R. v. Allen, 2015 ONCJ 618

COURT FILE No.:3211-998-14-934-00/3211-998-15-179-00 CITATION: R. v. Allen , 2015 ONCJ 618 ONTARIO COURT OF JUSTICE BETWEEN: ) ) her majesty the queen ) Michael Murdoch and ) Neil Dietrich for the Crown ) ) — AND — ) ) ) PAUL MARTIN ALLEN ) John Abrams, ) for the Defence ) ) ) ) HEARD: April 7 th and 9 th , May 14 th and June 11 th , 2015 MCKERLIE J.: Charges [ 1 ] As a result of events that occurred at approximately 6:30 pm on August 16, 2014, Paul Martin Allen is charged with four offences: 1. Operating a motor vehicle while his ability to do so was impaired by a drug, contrary to s. 253(1) (

a) of the Criminal Code . 2. Dangerous operation of a motor vehicle, contrary to s. 249(1) (

a) of the Criminal Code . 3. Unlawful possession of Cocaine, a

Schedule 1 substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act; 4. Failing to comply with the condition of his April 28, 2014 Officer-in-Charge undertaking that required him to abstain from drugs, except in accordance with a medical prescription, contrary to s.145 (5.1) of the Criminal Code . [ 2 ] The accused, Paul Martin Allen, pled guilty to the charges of unlawful possession of cocaine and failing to comply with the Officer- in-Charge undertaking. [ 3 ] The impaired driving and dangerous driving charges proceeded to trial.

In order to accommodate the schedules of counsel and expert witnesses, the trial was scheduled on April 7 th and 9 th , 2015 and continued on May 14, 2015 and June 11, 2015. Issues [ 4 ] Time, date, place and identity are not in dispute. Mr. Allen admits that he was driving a cube van, which crossed the centre line on Road 119 and forced oncoming vehicles off the road at approximately 6:30 pm. Mr.

Allen admits that he was still operating the cube van when he was stopped by Constable Morissette on Mornington Street as he entered the City of Stratford at 6:37 pm. [ 5 ] There is no issue respecting reasonable and probable grounds for arrest, the validity of the demand for the drug evaluation pursuant to s. 254(3.1) of the Criminal Code or the validity of the demand for a urine sample pursuant to s. 254(3.4) of the Criminal Code . [ 6 ] The defence concedes that Mr. Allen showed obvious signs of impairment at the roadside and during the subsequent drug evaluation by Constable Jardine.

Defence counsel submits that there is no way to reliably determine whether such impairment was caused by drugs, exhaustion, hypothermia, dehydration or a combination of some or all of those factors. [ 7 ] As to the drugs found in Mr. Allen’s urine sample, defence counsel submits that there is no evidence respecting when the drugs were taken, the amount consumed or whether the drugs were still psychoactive at the time of driving. Defence counsel emphasizes Mr.

Allen’s testimony that the last drug he consumed was cocaine at approximately 8:00 pm the previous evening. [ 8 ] On the dangerous operation charge, defence counsel submits that while the driving in question was objectively dangerous, the Crown has not proven beyond a reasonable doubt the requisite mens rea of a marked departure from the standard of care that a reasonable person would exercise in the accused’s circumstances. Defence counsel emphasizes that the mens rea for dangerous driving cannot be inferred simply from the fact of driving which was objectively dangerous.

Evidence [ 9 ] The crown’s case consisted of:

1. The testimony of Mike Tovell, whose vehicle was forced off the road by the accused’s cube van; 2. The testimony of Rodney Golds, whose vehicle was also forced off the road by the accused’s cube van; 3. The testimony of the investigating officer, Stratford Police Service Constable Morissette. 4. An admission that Stratford Police Service Constable McMillan, who conducted the Standard Field Sobriety Test at the roadside, noted at the beginning of his 5:00 pm shift “weather: rain” and did not make any note about Mr. Allen admitting to the consumption of a drug. 5.

The testimony of Stratford Police Service Constable Jardine, who is certified as a drug recognition expert by the International Association of Chiefs of Police. Constable Jardine conducted the drug evaluation to determine whether the accused’s ability to operate a motor vehicle was impaired by a drug pursuant to s. 254(3.1) of the Criminal Code . The Drug Influence Evaluation form was filed as Exhibit “4”; 6. The testimony of Dr. Marie Elliot, a forensic scientist at the Centre of Forensic Sciences, who testified respecting the pharmacological and toxicological effects of drugs on the human body. Dr.

Elliot’s November 13, 2014 Report respecting the drugs detected in Mr. Allen’s urine sample was filed as Exhibit “7”. Mike Tovell [ 10 ] The first crown witness, Mike Tovell, was an off duty police officer employed by the Guelph Police Service. He was driving his family home on Road 119 after his eleven year old daughter’s soccer tournament in Stratford. It was 6:30 pm. The sky was overcast, but the paved road was dry. The road was flat and straight with one lane in each direction. [ 11 ] Mr. Tovell was driving a large pickup truck in the northbound lane.

He was following a small blue car and could see over the top of that car. His friend, Rodney Golds, who was also on his way home from the soccer tournament with his wife and children, was driving the vehicle directly behind the Tovell pickup truck. [ 12 ] As Mr. Tovell was driving northbound on Road 119, he saw a large cube van approaching in the southbound lane. His attention was drawn to the cube van because it started drifting across the centre line. At that point, the cube van was a few hundred meters away. Mr. Tovell expected that the driver would correct himself. Mr.

Tovell testified that he was on his horn for a good five seconds, hoping that the driver of the cube van would make a correction. However, the southbound cube van continued to come into the northbound lane of traffic. [ 13 ] Mr. Tovell testified that the southbound cube van kept drifting more and more across the centre yellow line so that it was now fully in the northbound lane and approximately 20 meters in front of the blue car ahead of the Tovell pickup truck.

At that point, the blue car pulled onto the northbound gravel shoulder to avoid being struck by the oncoming cube van. [ 14 ] The driver of the cube van then corrected himself a little bit such that now the cube van was head on, heading directly into the path of the Tovell vehicle rather than toward the northbound gravel shoulder. Mr. Tovell described it as a minor adjustment which brought the cube van directly into the path of his pickup truck. Prior to the correction, the cube van had been closer to the northbound gravel shoulder. In Mr.

Tovell’s words, “It was more towards the gravel when the blue car made its decision to go to the gravel. It then corrected itself a little bit and came directly into my path”. [ 15 ] The cube van was some 30-50 meters from the Tovell vehicle. It was still travelling an estimated 90 to 100 kph and at no point did Mr. Tovell see any signs of braking by the driver of the cube van. [ 16 ] Mr. Tovell described making a split second decision. The large cube van was now right in front of him, fully in the northbound lane. He could not see what traffic, if any, was behind the cube van.

There was no room on the northbound shoulder because of the blue car. He made a split second decision to enter the southbound lane and pull over on the southbound gravel shoulder. Mr. Tovell testified that had he not pulled into the oncoming southbound lane of traffic, his pickup truck would have been struck head-on by the cube van or would have been forced into the northbound ditch. There was no room for him to pull his pickup truck onto the northbound shoulder because the blue car had just pulled off to the shoulder to avoid being struck by the cube van. Therefore, Mr.

Tovell hit the brakes and swerved to the left toward the southbound shoulder. [ 17 ] Mr. Tovell testified that when he made the quick decision to go left, the cube van was really close to his pickup truck. He was afraid that the cube van would strike the rear passenger side of his truck where his daughter was sitting. [ 18 ] Once he got his pickup truck onto the southbound shoulder, Mr. Tovell looked back and saw that Mr. Golds had made the same decision and had followed him into the southbound lane and onto the southbound gravel shoulder. [ 19 ] Mr.

Tovell observed that the cube van was now travelling southbound on the northbound gravel shoulder with its right rear indicator light flashing on the passenger side. The driver of the cube van did not stop and continued southbound along the northbound shoulder. Mr. Tovell watched for several seconds and estimated that the cube van travelled several hundred meters on the shoulder of the road.

[ 20 ] Mr. Tovell’s immediate concern was to make sure that the other drivers and passengers were okay. He described the situation as pretty scary. His wife and children were in tears. After checking the well-being of the occupants of the other vehicles, Mr. Tovell made a u-turn and proceeded southbound on Road 119 while his wife called 911. He testified that it is a long, straight, flat road and he could see the cube van still proceeding southbound a kilometer and a half ahead of him. By that point, the cube van was back in the proper lane. However, the cube van’s right indicator light was still flashing.

