R. v. Manaigre, 2015 MBPC 56

CITATION: R. v. Manaigre, 2015 MBPC 56 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Joel Myskiw and Kristee Logan ) for the Crown ) and ) ) MANAIGRE, Tyler ) ) Michael Dyck ) for the Accused ) ) ) ) Reasons for Decision delivered: ) December 4, 2015 DEVINE, P.J. INTRODUCTION [1] Tyler Manaigre was charged with impaired driving by drugs on November 14, 2013 in Steinbach, Manitoba.

The sole issue inthis case is whether the marijuana the Accused admitted to consuming impaired his ability to operate a motor vehicle. [2] The indicia of impairment by alcohol are fairly well-known and accepted in the case law: improper driving, bloodshot orwatery eyes, flushed face, odour of alcohol, slurred speech, lack of coordination and inability to perform physical tests, a lack ofcomprehension and inappropriate behaviour. (R. v. Landes, (SK KB), [1997] S.J. No. 785 (Sask.Q.B.) at para 16,cited in R. v. Gilbret, 2015 SKPC 37 at para. 56). The same cannot be said for the indicia of impairment by drugs.

The number ofreported decisions involving impaired driving by drugs remains relatively small. Accordingly, this decision sets out the law with respectto impaired driving by drugs and then spends some time outlining the evidence of the drug evaluator who conducted the tests and theevidence of the forensic toxicologist who provided opinion evidence as to the physical and psychological effects of marijuana.

THE LAW [3] The offence of impaired driving by alcohol or drugs or both is proven if the evidence establishes beyond a reasonable doubtany degree of impairment of the accused’s ability to operate a motor vehicle, ranging from slight to great, that is caused by consumptionof alcohol, drugs or both. (R. v. Stellato, (ON CA), [1993] OJ 18 (C.A.) at para. 14, adopted by the S.C.C (SCC), [1994] SCJ 51 at para.1.) [4] Although it has been an offence for at least four decades to drive a vehicle while impaired by a drug, until 2008 there was noprescribed manner for police officers to evaluate drug impaired driving.

When the Criminal Code was amended by the Tackling ViolentCrime Act, S.C. 2008, c. 6, police were authorized to conduct an investigatory process to assess impaired driving by drugs. The 2008amendments form ss. 254(2)(a), (3.1) and (3.4) of the Criminal Code.

Parliament also passed a regulation to allow for the specifics ofdrug investigation and evaluation, the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, which wasenacted pursuant to the regulatory authority found in s. 254.1 of the Code. [5] The first phase of the statutory drug impaired driving investigation scheme is a roadside screening (s. 254(2)(a)). At that

stage, a police officer who has reasonable grounds to suspect that a person who has drugs in their body has driven in the past three hours may demand that the driver perform physical coordination tests, also known as roadside sobriety tests. Three physical coordination tests at the roadside are authorized by the regulation. [ 6 ] The second phase of the scheme at s. 254(3.1) allows for an “evaluating officer” (s. 254(1)) to conduct a more comprehensive evaluation, which is detailed in the regulation.

A police officer who has reasonable grounds to believe the person has driven while impaired by a drug may demand that the person participates in a drug impairment evaluation conducted by a specially trained evaluating officer. The evaluating officer must be a certified drug recognition expert accredited by the International Association of Chiefs of Police pursuant to s. 1 of the Regulations.

The detailed steps involved in an evaluation are set out in s. 3 of the Regulation. [ 7 ] Unlike the results of a breath sample demand, which measures the alcohol concentration in a driver’s blood, the drug evaluation measures various physical and psychological phenomena. [ 8 ] The third phase allows the evaluating officer to confirm the presence of a particular drug in a person’s body by demanding a urine, oral fluid or blood sample (254(3.4)). The sample can confirm only the presence of a particular drug, not its concentration and effect on the person’s level of sobriety or impairment.

The demand cannot be made unless the evaluator has reasonable grounds, based on the evaluation they have just done, that the person is impaired by a drug. [ 9 ] Unlike impaired driving cases involving alcohol, the Crown does not have the benefit of the presumption of identity (258(1) (c)). Thus, the degree to which the results of such analysis are found to be probative of the driver’s condition at the time of driving are not statutorily governed, but rather will be a matter of evidence.

FACTS Evidence of the Drug Evaluating Officer Initial Observations and Standardized Field Sobriety Tests [ 10 ] Corporal Terry Sundell was patrolling the Steinbach area in a marked RCMP cruiser car with his partner at 1:49 a.m. on November 14, 2013. [ 11 ] He was driving eastbound near the Franz Motor Inn on the outskirts of town when he saw the Accused’s vehicle coming towards him driving westbound towards town, driving 80 km per hour in the 100 km zone, although in another 250 meters the speed reduced to 80 km per hour.

Corporal Sundell thought this alone was worth checking into further, as in his experience, most people drive the speed limit unless there is weather or some other factor that is influencing them to drive slower. The road was mostly clear with some ice and snow. The officer agreed that a prudent driver approaching the speed reduction sign when entering town, at night with some ice and snow on the road might well reduce his speed to 80 km. [ 12 ] Corporal Sundell made a u-turn and followed the vehicle. Now both the police car and the Accused’s car were in the 80 km zone.

