R. v. Petterson Date:, 2015 BCPC 169

Citation: R. v. Petterson Date: 20150603 2015 BCPC 0169 File No: 38595 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LISA MARIE PETTERSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Crown Counsel appearing by videoconference: R.Ellsay Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C.

Dates of Hearing: October 6 and 29, 2014 and February 4, 2015 Date of Judgment: June 3, 2015 THE COURT (orally) : Introduction [ 1 ] Lisa Marie Petterson is charged with the offence of having care or control of a motor vehicle while her ability to operate a motor vehicle was impaired by drug on June 5th, 2013, at or near Courtenay, British Columbia, contrary to s. 253(1) of the Criminal Code . [ 2 ] Ms. Petterson (the "Accused") was arrested for this offence in the parking lot of a local secondary school to which she had driven in her motor vehicle in order to pick up her daughter after school.

The Crown has proceeded summarily. [ 3 ] In support of its case, Crown has called a civilian witness who initially observed Ms. Petterson's driving and reported her concerns to the RCMP, whose members thereafter attended to the school parking lot where Ms.

Petterson's vehicle was parked, with her occupying the driver's seat. [ 4 ] Crown's other witnesses comprised three attending or investigating officers, including an experienced officer who is properly trained and qualified and accredited as an evaluating officer within the meaning of section 254(3.1) of the Criminal Code . [ 5 ] In their testimony, each of the two attending police officers expressed non-expert opinions in their evidence about the impairment of the Accused and their opinions as to its cause and opinions about her ability to drive.

Similarly, the evaluating officer did provide testimony but not as an expert. Crown did not comply with the notice requirements for adducing the evaluating officer as an expert. Part of Crown's evidence also included a police video recording of the Accused taken in the secondary school parking lot and in the police cruiser while the Accused was being transported to the local detachment following arrest. [ 6 ] In support of her case, the Accused testified on her own behalf.

She was the sole defence witness. [ 7 ] As the trier of fact on this charge, I must determine whether I am satisfied on the whole of the evidence that Crown has established beyond a reasonable doubt that the Accused's ability to drive was impaired by a drug at the time she was observed driving her motor vehicle and subsequently found in control of it while stopped in the secondary school parking lot.

Summary of the Evidence The Crown's Case Evidence of Sherry Lang [ 8 ] Sherry Lang was the Crown's civilian witness. On June 5th, 2013, at between 3:15 p.m. and 3:45 p.m., she was fulfilling her duties as an employee of the school district at a local secondary school.

Those duties included the before and after school supervision, including traffic control in the area in front of the secondary school. [ 9 ] Her primary function at that time was to position herself in the middle of the driveway leading to the front of the school in order to ensure that only school buses utilized the driveway leading to the front of the of the school and that other traffic turned off into the adjacent parking lot. [ 10 ] Between 3:15 p.m. and 3:30 p.m., she observed an older pickup truck come off of the public roadway adjacent to the school property and proceed along the school driveway towards her. [ 11 ] As it turns out, that pickup truck was being driven by the Accused. [ 12 ] The traffic conditions were described by Ms.

Lang as heavy, with a number of students and vehicles present. [ 13 ] The movement of the pickup truck caused Ms. Lang some concern. The approaching vehicle was not slowing down and continued to proceed at a "steady rate." There was no indication that this vehicle was going to make the required turn into the school parking lot but rather it continued to proceed up the driveway which at that point was restricted for school bus use only. [ 14 ] Ms.

Lang observed that the driver of the pickup truck was not looking up in the direction that the vehicle was travelling but rather the driver was looking down towards her chest with her neck bent. Ms. Lang tried without success to catch the eye of the driver, finally hollering at the driver while at the same time being required to take steps back, away from and out of the path of this oncoming vehicle. [ 15 ] In response to Ms. Lang's shouts, the driver's head came up abruptly. The driver appeared to look startled.

The pickup truck stopped abruptly but not immediately, as the vehicle had continued to roll forward towards Ms. Lang while she stood on the restricted bus only portion of the driveway. [ 16 ] When it came to a halt, the pickup truck was approximately half of a vehicle length from Ms. Lang. It had proceeded approximately half of a vehicle length up the restricted bus only driveway and had therefore passed the turnoff leading into the school parking lot. [ 17 ] Ms. Lang motioned the pickup truck to back up and turn into the driveway. The pickup truck backed up carefully for about a

vehicle length and half once the traffic behind it had turned into the parking lot. The pickup truck was then driven into the parking lot and across it to the corner of the parking lot closest to the school. There the driver brought the vehicle to a halt at a forty-five degree angle across a handicap parking zone and without properly entering into a space between the lines of any of the numerous available parking stalls. [ 18 ] Once the traffic flow again began to move, Ms. Lang approached the pickup truck.

She observed that the driver had initially gotten out of pickup truck by opening the driver's side door and then returning back into the same seat, through the same door. The Accused then attempted to close the driver's side door five or six times. She was prevented from doing this by virtue of a loose weather stripping door gasket which was hanging down and impeding proper closure of the door. The driver seemed unaware of this. [ 19 ] As she approached the driver's side of the pickup truck, Ms. Lang noted that the Accused was once again looking down and appeared to be observing her cell phone. Ms.

Lang observed that the Accused did not appear to be aware that Ms. Lang was approaching the pickup truck. Ms. Lang spoke to the driver twice before there was any response from the Accused. [ 20 ] Ms. Lang asked the Accused twice if she was all right. Eventually, the Accused responded by saying she "had a helluva of a day." Ms. Lang suggested that the Accused take the keys out of the ignition and sit for a while. She further queried the Accused and learned that the Accused was there to pick up a student. The Accused was unresponsive to the questions posed by Ms.

Lang as to whether or not she wished to have the student paged by the office. Finally, the Accused's response to that question was to provide the first name only of her daughter. [ 21 ] Ms. Lang attempted to contact the school office and requested they summons the police due to her concern about the apparent impaired condition of the Accused. Somebody other than Ms. Lang called the police. Evidence of Constable LeBlanc [ 22 ] Two police officers, Constables Shauna LeBlanc and Troy Goddard, were separately dispatched to and arrived on the scene in the school parking lot.

Constable LeBlanc arrived sometime around 3:26 p.m. [ 23 ] Upon arrival, Constable LeBlanc observed the pickup truck that had been described to her by the dispatcher. She approached the driver's side of the vehicle. The keys were in the ignition. She observed that the Accused was sitting in the driver's seat with her head slumped to her chest, using her cell phone as if she were texting. The door of the vehicle was open. Constable LeBlanc noted very slow and deliberate actions by the Accused as she attempted to utilize the cell phone.

The Accused did not notice Constable LeBlanc's presence for some 20 seconds, notwithstanding the fact that Constable LeBlanc was standing beside her on the driver's side right near the left pillar of the pickup truck and only slightly back from the windshield. [ 24 ] The Accused's clothes were dishevelled, covered with some dirt and debris and had an appearance consistent with the suggestion that the Accused had been working in the garden in those clothes. [ 25 ] At approximately 3:27 p.m., Constable LeBlanc engaged the Accused in conversation for the purposes of getting her attention.