Due to other traffic, Mr. Tovell lost sight of the cube van as it entered the city limits. As he continued into Stratford, Mr. Tovell saw that the cube van had been pulled over by the Stratford police. [ 21 ] On his way home, Mr. Tovell returned to the scene of the incident and inspected the area. He saw marks on the gravel shoulder indicating that the cube van had continued some 300-500 meters southbound on the north gravel shoulder. He also observed “C” cuts in the gravel, which indicated 4 different attempts by the driver of the cube van to get back onto the roadway. [ 22 ] Under cross examination, Mr.

Tovell confirmed that his attention was drawn to the cube van when the driver started drifting across the yellow line. He confirmed that the cube van kept slowly moving into the northbound lane, it was not a hard swerve. The only slight correction was when the blue car pulled onto the gravel shoulder. It was a quick correction away from the path of the blue car as the blue car pulled onto the shoulder. [ 23 ] Mr. Tovell confirmed that the cube van actually went onto the northbound shoulder, but he did not know whether all four wheels of the southbound cube van left the travelled portion of the northbound lane.

He did not think the shoulder was wide enough to support the large cube van and believed that two wheels were on the gravel when he saw the cube van travelling southbound on the northbound gravel shoulder. He did not see the cube van’s attempts to get back on the paved roadway. When he looked back after checking that Mr. Golds’ vehicle was okay, Mr. Tovell noticed that the cube van was on the shoulder and its turn signal was on. As he put it, “I remember it flashing almost instantly”. He did not see the indicator light on as the cube van approached him. [ 24 ] Mr.

Tovell confirmed that once the cube van was back in its proper lane as it proceeded toward Stratford, he did not notice any other difficulties with the driving. [ 25 ] When asked if what he observed of the van drifting across the yellow line and then making a last second correction would have been consistent with a driver who had fallen asleep and woke up at the last second, Mr. Tovell replied that it was quite possible. However, he also stated that when he blared the horn, it did not cause the driver of the cube van to correct himself or wake up at that point.

Rodney Golds [ 26 ] The second crown witness was Rodney Golds, who was the driver of the vehicle directly behind the Tovell pickup truck. Mr. Golds testified that he was driving home from the soccer tournament when all of a sudden the vehicles ahead of him swerved to the right and to the left and he saw the cube van approaching him in the wrong lane. As he put it, “There was a vehicle approaching in my lane and I had to veer off to avoid a collision”. He did not see the cube van until the Tovell pickup truck veered out of the way, moving left into the oncoming lane of traffic. Mr.

Golds’ vehicle was approximately 2 car lengths behind the pickup truck. At that point, the cube van was in his lane and coming at him straight on, approximately a car length ahead of him. Mr. Golds veered into the oncoming lane to avoid the collision and stopped his vehicle on the gravel shoulder of the southbound lane. He estimated that he was driving approximately 85 kph and the cube van was travelling at least that speed. [ 27 ] When asked to estimate how close the cube van came to his vehicle, Mr. Golds testified. “It felt within inches. It was close”. After stopping his vehicle on the gravel shoulder, Mr.

Golds immediately turned around and saw the cube van still travelling down the opposite side of the highway, on the shoulder of the road. He thought at least two wheels of the cube van were on the gravel shoulder. [ 28 ] Under cross examination, Mr. Golds confirmed that he first noticed the cube van when the Tovell pickup truck swerved out of the way. He confirmed that he only had time to react and did not have time to think or use his horn.

Constable Morissette [ 29 ] The third crown witness was the investigating officer, Stratford Police Service Constable Morissette, who was on uniform patrol duty and operating a marked police cruiser. At 6:34 pm, Constable Morissette was dispatched to investigate the driving complaint involving the cube van. At approximately 6:37 pm, the officer observed the cube van as it came into the City. When the cube van reached her location, she activated her emergency lights, made a u-turn and pulled in behind the cube van. When the cube van did not stop immediately, the officer activated her sirens.

The cube van travelled another block or two and then pulled over. [ 30 ] Constable Morissette exited her police cruiser and approached the driver’s side of the cube van. The driver’s side window was only slightly open. The accused, Paul Allen, was the driver of the cube van. He appeared dazed and disoriented. He did not appear to be aware that she was a police officer or that she was conducting a traffic stop. [ 31 ] Constable Morissette testified that she repeatedly had to ask Mr. Allen to open the window. After 30-60 seconds, he complied with the request.

As the officer put it, “It almost appeared as though it needed to sink in that I was a police officer and directing him to open up his window to explain the reasons for my stop”. [ 32 ] Constable Morissette testified that she told Mr. Allen that she had stopped his vehicle in relation to a driving complaint. She requested his driver’s licence, ownership and insurance. By that time, Constable McMillan had arrived on the scene and was speaking to the passenger. [ 33 ] Constable Morissette testified that she had to explain to Mr. Allen the reason for the stop and her request for documentation several times. Mr.

Allen then pulled out a green file folder and fumbled through the documentation in the folder. She described Mr. Allen as confused or dazed. The officer saw the driver’s licence in the folder, but Mr. Allen kept fumbling through the documents. [ 34 ] Mr. Allen did not appear to know where he was, so the officer asked him, “Do you know where you are now?” Mr. Allen

thought he was in Kitchener and, at one point, said he thought he was on the 407. He was rambling and appeared confused. The officer noticed that Mr. Allen’s speech was very slow and slurred, that his eyelids were droopy and his pupils were dilated. As she put it, “He didn’t appear right”, but she did not detect the odour of alcohol. [ 35 ] After obtaining Mr. Allen’s driver’s licence, the officer asked him to exit the vehicle. Mr. Allen hung onto the driver’s side door and steering wheel to steady himself as he exited the cube van. His pants were undone and he stumbled when he got down to the ground.

For safety reasons, the officer asked Mr. Allen to walk over to the sidewalk. He did so in a very slow and deliberate fashion. He was unsteady and did not walk in a straight line. He was cooperative, but continued to appear confused or dazed. [ 36 ] Constable Morissette testified that she believed that Mr. Allen appeared to be under the influence of drugs. She did not detect the odour of marijuana, but testified that she seemed to recall a conversation about Mr. Allen smoking a marijuana joint sometime that day.

The officer did not record that conversation in her notes, nor did Constable McMillan who by that time had arrived on the scene. I place no weight on that somewhat vague recall of a conversation which was not recorded in either officer’s notes. [ 37 ] Constable McMillan conducted the Standard Field Sobriety Test at 6:50 pm. Based on those results and her own observations, Constable Morissette formed the requisite reasonable and probable grounds for arrest and made the demand for a drug evaluation pursuant to s. 254(3.1) of the Criminal Code . [ 38 ] Mr.

Allen was placed under arrest at 6:54 pm and given his rights to counsel, caution and the drug evaluation demand. Mr. Allen was handcuffed, searched and placed in the rear of the police vehicle. He stated, “I’m not drunk, I haven’t had anything”. Constable Morissette noticed that his speech continued to be slow and slurred. He was transported to the police station. Given his slow and unsteady movements, the officer assisted him walking up the stairs to the booking area. [ 39 ] At the station, Constable Morissette searched Mr. Allen incident to arrest.

As she was peeling down his socks, a glass drug pipe fell out of his right sock and fell to the ground. Mr. Allen immediately stated, “I don’t know where that came from. That’s not mine”. The pipe had residue in it. Accordingly, the officer also placed Mr. Allen under arrest for unlawful possession of a controlled substance, which she believed was cocaine. It is not in dispute that the residue was analyzed and found to be cocaine residue. [ 40 ] After exercising his rights to counsel, the officer noticed that Mr. Allen’s condition appeared to be deteriorating slightly. He became very dozy and tired.

His speech continued to be slurred. He fell asleep when talking on the phone to counsel. She observed that he was slumped over in his chair and was not talking on the phone. The officer knocked on the door and Mr. Allen woke up. The officer provided her grounds for arrest to Constable Jardine, the drug recognition officer, and turned custody of Mr.

Allen over to Constable Jardine to conduct the evaluation to determine if his ability to operate a motor vehicle was impaired by a drug. [ 41 ] Under cross examination, Constable Morissette confirmed that prior to the traffic stop, she observed the cube van in motion for ½ to ¾ of a kilometer. She did not observe any difficulty with the driving during that brief period. Mr. Allen was slow to react to the emergency lights and siren, but did stop his vehicle shortly after she activated the siren. The officer confirmed that in speaking to Mr.