The officer’s attention was no longer on the speed of the vehicle, as it was normal. His main focus now was on how well the vehicle was driving and staying within the lanes. The vehicle was being driven normally. It was not drifting towards the centre line or the shoulder. In the officer’s words, “There was nothing out of the ordinary.” [ 13 ] The Accused’s vehicle signalled to turn right onto a residential street. Corporal Sundell wanted to pull the car over on the well- lit main street rather than the residential street, so he activated his emergency lights.

In response, the Accused stopped before making the right turn. There was nothing of note about his manner of driving when pulling over and stopping. [ 14 ] The officer testified that the purpose for stopping the vehicle at that point was to check the driver’s sobriety as well as the validity of his driver’s licence and vehicle registration. [ 15 ] The Accused had his vehicle window rolled down for the officer. Corporal Sundell told him he was checking for sobriety and licence and registration.

He asked the Accused for his driver’s licence and registration and then held out his hand for the driver’s documents so he could assess the Accused’s alertness. On cross examination, Corporal Sundell added that he verbally asked the Accused to place the documents in his hand. The Accused did not place the documents between the police officer’s thumb and fingers as the officer intended him to do, but rather extended them towards Corporal Sundell and held them out beside the officer’s hand. When Corporal Sundell then told him to place the documents in his fingers, the Accused did so with no difficulty.

The officer’s only suspicion at that time was the fact that the Accused did not follow his direction in putting the documents between his thumb and fingers. [ 16 ] Corporal Sundell is not only a trained police officer, but also a certified drug recognition expert and drug evaluating officer as provided by s. 254 and the impaired drug and alcohol regulation. Regulation SOR/2008-196 sets out the assessment tools that a properly qualified evaluating officer can use in order to form reasonable grounds to believe that an accused’s ability to operate a motor vehicle is impaired by a particular category of drug.

Corporal Sundell had completed the training course in Jacksonville, Florida less than a month before he arrested the Accused. [ 17 ] He noticed that the Accused appeared to have larger than normal pupils and that the white part of his eyes had pink lines, known as reddened conjunctiva, which is, among other things, an indication of having consumed marijuana. Corporal Sundell testified that a number of things can cause dilated pupils including fear, so it would not have been prudent at that point to make a classification.

However, because of the reddened eyes and the dilation of the pupils, the officer continued his assessment with respect to sobriety or impairment. He asked the Accused if he was on any prescription medication and asked if he had consumed any alcohol. Both answers were negative. He then asked the Accused when he had last smoked pot. The Accused answered, “Like, way earlier.” He asked the Accused, “So, how much?” and the Accused answered, “Well, just a little bit.”

[ 18 ] At that point Corporal Sundell suspected that the Accused had consumed marijuana but did not believe he had enough information to have reasonable grounds to arrest him for impaired driving. He wanted to do further screening. He asked the Accused to step out of the vehicle and made a demand under s. 254(2)(

a) that the Accused perform standard field sobriety tests, which involve a number of physical coordination tests. Corporal Sundell testified that the purpose for making the demand was to assist him in determining whether the Accused was sober and free to go, or impaired by marijuana. [ 19 ] At the conclusion of Corporal Sundell’s direct evidence, the defence sought leave to bring a motion alleging a breach of s. 9 of the Charter and subsequent breaches of s. 8. The matter was adjourned for submissions and argument.

I dismissed the Charter motion and the trial continued. [ 20 ] Results of the roadside tests are not admissible evidence to prove a charge of impaired driving, but can be used to form grounds to make a demand for a more involved drug evaluation under s. 254(3.1). The Accused was administered the horizontal gaze nystagmus test, the walk-and-turn test and the one-leg stand test and according to Corporal Sundell, did not perform them well. There was no detailed or specific evidence on the Accused’s performance of the tests, only that he did not perform them well in the opinion of the officer.

This led to a demand that the Accused submit to a drug evaluation. The officer was of the opinion that the Accused was operating a vehicle while impaired by a drug. He advised the Accused that he was under arrest for operating a vehicle while impaired by a drug. He handcuffed and searched the Accused and placed him in the police car.

He read him his Charter rights including his right to counsel and he read the drug evaluation demand. [ 21 ] He searched the Accused’s car and found a beer can bent in the middle with a burnt mark on it consistent with use as a makeshift pipe, and residue that appeared to be marijuana residue. He also found small Ziploc bags with marijuana motifs on them, consistent with them being “dime bags”, the small bags in which marijuana is typically bought and sold. [ 22 ] He then took the Accused to the detachment, a six minute car ride.

He did not note or remember anything else about the Accused during the ride, nor walking into the police station. He testified however that the Accused’s movements were slower and more deliberate and his manner of speaking seemed more deliberate, “it seemed that he wasn’t doing everything right off the bat. He was processing it and then responding.” On cross examination, the officer testified only that the Accused seemed to be slower and more deliberate when he sat down in the interview room.

The Drug Evaluation Test, s. 254(3.1) [ 23 ] Once at the detachment, Corporal Sundell conducted the drug evaluation pursuant to s. 254(3.1). The evaluation tests and procedures are provided for in s. 3 of the regulation. (See Appendix A.) [ 24 ] Commencing at 2:47 a.m., the preliminary examination showed that the Accused’s heart rate was elevated, at 96 beats per minute. Both pupils were the same size and both his eyes were able to track a stimulus equally. There was reddened conjunctiva. There was no further mention of dilated pupils.

