R. v. Jurcevic, 2010 ONCJ 577

COURT FILE No.: 100159 DATE: 2010·11·26 Citation: R. v. Jurcevic , 2010 ONCJ 577 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DARIO JURCEVIC Before Justice D. DiGiuseppe Heard on July 5, 2010, October 1, 2010 Reasons for Judgment released on November 26, 2010 Gilbert Maille ............................................................................................................ for the Crown The accused Dario Jurcevic …………………………………………………………… on his own behalf REASONS FOR JUDGMENT DIGIUSEPPE, J.: A.

INTRODUCTION [ 1 ] Dario Jurcevic is charged with operating a motor vehicle on while his ability to do so was impaired by a drug. [ 2 ] Evidence was heard on July 5, 2010 and October 1, 2010. The Crown called Constable Robert Morris of the Ontario Provincial Police as an evaluating officer for the purposes of conducting an evaluation under section 254(3.1) of the Criminal Code . The Crown sought to have P.C. Morris qualified as an expert for the purpose of providing an opinion as to whether or not Mr. Jurcevic’s ability to operate a motor vehicle was impaired by a drug.

A ruling on that request was reserved until the conclusion of the trial. [ 3 ] The matter was adjourned to today’s date for the ruling with respect to the admission of expert evidence and for judgment. B. THE EVIDENCE 1. Overview [ 4 ] The O.P.P. were conducting a R.I.D.E. program at the corner of Balsam and Huron Streets in the City of Thunder Bay on December 12, 2009. Two marked police vehicles with their emergency lights flashing were parked at this intersection. [ 5 ] At approximately 10:00 p.m., five minutes after setting up the program, a vehicle, later identified as being operated by Mr.

Jurcevic, approached an intersection just east of the R.I.D.E. program. The vehicle stopped at the intersection, appeared to be turning right to proceed towards the police officers, and then proceeded straight through the intersection. Police believed the vehicle was

attempting to avoid the R.I.D.E. program, followed it and eventually stopped it a few minutes later. [ 6 ] P.C. Golding approached the vehicle and, as the driver opened the window, detected a strong odour of marijuana. Mr. Jurcevic acknowledged that he had smoked a marijuana cigarette at a friend’s home. Mr. Jurcevic’s eyes appeared red, shiny and glassy and his speech was slow. As a result of these observations, P.C. Golding made a demand pursuant to section 254(1) (

a) of the Criminal Code that Mr. Jurcevic perform certain physical coordination tests, commonly referred to as Standard Field Sobriety Tests, to determine whether a demand could be made for an evaluation under section 254 (3.1) of the Criminal Code . [ 7 ] P.C. White, who was conducting the R.I.D.E. program with P.C. Golding, and who was qualified through training to administer the Standard Field Sobriety Tests, attended and administered the tests. Mr. Jurcevic complied. P.C. White advised P.C. Golding that Mr. Jurcevic had failed the tests. P. C. Golding then made a demand that Mr.

Jurcevic submit to an evaluation by an evaluating officer to determine if his ability to operate a motor vehicle was impaired by drugs. [ 8 ] Mr. Jurcevic was taken to the O.P.P. detachment where he was given an opportunity to speak with duty counsel. He then provided a sample of his breath into an approved instrument. The instrument registered zero milligrams of alcohol in 100 millilitres of blood. Mr. Jurcevic was then turned over to P.C. Morris for the purpose of conducting an evaluation pursuant to section 254(3.1) of the Criminal Code . [ 9 ] P.C. Morris conducted his evaluation, concluded that Mr.

Jurcevic’s ability to operate a motor vehicle was impaired by a drug and made a demand that he supply a sample of his urine, pursuant to section 245(3.4) of the Criminal Code , to enable a proper analysis be made to determine whether he had a drug in his body. Mr. Jurcevic complied. That sample was sent to the Centre of Forensic Science for analysis. The results of that analysis are contained in a report filed as Exhibit #3. [ 10 ] Mr. Jurcevic was then released unconditionally. P.C. Golding misinterpreted the words “good to go” from his partner and believed that no charges were to be laid. As he was driving Mr.

Jurcevic home, P.C. Golding was advised of the error, returned Mr. Jurcevic to the police detachment and completed the paperwork which resulted in the charge before the court. 2. P.C. Robert Morris [ 11 ] P.C. Morris is a constable with the Ontario Provincial Police. He arrived at the scene shortly after Mr. Jurcevic was stopped. He received information that Mr. Jurcevic had failed the Standard Field Sobriety Test and that a demand had been made by P. C. Golding that he submit to an evaluation pursuant to section 254(3.1) of the Criminal Code . P. C.