Allen at the roadside she had the sense that he did not know that he was in Stratford. [ 42 ] Constable Morissette confirmed that Mr. Allen’s pants were undone and he appeared somewhat disheveled, but she did not recall if his clothes, which she described as typical work clothes, were damp. She did not recall if his hair was wet or dry. [ 43 ] When asked whether physical exhaustion would explain Mr. Allen’s impaired condition, the officer testified that exhaustion might have been a part of his condition, but not without some drug or substance.

Constable Morissette confirmed that she found methadone prescriptions among the paperwork in Mr. Allen’s file folder. Constable Jardine [ 44 ] The fourth crown witness was the Evaluating Officer, Stratford Police Service Constable Jardine, whose qualifications to provide opinion evidence are not in dispute on this trial. In July 2010, Constable Jardine was certified as a Drug Recognition Expert by the International Association of Chiefs of Police and has re-certified until July, 2016. He completed 21 drug recognition evaluations prior to conducting the evaluation of Mr.

Allen. [ 45 ] Constable Jardine testified that he uses a classification tool referred to as a “Matrix” (Exhibit “2”) to determine which category or categories of drugs that a subject is under the influence of at the time of the evaluation and a Pupilometer card (Exhibit “3”) which also contains a

summary of the 12 Step Drug Evaluation and Classification Program. [ 46 ] In his testimony, Constable Jardine described the steps he followed in conducting the drug evaluation of Mr. Allen. He started the evaluation at 8:05 pm and finished at 9:05 pm. He recorded his findings on the Drug Influence Evaluation Form, which was filed as Exhibit “4”. The evaluation was also videotaped. The DVD of the video was filed as Exhibit “5”. The crown acknowledged that the audio quality is very poor as is position of the camera and indicated that steps have since been taken to improve sound quality and adjust the camera position for future evaluations. [ 47 ] In

summary, Constable Jardine’s testimony respecting the 12 step process by which he evaluated Mr. Allen was as follows: 1. As there was no indication that Mr. Allen had alcohol in his body, the officer skipped Step 1, which is the Breath Alcohol Test. 2. Step 2 is the Interview of Arresting Officer. Constable Jardine was satisfied that there were grounds for arrest and the drug evaluation demand.

3. Step 3 is the Preliminary Examination. The officer conducted an interview of Mr. Allen and made an initial assessment of his condition and appearance. Constable Jardine observed that Mr. Allen’s eyes were bloodshot and watery. His pupils were equal in size and he was able to track a moving object with both eyes. Mr. Allen’s eyelids were droopy and he appeared to be having a hard time keeping his eyes open. He had poor coordination and his movements were slow. Mr. Allen was very cooperative, but on several occasions appeared to be falling asleep. When the officer asked for his middle name, Mr.

Allen gave his birthdate. Mr. Allen complained that he was tired and cold. Mr. Allen reported that the only thing he had to eat that day was candy floss at about 4:00 pm. As to beverages, Mr. Allen stated that he consumed tea, milk and water and that the last beverage he had consumed was in the morning. Mr. Allen believed it was 7:00 pm. The correct time was 8:05 pm. Mr. Allen did not report any medical conditions, but did indicate that he was under the care of a doctor. He was not able to provide a reason or when he had last been seen by a doctor. Mr.

Allen advised that he was currently taking some prescription medications, including methadone, which was prescribed because of his past history of heroin use. He was also taking prescription Seroquel and Ativan for anxiety and to help his sleep. He did not know when his last dose was or how much he had taken. When asked when he last took methadone, Mr. Allen replied “yesterday”. The officer noted that Mr. Allen’s speech was slurred, low, raspy and hard to hear at times. His face was pale and his breath was stale. He was swaying from side to side and back and forth in a circular motion.

The officer also took his initial pulse, which at 68 beats per minute was within the normal range. 4. Step 4 is the Eye Exam in which the evaluator assesses horizontal gaze nystagmus, vertical gaze nystagmus and lack of convergence. Constable Jardine described nystagmus as an involuntary jerking of the eye. He had to remind Mr. Allen to keep his eye on the pen during the test. At times, Mr. Allen lost his focus on the pen and looked at the officer instead. Mr. Allen was swaying continuously during the test.

Constable Jardine determined that Mr Allen had distinct and sustained horizontal gaze nystagmus in both eyes, being a lack of smooth pursuit as he tracked the movement of the pen. If a subject had not consumed drugs or alcohol, the officer would not expect to see nystagmus unless there was a pre-existing medical condition which would be very rare. Mr. Allen did not display vertical gaze nystagmus. The lack of convergence test was conducted to determine if Mr. Allen’s eyes are able to converge or “go cross-eyed”. Mr. Allen’s eyes were not able to converge.

His right eye was able to follow the pen, but his left eye just went straight down. 5. Step 5 consists of four Divided Attention Tests as follows: a. Modified Romberg Balance Test, during which Mr. Allen was swaying significantly from side to side and front to back. When estimating the passage of 30 seconds, Mr. Allen stopped counting at 20 seconds, which was 36 seconds in real time. When he continued to 30 seconds, the total real time elapsed was 50 seconds, well outside the normal range of 25 to 35 seconds. In other words, he had a slow internal clock. b.

Walk and Turn Test, during which the evaluator looks for eight clues that would indicate impairment by drugs. During the instruction stage, Mr. Allen lost his balance several times and eventually gave up and stood off to the side, not in accordance with the instructions. When taking the nine heel to toe steps in a line, he missed touching his heel to toe at one point. During the turn, he stepped off the line and did not complete the turn as instructed. He also raised his arms for balance contrary to the instruction to keep his hands down at his sides at all times. He also touched the wall for balance.

During the test, Mr. Allen complained that he was cold and asked for warmer clothes. He expressed concern about only wearing socks during the test. Constable Jardine testified that he would expect that a person not impaired by a drug would be able to follow instructions, complete the test without asking for additional instructions, not raise their arms for balance, not step off the line, complete the turn properly and consistently touch their heel to their toe. c. One Leg Stand Test, during which Mr.

Allen swayed when trying to balance, used his arms to assist with balance, and put his foot down on a number of occasions because he was losing his balance. He had to be told to lift his foot and continue on a number of occasions. He touched the wall for balance at some points. Constable Jardine testified that people who are not under the influence of drugs are able to stand without raising their arms for balance, do not need to touch the wall for balance and are able to keep their foot in the air and stand straight without swaying. d. Finger to Nose Test. On all six attempts to touch the tip of his nose, Mr.

Allen was unsuccessful. He touched various spots on his face between his chin and the bridge of his nose. After every attempt, he had to be reminded to put his hand back down to his side. On his first two attempts, Mr. Allen touched his chin, not his nose. On the next two attempts, he touched between his lip and his nose. On the fifth attempt, he touched the bridge of his nose and the sixth attempt, the side of his nostril. Constable Jardine testified that people who are not under the influence of drugs are able to touch the tip of their nose and remember to return their hand to their side. 6.

Step 6 is Clinical Indicators and Second Pulse. Mr. Allen’s temperature was 35.5 degrees Celsius, which was a full degree below the normal range, which is 37 Degrees Celsius plus or minus .5 degrees. His blood pressure was 118 over 68, which was below the “normal range” of 120 - 140 millimeters of mercury over 70 - 90 millimeters of mercury. His second pulse was 60 beats per minute. The normal range is 60 - 90 beats per minute.

7. Step 7 is Dark Room Checks of Pupil Size and Ingestion Examination. Constable Jardine used the Pupilometer to assess Mr. Allen’s pupil size in three different lighting conditions. Mr. Allen’s pupil size was within the normal range in normal room lighting, near total darkness and direct light. He also examined Mr. Allen’s nasal area and oral cavity and found no abnormalities. 8. Step 8 is the Check for Muscle Tone. Constable Jardine assessed Mr. Allen’s muscle tone as flaccid. 9. Step 9 is the Check for Injection Marks and Third Pulse.

The officer testified that he observed old track marks or old injection sights on Mr. Allen’s right arm. The third pulse was 64 beats per minute, which was in the normal range. 10. Step 10 is the Interview, Statements and Other Observations, during which Mr. Allen confirmed his use of Seroquel, Ativan, methadone, acetaminophen and hydromorphone. Mr. Allen indicated that he had used hydromorphone two weeks ago and it was still “probably in my system”. He was not sure about the time or dose of the other medications. He indicated that he had taken them at home in Hamilton. Mr.