There was an absence of nystagmus both horizontally and vertically, that is, no jerking movement. The only issue noted was a lack of convergence, which is the inability of a person to keep their eyes crossed. Corporal Sundell explained that the stimulus (in this case, a pen) is brought close to the bottom part of the subject’s nose and the evaluator observes the subject’s eyes moving toward the stimulus. The Accused’s left eye followed the stimulus and then looped back outward. This was noted as a lack of convergence. [ 25 ] The officer then conducted the four divided attention tests.

The first, the “Romberg balance test,” tests balance and an individual’s “internal clock.” The Romberg balance test requires the subject to stand with their heels and toes together and arms at their sides. The subject is told to wait until they are told to begin and when they begin, they are told to close their eyes and tilt their head back and estimate the passage of 30 seconds. When they feel 30 seconds has elapsed they are to lean forward, open their eyes and say stop. It took the Accused 32 seconds to estimate 30 seconds, which the officer considered to be in the normal range. His balance was good.

The officer also observed that the Accused’s eyelids fluttered. [ 26 ] The second divided attention test, the “walk-and-turn test”, requires the subject to stand with heels and toes together at the end of a line on the floor with their hands by their sides. The subject is told to then take nine heel-to-toe steps along the line while looking down, with arms by their sides, counting out loud. The subject is told to turn around at the end of the nine steps by keeping their front foot on the line and the other foot to turn themselves around with several small steps.

The officer demonstrated the test to the Accused by doing three steps in each direction, and testified that the Accused did the test without wobbling, falling off to the sides or using his arms to balance himself. In the first direction he stopped at number “8” and then continued after a pause. He completed the turn perfectly, as directed. On his return, he skipped number “5” so that he counted out ten steps rather than nine. [ 27 ] The third test, the “one-leg stand test”, involves the subject listening to instructions, again, with heels and toes together and arms at their sides.

The subject is instructed to lift one leg and then the other leg, while counting “one thousand one, one thousand two, one thousand three” and so on. The leg is to be raised six inches off the ground with toes pointed out and both legs kept straight. The leg is to be held until the subject is instructed to stop, which is a period of 30 seconds. The subject’s arms are to be by their sides and they are instructed to watch the raised leg. Corporal Sundell testified that the Accused had several difficulties with the test. [ 28 ] While standing on his left leg the Accused put his foot down at count “14”.

While balancing on his right leg, he put his foot down three times. He swayed while trying to balance on his left leg and also on his right leg. He gave a small hop while balancing on the right leg to maintain his balance. The third time he lost his balance on the right leg and he broke his feet apart to maintain his balance. When he started counting, he was not doing it out loud initially. He was told again to count out loud and he started by counting “one Mississippi, two Mississippi”. On his right leg, he spoke the correct words. His legs were visibly shaking during this exercise.

According to the officer, the tremors were induced by the act of trying to balance, which is an indicator of marijuana use. He opined that the Accused performed poorly on this test. [ 29 ] The fourth test was the “finger-to-nose test”. The subject is required to stand with their heels and toes together with their arms at their sides. They are asked to close their hands, then point their index fingers to the floor. The subject is told to listen to the full

direction and not do anything else until given further instructions. They are told that they will be instructed to touch the tip of their finger to the tip of their nose, and they are shown the tip of the finger to the tip of the nose. The subject is told that they will be instructed to close their eyes and tilt their head back and then touch their nose with the tip of their left or right index finger, as instructed. [ 30 ] The Accused touched the tip of his nose on five of six attempts. On the sixth attempt, he touched below the nostril. He was successful in using the tip of his finger only one time.

On four occasions he used the pad of his finger rather than the tip of his finger. On another occasion he used the side of his finger. The officer testified that the test requires focus. The subject must maintain their balance while they pay attention to the precise instruction to use the tip of the finger, rather than the pad of the finger. During this test there was no problem with the Accused’s balance. The officer explained that the brain’s ability to focus on one thing, such as balance, can often hinder its ability to focus on a second thing, such as using the tip rather than the pad of the finger.

In the evaluator’s opinion, the Accused performed poorly on this test. [ 31 ] The evaluator again measures the person’s pulse, blood pressure and temperature. At 3:03 a.m., the Accused’s pulse was 102. At 3:17 a.m., it was 100. His earlier pulse was 96. All three readings were above normal, which is in the 60 to 90 beats per minute range. His blood pressure was 160/88, higher than the norm of 120-140/70-90. His temperature was normal. [ 32 ] The evaluator then examined the Accused’s pupils and nasal and oral cavities. The pupils are examined in ambient light, near total darkness and direct light.

In ambient light the Accused’s pupils measured 6 millimetres, rather than the normal 2.5 to 5 millimetres. In near total darkness his pupils were larger than normal, at 9.5 millimetres rather the norm of 5 to 8.5 millimetres. The last part of the pupil test measures reaction time when exposed to direct light and whether there is any rebound dilation which would indicate a psychoactive agent trying to dilate the eye. The Accused had rebound dilation in both eyes. There were no other signs of drug use in his oral or nasal cavities and no marks on his body consistent with hypodermic drug use.

His muscle tone was normal. [ 33 ] At the completion of the evaluation and examination Corporal Sundell was of the opinion that the Accused was impaired by a drug, stating: “People that are sober and have no disabilities do not perform poorly on these examinations.” He agreed that a person could consume a drug and not be impaired by it. He also clarified that a person’s body might not show outward signs of impairment, but their mind could still have difficulty operating a vehicle. [ 34 ] A further tool, a drug matrix, provides information on what type of drugs affect a subject’s ability to do the tests.

