R. v. Masawi, 2017 ONCJ 973

ONTARIO COURT OF JUSTICE CITATION: R. v. Masawi, 2017 ONCJ 973 DATE: 2017 09 28 COURT FILE No.: 14-15007567 BETWEEN: HER MAJESTY THE QUEEN — AND — SHAHAB MASAWI Before Justice C.A. Nelson Heard on June 14, 15 & 16, 2017 and August 24, 2017 Reasons for Judgment released on September 28, 2017 Ms. O. Delgado ................................................................................... counsel for the Crown Mr. I. Aisen and Mr. M. Grossman.............. counsel for the defendant Shahab Masawi NELSON, J.: [1] Shahab Masawi is charged with operating a vehicle while his ability to do so was impaired by drug.

The allegations arise from astop of Mr. Masawi at a RIDE spot check on the evening of May 11, 2014. [2] In order for me to find Mr. Masawi guilty of the charge before the Court, the Crown must satisfy me beyond a reasonable doubtthat: 1. Mr. Masawi’s ability to drive was impaired at the time he was stopped by police; and 2. That his impairment was caused or contributed to by his voluntary consumption of a drug. [3] Mr.

Masawi submits that the Crown has not proven either of the above elements beyond a reasonable doubt. [4] The Crown’s case as regards the above elements is entirely circumstantial; thus, in order to find Mr. Masawi guilty, I have to besatisfied beyond a reasonable doubt that the only reasonable inference arising from the totality of the evidence is that at the time inquestion, Mr. Masawi’s ability to drive was impaired and that that impairment was at least partly because of his consumption of a drug. Impairment of the Ability to Drive [5] In order to determine whether Mr.

Musawi’s ability to drive was impaired at the time he was stopped, I must consider the totality ofthe evidence. It is important to emphasize that any degree of impairment of the ability to drive, even slight impairment, is sufficient toground a finding of guilt if that impairment can be attributed to the consumption of alcohol or a drug. See R. v. Stellato (SCC), [1994] S.C.J. No. 51 (S.C.C.). [6] Actual Driving • There is no significant evidence regarding Mr. Musawi’s driving. He was stopped at a RIDE spot check.

ConstableBeckwith testified that the way the spot check was set up, a driver was waved through to be investigated at a further point in the spotcheck. Mr. Masawi, however, did not follow suit with other drivers; rather, he pulled over to the curb immediately on entering the spotcheck.

[ 7 ] Gross Motor Control • Poor Balance: Constable Khan noted that Mr. Musawi was unsteady on his feet – moving side to side. The unsteadiness was such that the officer worried about Mr. Musawi’s safety on the roadway. The DRE officer noted that Mr. Musawi had difficulty maintaining his balance during the DRE examination. From the booking video, I noted that Mr. Musawi’s balance appeared to be normal when he first entered the booking room; however, as the interaction continued, he swayed slightly. He lost his balance when putting on his shoe, although was able to recover without holding onto to anything.

Constable Beckwith, the arresting officer, noted that Mr. Musawi was steady on his feet at the roadside. [ 8 ] Indicia of Impairment • Eyes: Constable Zanati noted that Mr. Musawi’s pupils were dilated. Constable Andrici, the DRE officer, also noted that Mr. Musawi had dilated pupils. Constable Beckwith described Mr. Musawi’s eyes as glossy . • Slurred speech: First, I note that Mr. Musawi’s first language is not English. He speaks with an accent. Two officers testified that Mr.

Musawi’s speech was slurred: Constable Khan, who had a brief conversation with him at the roadside, and the DRE officer, who spent significant time with him during the DRE examination. On the video of Mr. Musawi’s interaction with the booking officer, I noted little or no slurring of Mr. Musawi’s speech during most of the interaction. However, towards the end of the interaction, there was some pronounced slurring of speech. It is of significance that Constable Khan was of the view that Mr. Masawi’s speech in the booking room was similar to his speech at the roadside.

As well, on the in car video, I noted some slurring of Mr. Musawi’s speech while he was in the back of the cruiser and on the way to the station. [ 9 ] Cognitive Impairment • Confusion : Constable Zanati noted that after he was stopped at the RIDE spot check, Mr. Musawi appeared to be confused. He could not locate his insurance and ownership papers when asked. Later, the officer had no difficulty finding these documents in the driver’s side pocket. The DRE officer noted that Mr. Musawi had difficulty following instructions for some of the DRE tests.

Constable Beckwith, the arresting officer, noted that during his interaction with him, Mr. Masawi was mumbling and incoherent at times. He described him as displaying a “blank stare” and looking past him. • Unusual behavior: Constable Beckwith testified that after Mr. Musawi first stopped his vehicle, he appeared to be searching for something – he randomly looked in the glove compartment, the driver’s side pocket and the centre console. These actions were repeated over and over. When asked to produce his driving documentation, he repeated the same random searches. During his ride to the police station, Mr.