Allen complained of being tired and cold. The officer described Mr. Allen as generally being “on the nod”, meaning that he presented as having a very difficult time staying awake and having a very hard time keeping his eyes open, yet still heard what was going on around him and was relatively quick to respond when something was said. During the interview, Mr. Allen acknowledged that while he was driving, he was swerving on the road and that his passenger told him to pull over and rest. 11. Step 11 is the Opinion of Evaluation. Constable Jardine testified that based on his observations, he determined that Mr.

Allen was under the influence of two categories of drugs: Central Nervous System Depressants and Narcotic Analgesics. It was the officer’s opinion that both categories of drugs were psychoactive at the time, meaning that both were affecting Mr. Allen’s body at the time of the evaluation. In explaining how he reached this conclusion, the officer reviewed the results of the first 10 steps of the evaluation process and related his findings to the Matrix (Exhibit “2”). He also explained the impact when a person uses more than one category of drug or what is referred to as “poly-drug use”.

Constable Jardine testified that in his opinion, Mr. Allen’s ability to operate a motor vehicle was impaired by drugs and he was not able to operate a motor vehicle safely at the time of the evaluation, which was completed at 9:05 pm. Mr. Allen’s general physical condition and appearance was consistent throughout the evaluation. 12. Step 12 is the Toxicological Sample. Having formed the opinion that Mr.

Allen was under the influence of central nervous system depressants and narcotic analgesics and that his ability to operate a motor vehicle was impaired by a drug, Constable Jardine had the requisite grounds to make a demand for a urine sample pursuant to s. 254(3.4) of the Criminal Code . Mr. Allen complied and the urine sample was sent to the Centre of Forensic Sciences for analysis. [ 48 ] Under cross examination, Constable Jardine confirmed that Mr. Allen told him about various drugs that he consumed and that Mr. Allen was not sure about when he consumed them. The officer confirmed that Mr.

Allen did not make any admission of drug use on the date of the examination. Mr. Allen was not sure when he had last taken the drugs, but indicated that he had taken them in Hamilton. [ 49 ] Constable Jardine confirmed that Mr. Allen indicated he had very little sleep over the past two nights and that Mr. Allen complained of being cold and tired during the evaluation. The officer indicated that the room and corridor in which the evaluation was conducted were quite warm and he was sweating as he conducted the evaluation on Mr. Allen. He did not see Mr. Allen shaking or shivering. The officer did not recall Mr.

Allen’s clothes being visibly wet or Mr. Allen complaining that his clothes were wet. He did recall Mr. Allen saying that his shoes were wet and that is why he had difficulty with the roadside sobriety tests. When the video was played, the officer confirmed that Mr. Allen could be heard asking for warm clothes and saying that “These are my work clothes and they are soaked”. [ 50 ] The officer confirmed that he noted the weather in his notebook, which at 6:45 pm was cloudy. There had been some light rain earlier that day and the temperature was 18 degrees. [ 51 ] When asked if Mr.

Allen looked physically exhausted, Constable Jardine testified that he looked “on the nod”, which is a common symptom of a narcotic analgesic drug. He agreed that it could be possible that it was also a symptom of a person suffering from exhaustion. [ 52 ] Constable Jardine testified that his opinion as to impairment was based on the drug evaluation tests, the evidence provided by the arresting officer and Mr. Allen’s general behaviour, attitude and physical coordination while he was in custody.

The officer explained that he would not be able to formulate an opinion unless there was an agreement between the clinical signs and the signs of the physical testing. He testified that if the symptoms he saw were attributable to something other than drugs or alcohol, he would not be seeing the agreement between the clinical signs displayed and the physical testing. [ 53 ] Under cross examination, Constable Jardine confirmed that cocaine was detected in the urine test and that cocaine is a central nervous system stimulant.

The officer confirmed that he had no basis to conclude that a central nervous system stimulant was affecting Mr. Allen at the time of the evaluation. The officer explained that cocaine typically affects the body for a period between five and 90 minutes and agreed with defence counsel’s characterization of cocaine as a fast acting drug. [ 54 ] The officer confirmed that both methadone and oxycodone, which were detected in the urine analysis, are narcotic analgesics.

[ 55 ] The officer agreed with defence counsel’s suggestion that for the drugs to have had an effect on Mr. Allen at the time of driving or at the time of the evaluation, Mr. Allen would have had to have consumed them within a 24 hour period. In the officer’s words, “That would be a fair assumption”. [ 56 ] The officer agreed with defence counsel’s suggestion that falling asleep could be a sign of exhaustion, but he would not attribute slurred speech to exhaustion.

He agreed that paleness and bloodshot, watery eyes could be caused by exhaustion, but he would not attribute poor balance, poor coordination, a slow internal clock or muscle flaccidity with exhaustion. The officer emphasized that he is not a sleep expert or health professional and does not have training in those areas. [ 57 ] Constable Jardine agreed that many people have difficulty crossing their eyes even when they are totally drug free and it is not uncommon to find unimpaired individuals who exhibit a lack of convergence.

He agreed that having normal pupil size is a contra- indication to narcotic analgesic impairment, but explained that when multiple drugs are in a person’s body, the outcome will vary depending on which drugs are active at the time. [ 58 ] The officer testified that horizontal gaze nystagmus is not affected by fatigue to his knowledge. He testified that there are some extremely rare medical conditions that can cause nystagmus, but most people in that situation would not have a valid driver’s licence because of the health implications.

The officer was not aware of any studies that linked fatigue, lack of nutrition or hypothermia to nystagmus. [ 59 ] The officer confirmed that Mr. Allen’s body temperature, being a full degree lower than the low end of the normal range was a fairly low body temperature and agreed that Mr. Allen complained of being cold during the evaluation.

From his training, the officer was not aware of any possible effects of low body temperature on the tests performed during the evaluation, but emphasized that the evaluation took place in a climate controlled room and corridor. [ 60 ] The officer agreed that the urine test does not indicate how much of a drug was taken, when the drug was taken, or whether the drug was currently active in the person’s body. Dr. Marie Elliot [ 61 ] The last crown witness was Dr. Marie Elliot, a forensic scientist with the Centre of Forensic Sciences, who provided opinion evidence respecting: 1.

The absorption, distribution and elimination of drugs in the human body; 2. The pharmacological and toxicological effects of drugs on the human body; and 3. The impact of certain drugs on the ability to operate a motor vehicle. [ 62 ] Dr. Elliot confirmed that the Centre of Forensic Sciences received a urine sample from Mr. Allen. The results of analysis are set out in Dr. Elliot’s report dated November 14, 2014, which was filed on consent as Exhibit “7”. As set out in the report, the following drugs or metabolites were detected in Mr.

Allen’s urine sample: cocaine, benzoylecgonine, dextromethorphan, lorazepam, methadone, and oxycodone. The finding respecting hydromorphone was inconclusive in that Dr. Elliot could neither confirm nor exclude the presence of hydromorphone in the urine sample. The results of analysis were qualified with the following statement in the report: The detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration.

Urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time, since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug, or drug effects. [ 63 ] Dr. Elliot testified that it is not possible to take urine findings and relate them back to specific levels of impairment or whether impairment even existed at the time the sample was collected or any time prior to that sample collection. [ 64 ] Dr.

Elliot explained that the operation of a motor vehicle is a very complex task, which requires a significant amount of concentration, alertness and vigilance to be able to pay attention to the entire driving situation. The driver must monitor not only the internal environment of the vehicle, for example speed, direction and lane position, but also monitor the external environment, for example other vehicles, signage and pedestrians.

Therefore, anything that can reduce a driver’s ability to concentrate or remain alert and vigilant has the potential to cause impairment of the ability to operate a motor vehicle. [ 65 ] Dr. Elliot further explained that a central nervous system depressant decreases or slows the function of the central nervous system. As such, it has an impact on the speed that a person processes information and a wide impact on the faculties required for the operation of a motor vehicle. It includes decreasing a person’s ability to appropriately divide attention between all of the tasks which are required of a driver.

For example, a person may tend to focus on one task to the detriment of the other tasks necessary to be performed. Also, central nervous system depressants have a tendency to increase a person’s reaction time, particularly when the task is complex or the person is faced with a number of different choices for a particular stimulus or event. [ 66 ] Dr. Elliot reviewed the findings in her November 13, 2014 report respecting the drugs detected in Mr. Allen’s urine sample and timeframes within which she would expect to see the effects of the drugs after their last use. [ 67 ] Dr.

