R. v. Takov, 2025 ONCJ 316

ONTARIO COURT OF JUSTICE

DATE: 2025-06-10
COURT FILE No.: Brampton 998 23 31110984

BETWEEN:

His Majesty the King
— AND —
Mario Takov

Before Justice K. L. Hawke
Heard on December 9, 10 and 11, 2024
Judgment given March 17, 2025
Reasons for Judgment released on June 10, 2025

Mr. J. Ng — counsel for the Crown
The accused Mario Takov — on his own behalf

INTRODUCTION

[1] The Defendant is charged that “on or about the 1st day of October, 2023, ...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 of the Criminal Code of Canada.”

[2] The Defendant pled not guilty on December 9, 2024. A trial followed and the case was adjourned for judgment. On March 17, 2025, I found the Defendant Not Guilty and the reasons for this decision are set out below.

OVERVIEW

[3] On October 1, 2023 at 4:08 a.m. the police were dispatched to McLauglin Road, just south of Derry Road. The officers arrived on the scene at 4:20 a.m. A vehicle was stopped in the left turn lane for Derry Road. The Defendant was in the driver’s seat. He was not conscious. The vehicle was running. The Defendant was awakened and he came out of the vehicle at the direction of the police.

[4] The officers on scene, including the arresting officer, did not smell alcohol.

[5] The arresting officer arrested the Defendant for impaired operation by drug at 4:38 a.m. At 4:41 a.m. the arresting officer made a Section 320.28(2)(a) demand that the Defendant comply with the requirements of an evaluation conducted by an Evaluating Officer.

[6] The Defendant was taken to a police station and after speaking to Duty Counsel was seen by an Evaluating Officer. There was no issue that this officer, Officer Emilie Anderson, was a qualified Evaluating Officer.

[7] The Evaluating Officer conducted an evaluation.

[8] By the end of her evaluation the Evaluating Officer held the opinion that the defendant’s ability to operate a conveyance was impaired by alcohol and a drug.

[9] With regard to the drug aspect of the Evaluating Officers’ opinion it was also her opinion that the category of drug involved was Central Nervous System (CNS) Stimulant. As a result, in order to further investigate this, she gave a urine sample demand under Section 320.28(4)(a), identifying the type of drug as being a CNS Stimulant.

[10] The urine sample was analyzed at the Centre for Forensic Science (CFS). A toxicologist from CFS testified. A number of drugs were detected in the Defendant’s urine. For this case it is significant that the following were “detected”: Cocaine; Benzoylecgonine, an inactive breakdown product of cocaine; and Cocaethylene, an active metabolite of cocaine.

THE ISSUES

[11] Given that Defendant was not conscious at the time he was found in the conveyance, regardless of the cause of him not being conscious, his ability to operate a conveyance was impaired given he was unaware of his circumstances and unable to respond to his circumstances. Essentially in that moment he had no ability to operate a conveyance.

[12] The issue is whether the Crown has proven that, at this same point in time, the Defendant’s ability to operate a conveyance was impaired to any degree by alcohol, or a drug, or both.

POSITIONS OF THE PARTIES

[13] The Crown position is that it called reliable evidence that proves the charge. With regard to the drug aspect, the Crown relies as well on the presumptions in Section 320.31(6) and asserts that the presumptions have not been rebutted.

[14] The Defendant’s position is that he fell asleep. He set out a narrative about how this happened, the last stage of which involved him being in the left turn lane for turning onto Derry Road, and waiting a long time for the left turn signal.

[15] As part of this, the Defendant denies having any cocaine in his system at the relevant time and he submitted that for the Crown to prove this allegation the police should have taken a blood test and that the urine test is incapable of showing this drug was in his system at the time in question.

[16] The Defendant does not deny that he consumed alcohol but he asserts he was not impaired by alcohol and that the Crown does not have the evidence to prove this.

[17] Implicit in these submissions is the suggestion that the evidence is neither reliable enough nor sufficient enough to prove the charge, and that the Defendant’s evidence about October 1, 2023 and his evidence about his pre-existing medical condition raise a reasonable doubt.

OTHER ISSUES

DEFENDANT SELF REPRESENTED

[18] Mr. Takov represented himself on this trial.

[19] As a trial judge I had an obligation to endeavour to ensure that the Defendant had a fair trial.

