R. v. Skihar, 2019 MBPC 71

Citation: R. v. Skihar, 2019 MBPC 71 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) P. Leslie ) for the Crown ) and ) ) ) SKIHAR, Virgil ) E. Pollock ) for the Accused ) ) ) ) Reasons for Decision delivered: ) November 6, 2019 C.A. DEVINE, P.J. [ 1 ] Mr. Skihar was charged with having care and control of a motor vehicle while his ability to do so was impaired by a drug on March 26, 2018. This is my decision after trial. [ 2 ] The only issue was whether Mr. Skihar’s ability to drive was impaired by drugs at the time he was found in care and control of the vehicle.

There is no dispute that he was in care and control of the vehicle and no issue that he had consumed methamphetamine and clonazepam and had those drugs in his body at the time he was arrested. [ 3 ] The Crown called four witnesses: the police officer who was dispatched to Mr. Skihar in his vehicle, a second police officer who observed Mr. Skihar at the RCMP detachment, the Drug Recognition Expert police officer (DRE) who conducted the Drug Recognition Evaluation (DRE) tests with Mr. Skihar, and the Forensic Toxicologist who analyzed Mr.

Skihar’s urine samples and provided expert evidence on how methamphetamine affects a person’s ability to drive. Some facts in the trial were also agreed, and the Agreed Statement of Facts was filed as an exhibit in the trial. AGREED FACTS [ 4 ] Headingley RCMP was contacted about a vehicle in the ditch with a man in possible distress off the TransCanada Highway east of Elie, Manitoba just after noon on Monday, March 26, 2018. Officers were dispatched to the scene.

They seized a blue bag with white powder residue on it, along with a piece of rubber band that police believed would be used to tie off an arm for needle injections. Once the police had removed Mr. Skihar and seized items from the vehicle, the officer started the vehicle, put it in 4 x 4, and drove it out of the ditch/median safely onto a crossroad so that it could be towed. The vehicle was not stuck and was easily driven out of the median. EVIDENCE OF THE CROWN WITNESSES [ 5 ] Constable Zoledowski was an 18-year veteran with the RCMP.

He had seen many impaired people over the course of his career as a police officer and prior to that, when he worked as a bartender for seven years. He had arrested many people for impaired driving. He also had experience dealing with drugs and drug users as an officer with the RCMP Organized Crime Unit. [ 6 ] When Constable Zoledowski arrived at the scene he observed Mr. Skihar’s Ford F150 truck in the wide median between the east and west-going lanes of the TransCanada Highway just east of Elie, Manitoba.

It appeared to him that the truck had been driving west and then swerved southwards into the wide ditch or median. [ 7 ] Mr. Skihar’s vehicle was running, the keys were in the ignition and the automatic transmission was in drive. Emergency personnel were banging at the door and window of the vehicle and yelling, “Open the door!” trying to rouse Mr. Skihar. He appeared to

be asleep sitting in the driver’s seat. His foot was not on the gas pedal nor on the brake. [ 8 ] Constable Zoledowski opened the back door of the truck, put the automatic transmission in “Park” and turned off the ignition. [ 9 ] He and the EMS workers roused Mr. Skihar. Mr. Skihar was incoherent, mumbling, slurring and speaking nonsensically. He was not responding to the questions asked of him. Constable Zoledowski testified that they thought this was a medical emergency involving a stroke, diabetic coma or heart attack. He did not believe that Mr.

Skihar had simply fallen asleep. [ 10 ] Constable Zoledowski and the EMS workers moved him to the ambulance to be assessed. He was able to walk, but was stumbling so that the police had to assist him. He was very slow to respond both verbally and physically. [ 11 ] He had bruises and puncture marks on his arms. [ 12 ] EMS cleared him of any medical emergency. [ 13 ] Constable Zoledowski searched the vehicle. He found ampules of distilled water consistent with intravenous drug use and a razor blade with white residue. He also found granules of marijuana. [ 14 ] At that point, Constable Zoledowski believed Mr.