Elliot’s report indicates that cocaine is a central nervous system stimulant primarily used as a drug of abuse. Benzoylecgonine is an inactive breakdown product of cocaine that can form both in the body and in collection tubes during storage. The effects of cocaine use may include excitation, euphoria, increased risk taking behaviour, blurred vision and hallucinations. A “crash” phase may follow a cocaine high during which time individuals can suffer from exhaustion and extreme fatigue. [ 68 ] Dr.

Elliot testified that cocaine is a fairly short acting drug and its primary effects are generally over within one to two hours of its use. She explained that when cocaine is used and primarily when it is used in a binge fashion, once a person stops administering

cocaine they experience a crash or a come down effect from the stimulation they have experienced. The person might become very fatigued and dysphoric as opposed to euphoric. [ 69 ] The next drug addressed by Dr. Elliot is dextromethorphan, which her report indicates is a cough-suppressant medication found in many over-the-counter preparations. At higher than therapeutic doses, this drug has some hallucinogenic properties, including euphoria, sedation, lack of coordination and dizziness. Dr.

Elliot testified that if a person uses a therapeutic dose, there would be no significant effect in terms of sedation or the ability to operate a motor vehicle. A high dose will cause sedation, drowsiness and central nervous system depressant effects. [ 70 ] The third drug addressed by Dr. Elliot is lorazepam, which her report indicates is a drug primarily prescribed for the treatment of anxiety disorders and belongs to the benzodiazepine class of central nervous system depressants.

Effects that occur after use may include lack of muscle control, drowsiness, loss of consciousness, impaired judgment, impaired memory, confusion and dizziness. The effects depend on the concentration within the blood and the tolerance of the individual to the drug. [ 71 ] Dr. Elliot testified that there are many studies examining lorazepam’s impact on a person’s ability to operate a motor vehicle. The effects have been well studied and lorazepam has consistently been shown to demonstrate impairing effects with respect to the ability to operate a motor vehicle. An important consideration is a person’s tolerance.

A person who frequently consumes lorazepam on a routine basis can develop tolerance to its sedating effects. Studies on chronic users who use their medications as prescribed have demonstrated that the levels of impairment are less and in some cases there is no demonstrated impairment. [ 72 ] The fourth drug addressed by Dr. Elliot is methadone, which her report indicates is a drug prescribed for the treatment of opioid addiction and pain. Effects may include dizziness, drowsiness and stupor.

The effects of methadone depend on the concentration within the blood and the tolerance of the individual to the drug. [ 73 ] Dr. Elliot testified that it is an analgesic drug and also has central nervous system depressant effects. Methadone is also subject to tolerance. If people take methadone routinely in the prescribed manner, their bodies are able to compensate for the continual presence of the drug and, in those cases, they may not demonstrate impairment. If the prescribed dose increases, the apparent effects will begin again until the person is able to develop tolerance at that new dose. Dr.

Elliot also explained that if a person adds another central nervous system depressant, then the apparent effects will appear again until their body has time to develop tolerance to the addition of the new drug. [ 74 ] Dr. Elliot further explained that when a number of central nervous system depressants are added together, the person will experience an increase in the effects, over and above each drug on its own. [ 75 ] The fifth drug addressed by Dr. Elliot is oxycodone, which her report indicates is a drug prescribed for the treatment of moderate to severe pain.

Effects may include dizziness, drowsiness and stupor. The effects of oxycodone depend on the concentration within the blood and the tolerance of the individual to the drug. [ 76 ] Dr. Elliot testified that oxycodone is an analgesic drug and a central nervous system depressant. In the drug evaluating classification, oxycodone and methadone fall within the category of narcotic analgesic. Oxycodone and methadone are commonly abused for their euphoric effects. [ 77 ] In

summary, Dr. Elliot testified that all of the drugs detected, with the exception of cocaine, have or have the potential to have central nervous system depressant effects. Cocaine, as a central nervous system stimulant, will not reverse the effects of the central nervous system depressants because they act in very different manners. Cocaine would reduce or counteract sedating effects and make a person feel more alert, but it would still have an impact on that person’s risk taking or ability to respond appropriately to sudden events. One drug does not cancel out the other.

It may counteract some of the effects, but other effects will remain regardless for each of the different types of drugs. [ 78 ] Under cross examination, Dr. Elliot confirmed that many drugs can remain in the urine for a period of time after they have stopped having effects on the human body. She confirmed that she would expect the impairing effects of smoking a small amount of crack cocaine to last one to two hours maximum. The crash effect is more likely to occur after periods of binge use. The bigger the binge, the more significant the crash phase will be.

After a single administration of cocaine, the crash phase would be very difficult to detect and be somewhere within 12 hours of the last use. [ 79 ] Dr. Elliot testified that generally a ten times the normal therapeutic dose of dextromethorphan would produce impairing effects. As to how long those effects last, it depends on the individual because there is a genetic component to the elimination of dextromethorphan. In general, the duration is somewhere between two to six hours. [ 80 ] Dr. Elliot testified that the effects of lorazepam last approximately eight to 12 hours depending on the individual.

Some studies show some residual effects that last longer, but they would not be significant for the operation of a motor vehicle. She explained that the primary impairing effects of lorazepam are sedation and drowsiness. Over time, the body is able to adapt to having the drug present and a person is able to act in normal fashion even with that drug present. [ 81 ] Dr. Elliot confirmed that Ativan is a common name for lorazepam. Seroquel, on the other hand, is an antipsychotic drug, that is also used in the treatment of bi-polar disorder.

It is a drug that would have been found in the screening procedures used at the Centre of Forensic Sciences, but it was not detected in Mr. Allen’s urine. [ 82 ] Dr. Elliot testified that methadone is a drug which takes a long time for the body to eliminate, so there can be active effects and impairing effects somewhere up to about 12 hours. Given that the drug is used therapeutically, it is easy to study. Studies show that people can develop a tolerance to methadone and no longer demonstrate driving impairment when using a stable dose.

It takes weeks or months for a tolerance to develop. [ 83 ] As to the impairing effects of oxycodone, Dr. Elliot testified that it depends on the formulation that is used and how it is

administered. Oxycodone is available in an immediate release formulation as well as an extended release formulation, formerly known as OxyContin, now known as OxyNeo. It depends if a person is taking the drug orally as prescribed or abusing the drug by, for example, crushing it. In general, the effects for the immediate release formulation would be present for three to five hours and for the extended release, 12 hours approximately, depending on the individual and provided it is taken orally as intended. Dr. Elliot also confirmed that Percocet is a brand name of oxycodone. [ 84 ] Dr.

Elliot explained that the term “psychoactive” means that a drug is having an impact essentially on the central nervous system. Dr. Elliot agreed with the suggestion that for any of the drugs found in Mr. Allen’s urine to be psychoactive at 6:00 pm, he would have had to ingest them no earlier than 6:00 am that morning if the maximum duration was about 12 hours. Therefore, any drugs ingested prior to 6:00 am would be unlikely to still be psychoactive at 6:00 pm. [ 85 ] The defence case consisted of the testimony of the accused, 33 year old Paul Martin Allen and the testimony of Dr. David Rosenbloom.

Paul Martin Allen [ 86 ] Mr. Allen testified that he has been taking prescription methadone since March 2014. He stated that when he left his job driving a truck in Halton, he had “kind of a life crisis at that time and had a bit of a relapse” and thought methadone would be a good solution. He explained that his opioid dependency started in Vancouver in 2012. In Vancouver, he was taking heroin. When he came to southern Ontario, he substituted painkillers because heroin was not as readily available. The painkillers were not prescribed for him. [ 87 ] Mr.

Allen testified that on August 16, 2014, he was driving a large cube van, which contained inflatable amusement rides for festivals and parties. He had not worked regularly for the company since 2005, but picked up some sporadic work for a few weeks. He was hired to deliver the amusement rides, set them up and maintain them at the event. He did not know about the details of the event until he arrived at the warehouse to pick up the cube van that morning. [ 88 ] Mr. Allen testified that he was scheduled to leave the warehouse in Oakville at 6:00 am, but did not end up leaving until closer to 7:00 am.

