Her Majesty the Queen - v. -, 2015 SKPC 037

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 037 Date: March 4, 2015 Information: 24507788 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Garry Gilbret Appearing: Tyla Olenchuk For the Crown Roseanne Newman, Q.C. For the Accused DECISION I. CARDINAL , J INTRODUCTION [ 1 ] Mr. Gilbret is charged that on June 7, 2013, near Nipawin, Saskatchewan he did operate a motor vehicle while his ability to do so was impaired by a drug contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code . The facts are not seriously in dispute, other than the issue of who was initially driving the vehicle at the time the police first observed it and performed the stop. FACTS

[ 2 ] At approximately 10:45 p.m. on June 7, 2013, Cst. J. Hellegards and Cst. Wilson, Royal Canadian Mounted Police Officers (RCMP) were on duty, in uniform, in a marked police vehicle. They were engaged in general police duties and patrolling the town of Nipawin and area. [ 3 ] They were on Watson Crescent, heading east towards 6 th Street East and stopped at the stop sign where Watson Crescent intersects at a “T” with 6 th Street East. The evidence and Exhibit P-1, a diagram of the area by Cst.

Hellegards, shows that on the south side of Watson Crescent is a row of houses and immediately south of the houses is a field with an approach and a dirt path that runs parallel to the houses. There are high shrubs between the houses and the path to separate the field from the yards of the house. I note that the diagram shows “6 th Street North ” which I accept, as it runs north and south, and I find it is not 6 th Street East. The houses are the last ones before reaching the town limits. [ 4 ] The speed limit on 6 th Street North is 80 km/hr as it is a gravel road coming into town from the country.

Close to Watson Crescent the speed limit is posted as 50 km/hr. [ 5 ] Cst. Wilson, the passenger, pointed to a vehicle that was approaching the RCMP vehicle from the passenger side, driving northbound on 6 th Street North. Both constables noted the vehicle appeared to be travelling slower than normal. Cst. Hellegards said to Cst. Wilson “There’s our impaired for the night”.

He explained that from his experience, slow driving behaviour at that time of night may indicate an impaired driver, but he did not know, nor did he form an opinion at that time, that the driver was impaired. [ 6 ] They waited at the stop sign for the vehicle to pass in front of them, but while waiting for one and one half to two minutes the vehicle did not arrive. Instead it turned westbound before reaching the police officers and drove onto the approach behind the houses. There were no other vehicles on the road. [ 7 ] Cst.

Hellegards testified it was difficult to estimate the speed of the vehicle as it was driving toward them, but he guessed it was travelling approximately 30 to 40 km/hr given the time they were stopped at the stop sign waiting for it. Cst. Wilson did not proffer an estimated speed but testified it was moving very slowly as they had watched it for two minutes. [ 8 ] The officer thought it was odd that the vehicle turned into a field as there was no road at that location. Cst. Hellegards immediately followed the vehicle, a truck, and turned west behind the house.

He was right behind the truck when he activated the emergency lights on the police vehicle, and it stopped very quickly. In cross- examination he agreed that once they saw the vehicle and followed it that they may have lost sight of it for about 3 to 5 seconds as there were houses and bushes between them and the Gilbert vehicle once it pulled into the field. Cst. Wilson testified they lost sight of the vehicle for approximately 1 to 2 seconds behind the houses, but the vehicle only travelled about 60 to 100 yards onto the dirt road before it came to a stop. I prefer her evidence over that of Cst.

Hellegards’ as she was concentrating on the vehicle and was in a better position to see it than was Cst. Hellegards. [ 9 ] Cst. Hellegards approached the driver side of the vehicle while Cst. Wilson approached the passenger side. As they approached, Cst. Wilson noted there was a person sitting behind the steering wheel. The driver later identified himself as Garry Gilbret. No one else was in the vehicle. Cst. Hellegards observed that Mr. Gilbret was slouched over with his neck forward, his eyelids were three quarters closed, nearly shut, and he appeared lazy and droopy. He said Mr.