[20] This obligation is the same regardless of whether a defendant assertively chooses to represent himself or he chooses this route because there was no alternative. Nonetheless, I have raised this point because in a brief review of the case law in the area, I noticed that in some of the cases there is a subtle suggestion that the defendant, by choosing to represent himself, may have some responsibility for a problem(s) or inadequacy that played out during the trial.

[21] I have every reason to believe that, for Mr. Takov, representing himself was not a choice of his choosing, but rather a choice that is a result of his circumstances. He testified that he applied for Legal Aid and was turned down. He has been on the Ontario Disability Support Program for a number of years. I received a document that shows for the month of October, 2024, that his income from the program was $1,286.00 (Basic needs $786 plus Shelter $500). I would hope/expect that this income would likely meet the financial qualifications for Legal Aid. However, as a person with no criminal record and on a case where he likely would not be seen as facing incarceration, I have reason to believe that Legal Aid would not be available in this case. This outcome is common place on charges of this nature. It is also common place in self-represented judicial pre-trials for similarly situated defendants to be advised that applying for Legal Aid is a waste of time. I have no reason to think that Mr. Takov could afford a lawyer privately.

[22] I wish to assert that with Mr. Takov, I had no concerns that he represented himself for any reason other than necessity. I did however have a number of concerns about how to achieve a fair trial for him, which I deal with below, but none of these concerns were caused by Mr. Takov. I have outlined his overall position on the issues above. He was consistent in these positions throughout and he, as far as I could tell, tried his very best to represent himself appropriately.

[23] For my part I endeavoured to conduct a trial that kept the Crown accountable, that allowed the defence to be brought out with full force and effect, and where I completed my own responsibilities, especially in the area of assessing the evidence.

PLAYING VIDEO OF EVALUATION

[24] The Crown called the Evaluating Officer. It was not the intention of the Crown to play the video of the Evaluating Officer’s evaluation.

[25] I made an enquiry, near the beginning of the Evaluating Officer’s evidence, and learned that the Defendant had not seen the video of the evaluation, as part of disclosure. This was not surprising because, at least in this jurisdiction, videos are not given to self-represented defendants. They are expected to make an appointment to come in and view videos. I have no idea if the Defendant was aware of this. I also question the adequacy of this one-time, play-through, opportunity, if one is preparing for trial.

[26] The Crown offered to take a break in the trial and set the Defendant up to view the video. After some discussion everyone agreed that the video would be played as part of the Crown’s case and that it would be stopped intermittently to align with the Evaluating Officer’s evidence. The video became an Exhibit.

[27] I note that no voir dire regarding voluntariness was held so the Defendant’s statements in the video are not part of the trial evidence for their truth. They are part of the trial only for the fact that they were said to the officer while involved in the evaluation itself.

[28] Given that we worked the solution out, on consent, I did not need to make a ruling about the video being part of the Crown’s case. With the benefit of hindsight, I do not know how, in this self-represented trial, I could have undertaken my responsibility to assess the Evaluating Officer’s evidence, without the video. The video had shortcomings: some inherent, such as the impossibility of showing eyeballs; and some preventable, such as conducting the finger-to-nose test with the defendant’s back of his head in the direction of the camera. Nonetheless, being able to see it was essential for my work.

MEDICAL EVIDENCE

[29] When the Defendant testified, one of the things he raised was his brain surgery from a number of years ago. He asked if he had any medical records available. He texted his mother, from the witness stand, and shortly after that some records were received.

[30] I made these records an Exhibit, without any additional formalities. They will be reviewed later in the judgment. For the moment, I simply note that my review of them is from reading them combined with utilizing online medical dictionaries.

DRUG EVALUATION AND CLASSIFICATION PROGRAM MANUALS

[31] I had a duty to assess the Evaluating Officer’s evidence. There is nothing unusual about this. A trial judge assesses credibility and reliability of every witness, including experts, in every case. I struggled however with how to assess the reliability of the Evaluation Officer.

[32] By way of background, Section 320.12(d) of the Code specifies that “an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.”

[33] However, as noted in Impaired Driving and Other Criminal Code Driving Offences at page 380 [1]:

Nothing in section 320.12(d) specifies that a court must accept a DRE’s conclusion about impairment. Although the method may be reliable, this does not mean that a particular DRE in a particular case has reached a correct conclusion. Courts must still assess a DRE’s evidence on a case-by-case basis.

[34] I found that I was not equipped to do this task. I faced the dilemma of not conducting a fair trial or finding a source of information to assist me in the task.

[35] I chose the latter.