Musawi can be heard chanting and mumbling to himself. • Delayed Responses Constable Zanati testified that Mr. Musawi was slow to respond to the officer’s questions. Both Constable Beckwith and Constable Khan also noted that his responses were delayed. During the booking video, I noted that while there sometimes was a slight pause before Mr. Musawi answered questions, the pauses were not unduly long and could be explained because of his language difficulties. • Tired and Sleepy I noted that during his trip to the police station, the in-car camera showed Mr.

Musawi’s head constantly bobbing back and forth as if he was falling asleep. Constable Andrici also noted that during the Drug Recognition Examination, Mr. Musawi was sleepy and had trouble staying awake. The Drug Recognition Examination took place just before midnight; however Mr. Musawi advised the officer that he had had only 3 hours of sleep the night before. Constable Andrici described Mr. Musawi as “relaxed”. • Altered Internal Clock During the DRE examination, Mr.

Musawi estimated that 30 seconds had passed when, in fact, only 20 seconds had gone by indicating a fast internal clock. • Opinions of the Police Officers who dealt with Mr. Musawi Constable Beckwith believed that Mr. Masawi’s ability to drive was impaired based on his presentation at the roadside. Based on the drug recognition evaluation that he performed on Mr. Musawi, Constable Andrici also came to the opinion that Mr.

Musawi’s ability to drive was impaired. [ 10 ] When I consider the totality of the evidence including the neutral and arguably exculpatory evidence, I am satisfied beyond a reasonable doubt that the only reasonable conclusion is that that Mr. Musawi’s ability to drive was impaired at the time he was stopped. I appreciate that not all of the police officers detected the same indicia of impairment and that there were times when Mr. Musawi presented in a non-impaired fashion. However, the constant theme running through the testimony with respect to Mr.

Musawi’s confusion and disorientation at the scene, together with all of the other evidence suggesting impairment, lead me to the conclusion that his impairment was significant enough that it affected his ability to drive. Evidence with Respect to Impairment by Drug

[ 11 ] My finding that Mr. Musawi’s ability to drive was impaired is not enough for a determination that he is guilty of impaired driving. The Crown must also satisfy me beyond a reasonable doubt that his impairment was caused or contributed to by the consumption of a drug. [ 12 ] As was the case with the issue of impairment, the evidence that the Crown relies on to establish that Mr. Musawi’s impairment was caused by a drug is circumstantial. Thus, I must determine whether the totality of the evidence gives rise to only one reasonable conclusion and that is, that Mr.

Musawi’s impairment was caused by a drug. [ 13 ] A review of the evidence with respect to the issue of impairment by reason of consumption of a drug follows. Consumption [ 14 ] Mr. Musawi admitted smoking marijuana earlier on the day that he was arrested as well as on the day before. [ 15 ] At the scene, Constable Zanati noted a smell of marijuana coming from Mr. Musawi’s person and from inside the car. Constable Andrici, the DRE officer, smelled marijuana on Mr. Musawi’s breath. There is an inference available from this evidence that Mr. Musawi’s consumption of marijuana occurred shortly before he was stopped.

The Toxicologist [ 16 ] Inger Bugyra, toxicologist from the Centre of Forensic Sciences, was qualified to give expert evidence regarding, amongst other things, the detection and effects of drugs on the human body. Her testing of Mr. Musawi’s urine indicated that two significant drugs were found: Lorazepam and Carboxytetrahydrocannabinol (or THC-COOH). Finding these drugs in the urine does not reveal precisely when the drugs were ingested or how much of the drug was in the subject’s blood at the time of driving. [ 17 ] Ms.

Bugyra testified that Lorazepam is a prescription drug which includes the following possible side effects after ingestion: “lack of muscle control, drowsiness, loss of consciousness, impaired judgment; impaired memory, confusion and dizziness”. In her trial testimony, Ms. Bugyra elaborated by testifying that lorazepam can affect thinking and reasoning functions and may result in slurred speech.

A driver under the influence of this drug may have impaired ability to handle driving functions such as parking or three point turns, and maintaining proper lane positions. [ 18 ] THC-COOH is the inactive metabolite from marijuana and its presence indicates prior exposure to marijuana. According to Ms. Bugyra, marijuana ingestion effects can include: “mild euphoria, relaxation, altered time perception, motor incoordination and decreased ability to concentrate.” In her testimony she stated that marijuana may impair a driver’s ability to accurately determine space and distance.