Gilbret was slouched way over and had an “almost sedated look” about him. [ 10 ] Cst. Hellegards asked for Mr. Gilbret’s driver’s licence and registration. Mr. Gilbret leaned over to the glove box very slowly, “way slower than normal”, and opened the glove box. [ 11 ] At that point, Cst. Wilson, who was observing through the window as she stood outside the passenger side of the truck, yelled out that there were needles in the glove box. Cst. Hellegards asked Mr. Gilbret to step out of the vehicle to get him away from the needles and speak to him further. [ 12 ] As Mr.

Gilbret was moving to get out of the truck, Cst. Hellegards stepped back. Cst. Wilson observed Mr. Gilbret reach slowly to the top of the middle of the dash and pick up a spoon with a white substance on it. She yelled out “there’s coke”, which Cst. Hellegards believed meant cocaine. He looked into the vehicle and saw Mr. Gilbret coming out and saw that he had a spoon in his right

hand with a white powdery substance on it that appeared to be cocaine. [ 13 ] Cst. Hellegards told him he was under arrest for possession of a controlled substance. Mr. Gilbret had his feet on the ground outside of the truck but was still seated inside the vehicle. The officer grabbed him by both wrists, holding them such that they were crossed over each other. Cst. Wilson moved around to them. [ 14 ] Mr. Gilbret stood up. The spoon was still in his hand, and as Cst. Hellegards held his wrists, Mr.

Gilbret bent down very slowly and, extending his tongue out as far as possible, tried to eat the substance on the spoon. The officer shook his hands in an attempt to get him to drop the spoon. While the officers recall the white substance fell on the ground, neither recall if Mr. Gilbret dropped the spoon. [ 15 ] Mr. Gilbret was handcuffed by Cst. Wilson, then removed from the vehicle and searched. Cst. Hellegards testified Cst. Wilson conducted the search of Mr. Gilbret’s person, and Cst. Wilson testified that Cst. Hellegards conducted that search. I find nothing turns on this discrepancy.

Both officers testified it was Cst. Wilson who seized items. She testified two needles, similar to the ones seen in the glove box, were found in Mr. Gilbret’s jacket pocket. [ 16 ] As they walked to the police vehicle, Cst. Hellegards observed Mr. Gilbret’s speech was clear and he could not smell any liquor emanating from his breath. He testified things did not make sense because Mr. Gilbret’s eyes were nearly shut, and he leaned forward with his shoulders curled in and his movements were slow as they walked toward the police vehicle. Mr.

Gilbert did not stumble as he walked but appeared to walk with slow, careful movements. [ 17 ] Cst. Wilson testified that once he was outside of the vehicle being searched, she observed Mr. Gilbret’s eyes were three quarters closed, almost as if he was asleep. He was very relaxed, with a droopy face and very slow motor movements. His hand moved very slowly when he was pointing to a pocket about something. [ 18 ] Mr. Gilbret was placed in the police vehicle at approximately 10:47 or 10:48 pm. At approximately 10:54 p.m., Cst. Hellegards again told Mr.

Gilbret he was under arrest and gave him rights to counsel and police warning. Mr. Gilbret understood and indicated he did not wish to contact a lawyer at that time. [ 19 ] While Cst. Hellegards dealt with Mr. Gilbret, Cst. Wilson searched the truck. Inside the truck on the passenger side she found two needles and an empty, orange pill case in the glove box. Under the front passenger seat was another metal spoon that appeared to be old and dusty with a white powdery crusty residue on it. There were blue tubes or bands, like a tie off, which appeared to be for the purpose of injecting drugs.

Before searching the driver’s side, she had been told by Cst. Hellegards there was a loaded needle under the front seat. She conducted a search of the front driver’s side and under the seat found a hypodermic needle with liquid in it (with the orange cap on top of the needle). She testified that when Cst. Hellegards searched the driver he had placed two or three needles and two empty orange pill cases on the back of the vehicle. She believes there were approximately 7 needles found in total. In describing the pill cases, she explained that they are caplets that are taken apart and the powder removed.