The results of the evaluation entered into the drug matrix eliminate or point to various families of drugs. For example, a lack of convergence can be caused by four different types of drugs: cannabis, a central nervous system depressant, an inhalant, or a dissociative anesthetic. However, because the Accused exhibited no nystagmus, the last three types of drugs were ruled out, leaving only cannabis.

Similarly, the officer considered all his observations arising out of the evaluation and examination, including the Accused’s admission to having consumed cannabis, and determined that the cause of the impairment was cannabis as opposed to some other type of drug. [ 35 ] At 3:19 a.m., the officer had completed the evaluation and formed the opinion that it was cannabis that was impairing the Accused’s ability to drive.

At 3:20 a.m., he read the demand for a urine sample. [ 36 ] Corporal Sundell testified that outside the standardized field sobriety tests and the regulation drug evaluation tests and examinations, he made no notes or observations about any difficulties the Accused had with his fine motor skills or his gross motor skills, including getting out of the vehicle, walking from his vehicle to the police vehicle, doing the standardized field sobriety tests, walking into the detachment and moving about inside the detachment building.

At no point did the Accused lean on the police car for support or lean on walls or chairs for support. There were no notes, outside the testing procedure, of the Accused’s balance and ability to walk.

Corporal Sundell testified that a person having difficulties with balance and an ability to walk is an intoxicated person, not merely an impaired person, but did not clarify or expand on this statement. [ 37 ] At the roadside, Corporal Sundell had directed the Accused to turn off the ignition, roll up the window, he explained the field sobriety test, told the Accused to get in the back of the police car, arrested him and gave him his Charter rights. There was no confusion and the Accused was cooperative and appeared to understand everything.

In the station, the Accused was directed to sit on a chair in the interview room. When he was released, he signed papers and seemed to understand what was explained to him.

The officer’s only evidence with respect to any behaviour that might be indicative of impairment by a drug was his statement that the Accused’s movements when he walked into the office and sat down in the interview room just seemed to be slower and more deliberate. [ 38 ] The Accused admitted to the police in his statement that he smoked less than half a gram of marijuana between 12:30 and 1:00 a.m., which was approximately between 49 and 80 minutes before he was stopped by the police. [ 39 ] The urine sample was sent to the forensic lab in Ottawa and found to contain cannabis.

Evidence of the Forensic Toxicologist [ 40 ] Melanie Brisson is a forensic toxicologist and works for the RCMP forensic laboratory in Ottawa. Counsel agreed she could be qualified as an expert in the three following areas: i). The physiology of drugs and alcohol, including their absorption, distribution, metabolism and elimination from the human body; ii). The pharmacology of drugs and alcohol, including their effects on the body and how this relates to behaviour and motor control; and iii). The methods and results of analysis.

Ms. Brisson testified and her report was filed in the trial. [ 41 ] The urine sample provided by the Accused contained the psychoactive component of cannabis, THC, indicating that he had ingested marijuana at some point in the past. Because THC can be detected in the urine for up to 30 days after use, nothing from the urinalysis alone identifies the time of consumption or impairment. Ms.

Brisson testified that the effects of marijuana increase drastically within the first 10 minutes after smoking, reach their peak 20 to 30 minutes after smoking, and can last for up to three or four hours, depending on the dose, how it is consumed and the previous exposure of the person to the drug. [ 42 ] Acute consumption causes cannabis intoxication that can impair cognitive and psychomotor skills relevant to driving. THC has also been shown to impair perception and reduce impulse control, which affect judgment and decision-making.

It affects psychomotor function, such as hand-eye coordination, which in turn impairs steering ability and speed control. It also causes problems with information processing, attention and vigilance, which can affect reaction time. [ 43 ] Ms. Brisson testified that marijuana affects motor function, such as muscle tremors, that can result in decreased muscle strength. It can impair balance, and increase body sway and muscle incoordination. [ 44 ] She testified that the largest impairment is cognitive, that is, to the thinking processes that occur during driving.

She explained that driving is a complex divided-attention task, requiring both cognitive function, in terms of decision-making and planning, scanning the environment, and the ability to maintain attention, as well as motor function. Combined, this is described as psychomotor function, because a person has to steer the vehicle and maintain it within the lanes, and then decision-making is required for manoeuvring through traffic appropriately. Marijuana impairs both cognitive and motor functions in relation to safe driving. [ 45 ] Ms.

Brisson testified that marijuana affects perception such that it alters distance and time, which can affect driving. She stated that there is also a loss of short term memory and a lack of concentration, which cause problems in decision-making and planning while driving, known as executive functions. A slowing of the thinking processes leads to incomplete thought processes. This can lead to a delayed reaction time in an emergency situation requiring split second decision-making followed by physical correction. [ 46 ] Ms.

Brisson testified that studies have shown that marijuana impairment leads to more weaving in and between lanes due to muscle tremors and also attentional deficits. Small muscle tremors which affect good eye-hand coordination will tend to impact a driver’s ability to steer a vehicle within the limits of a lane. Short term memory loss impacts a driver’s ability to concentrate and sustain their attention which has generally been attributed to the reason why a driver “drifts” while they are driving.