The Accused responded in an abbreviated manner to the effect that she was there to pick up her daughter, whom she identified by her first name. [ 26 ] Also Constable LeBlanc observed several important things about the Accused's behaviour. She was polite.

The Accused was described as being extremely docile, she had droopy, heavy eyes and presented with long blinks of her eyes, her head was heavy and falling down into her chest, she looked extremely tired, slurred her words, and her words were drawn together, her actions were slow and deliberate, and she evidenced dexterity problems while attempting to utilize her cell phone. [ 27 ] Although her answers to the various questions posed by Constable LeBlanc were forthcoming, the responses were very delayed between the questions being asked and the replies provided, as if the Accused had to think how to say or how to word her responses. [ 28 ] Constable LeBlanc had been a member of the RCMP since 2000, during which time she served approximately three to four years in the traffic section, and throughout her police service, she had had considerable experience dealing with impaired driving investigations, the majority of which were alcohol-related. [ 29 ] The Accused was asked to step out of the pickup truck.

She was able to get halfway out of the vehicle with her feet on the ground but remained half in the vehicle and partly seated in the driver's seat. [ 30 ] The Accused was asked to produce her driver's license. She fumbled in her wallet for between one and two minutes in order to successfully produce it.

In the meantime, she had taken out and presented a couple of other cards that were not her driver's license. [ 31 ] Based on her observations of the Accused and her interaction with the Accused, Constable LeBlanc observed what she described as "extreme indicia of impairment" on the part of the Accused beyond what she would describe as "usual impairment" of an individual's abilities.

Constable LeBlanc described this as amounting to a "level of intoxication, not just impairment." Constable LeBlanc concluded this level of intoxication would significantly adversely affect the Accused's ability to drive. [ 32 ] Constable LeBlanc could detect no odour of alcohol coming from the Accused. Evidence of Constable Goddard [ 33 ] Similarly, Constable Goddard, who had experience during his 12 years of RCMP service dealing with impaired drivers and with individuals who had consumed both drugs and alcohol, was able to observe the Accused's interaction with Constable LeBlanc.

He corroborated her observations of the Accused, and he reached the same conclusions about the Accused being impaired by drugs. He could detect no odour of alcohol coming from the Accused and therefore concluded the impairment was caused by drugs. Constable Goddard played a secondary role in the investigation, including taking photos and obtaining a statement from Sherry Lang.

[ 34 ] In cross-examination, Constable Goddard testified that he had previously worked as a paramedic for five-and-a-half years. [ 35 ] He indicated that he was aware that there are other non-drug impairments that can occur. He specifically cited diabetic shock. He further testified that he knew about heatstroke and that the cause of it can be from an individual being in the elements too long and from dehydration. In his experience, individuals may display incoherent behaviour if so afflicted. It can cause lower than normal body temperatures, and the person suffering from it may lose consciousness.

He agreed with the defence counsel's characterization that the incoherent behavior of an individual arises from the "brain misfiring" as a result of the individual being overheated. Constable Goddard also agreed that somebody suffering from heatstroke could fumble in their attempts to produce a driver's license and be unaware of something blocking the proper closure of a vehicle door.

Further Evidence of Constable LeBlanc [ 36 ] Constable LeBlanc was concerned about the Accused's condition, and tried to get to the heart of what was causing the observed symptoms and the Accused's behaviour. [ 37 ] Constable LeBlanc had previously had two unrelated matters involving diabetic drivers who had displayed significant indicia of impairment.

In response to LeBlanc's questions, the Accused said she was not diabetic. [ 38 ] In further response to the initial questions posed by Constable LeBlanc, the Accused indicated that she had not had anything to drink but did say that she had taken antidepressant medications. The Accused also said that she had also taken painkillers, but in further answer to a question, said that she had not taken more than she was supposed to take. She became visibly upset and said that her mother had passed away.

As it turned out, that death had occurred over a year prior to this time. [ 39 ] At 3:30 p.m., Constable LeBlanc formed the opinion that the Accused's ability to operate a motor vehicle was impaired by a drug, based upon all the attending circumstances.

These circumstances included the description of the Accused's vehicle and its observed driving operation, both of which had initially been provided to her through the reports received and relayed by the police dispatcher, the physical observations of the Accused's indicia of very significant impairment, the lack of any odour of alcohol, and the Accused's statement about having consumed painkiller and antidepressant medications. [ 40 ] As they were standing near the pickup truck, Constable LeBlanc told the Accused that she was being detained for an impaired driving investigation and shortly thereafter chartered and warned the Accused from memory.

The Accused confirmed that she wished to speak to a lawyer. Constable LeBlanc then escorted the Accused towards her police cruiser at 3:31 p.m. [ 41 ] The police cruiser was equipped with a video camera facing out to the front of the vehicle and which was recording the events that were taking place from the time that Constable LeBlanc had originally approached the side of the pickup truck and commenced her engagement with the Accused.

At that point, Constable LeBlanc was not wearing her portable microphone and thus was unable to record the events that occurred at the side of the pickup truck. [ 42 ] While the Accused was walking in the company of Constable LeBlanc towards the police cruiser, the Accused's physical conditions were being recorded by the camera in the police cruiser. The DVD recording shows that the Accused was significantly off- balance and not walking in a straight line. [ 43 ] The Accused was placed by Constable LeBlanc in the rear of the police cruiser, with the silent patrolman screen open.

The Accused was told about the existence and operation of the audio-video recording equipment in the police vehicle. The video and audio recording of the Accused continued while she sat in the back of police cruiser and Constable LeBlanc sat in the front seat. [ 44 ] In the police cruiser at 3:31 p.m., Constable LeBlanc again informed the Accused that she was being detained for an impaired driving investigation, and then again chartered and re-warned the Accused using the standard issued police card.

The Accused once again indicated that she wished to speak to a lawyer. [ 45 ] Constable LeBlanc also made the formal demand pursuant to section 254(3.1) of the Criminal Code on the Accused at 3:35 p.m. That demand was that the Accused was required to submit to a drug recognition evaluation.

In response to Constable LeBlanc's questions, the Accused said that she understood the Charter warning, the police warning about any statements she made, and the formal drug recognition evaluation demand. [ 46 ] The video recording confirmed that the Accused's speech was very slurred and she was barely able to speak. [ 47 ] At 3:39 p.m., having exchanged information with Constable Goddard and having arranged for a drug evaluation expert to be contacted in Nanaimo, Constable LeBlanc drove the Accused from the scene to the Courtenay RCMP detachment, where they arrived at 3:46 p.m. [ 48 ] During the transfer to the detachment, the Accused was videotaped.

The video recording indicated that the Accused was continuously looking down and had difficulty keeping her head up, had difficulty keeping her balance and being able to sit straight up in the vehicle, and that she had difficulty looking out the window. She appeared to be sleeping for significant portions of the trip, including upon her arrival at the detachment, where she had to be roused in order to get out of the police cruiser. [ 49 ] Upon arrival at the detachment, attempts were then made to contact the Accused's lawyer whom she had identified. Locating that lawyer proved unsuccessful.

The Accused was given the opportunity to call a friend in order to obtain the lawyer's telephone number. Constable LeBlanc noted that the Accused's hand-eye coordination was significantly off and that she had considerable trouble pushing the correct buttons on the telephone in order to complete the call to her friend. [ 50 ] Ultimately, at 4:08 p.m., she spoke privately to legal counsel in the detachment phone room with the door closed. Constable LeBlanc maintained a visual observation of the Accused through the window in the door.