I note that although Cst. Hellegards did not mention anything about finding any needles or empty pill cases, I accept Cst. Wilson’s evidence in this regard. [ 20 ] By this time Cst. Malkowski attended at the scene and provided exhibit bags which Cst. Wilson used to bag the seized items. She also used his knife to obtain some of the white powder from the ground. Only the hypodermic needle with liquid in it was sent to the RCMP laboratory for analysis some time later. Exhibit P-2 is the Certificate of Analyses indicating that the needle contained hydromorphone. [ 21 ] Once Cst.

Hellegards completed CPIC and vehicle information checks on the truck and Mr. Gilbret, he and Cst. Wilson spoke about the contents of the vehicle and impairment by a drug. Cst. Hellegards testified that given all the observations he had made, that it was his opinion that Mr. Gilbret was impaired by a drug. Cst. Wilson testified that from her observations that she was of the same opinion, and advised Cst. Hellegards of this. Cst. Hellegards testified that after he formed his opinion he spoke to Cst. Malkowski to obtain information about contacting the drug recognition expert.

He also called the RCMP dispatch for information and was advised Cst. Schmidt was a drug recognition expert located in Tisdale. He advised Cst. Schmidt of his observations and Cst. Schmidt told him how to proceed. [ 22 ] At 11:35 p.m. Cst. Hellegards, reading from the standard issued card, arrested Mr. Gilbret for impaired operation by a drug

and gave him rights to counsel. Mr Gilbret indicated he understood and said that he thought he should speak to a lawyer now. The officer demanded Mr. Gilbret submit to a drug recognition evaluation and Mr. Gilbret indicated he understood. He also explained to Mr. Gilbret that they would be going to Tisdale as the Drug Recognition Expert would be there. [ 23 ] After concluding the search of the vehicle and seizure of items, Cst. Wilson returned to the police vehicle to secure the seized items. She was advised by Cst. Hellegards that he had arrested Mr.

Gilbret for impaired driving and was waiting for the tow truck. Cst. Wilson turned on the overhead lights, faced the accused and read the secondary warning and police caution. At that point she observed that his face looked as before, with a droopy, tired appearance, his eyes were almost closed and seemed to be watery and bloodshot. In cross-examination, Cst. Wilson agreed she observed the watery bloodshot eyes outside the vehicle and not in the vehicle. She also agreed Mr.

Gilbret’s pupils appeared normal inside the vehicle. [ 24 ] At 11:38 p.m. they left the scene and took the most direct route to the Tisdale RCMP detachment. They arrived at the detachment at 12:13 a.m. the following morning. Cst. Schmidt was there. Mr. Gilbert called a lawyer in private and at 12:28 a.m. was taken before Cst. Schmidt who then took charge of him. [ 25 ] In cross-examination both Cst. Hellegards and Cst. Wilson were asked if they had seen anyone else exit the vehicle. Both indicated they did not and both said there was not enough time for anyone to do so. Cst.

Hellegards testified they did look for another person but did not walk into the bush. When defence counsel suggested to Cst. Wilson there was another person in the vehicle who jumped out, Cst. Wilson disagreed. She testified that even if someone had jumped out they would have observed something as it was a short time involved. She did concede that it does not take long to jump from vehicle nor did she go looking in the bushes for anyone. [ 26 ] The Crown called Cst. Schmidt of the Tisdale RCMP to testify.

He was qualified as an expert witness and, with the consent of Defence counsel, able to give opinion evidence in the area of drug recognition, performing drug recognition evaluations, performing field sobriety tests and determining if an individual’s ability to operate a motor vehicle is impaired by drug or a combination of a drug and alcohol. He briefly outlined his qualifications.

He is a certified drug recognition expert having successfully completed the Drug Training Evaluation and Classification Program accredited through the International Association of Chiefs of Police in August 2011 and since January 2014 he is a qualified instructor for the program. From his description, the training is in-depth and requires a high level of attention and successful evaluations before one is qualified. To maintain his certification as an evaluator and an instructor a certain criterion must be met within strict time lines. He has maintained both qualifications.

