As reviewed above, the evaluation is the 12-Step DIE. In the 12-Step DIE, unsurprisingly, there are 12 Steps and the DRE/Evaluating Officer is responsible for conducting all of the Steps, with the exception of Step-12 – Toxicology.

67Also as reviewed above, the 320.28(2)(a) demand, is a demand where the subject must comply with the requirements of an evaluation conducted by an evaluating officer.

68Step 1 of the 12-Step DIE instructs the DRE/Evaluating Officer to conduct a single breath test. This completes Step 1.¹⁴

THE EVIDENCE

69The evidence from P.C. Martin is quite simple. In the entire time with Mr. Wilson she did not smell alcohol and she did not have a suspicion of alcohol. She acknowledged that Step 1 of the 12 Steps is a ‘Breath Alcohol Test’. However, she had been trained that the ‘Breath Alcohol Test’ does not need to be completed in these circumstances.

70She did not make a specific reference to her training materials.

71Her evidence about her training is that it began with two weeks at the Ontario Police College and then one week in Florida to complete the program and become certified.

POSITION OF THE PARTIES

The Defence

72The Crown has not met its onus.

The Crown

73The Crown submitted:

The Crown respectfully submits that there is no legal basis to impugn the DRE because she followed training of the standardized process, she did not suspect any alcohol, and logically, as she was trained, did not do the breath test.

74The Crown in order to “support or confirm” the assertion that “the DRE Expert is not required to do a breath alcohol test if there is no suspicion of alcohol impairment” provided a quotation from what is described as “page 6 of session 4, of the most recent DRE Participants manual”:

The Breath Alcohol Test is needed to determine BAC. The purpose of the breath test is to determine whether the specific drug, alcohol, may be contributing to the impairment observed of the subject. Obtaining an accurate measurement of BAC enables the DRE to assess whether alcohol may be contributing to impairment.

In Canada, the first step is not always performed. This deviance in procedure is unique to Canadian DREs because we are not legally authorized to systematically require a breath test from a subject without any grounds.

That said, a DRE must only reach Reasonable suspicion that the subject has alcohol in their body to demand a breath sample (remember: the suspicion threshold can be very low), and this sample is made into an approved device, providing a precise reading. If the DRE themselves are not a Breath Technician, then they will need to as of [sic] one to attend (Note that R. v. Brault does not apply here as the subject is already under arrest).

ANALYSES

75No matter how one approaches this issue, in this evaluation, Step 1 of the 12-Step DIE was not conducted.

76The Crown has not presented any legal authority to support a finding that in circumstances where, as here, a subject was given a lawful demand to comply with the requirements of an evaluation conducted by an evaluating officer, that:

There may be exceptions and/or
Some of the requirements of the evaluation may be illegal.

77The first paragraph in the quotation above is a perfect match with the 7 Day Participant Manual I have been using throughout this judgment. Not only does it match in content, but it is also the same Session.

78Before going further I note:

As one can see in the first paragraph of the quote, in the 12-Step DIE alcohol is identified as a specific drug.
Alcohol is in fact a drug. It is a central nervous system (CNS) depressant.
One of the categories on the Chart/Matrix of Indicators is CNS Depressants
Step 1 - Requires a single breath sample
Step 11 - Opinion of Evaluator provides only very general guidance of how to form an opinion. For example, that the opinion is based on the “totality of the evaluation”¹⁵
However, there is one, and only one, specific direction given in Step 11- Opinion of Evaluator. It is with regard to alcohol. “Anytime there is a positive BAC reading during the evaluation, the DRE must list alcohol (ETOH) as part of their opinion”¹⁶ (Emphasis added)

79Returning to the first paragraph in the quotation that I have been referring to, it is in Session 4 - Overview of Drug Recognition Expert Procedures. Just above it are images of 2 slides and just above that is the topic of standardization. I note the following from that part:

^•DREs should always try to conduct the 12-Step process in the same manner each time¹⁷

^•Standardization helps to ensure no mistakes are made. There are no steps omitted and no extraneous or unreliable “indicators” are included. Standardization helps to promote professionalism among Drug Recognition Experts (DREs). Standardization helps to secure acceptance in court.¹⁸(Emphasis added)

80I have no way of knowing where the manual referred to by the Crown, which contains the additional two paragraphs in the quote, comes from. I am familiar with the fact that there are Canadian police officers who have an Instructors Certificate, from the International Chief’s of Police, as a DRE Instructor. P.C. Martin’s first two weeks of training was at the Ontario Police College. I assume the training officers were certified. It appears they utilized the same participant manuals that I have been referring to. But it also appears that the Ontario Police College has supplemented the Manual(s) with other information.

81I have no way of knowing if this has happened anywhere else in the Participant Manuals.

82In any event, it remains my view, as detailed in paragraphs 48 above that, the definition of an evaluation in the Criminal Code is the 12-Step Drug Influence Evaluation (as determined by the International Association of Chiefs of Police - Drug Evaluation and Classification Program).

83Further it is my view that this definition is not, and cannot be, followed by: and as amended from time to time by the Ontario Police College or any other Canadian police organization or police service.

84I do not see any reason to go any further and try to analyze what the police perceive as a problem. This concerns a demand. The police need to conduct the statutory requirements and subjects need to comply. The police have no lawful authority to change the statutory requirements for any, or all, subjects.

85There is no such thing as an 11-Step DIE, which in effect is the proposed alternative here.

86Further, an Evaluating Officer has no admissible opinion evidence to give if the opinion is based upon anything other than the 12-Step DIE. (See paragraph 55(i) above.)

CONCLUSION

87The Evaluating Officer did not complete an Evaluation. Therefore the Crown cannot prove a ‘valid demand’. It follows that the Crown has failed to prove an element of the Refusal offence.

88This results in Mr. Wilson being NOT GUILTY.

89This also means that if the evidence of identity had not been excluded (See paragraphs 34 and 35 above), the Crown could not prove the Impaired Operation count because there would be no evidence on the ‘by a drug’ part of the offence. The evaluating officer does not have admissible evidence to fill this gap on a trial and without a Refuse finding of guilt, there is no negative inference from the Refuse count to assist.

PRELIMINARY TOPICS RE: ISSUE # 2

TUNNEL VISION AND CONFIRMATION BIAS

90In my assessment of the evidence in Issue # 2 below, I raise concerns about Tunnel Vision and Confirmation Bias.

91I utilized the following as reference material. It is from a report of the Public Prosecution Service of Canada: Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada, Chapter 2 - Understanding Tunnel Vision.¹⁹

Tunnel vision in the criminal justice context can be described as a tendency of participants in the system, such as police or prosecutors, to focus on a particular theory of the case and to dismiss or undervalue evidence which contradicts that theory. This mental process leads to “…. unconscious filtering in of evidence that will ‘build a case’ against a particular suspect, while ignoring or suppressing evidence respecting the same suspect that tends to point away from guilt. …” (Emphasis added)

Legal scholars typically include “confirmation bias” as an element of tunnel vision. Confirmation bias is a powerful psychological process that causes an individual to unconsciously prefer information that supports a conclusion that they have already settled on and to disregard or be overly skeptical about information that contradicts that conclusion. While tunnel vision narrows the focus of an investigation to a single target, confirmation bias leads investigators and prosecutors to filter in evidence supporting their theory and to ignore or undervalue evidence that suggest their theory might be incorrect. Confirmation bias causes people to seek, recall, and even interpret data in ways that support their prior beliefs.²⁰ (Emphasis added)

DRUG COMBINATIONS

92Earlier in this decision I provided background information about the 12-Step DIE. (See paragraphs 56 - 66 above.) Also the Chart/Matrix regarding Major Indicators and General Indicators is attached as Appendix A.