[36] I 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)

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

[38] I 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.

[39] I have attached a copy of a few of the relevant pages from the Manuals, for reference in this judgment, in the Appendix to this judgment. Other pages need to be accessed through the link, or another source.

[40] The Appendix includes:

• International Association of Chiefs of Police - Drug Evaluation and Classification Program - Drug Influence Evaluation Checklist [2] (Appendix A)
• A Chart/Matrix entitled Indicators Consistent with Drug Categories [3] (Appendix B)
• Pages (2) from a chapter on Central Nervous System Stimulants: E. Expected Results of the Evaluation [4] (Appendix C)

[41] I started down this path of using the Manuals out of necessity, in order to conduct a fair trial. After becoming more familiar with the Manuals and then re-examining the Criminal Code sections, I came to an additional decision that would apply to every case where there is an evaluation pursuant to a Section 320.28(2)(a) demand.

[42] I find that the parts of the Manuals that describe the 12-Step Drug Influence Evaluation, of the International Association of Chiefs of Police, comprehensively define the meaning of evaluation in the Criminal Code.

[43] This means that by definition the 12-Step Drug Influence Evaluation is, in effect, part of the Criminal Code in all of the sections that include the word evaluation.

[44] The analysis leading to this conclusion is set out below.

STATUTORY INTERPRETATION

The Issue

[45] This is a question about the statutory meaning of the word evaluation in the Criminal Code. I have chosen three key sections, involved in an impaired by drug investigation, to work with. Any answer to the question must make sense for all three sections. I have set them out in the order in which they arise over the course of an investigation: Initial demand; the evaluation; and any subsequent demand for a urine sample.

[46] The Sections are set out below:

1. Section 320.28(2)(a) - If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4), the peace officer may by demand, made as soon as practicable require a person to comply with the requirements of either or both of paragraphs (a) and (b):
   (a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

2. Section 320.12(d) - an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.

3. Section 320.28(4)(a) - 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 …
   Note: The 320.28(5) drug categories are: depressant; inhalant; dissociative anaesthetic; cannabis; stimulant; hallucinogen; and narcotic analgesic.

Analysis

[47] For this analysis it is helpful to reduce each of the three Sections down to its core purpose:

1. 320.28(2)(a) is a demand that a person comply with the requirements of an evaluation conducted by an evaluating officer;

2. Section 320.12(d) confirms that the method required by the 320.28(2)(a) demand (i.e. an evaluation conducted by an evaluating officer) is a reliable method for determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug; and

3. Section 320.28(4)(a) provides that an evaluating officer may form the required grounds for a urine demand if the evaluation results provide the required grounds set out in the section as expanded by subsection (5).

[48] The starting point for looking at this issue of the statutory meaning of evaluation, is the Regulations of the Criminal Code.

[49] Section 320.28 of the Criminal Code (and its predecessor) states that the Governor in Council may make regulations: “(f) prescribing the tests to be conducted under paragraph 320.28(2)(a) and the forms to be used in recording the results of the evaluation.”

[50] There is only one Regulation. It is: Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, last amended on 2008-07-02.

[51] Section 1 of the Regulation states:

Qualification Required of Evaluating Officer

1. An evaluation officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police.

[52] The International Association of Chiefs of Police, in the Introduction to the 7 Day course state the following:

When you successfully complete this training, you will be able to:

• Describe the involvement of drugs in impaired-driving incidents
• Name the seven categories of drugs and recognize their effects
• Describe and properly conduct the drug influence evaluation
• Document the results of the drug influence evaluation
• Properly interpret the results of the evaluation
• Prepare a narrative for the Drug Influence Report
• Discuss appropriate procedures for testifying in typical DRE cases
• Prepare and maintain a relevant and up-to-date Curriculum Vitae (CV)
  Before you can be certified as a DRE [Drug Recognition Expert], you will have to demonstrate that you can do each of these things. [5] (Emphasis added)

[53] It is very important to note, and it is a point that will be revisited in this judgment, the Drug Recognition Expert/DRE designation refers to the whole collection of points above. It is like an ‘umbrella’ designation. This is important to recognize because when a DRE is acting in the role of conducting an evaluation, in the highlighted points in the paragraph above, they are still called a DRE, but their expertise is circumscribed to the role of an evaluator, as described in the standardized evaluation procedure discussed below. Therefore, they have no expertise that allows them to add, change, or ignore any part of the “drug influence evaluation” or how it is to be conducted.