His curriculum vitae , certificates and logs for the standard field sobriety tests and drug recognition exams were filed as Exhibit P-3. I found him to be a very careful and thoughtful witness. [ 27 ] The tests he conducted and procedures he followed with Mr. Gilbret are outlined in the Evaluation of Impaired Operation (Drug and Alcohol) Regulations , SOR/2008-196 . [ 28 ] Cst. Schmidt completed the evaluation using the standardized forms provided through his training, notably the Face Sheet (Exhibit P-4) which essentially contains his notes.

He testified that he started the evaluation exam at 12:30 a.m., and finished it at 1:23 a.m. There are 12 steps to an evaluation and he always starts with step 1 and works through them in numerical form, in order, to conclude with step 12. Step 1 is conducting a breath test, but Cst. Schmidt testified that no breath test was done as there was no belief alcohol was involved. [ 29 ] During the initial inquiry with Mr. Gilbret he was able to rule out any medical condition that may affect the results of the tests. With respect to his comments to the officer, counsel for Mr.

Gilbret waived the requirement of a voir dire and admitted his statements were made voluntarily. Questions concerning his last meal and what he ate and drank were answered. The officer noted that when asked what time he thought it was, Mr. Gilbret indicated 12:45 am. Since it was 12:30 am, the officer felt his response was fairly accurate. When asked when he last slept and for how long, Mr. Gilbret indicated 5:15 a.m. for 3.5 hours. In cross-examination the officer testified he believed Mr. Gilbret meant that he went to sleep at 5:15 a.m. and slept 3.5 hours. Mr.

Gilbret advised he had no physical disabilities, diabetes, epilepsy or other issues. He did mention he had an old back injury and was taking hydromorphone for it. The first pulse taken from Mr. Gilbret, at 12:40 a.m., was 84 beats per minute, within the normal range of 60-90 beats. His eyes tracked equally. [ 30 ] Cst. Schmidt observed Mr. Gilbret’s face was flushed with a bit of a red hue, and he was slurring his words. Further, his co- ordination and movements were very slow. When Cst. Schmidt first entered the interview room, Mr. Gilbret had his head on the table, but “snapped up” when the constable walked in.

The officer could see he had been drooling.

[ 31 ] Cst. Schmidt performed the tests involving an evaluation of Mr. Gilbret’s eyes. The horizontal gaze nystagmus, the vertical gaze nystagmus, and the lack of convergence tests involve the officer moving a pen in various fashions in front of the subject and having the subject look at and follow the pen with his eyes, without moving his head. The officer is looking for any involuntary twitching of the eyes and that they track equally and smoothly. The lack of convergence test measures the ability to cross one’s eyes. Deviations can indicate certain drugs may be present. Mr.

Gilbret was able to follow directions and the tests indicated his eyes were functioning normally. However, during the evaluation, Mr. Gilbret was noticeably swaying front to back in a rocking motion as if he was having a hard time maintaining his balance. [ 32 ] Cst. Schmidt next performed the divided attention tests which mimic the multi-tasking of operating a motor vehicle and indicate whether a person is impaired. A person’s score on the tests depends on whether the subject passes or fails the test. He testified it was very important to ensure the subject understands the instructions given.

Demonstrations are also given. During the Modified Romberg Balance Test, Mr. Gilbret had to stand with his arms at his sides, eyes closed, tilt his head back and estimate the passage of 30 seconds (not count it out) and then open his eyes and bring his head forward. A time of plus or minus 5 seconds is considered normal. Mr. Gilbret was timed to have a 29 second response, thus in the normal range. The officer observed that he leaned back about three inches from standing straight up and it appeared that he was going to fall over backward, but he did not.

Otherwise, the officer noted nothing out of the ordinary, such as eye lid tremors or hyper-extension of joints which may indicate the presence of certain types of drugs. [ 33 ] During the Walk and Turn Test, he was told to walk in a heel to toe fashion along a line on the floor for 9 steps and then turn in a certain fashion using a foot pivot and walk 9 steps. One must keep their arms at their sides at all times. Some allowance is made such that a one half inch gap is allowed between the heel and toe; and ones arms cannot be more than six inches from the body.