Morris returned to the detachment to prepare for the evaluation. [ 12 ] P. C. Morris is a certified drug recognition expert accredited by the International Association of Chiefs of Police. He received his accreditation in May 2009. This accreditation is valid for two years. P. C. Morris completed training in 2008 to conduct Standard Field Sobriety Tests, completed a ten day drug recognition course in Aylmer, Ontario in January/February 2009 and completed an intense three day training program with written exams in Arizona in March 2009. The successful completion of this course work resulted in his accreditation.

I am satisfied that this accreditation authorizes P. C. Morris to conduct evaluations as an evaluating officer under section 254(3.1) of the Criminal Code . [ 13 ] P. C. Morris has conducted 20 drug recognition evaluations including evaluations during his training in Arizona. He has evaluated two individuals who he determined were not impaired by drugs. Of those evaluations where he identified the presence of a drug in an individual’s body, the presence of that drug were all confirmed by subsequent toxicology tests. [ 14 ] P. C. Morris noted seven drug categories that the evaluation is designed to identify.

These drugs are categorized by their observable effects and symptoms.

They include: 1. central nervous system depressants, such as alcohol and anti-anxiety medication; 2. inhalants such as glue and gas; 3. dissociative anesthetics, such as PCB; 4. cannabis; 5. central nervous system stimulants such as cocaine and amphetamines; 6. hallucinogens, such as LSD and ecstasy; and 7. narcotic analgesics such as heroine, morphine and oxycon- tin. [ 15 ] The tests to be conducted and the procedures to be followed during an evaluation under section 254(3.1) of the Criminal Code are set out by regulation SOR/2008-196 June 11, 2008 and include: “(

a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that

the eyes track an object equally; (

b) eye examinations, which consist of (

i) the horizontal gaze nystagmus test, (ii) the vertical gaze nystagmus test, and (iii) the lack-of-convergence test; (

c) divided-attention tests, which consist of (

i) the Romberg balance test, (ii) the walk-and-turn test referred to in paragraph 2(b), (iii) the one-leg stand test referred to in paragraph 2(c), and (iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specific manner while keeping their eyes closed; (

d) an examination, which consists of measuring blood pressure, temperature and pulse; (

e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities; (

f) an examination, which consists of checking the muscle tone and pulse; and (

g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.” [ 16 ] P. C. Morris conducted the evaluation. Mr. Jurcevic was polite and compliant during the process. The evaluation process and results are summarized as follows: 1. Mr. Jurcevic was administered a breath test to determine if alcohol was present in his system. None could be detected. 2. P. C. Morris obtained information from the arresting officers, which included the admission by Mr. Jurcevic that he had consumed cannabis, the seizure of cannabis from Mr.

Jurcevic’s vehicle and the results of the failed Standard Field Sobriety Test. 3. A preliminary examination, which included speaking with Mr. Jurcevic, observing his eyes and taking a pulse rate revealed no medical or health concerns, a normal pulse rate, equal tracking of both eyes and a pupil size of 5.5 millimetres. Normal pupil size is 2.5 to 5.0 millimetres. The pupil size was measured with a card and the 5.5 millimetre measure is an estimate. 4. The horizontal gaze nystagmus test and the vertical gaze nystagmus test were conducted.

These tests determine the capacity of an individual to track a stimulus back and forth, 10-15 centimetres from his face, across a horizontal and vertical plane. Mr. Jurcevic exhibited no horizontal or vertical gaze nystagmus as his eyes tracked the stimulus (in this case a pen) smoothly. A convergence test was also conducted. The pen was moved in a circle towards the nose, and the eyes are observed to see if they converge, which would be a normal reaction. Mr. Jurcevic displayed a lack of convergence. The right eye tracked normally towards the stimulus but the left eye rotated downwards and then outwards.

