Her Majesty the Queen - v. -, 2012 SKPC 135

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 135 Date: August 21, 2012 Information: 46739069 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sherry Wallin Perillat Appearing: John Knox For the Crown Berkeley Buchko For the Accused JUDGMENT D.E. LABACH , J [ 1 ] On June 19, 2011, Constable Clayton Schaefer, a nine year member of the Saskatoon Police Service, was working at a police check stop in the 3100 block of 33 rd Street West in the City of Saskatoon.

The check stop was part of a police initiative targeting impaired drivers called Operation Overdrive. [ 2 ] The accused, Sherry Perillat, was driving a red Pontiac down 33 rd Street West that evening. She was alone in her vehicle. Despite the fact that she was driving appropriately in her proper lane of travel, a police officer directed her to pull into the check stop.

She slowed her vehicle down and stopped as requested. At 12:05 a.m., Constable Schaefer walked over to the accused’s vehicle to deal with her. [ 3 ] As he approached the accused’s vehicle, he noticed that the driver’s window was partially down. He asked the accused to put her window all the way down so he could speak to her. When she did this, he smelled an overwhelming odour of marijuana coming from the vehicle. He asked the accused if she had been drinking to which she replied “no”.

He suspected that she may be under the influence of marijuana and he wanted to talk to her further to determine where the odour was coming from. As a result, he asked the accused to pull her vehicle into a parking lot adjacent to the check stop. [ 4 ] The accused had no problems moving her vehicle out of the line of stopped vehicles and into the parking lot nor did she have any problems providing Constable Schaefer with her valid driver’s license. Once again he asked her if she had been drinking and again she said “no”. He then asked her if she had anything to smoke such as marijuana.

Initially she said “no” however shortly thereafter she admitted to having smoked marijuana some two and one-half hours earlier. She directed the officer’s attention to a roach on the centre console of her vehicle. [ 5 ] Constable Schaefer was a certified Drug Recognition Evaluator. As part of this certification process, he was also certified to perform field sobriety tests.

Based on what the accused had told him and what he observed, he decided to perform some field sobriety tests on her to see if there was some evidence to proceed with a charge of impaired driving. [ 6 ] He asked the accused to step out of her vehicle. She had no problems getting out of her vehicle but as she stood by the back fender, she had her hand on her vehicle. He asked her to move away from her vehicle and she complied. Constable Schaefer conducted a Horizontal Gaze Nystagmus Test, a Lack of Convergence Test and a Romberg Balance Test.

In his view, the results of these three tests were indicative of the accused having used marijuana. He also noted a reddening of the accused’s conjunctiva, that is the white parts of the eyes. This too was an indicator to him that the accused had consumed marijuana. Finally, the officer had her perform a Walk and Turn Test.

During this test, the accused had her hands out for balance, missed the heel/toe a number of times and did not turn as instructed. [ 7 ] Based on the results of these tests, his observations of the accused’s conjunctiva, the smell of marijuana coming from the accused’s vehicle, the roach in the accused’s vehicle and her admission of having earlier smoked marijuana, Constable Schaefer felt he had enough grounds to arrest the accused for impaired driving. He read the accused her rights to counsel, a Standardized Field Sobriety Test Demand, and a Drug Recognition Evaluation Demand.

She responded appropriately when asked if she understood the demands and if she wanted to call a lawyer. She was placed in handcuffs and had no problems walking or getting into the police cruiser. [ 8 ] The accused was taken to the Saskatoon City Police Station. On the way to the station she was sombre and cried a little. She also expressed a concern for her children at home. Once at the station, she spoke with Legal Aid and was allowed to call her sister to speak to her about taking care of her children. [ 9 ] After these phone calls were made, Constable Schaefer began the Drug Recognition Evaluation.

