R v Wilson [2026] OJ No 1514

Ontario Court of Justice  |  Hawke J.  |  Judgment: April 10, 2026

Subjects: Drug Recognition Evaluation (DRE)  •  12-Step DIE  •  Impaired Driving  •  Refuse Demand  •  Confirmation Bias  •  s. 320.28(4) CCC

Background

On December 2, 2024, Terrance Wilson was involved in a motor vehicle collision in Brantford. P.C. Martin attended the scene, conducted a Field Sobriety evaluation, arrested Wilson for impaired operation, and transported him to the station for a Drug Influence Evaluation. At the conclusion of the evaluation, she made a demand for a urine sample under s. 320.28(4)(a) CCC. Wilson refused.

At trial, P.C. Martin acted as both the arresting officer and the Evaluating Officer. She formed the opinion that Wilson was impaired by a combination of a CNS Stimulant and a Narcotic Analgesic. Wilson’s prescribed medications included hydromorphone (a narcotic analgesic) and trazodone for sleep. He also disclosed broken vertebrae, cancer in his neck, a cough, and partial blindness in his left eye.

Issue 1: Section 7 Charter — Roadside Utterances

Wilson provided a sworn affidavit that his roadside statements to P.C. Martin (identifying himself as the driver and describing the collision) were made to comply with his statutory duty under s. 199 of the Highway Traffic Act. The Crown sought admission of these utterances; the defence sought exclusion under R v White, [1999] 2 SCR 417.

Hawke J. accepted Wilson’s evidence, found the utterances were compelled by statute, and excluded them. Crucially, she declined to conduct a Grant analysis, holding that the Grant balancing framework does not apply to statutory compulsion causing a s. 7 breach.

Without the utterances, the Crown had no evidence that Wilson operated a conveyance, and Count 1 fell.

Count 2: Refuse Demand — The Legal Framework

To convict under s. 320.15(1), the Crown must prove three elements:

• A valid demand;
• The actus reus — failure or refusal to comply; and
• The mens rea — knowledge of the demand or intent to refuse.

To prove a ‘valid demand’ under s. 320.28(4), the Crown must establish:

• The statutory preconditions for the demand were met (including completion of the evaluation and reasonable grounds); and
• The officer communicated the demand to the accused.

The Court identified two independent preconditions at issue, either of which is fatal to the Crown:

Issue A: Did the Evaluating Officer Complete the Evaluation?

Hawke J. relied on her earlier analysis in R v Takov, 2025 ONCJ 316, which established that the word ‘evaluation’ in the Criminal Code means one thing and one thing only: the 12-Step Drug Influence Evaluation (12-Step DIE) as developed by the International Association of Chiefs of Police (IACP). No more, no less.

Step 1 of the 12-Step DIE requires a breath alcohol test. P.C. Martin did not conduct one because she had received training at the Ontario Police College indicating that Step 1 is not legally required in Canada where the officer has no suspicion of alcohol. The Crown submitted a passage from what it described as the most recent DRE Participant Manual to support this position.

Hawke J. rejected the Crown’s argument on three bases:

• The definition of ‘evaluation’ in the Criminal Code is tied to the IACP 12-Step DIE, not to any supplemented or modified Canadian version of it. The Ontario Police College has no authority to alter that definition.
• There is no such thing as an 11-Step DIE. Standardization is the foundation of the DRE program’s scientific validity: all steps are mandatory, and skipping any one step means the evaluation was not completed.
• An Evaluating Officer’s opinion is only admissible if it is based on the 12-Step DIE (R v Bingley, 2017 SCC 12, para 29). An opinion derived from an incomplete evaluation has no admissible evidentiary foundation.

Defence Takeaway — Step 1 Demand disclosure and cross-examine specifically on whether Step 1 was conducted. If the officer skipped the BAT, the evaluation is legally incomplete regardless of the officer’s explanation. This is not a weight argument — it is a threshold argument: there was no ‘evaluation’ within the meaning of the Code, and therefore no valid demand. The Takov / Wilson line is now your starting point. If the DRE program is used in your jurisdiction, this issue is always worth raising.