As to his residence, Mr. Allen testified that he was living part of the time in Hamilton with a friend and the rest of the time with his parents in Oakville. As a result, he was doing a lot of travelling back and forth. [ 89 ] On August 16, 2014, Mr. Allen drove from Hamilton to the warehouse in Oakville in his own car. He picked up the cube van containing the inflatable rides to take it to a private corporate event. He could not remember where the event was held, but recalled it was at a park. [ 90 ] Mr. Allen testified that he had been having a very chaotic week.

When asked to describe his activities on August 15 th (the day before the incident) Mr. Allen replied: I had spent the day relatively sober with the one exception where a friend and I did some drugs later on that evening. We spent some time at a friend’s house and spent some time at my house. I then had an incident where a good friend of mine …has a drinking problem and he called me from a bar in East Hamilton saying the taxi driver would not pick him up because he was too intoxicated. I felt obliged to go pick him up. [ 91 ] Mr.

Allen testified that he received the call well after midnight, sometime between midnight and 2:00 am. He did not recall the exact time. This was on the same morning that he had to be at work at 6:00 am. [ 92 ] Mr. Allen testified that he smoked crack cocaine earlier that evening, probably about 7:30 or 8:00 pm, in Hamilton at the house in which he resided with his friend Calvin. He could not remember Calvin’s last name. When asked how much cocaine he had that day, Mr. Allen replied, “It was just a little bit. Probably about $40 worth. Nothing for a huge bender or anything”.

He estimated the amount to be just under half a gram. Mr. Allen testified that he and his friend Calvin both smoked the crack cocaine. They consumed all of it fairly quickly and used the glass crack pipe that the police subsequently found in his sock. [ 93 ] Mr. Allen testified that he did not consume any other drugs before his arrest. As to his prior cocaine use, Mr. Allen testified that he used it sporadically over the last year, but not very often. He stated, “It’s not something I devote all my time to seeking, it’s just more of a social group thing”. [ 94 ] As to the dextromethorphan found in his urine, Mr.

Allen testified that he was not feeling well that week and took one cold medication pill, but did not have any liquid cold medication in his house. He estimated that he took the medication either one or two days before August 15 th . [ 95 ] As to how the lorazepam got into his system, Mr. Allen replied, “I don’t have a prescription for lorazepam. My mother does and when I would spend time at home, if I was suffering from anxiety or whatever, or insomnia, then she would give me one. She’s given it to me on a few occasions”. [ 96 ] When asked if he remembered when he took lorazepam, Mr. Allen replied, “Not exactly.

Like I said I was bouncing back and forth between the residence in Hamilton and my parents’ residence in Oakville. Life was very chaotic for me at that point. I don’t remember the exact date that I took the lorazepam, but it would have been at a time when I was with my parents in Oakville”. He testified that it would have been on some date before he consumed the cocaine. [ 97 ] As to methadone, Mr. Allen testified that he was not at an extremely high methadone dose because he did not want to become too dependent on methadone. He thought his dose at the time was somewhere between 40 and 60 milligrams.

He testified that he takes the methadone every day, but sometimes misses doses because he is too busy or not able to get to the pharmacy. He added, “If I miss a day, it would be okay, I wouldn’t be experiencing any withdrawals. If I missed two days I would usually be okay… if I missed three, then I would kind of be in trouble in that respect”. When his lawyer pointed out that the prescription found by the police indicated ten milligrams, Mr. Allen replied, “I didn’t know I was on such a low dose; that must have been one of my times to taper off”.

[ 98 ] Mr. Allen testified that in the summer of 2014 he was attending a Methadone Clinic in Hamilton every week. He would have a dose there and renew his prescription. He sometimes picked up his dose at a pharmacy in Hamilton and sometimes in Oakville. It was a daily dose mixed in orange juice, which he drank in the presence of a pharmacist. As to whether he took a dose on the day he was arrested, Mr. Allen indicated that he would not have had time. He testified that his dose fluctuated and there were some repeated attempts to try and taper it off. [ 99 ] As to oxycodone in his urine, Mr.

Allen testified that he had taken a few Percocets that week as well. When asked how many and when, Mr. Allen replied, “I think that throughout that whole week I think it was just one day and I think it was two. Pretty sure”. He testified that he did not take Percocet on August 15 th . When asked how long before August 15 th it was that he took the Percocet, Mr. Allen replied: “I don’t remember the exact day because it’s not an event thing for me. … I’ve used drugs recreationally and casually so I don’t recall the exact day. But I know I took some that week”. [ 100 ] Mr.

Allen testified that when his friend Alex called from the bar between midnight and 2:00 am, he was just falling asleep. When asked if he had any idea how long he had been asleep, he replied, “It might have been an hour. It might have been two hours. I don’t know. I dozed off a few times when I was watching TV”. [ 101 ] Mr. Allen testified that he was still wearing the street clothes that he had been wearing all day and left the house accompanied by Calvin. He stated, “Reluctantly I got in my car and drove to the bar. I don’t remember exactly which bar it was.

I remember I had to call him a few times to get him to redirect me because his instructions were not very clear”. [ 102 ] Mr. Allen indicated that when they got to the bar, Alex asked him to drop him off at his home in Stoney Creek. Alex fell asleep enroute. When they got to his house, it took a long time to wake Alex. When he finally did wake, Alex said he was too drunk to go into the house and his mom would kill him if he came home that intoxicated. Alex then asked Mr. Allen to take him to his girlfriend’s house in west Hamilton. Alex again fell asleep in the car.

They could not get a hold of his girlfriend and so Mr. Allen had to take Alex to a friend’s house downtown. Mr. Allen stated, “It just turned into a really long series of shenanigans. I was pretty ticked off with him. … I can’t leave him on the side of the road … so I took him to his friend’s house. His friend came out and helped me carry him in. At this time it was probably 6:00 am in the morning and I was like oh, I gotta get to work”. [ 103 ] Mr. Allen testified that he then drove straight to work in Oakville. He already had his work boots and work clothes in his car.

He asked Calvin to accompany him because he was late and was going to need an extra hand setting things up. Mr. Allen arrived at the Oakville warehouse at 7:00 am and picked up the cube van. He did not have any breakfast. He did not know when he got on the road in the cube van. Mr. Allen explained that the times given in his testimony are approximations and he cannot be certain they are the right time. In his words, “an hour, give or take”. [ 104 ] Mr. Allen drove the cube van to the site of the corporate event. He did not know how long it took to get there or where the event was held.

He indicated that there was some confusion in that respect. His boss told him that the event was in the Kitchener-Waterloo area. Calvin dictated the directions from the back of the contract while Mr. Allen drove. Mr. Allen stated, “I guess the event ended up being closer to Stratford, I don’t recall the name of the park”. [ 105 ] Mr. Allen described the work day as exhausting because it was raining off and on and he had to keep deflating the rides and then inflate them again when the sun came out. The client who rented the rides was agitated and angry with him. Mr.

Allen testified that the day ended probably around 4:00 pm. It was difficult to pack up the rides because they were full of water. It took a lot longer to pack up and he did not remember the exact time he left the park. [ 106 ] Mr. Allen testified that the only thing he ate was some candy floss in the morning when he set up the candy floss machine. He did not recall drinking anything that day. When asked to describe how he felt when he left the park, Mr. Allen replied, “Physically I was very tired. Mentally I was agitated.

One, because I was late for the event, two because I couldn’t please the client. … I was also really agitated with the client because despite my protests I was kind of just pushed aside and they took one of the rides and just set it up in the rain regardless and then I had to deal with trying to roll this thing up afterwards. I was pretty mad about that. Physically, I was exhausted and agitated”. [ 107 ] Mr. Allen testified that he did not even have time to change from his street clothes into his work clothes and his work boots.

He was wearing dress shoes instead of work boots and just some scruffy clothes he wears around the house. He indicated that by the time he finished, his clothes were soaking wet and dirty. When asked why he did not change into his dry work clothes for the drive home, Mr. Allen replied that it did not cross his mind. He was trying to get the cube van back to the warehouse in Oakville so it could be unloaded and set up for the next day. [ 108 ] When asked to describe the driving incident involving the crown witnesses, Mr. Allen stated: “I was more tired than I thought.

When I left the site I was in a state of agitation and I was in a hurry to get back to the warehouse. I was wet and cold and I wasn’t feeling very well. I suppose I must have dozed off while driving which I really regret. I didn’t know I was that exhausted. I suppose when I had been sitting still in the truck for long enough, maybe my level of fatigue started to set in. …I didn’t know because I wasn’t feeling that, what’s the word, unable to operate when I left the site”. [ 109 ] When asked how long he had been driving before dozing off and crossing the line, Mr.