93The Evaluating Officer, P.C. Martin, came to an opinion involving the combination of two Drug Categories.

94Session 24 of the 7 Day Manual is entitled ‘DRUG COMBINATIONS’. Some introductory points are:²¹

Polydrug impairment means being under the combined influence of two or more different drugs, which may be in the same or different categories
When Polydrug impairment involves drugs from two or more drug categories, it may be referred to as polycategory impairment.
Polycategory can produce any of the four drug combination effects (Null, Overlapping, Additive or Antagonistic.)

95The four effects of drug combination on Indicators of Impairment are set out below for a combination of two categories. I have also provided an example, using pulse, for each one.

Null Effect

No action + No action = No action
no effect on pulse + no effect on pulse = no effect on pulse

Overlapping Effect

Action + No Action = Action
Pulse goes up + no effect on pulse = Pulse goes up

Additive Effect

Action + Action = Greater Action
Pulse goes up + pulse goes up = Pulse goes up (reinforced)

Antagonist Effect

Action + Opposite Action = Unpredictable
Pulse goes up + pulse goes down = any one of: normal range, or up or down.

96There is no guidance in the Session that suggests how specifically this could/would affect General Indicators.

97With Major Indicators the Session provides a chart that can be used in order to see what an Expected Result would be from combining any two categories of Indicators from the Chart/Matrix.

98When the combination of drugs provides an unpredictable result then all possible results are listed in the Expected Result column, on the chart.

99In this case the Evaluating Officer’s opinion at the end of the Evaluation was the combination of a CNS Stimulant and a Narcotic Analgesic.

100I filled in this combination on the Chart provided in the Session, and this is the result.

Impairment Indicator	Effect Due to CNS Stimulant	Effect Due to Narcotic Analgesic	Type of Combined Effect*	Expected Results
Horizontal Gaze Nystagmus	None	None	Null	None
Vertical Gaze Nystagmus	None	None	Null	None
Lack of Convergence	None	None	Null	None
Pupil Size	Dilated	Constricted	Antagonistic	Normal Dilated Constricted
Reaction to Light	Slow	Little or None Present	Additive	Little or None Present
Pulse Rate	Up	Down	Antagonistic	Up Down Within DRE Ranges
Blood Pressure	Up	Down	Antagonistic	Up Down Within DRE Ranges
Body Temperature	Up	Down	Antagonistic	Up Down Within DRE Ranges
Muscle Tone	Rigid	Flaccid	Antagonistic	Normal Rigid Flaccid

*Type of Combined Effects:

Null (No Action + No Action = No Action)
Overlapping (Action + No Action = Action)
Additive (Action + Action = Greater Action)
Antagonistic (Action + Opposite Action = Unpredictable)

ISSUE # 2 – DID THE EVALUATING OFFICER HAVE REASONABLE GROUNDS TO BELIEVE THAT ONE OR MORE TYPES OF DRUGS WERE IMPAIRING THE DEFENDANT’S ABILITY TO OPERATE A CONVEYANCE?

THE ISSUE

101Given the facts in this case this issue can be particularized and condensed in the following way:

Did the Evaluating Officer have reasonable grounds to believe that a combination of a CNS Stimulant and a Narcotic Analgesic were impairing the Defendant’s ability to operate a conveyance?

THE EVIDENCE

Arresting Officer

102P.C. Martin was the arresting officer. Her evidence is reviewed below under the title: Step 2: Interview of Arresting Officer.

Evaluating Officer

103As previously noted, P.C. Martin was the Evaluating Officer. She is a certified drug recognition expert accredited by the International Association of Chiefs of Police (Certificate dated December 2, 2024).

104After P.C. Martin, in her capacity as the Evaluating Officer conducted what she asserts was an evaluation she formed the opinion that Mr. Wilson’s ability to operate a conveyance was impaired by two categories of drug:

A CNS Stimulant (Central Nervous System Stimulant)
A Narcotic Analgesic

105As I reviewed above, an evaluation under the Criminal Code is the 12-Step DIE. Further, the 12-Step DIE is a detailed, fully standardized procedure.

106When reviewing the Evaluating Officer’s evidence below, I also reviewed each Step of the 12-Step DIE. I used the following headings within each Step.

The 12-Step DIE
The Evidence
Comments

The Evaluation of the Defendant Mr. Wilson

Step 1: Breath alcohol test

107As discussed at length in Issue # 1 above, there was no attempt to do a Breath Alcohol Test.

Step 2: Interview of Arresting Officer

The Evidence

108Obviously, there was no need for P.C. Martin to interview herself but her evidence as the Arresting Officer is relevant here.

109P.C. Martin arrived on scene at 7:35 p.m. She saw a white Ford Explorer facing westbound on Brock Street parked in the middle of the road. The road was dry. It was nighttime, there was artificial street lighting, and low traffic. She doesn’t recall anything else about the vehicle or the scene.

110P.C. Martin recalls seeing two males that were standing in the middle of the intersection looking at the collision. She recalls a female getting out of a Kia Sorento.

111P.C. Martin spoke to the males. One of them identified himself as the driver and presented his driver’s licence: Terrance Wilson with a date of birth of September 28, 1958. This means that Mr. Wilson was two months shy of his 67^th birthday.

112Regarding this exchange P.C. Martin testified:

Mr. Wilson advised that he was going through the intersection when a vehicle hit him
She noticed that Mr. Wilson’s speech was slow and slurred
Mr. Wilson’s eyes in the artificial street light appeared constricted and watery
Mr. Wilson was swaying slightly from side-to-side
There was no smell of alcohol

113Based on the above P.C. Martin gave a Field Sobriety demand, at 7:41 p.m.

114Before doing the Field Sobriety test P.C. Martin testified that she asked Mr. Wilson about any medical conditions. P.C. Martin says the information was that Mr. Wilson:

had back pain
had left knee pain
did not have problems with his ears
did not have problems with balancing (exact exchange is not known from the evidence)

115The first part of the testing was testing for Nystagmus, the involuntary jerking of the eyes. This involved Mr. Wilson following a stimulus with his eyes in three different ways. Mr. Wilson did as well and as anyone could do on these tests i.e. no involuntary jerking was seen.

116The next test was the Walk and Turn test. This is the same test that comes up again during Step 5 - Divided Attention Tests of the Evaluation.

117The test has two phases:²²

(1) The first is the instruction phase where the subject stands heel to toe (right foot in front) and arms at sides (where they are to remain)

(2) The second phase involves taking nine heel-to-toe steps on a line (while watching feet), turning around keeping the front or lead foot on the line and to turn by taking a series of small steps with the other foot, and to return nine heel-to-toe steps down the line. All steps are counted by the subject out loud.

118P.C. Martin gave the standard script for instructions for all of these points and she demonstrated the same.

119It is important to note that Mr. Wilson was wearing running shoes.

120P.C. Martin’s observations were:

During the instructional stage, he was unable to keep his balance two times (he stepped off the line with his left foot twice towards the left)
On the first walk on the line he stepped off two times (step 2 and 6 to the left)
On the turn he used both feet
On the second walk on the line he only took 8 steps and he stepped off 1 time (step 5 to the right) and he stopped on step 3
Throughout he missed the heel-to-toe
Throughout he did not raise his arms (i.e. a good thing)
I assume he did the counting because there is no evidence on this point

121With this test, unlike when it is done in Step 5, there is a scoring system and P.C. Martin gave Mr. Wilson 6 out of 8 which she called “performing poorly”.

122She then moved to the One Leg Stand Test. This is the same test that comes up again during Step 5- Divided Attention Tests of the Evaluation, with one difference. At the roadside the subject is only tested on one leg and the subject chooses which leg. Mr. Wilson chose to stand on his right leg.

