In Canada, the police have significant powers to demand samples of your breath, blood, or urine. However, these powers are not absolute. They are governed by strict statutory requirements and constitutional protections. A recent decision out of the Ontario Court of Justice, R. v. Wilson 2026 ONCJ 211, dismantles the Drug Recognition Evaluation (DRE) process in a massive way.
In this case, the defendant, Mr. Wilson, was involved in a motor vehicle accident. He was eventually arrested for impaired driving and taken to the station for a DRE. After the evaluation, he refused to provide a urine sample and was charged with refusing to comply with the urine demand.
The reasons for this acquittal were based on three major elements: the failure to follow the mandatory 12-step process, the trap of tunnel vision, and the pervasive risk of confirmation bias.
An 11-Step Evaluation?
The most immediate and fatal flaw in the investigation was the officer’s decision to skip the very first step of the evaluation. Under the Criminal Code, a Drug Influence Evaluation (DIE) is a standardized, 12-step protocol developed by the International Association of Chiefs of Police.
Step 1 requires the officer to conduct a breathalyzer test. In Mr. Wilson’s case, the Evaluating Officer testified that she skipped this step because she did not smell alcohol and did not suspect its use. She claimed her training suggested the test was unnecessary in such circumstances. That training was not the training that the International Association of Chiefs of Police require. It appears it was some variation on the training that was done by her local police agency, modifying the twelve-step process from its standardized form.
The Court flatly rejected this freestyle approach to the law and the testing.
The Court concluded the police have no lawful authority to change the mandatory requirements for any subject in the DRE Evaluation. The judgment made it clear that there is no such thing as an 11-step DIE. Because the evaluation was not completed as required by Section 320.28(4) of the Criminal Code, the subsequent demand for a urine sample was legally invalid.
The Court also emphasized that alcohol itself is a drug. As a central nervous system depressant, which is one of the categories or classes of drugs that the DRE is designed to identify, alcohol and its effects needed to be ruled out in order to properly evaluate and assess the indicia displayed by the accused.
The judge here was not merely being pedantic. She was alive to the very real scientific foundation of the process and how its validity is directly connected to the need to perform proper, validated tests for certain types of drugs.
Tunnel Vision
The second major concern raised by the Court was tunnel vision. This occurs when investigators focus on a particular theory to the exclusion of others. In this case, the police officer had already concluded that Mr. Wilson was on drugs. She unconsciously filtered in evidence that supported that theory while ignoring evidence that contradicted it.
The Court noted that the officer had formed sequential beliefs about Mr. Wilson’s drug use before the evaluation even began. By forming first a suspicion of a drug in the body, then reasonable grounds to believe that he was impaired by a drug, the officer stopped being an objective observer.
The judge drew an analogy to breath testing: in a breath test the officer operates the instrument but the instrument itself is the one collecting the data and analyzing it. But when the officer in a DRE evaluation is both the investigating officer and the evaluating officer, they are judging the data collected in the test against their prior beliefs, raising the risk that the officer may only interpret evidence in a manner consistent with the existing theory.
This manifested in several speculative general indicators used against Mr. Wilson by the officer.
Because Mr. Wilson claimed he had only slept four hours the night before, the officer marked him down for insomnia, which is a sign of stimulant use. The Court found this to be pure conjecture. After all, everyone has trouble sleeping or constraints on why they can sleep a full night.
The officer noted Mr. Wilson was thirsty and asked for water. Despite knowing Mr. Wilson had neck cancer and a chronic cough, she interpreted his thirst as dry mouth, another indicator of drug use. You know, because people don’t get thirsty from time to time.
When Mr. Wilson became frustrated and swore at himself while struggling with balance tests in his socks, the officer labelled this as irritability, another stimulant indicator. I for one know that when I am struggling to do something I am calm and cool as a cucumber.
By interpreting every human reaction as a symptom of drug impairment, the officer lost the objectivity required by law.
Confirmation Bias and the Closed List
Closely related to tunnel vision is confirmation bias. This is where an individual prefers information that supports a pre-settled conclusion. The court found that the officer fell prey to this psychological trap.
A particularly important part of the judgment involves the officer’s logic regarding antagonistic drugs.
In the context of a Drug Influence Evaluation, an antagonistic effect occurs when a person has consumed two or more drugs from different categories that have opposite physiological actions on the body. The core issue identified by the court is that when drugs with opposing effects are combined, the resulting impact on a subject’s vital signs becomes statistically unpredictable.
The court utilized the DRE training manuals to explain that while some drug combinations have “additive” effects (where two drugs that raise heart rate make it go up even further, for example), antagonistic drugs work against each other.
CNS Stimulants: Generally cause vital signs like pulse, blood pressure, and body temperature to go up.
They also cause pupils to dilate and muscle tone to become rigid. Narcotic Analgesics generally cause these same vital signs to go down. They cause pupils to constrict and muscle tone to become flaccid.
When these two categories are present in the system simultaneously, the 12-step DIE protocols state that the result is unpredictable. The subject’s pulse, for example, could be high, low, or within the normal range, depending on which drug is taking over that specific indicator at that time. Because any of these three outcomes is possible, the court ruled that none of these results can be used to confirm the presence of the drugs.
The court’s primary concern was how the evaluating officer interpreted these results to support her theory of polycategory impairment. The officer used the fact that Mr. Wilson was normal as proof of impairment, relying on the drugs cancelling one another out. The problem is that normal behaviour and symptoms is also completely consistent with, well, being normal. Sober.
Justice Hawke rejected this logic, noting that a normal reading is merely one of three unpredictable possibilities.
The judge concluded that if a normal result, which is also consistent with a sober person, is used as evidence of drug use, the test ceases to be evidence-based and becomes complete speculation.
The court provided a chart illustrating how the antagonistic effect rendered most of the major indicators in Mr. Wilson’s case irrelevant for proving the specific drug combination. Because the effects are antagonistic, these results could not prove or disprove the presence of the named categories.
Even though his pupils were constricted, a sign of narcotics, the antagonistic presence of a stimulant, which dilates pupils, meant the result was still unpredictable and could not definitively support a combination opinion.
Ultimately, the court found that by trying to fit normal or unpredictable results into a pre-determined conclusion of drug use, the officer fell into a trap of confirmation bias, failing to recognize that the evaluation results were actually logically inconclusive
The judge also pointed to a systemic issue with the DRE form itself. The form provides a closed list of drug categories but lacks an Inconclusive option as the outcome. This pressures officers to pick a category even when the results are unclear and undetermined. In Mr. Wilson’s case, the results were logically inconclusive, yet the form the officer was required to complete pushed the officer to find a drug category as indicative of guilt.
Footwear and Fairness
As a final detail that underscores the importance of a thorough defence, the Court noted that Mr. Wilson was forced to perform balance tests in his socks on a station floor. The officer admitted she stopped the tests because she was afraid he would fall and hurt himself, yet she used his poor performance as evidence of drug impairment. The Court observed that running shoes provide stability and treads that socks do not; interpreting a lack of balance as drug-induced when the subject isn’t even wearing proper shoes is a failure of standardization.
Ultimately here, Mr. Wilson was found not guilty of both impaired operation and refusing to comply with a drug evaluation demand.
This case is a good example of the principle that the more intrusive the police power, the more rigorously the courts will scrutinize the objective justification for its use.