Allen indicated that it was not too long, probably between five and ten minutes. Mr. Allen testified that it had never happened to him before in his career as a truck driver. He stated, “I have driven tired, and been tired from work, but no, I have never been tired to the point where I’ve lost my ability to operate completely”. [ 110 ] When asked to explain when he realized something was wrong, Mr. Allen stated,

“I heard my friend Calvin scream “look out” and I realized I was on the other side of the road. So I swerved back into my proper lane and at that exact moment I realized I should probably get this truck off the road. I’m obviously too tired. At that point I had such a surge of adrenaline I was wide awake because I was scared. I scared the people on the other side of the road who had to swerve to avoid me. I scared myself. I scared my friend. I’m very, very thankful that nothing happened, that nobody was hurt, no property damage.

I was just looking for a place to stop and my friend, Calvin, agreed with me whole heartedly that I should stop the truck and look for somewhere to stop and I was looking for an appropriate place to stop. Somewhere I could get a coffee or use the bathroom, splash my face or whatever. Figure out what my next move was going to be”. [ 111 ] When asked what he saw when he realized that he was on the other side of the road, Mr. Allen replied, “Headlights from the oncoming traffic and another vehicle that was over on the shoulder. I guess that it had swerved to avoid me.

That’s about it. … I just got back onto my side and tried not to have a heart attack and just carried on from there until I could find a place to stop”. [ 112 ] When asked if he knew whether his truck ever went onto the shoulder, Mr. Allen replied, “I believe it did, yes”. He thought he had only two wheels on the shoulder, but he was not too sure. He added that he was in a state of panic and everything just happened so fast. He stated, “I just knew that my truck is not where it’s supposed to be, you know, and I had to put it in the right position to avoid a collision”. [ 113 ] Mr.

Allen testified that he did not remember hearing any car horns. He agreed that he had his turn signal on when he was getting back into his lane and then he had it on when he was looking for a place to stop. He estimated that he was pulled over by the Stratford police a couple minutes after the incident. In his words, “It wasn’t long at all. It wasn’t seconds, but it was a couple minutes, tops”. [ 114 ] Mr. Allen did not recall whether he drove through Stratford on his way to the event. He testified that his friend Calvin was dictating the directions to him and he followed those directions. Mr.

Allen did know that when he left the park, he made a wrong turn and had to turn around and go the right way. He testified that he could not be sure of the route he took. He explained that he did not have time to prepare for the drive, so he just left it up to his friend Calvin to dictate the directions, both on the way to the event and on the way back from the event. [ 115 ] When asked by defence counsel for an explanation for falling asleep at the police station and doing poorly on the balance and coordination tests, Mr. Allen replied, “I naturally have poor coordination and poor balance.

I am probably one of the world’s least athletic people. I was extremely tired. At that point in time I was going through a lot of grief and stress. I hadn’t been eating right. I hadn’t been sleeping properly. I had a very disturbed night the night before. I hadn’t been eating right that day. I hadn’t had an opportunity to eat anything. I had not had an opportunity to have anything to drink. … I was shutting down”. [ 116 ] When defence counsel prompted Mr. Allen by saying “at one point on the video you talk about shivering”, Mr. Allen replied, “Yeah, I was also very cold. I was feeling miserable. I was wet”.

When his lawyer asked if he was actually shivering, Mr. Allen replied: “I can’t recall if I was shivering all the time, but I remember it being freezing cold and I would assume that, you know, shivering would probably be a side effect of being that cold. But yes I was abnormally cold to the point where like I was vocalizing it to the officers that I was wet and I was cold”. [ 117 ] Under cross examination, Mr. Allen admitted that he did not remember what he ate the night before or if he ate anything after consuming the cocaine. He did not remember with any certainty how much cocaine he bought.

He admitted that he did not remember at which bar he picked up his friend or which park he drove to on the day in question. He could not recall times. In general, he admitted that he had “a little bit” of difficulty remembering the details surrounding the events in question. [ 118 ] Mr. Allen admitted that when he was driving down Road 119, he was agitated, he thought he was late, he thought he did not have time to take a break and was probably a bit distracted by the fact of being cold. [ 119 ] As to why his pants were undone when he exited the vehicle, Mr.

Allen testified that he broke the top button on his pants when he was rolling up one of the rides. Notwithstanding the broken button and the fact that his pants were wet, Mr. Allen testified that he had not considered changing into his dry work clothes. He stated, “Well I don’t need a top button on my pants to operate the vehicle, right. I have been wet and cold driving a truck before, but not associated with this extended fatigue”. [ 120 ] Mr. Allen agreed that when he left Hamilton in the morning, his plan was to be back in Hamilton at some point when the day was over.

When it was put to him that it made no sense for him to take along his crack pipe, Mr. Allen replied, “That was a mistake. I didn’t mean to bring it with me. It was just an oversight…that I still had that paraphernalia on me”. [ 121 ] Mr. Allen agreed that he must have had the glass crack pipe on him since 8:00 pm the night before. When asked if it remained in his sock the whole time, Mr. Allen stated, “I’m not too sure if it was always in my sock, but I had it on my person, that I can be certain of, yes”. Mr.

Allen denied that he smoked cocaine on August 16 th . [ 122 ] When pressed that it made no sense that he brought the glass pipe with him from Hamilton, Mr. Allen replied, “I suppose you could criticize. That’s a valid criticism, but I have many things in my pockets that I don’t necessarily need. Sometimes I just overlook things as I get dressed and I have keys in my pockets or other items in my pockets that I overlook, right”. [ 123 ] Mr. Allen testified that he forgot that the crack pipe was on his person. When the crown suggested that the pipe was an important thing to overlook, Mr.

Allen replied, “It is, yes, and I admit that my attitude with these things is a bit casual”. Mr. Allen confirmed that what he meant by “these things” was drug paraphernalia. When it was suggested that his attitude toward drugs in general was a bit casual, he replied, “It has been in the past, yes, but I’ve been really taking steps to turn it around”.

[ 124 ] Mr. Allen admitted he was aware that the combination of drugs he took can cause fatigue and he was advised not to operate heavy machinery and motor vehicles after taking the drugs. Mr. Allen denied taking any drugs on August 16 th , being the date of the driving, and testified that the last drugs he took were on the night of August 15 th . [ 125 ] Mr. Allen admitted that he could not say with any certainty when he took the dextromethorphan or lorazepam. He was pretty sure he took methadone on August 15th, but admitted that he did not remember which pharmacy he attended.

He reasoned that if he was home in Hamilton that day, he would have attended the Whitney Plaza pharmacy. When asked what time he attended the pharmacy, Mr. Allen replied, “Likely in the morning, or the afternoon. I don’t recall exactly when I took it”. [ 126 ] Mr. Allen agreed that when he is taking prescribed methadone he is told to abstain from other drugs. When it was put to him that using cocaine while on methadone was a bad idea, Mr. Allen agreed that he had been advised not to combine those drugs. He realized that it could negatively impact him, yet decided to ignore that advice. [ 127 ] Mr.

Allen admitted that he could not remember what day he took the Percocets or how many Percocet he took. [ 128 ] With respect to his description of having a chaotic week, Mr. Allen indicated that he was feeling run down and was not feeling well. He thought he was getting a cold. He was involved in counselling and some of the topics were upsetting to him, including his parents’ health. He indicated that he was under a lot of stress. His best friend was in the army, stationed in a conflict zone. [ 129 ] Mr. Allen admitted that he could not remember if he woke up in Hamilton or Oakville on August 15 th .

He did not remember whether he took methadone in the morning or the afternoon of August 15 th . He thought it was probably in the morning as that is when he usually went to the pharmacy. The crown then showed Mr. Allen the prescription receipt filed as Exhibit “8”, which showed a time of 4:55. When it was put to him that his recall was completely wrong, Mr. Allen replied, “In this case, yes”. [ 130 ] Mr. Allen then looked again at the prescription receipt and saw it was from an Oakville pharmacy, which is a 24 hour pharmacy.