He asked the accused if she was under the care of a doctor, if she was suffering from any injuries or whether she was on any medications. She advised that she was not. He asked her what she had been doing that day, when she ate and slept and, according to him, her answers were normal, albeit her speech was a little slow. He then had her provide a breath sample into an Intoxilyzer and the result was a zero reading. He noted that her muscle tone was normal and she did not have any injection marks on her arms. He then proceeded to perform the following on the accused: (

a) Horizontal Gaze Nystagmus Test; (

b) Lack of Convergence Test; (

c) Pulse check; (

d) Walk and Turn Test; (

e) One Leg Stand Test; (

f) Romberg Balance Test; (

g) Another Pulse Check;

(

h) Blood Pressure Test; (

i) Temperature Check; (

j) Pupilometer Eye Test; (

k) Finger to Nose Test; and (

l) Urine Sample. [ 10 ] Of these tests, the accused’s results in both Pulse Checks, the Blood Pressure Test and the Pupilometer Eye Test were within the normal range. Her temperature was also unremarkable. Normal body temperature is 37 degrees Celsius and the accused’s temperature was 36.4 degrees Celsius. [ 11 ] Her results in the Horizontal Gaze Nystagmus Test and the Lack of Convergence Test were indicative of someone who had used marijuana. A laboratory analysis on her urine confirmed that it contained tetrahydrocannabinol (THC), the active ingredient in marijuana.

However, the author of the report was not able to say in what percentages the THC was or how long it had been in the accused’s system, only that it was detected in the accused’s urine. [ 12 ] On the Walk and Turn Test, the accused was supposed to walk a line, heel to toe and then turn around and walk back, heel to toe. As she walked a line away from the officer not all of her steps were heel to toe and she had her arms out for balance.

She did not turn as instructed and on the way back to the officer none of her steps were heel to toe and she had her arms out for balance. [ 13 ] The One Leg Stand Test involved the accused standing on one leg with her other foot off the ground and eight inches in front of her. She was instructed to do this on one foot for thirty seconds and then switch feet to do it on the other foot for thirty seconds.

On both occasions, the accused had her arms out for balance and swayed slightly. [ 14 ] In terms of the Romberg Balance Test, the accused had to stand with her feet together, close her eyes and tilt her head back. Once she felt that thirty seconds had elapsed she was to lift her head. In this case, the officer noted that the accused swayed a bit, had eyelid tremors and lifted her head after thirty-six seconds. [ 15 ] Finally, the officer had the accused perform a Finger to Nose Test. She was told to bring her hand out from her body and touch her finger to her nose.

She was only successful in touching her nose on one of six attempts. On the other five attempts, she touched her face right under her nose. [ 16 ] Constable Schaefer finished his Drug Recognition Evaluation of the accused at 1:45 am. Based on the results of the evaluation and the observations he made at the roadside, he concluded that the accused had used marijuana and that her ability to operate a motor vehicle was impaired by marijuana. As a result, he charged her with operating a motor vehicle while impaired by a drug contrary to section 253(1) (

a) of the Criminal Code . [ 17 ] Counsel raised the following issues:

a) Did Constable Schaefer arbitrarily detain the accused in breach of her

section 9 Charter right?

b) If the accused ’s

section 9 Charter right was violated, should the evidence obtained by Constable Schaefer be excluded pursuant section 24(2) of the Charter?

c) Has the Crown proven beyond a reasonable doubt that the accused ’s ability to operate a motor vehicle was impaired by a drug?

[ 18 ] After thorough consideration of Crown and Defence arguments, I find that I do not have to deal with issues (

a) and (

b) and I decline to do so. I say this because even if I agree with the Crown and dismiss the Charter applications or either of them, I am not satisfied that the Crown has proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired. [ 19 ] On July 2nd, 2008,

section 254 of the Criminal Code was amended to provide police with a new regime for detecting and investigating drug impaired driving. Section 254(2) (

a) of the Criminal Code contains the first phase of testing for drug impaired driving. It states that where a roadside peace officer has reasonable suspicion that a driver has alcohol or a drug in their body and has operated a motor vehicle in the preceding three hours, the officer, by demand, may require the driver to perform physical co-ordination tests to determine whether further tests for drug or alcohol must be undertaken. [ 20 ] Section 254(3.1) contains the second phase of testing for drug impaired driving which will generally follow if a suspect fails the physical co-ordination tests in the first phase.