This lack of convergence is symptomatic of cannabis consumption. 5. The divided-attention tests were conducted. These tests are relevant to the operation of a motor vehicle. Driving involves performing many tasks at once, responding to stimuli and observing the roadway and all around it. A driver’s attention is necessarily divided among these various tasks, stimuli and observations. Problems in performing these tasks may affect a person’s ability to operate a motor vehicle. There are four divided-attention tasks prescribed by the regulation.

i) The Romberg balance test was conducted. Mr. Jurcevic was directed to stand with his heels and toes together, arms by his side, eyes closed and head back, and to estimate a time of 30 seconds then open his eyes. He opened his eyes at 33 seconds (25-35 seconds is with in the normal range) and his body swayed in a circular fashion approximately two inches. ii) The walk-and-turn test was conducted. Mr. Jurcevic was directed to walk heel to toe with his hands by his side nine

steps, turn and take nine steps back. During the instructional phase, Mr. Jurcevic lost his balance two times and put his hand out to his side. When performing the test, Mr. Jurcevic stepped on his own toes, left a gap between his heel and toe on the 1 st and 2 nd step, turned on the wrong foot and took 10 steps forward and 10 steps back. One or two mistakes could be considered normal for this test. ii) The one-leg stand test was conducted. Mr. Jurcevic was directed to raise one leg six inches high and with his arms by his side, look at his raised foot and count out loud until told to stop (usually 30 seconds).

This test is repeated for each leg. With his left leg raised, Mr. Jurcevic swayed back and forth two times and counted to 26. With his right leg raised, Mr. Jurcevic swayed twice, used his arm for balance once and counted to 26. One mistake could be considered normal for this test. iv) The finger-to-nose test was conducted. Mr. Jurcevic was directed to keep his heels and toes together, arms by his side, head tilted back and eyes closed and then touch the tip of his finger to the tip of his nose on command. On six attempts, Mr.

Jurcevic missed the tip of his nose three times, touching the side of his nose or touching his nose with the pad of his finger. Normal results would see the test completed as per direction each time. 6. Blood pressure, temperature and pulse rates were measured. They were all within the normal range. 7. An examination was conducted of the pupil sizes in darkness, direct light and ambient light. In darkness, Mr. Jurcevic’s pupils measured at 9 millimetres, slightly outside the normal range of between 5 and 8.5 millimetres. In direct light, Mr.

Jurcevic’s pupils constricted to 3.5 millimetres and then dilated back to 4.5 millimetres. The pupils constricted to a size within the normal range (2 to 4.5 millimetres). However, the dilation to 4.5 millimetres, referred to as rebound dilation, was abnormal. One would expect the pupil to remain at 3.5 millimetres. In ambient light, Mr. Jurcevic’s pupils were 5.5 millimetres, just outside of the normal range of 2.5 to 5 millimetres. An examination was conducted of Mr. Jurcevic’s nasal and oral cavities. This examination is conducted to discern signs of drug ingestion, residue and repeated use.

No abnormalities were found. 8. Muscle tone and pulse were examined. Different drugs may cause the muscle tone to change. Mr. Jurcevic’s muscle tone and pulse were within the normal range. 9. A visual examination was made for evidence of drug injection sites. The findings were negative. [ 17 ] P. C. Morris concluded, on the basis of the evaluation and Mr. Jurcevic’s statement, that he had consumed cannabis.

The results of the various tests conducted ruled out certain categories of drugs, such as central nervous system depressants, inhalants, and dissociative anesthetics, where one would observe vertical and horizontal gaze nystagmus; narcotic analgesics, where one would observe pupil constriction; and hallucinogens, where one would observe rigid muscle tone and increased body temperature. P. C. Morris’ observations of Mr. Jurcevic during these tests were consistent with cannabis use. P. C. Morris also concluded that based on the results of the divided-attention tests, Mr.

Jurcevic’s ability to operate a motor vehicle was impaired by cannabis. [ 18 ] P. C. Morris then made a demand pursuant to section 253(3.4) of the Criminal Code that Mr. Jurcevic provide a sample of bodily fluid to enable a proper analysis to determine whether he had a drug in his body. Mr. Jurcevic complied and provided a urine sample. The sample was sealed and forwarded to the Centre of Forensic Sciences for analysis. A report was prepared and filed as Exhibit #3. The analysis detected cannabis in Mr. Jurcevic’s urine. 3.

James Rajotte [ 19 ] James Rajotte is employed as a forensic toxicologist with the Centre of Forensic Science. He prepared the report filed as Exhibit #3. Mr. Rajotte was qualified as an expert in forensic toxicology. His report confirmed the presence of cannabis in Mr. Jurcevic’s urine. Paragraphs one and two of Mr. Rajotte’s conclusion read as follows: “1. The detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration. Urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time.