A driver’s altered perception of how fast the car in front is moving, and being able to judge and therefore react results in an inability to maintain a constant headway, that is, to maintain a constant distance behind another vehicle. There is also some delayed information processing. [ 47 ] Ms. Brisson testified that marijuana impairment, unlike alcohol impairment, is evident to the person who has consumed marijuana, thus compensating behaviour is consistent with marijuana use. Therefore, drivers impaired by marijuana will often drive more slowly to compensate for the fact they are impaired. [ 48 ] Ms.

Brisson explained that because the perception of time is affected, the drug evaluation has some tests built in to try and help determine the individual’s perception of time. She further explained that the more recent literature has shown that marijuana users’ altered perception of time tends to be a divided attention issue as opposed to a faster or slower internal clock. [ 49 ] Ms. Brisson testified about several of the tests in the drug evaluation.

She made a distinction in her evidence between signs of consumption of marijuana and signs of impairment by marijuana. [ 50 ] The lack of convergence is possibly indicative of marijuana consumption in a person who ordinarily has the ability to cross their eyes, or could be person who cannot cross their eyes, as not all people are able to cross their eyes. [ 51 ] A person missing a step or counting improperly during the walk and turn test “could be consistent” with marijuana consumption according to Ms.

Brisson, as marijuana consumption affects the brain’s ability to process a lot of information quickly. [ 52 ] Marijuana consumption is consistent with a person swaying during the one-legged stand test, as marijuana affects the part of the brain responsible for maintaining balance.

Similarly, marijuana consumption would be consistent with someone putting their foot down, or taking some small hops, to maintain their balance. [ 53 ] In the finger-to-nose test, missing one’s nose or using the wrong part of the finger to touch the nose, due to motor and coordination problems, is consistent with marijuana consumption. [ 54 ] Ms.

Brisson testified that the ability or inability to walk heel-to-toe during the walk-and-turn test and the ability or inability to touch the tip of the finger on the tip of the nose might be indicators of distance perception and spatial awareness, but qualified that as stating these were inferences on her part and not anything she had read in the literature. [ 55 ] If a person was impaired by marijuana, Ms Brisson testified that she would expect to see impaired balance, like swaying and general incoordination, which involves a person’s gross motor skills.

Gross motors skills are used when standing, walking and getting in and out of a vehicle. The tests used to observe and assess balance in the drug recognition evaluation challenge one’s balance more than ordinary everyday actions, like walking.

She agreed that some people are generally uncoordinated and have poor balance without being intoxicated by drugs. [ 56 ] The degree of impact on one’s gross motor skills and balance are dose dependent when it comes to consumption of marijuana, although tolerance plays a role. [ 57 ] She testified that there is a difference between the psychological and physiological effects of marijuana. The psychological effects depend on the amount of marijuana the person has consumed and their tolerance to marijuana. The physiological effects are not dependent on dose and tolerance.

They will be present no matter how much or little the person has consumed. Thus, increased blood

pressure and increased heart rate are not dose dependent. Marijuana affects the part of the brain that controls heart rate. Similarly, dose and tolerance do not affect eyelid tremors, leg tremors and muscle tremors. They are automatic, physiological effects of having marijuana in the body. The amount of marijuana to cause these physiological reactions is unknown.

While it would likely be more than a puff, those physiological effects will be present even if a very small amount is consumed. [ 58 ] The net result is that in a heavy or regular user, increased blood pressure and heart rate, eyelid tremors, leg tremors and muscle tremors will be present, regardless of the amount, but their executive function and other psychological function would be less impaired than a person who was not able to develop a tolerance to marijuana. However, Ms.

Brisson further testified that divided-attention tasks or multi-tasking are particularly difficult for the brain that is under the influence of marijuana, so although a regular user would be less impaired, there is still some measurable impairment.

She testified that behavioural tolerance could be developed in the larger body movements, that is, gross motor skills, but not in the “really fine ones that aren’t necessarily under your voluntary control.” [ 59 ] Similarly, with the amount consumed, although a higher dose impairs to a greater degree and lower dose impairs to a lesser degree, there are observable effects even with lower dose.

Both the amount and the strength of the marijuana will have an impact on a person’s physical and physiological impact. [ 60 ] Generally speaking, a person’s ability to steer a vehicle in simulated road tests will return to baseline in 3 to 4 hours, or sober driving skill, or what she called zero baseline. It can be less with a person who has developed a tolerance to marijuana, or if they take a smaller dose than that to which they are accustomed. [ 61 ] Ms. Brisson could not provide any evidence about the Accused’s sobriety or impairment.

Nor could she confirm or even estimate the amount of marijuana he consumed, nor when he consumed it, only that he consumed marijuana sometime in the previous 30 days. Finally, Ms.

Brisson testified that if a person smoked or consumed a very small amount of marijuana “they may not feel any effects to the intensity that it would impair their driving ability.” DOES THE EVIDENCE ESTABLISH IMPAIRMENT BY A DRUG? [ 62 ] There was no issue taken by defence as to the evaluating officer’s ability to give an opinion about the presence of a drug in the Accused’s body, nor his ability to give an opinion as to whether the presence of that drug impaired the Accused’s ability to drive. [ 63 ] Corporal Sundell was not tendered as an expert witness, although his curriculum vitae outlining his training and experience as a drug evaluator was filed as an exhibit.

His qualifications were not challenged. There have been several cases like this one, where the evaluating officer’s evidence has not been subject to a qualifying voir dire to determine his expertise and that of the evidence, either because the issue did not arise, as in this case, or, in other cases, where it was determined that the evaluating officer need not be qualified as an expert. R. v. Bois , [2010] O.J. No. 3945 (CJ) ; R. v. Jansen , [2010] O.J. No. 959 (CJ) ; R. v. Kuzian , [2012] OJ No. 6049 (CJ) ; R. v.