In such a case, a peace officer may then demand that the driver submit to a Drug Recognition Evaluation conducted by an officer who is a certified Drug Recognition Expert accredited by the International Association of Chiefs of Police. [ 21 ] Section 254(3.3) contains the final phase of testing for drug impaired driving.

If the Drug Recognition Expert, upon completion of the Drug Recognition Evaluation, has reasonable grounds to believe that the driver’s ability to operate a vehicle is impaired by a drug or a combination of alcohol and a drug, the officer may demand that the driver provide a sample of their saliva, urine or blood for analysis. [ 22 ] Regulation SOR/2008-196 also came into force on July 2nd, 2008.

It sets out the procedures that a properly qualified Drug Recognition Evaluator is to use in order to determine if there are reasonable grounds to believe that an accused’s ability to operate a motor vehicle was impaired by a particular drug. [ 23 ] Having reviewed these new sections and regulations in the Criminal Code and having considered Constable Schaefer’s testimony, it strikes me that the main purpose of these sections is to determine if a suspect has drugs in their system, and if so, what particular drug or what particular category of drug it may be.

In this case, Constable Schaefer’s observations and testing led him to conclude that the accused had a drug in her system and that it was marijuana. This conclusion was corroborated by the laboratory analysis of the accused’s urine and the accused’s own admission to Constable Schaefer at the roadside. [ 24 ] But at its best, Constable Schaefer’s evidence convinces me that the accused had used marijuana at some point prior to her being stopped at the police check stop that evening and that she still had some of it in her system at the time he did his Drug Recognition Evaluation on her at the police station.

What his evidence does not convince me of is that at the time she was driving, her ability to operate a motor vehicle was impaired by marijuana. [ 25 ] The problem with the evidence before me is best summed up in the decision of Judge Fuerth of the Ontario Court of Justice in R. v. Jansen , [2010] O.J. No. 959 . In that case, the accused was acquitted of driving while impaired by drugs because the evidence did not link the impairment to the time of driving.

At paragraph 61, Judge Fuerth said: The hurdle for the Crown in these cases is to relate back the findings of the evaluation, and the subsequent chemical analysis, to the time of the driving. In alcohol impairment cases, we frequently see the use of the breath tests mandated by the Code for which there are the statutory presumptions of accuracy and identity. The enactment of these presumptions by Parliament was based upon careful consideration of the science of breath alcohol testing, and of absorption and elimination rates as it relates to alcohol.

In the case of drugs, the Crown does not have the benefit of the statutory presumptions, and must by cogent evidence relate back the findings of its expert evidence, and the consequent analysis, to the time of driving. In this case, the delay between the time of driving to the time of the evaluation and the urine sample being taken was 2 hours or greater. [ 26 ] Constable Schaefer’s evidence does not explain the accused’s test results and how they relate to the accused’s ability to drive a motor vehicle or how they relate back to the time of driving.

Without testimony on these points, I am left with many questions. For example, what signs of impairment would one expect to see in someone who has been using marijuana? How long after using marijuana would you expect to see these signs and how long would they last? Can the results of Drug Recognition Evaluation tests taken over one

and one-half hours after the time of driving be reliably related back to the time the accused pulled into the check stop? Was the accused’sperformance in some of the tests just as consistent with someone who has poor balance or poor co-ordination as it was with someone whohad used marijuana? [27] The Ontario Court of Appeal in R. v. Stellato (1993), (ON CA), 18 C.R. (4th) 127 (affirmed by the Supreme Court of Canada at (1994) (SCC), 31 C.R. (4th) 60) set out the legal test to establish impaired driving. The test is thesame whether the impairment is alleged to be by alcohol or a drug or both.

A trial judge must be satisfied beyond a reasonable doubt thatthe accused’s ability to operate a motor vehicle is impaired by alcohol or a drug.