Drugs detected in the urine may or may not mean that drug effects and/or drug levels in blood existed at the time of an incident. 2. Carboxytetrahydrocannabinol (carboxy-THC) is an inactive metabolite of tetrahydrocannabinol (THC), the major psychoactive compound in the prescription drug Marinol® and cannabis products used recreationally such as marijuana and hashish. The presence of carboxy-THC indicates prior use of, or exposure to THC. Adverse effects, such as drowsiness, altered time perception, motor in-

coordination, concentration, information processing, and performance deficits may occur in some individuals following THC use. Driving-related impairment has been associated with THC use. THC and its metabolites may remain in the body and be excreted into the urine for extended periods following THC use depending on a subject’s history with the drug, even though the drug may no longer have an influence on driving performance.” [ 20 ] Mr.

Rajotte testified that his review of the literature suggested that motor skills, vision, reaction time, information processing and divided attention tasks would be affected by marijuana use. He testified that the effects of marijuana would be evident between one to two hours after use, although some effects could remain longer. The extent and duration of these effects vary based on the amount of drug ingested and its concentration. Mr. Rajotte conceded that his analysis of Mr. Jurcevic’s urine sample could not determine the amount of drug consumed, when it was consumed or what effect it would have upon Mr.

Jurcevic. 4. Dario Jurcevic [ 21 ] Mr. Jurcevic testified. He is employed as a mechanic at a local car dealership. On the night in question he was at a friend’s home watching a sporting event. He says he had one puff of a marijuana cigarette that another friend, Chris, was smoking. He consumed no alcohol. [ 22 ] Mr. Jurcevic left his friend’s home at approximately 10:00 p.m. and was driving his friend Chris home. As he approached the intersection of Arundel and Huron Streets, he noticed flashing lights to his right. He thought there had been a motor vehicle accident.

Rather than negotiate the accident scene, he proceeded across Huron Street onto Royal Street to avoid the scene. He says he did not signal to proceed right onto Huron Street, nor did he turn his tires in that direction. [ 23 ] Mr. Jurcevic was stopped a short time later. He admitted to police that he had smoked some marijuana. He was cooperative with police, completed the Standard Field Sobriety tests at the scene and the evaluation at the police detachment. [ 24 ] With respect to the tests conducted during the evaluation, Mr.

Jurcevic testified that • with respect to the one-leg stand, he has never had good balance and he does put his arms out to his side to keep his balance; • with respect to the finger-to-nose test, he was not told that he could not use the pad of his finger, and believed that is what he was being instructed to do; • with respect to the walk-and-turn test, he believed he was told to walk 10 steps, not 9; and the test was conducted in a cold garage in stocking feet, which may have explained the missteps. [ 25 ] In cross-examination, Mr.

Jurcevic agreed that his physical condition when he was stopped by police would have been the same as his condition at the detachment. Mr. Jurcevic also agreed that his decision to avoid police was because his friend Chris had a baggie of marijuana with him, although he maintains he wasn’t aware of the R.I.D.E. program. C. ANALYSIS & FINDINGS [ 26 ] Mr. Jurcevic is presumed innocent. Before he can be convicted of impaired operation of a motor vehicle, the Crown must establish beyond a reasonable doubt all the essential elements of the offence. [ 27 ] The Crown seeks to qualify P. C.

Morris as an expert to give evidence with respect to the accused impairment by drug. The Crown also seeks to have P. C. Morris recognized by this court as an evaluating officer qualified to conduct an evaluation pursuant to section 254(3.1) of the Criminal Code . [ 28 ] In a previous ruling, I held that an evaluating officer must establish his qualification as set out in Regulation 2008-196 of the Criminal Code .

I also held that any opinion given by the evaluating officer as to impairment by drug, other than for the purpose of making a demand pursuant section 254(3.4) of the Criminal Code , could not carry the weight of expert opinion, unless the criteria in R.

v. Mohan (1994), 89 C.C.C. (2d) 401 S.C.C. had been met. (see R. v. Wakewich & R. v. Cruikshank [2010] O.J. No. 1128 ). 1. Expert Opinion Evidence [ 29 ] The Ontario Court of Appeal in R. v. Collins , 2001 CanLII 24124 (ON CA) , [2001] O.J. No. 3894, sets out a helpful synopsis of opinion evidence and expert opinion evidence that frames this discussion. At paragraph 17: “In the law of evidence, an opinion means an “inference from observed fact”: see R. v. Abbey (1982), 1982 CanLII 25 (SCC) , 68 C.C.C. (2d) 394 at 409 .

As stated in Abbey , as a general rule, witnesses testify only as to observed facts and it is then up to the trier of fact to draw inferences from those facts. A lay witness will be permitted to give an opinion only with respect to matters that do not require special knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts.