At approximately 4:10 p.m., it was noted that the Accused appeared to have fallen asleep for about one minute during the conversation she was having with her legal counsel. She

then appeared to awake and re-engage in a telephone discussion with her lawyer for another minute and then hung up. The Accused told Constable LeBlanc that she was satisfied after speaking with her lawyer. [ 51 ] Having been chartered and warned and having spoken to a lawyer, at 4:23 p.m., Constable LeBlanc then continued to observe the Accused and spoke with her until the arrival of Constable Beisel. The Accused was told of the forthcoming arrival of Constable Beisel, the Evaluating Officer.

Constable LeBlanc kept notes of these discussions. [ 52 ] During these voluntary discussions, the Accused indicated that she had been prescribed antidepressants about two weeks previous. She said she obtained them from a doctor whose name she could not remember, and while she was in Williams Lake. She had apparently been taking the medications for about two weeks. Subsequently, in the conversation, she said that she had obtained the medications from a clinic while she was in Chilliwack.

She further indicated that she had been prescribed and taken antidepressants about three years previously. [ 53 ] In response to a question posed to her by Constable LeBlanc as to whether she should be driving, the Accused stated that she should not be driving. When asked if she felt okay, she replied she was and that she was "not really out of it, not really." [ 54 ] Throughout this discussion, the Accused's motions were slow as she moved her hands to her face, she moved her hands slowly to her mouth, and there were long blinks of her eyes. She appeared sleepy and appeared to fall asleep.

She had difficulty holding up her head and at times put her head on her arms on the table. When then asked another question she would raise her head up. At times during the conversation, her arms would slide off of the table as if she were very tired or intoxicated. Her speech was slurred, and she had difficulty in forming sentences and difficulty correctly pronouncing place names such as Chilliwack and Merville, where she resided. [ 55 ] She was asked how many antidepressant pills she had taken that day.

At 4:28 p.m. in her discussions with Constable LeBlanc, the Accused said that she had taken three pills in the morning and two in the afternoon at the same time around 1:10 p.m. The Accused indicated that she had hurt her back at around 12:30 p.m. that day while attempting to lift out a stump on her property. It was after that she apparently took more antidepressant medication to make her feel better. [ 56 ] The Accused also spoke in terms of having ripped some muscles in her back earlier in the day and had treated the resulting pain by taking an over the counter pain medication.

The Accused also spoke about having fallen earlier that day. [ 57 ] The Accused stated that she had not consumed any alcohol. She was uncertain of the strength of the medication she had taken. She also spoke of the medication as "nerve pills" that she placed under her tongue, and that she did not take them regularly and only took them at night before she went to bed. She explained that she had intended to go to bed that afternoon after taking the medication, but her daughter called seeking a ride from school. [ 58 ] She was asked whether or not she was familiar with a medication known as Ativan.

She provided no response to that question. Later she was asked about the medication she had taken, possibly being referred to by Constable LeBlanc as "Adivan" or "Atavan" which seemed to prompt a significant recognition on the part of the Accused, as expressed by her body language by opening her eyes and providing a verbal confirmation by the word "yeah." Constable LeBlanc described it as if the Accused experienced an "epiphany." [ 59 ] The Accused appeared to fall asleep with her head on the table between 5:00 p.m. and 5:20 p.m.

Evidence of Constable Beisel [ 60 ] At approximately 5:28 p.m., Constable Ross Beisel, apparently the only available drug evaluating officer that day on Vancouver Island, arrived at the Courtenay detachment, having travelled up island from Ladysmith promptly after being contacted at 3:50 p.m. He was briefed by Constable LeBlanc as to what had occurred and the demand that had been made pursuant to section 254(3.1) of the Criminal Code .

At 5:30 p.m., Constable Beisel began speaking with the Accused. [ 61 ] Constable Beisel has been qualified since 2000 as an evaluating officer as set out in section 254(3.1) of the Criminal Code . He has conducted over 200 impaired driving investigations during his 21 year career with the RCMP, and he instructs in standard field sobriety test training. [ 62 ] Constable Leblanc observed and made notes while Constable Beisel conducted an interview of the Accused. Constable Beisel also completed notes and information on a worksheet that was used to complete a Drug Influence Evaluation Report.

Neither the worksheet nor the Drug Influence Evaluation Report were tendered as documentary evidence, but frequent references were made to both the worksheet and this report during the course of Constable Beisel's evidence in chief and upon cross-examination. [ 63 ] Constable Beisel testified that he asked the Accused a series of questions to ensure that she was medically fit to complete physical tests, including such things as the present time, her address, what she had eaten, and a general check to ensure that she did not have any apparent injuries or physical disabilities. [ 64 ] Based on the Accused's answers to his questions, Constable Beisel recorded that the Accused was taking "nerve pills"; in response to questions about being sick or injured, she stated that she had pulled back muscles; and with respect to physical disabilities she had stated that she had a "bad back." Constable Beisel made a marginal note on the worksheet to the effect of "possible stress and hypertension" based on the Accused's statement to him that she was "stressed out." [ 65 ] During the course of their discussions and in response to Constable Beisel's questions as to whether she had taken any medication, the Accused indicated that she had taken three Ativan that day, further indicating that she had taken it in the morning and before she had left home. [ 66 ] Constable Beisel could not detect any odour of alcohol on the defendant, but he did smell "almost in a chemical smell" on her breath.

[ 67 ] During the discussion with Constable Beisel, the Accused gave conflicting information about when she had last eaten, at one point indicating that she had not eaten that day, the last time being 3:00 p.m. the prior day, but previously telling Constable LeBlanc that she had eaten around noon on the day of her questioning. The Accused complained about having a bad back. She also complained about "having a bad day." [ 68 ] Constable Beisel also noted that the Accused had thick, slurred speech and appeared to be forgetful and incoherent at times.

She had eyes that were drooping, and she had difficulty keeping them open. She had a flushed face. He further noted that her balance was poor when standing and she almost stumbled when walking. [ 69 ] Constable Beisel administered the standardized drug evaluation tests that are set out in the regulations promulgated pursuant to

section 254.1 of the Criminal Code , known as the Evaluation of Impaired Operation (Drugs and Alcohol) Regulation (hereinafter the "Regulations"). [ 70 ]

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

a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally; (

b) eye examinations, which consist of: (

i) the horizontal gaze nystagmus test, (ii) the vertical gaze nystagmus test, and (iii)the lack-of-convergence test; (

c) divided-attention tests, which consist of: (

i) the Romberg balance test, (ii) the walk-and-turn test referred to in paragraph 2(b), (iii) the one-leg stand test referred to in paragraph 2(c), and (iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed; (

d) an examination, which consists of measuring the blood pressure, temperature and pulse; (

e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities; (

f) an examination, which consists of checking the muscle tone and pulse; and (

g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites. [ 71 ] Constable Beisel provided evidence on his administration of several of these tests and his observations of the Accused in her performance of them. [ 72 ] During the course of administering the eye examinations of the Accused set forth in s. 3(

b) of the Regulations, he observed a jerky movement of the eyes rather than a smooth movement of the eyes. [ 73 ] Much of Constable Beisel's evidence related to the Accused's performance in completing the balance tests and the test to check an individual's ability to estimate time and to multi-task as set out in s. 3(

c) of the Regulations. [ 74 ] Constable Beisel instructed and demonstrated to the Accused how to complete each of these tests which he testified he could do and has completed these tests without difficulty and has observed other sober people complete the tests successfully. He noted that he had trouble focusing the Accused's attention upon him when he was providing her with instructions and that the Accused at times seemed confused and forgetful of the instructions.