The subject is told to watch their feet and count out loud. In the instructional phase Mr. Gilbret lost his balance once. Once told to begin, he missed touching his heel to his toe on the first nine steps, (between steps 2 and 3; steps 3 and 4; steps 4 and 5 and steps 8 and 9)and had his arms raised the entire time of the first nine steps. Between steps 4 and 5, he lost his balance, and almost fell but used his arm to regain his balance. Between steps 8 and 9 he lost his balance but stayed on his feet by catching the wall. Rather than pivot, he shuffled both feet to turn around.

He then took 10 steps instead of the required 9 and had his arms raised the entire time. Between steps 2 and 3 and steps 4 and 5 he missed touching heel to toe. A perfect score on this test is zero out of eight, and one fails if their score is 2 or higher. This test has been validated. Mr. Gilbret scored five out of eight, failing the test. [ 34 ] During the One Leg Stand Test, both legs are tested. The person is instructed to put his arms at his side, legs straight, and raise his right foot six inches off the ground with his toes pointed out.

The person is told to hold that position, look at their foot and count out loud to 30 until told to stop. The officer then times for 30 seconds. The test starts with the person standing on their left leg and then their right. While standing on his left leg, Mr. Gilbret counted and on his count of 12 he was swaying to the point of losing his balance so extended his arms outward more than six inches from his body. He also skipped number 23. His foot was only about one inch off the ground. He scored two out of four with a fail being two or higher.

With respect to standing on his right leg, the full instructions and demonstration are given again. Mr. Gilbret put his foot down twice on his count 13 and 14, and used his arms for balance as he was swaying. He scored 3 out of 4 on this test. The officer observed Mr. Gilbret was swaying quite a bit during both tests. This test has also been validated. Mr. Gilbret failed this test on each leg. [ 35 ] To perform the Finger to Nose Test, Mr.

Gilbret was given instructions to stand with his heels and toes together, and when told to do so, close his eyes, tilt his head and touch the tip of his finger to the tip of his nose and immediately put his hand down. The officer observes body tone, eyelid tremors, and overall balance. A particular sequence is used, starting with the left hand and alternating to the other hand. Contrary to the instructions, he used the pad of his finger at all times, rather than touching his nose with the tip of his finger.

He was using the palm of his hand as a guide to bring his finger to his face, on two occasions he missed touching the tip of his nose entirely. He had to be told to put his finger down after the first touch, and every time after he delayed several seconds before putting his hand back down at his side. Although he did not observe any eyelid tremors, the officer noted Mr. Gilbret was very relaxed throughout. This test is not scored as it has not been validated, but its performance gives the evaluator further evidence as to impairment. [ 36 ] Based upon his observations and tests thus far, Cst.

Schmidt believed that Mr. Gilbret was impaired. Had he believed otherwise, Cst. Schmidt testified he would not have continued with the evaluation. [ 37 ] During the evaluation, Mr.Gilbret was observed to be “on the nod” at various times. This is something that is uniquely used in identifying narcotics. As described by Cst. Schmidt, it is like the person is almost melting in their chair. It may be mistaken as being passed out, but the person’s mind is aware and they know what is going on but the body is so relaxed that a simple touch on the shoulder

will bring them back to interacting. [ 38 ] Mr. Gilbret’s pupils were measured under three types of light conditions to assess if they are below normal range, in the normal range or above the normal range. In room light, his pupils were 2 mm in diameter, which was below the normal range, being 2.5 to 5 mm. In the complete near total darkness test he scored 7mm, normal being in the range of 5.0 to 8.5 mm. In direct light his pupils were at 2.0 mm, normal being between 2 and 4.5 mm. There was nothing abnormal about his rebound dilation going from a dark room into the light. Cst.