Bingley 2015 ONCA 439 . [ 64 ] There have been other cases where the evaluating officers has been required to qualify according to the criteria set out in Mohan . Of those, there have been cases where the evidence met the reliability criteria in Mohan and others where it did not.

In the latter, it was determined that the drug evaluations tests could not reliably determine whether the person’s ability to drive was impaired. ( Wakewich, Jurcevic , Steeves and Thomas ). [ 65 ] In this case, the evaluating officer testified that the Accused did not perform well on the evaluation tests and he was of the opinion that the Accused was operating a vehicle while impaired by a drug. [ 66 ] In determining whether the Crown has proven that the Accused was driving while impaired by marijuana, I must consider all of the evidence in totality, including the observations made by the police about the Accused’s driving, his performance and the results of the drug evaluation, his interaction with the police from the time they stopped him until the time they released him and any comments he made to the police. [ 67 ] The following evidence about the Accused’s driving is relevant: • Proper signalling to turn right into a residential street • Immediately stopping when the police turned on their emergency lights • No weaving in the lane, no crossing the centre line [ 68 ] There was nothing about the driving to suggest impairment by a drug.

The reduced speed was the only evidence to suggest possible marijuana usage. However, there are many possible explanations for it. The Accused was within viewing distance of the Franz Motor Inn, 250 meters from the reduction in speed sign. He was driving into town. He lives in the area and knows the area and presumably knows about the reduction in speed as one drives into town. This is not a case where he was driving below the speed limit several kilometres out of town in the middle of the country. Moreover, it was late at night in November with winter road conditions.

As the officer admitted on cross-examination, only under opportune conditions would someone drive the maximum speed posted. [ 69 ] I am cognizant that the absence of any driving irregularities does not equate with sober driving. But, it must be taken into consideration. I am also mindful of the absence of any signs of unusual driving in light of Ms. Brisson’s testimony about the particular effects of marijuana impairment on steering ability, the phenomenon of “drift,” and speed control that is, driving slower than normal. None of these indicia of impairment were present and the Accused’s driving was normal.

[70] Absence of any indicia of marijuana impairment of the ability to drive in this case can be contrasted with the driving in Bingley. In that case there was driving one would typically expect from a driver impaired by drugs, consistent with the signs of drug impairmentthat Corporal Sundell and Ms. Brisson testified about: crossing over the centre line on the highway, nearly colliding with oncomingtraffic and forcing other vehicles to swerve out of his path, and then turning into a parking lot and hitting another car. Mr. Bingley’sdriving was consistent with the Ms.

Brisson’s testimony about impairment by marijuana causing ‘drifting’ and muscle tremors affectingeye-hand coordination. Mr. Bingley stumbled when he stood. His zipper was undone and he had trouble zipping it up. These actionswere consistent with the impacts on gross and fine motor skills that both the evaluating officer and Ms. Brisson testified about in thiscase. The accused in Bingley swayed from side to side. His eyes were glossy and bloodshot. His speech was slurred. [71] The absence of evidence of erratic or impaired driving was the subject of comment by Judge Giesbrecht in R. v.

Wyryha, 2010MBPC 17, where she stated: In the present case there is no evidence of erratic or bad driving by the Accused. It is clear that such evidence is not required in order foran individual to be found guilty of driving while impaired: R. v. McKenzie (1955), (AB KB), 111 C.C.C. 317 (Alta.Dist. Ct.) at paragraphs 15 and 16.

However, the absence of such evidence is a factor to consider in assessing whether the totality of theevidence satisfies me of the guilt of the Accused beyond a reasonable doubt. (at para. 63) [72] In addition to driving normally, the Accused in this case exhibited none of the other signs of impairment above that might beexpected. [73] Similarly, the Accused’s reactions to the usual police questions, requests and directions showed little or no evidence ofimpairment.

I am not concerned, as was Corporal Sundell, that not putting his licence and registration in the officer’s fingersdemonstrated an inability to follow directions. The Accused offered the documents so that they were beside the officer’s fingers. Whenthe officer told him to put the documents in his fingers, the Accused did so. Corporal Sundell did not note that the Accused had anyparticular difficulty in retrieving his documents from his wallet or glove compartment, nor getting out of the car, walking to the policecar or getting into the police car.

Nothing was noted about the Accused’s manner of moving, talking or walking. [74] The only evidence, outside the formal evaluation that supports the officer’s opinion that the Accused was impaired, was that hewas moving and speaking more carefully or deliberately and that his eyes were red. Reddened conjunctiva is consistent with marijuanause, not marijuana impairment. The officer had never met the Accused before and had no knowledge of his usual movements. I alsonote, that by the end of the time they were together, the effects of the marijuana in any event would have worn off. Ms.

Brisson testifiedthat the effects wear off in three to four hours. Given that passage of time, the Accused’s condition should have returned to “sober” bythat time, if he had ever been impaired.

There is no evidence of any comparison of the Accused’s indicia of impairment done betweenthe time he was pulled over and the time he was released, that might assist the Court in determining whether he was impaired at the timeof driving. [75] The Accused was noted as being cooperative, responsive and appropriate throughout the three hours he spent with the police. [76] I am mindful in isolating these general areas, to not test individual pieces of evidence or eliminate them because there might bealternate explanations other than impairment, for their presence. As the Alberta Court of Appeal stated in R. v.