She generally followed the instructions but had to be reminded about the instructions a couple of times. [ 75 ] In cross-examination, Constable Beisel confirmed that this was the only occasion which he had administered the tests to the Accused and therefore had no opportunity to observe her ability to complete the tests for comparative purposes. [ 76 ] In the course of completing the walk and turn test, the Accused was unable to maintain her balance while attempting to walk

heel to toe on a straight line with her arms at her side. She stepped off the line three times and she swayed and veered off line towards the wall. She was unable to follow the instructions to take only nine counted heel to toe steps, maintaining contact between her heel and her toe and to make the turn as directed and take another nine heel-to-toe steps back.

She took 10 steps and failed to make the turn as directed and she consistently placed her heel about six inches in front of her toe. [ 77 ] Constable Beisel also administered the one leg stand test on the Accused which required the Accused to stand on one foot with her hands at her side, and to lift the other leg out in front six inches off the ground, and to watch her toe while counting for 30 seconds. Both legs were tested. The Accused was unable to successfully complete the test and had to put her foot down because of problems maintaining her balance.

While standing on her left leg, she had to put her right foot down three times and while standing on her right leg, she had to put her left foot down three times. She raised her arms numerous times and swayed quite badly. She looked straightforward each time rather than at her toe. [ 78 ] The Romberg balance test was also administered to the Accused. The Accused was required to stand without swaying, tilting her head back with her eyes closed, count for 30 seconds, and then put her head forward at the end of 30 seconds and say stop.

The Accused stopped at 42 seconds rather than 30 seconds, swayed one inch back and forth, and swayed two inches in a circle. [ 79 ] The finger to nose test was also administered to the Accused. She was instructed to start with her arms at her side, to make a fist, tilt her head back, and touch the tip of her index finger to the tip of her nose while keeping her eyes closed.

The Accused used the pad of her finger (rather than the tip of her finger) and touched the top or side of her nose rather than the tip. [ 80 ] During the course of the administration of the balance tests and at approximately three quarters of the way through them, Constable Beisel took the Accused's body temperature and discovered that it was 34.6 degrees centigrade rather than what is considered normal at 37 degrees centigrade plus or minus .5 degrees centigrade.

The Accused's blood pressure was elevated beyond the normal range. [ 81 ] In cross-examination, Constable Beisel conceded that not everybody has "perfect balance" and there may be other explanations of an inability to successfully complete the balance tests that are not related to drug or alcohol impairment. He further indicated that some individuals have better hand-eye coordination which could affect the tests such as the finger to nose test. [ 82 ] Specifically, with respect to the one leg stand test, he stated that surgery on a leg could affect balance.

Therefore, both legs are tested. [ 83 ] Also in cross-examination, Constable Beisel indicated that he had no discussions with the Accused about her body temperature variance. He further indicated that there was no indication received from the Accused that she was suffering sunstroke or heat exhaustion.

He further indicated that he had no medical reason to suspect that the Accused was ill in any way. [ 84 ] Constable Beisel indicated that he had not experienced sunstroke personally but his wife had previously experienced "heatstroke." From his personal experience, Constable Beisel indicated that his understanding was that the symptoms of an afflicted person may include clamminess, nausea, a difference in body temperature, and confusion.

He further understood that the symptoms could last one to two days. [ 85 ] The Accused told Constable Beisel that she had taken three pills that day, the name of such medication she could not recall, although there had been a prior discussion with her about the term "Adivan" or "Ativan." [ 86 ] Constable Beisel formed an opinion that the Accused was impaired and that the Accused's ability to operate a motor vehicle was impaired and that impairment was caused by drugs.

This opinion was formed based on all of the permitted tests that he had administered and that the Accused had completed, the physical symptoms of the Accused that he had observed, her admission of having taken three Ativan that day before driving, and an absence of any indication of alcohol consumption. He formed the opinion based upon that admission that it was likely that the drug Ativan that was affecting the Accused's impairment. [ 87 ] At 6:00 p.m., pursuant to s. 254(3.4) of the Criminal Code , Constable Beisel made a demand for a urine sample, which was provided by the Accused at 6:32 p.m.

Presumably, this was made to permit the completion of a toxicology report. At 6:35 p.m., Constable LeBlanc served the Accused with a notice of a 24 hour suspension of her driver's license. She was released at 6:42 p.m. and picked up by her spouse. [ 88 ] No toxicology report that may have arisen out of the testing of the urine sample was tendered into evidence. [ 89 ] No issue was taken by Defence about the voluntariness of any of the statements made by the Accused to the attending police officers. The Defence's Case [ 90 ] The Accused testified on her own behalf.

At the time of the events giving rise to the charges, I understand that the Accused was approximately 51 years of age, the mother of five children, and self-employed as a photographer which requires her to travel around British Columbia. [ 91 ] On the day in question, she had arisen early, around 5:00 a.m., and had gone outside around 5:30 a.m. and started weeding her large garden and feeding her chickens.

She had a large number of chores to complete that day in order to ready her house and gardens in anticipation that she would be leaving on June 7th, 2013, and be away for three weeks in Victoria to attend one of her biggest shows. She continued to work outside until approximately 1:30 p.m. [ 92 ] She described June 5th, 2013 as a "beautiful hot summer day" and as a "gorgeous day." She indicated that she was having a "good day."

[ 93 ] The Accused testified that she was awaiting the return of her ride-on lawn mower which had been taken in for repairs. She utilizes that ride-on lawn mower in order to complete the cutting of three acres of lawn at her residence in Merville, British Columbia. Merville is apparently approximately 13 kilometres north of Courtenay and from the location of her child's secondary school.

The Accused estimated that it is another 12 to 15 minutes' drive from the secondary school to Comox, British Columbia, where the local airport is located and where weather data is collected by a government of Canada agency. [ 94 ] The repairer returned and unloaded the ride-on lawnmower at approximately 1:00 p.m. [ 95 ] Shortly thereafter, she started cutting the lawn. She drove about 10 feet when the propeller blade jammed and would not turn. The engine continued to run but the blade had stopped. She stopped the lawnmower engine. [ 96 ] She was by herself. She decided to try to determine what was wrong.

Accordingly, she got a cement cinder block and by herself attempted to lift up the mower onto the cement block to complete her observations. The mower was heavy. In her attempt to lift it she testifies that she that hurt herself "really good." [ 97 ] She said that her back gave out and that she fell to the ground and just lay there. She said that it was excruciating pain and that she could hardly breathe since it hurt each time that she attempted to do so.

She also said that when she had fallen to the ground, she was hyperventilating and panting. [ 98 ] She became scared and anxious and was worried that she had "screwed" herself and would be unable to travel to Victoria for work purposes. [ 99 ] She was able to pull herself up halfway and crawled into the house. [ 100 ] At that point she was able to take some aspirin because it was the only pain medication that she had available to her.