[54] The above establishes the meaning of a Certified Drug Recognition Expert accredited by the International Association of Chiefs of Police and in lock step with that who is an Evaluating Officer in the Criminal Code sections set out above.

[55] The next question is what is the drug influence evaluation being referred to in paragraph 52, above? (i.e. what is it according to The International Association of Chiefs of Police?)

[56] The drug influence evaluation of The International Association of Chiefs of Police is the 12-Step Drug Influence Evaluation established by the Drug Evaluation and Classification Program, which is part of the International Association of Chiefs of Police. Going forward in this judgment, I will refer to it as the 12-Step DIE.

[57] A list of the 12 Steps in this evaluation can be found in Appendix A. However, the 12-Step DIE is much more than this list, as each Step in the evaluation is a very detailed and fully standardized procedure. All of these detailed and standardized procedures are included in the Manuals.

[58] In the 12-Step DIE, the evaluator is usually referred to as a DRE. Once again the 12-Step DIE indicates that this does not change their role as an evaluator.

[59] Moving to the question of what is an evaluation in the Criminal Code in the Sections reviewed above, it is instructive to review the drug demand section of the Criminal Code prior to June 21, 2018. (In effect 2008-07-02 to 2018-06-20)

[60] This was Section 254(3.1). As illustrated by the highlighted words below, at its core, it was essentially the same as 320.28(2)(a).

Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

[61] Section 1 of the Regulation, noted above in paragraph 51, then, as now, defined what an evaluating officer means. (i.e. Certified drug recognition expert accredited by the International Association of Chiefs of Police.)

[62] Section 3 of the Regulation, under a title of Evaluation Tests and Procedures states: “The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are:” (See summary in next paragraph)

[63] There are a number of subsections and sub-subsections that amount to a list of a total of 14 items that are either tests or procedures. The list contains either very little, and usually no explanation, as to how each test or procedure is to be conducted. Also, the list does not provide any framework as to how these tests and procedures would be used in an evaluation.

[64] Section 254(3.1) 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.

[65] It 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…..” [6]
iii) Also, there is no mention, in the decision, of the list in Section 3 of the Regulation.

[66] I 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 DRE [7]
(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 Parliament [8]
(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 evaluation [9]
(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 observations [10]

[67] Returning the question of the statutory interpretation of evaluation the next thing that happens is the enactment of the current provisions of the Criminal Code in this area.

[68] In addition to the three Sections that I have set out above there were other provisions including s. 320.31(5) – Admissibility of Evaluation Officer’s Opinion.

[69] Also, it should be noted that Section 3 of the Regulation (i.e. the list of tests and examinations) which refers specifically to Section 254(3.1) has not been amended, revoked, replaced or tied to the new provisions in the Criminal Code in any way. This can be viewed as a good thing given the inadequacies of the list and the fact that in some respects it was in conflict with the 12-Step DIE given the list did not include Step 1 - Breath Test and the list included a Romberg balance test, whereas the 12-Step DIE uses the Modified Romberg balance test.

[70] Taking all of the above into consideration, I find that the statutory interpretation of the word evaluation in the Criminal Code sections being reviewed, is one, and only one, very specific evaluation — the 12-Step Drug Influence Evaluation (as determined by the International Association of Chiefs of Police - Drug Evaluation and Classification Program).

[71] Given this interpretation, then the condensed version of the three sections, used above to illustrate the core purpose of each section, would be:

1. 320.28(2)(a) is a demand that a person comply with the requirements of the 12-Step DIE conducted by an evaluating officer.
2. Section 320.12(d) confirms that the method required by the 320.28(2)(a) demand (i.e. the 12-Step DIE requirements conducted by an evaluating officer) is a reliable method for determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.
3. Section 320.28(4)(a) provides that an evaluating officer may form the required grounds for a urine demand if the 12-Step DIE results provide the required grounds.

[72] It follows that the interpretation, or definition, of evaluation, in all of the other sections in the Criminal Code in this area, is the 12-Step DIE.

Access to the 12-Step DIE

[73] Given the conclusion that the 12-Step DIE defines evaluation in the Criminal Code, like any law or legal definition, one needs to be able to access it.

[74] I accessed the 12-Step Drug Influence Evaluation in parts of the Manuals. I found the Manuals as part of a collection posted on the USA, Department of Transportation, website. The Manuals are interspersed with other aspects of DRE training so navigating through them the first time to find all of the parts of the 12-Step DIE was very challenging and very time consuming, but it is doable once one gets the hang of it.