Schmidt testified he had to repeatedly tell Mr. Gilbret to keep his eyes open as his eyelids were very heavy. A nasal examination and a mouth examination were done but nothing noted. [ 39 ] Cst. Schmidt testified the light condition tests indicted Mr. Gilbret’s pupils were constricted. In his experience and opinion, only a narcotic analgesic will cause pupils to constrict. This helps him to narrow down the drug category as do other observations. He also stated that reaction to light should be fairly quick, within one second, but Mr.

Gilbret’s reaction to light was slow, which can also be an indicator of a drug category. He does not do the evaluation believing only one drug is used as people can use multiple drugs at a time. [ 40 ] Once the light condition tests are completed, clinical indicators are taken again. Mr. Gilbret’s pulse was taken at 12:57 a.m., and was 104 beats per minute, which is above the normal range of 60 to 90 beats per minute. This could be a result of anxiety, or having just completed tests, or an indicator that drugs are causing a shift in his heart rate.

Blood pressure was 150 over 90, normal is 120 to 140 over 70 to 90. Thus his blood pressure was above normal, and while certain drugs can increase one’s blood pressure, Mr. Gilbret did tell the officer he had high blood pressure. His body temperature was taken orally, under the tongue and was 36.9 degrees Celsius, which is in the normal range of 37 degrees Celsius (plus or minus 0.5). [ 41 ] During the check of muscle tone, Mr. Gilbret’s muscle tone was found to be flaccid. He also checked for injection marks and noted Mr. Gilbret had quite a few old track marks which were noticeable.

Recent injections will usually show as a raised bump or scab, but none were noted. [ 42 ] Cst. Schmidt took a third pulse but neglected to write it down at the time and thus left it blank. The third pulse would not have changed his opinion. [ 43 ] The final step is the interview. Cst. Schmidt asks the person further questions, although it is not to determine the type of drug the person is on, as he testified that he already knew it was a narcotic analgesic. He can not determine anything further than the category.

During the conversation, Mr.Gilbret told him he had injected hydromorphone three times that day: 9 mg at 7:30 a.m., 9 mg at 2:30 p.m. and 7 mg at 8:00 p.m. that night. [ 44 ] Cst. Schmidt testified he started the evaluation at 12:30 a.m. and completed it at 1:23 a.m., which is a time span of 53 minutes. At the conclusion of his interaction with Mr. Gilbret, Cst. Schmidt testified that he had reasonable grounds to believe that Mr.

Gilbret was under the influence of a narcotic analgesic and that his ability to operate a motor vehicle was impaired by a drug or a combination of alcohol and a drug, and demanded that Mr.Gilbret provide a sample of his urine for analysis. The sample was provided and submitted for analysis. [ 45 ] In cross- examination the officer agreed he did not have any trouble getting answers from Mr. Gilbret. With respect to droopy eyes, the officer indicated that while some people do have droopy eyes, what he observed with respect to Mr. Gilbret’s eyes was different.

They appeared heavy as if weights were on them and he was trying to keep them open. [ 46 ] The resulting urine sample was analysed by Lorianne Campbell, Forensic Specialist, in the Toxicology Services

Section of the RCMP Forensic Science and Identification Services Laboratory. Her curriculum vitae was filed as Exhibit P-5. Her report was filed with the Court, being Exhibit P-6. By agreement, Ms. Campbell was qualified as an expert witness able to provide opinion evidence in the field of toxicology and the effects of drugs and alcohol on the human body. [ 47 ] Ms. Campbell testified the sample was analysed by different methods to determine what drugs if any were in the sample. The screening is broad based and not directed at simply confirming the drug evaluator’s opinion as to the drug involved.

The screening detected one drug: hydromorphone, which is also known by its more common trade name of Dilaudid.

[ 48 ] As noted in her report, and confirmed in her viva voce evidence, hydromorphone is in the category of drugs in the DRE program of analgesic narcotics. It is an opioid (ie; morphine like) analgesic drug prescribed for the management of moderate to severe pain. The principle actions of therapeutic doses of this drug are pain relief and sedation. With a proper dosage for the purpose prescribed, the person should be able to function normally. But if the dose is not right for the pain level or there is no pain to address, the more impairing effects of the drug begin to manifest.