Huddle 1989 ABCA 318at para. 9: In our view, it is an error in law to test individual pieces of evidence which are offered to establish the existence of reasonable andprobable grounds. That is similar to the approach which the Supreme Court of Canada condemned in R. v. Morin, (SCC),[1988] 2 S.C.R. 345, 66 C.R. (3d) 1, 88 N.R. 161, 30 O.A.C. 81, 44 C.C.C. (3d) 193.

True, the smell of alcohol does not showimpairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but the question iswhether the total of the evidence offered provided reasonable and proper grounds, on an objective standard. We say that because no issueof subjective belief arises here. [77] The evidence that is potentially consistent with impairment by marijuana is of course the drug evaluation itself.

Because theevaluation is prescribed by regulation and was unchallenged, it must be afforded significant weight. [78] I note however, that even where the evaluating officer testified that the Accused performed poorly on some tests, thetoxicologist testified that certain physical responses are indications of marijuana use and not impairment.

The evidence is therefore atbest, equivocal. • The Accused had reddened conjunctiva which is consistent with marijuana use, but not necessarily impairment • His blood pressure and pulse rate were above normal, which is consistent with marijuana use but not necessarily impairment • His temperature was normal • His pupils were dilated and exhibited rebound dilation, again, consistent with marijuana use, but not necessarily impairment • He was unable to keep his eyes crossed; one eye kept “looping” outwards, according to the evaluating officer. This is consistentwith marijuana usage, but not necessarily impairment.

On the divided attention tests, there were mixed results. • The Accused had no trouble with the Romberg balance test which assesses balance and time perception. • On the walk-and-turn test he demonstrated no difficulty with his balance. He paused at one point and skipped a number when counting at another point. The toxicologist testified that this could be consistent with marijuana consumption as it affects the brain’s ability to process a lot of information quickly. • The Accused did less well on the one-leg stand test. He lost his balance several times. He used the wrong words when counting out loud.

This would be consistent with marijuana usage according to the toxicologist. • The Accused completed the finger-to-nose test by touching his nose five out of six times, but not with the tip of his finger. He used the pad of his finger rather than the tip on all but one occasion. This is consistent with marijuana use, due to motor and coordination problems. Again, there were no problems with his balance during this test. [ 79 ] Some of the testing and evaluation is evidence only of consumption, but not of impairment.

This is the case for all the physiological effects of marijuana, that is, the increased pulse rate, increased blood pressure and increased pupil size and reaction, lack of convergence and muscle tremors. [ 80 ] It is difficult to know precisely how performance on the tests is correlative to impairment. It appeared that the Accused’s balance was very good on two of the three divided attention tests. It appeared he followed directions very well on some tests and not as well on others. His spatial perception seemed unaffected on some tests and not on others. His sense of time was unaffected.

But those observations are qualified with an overall proviso. The specific things being measured in the divided attention tests was not fully and comprehensively outlined in the evidence. For example, although there was evidence from the toxicologist that spatial perception is affected by marijuana consumption, there was no evidence about how spatial perception is measured in the divided attention tests. As well, there was some inconsistency in the evidence about what the tests are designed to measure. On the one hand, Corporal Sundell testified about marijuana altering a person’s perception of time and space.

On the other hand, Ms. Brisson testified on cross examination that the newer literature suggests that the inability to correctly perceive the passage of time is a divided attention deficit. That would be similar for each of the tests. [ 81 ] Although Corporal Sundell testified that sober, able-bodied people do well on the divided-attention tests, I question whether that would be the case for everyone. Several of the tests sound complicated and very difficult to perform.

I suspect they might well challenge the balance of many completely sober people. [ 82 ] There were also some inconsistencies between the evidence of Corporal Sundell who determined the Accused was impaired, and the expert, who did not provide an opinion that the Accused was impaired. For example, Corporal Sundell testified that the muscle tremors in the Accused’s legs, observed during the one-leg test, were indicative of poor balance, which in turn is indicative of impairment.

But the expert testified that muscle tremors are physiological indicators of marijuana consumption that are not dose- dependent and are not necessarily indicative of impairment. [ 83 ] Ms. Brisson could only testify as to the presence of marijuana in the Accused’s body and not how much. She could not testify as to what quantity of marijuana would impair the Accused’s ability to drive.

The Accused told police he knew he was driving so he did not want to get “too messed up.” He seemed to be quite frank and friendly with the officer, by the end of the evening calling him by his first name and speaking very colloquially as between two young male friends.

He told the officer that he never felt like he should not be driving, that his driving was fine, that he did not question his ability to drive “even for a second.” For him, this was a small amount to consume, just enough to feel good. [ 84 ] The expert testimony was that, unlike drivers who consume alcohol, drivers who consume marijuana are aware of the fact they are impaired. Thus there is compensatory driving, such as driving very slowly, to compensate for delayed reaction time and spatial perception impairments.

The only possible evidence of compensatory behaviour in this case, that is, driving 80 km per hour in the 100 km zone, can easily be explained by circumstance. What we do have however, is an apparently candid and frank young man who told police he smoked marijuana, felt the effects and still believed he was competent to drive. Not only did he tell the police he felt fine to drive, he told them that he knew he would be driving that evening, so tempered the amount he smoked to avoid driving impaired. [ 85 ] Ms. Brisson testified that tolerance would develop from regular use.