[75] I tried to see if I could access the material on the International Association of Chiefs of Police website. I found some things, including a tab entitled The International Drug Evaluation & Classification Program - Recognized by all fifty states in the US, Canada, the United Kingdom. Following this link one finds out how to become a member of the DRE community, but I could not find materials about the 12-Step DIE, or any related material. I was left with the impression that the only way to get this material through the International Association of Chiefs of Police is to sign up and pay for DRE training.

[76] I do not think police forces are an appropriate place to research Canadian law but I did check a few to see what they posted as representing 12-Step DIE. The ones I found were very condensed and occasionally contained inaccuracies.

[77] Every Drug Recognition Expert certified by the International Association of Chiefs of Police have the Manuals. These participant manuals are the basic reference documents for their training and certification. [11] Do not, however, anticipate the DREs having manuals with them in court. Part of their training includes training on being a witness in court and the Manual instructs them “Do not bring manuals or articles into the court”. [12] (Emphasis added)

[78] The last point is interesting but it is also a bit of a ‘red herring’ because witnesses, lay and expert, give evidence and they are not sources of the law.

THE EVIDENCE

ARRESTING OFFICER

[79] Please see paragraphs 3 - 5 above, and paragraph 97.

EVALUATING OFFICER

Background

[80] The Evaluating Officer in this case was Cst Emilie Anderson. She is a certified drug recognition expert accredited by the International Association of Chiefs of Police. Her Certificates were Exhibits on the trial. I will refer to Cst Anderson as the Evaluating Officer throughout these reasons.

[81] After conducting an evaluation, the Evaluating Officer formed the opinion that the Defendant’s ability to operate a conveyance was impaired by alcohol and a drug and she identified the drug category as being a CNS Stimulant (Central Nervous System Stimulant).

[82] As I decided above, an evaluation under the Criminal Code is the 12-Step DIE.

[83] The 12-Step DIE is a detailed, fully standardized procedure.

[84] When reviewing the Evaluating Officer’s evidence below, I also reviewed each Step of the 12-Step DIE. I used the following headings:

• The 12-Step DIE. (I selected relevant standards. This means that I am not providing a comprehensive review in all instances. (I do not, for example, set out the standardized script for the Walk and Turn test, the standardized mechanics of examining eyes etc.))
• The Evidence. (This includes the Evaluating Officer’s evidence and the video made of the Evaluation.)
• Comments.

[85] In 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.

[86] The following is a suitable starting point [13]:

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.

[87] In the Glossary of Terms, impairment is defined as follows [14]:

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

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

[89] Firstly, 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) homeostasis [15]. (Emphasis added)

[90] The Major Indicators of drug impairment are [16]:

• 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

[91] Secondly, 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. [17]

[92] There 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 B)

[93] The General Indicators for the CNS Stimulant category are: 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.

[94] The 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. [18]

[95] The following is also instructive [19]:

The location of the injury or disease will determine the signs and symptoms — for this reason, we CANNOT generalize a set of specific signs and symptoms for a condition as we do with the drug categories. In many injuries or diseases, the effects will be seen primarily on ONE SIDE of the body. This is the ONE-SIDED (Lateralized) SIGN. Impairment due to drugs will be seen on BOTH sides.

The Evaluation of the Defendant Mr. Takov

[96] The Evaluation of the Defendant is reviewed below in the same sequence as it took place with the Defendant. However, the Step numbers used are from the 12-Step DIE process.

Step 2: Interview of Arresting Officer

[97] The Evaluating Officer did this Step at 5:16 a.m. The Defendant was not present. A summary of the information received includes:

• Times: Offence 4:07 a.m.; arrest 4:38 a.m.; DRE demand 4:41 a.m.;
• Scene: Defendant located slumped over wheel, sole occupant of car, woken by police, looked startled, asked to exit;
• Observations at the scene: No alcohol detected, when questioned driver said had a brain aneurysm; some drool seen; sweaty; speaking very quickly. (Note: No evidence given to suggest Defendant had any difficulty staying awake after he woke up.)

Step 1: Breath Alcohol Test

The 12-Step DIE

[98] This is Step 1 in the 12-Step DIE. It like all of the other Steps is an essential part of completing the standardized evaluation process. It requires a single breath test.