123First, there is instruction to stand with heels and toes together while instructions and a demonstration are given. The instructions are then to stand on one foot, raise the other leg approximately 6 inches off the ground, with the raised foot parallel to the ground. While in this position watch the raised foot, keep arms at the sides count out loud - 1001, 1002, 1003, until told to stop.

124P.C. Martin’s observations were:

He used his arms to balance continuously throughout the test.
He hopped once.
He put his foot down six times (count 1, 2, 3 and then restart count 1, 2, 6).

125His score was 3 out of 4 which P.C. Martin characterized as “he performed poorly”.

126Then P.C. Martin’s evidence was:

As a result of the testing, I determined that Wilson had performed poorly. I had reasonable grounds to believe Wilson’s ability to operate a conveyance was impaired by a drug and that he had operated a conveyance while impaired.²³

127On the basis of this belief, P.C. Martin arrested Mr. Wilson at 7:55 p.m. for “impaired driving” and she gave him the demand to submit to an evaluation by an evaluating officer.

128They left the scene at 8:01 p.m.. They arrived at the police station at 8:07 p.m. and Mr. Wilson was left with another officer for booking. P.C. Martin next saw Mr. Wilson at 8:46 p.m. when he entered the room where she was. (Total time not together 39 minutes.)

Comments

129The topic of Mr. Wilson’s age came up many times during cross-examination, particularly as a possible reason for balance issues during tests like the ones just reviewed. I did not meet Mr. Wilson until the trial date one year later. There is no significant difference between the man I saw on video and the one I met in court. In my view no one would look at Mr. Wilson and think ‘Oh, he is a young 67’. It fact, it is the opposite, particularly given his overall posture and movement.

130When cross-examined about the possibility of age and associated balance issues affecting things like standing on one foot etc. during the tests, P.C. Martin responded by referring to the fact Mr. Wilson told her that he did not have problems with his balance. This happened many times during her evidence. It seemed to me that P.C. Martin used this short, innocuous, very general answer from Mr. Wilson, given prior to the testing as a shield during cross-examination.

131On the point of P.C. Martin’s grounds for believing a drug was impairing Mr. Wilson, the sole piece of evidence, at the scene, that was potentially drug related was constricted eyes.

132In order for P.C. Martin to do the two demands that were made at the scene it was necessary for her to form beliefs about the role of a drug(s). For first demand she had reasonable grounds to suspect Mr. Wilson had a drug in his body. For the Evaluation demand and the arrest she had reasonable grounds to believe Mr. Wilson’s ability to operate a conveyance was impaired to any degree by a drug.

133No one has suggested that P.C. Martin did anything wrong in this regard, but the fact remains that by the time she left the scene she had formed two sequential beliefs about Mr. Wilson having drugs in his body and she had very little evidence to support this point.

Step 3: Preliminary examination and first pulse

The 12-Step DIE

134The following provides an overview of Step 3:

The preliminary examination consists of a series of questions dealing with possible injuries or medical problems, observations of the subject’s face, speech, and breath, and an initial examination of the subject’s eyes.²⁴

The Evidence

135P.C. Martin began to ask questions from her Drug Impairment Evaluation form. (Note: It is apparent that this form is the form I have referred to in the Manuals. There it is called Drug Influence Evaluation.)

136Before going further, I note that the Court received a copy of the Chart/Matrix used by P.C. Martin, where she highlighted her findings. (Note: The title at the top of the document is Indicators Consistent with Drug Categories.)

137A series of questions were asked and answered over the course of approximately 5 minutes. My impression was that the focus was on getting an answer and moving on. Examples include:

Mr. Wilson was asked if he had any physical disabilities and he replied….”three to four of broken vertebrae’s in, in my lower back, and stuff like that, and um I have cancer”. The officer checks that she heard the word cancer and then moves to the next question on the form “Are you under the care of a doctor or a dentist?”
Mr. Wilson was asked if he took any medications or drugs. He replied “just the pain medication and Trazanol for sleeping. The officer asked “What is your pain medication?” Mr. Wilson replied “hydro morphine” and the officer moved on to getting help with spelling of the other medication he mentioned.

138I appreciate that Step 3 is not the time for a full interview but I am mindful of the information in paragraph 64 above and in order to understand one’s observations in the evaluation some details could be highly relevant. For example:

The pain medication deserved clarification on two fronts: when was it last taken and was it still controlling pain at the moment?
How does having broken vertebrae in his lower back affect him?
A little detail did come out about the cancer where Mr. Wilson pointed out it was in the side of his neck and he connected it to a bad cough that goes on for minutes.

139Other evidence from the same 5 minutes includes: (Note: I have assigned a number to each topic.)

1 - “The accused indicated that last night he slept for four hours, this is a general indicator of a CNS Stimulant as it is insomnia. The average person does not sleep for four hours a night. So that indicates to me that it could be an indicator on insomnia.”[^25] (Emphasis added)

2 - “He indicated he was thirsty multiple times and asked for water. This is a general indicator under the central nervous stimulant as well as a narcotic analgesic category as it could be an indicator of dry mouth. I also took into consideration that, due to the cancer in his neck and the constant coughing, he might need water to clear his throat, so that is something I took into consideration.”[^26] (Emphasis added)

3 - “…He was experiencing restlessness. You can observe him moving backwards and forwards in his chair and his legs are constantly bouncing up and down. Those are indicators of restlessness. That is a general indicator of a central nervous stimulant.”[^27]

4 - “..Next his speech was low, slurred and slow. Slow and low speech is an indicator of a general indicator of, a general indicator of a narcotic analgesic.”[^28]

5 - Regarding the general eye examination in this Step the officer testified that “I observed his eyes to be watery. He advised that he had some blindness in his left eye and that it gets hazy sometimes. His eyelids appeared to be normal. I did not observe resting nystagmus and his pupil size were equal.”[^29]

6 - Regarding pulse: “The pulse was 104 beats per minute which is above the DRE average range. The DRE average range is 60 to 90 beats per minute and the pulse rate being up is a major indicator of a central nervous stimulant.”[^30]

Comments

140I have multiple concerns. I will cover each concern separately using the corresponding numbers from above:

1 - At 8:15 p.m. Mr. Wilson said he slept 4 hours the night before. There was no other information or context. P.C. Martin contextualized this for herself and came up with Insomnia and put it on the Chart/Matrix as a General Indicator under CNS Stimulant.

2 - I agree Mr. Wilson was thirsty and asked for water multiple times. Dealing with the last point first, this is not like he asked, he drank, and he continued to ask. The police were inept at providing water. Another officer eventually did some handy work on a juice box and put some water in it and gave it to Mr. Wilson later in the evaluation. Moving on, being thirsty is not listed as a General Indicator anywhere on the Chart/Matrix. The officer says that she took into consideration the cancer in his neck and the constant coughing but as far as I can tell she must have in fact discounted these things to instead land on ‘dry mouth’. While certainly someone experiencing the symptoms of ‘dry mouth’ (saliva glands not making enough saliva to keep the mouth wet) may be thirsty but the inverse is not always, or even generally, true because there are many reasons to be thirsty.

4 - The Chart/Matrix gives many combinations of speech depending on each drug category. (Depressants: thick, slurred speech. Inhalants: slow, thick, slurred speech. Dissociative anesthetics: slow slurred speech. Cannabis: speech not mentioned. Stimulants: speech not mentioned. Narcotic Analgesics: Slow, low, raspy speech). P.C. Martin’s evidence is that at the scene Mr. Wilson had slurred speech. Then she says that while she was doing this part of the evaluation that his speech was ‘low, slurred and slow’. When she chose a General Indicator for speech she chose ‘slow, low, raspy speech’ which is listed under Narcotic Analgesics. It appears she disregarded ‘slurred speech’ and did not give it any attention in her evaluation.

