2011 MBPC 12, 2011 MBPC 12

Date: 20110304 CITE# 2011 MBPC 12 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Libby Standil, ) for the Crown - and - ) ) Cameron Brown , ) Ian Garber , Accused ) for the Accused ) ) Judgment delivered: The 4 th day of ) March, 2011, in the City of Winnipeg, ) in Manitoba R. L. Pollack P.J. [ 1 ] In this

summary conviction proceeding Cameron Brown (“Defendant”) stands charged with the Criminal Code offence of driving while his ability to do so was impaired by alcohol or a drug and under The Highway Traffic Act for failing to remain at the scene of an accident and exchanging particulars.

The driving: [ 2 ] The observations of the manner in which Defendant operated his vehicle on July 14, 2008 were made by a woman with whose vehicle Defendant collided (“the complainant”) and another woman who came to the assistance of the complainant by following Defendant and remaining with the complainant until police arrived at the location where he parked his vehicle (“the eye-witness”). [ 3 ] It was about 10:00 a.m. when Defendant’s vehicle was noticed. The first observation was that Defendant did not proceed when a traffic light at which he was stopped changed from red to green.

Given all of the conditions at the time, the fact that the vehicle did not move through the green light right away was out of the ordinary. [ 4 ] Shortly after driving through the green light, however, Defendant passed the complainant’s van on her right side. In doing so, he caused damage to half the length of that van by scraping its side with the left side of his large SUV. Once the vehicles were separated and the collision was over, Defendant continued for a short distance and entered a back lane.

From the lane he entered a lot and parked in a space. [ 5 ] The next aspect of Defendant’s conduct was that, upon being confronted while still in his van, he told the complainant that “You’re the one who hit me”. The eye-witness thought that Defendant was conducting himself in an aggressive manner and called 911 for assistance. He told her to hang up and to “mind your own business” as she was calling. The complainant, at the same time, felt threatened by the way in which Defendant was occupying her personal space when he alighted. The police: [ 6 ] It did not take long for the police to arrive.

That day Constable Janz was being field trained by Constable Waters, a six-year officer. His observations include these: staggering and having trouble with balance; having trouble standing in one place; pupils were small; appearing not to be focusing on the officer. When Constable Waters asked Defendant what happened he replied “I don’t know” and “I don’t know what’s happening”.

He described Defendant’s speech as slightly slurring his words and talking slowly and deliberately. [ 7 ] These events took place two weeks after the proclamation of regulations prescribing the conduct of police drug recognition evaluations. Constable Waters contacted his office to determine the availability of an evaluating officer and was instructed to bring Defendant to the Public Safety Building.

Although nothing turns on its wording in this case, the officers received instructions on how to make a proper demand for an evaluation along the way. [ 8 ] Upon detaining Defendant, the officers found a properly labelled prescription bottle of oxycodone specifying nine twenty- milligram pills but it contained only six pills. The prescription was dated that same day and carried a caution concerning being careful

operating machinery or a vehicle. The instructions were to take three pills three times a day. They also found two empty prescriptionbottles. [9] Police adhered to the requirements of a proper demand for physical coordination testing as well as a demand for a urinesample to determine whether Defendant had a drug in his body. The observations of the evaluating officer justified a urine sampledemand and Defendant was compliant.

The prosecutor did not tender the evidence of the evaluating officer for any purpose other thanto demonstrate that the urine sample demand was a proper one. [10] At the pre-trial conference with Elliott P.J. defence counsel put the prosecutor on notice that continuity of the urine sample wasan issue. At trial counsel cross-examined the handlers of the sample and argued that the prosecution had failed to prove that the sampleanalyzed was that of Defendant. This argument rested largely upon a difference in description of the vessel in which the urine wasfound.

Whether it was a test tube, a container or a dish, I am satisfied that, on each occasion that the sample was handled, it was handledin accordance with ordinary laboratory protocol and was easily identified as the sample obtained from Defendant by the police. The expert: [11] Maria Reid (“Reid”) is an RCMP forensic specialist.

On September 29, 2010 I ruled that she was qualified to provide opinionevidence about the pharmacological and toxicological effects of a particular drug or class of drugs on the ability of a person to operate amotor vehicle and whether evidence of observed behaviour of a person is consistent with the known effects of a particular drug or classof drugs. [12] Reid reported that, on August 27, 2008, an R.C.M.P. laboratory analysis of the urine sample indicated the presence of thesedrugs: • oxycodone – a narcotic analgesic drug; • oxymorphone – known to be a break down product from oxycodone; • diazepam – a central nervous system depressant used to treat anxiety; • nordizepam – a break down product of diazepam; • acetaminophen – a non-narcotic analgesic; • ephedrine or pseudoephedrine – a mild central nervous system stimulant used as a decongestant; but she provided no evidence of the concentration of any of the drugs at the time of analysis.

It follows that there is no evidence of theconcentration of any of the drugs at the time Defendant was driving. Reid explained that measuring the concentration of a drug in urineis of no use in determining the concentration of that drug in blood, a concentration that is familiar forensic evidence when it relates toalcohol. [13] Reid testified as to how routine divided-attention driving tasks are affected by oxycodone and diazepam. The narcotic analgesicoxycodone affects hand and eye coordination, logic and reasoning and overall ability to concentrate.