Issue B: Did the Evaluating Officer Have Objectively Justifiable Reasonable Grounds?

Even if the evaluation had been complete, Hawke J. found the Crown could not establish the second statutory precondition: that the Evaluating Officer had reasonable grounds, on both a subjective and objective basis, to believe that a combination of a CNS Stimulant and a Narcotic Analgesic was impairing Wilson’s ability to operate a conveyance.

The Court conducted a step-by-step audit of each Major Indicator for the specific drug category combination at issue (CNS Stimulant + Narcotic Analgesic):

Indicator	Combined Effect	Wilson’s Result	Evidentiary Value
HGN / VGN / LOC	Null — None	None / Not completed	Nil — consistent with anything
Pupil Size	Antagonistic — unpredictable	Constricted	Nil — unpredictable result
Reaction to Light	Additive — Little or None	Little or None	✓ Matches expected result
Pulse Rate	Antagonistic — unpredictable	Up	Nil — unpredictable result
Blood Pressure	Antagonistic — unpredictable	Normal	Nil — unpredictable result
Body Temperature	Antagonistic — unpredictable	Normal	Nil — unpredictable result
Muscle Tone	Antagonistic — unpredictable	Flaccid	Nil — unpredictable result

The practical upshot of the antagonistic interaction between these two drug categories is that for most Major Indicators, any result — high, low, or normal — is consistent with the proposed combination. A result that is consistent with everything is evidence of nothing. Hawke J. identified this as a structural problem, not just an evidentiary weakness: seven of the nine Major Indicators cannot, as a matter of logic, support the Crown’s theory for this particular drug combination.

The Court then scrutinized the General Indicators on which P.C. Martin relied, finding several were based on speculation rather than objective observation:

General Indicators: What the Court Found Insomnia — Discarded. Sleeping 4 hours the night before does not establish insomnia. Conjecture. Dry mouth — Discarded. Thirst does not equal dry mouth. The more obvious explanations (cancer, cough) were noted and disregarded by the officer. Conjecture. Slow, low, raspy speech — Discarded in part. No raspy speech was observed. The actual finding (slow, low, slurred) does not correspond to any Chart/Matrix indicator for either category. Slurred speech appeared under other categories entirely. Anxiety — Discarded. Feeling anxious while struggling with balance tests is a response to specific stress, not a general indicator. Irritability — Discarded. Swearing at oneself during a frustrating test is not a general indicator of irritability with others.   Accepted General Indicators (3): Eyelid tremors, Restlessness, Droopy eyelids.   Final tally: 1 Major Indicator + 3 General Indicators. Insufficient to objectively justify reasonable grounds for a two-category polydrug impairment opinion.

The Confirmation Bias Warning

Hawke J. did not stop at acquitting. She used this case to flag a systemic risk embedded in the DRE program itself.

P.C. Martin, working alone, formed three sequential beliefs about Wilson having drugs in his system before the evaluation even began: (1) reasonable suspicion for the SFST demand; (2) reasonable grounds to suspect for the evaluation demand; and (3) reasonable grounds to believe for the arrest. She then conducted the evaluation already holding those prior conclusions, with no objective intervening check (unlike a breath technician operating an Intoxilyzer).

More significantly, Hawke J. identified a structural feature of the 12-Step DIE that creates a risk of confirmation bias in cases like Wilson’s: Step 11 (Opinion of Evaluator) presents a closed list of 10 possible opinions. There is no ‘Inconclusive’ option.

The Court held that ‘Inconclusive’ was the correct result of a proper application of the 12-Step DIE on the facts of this case. The absence of that option on the form risks pushing DREs toward filtering evidence toward one of the listed categories rather than acknowledging that the evaluation did not yield a reliable opinion. The Court was careful to say this does not apply in every case — only where the evidence, properly assessed, does not support any of the listed categories.