5 - P.C. Martin did not chart watery eyes on the Chart/Matrix. It appears under Inhalants. She reported that his eye lids were normal but later in the evaluation she reports eye lids tremors and puts this on the Chart/Matrix.

Step 4: Eye examinations

Horizontal Gaze Nystagmus (HGN)

The 12-Step DIE

141HGN is the involuntary jerking of the eyes occurring as the eyes gaze to the side. According to the 12-Step DIE, with HGN there are only two possible results from the test. HGN is either present or none (meaning it is not present).³¹

The Evidence

142P.C. Martin testified that the result was none.

143She also noted that this was consistent with central nervous system stimulant and narcotic analgesic categories.³²

Comment

144See VGN comments below.

Vertical Gaze Nystagmus (VGN)

The 12-Step DIE

145VGN is an involuntary jerking of eyes (up and down) which occurs as the eyes are held at maximum elevation. The jerking should be distinct and sustained.³³

146With VGN there are only two possible effects according to the 12-Step DIE. VGN is either present, or none (meaning it is not present).³⁴

The Evidence

147P.C. Martin testified that the result was none.

148She also noted that this was consistent with central nervous system stimulant and narcotic analgesic categories.³⁵

Comment

149I think P.C. Martin’s interpretation of these Indicators (HGN and VGN) involves faulty reasoning. These Indicators do not provide confirmation/proof/evidence of there being a CNS Stimulant and a Narcotic Analgesic being present.

150Leaving the specifics of this case aside for a moment, the appropriate reasoning looks like this:

When looking at a named Indicator (eg. Pulse) and when the expected result in a specific drug category for the named Indicator is NONE (i.e. Normal pulse)
And the testing result is NONE (Normal pulse)
Then this shows that the result of NONE (Normal pulse) is not inconsistent with the expected result (Normal pulse) for the drug category
But the NONE result, even though it is consistent with the expected result, does not become an Indicator of, or provide any type of evidence of, the specific drug category.

151An easier way to think of this may be to point out that the NONE result is consistent with many things and does not provide evidence to prove any one of them. For example:

Expected HGN result is NONE.
Then one obtains a result of NONE.
This result is consistent with 6 possibilities: a normal person with no drugs on board; a person under the influence of a CNS Stimulant, or a Hallucinogen, or a Narcotic Analgesic, or Cannabis, or a person with certain combinations of drugs.
The result of NONE does not provide any type of evidence indicating any one of the 6 possibilities.

152Returning to this case the results of HGN none, VGN none, do not (either individually or in combination) confirm, indicate, prove, or provide evidence of a CNS Stimulant and/or a Narcotic Analgesic.

Lack of Convergence (LOC)

The 12-Step DIE

153LOC is the inability of a person’s eyes to converge, or “cross” as the person attempts to focus on a stimulus as it is pushed slowly toward the bridge of his or her nose.³⁶

154With LOC there are only two possible effects according to the 12-Step DIE: LOC is either present (i.e. eyes do not cross), or none (meaning it is not present) (i.e. eyes do cross).³⁷

The Evidence

155P.C. Martin testified:

“I did the lack of convergence test. Lack of convergence was present. This result is not consistent with the major indicators of a central nervous stimulant or a narcotic analgesic. However, I considered the fact that the accused he had blindness in his left eye which could possibly prevent him from crossing his eyes, or he may not be able to cross his eyes in the first place.”³⁸ (Emphasis added)

156Also, there is the following:

Q. Okay, and you had that [blindness in left eye] noted in the impairment evaluation that, any medical conditions such as…

A. Yes, I have it on the impairment evaluation under blindness

Q. Okay.

A. Left is X’d off and he said his left eye gets hazy.³⁹

Comments

157This sounds as if this inconsistent result became questionable in the officer’s mind and so the result would not be used, which really leaves no result.

158However, her copy of the Chart/Matrix has:

Under CNS Stimulant – None is highlighted in the row for LOC
Under Narcotic Analgesics – None is highlighted in the row for LOC

159I decided to treat this test as ‘not completed’ rather than trying to figure this out further.

Step 5: Divided attention tests

The 12-Step DIE

160There are four Divided Attention tests and they are used in the “drug influence evaluation process”.⁴⁰

161The results are not part of the Major or General Indicators on the Chart/Matrix of Drug Categories. (See Appendix A.)

162With these tests the 12-Step DIE indicates that the DRE should record “clues”. For example, with the Walk and Turn Test it has lists of things to look for under “Instruction stage clues” and “Walking stage clues”.⁴¹

Modified Romberg Balance (MRB)

The 12-Step DIE

163The test requires the subject to stand with feet together and the head tilted back slightly and with the eyes closed. It also requires the subject to estimate 30 seconds and the subject is instructed to open his eyes and tilt his head forward and say ‘stop’ when they think thirty seconds has elapsed.⁴²

164Regarding the 30 second aspect: “Performance outside of the range of plus or minus 5 seconds should be used cautiously and considered with the totality of the decision process.”⁴³

165Any swaying during the test is also recorded. To record swaying the DRE must estimate how many inches the subject sways either front-to-back, left-to-right, or circular.⁴⁴

166There is no set standard or other assistance in the 12-Step DIE as to how to assess any swaying. Oddly, even though in the standardized script the subject is told to stay in the assigned position for the 30 seconds, the subject is not told to try to be exact about not moving at all.

167The DRE is expected to also record other observable activity.

The Evidence

168Mr. Wilson asked that the clock be stopped after 11 seconds. The officer saw him sway side to side by approximately two inches and zero inches front to back. There were no further observations as there was no time. P.C. Martin concluded it was possible Mr. Wilson had an impaired perception of time.

Comments

Walk and Turn (WAT)

The 12-Step DIE

169This test has two phases.⁴⁵

170The first is the instruction phase where the subject stands heel to toe (right foot in front) and arms at sides.

171The second phase involves taking nine heel-to-toe steps on the line (while watching feet), turning around keeping the front or lead foot on the line and to turn by taking a series of small steps with the other foot, and to return nine heel-to-toe steps down the line.

172The 12-Step DIE provides very specific instructions regarding how the DRE is expected to record and diagram “clues”.⁴⁶ (Emphasis added)

173The instruction stage “clues” include:

Not maintaining balance during instructions (i.e. while standing heel-to-toe)
Starts too soon

174Walking stage clues include:

Stops while walking
Does not touch heel-to-toe (one-half inch or more) (including number of times)
Steps off the line including number of times
Improper turn
Wrong number of steps

The Evidence

175P.C. Martin reported that Mr. Wilson: did not keep his balance 2x during instructions; in the first set of heel-to-toe he took 6 steps; did not miss heel-to-toe; stopped walk between steps 2x; stepped off of the line 3x; raised his arms continuously; did not count the steps; and he became frustrated and stopped walking. He wanted to try the second set of tests but P.C. Martin stopped the test for safety reasons. She was afraid he might fall over and possibly hurt himself.

176When he was finished she asked if he would like to wear his shoes and he declined.

177P.C. Martin stated the obvious “he did not perform well”. She went on to say that she did take into account his disclosure about a back injury.

One Leg Stand

The 12-Step DIE

178This test is done on each leg and has two phases: instruction; and balancing and counting stage.⁴⁷

179The second stage involves balancing on one foot with the other foot raised approximately 6 inches off the ground, with the raised foot parallel to the ground. The subject must look at the raised foot and count one thousand and one, one thousand and two etc. until told to stop. This goes on for 30 seconds.

180The details of the counting is to be recorded. In the 12-Step DIE the following “clues” have a specific way of being recorded.

Sways while balancing
Uses arm(s) to balance
Hopping
Puts foot down

181The 12-Step DIE indicates that the DRE should be observant for the presence of other Indicators, such as body tremors and improper counting during the test.