A witness testifying that “a person was drunk” is a common example of an opinion that can be provided by a lay witness… Otherwise, opinion evidence will only be received with respect to matters calling for special knowledge beyond that of the trier of fact… The law as to expert opinion evidence was authoritatively restated in Mohan , supra. Before expert opinion evidence can be admitted, the evidence: (

a) must be relevant to an issue in the case; (

b) it must be necessary to assist the trier of fact; (

c) it must not be subject to any other exclusionary rule; and (

d) it must be given by a properly qualified expert.” [ 30 ] The Crown submits that the Mohan criteria have been met. Relevance has been established since the opinion of the officer relates directly to a fact in issue, namely impairment. The necessary requirement has been met, the Crown submits, because the evidence is in relation to the specific symptoms or effects associated with a specific drug or class of drugs, something outside the common knowledge or experience of the trier of fact. No exclusionary rule would prohibit the admission of this evidence. Finally, the Crown submits that P. C.

Morris is a properly qualified expert. [ 31 ] Relevance is a threshold requirement for the admission of all evidence. The Crown has indeed established the logical relevance of the opinion evidence proffered to establish a fact in issue, namely impairment by drug. I am not satisfied, however, that the Crown has met the necessity criterion, i.e. that the expert opinion evidence is necessary to assist the trier of fact. The court in Mohan , on that issue, observed that experts are not to usurp the function of the trier of fact.

At paragraph 25: “These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue.” [ 32 ] The Crown also submits that P. C. Morris, qualified as an evaluating officer, is also qualified to provide an opinion with respect to impairment. The Criminal Code contemplates him forming that opinion.

Indeed, section 254 (3.4) of the Criminal Code contemplates the evaluating officer forming an opinion as to impairment for the purpose of requesting a demand for bodily substance. Further, an evaluating officer may form an opinion, based on reasonable grounds, that an accused’s ability to operate a motor vehicle is impaired by drug and lay an appropriate charge. This threshold is not an onerous one, and these opinions do not go to the ultimate issue. A judge, on the other hand, must be satisfied beyond a reasonable doubt, a higher evidentiary standard. [ 33 ] While I agree that P. C.

Morris is qualified as an evaluating officer for the purpose of an evaluation under section 254 (3.1) of the Criminal Code , his training does not, in my view, extend to providing an expert opinion with respect to impairment by drug. P. C. Morris properly gave evidence with respect to observations he made and how these observations helped him form an opinion that Mr. Jurcevic had consumed a drug, what category that drug fell into, and that he had reasonable grounds to believe Mr. Jurcevic’s ability to operate a motor vehicle was impaired by drugs.

It is left to the trier of fact to determine the ultimate issue of proof of impairment beyond a reasonable doubt. [ 34 ] I agree that expert evidence will assist the trier of fact to recognize the effects of certain drugs. We have the expert evidence of Mr. James Rajotte in that regard. The ultimate issue of impairment by drug however, must be left to the trier of fact. P. C. Morris’ opinion as to Mr. Jurcevic’s ability to operate a motor vehicle will be admissible, but not as expert opinion evidence. 2. Impairment By Drug

[ 35 ] The Ontario Court of Appeal decision of R. v. Stellato , 1993 CanLII 3375 (ON CA) , [1993] O.J. 18 sets out the legal test to establish impaired driving. The Crown must prove beyond a reasonable doubt that at the time of driving the accused’s ability to operate a motor vehicle was impaired by alcohol or drug. Impairment is an issue of fact to be determined by the trial judge on the evidence. If any degree of impairment, from slight to great, has been established beyond a reasonable doubt, the offence is made out. [ 36 ] There is no one factor, viewed in isolation, that will establish impairment.

Nor will the lack of evidence in respect of a certain fact necessarily result in the Crown failing to meet its evidentiary burden. Rather, the judge must view the totality of the evidence contextually, which may include the presence or absence of a combination of factors, to determine whether impairment has been established beyond a reasonable doubt. Not only must the court consider observations which are consistent with impairment, but any evidence that would tend to show an accused was not impaired. (see Kenkel J., Impaired Driving in Canada , 2009 ed., LexisNexis) [ 37 ] In this case, P. C.