It may affect balance and could cause slurred speech. A user’s pupil size may be affected. A driver under the influence of marijuana may have difficulty maintaining concentration. [ 19 ] It is important to stress that the analysis of Mr. Musawi’s urine is not direct evidence that Mr. Musawi was under the influence of either lorazepam or marijuana at the time he was driving, rather it is direct evidence that he had consumed these drugs at some time prior to providing the urine sample.

THE DRE Officer’s Opinion [ 20 ] After performing the DRE examination in accordance with the regulations, Constable Andrici formed the opinion that Mr. Musawi’s ability to drive was impaired and that he “exhibited signs of and symptoms consistent with consumption of Cannabis and a stimulant”. As indicated above, the toxicologist, Inger Bugyra, corroborated Constable Andrici’s opinion about the consumption of marijuana but refuted his opinion about the consumption of a stimulant. The officer testified that he was of the opinion that Mr. Musawi’s ability to drive was impaired by the drugs he had consumed.

Of course, this opinion is impacted by Constable Andrici’s erroneous opinion that Mr. Musawi was also affected by a stimulant. Reviewing the Toxicologist’s Evidence with Application to the Evidence Concerning Mr. Musawi [ 21 ] I list some of the possible effects of marijuana as described by Ms. Bugyra with reference to the other evidence in this case: Mild euphoria There was no evidence to suggest that Mr. Musawi was euphoric. Relaxation Constable Andrici described Mr. Musawi’s presentation as “relaxed”. In addition, he was relaxed enough to nod off to sleep while with the DRE.

Similarly, he seemed to nod off and on to sleep while in the police cruiser. He was also relaxed enough to mumble continuously and sing while travelling in the police cruiser. Altered time perception The DRE noted that Mr. Musawi’s internal clock was fast on the Romberg balance test. Lack of motor coordination Constable Khan noted that Mr. Musawi was unsteady on his feet. Constable Andrici testified that Mr. Musawi had difficulty with all of the balance tests in the DRE evaluation. Decreased ability to concentrate Several police officers testified about Mr. Musawi’s delayed responses to questions.

Constable Beckwith testified about his blank stare. Constable Andrici noted his continued difficulty during the drug recognition examination with

following instructions. Pupil size Both Constables Zanati and Andrici testified about Mr. Musawi’s dilated pupils. Slurred speech Both Constables Khan and Andrici noted that Mr. Musawi’s speech was slurred. The Legal Parameters of Drug Impairment [22] I turn to the legal requirements concerning impaired driving by reason of drug consumption. [23] First, I note that none of the case law provided by counsel relating to the issue of drug impairment is binding on me. [24] Some of the cases relied on by Mr. Musawi can be distinguished on their facts. For example: R. v. Duhamel (Ont.

C.J.) where the evidence of the accused and a witness that the accused had not consumed drugs raised a reasonable doubt; and R. v.Kler 2016 ONCJ 630 where the Court had a reasonable doubt whether the accused had consumed drugs and whether those drugs were inhis system at the time of driving. [25] On behalf of Mr. Musawi, it was submitted that the case law he relied on stood for the following legal principles: 1.

Necessity of Reading Back Urine results The Crown has an obligation to lead evidence to relate back the drugs found in a toxicologyreport to the time of driving much like the breath readings in an impairment by alcohol case must be related back to the time of drivingwhen the presumption does not apply. See R. v. Jansen 2010 ONCJ 74; R. v. Sanclimenti [2010] O.J. No. 5917 (Ont. C.J.); R. v. Card[2012] O.J. 6331 (Ont. C.J.); R. v. Klatt [2014] O.J. No. 2302 (Ont. C.J.) 2 .Tiredness The Crown has an obligation to prove that any symptoms of impairment do not arise because the accused was tired.

R. v.Steeves 2011 NBQB 10 , 2011 NBQB 010; R. v. Sanclimenti [2010] O.J. 5917 (Ont. C.J.) 3. Significant signs of impairment In order to find that an accused is guilty of driving while impaired by drug the indicia of impairmentmust be significant. R. v. Tucker [2016] ONCJ 371 [26] With respect, in my view, none of the legal propositions listed above accurately reflects the law. Dealing with each one: Necessity of Reading back Urine Results [27] The legal test for impairment by drug is the same as the legal test for impairment by alcohol – the Stellato test.