She then testified that she took two of the "anti-anxiety" pills that had previously been prescribed for her because she was in a lot of anxiety. [ 101 ] Thereafter she went to lay down. She did not intend on going anywhere after she was laying down. She said that the "anti- anxiety pills" did calm her down. [ 102 ] She testified that while she was laying down, her daughter phoned at approximate 2:15 p.m. and requested that she be picked up at school. Sometime thereafter the Accused departed and drove the pickup truck to her daughter's secondary school.

Her daughter was in her third year of attendance at that school. One of the Accused's other child had attended that school for five years.

She had picked her daughter up at that school on a number of occasions, estimated to be at least once per month. [ 103 ] As she was driving, the Accused said that she felt "fuzzy," "not focused" and "not sharp." [ 104 ] She had felt cold after she lay down, and she felt really hot while she was driving. [ 105 ] She testified that she drove into the driveway of the school and that there had been no changes in the driveway since she had been attending at the school in order to pick up her children.

She testified that she was aware that there was a "cut off" into the parking lot that she was obliged to take, and that it was located prior to the start of the bus only lanes. On the day in question, she thought she could "sneak" into the bus only lane, stating that this was common practice among various parents. [ 106 ] She could not recall with any certainty of the existence of any vehicles either in front of her or behind her or whether there were quite a few people in the area outside the school when she arrived.

She could not recall being on her cell while travelling along the school driveway. [ 107 ] She stated that she was driving cautiously and slowly up the school driveway. She stated that she was unable to see Ms. Lang until the last moment, notwithstanding what appears from the photographic evidence to be only a slight curve in the driveway with an absence of any structures or vegetation that would impede the Accused's view of Ms. Lang. The Accused suggested that it was Ms.

Lang's location in the driveway, that is standing back up the bus only lane, that caused the Accused not to see her. [ 108 ] She denied that she almost struck Ms. Lang or that Ms. Lang had to move quickly out of the path of the Accused's oncoming pickup truck. She denied that she did not see Ms.

Lang as a result of her intoxication by drugs. [ 109 ] She did not recall if she had passed the entrance of the parking lot and did not think that she was a vehicle length past the turnoff to the parking lot or whether she had to back up in order to complete a turn into the parking lot, and she could not recall if there were any vehicles behind her, but presumed there were. [ 110 ] She testified that she was not positive if she was in a line of vehicles waiting to pick up students but testified that she had pulled into the handicapped parking stall "waiting out of the line" but that she only stopped in the handicapped parking stall and was not parked with her engine off.

Thus she described this as not being "parked parked." [ 111 ] She stated that this would have allowed her to move her vehicle instantly if required, notwithstanding that the front of her vehicle was parked within just a few feet of the concrete barrier at the head of the handicapped parking stall, as was apparent from the photographic evidence. [ 112 ] She ultimately agreed during her cross-examination that she had not followed a vehicle into the handicapped parking stall, she was stopped long enough there to use her cell phone, that she had no permission to be there, and that there were other parking spots available, and confirmed in re-direct testimony her understanding that it was illegal to park in the handicapped stall. [ 113 ] In her testimony, the Accused stated that she had been prescribed a medication for anxiety after the death of her mother in May of 2011.

She described the medication as a "nerve pill" and during one part of her testimony called it "Lazapan." She said that she was

"dilexic" and often had difficulty remembering the exact names of such things as medications, although she did not take a lot of medications. [ 114 ] She agreed later in her testimony that she was actually dyslectic and that the correct name of the medication was actually Lorazepam. [ 115 ] The Accused stated that she had never been prescribed a medication for depression. [ 116 ] Since her mother's death in 2011, the Accused testified that she had obtained four refills of the "nerve pill" medication and took it thereafter when she was feeling anxious.

She understood that she did not have to take the medication every day and testified that she had not taken the medication on a regular basis. [ 117 ] Her evidence was that she did not know what the strength of this medication was or how many pills were contained in the prescription bottle, but thought it was between 10 and 30.

She testified that she had not experienced any undesirable effects or a reaction from taking this medication. [ 118 ] She also indicated that she was instructed by the doctor at the time that it was first prescribed to "take when needed when anxious." She stated that she did not believe that either the physician or the pharmacist told her about how many to take or specified the maximum daily dose of that medication, either at the time of receiving her original prescription or during any refills of that medication. [ 119 ] She said she had obtained a renewal of the prescription on May 13, 2013, and had it filled in Chilliwack as result of anxiety she suffered because of hearing difficult and very unpleasant news about the experience of one of her children that had occurred during her work absence. [ 120 ] She could not recall whether she had taken any of the medication on the day before the events of June 5th, 2013.

She did testify that she did not take any medication in the morning and only took two tablets of the medication after she had hurt her back and returned to the house between 1:30 p.m. and 1:45 p.m. Other than the aspirin, that was the only medication that she took that day. She said that she had never taken more than two tablets of the nerve pill medication.

She denied that she had ever taken five of the anti-anxiety pills. [ 121 ] She testified that she had not taken any antidepressant pills on that date, nor does she take antidepressant medication. [ 122 ] She stated that she was just confused when she made that statement to Constable LeBlanc about taking an antidepressant medication.

She further testified that she did not recall telling Constable LeBlanc that she had taken either three antidepressant pills or anti-anxiety pills in the morning and two of the same medication in the afternoon. [ 123 ] She testified that she had only taken two anti-anxiety pills and not three of those pills as she had stated to Constable Beisel.

She testified that she did not recall telling Constable Beisel that she had taken three tablets of the medication. [ 124 ] She did not recall agreeing with Constable LeBlanc that she had taken Ativan because she was "really, really tired" and feeling nauseous. [ 125 ] She did recall that she was asked by one of the police officers whether or not she had taken more medication than she was supposed to and recalls that she said that she had not. [ 126 ] She indicated that her dishevelled appearance was as a result of working in the garden and then being required to crawl after she had hurt herself. [ 127 ] She again testified that she felt "very, very confused" that day when she was speaking to Constable LeBlanc and to Constable Beisel.

She also said that she felt very nauseous. [ 128 ] In her testimony, the Accused attributes her confusion and much of her observed behavior and her nausea to having suffered either sunstroke or heatstroke on June 5th, 2013. [ 129 ] This conclusion that she reached was based on her previous personal experience when she was 17 years of age and playing rep fastball in Richmond at a provincial tournament. [ 130 ] On that occasion, she suffered what she described as "heatstroke." She said that she got very sick.

It required her parents to take her to the hospital for treatment because she became dehydrated and experienced low blood pressure. She was shaking, felt cold one minute and hot the next. She lost consciousness. She testified that she was throwing up for two days afterwards. It was on June 6th, 2015, that she reached the conclusion that she had suffered heatstroke or sunstroke on June 5th. [ 131 ] She said that the next day on June 6th, 2015, she was throwing up the entire day.

She did not attend at the emergency ward of the local hospital, nor did she go to see her own doctor or a physician at any of the two local walk-in clinics. She explained that she anticipated that she would only be told to drink liquids and to stay out of the sun. Therefore she forced herself to get up and to start preparing in order to leave for work on June 7th, 2015.