It depresses the central nervous system, and slows the body down, lowers pulse, and body temperature and thus it is capable of impairing one’s ability to operate a motor vehicle safely. [ 49 ] Constricted pupils are a hallmark of this type of drug. Because of its sedating affects, it is capable of impairing a person’s ability to operate a motor vehicle safely. It causes sleepiness or drowsiness, and often causes a state known as “on the nod” where the person appears to be sleeping but can carry on a conversation with another as if they were more awake. In explaining it further, Ms.

Campbell testified that it is a condition usually associated with a narcotic analgesic. It is different than a person who is intoxicated by alcohol. The person could be sitting in a chair, eyes closed and head slumped, but if you ask them questions they will respond even though they do not necessarily appear to be awake. This is distinguishable from a person who may be falling asleep, as that person will seem groggy and may not be awoken. [ 50 ] The method of ingestion is usually prescribed by a physician, usually by tablets or gelatin capsules that are taken orally.

A liquid form can be prescribed, but she believed such forms were used more by ambulance attendants or doctors. However, it is recommended the capsules not be chewed nor diluted and injected as such can be fatal as the person may get a higher dose than they were expecting. [ 51 ] Mr.Gilbret did not testify. His friend, Louis Moreau testified that it was he who was driving the vehicle initially. He had received a call from Mr. Gilbret, who was in Codette, to pick him up and he did so.

As he was driving northbound on 6 th Street he noticed the police vehicle, and, believing there was a warrant out for his arrest, turned onto the approach and jumped out of the now slow moving truck and laid in the ditch. He testified he heard the police talking but he said nothing and did not leave the ditch, which had a steep side along the approach, until the police had left. I find his evidence fanciful and not believable. I accept Cst. Wilson’s evidence that they lost sight of the vehicle for only 1 or 2 seconds and that she would have seen someone jumping from the vehicle.

Further, the vehicle was travelling at a much slower rate of speed than the posted limit of 80 km/hr. This slow rate of speed of the vehicle corresponds to the slow rate of speed Mr. Gilbret displayed in all of his movements observed by the police officers. Even if I believed his evidence, it is not capable of raising a reasonable doubt as to whether Mr. Gilbert was operating the vehicle at the time the police stopped it. It matters not that Mr. Moreau was driving earlier. ISSUE S [ 52 ] Two issues arise:

a) Did Cst. Hellegards have reasonable and probable grounds to make the demand?

b) Has the Crown proven beyond a reasonable doubt that Mr. Gilbret’s ability to operate a motor vehicle was impaired by a drug at the time he was operating the motor vehicle? ANALYSIS [ 53 ] I have no hesitation in finding that Cst. Hellegards had reasonable and probable grounds to demand Mr. Gilbret to submit to an evaluation conducted by an evaluating officer pursuant to section 254(3.1) of the Criminal Code . The grounds are supported on both a subjective and objective analysis.

He observed the vehicle some distance away, on a road posted with a posted speed limit of 80km/hr, yet the vehicle was travelling slowly and then, for no apparent reason, turned off onto the dirt trail before reaching the police vehicle. Mr. Gilbret’s slow movements both in and out of the vehicle, his attempt to eat the powder off the spoon, heavy eyelids and sleepy look

about him, in the absence of a smell of alcohol all lead the officer to believe Mr. Gilbret was impaired by a drug. As such he wasproperly given the demand to submit to the evaluation conducted by an evaluating officer to determine if his ability to operate a motorvehicle was impaired by a drug. [54] Given the testimony on behalf of the accused by Mr. Moreau, I am mindful of the test outlined by the Supreme Court ofCanada in R v WD (1991), (SCC), 63 CCC (3d) 397. In this case, I do not believe the evidence of the accused nor doeshis evidence leave me with a reasonable doubt.