Skihar was in care or control of a vehicle while his ability to drive was impaired by a drug, for several reasons: - the vehicle’s movement – driving off the highway into the ditch - him being asleep behind the wheel of a running vehicle that was still in drive - various indicia of intravenous drug use: the razor blade with white powder, the ampules of water, the track marks on his arm - his non-responsive and mumbling, slurring manner of speech - his inability to walk without stumbling [ 15 ] Constable Zoledowski eliminated the possibility that Mr.

Skihar’s behaviour was as a consequence of lack of sleep or just being awoken. [ 16 ] He placed Mr. Skihar under arrest. [ 17 ] A pat down search of Mr. Skihar incident to the arrest yielded a glass pipe with white powder residue. [ 18 ] In Constable Zoledowski’s experience as an organized crime officer, he did not believe the white residue on the razor blade or the pipe was baking powder or soda – he believed it to be a drug. [ 19 ] Mr. Skihar told Constable Zoledowski he had not been sleeping over the past several days.

He said he was a methamphetamine and cocaine user and last injected methamphetamine on Saturday. This was just after noon on Monday. [ 20 ] Constable Fenton had been an RCMP officer for eight years, including work as a former DRE; she had conducted 60 to 70 Drug Recognition Examinations. She observed Mr. Skihar during the evaluation. She described him as jittery, he was mumbling, unbalanced and swaying at times, rigid-looking and stiff. She observed that Mr. Skihar had strong body odour, consistent with him not sleeping. Mr.

Skihar told her he had not slept for three or four days. [ 21 ] Constable Fenton’s opinion was that Mr. Skihar was impaired by drugs. [ 22 ] Constable Brian Gulay was the DRE who conducted the Drug Recognition Examination. He had been an RCMP officer for 14 years, but this was only his second DRE. He had taken all the courses and was certified. [ 23 ] His initial observations were that Mr. Skihar was fidgety and was speaking very quickly and was hard to understand. [ 24 ] Mr. Skihar stated that he had a coffee and two English muffins to eat after 10:00 a.m. that day. [ 25 ] Mr.

Skihar told Constable Gulay he injected methamphetamine twice a week, and that he last injected on Saturday morning (approximately 48 hours earlier). He told the officer he had last slept Thursday or Friday, “an hour here or there”, altogether about six hours. [ 26 ] He asked Mr. Skihar if he was sick or injured and Mr. Skihar told him he had a sore finger. He told Constable Gulay he was taking some medication, which he had finished a couple of days earlier, for an infection in his finger. DRE EXAMINATION AND RESULTS [ 27 ] The video of Constable Gulay conducting the 12 DRE tests on Mr.

Skihar was filed as an exhibit, and Constable Gulay explained the tests in his evidence. [ 28 ] The video also shows the two other police officers in the room, including Constable Fenton who was observing much of the testing. [ 29 ] Mr. Skihar had a normal result on the first three eye tests, which assess for nystagmus (jerky, involuntary twitching of the eyes). His pupil sizes were normal. The only abnormality in the eye examination was that Mr. Skihar’s pupils did not react quickly to light.

Constable Gulay testified that this can be a sign of a Central Nervous System (CNS) stimulant drug. [ 30 ] After the eye examination, the divided-attention tests were conducted. The subject is required to follow directions and do physical tests. Their ability to hear, understand, remember and carry out instructions at the same time as their ability to perform the physical tests is measured. [ 31 ] Mr. Skihar did very poorly on the balance testing. In the first test, the “One Leg Stand”, he was instructed to hold one foot out in front a few inches off the floor, with arms at his sides, for a period of 30 seconds.

Mr. Skihar was unable to do the test for more than a couple of seconds at a time, and then only by holding his arms out, accompanied by exaggerated wobbling and listing, to the extent it looked as though he may fall over. Constable Gulay testified that Mr. Skihar’s failure to do this test demonstrated impairment, but not by what substance. [ 32 ] The video next shows the “Modified Romberg” test, another balance test, where Mr. Skihar was instructed to stand straight with his heels together and toes pointed out, arms down, with his head tilted back and eyes closed for 30 seconds. Mr.