In alcoholimpairment cases, there is no requirement for the Crown to prove that an accused has any specific amount of alcohol in his or her body atthe time of driving, simply that he had some amount of alcohol in his body and it contributed to an impairment of his ability to drive. The test for impairment by drug is the same. [28] In R. v. Henry [2014] O.J. No. 3989 (Ont. C.A.) Justice Hourigan refused leave to appeal to the Court of Appeal from a

summaryconviction appeal decision in R. v. Henry 2014 ONSC 4115 , [2014] O.J. 3275 (Ont. S.C.J.). In the

summary conviction appealdecision, the Court upheld the trial judge’s finding that Mr. Henry was guilty of impaired driving by reason of drug. As in the casebefore me, the toxicologist’s report indicated that THC-COOH, the inactive metabolite of marijuana, was found in Mr. Henry’s urine. No THC (the active ingredient in marijuana) was found. The toxicologist could only opine that this meant that at some prior time theaccused had been exposed to marijuana in an undetermined amount. The toxicologist was unable to testify whether or not the activeingredient of marijuana, THC, was active in Mr.

Henry’s body at the time of driving. [29] Justice Hourigan speaking for the Court of Appeal stated: “I agree with the comment of the trial judge that the appellant ‘is notcharged with exceeding a certain quantity of cannabis in his blood on an approved instrument’. The test result is just one piece ofevidence for the trial judge to consider.” [Paragraph 6]. Tiredness [30] One of the cases cited on behalf of Mr. Musawi in support of the proposition that the Crown must negate tiredness as a cause ofimpairment, was Steeves.

This case was overturned by the New Brunswick Court of Appeal on the basis of a natural justice breach –See R. v. Steeves

(2011) N.B.J. No 334 (N.B.C.A.). A new trial was ordered. Thus, neither the trial decision nor the

SummaryConviction appeal decision carry any persuasive weight. [31] I do not agree that the Sanclimenti decision, which relied on the overturned Steeves decision, stands for the proposition that Mr.Masawi submits that it does. In my view, the decision simply reiterates the proposition that when considering the totality of thecircumstantial evidence, in order to convict, the court must be satisfied that the only reasonable inference which arises is one consistentwith guilt. The Court in Sanclimenti was of the view that tiredness may have reasonably been the explanation for Mr.

Sanclimenti’simpairment. [32] I point out that drug consumption need not be the only cause of a driver’s impairment for a finding of guilt to be made. Just as isthe case with alcohol impairment, a finding of guilt may issue if the Court determines that the consumption of drugs contributed to theimpairment of the driver’s ability to drive. Indeed, one can easily foresee situations where tiredness may well accentuate the degree ofimpairment a driver displays after consuming alcohol or drugs.

Overwhelming Signs of Impairment [ 33 ] I disagree that the Tucker decision stands for the proposition that a driver must display overwhelming indicia of impairment before a court can determine that impairment is caused by drugs. In that case, the signs of impairment were overwhelming. It does not follow, however, that in every case the degree of impairment must be overwhelming. Such a requirement is inconsistent with Stellato . Analysis of the Drug Impairment Issue [ 34 ] It is apparent from the

summary of the evidence previously provided that Mr. Musawi displayed virtually all of the possible side effects of marijuana consumption. If I add to this the relevant side effects of lorazepam which was also found in his urine – lack of muscle control, drowsiness, and confusion, all of which he displayed during his interaction with police – the evidence is overwhelming that the impairment he displayed was related to the drugs he had consumed. There is also evidence that points to recent consumption of marijuana. I recognize that there is no direct evidence as to when Mr. Musawi may have consumed lorazepam.

Even, however, disregarding all of the evidence regarding lorazepam, there is overwhelming circumstantial evidence to justify the conclusion that Mr. Masawi’s ability to drive was impaired to some degree as a result of his marijuana consumption. [ 35 ] I acknowledge that Mr. Musawi made a statement in the breath room that he only had 3 hours of sleep the night before. On Mr. Musawi’s behalf it was submitted that his impairment may have resulted from tiredness.

While I agree that tiredness may have been a factor in the indicia he displayed, tiredness would not explain the balance issues, the slurred speech, or the unusual behavior. [ 36 ] In any event, it is important to recall that the Crown need not prove that the impairment to drive was exclusively caused by the consumption of drugs. It is sufficient for a finding of guilt that the Crown prove that the consumption of drugs contributed to the impairment of the ability to drive. Thus, even if tiredness was one of the reasons for Mr.

Musawi’s impairment, I am satisfied beyond a reasonable doubt that his con​sumption of drugs also contributed to his impairment. [ 37 ] While any single indicia of impairment has many innocent explanations, the totality of the indicia together with Constable Andrici’s evidence and that of the toxicologist leads to only one reasonable inference: that is, that Mr. Musawi’s ability to drive was impaired by reason of drug. I am satisfied of this beyond a reasonable doubt. [ 38 ] Mr. Musawi is found guilty of impaired operation by reason of a drug.. Released: September 28, 2017 Signed: Justice C.A. Nelson