Further, on all of the evidence I do accept, I am convinced beyond a reasonable doubt ofthe guilt of the accused. [55] The test for impairment is that as stated in the Supreme Court of Canada case of R v Stellato, [1994] 2 SCR 418, which is that“any degree of impairment from slight to great, will make out the offence”. [56] In R v Landes, (SK KB), [1997] SJ No 785, Justice Klebuc (as he then was) stated at paragraph 16: An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences.

Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability toperformphysical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [57] The Court went on to state further at paragraph 17: In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. ... [58] These comments apply equally to cases of impaired operation of a motor vehicle by a drug as they do to impaired operation ofa motor vehicle by alcohol. [59] As noted in R v Polturak, 1988 ABCA 306 , there is nothing unusual with lay people and police officers testifying asto their experience in narcotics control and observations of the accused’s driving pattern as well as his behaviour post driving.

Furtherthere is nothing untoward with police officers and lay people providing their opinion to the Court as to impairment of one’s ability tooperate a motor vehicle. The Alberta Court of Appeal stated at paragraph 5: [5] We all agree that the acceptability of this type of evidence of a non-expert is within the rationale of the decision of the SupremeCourt of Canada in Graat v. The Queen (1983), (SCC), 2 C.C.C. (3d) 365. That decision should, in our view, not beconfined only to situations involving impairment by alcohol as suggested by counsel for the Appellant.

In that decision Dickson C.J.C.approved the statement of Howland C.J., Ontario Court of Appeal, in (1983), (ON CA), 55 C.C.C. (2d) 429 at page 442-3 wherein he pointed out that “to testify that a person is impaired is really tantamount to saying ‘I don’t think that he should have beendriving’”. And that is a subject “about which most people should be able to express an opinion from their ordinary day-to-day experienceof life”. [60] There is no requirement that the Crown link the toxicology report to the time of driving by expert evidence. The informationcharging Mr.

Gilbret does not particularize the type of drug the Crown alleges was involved, nor is the Crown required to prove morethan the ability of the accused to operate a motor vehicle was impaired by a drug. Unlike the case of R v Perillat, 2012 SKPC 135, thereis ample evidence that Mr. Gilbret’s ability to operate a motor vehicle was impaired by a drug.

[ 61 ] Both Cst.Wilson and Cst. Helegards describe Mr. Gilbret’s movements at the scene as very slow. His eyes were three quarters closed and he appeared to have difficulty keeping his eyes open. Both described how he picked up the spoon from the dash of the vehicle and, in a very slow fashion moved the spoon toward his mouth, bent over and stuck his tongue out in an attempt to lick the white powder off the spoon. I do not find that these slow movements were a result of the police telling Mr. Gilbret to move slowly but were an indication that Mr.

Gilbret was under the influence of a drug. [ 62 ] The evidence of Cst. Schmidt was that Mr. Gilbret was impaired by a drug, specifically a narcotic analgesic, due to his performance during the Drug Recognition Evaluation tests. The testing indicates that Mr. Gilbret could not do simple things such as touch the tip of his finger to the end of his nose, or walk in a line heel to toe as instructed. He continued to present as droopy, nearly asleep with slow movements. I find that Mr. Gilbret was “on the nod” as described by Cst. Schmidt and Ms.

Campbell and was not merely tired as suggested by his counsel. [ 63 ] Although the drug recognition tests are not related back to the time of driving, they occurred within a short time after the accused had been arrested. Cst. Schmidt explained that these tests are designed to test one’s ability to multi-task. It is clear the drug recognition tests are about assessing a person’s motor skills, their coordination and their reaction time. [ 64 ] The toxicology report and evidence of Ms. Campbell indicate that hydromorphone was detected in Mr. Gilbret’s body. The presence of drugs, combined with Ms.

Campbell’s evidence as to the effect of hydromorphone on the human body, supports the observations and opinions of Cst. Hellegards and Cst. Schmidt’s that Mr. Gilbret’s ability to operate a motor vehicle was impaired by a drug. [ 65 ] On all of the evidence I do accept, I find that at the time of operating the motor vehicle, Mr. Gilbert’s ability to operate a motor vehicle was impaired by a drug and he is guilty as charged. I. Cardinal, J