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  • Stephen Biss

Does C-46 authorize use of ocular video?


A company called Ocular Data Systems says that these devices are already being used in Canada. In a press release dated February 9, 2018 they state:

To date, 30 police agencies in 20 states and in Canada have deployed DAX™ to increase the prosecution and conviction rates for alcohol and drug impaired driving. This includes Denver PD, Los Angeles PD, the Colorado State Patrol, and the Tennessee Highway Patrol, NYPD, in addition to the Houston PD DWI Task Force, one of the company’s biggest customers.

Ocular’s co-founder Dick Studdard, retired Sgt. LAPD is credited as being the founder of the Drug Recognition Program (DRE) back in the early 1970s. The visionary program brought together law enforcement with doctors and researchers from around the country to develop the DRE protocol for teaching officers how to recognize the signs of drug use, in addition to alcohol. Today, the DRE program features about 8000 DREs nationally, including instructors, and is coordinated by the IACP (International Association of Chiefs of Police) with support from the National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation.

“Juries increasingly expect to see video in court rooms, and though here to stay, dash and body cameras just don’t capture the subtleties of the human eye that DAX™ can. The DAX™ will record a nystagmus, one’s pupil size, and one’s reaction to light for both court and training purposes. In addition, it will record eyelid fluttering, nuances around blood shot eyes, even track marks and body tremors, so that rather than just describing what they saw during a traffic stop, an officer can now show it. This both strengthens the prosecution’s case and backs up an officers’ testimony, so we keep cases out of court, and we officers in the field,” added Studdard.

The Criminal Code existing wording says in section 254:

  • Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

  • (a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

  • (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

  • Marginal note:Video recording

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (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 of 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.

  • Marginal note:Video recording

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

Bill C-46 provides for the following regulations:

Regulations

320.‍38 The Governor in Council may make regulations

(a) prescribing the qualifications required for a peace officer to act as an evaluating officer and respecting the training of evaluating officers;

(b) prescribing the blood drug concentration for a drug for the purpose of paragraph 320.‍14(1)‍(c);

(c) prescribing a blood alcohol concentration and a blood drug concentration for a drug for the purposes of paragraph 320.‍14(1)‍(d);

(d) prescribing the blood drug concentration for a drug for the purpose of subsection 320.‍14(4);

(e) prescribing the physical coordination tests to be conducted under paragraph 320.‍27(1)‍(a); and

(f) prescribing the tests to be conducted and procedures to be followed during an evaluation under paragraph 320.‍28(2)‍(a) and the forms to be used in recording the results of the evaluation.

The Bill C-46 demand sections do not however seem to authorize wide-ranging use of video during SFSTs or DRE evaluations. The word video is not used as best I can tell in this section:

Investigative Matters

Testing for presence of alcohol or drug

320.‍27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Samples of breath or blood — alcohol

320.‍28 (1) 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 alcohol or has committed an offence under paragraph 320.‍14(1)‍(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.

Evaluation and samples of blood — drugs

(2) 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 the 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; or

(b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood drug concentration, or the person’s blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

Samples of breath — alcohol

(3) An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1), by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

Samples of bodily substances

(4) 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 person’s body of one or more of the types of drugs set out in subsection (5); or

(b) the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5) or to determine the person’s blood drug concentration for one or more of those types of drugs.

Types of drugs

(5) For the purpose of subsection (4), the types of drugs are the following:

(a) a depressant;

(b) an inhalant;

(c) a dissociative anaesthetic;

(d) cannabis;

(e) a stimulant;

(f) a hallucinogen; or

(g) a narcotic analgesic.

Condition

(6) A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person’s health.

Approved containers

(7) A sample of blood shall be received into an approved container that shall be subsequently sealed.

Retained sample

(8) A person who takes samples of blood under this section shall cause one of the samples to be retained for the purpose of analysis by or on behalf of the person from whom the blood samples were taken.

Validity of analysis not affected

(9) A failure to comply with subsection (7) or (8) does not by itself affect the validity of the taking of the sample or of an analysis made of the sample.

Release of retained sample

(10) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the person from whom samples of blood were taken under this section, made within six months after the day on which the samples were taken, order the release of any sample that was retained to the person for the purpose of examination or analysis, subject to any terms that the judge considers appropriate to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

Please let me know if you can find authorization for use of this device elsewhere in the legislation. I wonder whether, in the absence of enabling legislation, use of this device would be an unreasonable search.

Here's a link to the inventor of this product.

#BillC46

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