If the evidence establishes any degree of impairmentfrom slight to great, the offence is made out. [28] In this case, the observations made by Constable Schaefer that led him to believe that the accused’s ability to operate a motorvehicle was impaired by marijuana were the strong smell of marijuana when the accused rolled down her window, her admission that shehad smoked marijuana some two and one-half hours prior to the time he was dealing with her, the roach she directed him to on the centreconsole of her vehicle, the reddening of the whites of her eyes, the fact that she had her hand on her vehicle, apparently for support, whenshe was standing by the back of her vehicle, the results of the Horizontal Gaze Nystagmus Test, the Lack of Convergence Test, theRomberg Balance Test, the Walk and Turn Test, the One Leg Stand Test and the Finger to Nose Test. [29] But Constable Schaefer did not observe any problems with the accused’s driving as she approached the check stop, when shewas directed into the check stop or when he instructed her to drive out of the line of cars in the check stop and park in the adjacentparking lot.

She had no problems understanding the officer or answering his questions. She was able to provide him with her licensewithout problem. He did not notice any slurring of speech. She had no difficulty following the officer’s instructions or getting out of hervehicle. When he asked her to take her hand off her vehicle and step away from it she did so without problem. She did not have to holdonto anyone or anything for balance and after he handcuffed her, she had no problems walking to his police car and getting into the backseat. By all accounts she was polite and cooperative with the officer.

All of these observations occurred at the roadside and withinminutes of the accused’s driving. [30] The results of the accused’s Pulse Checks, her Blood Pressure Test and the Pupilometer Eye Test were all normal. Hertemperature was .6 degrees away from normal. A lot of the observations made by Constable Schaefer simply confirmed that the accusedhad used marijuana. The results of the Horizontal Gaze Nystagmus Test and the Lack of Convergence Test did not have anything to dowith the accused’s ability to drive a motor vehicle. They, too, indicated that the accused had used marijuana.

These observations andtests do not assist me in determining if her consumption of marijuana was such that her ability to drive a motor vehicle was impaired atthe time she was observed driving. [31] Constable Schaefer’s evidence of the accused’s performance on the different tests he administered to her lacked a degree ofspecificity necessary to allow me to fully assess the evidence. For example he had her do the Romberg Balance Test twice, once at theroadside and then again back at the police station. At the roadside he said she was doing small circles, had eyelid tremors and pulled herhead up after 15 seconds.

When doing the test at the police station, he said she swayed, had eyelid tremors and lifted her head up after36 seconds. I find myself wondering if the differences in these two tests is significant and how these results relate to whether or not theaccused was impaired at the time she was driving. [32] The accused also did the Walk and Turn Test at the roadside and back at the detachment. At the roadside she had her handsout for balance and missed a couple of heel to toe steps as she walked away from the officer.

She pivoted and turned instead of turningas he had demonstrated and she missed all of her heel to toe steps on the way back to him. At the police station, her performance wasexactly the same as at the roadside. Despite having her hands out and missing some heel to toe steps, the accused walked a straight lineaway from the officer and back to him on both occasions. Again, I find myself asking whether this result is indicative of impairmentand if so, how? [33] When doing the One Leg Stand Test, the accused had her arms out for balance and swayed slightly.

However, the evidence isnot clear as to whether the accused had a slight sway the entire time she was balancing on one foot or the other or whether she onlyswayed for a portion of that time. In any event, I would have appreciated some evidence as to how these observations related to theaccused’s ability to drive a motor vehicle. [34] When I consider the accused’s results on the Finger to Nose Test, I wonder what the significance of the test was and whetherthe fact that the accused was only able to touch her nose one out of six times has any correlation to whether her ability to drive was

impaired. [ 35 ] Finally, it is significant that the accused was stopped at 12:05 a.m. but the Drug Recognition Evaluation was not completed until 1:45 a.m. There is no evidence correlating the test results back to the time of driving. [ 36 ] When I consider the totality of the evidence, particularly the lack of any evidence of erratic or inappropriate driving and the lack of signs of impairment at the roadside, I am left with a reasonable doubt as to whether the Crown has proven the charge.

My conclusion in this regard is strengthened by the lack of specificity of the evidence in relation to the evaluation tests, the lack of evidence explaining the results of the tests and the non-existence of evidence tying the results back to the time of driving. [ 37 ] Given that the evidence leaves me with a reasonable doubt as to whether the accused was operating a motor vehicle while her ability to do so was impaired by a drug, I acquit the accused of the charge pursuant to section 253(1) (

a) of the Criminal Code on Information 46739069. __________________ D.E. Labach, J