Skihar stood still with his head tilted back and his eyes closed for 35 seconds. I noted only very slight swaying, but it was clearly not significant, as Constable Gulay testified that there was no movement. Constable Gulay testified that Mr. Skihar did not deviate from expected performance in that test. [ 33 ] Constable Gulay testified that the next test was the “Walk and Turn” test. Mr.

Skihar was instructed to walk heel to toe along a straight line for nine steps and then pivot with the back foot to change direction and walk nine steps in the other direction, without stopping or stepping off the line and counting the nine steps out loud. Mr. Skihar was able to follow the instructions, but he was unable to maintain his balance. As in the “One Leg Stand” test, it is readily apparent when viewing the video that his arms were swinging significantly in an attempt to help with his balance, and he swayed and swung from side to side, again, looking like he may stumble or fall. He stopped several times.

He stepped off the line. Constable Gulay testified that Mr. Skihar deviated from the expected performance; his poor performance indicated impairment, but again, not from a particular substance. [ 34 ] The next test was the “Finger to Nose” test. Mr. Skihar was instructed to have his heels and toes together, arms at his sides, head tilted back and eyes closed. He was instructed to place his hands out at his sides, with his index fingers pointed out. He was instructed to touch the tip of his nose with either his left or right index finger six times.

He touched the tip of his nose five out of six times – it was only the sixth time that he touched the right side of his nostril. [ 35 ] That completed the psycho-physical tests. [ 36 ] Constable Gulay then conducted further examination for clinical indicators, taking Mr. Skihar’s pulse, blood pressure and temperature. They were all still normal. His muscle tone was normal. [ 37 ] Constable Gulay found four injection sites on the inside of Mr. Skihar’s arms. Further examination indicated a white substance on Mr. Skihar’s tongue and the inside of his nostrils. Mr.

Skihar told Constable Gulay he last used marijuana and methamphetamine Saturday morning. [ 38 ] Constable Gulay testified that he concluded that Mr. Skihar was impaired by a CNS stimulant because of the following: - at the beginning Mr.

Skihar was fidgety, speaking very quickly and hard to understand - he performed poorly on divided attention tests, which indicated that he was impaired - he had injection marks on his arms - he had a white substance in his nose and mouth - the slow reaction of his pupils to light - there was drug paraphernalia in the vehicle - admission that he was a methamphetamine user [ 39 ] As a result, Constable Gulay demanded a urine sample. Mr. Skihar provided the sample and it was sent to the RCMP toxicology lab for analysis. He testified that the toxicology conclusions correlated with his findings on the DRE exam.

EXPERT TOXICOLOGY EVIDENCE [ 40 ] I qualified Kimberly Ann Snider to provide an expert opinion analyzing the bodily samples for various drugs and how those drugs affect someone’s ability to drive a motor vehicle. [ 41 ] Ms. Snider had significant experience as a pharmacist and toxicologist, and had been qualified to testify as an expert in many impaired driving trials involving both drugs and alcohol. She had reviewed significant literature and human performance studies in relation to driving and the effects of drugs on driving skills. She had attended several conferences.

She had taken a specific course on the effect of drugs on human performance and driving, dealing specifically with the most common psycho-active drugs. She had testified as an expert in forensic toxicology and alcohol more than 50 times. [ 42 ] Ms. Snider conducted the analysis of Mr. Skihar’s urine sample. It contained methamphetamine, amphetamine and clonazepam. [ 43 ] Ms. Snider provided background information about the drug methamphetamine as well as the science underlying the DRE test and what impairment is.

[ 44 ] With respect to methamphetamine, she explained that there is no medical use for methamphetamine; it is simply used recreationally. She explained that amphetamine is a metabolite of methamphetamine, so she would expect to see amphetamine in the urine of someone who had consumed methamphetamine. She explained that it was not possible to determine the amount of methamphetamine, amphetamine or clonazepam in Mr. Skihar’s system at the time as that would depend on the pattern of drug use.