The Evidence

182P.C. Martin testified that the test was stopped on both sides for the safety of the subject as he was unable to maintain his balance, and she though he was going to fall over and hurt himself, so this test could not be fully completed. She concluded he was very uncoordinated and unsteady on his feet.

183She also said she considered Mr. Wilson’s previous physical disability when factoring this test into the totality of the evaluation.

184At some point during this test and/or the one above Mr. Wilson stated that he was anxious. As a result, P.C. Martin checked off Anxiety which is a General Indicator of a CNS Stimulant.

185Mr. Wilson also became frustrated and was swearing at himself. As a result, P.C. Martin checked off Irritability as a General Indicator of a CNS Stimulant.

Finger to Nose (FTN)

The 12-Step DIE

186Here the subject is required to assume a specific posture and close his eyes and then move the tip of an index finger to the tip of his nose when instructed to do so. This is done six times, (three times on each side) and the examiner records the part of the finger that makes contact and where.⁴⁸

The Evidence

187During this test P.C. Martin observed eyelid tremors and she put that on the chart as a General Indicator of a Central Nervous Stimulant. Also during the test, he held his finger to his nose for extended periods of time, and he was reminded to tilt his head back and close his eyes every single time.

Comments

188The focus of these comments is on two tests: Walk and Turn; and One Leg Stand.

189P.C. Martin’s testimony, that she took Mr. Wilson’s previous physical disability/back problems into consideration, strikes me as being tokenism. The words suggest that this was a meaningful act of consideration, but this is not true.

190The dual attention tests are about impairment of abilities as opposed to testing for Indicators of Drug Categories. So, the statement can only mean that the officer would view the Defendant as being less impaired in the circumstances. This however is not a meaningful consideration when all that is required is ‘abilities being impaired to any degree’. Any adjustments above the floor of ‘any degree’ do not matter.

191There is an additional problem. At the same time, things in fact became worse for Mr. Wilson in the overall scheme of the evaluation because when he said, in the throes of doing poorly on these tests that he was anxious P.C. Martin called this Anxiety and marked it off as a General Indicator of a CNS Stimulant. In the same context of being frustrated with his own performance he swore to himself, about himself, and P.C. Martin called this Irritability, another General Indicator of a CNS Stimulant.

192I am well aware that an Evaluating Officer should be on the lookout for General Indicators throughout the Evaluation. But this cannot mean converting feeling anxious in response to a specific stressful situation into a broad finding of Anxiety, especially given Anxiety was not apparent the rest of the time. The General Indicator of Irritability has the same problem of taking a specific response to a specific stress and giving it a general label. There is no evidence that Mr. Wilson was showing signs of Irritability with others.

193Mr. Wilson could not do two tests safely. P.C. Martin already believed a drug was involved. To go any further, she needed to have an opinion about the type of drug. She needed Indicators to support her belief and to take it to the next step. This resulted in two more questionable Indicators, Anxiety and Irritability. (To go along with earlier questionable Indicators, insomnia, dry mouth and slow, low, raspy speech.)

194There is one additional, separate item to consider with the divided attention test and that is whether they were conducted in accordance with the 12-Step DIE, and specifically in the area of footwear.

195I note the following:

In the illustrations for these tests in the Manuals the subjects are wearing footwear of one kind or another;
The Drug Influence Evaluation form has a box entitled Type of Footwear;
The very precise scripts used with each test do not include an instruction to ‘take off footwear’;
Evaluating Officers give equally precise demonstrations and they do not remove their footwear;
If the starting point of these tests in the 12-Step DIE was meant to be without footwear then this would make the test different from the same test done in the field. There is nothing to suggest this should be the case.

196Putting everything together, the starting point for these tests is that they are done while wearing footwear. Obviously, there are many different kinds of footwear but it is kept track of on the form. It is a standardized test and all subjects should be treated the same.

197Mr. Wilson was not wearing the running shoes that he was wearing at the scene. During these tests he was in socks.

198After doing really badly, to the point of it being unsafe to continue he was offered his shoes and he said ‘no’. This point is a red herring. It was not his responsibility to sort this out. It was the Evaluating Officer’s responsibility to conduct the tests in the standard way.

199Mr. Wilson did poorly on these tests at the scene. He was in public in an outdoor environment. Then the next time he did the tests, at the station, he did more poorly than at the scene, to the point of it being unsafe to continue. Based on the available evidence the only difference I could find for this outcome was the lack of his footwear. Certainly running shoes vary but they all have a base surface that has a greater surface area than one’s foot and it has treads. The upper portion, when laced up, stabilizes the foot in the shoe. Interestingly enough, they are widely recommended for seniors to support balance.

Step 6: Vital signs and second pulse

The Evidence

200Mr. Wilson’s blood pressure was within the normal/DRE average range. His temperature was in the DRE average range and his pulse was Up. (i.e. above the DRE average range.) P.C. Martin testified:⁴⁹

So his blood pressure was 140 millimetres of mercury over 72 millimetres of mercury. This is an expected range. It’s within the DRE average range, but when you consider a polydrug use in relation to the indicators consistent with drug categories chart, the central nervous system stimulant category and the narcotic analgesic category are antagonistic to each other, so they’re opposites. So when you have two drugs that, in the system that are not in the same drug category it’s called the antagonistic effect that can occur. So the results can either be up, normal or down depending on which drugs in the system are taking over that major indicator at that time. So a normal blood pressure can be expected to be seen when you’re consuming both a central nervous system stimulate and a narcotic analgesic.

And then for temperature it was 36.6 degrees Celsius which is also within the DRE average range and that can be expected to be seen for the same reason I stated previously…So temperature that’s within the DRE average range can be expected to be seen due to the antagonistic effect, when consuming a central nervous stimulate and a narcotic analgesic. And for the pulse, the pulse was outside, above the DRE average range. The pulse was 104 beats per minute. This is consistent with the major indicator of pulse. It is showing as up which is consistent with the central nervous system stimulant.

201On the third pulse at 9:35 p.m. P.C. Martin indicated that Mr. Wilson’s eyelids were drooping and his eyes were rolling to the back of his head. She marked this as ‘droopy eyelids’, a General Indicator under Narcotic Analgesic.

Comment

202It is clear here, and at other points in her evidence, that P.C. Martin views these three Major Indicators (blood pressure, temperature and pulse) as supporting her opinion that Mr. Wilson had a combination of a CNS Stimulant and a Narcotic Analgesic in his body.

203Unfortunately, her reasoning is flawed and her measurements/results about these three things can never provide support for a finding of CNS Stimulant and Narcotic Analgesic, regardless of what the results are.

204The reason for this was reviewed in paragraphs 95 – 100 above. This includes the chart combining the two Drug Categories from this case.

205The core problem with P.C. Martin’s view is that with each of these three Major Indicators (blood pressure, temperature, pulse) these two Drug Categories are antagonistic and as a result the combination yields an unpredictable result, which in turn means that all outcomes/results are possible. There is no result in these circumstances that can: confirm anything; prove anything; or disprove anything.

206Using blood pressure as an example: CNS Stimulant effect of up + Narcotic Analgesic effect of down = unpredictable = up, or down, or normal. Given this, a normal blood pressure reading does not confirm or prove anything. (Maybe that one is alive, but nothing else.)

207P.C. Martin came close to understanding this with the two items that were in the normal/DRE average range - blood pressure and temperature. “So the results can either be up, normal or down depending on which drugs in the system are taking over that major indicator at that time.” But then she characterized the ‘normal’ result as being the expected result, which it is not. It is one of three unpredictable results.

208Then with the one result that was not normal/DRE average range i.e. pulse, she seems to have abandoned her earlier remarks about antagonistic drug effects and was content with the fact that the result fit one of the two Drug Categories, CNS Stimulant.