Morris made the following observations which led him to believe that Mr. Jurcevic’s ability to operate a motor vehicle was impaired by drug: 1. The evaluation conducted and Mr. Jurcevic’s statement confirmed cannabis use and excluded other drugs. 2. Mr. Jurcevic’s performance on the divided-attention tests:

i) his body swayed two inches during the Romberg balance test; ii) during the walk-and-turn test, he took 9 steps rather than 10, lost his balance two times during the instructional phase, turned on the wrong foot, stepped on his toes and left a gap between heel and toe on one occasion; iii) during the one-leg stand, he counted to 26 and swayed twice; iv) during the finger-to- nose test, he touched the side of his nose, or the tip of his nose with the pad of his finger three times. [ 38 ] Mr. Rajotte testified that divided attention tasks, such as those performed by Mr.

Jurcevic, would be affected by the consumption of marijuana. It is a reasonable inference to draw then, accepting the observations made by P. C. Morris, that Mr. Jurcevic’s performance during the divided-attention tasks is consistent with marijuana consumption. [ 39 ] Mr. Jurcevic’s evidence with respect to his performance on the divided-attention tests differs in some respects from the evidence of P.C. Morris. Mr. Jurcevic suggested that his performance on the walk-and-turn test may have been affected by a cold garage floor and walking in stocking feet.

There is no evidence to contradict this and I accept that those conditions may explain the observations made by P. C. Morris. [ 40 ] With respect to the finger to nose test, even if I accept that Mr. Jurcevic believed he was instructed to touch the pad of his finger to his nose, P. C. Morris was clear that he instructed him to use the tip of his finger. Mr. Jurcevic’s error in understanding these instructions is also a symptom consistent with marijuana use. [ 41 ] There are a number of concerns, however, that I have with respect to P.C. Morris’ observations.

In some respects, his observations do not have the degree of specificity necessary to allow me to fully assess the evidence. For example: 1. How long did Mr. Jurcevic sway during the Romberg balance test? Is this a factor in assessing impairment? 2. With respect to the missteps during the walk-and-turn test, how often did he step on his toes? What was the size of the gap between steps? Is this information significant? 3. With respect to the one-leg stand, how far did he sway and for how long? Is this significant? Further, Mr. Jurcevic reached 26 rather than 30 seconds during this test. Is this significant?

Is there a range of time that is acceptable, as there is with time estimates in the Romberg balance tests? This information is important in assisting the trier of fact in determining whether or not impairment has been established beyond a reasonable doubt. [ 42 ] In addition to these observations which are consistent with impairment, I must also consider evidence, or lack thereof, which may tend to show Mr. Jurcevic was not impaired at the time. In this regard I consider the following:

1. There is no evidence of bad driving. Mr. Jurcevic’s vehicle was observed and followed for a few minutes before it was stopped. He apparently obeyed all traffic laws. His driving was otherwise unremarkable. He pulled over when requested to do so and had no difficulty in parking his vehicle. 2. There is no evidence that Mr. Jurcevic had trouble retrieving his documents when asked to do so. 3. There is no evidence that Mr. Jurcevic had any difficulty getting out of his vehicle when asked to do so. 4. There is no evidence that Mr.

Jurcevic had any difficulty walking to the police cruiser at the scene, walking from the police cruiser to the police detachment or walking about the detachment as he exercised his right to contact counsel and provided a breath sample. There is no evidence that Mr. Jurcevic had any difficulty in understanding and performing these various tasks before he was required to submit to the evaluation. 5. There is no evidence that Mr. Jurcevic had any difficulties while he was in the company of P.C.

Golding after the evaluation was completed, or exhibited any signs that his ability to operate a motor vehicle might be impaired. If Mr. Jurcevic had experienced difficulties in these areas I have identified, these difficulties would have been noted by the trained police officers who had Mr. Jurcevic under constant observation. It is a reasonable inference to draw that the absence of such evidence would tend to show that Mr. Jurcevic’s ability to operate a motor vehicle was not impaired. [ 43 ] I find that Mr.

Jurcevic’s difficulties with the walk-and-turn test are the most telling objective facts to show some impairment. However, that evidence must be considered in light of Mr. Jurcevic’s explanation for some of his apparent difficulty, namely performing the test in stocking feet on a cold concrete floor. I cannot reject that explanation and it is reasonable in the circumstances. When I consider the totality of the evidence, particularly the lack of any evidence, other than the evaluation results, that would tend to show Mr.

Jurcevic’s ability to operate a motor vehicle was impaired by drug, I am left in reasonable doubt as to whether the Crown has met its burden of proof. [ 44 ] There will be a finding of not guilty. Released: November 26, 2010 _____________________ Justice D. DiGiuseppe