The central nervous systemdepressant diazepam causes a loss of muscle coordination and creates problems with memory. Driving involves a consistent multitude ofdecisions and diazepam inhibits decision-making. [14] The prosecutor listed observations of Defendant in evidence: slurred speech, slow and deliberate speaking, staggering and lossof balance, extremely small pupils; then she asked Reid for her opinion whether they were consistent with the known effects of a drug orclass of drug.

Reid answered: “Constricted pupils is most indicative of a narcotic analgesic - um - slow slurred speech - um - it can occur when using a narcoticanalgesic drug - it’s not distinct the same way that constricted pupils are to use of a narcotic analgesic drug.” [15] Then the prosecutor asked Reid to consider a person displaying that combination of symptoms - “the total package” - andwhether that would be consistent with a particular class of drug.

The answer was: “It is consistent with a narcotic analgesic drug - yes.” [16] The final opinion sought was whether, aside from the small pupils, the symptoms were consistent with impairment by anyother class of drugs. Referring to staggering and slow deliberate slurred speech, Reid said that this: “is also consistent with a central nervous system depressant drug.” Defendant’s driving ability: [17] L.M. Giesbrecht P.J. provided this helpful capsule of the assessment called for here. One need only insert the words “a drug”instead of “alcohol” in this passage from R. v. Wyryha, [2010] M.J.

No. 106 (underlining added): 47 The Criminal Code does not require any particular degree of impairment if the evidence establishes that a driver's ability to operatea motor vehicle was impaired by alcohol to some degree. It is not necessary to prove any "marked departure from the norm". The offenceof operating a motor vehicle while the ability to do so is impaired will be made out if there is a degree of impairment ranging from slightto great: R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.) affirmed (SCC), [1994] 2S.C.R. 478 n (S.C.C.).

48 However, the fact that a person's functional ability is affected in some respects by the consumption of alcohol does not mean thatthe person's ability to drive is also necessarily impaired. When the evidence of impairment consists of observations of the conduct of anindividual, if that conduct is a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that theability to operate a motor vehicle is impaired: R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta. C.A.) atparagraph 23; leave to appeal to the S.C.C refused [1996] S.C.C.A.

No. 115, 106 C.C.C. (3d) vi. [18] There is no applicable presumption that the later observations of police, whether or not they are trained in drug evaluation,prove anything about Defendant’s ability to drive at the time of driving. The issue here is whether the evidence of drugs in his body is acomponent of proof beyond a reasonable doubt once impairment has been established. [19] Defendant’s vehicle remained stopped after a red traffic light changed to green. There is no other evidence of that moment.

The prosecutor submits that his attention to the task of observing the traffic control device was diverted by the effects of drugs in hisbody. Reid’s evidence implies that the drugs in his body prevented him from doing what drivers usually do when a light turns green butthere is no evidence about Defendant in the van from which I can draw that inference. [20] Defendant drove carelessly into the side of the complainant’s van; the collision was more than a bump because he scraped halfthe length of her vehicle for what seemed to the eye-witness to be a long time.

That he did not react immediately by pulling away to hisright, perhaps over-correcting as most of us would, is surprising as it was the driver’s side of Defendant’s vehicle that was makingcontact. [21] At that point one would expect Defendant to have made a series of decisions: to turn the steering wheel; to press down on thebrake pedal; to find a place to stop. Something impaired his ability to turn the steering wheel and press down on the brake pedal andfind a place to stop.

The ability to do these things, while continuing to keep a lookout to update what else was going on around him, arecomponents of the multi-tasking that driving requires. [22] That Defendant failed to stop and exchange particulars is not in issue. His failing to do so is indicative of an intention either toescape responsibility or to hide something. His conversation with the complainant and the eye-witness indicate that he certainly hadsomething to hide. What he had to hide was that he was in no condition to drive.

Taken in the context of the drugs in Defendant’s bodyand Reid’s evidence, the comment to police “I don’t know what’s happening” is inconsistent with any other inference. And it addssignificant weight to the earlier evidence about not moving through a green traffic light. [23] Defendant was found with a prescription bottle dated that day. It was sloppy of the police not to keep, or at least photograph,the pharmacy label on the oxycodone container but Constable Waters recalled the warning about driving and he had a note about the sizeand quantity of the pills, the date and the physician’s name.

That bottle contained nine oxycodone pills with the instruction to take threepills thrice daily. One dose of three pills was missing. An analysis of human body waste yielded the inference that, in compliance withthe prescription, he consumed them. Not parenthetically, I would add that Defendant also had diazepam in his system. [24] There is no evidence of consumption of alcohol. There is evidence of inability to manage the complex tasks involved indriving and failure to adhere to the requirements of a driver involved in a collision.

Verdict: [25] The only inference that I can draw from the whole of the evidence is that Defendant’s ability to drive was impaired by a drug ordrugs. [26] I find Cameron Brown guilty of driving while his ability to do so was impaired by a drug and guilty of failing to remain at thescene of an accident to provide particulars. “ORIGINAL SIGNED BY:” R.L. Pollack P.J.