Step 7: Dark room evaluations

Pupil Size

The 12-Step DIE

209The first dark room evaluation is the estimation of pupil size under three lighting conditions, or levels: room light; near total darkness; and direct light.⁵⁰ (Emphasis added)

210There is a DRE average range provided for each lighting conditions (Room - 2.5 - 5.0 mm; Near total darkness; 5.0 - 8.5 mm; Direct light 2.0-4.5 mm).⁵¹

211The examination involves both eyes, in three lighting conditions, and the 12-Step DIE calls for only one opinion.

For Pupil Size, there are three possible effects that might be seen. The pupils might be normal (within the DRE average ranges). Or, the pupils might be dilated. Or, they might be constricted.⁵²

The Evidence

212Mr. Wilson’s pupil size was constricted.

Reaction to Light

The 12-Step DIE

213This is a dark room assessment that takes place between estimating pupil size in near total darkness and pupil size in direct light. It is an assessment of how the pupil constricts when the direct light shines into the subject’s eye.

214The 12-Step DIE provides parameters for three possible results as follows:

There are a number of effects that might be observed in the pupils’ Reaction to light. The pupils might react in a normal manner, i.e., by constricting somewhat in one second or less. Or, the pupils might react slow, i.e. by constricting somewhat, but requiring more than one second to do so. Or, little to no reaction.⁵³ (Emphasis in original)

215Note: On the Chart/Matrix “little or no reaction” is called “Little or None Visible”.

The Evidence

216P.C. Martin observed: ‘little to none” reaction to light.

217P.C. Martin noted with regard to both test results that they were consistent with the Narcotic Analgesic category.

Step 8: Check muscle tone

The 12-Step DIE

218The 12-Step DIE indicates: “Evidence of muscle tone may be apparent when the subject attempts to perform divided attention test. It may also be observed when taking the subject’s pulse, blood pressure, or while examining for injection sites.”⁵⁴

219The 12-Step DIE lists three possible effects: normal, flaccid and rigid.⁵⁵

The Evidence

220P. C. Martin testified that Mr. Wilson’s muscle tone was Flaccid.

Step 9: Check for injection sites and third pulse

The 12-Step DIE

221This is a check of the subject’s forearms.

The Evidence

222P. C. Martin did this check and found nothing. The pulse here was reviewed earlier in this judgment.

Step 10: Interrogation, statements, and other observations

223There was no formal statement taking in this case. ‘Other observations’ have been reviewed throughout the judgment and I will not repeat them here.

Step 11: Opinion of the Evaluator

The 12-Step DIE

224The DRE is expected to prepare two reports. The ability to prepare and read these reports is tested in examinations and field work as part of becoming certified. The reports are:

Drug Influence Evaluation
Drug Influence Evaluation Narrative.

225At the bottom of the Drug Influence Evaluation form⁵⁶ there is a box entitled ‘Opinion of Evaluator’ followed by the following tick boxes:

Not Impaired
Medical
Alcohol
CNS Depressant
CNS Stimulant
Hallucinogen
Dissociative Anesthetic
Narcotic Analgesic
Inhalant
Cannabis

226In the Drug Influence Evaluation Narrative⁵⁷, the opinion is always expressed in the following format, without any further explanation:

DRE’s Opinion: It is my opinion as a certified Drug Recognition Expert the (name of subject) is under the influence of a (name of category eg. CNS Stimulant) and is unable to operate a vehicle safely.

227There is no specific direction given in the 12-Step DIE as to how a DRE ultimately comes to an opinion after completing all of the previous Steps in the Evaluation. There is, however, the following guidance:

i) Based on all of the evidence and observations collected from the preceding steps, the D.R.E should be able to reach an informed opinion as to whether the subject is under the influence of a drug or drugs, and if so the probable category or categories of drugs causing the impairment. The DRE must record a narrative summary of the facts framing the basis for their opinion. (Emphasis added)⁵⁸

ii) Based on the totality of the evaluation, the DRE should form an opinion of the subject’s impairment and, if impaired, the drug category or categories responsible.⁵⁹ (Emphasis added)

228There is also the following guidance:

….they [persons impaired by a drug category or categories] usually will exhibit indicators of impairment. Individuals that are impaired exhibit numerous indicators of impairment. In other words, they generally do not exhibit the DRE average range or expected values for the related indicators.⁶⁰

229There is one specific direction given regarding an opinion. It is with regard to alcohol:⁶¹

Anytime there is a positive BAC reading during the evaluation, the DRE must list alcohol (ETOH) as part of their opinion. (Emphasis added)

The Evidence

230P.C. Martin formed the opinion that Mr. Wilson’s ability to operate a conveyance was impaired by two categories of drugs:

A CNS Stimulant (Central Nervous System Stimulant)
A Narcotic Analgesic

ANALYSES

231The question to be answered is: Did P.C. Martin have reasonable grounds to believe that a combination of a CNS Stimulant and a Narcotic Analgesic was impairing Mr. Wilson’s ability to operate a conveyance?

232‘Reasonable grounds to believe’ requires that P.C. Martin subjectively believed that a combination of a CNS Stimulant and a Narcotic Analgesic were impairing Mr. Wilson’s ability to operate a conveyance and that the belief was objectively justifiable.

233Regarding ‘objectively justifiable’ the question is: Would a reasonable person standing in the shoes of the officer have also believed that these grounds existed?

234I believe that P.C. Martin was an honest witness, including she was honest about having this belief.

235I will now turn to whether her belief was objectively justifiable.

236I will begin with the following chart showing the combination of CNS Stimulant and Narcotic Analgesic produced earlier this judgment (See paragraphs 95 - 100) and I have added Mr. Wilson’s results.

Impairment Indicator	Effect Due to CNS Stimulant	Effect Due to Narcotic Analgesic	Type of Combined Effect*	Expected Results	Mr. Wilson
Horizontal Gaze Nystagmus	None	None	Null	None	None
Vertical Gaze Nystagmus	None	None	Null	None	None
Lack of Convergence	None	None	Null	None	Not Completed
Pupil Size	Dilated	Constricted	Antagonistic	Normal Dilated Constricted	Constricted
Reaction to Light	Slow	Little or None Visible	Additive	Little or None Visible	Little or None Visible
Pulse Rate	Up	Down	Antagonistic	Up Down Normal	Up
Blood Pressure	Up	Down	Antagonistic	Up Down Normal	Normal
Body Temperature	Up	Down	Antagonistic	Up Down Normal	Normal
Muscle Tone	Rigid	Flaccid	Antagonistic	Normal Rigid Flaccid	Flaccid

*Type of Combined Effects:

Null (No Action + No Action = No Action)
Overlapping (Action + No Action = Action)
Additive (Action + Action = Greater Action)
Antagonistic (Action + Opposite Action = Unpredictable)

237Leaving aside Mr. Wilson’s results for the moment, I note the following about the chart:

(i) For this drug category combination, the first 3 Indicators (HGN, VGN, LOC) will not provide evidence of the named categories in any case. The reasons for this are set out in paragraphs 149 - 151 above.

(ii) For this drug category combination, 5 Indicators (Pupil Size, Pulse Rate, Blood Pressure, Body Temperature, Muscle Tone) will not provide evidence of the named categories in any case. (The reasons for this are in paragraphs 204 - 208 above.)

(iii) Given (i) and (ii) above, for this drug category combination, there is only 1 Major Indicator left – Reaction to Light.

238Looking at Mr. Wilson’s case:

a) For point (i) above, Mr. Wilson’s results (re. HGN, VGN, LOC) are irrelevant, just as they would be in any case.

b) For point (ii) above, Mr. Wilson’s results (Pupil Size, Pulse Rate, Blood Pressure, Body Temperature, Muscle Tone) are irrelevant, just as they would be in any case.

c) For point (iii) above, Reaction to Light, Mr. Wilson’s result of ‘Little or None Visible’ is the same as the ‘Expected Result’ for this drug category combination.