[99] The purpose of obtaining the subject’s BAC (Blood Alcohol Concentration) is to determine whether the specific drug, alcohol, may be contributing to the impairment observed in the subject. [20]

[100] Upon the BAC being obtained the DRE “is to assess whether alcohol may be the sole cause of the observable impairment or whether it is likely some other drug or drugs, or other complicating factors, are contributing to impairment”. [21]

The Evidence

[101] The Defendant entered the room at approximately 5:29 a.m. The Evaluating Officer began by asking some Step 3 and Step 10 type of questions. (What had he eaten that night, what happened that night, what time is it now?) The officer’s explanation for doing these things, at this time, is that she was multitasking.

[102] The Evaluating Officer testified that she noticed fidgeting at this time and went on to say [22]:

While I do the background, and throughout the entirety of the evaluation, I am observing him. I just want to note, so at some point in my notes, I note that he is fidgeting. He fidgets throughout it. I know this seems like a minor observation, but again, with respect to the totality, the fidgeting is going to be one of those checklist items. And that was at 5:30. (Step 10) (Emphasis added)

[103] Note: The officer is correct that she was expected to make observations throughout. These observations are meant to be collected in Step 10. The evidence wasn’t presented that way so for purposes of writing this judgment I will simply mark each of them as (Step 10) as they arise in the evidence review.

[104] With regard to having the Defendant provide a breath sample the Evaluating Officer testified:

i) Having already testified about the setting up of the Intoxilyzer 8000 C in advance, she stated “And the first step to the drug recognition evaluation is going to be a breath test. So, I’m just getting it ready just in case we need to do a breath test.” [23]
ii) “So, at this point, I detect an odour of alcohol, so I go ahead, and I read the breath demand, which is going to allow me to do an Intoxilyzer test to check for alcohol, which is what I’m about to do.” [24]

[105] The Defendant began his attempt to provide a sample at 5:32:35 a.m. The test was completed at 5:34:44 a.m. (Total time involved = 2 minutes.) The result was 69 milligrams of alcohol in 100 millilitres of blood.

[106] The Evaluating Officer testified regarding this time: “…fidgeting like crazy. So, the observations there it’s a little more exaggerated while he is blowing.” [25] (Step 10)

[107] Turning to the video evidence, it shows that during the two minutes, 5:32:35-5:34:44, there are portions where the Defendant appears to be blowing into the machine, where the Defendant exhibits an action that is hard to put into words. There is movement throughout his body. When he is not blowing this movement is not happening.

[108] During this time the Defendant apologizes and mentions asthma. The officer tells him that he is fidgeting like crazy. The Defendant says “because I have nerve problems (inaudible) and [has/had] asthma”. (Emphasis added) The Evaluating Officer asks how old he is. The Defendant says 31. The Evaluating Officer re-instructs him about how to blow. He provides a sample. During this last blow his body is moving again, but he is steadier than before.

[109] When the Evaluating Officer testified that the reading was 69 milligrams of alcohol in 100 millilitres of blood, she noted that he was over the Highway Traffic Act limit of 50 and under Criminal Code limit of 80, so “I elected to proceed with the drug recognition evaluation, as the symptoms that I’m seeing are not consistent with a blood alcohol concentration of 69 milligrams of alcohol in 100 millilitres of blood.” [26]

[110] The Defendant had been in the room for a total of 4 minutes at this point.

Comments

[111] The Evaluating Officer acted in accordance with the 12-Step DIE, given she obtained the Defendant’s BAC and she turned her mind to the necessary judgment call and she made it.

[112] I think that my description, in paragraph 107 above, of the Defendant’s body movements while blowing is more accurate than the Evaluating Officer’s description of “fidgeting like crazy”.

[113] The testimony quoted above is a bit vague but if the Evaluating Officer was asserting that the Defendant was fidgeting throughout the whole evaluation, then I disagree, based on observations made of the video going forward.

[114] The Evaluating Officer stated: “—the fidgeting is going to be one of those checklist items” see paragraph 102 above. My understanding of a ‘checklist’ is a pre-determined list of items that may be observed, and if observed, are checked off in some manner. There is no such ‘checklist’ in the 12-Step DIE. In fact, the only ‘checklist’ is in Appendix A. Perhaps she was referring to the Chart/Matrix in Appendix B, but I note that i) it is not a ‘checklist’ and ii) when one looks at the General Indicators across all of the drug categories listed, ‘fidgeting’ does not appear.