This included obtaining her impounded vehicle. [ 132 ] She further testified that she had never experienced nausea, sweating, chills, variation in her body temperature or difficulty talking or remembering things while taking the anti-anxiety medication. [ 133 ] The Accused also offered testimony and some other explanations as to her observed behavior. She stated that she felt nauseous while she was dealing with the police officers, although she never told them about this. She says that she put her head down.

She did not tell them about the sunstroke because at that time, she did not realize that she was suffering from it. [ 134 ] During her cross-examination, the Accused was presented with an hourly data report for weather and temperature conditions compiled at Comox, British Columbia for June 5th, 2013. It was admitted as an exhibit in the trial. It indicates that the temperature

between 6:00 a.m. and 2:00 p.m. varied from a low of 14.2 degrees centigrade at 6:00 a.m. in the morning and reached a high of 18.5degrees centigrade by 2:00 p.m. [135] Crown suggested to her that given the prevailing weather conditions on that date she could not have suffered heat exhaustion orsunstroke.

In response to Crown's questions, the Accused stated that, based on her own experience, temperatures in Merville, because ofits inland location and higher elevation, are cooler during the winter and warmer in the summer than those experienced in Comox. [136] During the time that she was outside working, she agreed that it was "warm but not hot." She qualified her answer by saying thatit was "very hot for me," testifying that she believed it was over 70 degrees Fahrenheit and maybe 72 degrees Fahrenheit outside in theafternoon that day when she was in Merville.

She agreed that room temperature was around 68 degrees Fahrenheit and probably around20 degrees Celsius, although she noted that she was not very familiar with nor did she use the Celsius scale. She suggested it was awarmer and hotter day in Merville than in Comox. [137] She testified that heat affects her more than the average person because she is anaemic and therefore she got "heatstroke" in lesstime than the average person.

She said that she calls it "heat exhaustion" but does not know the difference, if any, between "heatexhaustion" and "sunstroke." [138] With respect to her performance on the various physical tests that she underwent, she stated that she had previously undergoneknee surgery twice on her left knee which had proven to be unsuccessful and that she was now in need of a knee replacement, but tooyoung to get it. She said that she is also suffering from problems with her right knee. This causes her to be "off-balance" and that shehas "stumbled" because her knee gives out on her.

She states that she has a slight limp on her left leg caused by her knee problem. Thiscondition has continued for the last three or four years. She says that these conditions would have caused her issues when performingthe various tests. [139] On June 5th, 2013, she was suffering from "excruciating pain" in her back when dealing with the police, because of the incidentwith the ride-on lawnmower.

She indicated that this caused her problems lifting both legs during the one leg stand test. [140] She recalled that the pain in her back made sitting difficult for her and caused her problems trying to get out of the pickup truck. [141] She recalls that she told Constable LeBlanc that she had ripped muscles in her back earlier in the day.

She was not certain if shesaid anything to Constable Beisel about her knee problems when she was asked to start the one leg stand test or any of the other tests. [142] She recalls being told that she had done the finger to nose test incorrectly but says that she thought she had done it correctly andthat she may have used the pad of her finger because of the fact that she had long sharp false fingernails at that time. The Applicable Law Basic Principles Presumption of Innocence and Reasonable Doubt [143] The obligation is upon the Crown to prove all elements of the offense beyond a reasonable doubt.

If that occurs, then and onlythen can the court convict the accused person. Where reasonable doubt exists on any element of the offense charged, the accused mustbe acquitted. [144] The burden of proof rests on the prosecution throughout the trial, and it never shifts to the accused. [145] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. Crown must provemore than probable guilt.

However, reasonable does not involve proof to an absolute certainty, since that would be an impossibly highstandard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities [see R. v.Liftchus, (SCC), [1997] 3 S.C.R. 320; and see R. v. Starr, 2000 S.C.R. 144]. Credibility and W.(D.) [146] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of thewitnesses who have provided this conflicting evidence. [147] In doing so, I must weigh all of the evidence.

In so weighing the evidence, I may reject or accept some or all of a witness'stestimony after having taken into account a multitude of factors which include, but are not limited to, appearance or demeanour, ability toperceive, ability to recall, motivation, probability or plausibility, and internal or external consistency. I must also direct myself that evenhonest witnesses may make mistakes in their evidence or have errors of recollection or may present upon the stand in a nervous oruncertain manner for reasons unrelated to truthfulness of their testimony.

It is an error in cases of contradictory evidence to simplyweigh the evidence of one witness against the evidence of another [see R. v. Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J.No 1094]. [148] In cases such as the present one where the Accused has testified, the Supreme Court of Canada in R. v. W.(D.) set out a proposedmodel for a trial judge to instruct a jury or present to themselves if there is no jury. At paragraph 28, the Supreme Court stated asfollows: 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 a 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 which

you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [149] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds afourth step to the W.(D.) analysis; namely, if after careful consideration of all of the evidence, the court is unable to decide whom tobelieve with respect to the central issues in the prosecution, then the Accused must also be acquitted.

Josiah Wood, J.A. (as he thenwas) suggests that logically this ought to be second in order in the W.(D.) analysis. [150] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. I must further instruct myself of the more main point that the burden never shiftsfrom the Crown to prove every element of the offense beyond a reasonable doubt. The lack of credibility on the part of the Accuseddoes not equate to proof of his/her guilt beyond a reasonable doubt [see R. v.

S.(J.H.) 2008 S.C.R. 152]. Case Authorities Relied Upon By Crown [151] Crown has referred the court to and relies primarily upon the following cases:

a) R. v. Graat, (SCC), [1982] S.C.J. 102 (S.C.C.), upholding the decision of the Ontario Court of Appeal cited as(1980), (ON CA), 17 C.R. (3d) 55 (O.C.A.)

b) R. v. Polturak, (Alta. C.A.) 1988 ABCA 306 , [1988] A.J. No. 819

c) R. v. Stellato, (ON CA), [1993] O.J. No. 18 (O.C.A.) Crown's Submissions [152] Crown submits that it has adduced sufficient evidence to prove each of the essential elements of the offence and, specifically,that it has proven that the Accused had the care or control of a motor vehicle while the Accused's ability to operate the vehicle wasimpaired by a drug. [153] Crown says that the evidence of the Crown's witness Lang, who was directing traffic on that day in question, establishes that theAccused was driving her vehicle in a poor manner that was consistent with impairment.

Specifically, she missed the well identifiedrequired turnoff into the parking lot, failed to observe and then almost struck Ms. Lang while in the course of proceeding up a prohibiteddriveway. Having been stopped by Ms. Lang, she then backed up and entered into the school parking lot and then parked her vehicleillegally in a handicapped parking stall in a haphazard manner, diagonally across that stall. This behavior and the observed condition ofthe Accused was concerning to Ms.

Lang, who called the police. [154] Crown further submits that their case is made out by the opinions of Constables LeBlanc and Goddard, both experienced inimpaired driving investigations, who attended and observed the Accused's significant indicia of impairment. On the basis of this indicia,their observations of the Accused's behaviour and her admissions about drug consumption, they properly formed their non-expert opinionthat the Accused was impaired and that she should not be driving.