He testified that it was possible he attended that pharmacy at 4:55 in the morning, but it was likely 4:55 in the afternoon. [ 131 ] When the crown suggested that in terms of being able to report what happened and when it happened, Mr. Allen was not able to help with that very well, Mr. Allen replied, “I’m not a huge help to you at all in this case, no, sorry”. [ 132 ] Upon further reflection, Mr. Allen testified that he did not think he would have been at the pharmacy at 4:55 am. He ultimately testified that he picked up the prescription in Oakville on the afternoon of August 15 th .

He then went to someone’s house in Hamilton and obtained cocaine, which he consumed in Hamilton. [ 133 ] As to exhaustion, Mr. Allen testified that he had stayed up all day and all night and then all day again. It was rainy and cold on August 16 th and setting up and taking down the rides was exhausting. Staying up all night helping his friend was not only aggravating, but also exhausting. The following exchange then took place: Q. You know very well, sir, that a tired driver is a dangerous driver, don’t you. A. Yes. Well, it depends on the degree of fatigue.

I have to add there’s tired and there’s being, you know, so exhausted you can’t operate. I’ve never been so exhausted that I can’t operate before. Q. Except on this occasion. A. Except on this occasion, yes. Q. And you had every reason to know that you were exhausted. A. I had every reason to know I was very, very tired. I did not know I was exhausted to that degree that I couldn’t operate. Q. It was your word. To describe what you had done that day was “exhausting”. A. Yeah, it would have been exhausting. But as many people have to do exhausting tasks often, and so I have to operate the vehicle. Q.

You knew you had been up perhaps 36 hours by now.

A. Close to it. Q. You knew you had a number of distractions, correct. A. Yes. Q. You knew you hadn’t eaten. A. Yes. Q. You knew that was bad. That doesn’t help you at all, does it. A. No, it’s not a help. Q. And you knew that you hadn’t had anything to drink. A. Yes. Q. And you knew that wasn’t helpful, correct. A. Correct. Q. And you knew, by the time you set the vehicle in motion, you knew you were cold and agitated, correct. A. Agitated and a little bit cold. I wasn’t feeling too horrible that I couldn’t function. [ 134 ] Mr.

Allen admitted that he did not know what route he took to get to the park or what route he took on the return trip. He was following the directions that his passenger, Calvin, was giving to him. Calvin was trying to read the instructions backwards and retrace the route they had taken that morning. On the way back, Calvin was telling him which way to go. Mr. Allen did not recall what other conversations they were having or if they were having any conversation on the way back. Mr.

Allen testified that his priority was to get the equipment back to the warehouse and he does not know what else he was thinking about at the time. He heard Calvin cry “look out”. When asked if he was awake or asleep, Mr. Allen replied, “I must have dozed off”. He indicated that it must have woken him up because he was awake very shortly afterwards to correct his course on the road. [ 135 ] When it was put to Mr. Allen that he did not remember being on the shoulder of the road to any extent, Mr. Allen replied, “No, I don’t recall being on the shoulder to much extent”. Mr.

Allen testified that he remembered seeing headlights in front of him because he was on the wrong side of the road. He admitted that he was completely on the wrong side of the road. He admitted that he was aware of the vehicle that was already on the gravel shoulder to his left. [ 136 ] Mr. Allen testified, “You know what, I’m sorry. I’m not trying to be evasive, but I do have a lot of difficulty recalling exactly what happened. I just woke up. I knew I was on the wrong side of the road. I’d seen headlights in front of me. I’m pretty certain there was a car on my left.

I think there might have even been a car on my right, I don’t recall exactly”. [ 137 ] He also stated, “I just knew I was in the wrong lane and I had to get back over”. Mr. Allen acknowledged that he knew it was a very dangerous situation.

[ 138 ] When it was put to him that he did not know what happened to the other vehicles, Mr. Allen testified that he could see in his rearview mirrors that there were some cars on the shoulder. After he corrected his course, he could see that it did not look like any collision had occurred. He agreed, however, that he could not say that with 100% certainty. Mr. Allen admitted that he did not know if there was another car off in the ditch. [ 139 ] Mr. Allen testified that his priority was to stop the cube van and get it off the road. When the Crown put to him that is exactly what he did not do, Mr.

Allen replied, “Not immediately, no. I was looking for an appropriate spot to stop it right. I didn’t want to stop it right on the side of the highway”. The following exchange then took place: Q. You’d rather be driving down the wrong side of the highway than be stopped on the wrong side of the highway. A. It wasn’t my intention to be on the wrong side of the highway at all. Q. You didn’t brake at all, did you? A. My training told me if I’m in a situation like that to not hit the brakes. I just steer in the direction that looks to be the safest. Q.

You didn’t even let off the accelerator, you just continued along on the shoulder and then came back onto the highway and kept going, correct. A. For a period, yes. Q. Measured in not seconds, but minutes, correct. A. Longer than a few seconds, but about a minute, maybe two at the most. You know I’m not even too sure. [ 140 ] Mr. Allen testified that he corrected his course and at that point he was “flooded with adrenaline”. He stated, “I was wide awake, my heart was pounding. I was terrified. My friend was terrified. I was certain I had just terrified those people. I looked in my mirrors ...

There wasn’t any collision because I would have noticed a collision and I would have heard a collision. That probably would have been the incident that had roused me if there was a collision. And I carried on looking for a place to stop”. [ 141 ] Mr. Allen admitted that he did not hear the horn honking for five second or at all. [ 142 ] Mr. Allen’s cross examination ended with the following exchange: Q. You would have us understand drugs had nothing to do with this, it was merely exhaustion? A. I was very tired, yes. Q. You knew you were tired. No one had to tell you that. A. I knew I was tired. Q.

You agreed with me several minutes ago that tired driving, especially to your degree, tiredness is dangerous, correct? A. To that degree, I would have to agree with you. But I didn’t know that I was that exhausted. I really didn’t know.

Dr. David Rosenbloom [ 143 ] The final trial witness was Dr. David Rosenbloom. His Curriculum Vitae was filed as Exhibit “9”. In his May 11, 2015 report, filed as Exhibit “11”, Dr. Rosenbloom described himself as a licensed pharmacist and a clinical professor in the Department of Medicine at McMaster University, where his duties include teaching about drugs and medicine to medical students and staff physicians. [ 144 ] Dr. Rosenbloom’s qualifications in the area of pharmacology were accepted on the consent of the Crown. Following a voir dire into Dr.

Rosenbloom’s qualifications, the Crown consented to the court receiving opinion evidence from Dr. Rosenbloom respecting horizontal gaze nystagmus on the basis that Constable Jardine was permitted to testify respecting horizontal gaze nystagmus in relation to the drug recognition evaluation. Although Dr. Rosenbloom provided opinion evidence respecting horizontal gaze nystagmus, I emphasize that it was on the basis of the Crown’s consent and with limitations as to the weight to be given to such opinion evidence. [ 145 ] The voir dire established that Dr.

Rosenbloom’s education, experience or training respecting horizontal gaze nystagmus was confined to a review of literature in the area, namely 6-8 articles, only one of which Dr. Rosenbloom brought with him to court because he did not want “to burden the court”. The paper, filed as Exhibit “10”, was written by Steven J. Rubenzer and Scott B. Stevenson and is entitled “Horizontal Gaze Nystagmus: A Review of Vision Science and Application Issues”. It was published in the March 2010 Journal of Forensic Sciences . As set out in its abstract, “This

article reviews the literature on smooth pursuit eye movement and gaze nystagmus with a focus on normative responses, the influence of alcohol on these behaviors, and stimulus conditions similar to those used in the HGN sobriety test.” [ 146 ] In his report filed as Exhibit “11”, Dr. Rosenbloom indicated that in the DVD of Drug Evaluation, Mr. Allen clearly displays multiple instances of poor balance and coordination.

He states: “While I do not dispute the physical findings on the video, I am not sure attribution to the drugs he admitted consuming (or that were found in the CFS screen) is the only explanation for these findings for a number of reasons”. [ 147 ] Dr. Rosenbloom listed the following reasons and stated that “these considerations may need to be factored into the entire picture”: 1. We do not know when he took the drugs or in what doses. 2. Tolerance usually develops to the impairing effects of central nervous system depressants (such as lorazepam) within a month or two. 3.

Finding drugs in the urine is indicative of prior drug use and cannot be used to determine the effects, including impairment, at a given time. 4. Mr. Allen’s temperature was 35.5 degrees Celsius and at this low temperature (normal 36.5-37.5) confusion and poor coordination can set in. While some drugs such as methadone and oxycodone can lower body temperature, unfortunately there is simply no way to know whethe

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