239For General Indicators there is no way of constructing a chart for a combination of Drug Categories, so I will speak in terms of single categories.

240Before I do that, a number of the proposed General Indicators are not observations, but rather opinions. I think it is necessary to examine whether these opinions are grounded in objective fact(s) from which an inference may be drawn or whether they are speculation and/or conjecture. I do not think that Indicators based on speculation or conjecture can have any home in objectively justifiable grounds.

241The specific General Indicators of concern are:

(i) Insomnia - The piece of evidence is that Mr. Wilson slept 4 hours the night before. Insomnia cannot be inferred from this single fact. I find that this General Indicator was a result of conjecture.

(ii) Dry mouth - The only piece of evidence is that Mr. Wilson was thirsty. Dry mouth cannot be inferred from this single fact. I find that this General Indicator was a result of conjecture.

(iii) Anxiety - The only evidence is that Mr. Wilson stated, during a stressful few minutes of struggling with his balance, that he was anxious. I find that broadening ‘feeling anxious’ in these circumstances into a General Indicator called Anxiety, is speculative especially given there is no other evidence to support this label.

(iv) Irritability - The only evidence of this is that he swore at himself during the same stressful few minutes. This is similar to (iii) where a response to specific circumstances is elevated by P.C. Martin into a General Indicator called Irritability. This is speculative.

242There is one Indicator where there is a mismatch between the Indicator and the evidence:

(i) Slow, low, raspy speech - There is no evidence of raspy speech. The evidence was slow, low, slurred speech and slurred speech was highly featured in the evidence. (Also, slurred speech is not part of any Indicator under CNS Stimulant or Narcotic Analgesic.) If one removes raspy from the Indicator and leaves ‘slow and low’ then one is left with a combination that does not exist on the Chart/Matrix.

243There are two Indicators in the evidence that appear in other drug categories but they do not appear in either of CNS Stimulant or Narcotic Analgesics.

(i) Slurred speech

(ii) Watery eyes

244I believe this leaves the following Indicators that are both in the evidence and are listed as Indicators under CNS Stimulant or Narcotic Analgesic in the Chart/Matrix.

(i) Eyelid tremors

(ii) Restlessness

(iii) Droopy eyelids

245Given paragraphs 238 - 245 above, I cannot find that P.C. Martin’s belief is objectively justifiable. There is insufficient evidence. In the end there is only one Major Indicator and three General Indicators that objectively can be considered. I don’t think that a reasonable person, in this case a reasonable qualified Evaluation Officer could say that these 4 Indicators make it more likely than not that Mr. Wilson’s ability to operate a conveyance was impaired by two categories of drugs:

A CNS Stimulant (Central Nervous System Stimulant)
A Narcotic Analgesic

246Given this, the Crown is unable to prove the Evaluating Officer had reasonable grounds to believe that a combination of a CNS Stimulant and a Narcotic Analgesic were impairing the Defendant’s ability to operate a conveyance.

247Given this, the Crown is not able to prove a necessary precondition for a ‘valid demand’ and therefore cannot prove a ‘valid demand’.

248A ‘valid demand’ is an element of the Refuse offence, so given the lack of proof on an element of the offence, the Crown has not met its onus on the charge of Refusal.

CONCLUSION

249The Evaluating Officer did not have reasonable grounds to believe that a combination of a CNS Stimulant and a Narcotic Analgesic were impairing the Defendant’s ability to operate a conveyance. Therefore, the Crown cannot prove ‘a valid demand’. It follows that the Crown has failed to prove an element of the Refusal offence.

250This results in Mr. Wilson being NOT GUILTY.

251This the second time I found Mr. Wilson NOT GUILTY based on the Crown not proving a ‘valid demand’. These decisions are independent from one another and either one is sufficient to support the finding of NOT GUILTY.

252Also, if I was wrong in excluding Mr. Wilson’s utterances on the Section 7 Charter issue, then given this ruling about the Crown not proving the Refusal count, it would also cause the finding on the Impaired count to be NOT GUILTY, for the same reasons as set out in paragraph 89 above.

V. ADDITIONAL COMMENTS RE: CONFIRMATION BIAS AND THE EVALUATION

253When I reviewed the evidence I voiced concerns about P.C. Martin’s evidence that involved: the filtering in or out of evidence; the interpretation of evidence in ways that supported a prior belief about drugs being in Mr. Wilson’s body; and interpreting Indicators as contributing to the reasonable grounds when logically they did not.

254My view is that P.C. Martin fell prey to ‘confirmation bias’.

255Tunnel vision and confirmation bias are the polar opposite to objectivity.

256As noted above in paragraph 91, “Confirmation bias is a powerful psychological process that causes an individual to unconsciously prefer information that supports a conclusion that they already settled on…….etc.”.

257This can happen to anyone, and I think there were circumstances that put P.C. Martin at risk.

258Firstly, she was working alone from the very front end of the investigation and in order to move that investigation forward she had to form 3 sequential beliefs about Mr. Wilson having drugs in his body. Two of these beliefs were formulated prior to the evaluation beginning (i.e. for roadside testing and evaluation demand). So, she began the evaluation with her prior conclusions in tow and then she had the task, set by the Criminal Code, of being more specific about an opinion she already had. These circumstances could be contrasted to a Breath Tech who does the same thing but there are machines that intervene in the process and the machines are inherently objective (i.e. Screening devices and an Intoxilyzer).

259Of greater concern, given it could affect more cases than this one, it is my view that there is a feature in the 12-Step DIE that creates a risk of confirmation bias. It is likely a benign feature in most cases, but not in a case like Mr. Wilson’s.

260The feature is in Step 11: Opinion of the Evaluator. As explained in paragraphs 225- 227 above, the DRE/Evaluating Officer is expected to prepare two reports. One of those reports is the Drug Influence Evaluation. It is a single page and essentially is a pre-printed, fill in the various parts type of form, that records the entire evaluation.

261The feature of concern is at the very bottom. It reads “Opinion of Evaluator” and then there are 10 possible boxes to tick off, singly or in combination. They are: Not Impaired; Medical; Alcohol; CNS Depressant; CNS Stimulant; Hallucinogen; Dissociative Anesthetic; Narcotic Analgesic; Inhalant; and Cannabis.

262The risk of confirmation bias stems from two things in combination:

The list provides a closed list of possible conclusions that have already been settled on.
In the list there is no option of ‘Inconclusive’ (i.e. an evaluation did not result in any opinion or reasonable grounds).

263The premise of the 12-Step DIE is that it is a standardized process that is reliable and that it yields reliable results.

264I do not disagree with this premise.

265This does not mean however, that there should always be a result.

266It is worth taking a step back and thinking about: What does any reliable test do?

267It depends on what you are testing for, but a reliable test is one that identifies what you are testing for and part of what makes any test reliable is that it does not include false negative or false positive results. This feature enhances the reliability of any test.

268I think that Mr. Wilson’s case is an example of the 12-Step DIE being reliable, up until the issue about the list comes up.