They also properly formed the opinion that given the admission ofdrug consumption and the absence of anything to suggest any alcohol consumption that the impairment was caused by drugs. [155] The opinions of these two officers about the Accused's impairment is also shared by Constable Beisel, the evaluating officer,who based his non-expert opinion on these same factors and further on the additional observations that he made while properly havingthe accused conduct a series of tests. [156] Accordingly, Crown argues that these non-expert opinions of the Crown witnesses are both admissible, that significant weightshould be placed upon each of these opinions, and that the guidance of an expert is not necessary to prove the Crown's case. [157] Thus the Crown's witnesses, and in particular the police witnesses, satisfy the test adopted by the Ontario Court of Appeal in R.v.

Graat (1980), (ON CA), 17 C.R. (3d) 55 (O.C.A.) and approved by the Supreme Court of Canada at page 381: In my opinion, impairment is a degree of drunkenness. It is a compendious way of describing a condition based on observed facts. Itdoes not require the evidence of a doctor or other expert, nor should it be limited to persons who themselves drive cars. It is a subjectabout which most people should be able to express an opinion from their ordinary day-to-day experience of life.

To testify that a personis impaired is really tantamount to saying "I don't think that he should have been driving." In each case the opinion must be based on theobserved facts: the car was weaving back and forth across the road, there was a strong odour of alcohol on the driver's breath, his powersof perception and coordination were poor, he was drowsy and was not reacting quickly to other cars or pedestrians in the path of his car,and so on.

To exclude such non-expert evidence of witnesses who were passengers in the car of the accused or of other cars in thevicinity or who were pedestrians may result in an injustice to the accused and may at the same time impede the police in the prosecutionof impaired drivers. Such evidence should be admissible.

The weight to be given to such inferential testimony will vary from witness towitness, depending on the observed facts on which it is based. [158] Crown says that the application of the Graat decision applies to the opinion evidence about an accused's ability to drive whilebeing impaired by either by alcohol or drugs, or alcohol and drugs together [see R. v. Polturak at paragraphs 4 to 6]. [159] Crown advances the proposition that if the evidence of impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out [see R. v.

Stellato]. [160] In Crown's submission, no other conclusion can be reached to explain the Accused's erratic driving, her high level of physicalimpairment, and the attending symptoms and indicia, other than impairment by drugs.

[ 161 ] I am urged to reject or, alternatively, to put very little weight on the various explanations offered by the Accused in her evidence and specifically reject the explanation that the symptoms arose out of sunstroke or heat exhaustion. Case Authorities Relied Upon by the Defence [ 162 ] Defence has referred the court to and relies primarily upon R. v. Caldwell , 2004 ONCJ 292 . Defence's Submissions [ 163 ] Defence submits the Crown must prove that the Accused's driving was affected by the drugs that she had consumed.

Here they have failed to do so. [ 164 ] Defence suggests that the evidence does not indicate anything about the nature of the drug that the Accused admitted taking and whether it was the cause of the impairment. In support of this proposition, reliance is placed upon R. v.

Caldwell , where the court refused to convict on a charge of driving while impaired by a drug where there was no evidence regarding interaction of certain drugs that the accused admitted to taking, nor evidence about what the appropriate dosages or intervals of use were for those drugs, and no evidence as to whether they were capable of causing drowsiness or other impairment. [ 165 ] Further, it is said that Crown has failed to tender the urinalysis results or to call an expert to explain the results or provide an explanation of the effects of any drugs found in the urinalysis of the Accused's sample. [ 166 ] Defence further submits that the evidence of the Accused about being afflicted by sunstroke or heat exhaustion provides a reasonable explanation for a number of the Accused's observed symptoms of impairment.

Her evidence about her physical ailments and injuries provides a reasonable explanation of her performance on the tests conducted by Constable Beisel. [ 167 ] Defence says that a reasonable doubt has been raised on the evidence and an acquittal should be entered.

Analysis Analysis of the Evidence and Credibility of the Witnesses [ 168 ] On the whole of the evidence, I am satisfied that the references made to Lorazepam and Ativan (or any variations in the pronunciations or the mispronunciations of those drugs used by the witnesses) and the Accused's references to "nerve pills" or "anxiety pills" or "anti-anxiety pills" are, in fact, actually a reference to the same drug and the one that had been prescribed to and taken by the Accused.

I further accept her evidence that she has not been prescribed nor had she taken any antidepressants on the day of the alleged offence. [ 169 ] I am also satisfied that the Accused had not consumed any alcohol and that it was not the cause of any impairment of the Accused on that day. [ 170 ] I am satisfied on the whole of the evidence that Constable LeBlanc had reasonable grounds to make the demands to the Accused under section 254(3.1) of the Criminal Code for an evaluation conducted by an evaluating officer.

I am also satisfied that the evaluating officer, Constable Beisel, had reasonable grounds to make the body fluid demand pursuant to s. 254(3.4) of the Criminal Code subsequent to the evaluation and having reached his conclusion that the Accused's ability to operate a motor vehicle was impaired by a drug. [ 171 ] I find all of the Crown witnesses to be credible and believable. [ 172 ] I find the Accused to be a credible witness, but in certain respects she is an unreliable witness.

That lack of reliability arises out of her physical condition and her impairment by the time that she arrived at the secondary school and started entering her course of engagement with Ms. Lang and with the three police witnesses. [ 173 ] Given the Accused's condition at that time, which in part was captured on the police cruiser video recording of her, I accept as being factually correct the evidence of the Crown witnesses as it relates to:

a) the accused's poor driving;

b) her physical appearance;

c) her overall physical symptoms of impairment;

d) her impaired physical coordination and her difficulties in performing the various tests administered to her by Constable Beisel;

e) her difficulty staying awake; and

f) her slurred speech, lack of coherence and difficulty speaking. [ 174 ] There is no doubt that the Accused demonstrated some confusion when she was dealing with the police. That was particularly the case when she was being asked questions and providing answers about her prescribed medications and what she had taken and when she had taken them. There were some significant conflicts in her answers about the types and the amounts of medication that Accused said she had taken that day during her various discussions with the police.

Those statements were different than what she stated in her testimony. [ 175 ] I am satisfied that the Accused's account of her day up until she hurt her back and lay down is factually correct. It is consistent with her testimony that up to that point she was having a very busy but a "good day." Given that she had such a physically demanding

planned day before her, and a lot to complete in preparation for her departure on her business trip, it seems unlikely that she would havetaken a significant dose of her "nerve pills" early in the morning, when it was her routine to usually take them at night before she wasabout to go to bed for sleep. [176] Notwithstanding that I only have the Accused's self-diagnosis of having suffered sunstroke or heat exhaustion that day, whichshe says presents a possible explanation for what was observed by Crown witnesses, I have the Accused's evidence of how she hadpreviously reacted to sunstroke or heatstroke as a youthful athlete.

I also have the evidence of Constables Goddard and Beisel about theirexperience with sunstroke or heatstroke and the apparent symptoms which are consistent with the evidence of Accused's past experience. [177] There is no expert medical evidence or other expert evidence before the court to identify the differences, if any, between"heatstroke" or "sunstroke" or "heat exhaustion." These phrases appeared to be utilized interchangeably by the witnesses. There is noexpert medical evidence or other expert evidence before the court as to the causes and the symptoms of these conditions.