Defence Takeaway — Confirmation Bias Cross-examine on the sequential belief-formation process: how many prior conclusions did the officer hold before the evaluation started? Use the ‘Inconclusive’ argument in polydrug cases, especially where antagonistic drug category combinations produce unpredictable expected results across multiple indicators. Point to the absence of an ‘Inconclusive’ option on the form and challenge the officer to explain what they would have marked had the results been truly ambiguous. Hawke J.’s framework for scrutinizing what a ‘None’ result actually proves — and does not prove — is a powerful cross-examination tool.

Cross-Examination Roadmap for a DRE

R v Wilson is a masterclass in how to systematically take apart a DRE’s evidence. The following areas emerge from Hawke J.’s analysis:

Step 1 Compliance

• Was a breath alcohol test conducted? If not, why not?
• Is the officer aware that Step 1 is mandatory under the IACP 12-Step DIE?
• What is the source of any training that the BAT can be omitted? Is that an IACP source or a supplemented Canadian training document?

Standardization

• Were all 12 steps conducted in the standardized manner?
• Was the subject wearing footwear during the divided attention tests? Why or why not?
• What does the DRE manual say about footwear for divided attention tests?

General Indicators — Inference vs. Observation

• What specific observation led to the Indicator of insomnia / dry mouth / anxiety / irritability?
• Is the officer aware that the observation (sleeping 4 hours; requesting water; feeling anxious during a balance test) does not logically compel the Indicator they recorded?
• Did the officer consider other explanations for the observation, including the subject’s disclosed medical conditions?

Antagonistic Drug Category Combinations

• Is the officer familiar with the drug combination chart in Session 24 of the DRE 7-Day Manual?
• What is the combined effect of a CNS Stimulant and Narcotic Analgesic on [specific indicator]?
• If the combined effect is ‘Antagonistic / Unpredictable’, what does a normal result tell you?
• Can the officer identify any result for an antagonistic indicator that would have made them change their opinion?

‘None’ Results

• When the expected result for a drug category is ‘None’ and the test result is ‘None’, how many other explanations are consistent with that result?
• Does a ‘None’ result on HGN or VGN confirm the presence of any specific drug category?

The Inconclusive Option

• Is there an ‘Inconclusive’ option on the Drug Influence Evaluation form?
• What would the officer have recorded if the evaluation had not produced sufficient grounds to identify a drug category?
• Is the officer aware that the 12-Step DIE’s reliability depends on it producing reliable negative results, not just positive ones?

Using Wilson for Pre-Trial Resolutions

Wilson (together with Takov) now provides a strong evidentiary foundation for a letter to the Crown explaining why a Refuse charge cannot succeed where:

• Step 1 of the DIE was skipped, making the evaluation legally incomplete and any opinion inadmissible for lack of a valid foundation;
• The Evaluating Officer’s opinion relied on a polydrug category combination that is antagonistic across most Major Indicators, making those indicators evidentiary nullities;
• Key General Indicators were derived by speculation rather than objective observation; and/or
• The officer’s sequential prior beliefs give rise to a confirmable confirmation bias argument that will resonate with a trial judge.

Note that Hawke J. expressly observed (para 89) that even if she had been wrong on the s. 7 Charter issue, the Impaired Operation count would also have failed for want of admissible DRE evidence. Wilson therefore strengthens the position on both counts.

Key Cases and References

R v Wilson, 2026 ONCJ 211, [2026] OJ No 1514 (Hawke J.)

R v Takov, 2025 ONCJ 316 (Hawke J.) — foundational analysis of the statutory definition of ‘evaluation’

R v Bingley, 2017 SCC 12 — DRE opinion evidence; admissibility without Mohan voir dire; scope of DRE expertise

R v White, [1999] 2 SCR 417 — s. 7 Charter / statutory compulsion

R v Alex, 2017 SCC 37 — culpability for refusal offence grounded in disobedience with lawful compulsion

PPSC, Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada (April 25, 2019), Ch 2 — tunnel vision and confirmation bias

IACP Drug Evaluation and Classification Program — Pre-School and 7-Day DRE Participant Manuals (2023 edition), available at https://www.nhtsa.gov