269Any analyses of the Major Indicators in this case would be along the following lines:

Mr. Wilson eyes were Constricted
There is only one Drug Category that includes Constricted eyes and it is Narcotic Analgesics
It was not necessary for Mr. Wilson’s other Major Indicators to all be in line with every other Major Indicator in this category. But in this case, there was a misalignment that would prevent settling on this category alone.
In the Narcotic Analgesics Category for all vital signs, pulse rate, blood pressure, and body temperature, the Chart/Matrix indicates ‘Down’. With Mr. Wilson, not a single one of these was ‘Down’.
So, his eyes were pointing towards one category and his vital signs towards another.
There was no point in looking for another category that covers constricted eyes, because as previously mentioned none exists.
So then, it seems to make sense to look for a Drug Category that could move all three of Mr. Wilson’s vital signs in the other direction. (i.e. away from ‘Down’)
Looking at the Chart/Matrix there are three possibilities: Dissociative Anesthetics, Hallucinogens, and CNS Stimulants.
It was reasonable to not consider the first two because they have General Indicators that are unusual and clearly did not apply to Mr. Wilson (eg. He was not having hallucinations and he was not disoriented). Also, these categories include a normal reaction to light whereas Mr. Wilson had Little or No reaction to light.
This leads to a consideration of the remaining category CNS Stimulants.
Then if one sets up the Chart for combining Drug Categories, following the 12-Step DIE instructions, one discovers that the majority of the Expected Results are ‘Unpredictable’. Linking any of Mr. Wilson’s results to an unpredictable Expected Result would be complete speculation, rather than being evidence based. Other Indicators did not provide assistance one way or another. This leaves a single expected Major Indicator to work with.
This is not enough to support adding CNS Stimulants as part of any opinion and a few General Indicators thrown in could not change this.

270So, the results above, when using all the tools in the 12-Step DIE (i.e. nothing more, nothing less) is in fact ‘Inconclusive’.

271This result, of ‘Inconclusive’, is also supportive of finding that the 12-Step DIE standard procedures did not produce a false positive in this analysis.

272But, then there is the list. It does not include ‘Inconclusive’. ‘Inconclusive’ is not part of the closed list of possible conclusions that have already been settled on, for this standardized test/evaluation.

273DREs, in order to become certified are expected to be able to prepare two reports: the Drug Influence Evaluation (i.e. the form I described above that includes the list) and the Drug Influence Evaluation Narrative. In the training Manual that I have been referring to there are 21 examples of each of these reports. They all result in a box being marked off on the Drug Influence Evaluation. To become certified DREs are tested on their ability to prepare and read these reports. (For reading it is being able to read another officer’s report.) They can’t complete the 12-Step DIE without giving an opinion in Step 11, by utilizing these two documents, which include the closed list described above.

274In conclusion, I am not saying that the closed list causes a risk of confirmation bias in every case. I do assert that it does cause a risk of confirmation bias in a case like this, where ‘Inconclusive’ should be a legitimate opinion option, when, as here, it is the result of using the 12-Step DIE.

275The risk of confirmation bias is directly related to ‘inconclusive’ not being on the list. The current list provides settled upon opinion options, to be used in order to complete the evaluation. There is a risk that evidence will be filtered and/or interpreted towards the listed opinions when in fact, in some cases, the result of the evaluation is ‘inconclusive’.

Released: April 10, 2026

Signed: Justice K. L. Hawke

APPENDIX A

Indicators Consistent with Drug Categories

Indicator	CNS DEPRESSANTS	CNS STIMULANTS	HALLUCINOGENS	DISSOCIATIVE ANESTHETICS	NARCOTIC ANALGESICS	INHALANTS	CANNABIS
HGN	Present	None	None	Present	None	Present	None
VGN	Present (High Dose)	None	None	Present	None	Present (High Dose)	None
LOC	Present	None	None	Present	None	Present	Present
Pupil Size	Normal (1)	Dilated	Dilated	Normal	Constricted	Normal (4)	Dilated (6)
Reaction to Light	Slow	Slow	Normal (3)	Normal	Little or None Visible	Slow	Normal
Pulse Rate	Down (2)	Up	Up	Up	Down	Up	Up
Blood Pressure	Down	Up	Up	Up	Down	Up/Down (5)	Up
Body Temperature	Normal	Up	Up	Up	Down	Up/Down/Normal	Normal
Muscle Tone	Flaccid	Rigid	Rigid	Rigid	Flaccid	Normal or Flaccid	Normal
General Indicators	Disoriented Droopy eyelids Drowsiness Drunk-like behavior Impaired judgment Relaxed Inhibitions Slow, sluggish reactions Thick, slurred speech Uncoordinated Unsteady walk Variety of emotional effects	Anxiety Body tremors Dry mouth Euphoria Exaggerated reflexes Excited Eyelid tremors Grinding teeth (Bruxism) Hyperactivity Increased alertness Insomnia Irritability Redness to the nasal area Restlessness Runny nose Talkative	Body tremors Dazed appearance Difficulty with speech Disoriented Hallucinations Impaired perception of time and distance Memory loss Nausea Paranoia Perspiring Piloerection Synesthesia Uncoordinated	Blank stare Chemical odor (PCP) Confused Cyclic behavior Disoriented Hallucinations Incomplete verbal Responses Increased pain threshold Non-communicative Perspiring Possibly violent Sensory distortions Slow, slurred speech Slowed responses	Depressed Reflexes Difficulty concentrating Droopy eyelids Drowsiness Dry mouth Euphoria Itching Nausea "On the nod" Puncture marks Slow, low, raspy speech Slowed breathing Slow deliberate movements	Bloodshot eyes Confused Disoriented Flushed face Intense headaches Muscle weakness Non-communicative Odor of substance Possible nausea Residue of substance Slow, thick, slurred speech Watery eyes	Bloodshot eyes Body tremors Disoriented Drowsiness Euphoria Eyelid tremors Greenish coating the tongue Impaired memory Impaired perception of time and distance Incomplete verbal responses Increased appetite Lack of concentration Mood changes Paranoia Rebound dilation Relaxed inhibitions Sedation
Duration of Effects	Ambien: 4-5 hours Klonopin: 6-12 hours Xanax: 6-8 hours Others: Vary	Cocaine: Up to 2 hours Methamphetamine: Up to 12 hours	LSD: 6-8 hours MDMA: 1-3 hours Psilocybin: Up to 5 hours	PCP: 4-6 hours DXM: 3-6 hours Ketamine: Up to 2 hours	Fentanyl: 2-3 hours Heroin: 3-5 hours Methadone: 6-8 hours Others: Vary	Several hours for most volatile solvents Anesthetic gases and aerosols – very short duration	Smoked: 3-4 hours Edibles: Up to 8 hours
Usual Methods of Administration	Injected Insufflation Oral	Injected Insufflation Oral Smoked	Insufflation Oral Smoked Transdermal	Injected Insufflation Oral Smoked Transdermal	Injected Insufflation Oral Smoked Transdermal	Inhalation	Oral Smoked Transdermal
Overdose Signs	Clammy skin Coma Rapid, weak pulse Shallow breathing	Hallucinations Psychosis Violent behavior	Condition similar to heat stroke Convulsions Intense bad "trip"	Coma Seizures	Cold, clammy skin Coma Convulsions Slow and shallow breathing	Cardiac arrythmia Respiration ceases Nausea/vomiting Risk of death	Acute anxiety attacks Excessive vomiting Possible psychosis

Footnotes

R. v. Alex, 2017, SCC 37, paragraph 49
R. v. Takov, 2025 ONCJ 316, paragraphs 52 and 53
R. v. Bingley, 2017 SCC 12, paragraph 32
R. v. Bingley, 2017 SCC 12, paragraph 29
R. v. Bingley, 2017 SCC 12, paragraph 30
R. v. Bingley, 2017 SCC 12, paragraph 30
R. v. Bingley, 2017 SCC 12, paragraph 32
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Public Prosecution Service of Canada: Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada, Chapter 2 – “Understanding Tunnel Vision” (April 25, 2019), online: PPSC
Public Prosecution Service of Canada: Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada, Chapter 2 – “Understanding Tunnel Vision” (April 25, 2019), online: PPSC
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This Form appears many times - one example is 7 Day Session 10 page 18
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