APPENDICES

APPENDIX A

Drug Evaluation and Classification Program
Drug Influence Evaluation Checklist

• 1. Breath alcohol test
• 2. Interview of arresting officer
• 3. Preliminary examination and first pulse
     (Note: Gloves must be worn from this point on.)
• 4. Eye examinations
• 5. Divided attention tests:
  • Modified Romberg Balance
  • Walk and Turn
  • One Leg Stand
  • Finger to Nose
• 6. Vital signs and second pulse
• 7. Dark room examinations
• 8. Check for muscle tone
• 9. Check for injection sites and third pulse
• 10. Interrogation, statements, and other observations
• 11. Opinion of evaluator
• 12. Toxicological examination

APPENDIX B

Indicators Consistent with Drug Categories

Major 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

• CNS Depressants: Disoriented, Droopy eyelids, Drowsiness, Drunk-like behavior, Impaired judgment, Relaxed Inhibitions, Slow, sluggish reactions, Thick, slurred speech, Uncoordinated, Unsteady walk, Variety of emotional effects
• CNS Stimulants: 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
• Hallucinogens: Body tremors, Dazed appearance, Difficulty with speech, Disoriented, Hallucinations, Impaired perception of time and distance, Memory loss, Nausea, Paranoia, Perspiring, Piloerection, Synesthesia, Uncoordinated
• Dissociative Anesthetics: 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
• Narcotic Analgesics: 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
• Inhalants: 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
• Cannabis: 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

Footnotes:

1. Soma, Quaaludes, and some anti-depressants usually dilate
2. ETOH, Quaaludes, and some anti-depressants may elevate
3. Certain psychedelic amphetamines may cause slowing
4. Possibly dilated
5. Down with anesthetic gases, up with volatile solvents and aerosols
6. Possibly normal

APPENDIX C

E. Expected Results of the Evaluation [for CNS Stimulant]

• Horizontal Gaze Nystagmus (HGN) will not be present with subjects under the influence of CNS Stimulants.
• Vertical Gaze Nystagmus (VGN) will not be present.
• Lack of Convergence (LOC) will not be evident.
• Performance on Modified Romberg Balance (MRB) should be impaired.
• Performance on Walk and Turn (WAT) may be impaired due to the subject’s hyperactivity and inability to concentrate. Example: subject may start too soon on the WAT and may tend to walk fast, thus losing balance or missing heel-to-toe.
• Performance on the One Leg Stand (OLS) may be impaired due to the subject’s hyperactivity. Example: subject may also count very rapidly on the OLS test.
• Performance on the Finger to Nose (FTN) test should be impaired. His or her finger movements may be abrupt, jerky, and inaccurate.
• Vital Signs: Pulse generally will be increased. Blood pressure will generally be elevated. Body temperature generally will be elevated.
• Dark Room Examinations: Pupils generally will be dilated. The technical term for “dilated pupils” is Mydriasis. Pupil reaction to light generally will be slow. Rebound Dilation may be observed.
• Muscle Tone: Muscle tone will be Rigid.

Evaluation of Subjects Under the Influence of CNS Stimulants

• Anxiety
• Body tremors
• Dry mouth
• Euphoria
• Exaggerated reflexes
• Excited
• Eyelid tremors
• Grinding Teeth (Bruxism)
• Hyperactivity
• Increased alertness
• Insomnia
• Irritability
• Redness to nasal area
• Restlessness
• Runny nose
• Talkative

For more information and details regarding possible effects refer to:
Couper, F., Huestis, M., Fulford, J., Perkinson, N., Miller, S., Katz, A., Symoun, J., Raymond, P., & Smither, D.D. (2023). Drugs and Human Performance Fact Sheets [Unpublished manuscript]. National Highway Traffic Safety Administration.

