POLICE ASSOCIATION OF NOVA SCOTIA 83 represents a reasonable interference with privacy interests in service of the important purpose of detecting drivers who have consumed drugs. Blood Sampling Clause 3(5) (new paragraph 254(3.1)(b)) enables an officer to demand that an individual provide a blood sample if the officer has reasonable grounds to believe that the individual has committed an offence of driving while impaired by a drug, or of driving with a prescribed BDC, whether or not the officer makes a demand for a Drug Recognition Evaluation (DRE). This is a change from the current approach, in which a blood demand may only be made after a DRE. The DRE is a series of tests intended to determine whether an individual is impaired and, if so, by what substance. This is normally done at a police station. The following considerations support the consistency of this provision with the Charter. The purpose of the change is to effectively enforce the new offences, which are defined in terms of BDC. The only way to prove a prescribed BDC offence using current technology is through a blood sample taken as close to the time of driving as reasonably possible. Obtaining a blood sample in a timely manner is therefore critical to proving these offences, since levels of a drug in the bloodstream can decline rapidly after consumption, particularly for smoked cannabis. This makes it essential to obtain a blood sample promptly, as soon as an officer has developed reasonable grounds to believe that an offence has been committed. The delays associated with the DRE would make it impossible in many cases to prove a prescribed BDC offence. Further, these delays cannot be compensated for by calculating the rate at which the BDC declines, since rates at which drugs are eliminated from the body vary widely based on a number of variables. The proposal is as tailored as possible given this constraint, in that it maintains the same threshold as the existing framework before a sample can be demanded, namely reasonable grounds to believe that an offence has been committed. Warrant for blood sample where individual incapable of consent Clause 15 (new section 320.29) provides that a justice may issue a warrant to obtain a blood sample from a person where the justice is satisfied that: • There are reasonable grounds to believe that the person was involved in an accident causing bodily harm or death within the previous 8 hours; • There are reasonable grounds to suspect that there is alcohol or a drug in the person’s body; and • A medical practitioner is of the opinion that the person is incapable of consent and that the taking of the sample would not endanger the person’s health. This replaces the current provision which uses reasonable grounds to believe that the person had committed an impaired driving offence. The time frame is also changed from 4 hours to 8 hours. The following considerations support the consistency of this section with the Charter. Currently, a warrant is available in similar circumstances only where the justice has reasonable grounds to believe that the person has committed an impaired driving offence. The new approach will reduce the threshold to a reasonable suspicion standard in order to better serve the intended purpose of enabling investigation of impaired offences where a driver is unconscious and unable to consent to the blood sampling. In ordinary circumstances (i.e. where a driver is conscious), a police officer may administer an ASD or administer sobriety tests based on reasonable grounds to suspect that the individual has alcohol or a drug in his or her body. The ASD and sobriety test, along with observations, may be used to establish the grounds that are necessary to make a demand on an Approved Instrument, or a blood demand. In the case of an individual who is not able to consent, it is not possible to administer an ASD or a sobriety test. Accordingly, it is difficult to gather enough information to establish the grounds that are necessary to obtain a warrant. By providing that there need only be reasonable suspicion of alcohol or a drug in a person’s body, this provision ensures that investigations can proceed in such circumstances. The provision is reasonably tailored in that it still requires that an officer have reasonable grounds to believe that the individual was involved in an accident and that a medical practitioner opine that taking the sample would not endanger the individual’s health. ■ madd.ca / www.justice.gc.ca
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