A recent Ontario decision suggests that
laypersons - such as supervisors – may assess
whether a person is impaired from drugs or alcohol, and their
assessment will be considered in legal proceedings.
In a "drug driving" case, a driver was found guilty of
driving while impaired by marijuana. A police officer
approached his vehicle and observed him as having bloodshot, glassy
eyes and the smell of marijuana was coming from the vehicle.
The driver's pupils were dilated. The driver admitted to
having smoked a "J" approximately 2 1/2 hours
earlier. He was taken to a police station where another
officer, a "drug recognition evaluator", observed him and
performed certain physical and other tests, and concluded that he
The driver argued, on appeal, that the drug recognition
evaluator should not have been accepted by the trial judge as an
"expert" witness on drug recognition. The appeal
court disagreed, going on to state that the courts have
had a long-accepted practice of admitting evidence
of non-expert witnesses about whether a person was
intoxicated or impaired.
Interestingly, a urine test came back negative for THC, the
active ingredient in marijuana that causes physical impairment, but
the court still decided that based on the police officers'
observations and assessments, the driver was impaired when he was
driving (even if he was no longer impaired when the urine sample
The appeal court referenced the Evaluation of Impaired Operation (Drugs and
Alcohol) Regulations, which are used by police officers
who are "certified drug recognition experts" to evaluate
whether a driver is impaired by drugs or alcohol. Those Regulations
set out a number of tests that those officers can perform to assess
whether the person is impaired.
Supervisors often question whether they have the expertise to
assess whether an employee is impaired. This decision suggests that
supervisors' observations are important and will be relevant
evidence in legal proceedings, such as a wrongful dismissal action
by an employee who was dismissed for being impaired at work.
Supervisors tasked with identifying impairment should,
preferably, be given training and materials (such as
a checklist) to help them in the task.
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