It may be that this was the case for the Accused. His perception of his state of sobriety was that his ability to drive was not impaired by marijuana at the time of driving. [ 86 ] The Accused also made comments about smoking marijuana that night, which I take into consideration. • Admission at the roadside to smoking “just a little” “way earlier” • After the drug evaluation, the officer asked the Accused some questions about his drug usage. The Accused told him he smoked

less than ½ gram of marijuana from a bong between 12:30 and 1:00 a.m. • Later, in his statement to police, which commenced at 4:18 and concluded at 4:31 after the drug evaluation test and urine sample were provided, the Accused told police he smoked weed from a bong at his sister’s. He stated he did not get too “messed up” because he was driving. He said he had less than ½ a gram. He just had one good (inaudible - transcript only provided) and that was it. He smoked an hour and a half or two hours before he was pulled over by the police at 1:49 a.m.

When asked if he got a little high off that he said, “Yeah, it was pretty good.” He said he was still a little bit tipsy, now well after 4:00 a.m. At the time he left his sister’s he said he was in a great mood and was feeling the marijuana. He said it wore off in the back of the police car on the way to the station, although he still felt it a little bit at the station. • At the same time, during his statement he stated that he never felt like he should not be driving. He said he was driving fine.

He said he did not question his ability to drive “even for a second.” For him, this was a small amount to consume, just enough to feel good. [ 87 ] Although the Accused’s statement that he was still feeling a little tipsy at the time of the interview is initially concerning, a few questions later he told the police that the marijuana “completely wore off” on the way back to the police detachment, which would have been within minutes of driving. [ 88 ] In the final analysis, this is a case where the Accused was driving normally, behaving normally and demonstrated no appreciable indicia of marijuana impairment other than possibly some problems during some of the drug evaluation tests. [ 89 ] I am satisfied beyond a reasonable doubt that the test results indicate marijuana consumption.

But even though I accept that these tests are standardized and utilized across Canada and the United States, I am not satisfied beyond a reasonable doubt that they demonstrated impairment, even to a slight degree, in this case. As I stated earlier in this decision, it is unknown how performance on the tests is correlative of impairment. The Accused in this case did well on several aspects of the tests and not as well on others. It is also difficult to know how a completely sober person would perform on several of these tests.

The presumptive statement of the officer that sober people do not have difficulty with these tests is not helpful. [ 90 ] There was a divergence of opinion between the evaluating officer and the expert forensic toxicologist. The toxicologist did not provide an opinion as to impairment. [ 91 ] As I indicated above, I cannot look to the results of the tests alone; I must assess the evidence in its entirety. [ 92 ] Defence counsel correctly described this as a border-line case. This is a case where the legal burden of proof is determinative. I must be satisfied of the Accused’s guilt beyond a reasonable doubt.

I am not satisfied beyond a reasonable doubt. I am satisfied he consumed marijuana. I am even satisfied that he felt the effects of the marijuana at some point. But I am not satisfied beyond a reasonable doubt that his ability to drive was impaired, even to a slight degree, which is what is required in a driving impaired case. Therefore, the Accused is entitled to an acquittal. Original Signed by DEVINE, P.J. Appendix A Criminal Code , R.S.C. 1985, c. C-46, ss. 253 and 254 : 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligraMs. of alcohol in one hundred millilitres of blood.

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(

a) includes impairment by a combination of alcohol and a drug. 254.

(1) In this

section and sections 254.1 to 258.1,

”analyst” means a person designated by the Attorney General as an analyst for the purposes of

section 258; ”approved container” means (

a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of

section 258 by order of the Attorney General of Canada, and (

b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of

section 258 by order of the Attorney General of Canada; ”approved instrument” means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of

section 258 by order of the Attorney General of Canada; ”approved screening device” means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this

section by order of the Attorney General of Canada; ”evaluating officer” means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1); ”qualified medical practitioner” means a person duly qualified by provincial law to practise medicine; ”qualified technician” means, (

a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and (

b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this

section and sections 256 and 258.

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose.

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(

a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(

b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, (

a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or (

b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.

Schedule B Evaluation of Impaired Operation (Drugs and Alcohol) Regulations , SOR/2008-196, s. 3: EVALUATION TESTS AND PROCEDURES 3. The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are (

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 specified manner while keeping their eyes closed; (

d) an examination, which consists of measuring the 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.

Schedule C — DRE 12 STEP Drug Evaluation & Classification Program 1. Breath alcohol test 2. Interview of Arresting Officer 3. Preliminary examination (Should include but not limited to first pulse, an initial estimate of angle of onset, and initial estimation of pupil size) 4. Eye exaMs. (chk. both eyes/equal)

a) Horizontal Gaze Nystagmus • smooth pursuit • maximum deviation • angle of onset

b) Vertical Gaze Nystagmus

c) C. Lack of convergence 5. Divided attention tests

a) Romberg • body sway • 30 second internal clock

b) Walk and turn • 9 steps / 9 steps

c) One leg stand (30 sec. each leg) • left leg then right leg

d) Finger to nose • left/right/left/right/right/left 6. Vital signs and second pulse 7. Dark room checks of pupil size (90 seconds) and ingestion examination 8. Check for muscle tone 9. Check for injection marks and third pulse 10. Interrogation, statements, and other observations 11. Opinion of evaluation 12. Toxicological examination