She testified that methamphetamine can be detected in the urine between one and four days after use. [ 45 ] Methamphetamine is a central nervous system (CNS) stimulant drug. She described the three phases of effects of methamphetamine: 1). the rush phase, 2). the shoulder phase, and 3). the crash phase. She testified that when methamphetamine is smoked or used intravenously, the individual receives the most intense euphoric and stimulant effect immediately, and that intense effect, the “rush”, lasts upwards of 30 minutes. The “shoulder phase” could last four to eight hours; Ms.

Snider testified that during the shoulder phase the stimulation is not as intense but the impairing effects of the drug persist. Once the stimulant effects start to dissipate, the person enters the dysphoric, or “crash phase”, which is a withdrawal phase and the person experiences the opposite effect as they would during the stimulant phase. During the “crash phase,” the person becomes somnolent or extremely drowsy and they have difficulty staying awake. During this time, their ability to operate a motor vehicle is impaired. [ 46 ] Ms.

Snider indicated a person’s ability to operate a motor vehicle is impaired in all three phases of methamphetamine consumption. [ 47 ] During the “rush” or “intense” phase, the individual experiences intense, euphoric, exhilarated stimulation so that they are very impulsive and highly hyperactive. They can exhibit fidgeting, cannot sit still, they are moving around, their speech is very rapid and incoherent, and they have something called a “flight of ideas” where they cannot put their thoughts together coherently because there are so many thoughts running through their head simultaneously.

They can exhibit grandiosity, that is, a feeling that they are invincible.

They feel that their performance is excellent, that is, they overestimate their performance and so they tend to overestimate their true driving ability and participate in risky driving maneuvers and behaviours such as speeding, not following the rules of the road, not following traffic signals and weaving in and out of traffic. [ 48 ] During the “crash phase”, the individual starts to feel very drowsy; they may have disorganized or scattered thoughts because of the drowsiness and they may have difficulty focussing on the road because of their extreme tiredness. Ms.

Snider testified that these individuals tend to fall asleep behind the wheel. Studies about methamphetamine use in individuals in the “crash phase” show that subjects demonstrate a pattern of driving that is similar to those seen in CNS depressant drugs. They tend to have what are called “off road collisions”, that is, they tend to fall asleep behind the wheel and drift off the road. [ 49 ] Ms. Snider testified about the divided attention tests. She explained that divided attention means splitting one’s mental and physical tasks, and performing both a mental and physical task at the same time.

Mental tasks would include the ability to follow directions, which requires cognitive abilities to remember the directions, and understand them. Physical tasks would include walking on a line heel-to-toe, or touching one’s nose in a certain way. [ 50 ] Ms. Snider also explained the physical and mental tasks required in operating a motor vehicle. The mental tasks would include monitoring the roadway for traffic signals and other vehicles, being mentally cognizant of one’s position on the roadway, and the speed of the vehicle.

The physical tasks would include using the acceleration, steering and braking systems to maintain proper lane positions, proper vehicle speed, and so on.

She testified that when individuals are impaired by a drug they are unable to divide their attention between the physical and the mental tasks required to operate a motor vehicle. [ 51 ] She explained that the signs of intoxication by a drug include not only performing poorly on psycho-physical tests, but also include things like being very fidgety, having difficulty remaining awake, having difficulty with speech, not being able to coherently form a sentence or talking too rapidly or slowly.

She testified that those are all signs of drug intoxication. [ 52 ] Signs of methamphetamine intoxication depend on what state or phase of the methamphetamine high the individual is in. She explained that in the stimulant phase one would expect a person to be very talkative, unable to sit still and fidgety. As the person progresses into the crash phase, they may still exhibit some fidgeting and problems with speech, but are also starting to exhibit some issues with being able to remain wakeful and alert.

She explained that the tiredness characteristic of the crash phase is often exacerbated by a lack of sleep of methamphetamine users during the crash phase. [ 53 ] Ms. Snider’s conclusion after the reviewing the DRE’s report, and obtaining the analysis results, was that Mr. Skihar was impaired by a CNS stimulus drug, specifically methamphetamine and amphetamine. She also stated that both the results of the DRE tests - the psycho-social test as well as the observations of the officer - correlated with the presence of methamphetamine in Mr. Skihar’s body at sufficient levels that he was intoxicated by the drug.