FOOTNOTES

[1] Karen Jokinen and Peter Keen, Impaired Driving and Other Criminal Code Offences, 2nd Ed., Toronto: Émond Montgomery, 2023, page 380.
[2] 7 Day, Session 4, page 32
[3] 7 Day, Session 22, page 9
[4] 7 Day, Session 10, pages 13 - 14
[5] 7 Day, Session 1, page 10
[6] R. v. Bingley, 2017 SCC 12, paragraph 32
[7] R. v. Bingley, 2017 SCC 12, paragraph 29
[8] R. v. Bingley, 2017 SCC 12, paragraph 30
[9] R. v. Bingley, 2017 SCC 12, paragraph 30
[10] R. v. Bingley, 2017 SCC 12, paragraph 32
[11] 7 Day, Session 1, page 13
[12] 7 Day, Session 28, page 5
[13] 7 Day, Session 6, pages 2 - 3
[14] 7 Day, Session 1, page 19
[15] 7 Day, Session 22, page 3
[16] 7 Day, Session 22, page 3
[17] 7 Day, Session 22, page 3
[18] 7 Day, Session 5, pages 27 - 37
[19] 7 Day, Session 6, page 34
[20] 7 Day, Session 4, page 5
[21] 7 Day, Session 4, page 5
[22] December 10, 2024 Transcript, page 27, lines 13 - 17
[23] December 10, 2024 Transcript, page 21, lines 18 - 20
[24] December 10, 2024 Transcript, page 26, lines 14 - 17
[25] December 10, 2024 Transcript, page 28, lines 5 - 6
[26] December 10, 2024 Transcript, page 19, lines 13 - 17
[27] P.S. Session 2, page 6
[28] P.S. Session 2, page 6
[29] 7 Day, Session 22, page 4
[30] Chart/Matrix, Appendix B
[31] Chart/Matrix, Appendix B
[32] P.S., Session 1, page 26
[33] 7 Day, Session 22, page 4
[34] Chart/Matrix, Appendix B
[35] Chart/Matrix, Appendix B
[36] P.S., Session 1, page 22
[37] 7 Day, Session 22, page 4
[38] Chart/Matrix, Appendix B
[39] December 10, 2024 Transcript, page 32, lines 8 - 13
[40] December 10, 2024 Transcript, page 33, lines 24 - 28
[41] Chart/Matrix, Appendix B
[42] P.S., Session 3, page 2
[43] P.S., Session 3, pages 10 and 11
[44] P.S., Session 3, pages 2 - 3 and 5
[45] P.S., Session 3, page 4
[46] P.S., Session 3, page 7
[47] December 10, 2024, Transcript, page 35, lines 19 - 21
[48] December 10, 2024, Transcript, page 34, lines 12 - 14
[49] P.S., Session 3, page 8
[50] P.S., Session 3, pages 10 and 11
[51] P.S. Session 3, pages 13 - 15
[52] December 10, 2024 Transcript page 38, lines 29
[53] December 10, 2024 Transcript page 38, lines 27 - 31
[54] P.S., Session 3, pages 16 - 18
[55] December 10, 2024 Transcript, page 40, lines 22 - 24
[56] December 10, 2024 Transcript, page 41, lines 6 - 9
[57] December 10, 2024 Transcript, pages 40 - 41
[58] Chart/Matrix, Appendix B
[59] 7 Day, Session 4, page 22
[60] 7 Day, Session 22, page 4
[61] Chart/Matrix, Appendix B
[62] 7 Day, Session 5, page 18
[63] Chart/Matrix, Appendix B
[64] 7 Day, Session 22, page 4
[65] Chart/Matrix, Appendix B
[66] December 10, 2024 Transcript, page 43, lines 1 - 3
[67] P.S. Session 2, page 10
[68] P.S. Session 2, page 10
[69] December 10, 2024 Transcript, page 43, lines 17 - 19
[70] Chart/Matrix, Appendix B
[71] December 10, 2024 Transcript, page 34, lines 25 - 30
[72] 7 Day, Session 4, page 4
[73] This Form appears many times - one example is 7 Day Session 10 page 18
[74] This Form appears many times - one example is 7 Day Session 10 pages 19-20
[75] 7 Day - Session 4, page 12
[76] 7 Day - Session 4, page 28
[77] 7 Day - Session 4, page 12
[78] 7 Day - Session 4, page 28
[79] December 10, 2024 Transcript, page 44, lines 1 - 5
[80] December 10, 2024 Transcript, page 44, lines 16 - 18
[81] December 10, 2024 Transcript, page 45, lines 15 - 17
[82] December 10, 2024 Transcript, page 45, lines 18 - 26
[83] December 11, 2024 Transcript, page 5, lines 13 - 17
[84] December 11, 2024 Transcript, page 5, lines 31 - 32 and page 6, lines 1-3
[85] December 11, 2024 Transcript, Page 18, lines 8-14
[86] R. v. Alex, 2017 SCC 37
[87] R. v. Bingley, 2017 SCC 12, paragraph 30
[88] R. v. Bingley, 2017 SCC 12, paragraph 30