There is noexpert evidence to either confirm or contradict the Accused's evidence that she had been stricken by heat stroke or sunstroke or by heatexhaustion earlier in the day and was evidencing symptoms of any of these at the time she was driving or while she had the care andcontrol of the pickup truck, and while she was being detained by the police.

As I have stated, there is evidence about the variousexperiences of the Accused and two of the police officers with respect to some of these conditions. [178] I am satisfied that the witnesses can express an opinion about these conditions from their ordinary day-to-day experience of life.

Based on the evidence I heard from them and their opinions, I accept that heatstroke or sunstroke or heat exhaustion suffered by theAccused is a reasonable, possible explanation for much of what was observed of the Accused by the Crown witnesses. [179] Furthermore, I have the Accused's evidence about her physical disabilities and her injuries.

I am reasonably satisfied that theseconditions could offer a reasonable explanation of the Accused's poor performance on some aspects of the tests administered byConstable Beisel as an evaluating officer. [180] While I have before me as admissible evidence the non-expert opinions of the police officers as to the Accused's impairmentfrom drugs, the weight of that evidence is entirely a matter for the court as the trier of fact to decide, and the value of the opinion willdepend on the view the court takes in all of the circumstances.

The opinions of the police witnesses are not to overwhelm the opinionevidence of other witnesses. Those opinions are not to be considered in a preferential way merely because they have extensiveexperience with impaired drivers. The opinions of the police officers are not deciding a matter for the court to decide. It is up to thecourt to decide the weight of evidence, and for the court to accept all or part or none of their evidence. [See Supreme Court of Canadadecision in R. v.

Graat]. [181] In this case, there is no toxicology report or lab report or chemical analysis before the court identifying what, if any, drugs werein the system of the Accused at the time the Accused had the care and control of her vehicle, or while driving to or while driving up theschool driveway, or while in the parking lot of the secondary school.

No forensic toxicologist has been called to provide expert evidenceon the effects of any drugs found in the body of the Accused as a result of the taking of the Accused's urine sample and the subsequenttests. [182] In this case there is no expert evidence or expert opinion evidence before the court with respect to the evaluation of theAccused's impairment by drugs while she was driving or in the care or control of the pickup truck. [183] There is no expert evidence or, for that matter, non-expert evidence before the court as to:

a) the nature and use of Lorazepam/Ativan or any contraindications as to its use or risks associated with its use,

b) the side effects associated with its use,

c) the usual prescribed dosages for Lorazepam/Ativan,

d) the effects of that drug on an individual,

e) the effects of an overdose of that drug on an individual and the symptoms of an overdose, (if any), including any resultingimpairment that may arise from the use of or an overdose of that drug,

f) the potential effects of various dosages of that drug on an individual's ability to drive a motor vehicle and to impair that ability,

g) what other drugs may affect Lorazepam/Ativan or what drugs it may affect. [184] I have the un-contradicted evidence of the Accused that in the past she never suffered any adverse side effects from taking the"nerve pill" medication. I only have her un-contradicted evidence that she was told to "take it as needed" and that she had no recollectionas to instructions received from a physician or pharmacist as to maximum dosages or any cautions about the medication's potential sideeffects. Analysis of the Case Authorities [185] Section 253(1)(

a) of the Criminal Code does not criminalize impairment by fatigue, stress, or other conditions of the humanbody [see R. v. MacAulay (1975), (NB CA), 25 C.C.C. (2d) 1 (N.B.C.A.), and R. v. Jobin (2002), 165 (3d) 550(Quebec Court of Appeal). [186] The decision in R. v. Kurgan (1987), 2 M.V.R. (2d) 79 (Ont. Dist. Ct.), held that when alleging a drug caused impairment, theCrown must lead expert evidence that the specific drug causes impairment. Unlike alcohol impairment cases, the court is not able totake judicial notice of the impairing effects of a drug.

In the Kurgan case, the court dismissed the appeal of the acquittal of the drugimpaired driving charge and stated that the nature of Valium does not fall within the realm of "common knowledge" or "experience" as to

justify the court to take judicial notice of its properties and its effects on the human body. The court further noted that where the liberty of the subject is at stake, the court must not speculate [see R. v. Kurgan at paragraph 14]. [ 187 ] The decision and reasoning in R. v. Kurgan and the cases cited in and relied upon it were also relied upon by the court in R. v. Caldwell . [ 188 ] I am of the view that the reasoning in R. v. Kurgan and R. v. Caldwell is apposite in the present case. As noted above, there is a significant lack of evidence before me about Lorazepam/Ativan.

This is not a case where I can take judicial notice of the various things that I have described above and that I would anticipate would be the subject matter of the testimony of an expert witness. This is another case where it is inappropriate for the court to speculate about this type of information. [ 189 ] I do not view such a conclusion as being contrary to what the Ontario Court of Appeal stated in R. v. Stellato . In that case at paragraph 14, the court confirms that the trial judge must be satisfied that the accused's ability to operate a vehicle was impaired by alcohol or a drug.

I understand that court then goes on to indicate that if the evidence establishes any degree of impairment, as long as that impairment is proven to be caused by drugs or alcohol, then the offence has been made out. In other words, the evidence must support beyond a reasonable doubt the essential elements of the offence. [ 190 ] In R. v. Polturak , the court relied upon non-expert opinion evidence, as to the impairment of the appellant by a drug, from two drug officers experienced in narcotics control.

They had observed the driving pattern of the defendant's driving and demeanour immediately following in order to come to the conclusion that the defendant was under the influence of a drug. I do not understand that case to be authority for the proposition that in all cases of drug impairment, that the opinion of a non-expert about drug impairment from a prescribed drug, rather than say an illicit drug, will be sufficient to satisfy the Crown's burden of proof.

Conclusions [ 191 ] In this case, I have no evidence before me that any of the Crown's witnesses have any day-to-day ordinary experience of life with Lorazepam/Ativan. The Accused appears to be the only person with that experience, and her evidence does not assist the Crown in meeting its burden. [ 192 ] Crown has elected to rely upon the non-expert opinion evidence of the police witnesses to prove the case.

I have other evidence before me that offers a reasonable explanation as to the cause of that impairment. [ 193 ] I cannot place sufficient weight on the non-expert Crown opinion evidence that the impaired condition of the Accused resulted from the specific drug that the Accused has admitted to taking. [ 194 ] The drug recognition evaluation protocol provisions of the Criminal Code and the Regulations provide the police and, ultimately, the prosecution with a set of tools to assist in gathering evidence of drug impairment from suspected impaired drivers.

Presumably, Parliament contemplated that such evidence would assist in the decision to prosecute and to assist in satisfying Crown's evidentiary burden.

In this case, the police have apparently only partially taken advantage of a portion of the tools that have been made available to them. [ 195 ] Using the formulation of W.(D.) and applying it to the evidence of the Accused as to the alternate explanations for her condition, and having regard to the other evidence that I have accepted, I am left in a reasonable doubt that the Accused's impairment of her ability to drive was necessarily caused by drugs. [ 196 ] Accordingly, Crown has failed to meet its evidentiary burden.

Decision [ 197 ] Therefore I find the Accused not guilty and acquit her on the charge before me. (JUDGMENT CONCLUDED)