EVIDENCE OF MR. SKIHAR [ 54 ] Mr. Skihar’s defence was that although he regularly used methamphetamine to cope with a painful workplace injury, he was not impaired by methamphetamine at the time he was in care and control of his truck on March 26, 2018. [ 55 ] He testified that he had just lost his job as a result of a work-place accident where his left ring finger was irreparably injured two years earlier on August 4, 2016. He was going to have to have the finger amputated. As a result of the impending amputation, his employer dismissed him from his job in the same week he got charged with this offence.

His finger was subsequently amputated May 3, 2018. [ 56 ] He testified that after the injury in 2016, his finger was very painful. The Tylenol 3’s he was prescribed were not sufficient to control his pain. He tried methamphetamine that same month, in August 2016. Although it did not control the pain, it made him feel

better, “like a weight was lifted off my shoulders; I had no worries.” He testified that as long as he was high, he was able to live with thepain of his finger. [57] He continued to use methamphetamine over the next year and a half until this offence, and did not stop using methamphetamineuntil he received addictions treatment in September 2018, several months after being charged with this offence. [58] He testified that he had not used methamphetamine for several days before the offence; he estimated five days, “give or take aday.” He testified that the day after he was dismissed from his job, he went for coffee and then did methamphetamine with friends inPortage la Prairie, where he lives.

He and his friends sat around all day, listening to music. He testified that he always carried his ownneedles and kept them in his truck. He testified he likely consumed two units, which would cost $20. He would remain high for six toeight hours. After that, he testified that he would feel normal. He would not feel especially tired. [59] Mr. Skihar testified to being very upset about being dismissed from his job. After sitting around in the house for a couple ofdays “moping and feeling sorry” for himself, he filled his truck with gas and drove to Winnipeg.

He testified that he went into Winnipegat about 3:00 p.m. on March 25, 2018. He testified he did not have any money for methamphetamine. He testified that he drove aroundWinnipeg all night stopping occasionally for coffee, cokes and food, and dropping in to see friends. He denied using anymethamphetamine since the time he had used it several days earlier in Portage La Prairie. ANALYSIS OF THE EVIDENCE AND FINDINGS [60] In this case, the Accused testified.

In order not to lose sight of the proper approach to be taken in such a case, to avoid a humantendency simply to compare and choose which evidence is preferable, the Supreme Court of Canada provided direction to trial judges, inR. v. W.(D.), (SCC), [1991] 1 S.C.R. 742: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [61] A judge must assess the witness’ evidence in terms of its inherent reliability and the likelihood that the events happened as theysaid they did. A judge can believe all of the evidence, some of the evidence or none of the evidence of any particular witness. [62] Mr. Skihar’s testimony was rife with inconsistences.

He testified that he had no money to buy methamphetamine, but he agreedon cross-examination that he had just received a severance payment for two weeks pay and was earning $18 per hour. He also agreed hehad just filled his truck with gas, which would have cost $120. He testified that he added more gas in Winnipeg, estimating that to be$30. He stopped for coffee, cokes and food. It is inconsistent to accept that he had no money to buy methamphetamine at $10 for a point. [63] The evidence about his sleep was also inconsistent.

He told police he had not slept more than six hours since Thursday orFriday, which would have been six hours over the previous three or four days. At trial however, he testified that he was only awakethrough the night while he was in Winnipeg, between around 3:00 p.m. when he drove to Winnipeg, until about noon the next day whenhe drove into the ditch. [64] His evidence about methamphetamine consumption was also inconsistent. He told Constable Gulay he last injectedmethamphetamine on Saturday morning, which was two days before.

At trial, he testified he last injected five days earlier, “give or take aday.” The issue of when he consumed methamphetamine was a critical issue in this trial. His inconsistent testimony on such a criticalissue affects his credibility generally. [65] In Mr. Skihar’s case, not using methamphetamine in Winnipeg in the hours previous to driving in the ditch was also notplausible. All the circumstances about Mr.

Skihar’s state of mind on the day he went to Winnipeg, his financial ability to buymethamphetamine, his history as an intervenous methamphetamine user, his behaviour, the examination of the police and evidence of thetoxicologist pointed to him using methamphetamine when he was in Winnipeg. [66] He testified about being extremely upset about losing his job and facing the amputation. [67] He dropped in on several friends. His drug paraphernalia was in the truck. [68] Two points of methamphetamine would cost him $20. [69] Moreover, the evidence in this trial demonstrated that Mr.

Skihar was not a casual user of methamphetamine; he was addicted tothe substance. He continued to use methamphetamine even after being charged with this offence. He was unable to stop by himself. Hefinally got treatment and became sober in September of 2018. [70] He drove around Winnipeg all night without sleeping, which is consistent, again, with being in the rush or shoulder phase of amethamphetamine high. [71] He initially told police he had not slept more than six hours in the previous three or four days, which again, is consistent withsignificant methamphetamine use. [72] Based on the inconsistencies in Mr.

Skihar’s evidence and the implausibility of his explanation for falling asleep at the wheel, Ido not believe him nor does his evidence raise a reasonable doubt. [73] The Crown’s witnesses were credible and their evidence was reliable.

[ 74 ] I accept Constable Zoledowski’s evidence. He testified dispassionately and clearly. As an 18-year veteran of the RCMP, he had significant experience with impaired drivers and impaired people. His evidence was detailed and helpful. It was not inconsistent in any way nor was it changed in any way on cross-examination. I accept his evidence. I also accept Constable Fenton’s evidence.

Although on cross-examination it emerged that she had been investigated in the past for providing misleading information to a supervisor, her evidence was largely corroborative of the DRE examination and it corroborated the evidence of the DRE and Constable Zoledowski and likewise their evidence corroborated what she had to say. [ 75 ] Although Constable Brian Gulay had only been a DRE for two and a half weeks at the time of the his evaluation of Mr. Skihar, he is considered in law to be an expert as provided in the Criminal Code . His evidence was detailed and helpful. He was not argumentative.

His evidence was consistent. He relied on the tests he did. His evidence was unchanged on cross-examination. I had an opportunity to review the videotape of Constable Gulay conducting the tests, which corroborated his observations and testimony. It is obvious that Mr. Skihar performed very poorly on half the divided attention tests. [ 76 ] Likewise, the evidence of the expert, Kimberly Ann Snider, was completely credible, believable and reliable. I accept her evidence in full. [ 77 ] I find as a fact that Mr.

Skihar had taken methamphetamine in proximity to being in the crash phase of that drug at the time that he drove off the road. [ 78 ] I find this because he was a regular intravenous methamphetamine user, he had his needles in the truck, he was upset, he had been driving around Winnipeg for almost 24 hours without sleep and of course, he went off the road and the drug was in his system. There were several injection sites on each arm.

There was white substance in his nasal passages, on his tongue and on the inside of his mouth. [ 79 ] His behaviour in driving off the road is consistent with what the expert testified to as being typical of someone in the crash phase of a methamphetamine binge. I infer that he fell asleep due to being in the crash phase and the cumulative effect of lack of sleep during previous rushes.

He was found to be asleep, he was extremely drowsy, he was stumbling, but at the same time still had some minor fidgeting and incoherent language when the police were dealing with him initially, which is also consistent with being in the crash phase of a methamphetamine high. Drugs and drug paraphernalia were found in his vehicle. He admitted to using methamphetamine regularly intravenously. [ 80 ] He failed several of the drug evaluation tests. CONCLUSION [ 81 ] I find that Mr. Skihar’s drifting off the road was as a result of the impairment by methamphetamine.

He was in the crash phase of that methamphetamine high and his ability to drive was impaired by the use of methamphetamine. [ 82 ] I am satisfied beyond a reasonable doubt that Mr. Skihar’s ability to drive was impaired by methamphetamine at the time that he had care and control of the vehicle. [ 83 ] He is convicted of that charge. “Original signed by :” C.A. DEVINE, P.J.