Her Majesty the Queen - v. -, 2021 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 17 Date: February 17, 2021 Information: 90209927 Location: Carlyle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alvin Dittmer Appearing: Nael Naqvi For the Crown Linh Pham For the Accused DECISION M.R. BRASS , J [ 1 ] Mr. Alvin Dittmer is charged that, on October 12, 2019 at Redvers, Saskatchewan that: He did operate a conveyance while ability to operate it is impaired by any degree of alcohol or a drug or by a combination of alcohol or a drug, contrary to

section 320.14(1) (

a) of the Criminal Code . [ 2 ] At trial, Crown called RCMP members Constable Dani Zaya an officer with two years’ experience and Constable Christopher Lamontagne with 15 years’ experience. Mr. Dittmer testified in his own defence.

FACTS [3] At around 2:00 p.m. on October 12, 2019, Constable Zaya made a traffic stop of the vehicle which Mr. Dittmer was drivingafter observing him make two traffic violations, namely failing to stop at a stop sign and failing to signal. Constable Zaya indicated thathe could not see the signal light on the side of the vehicle. The accused indicated that the lamp on the vehicle’s taillight was burned out. Constable Zaya did not note any other driving infractions. [4] Mr. Dittmer was the sole occupant in the vehicle. When Mr.

Dittmer opened his window at the traffic stop, Constable Zayacould immediately smell cannabis. Constable Zaya observed that Mr. Dittmer’s eyes appeared red and glossy and observed Mr. Dittmermoved his right hand to the console. Constable Zaya stopped Mr. Dittmer from doing so because he did not know what the accused wasgrabbing. The Constable then found a clear jar containing under 5 grams of cannabis and a pipe containing cannabis. Constable Zayanoted that the accused tried to hide the jar and the pipe. Constable Zaya asked Mr. Dittmer if he had smoked cannabis that day.

Mr.Dittmer admitted he had smoked some cannabis that morning. [5] After making these observations and hearing this admission, Constable Zaya arrested the accused for possession of cannabisand for impaired operation of the motor vehicle. On the police video, it was observed that Mr. Dittmer was informed he was stopped forfailing to stop at a stop sign. It was then seen that Mr. Dittmer was, as mentioned, arrested, placed in handcuffs and read his rights tocounsel outside of the driver’s door within seconds of being pulled over.

The Court could see that it was cloudy, windy, slightlysnowing and Constable Zaya was heard saying it was cold outside as he took Mr. Dittmer to the police cruiser. [6] After handcuffing the accused and placing him into the back of the police cruiser, Constable Zaya read the accused his Charter[1] rights, provided a police warning and then made a Drug Recognition Evaluation (DRE) demand on Mr. Dittmer.

ConstableZaya called ahead to the RCMP detachment in Carlyle to ensure that the officer who would complete the DRE would be ready on theirarrival. [7] Constable Zaya did not observe the accused walking in any unusual manner and found him to be very apologetic andcooperative. Mr. Dittmer’s speech was not slurred. His hand-eye coordination was consistent with someone not impaired. TheConstable noted that the accused indicated that he had not taken his medication to treat his mental health condition. [8] Mr. Dittmer testified that he has been diagnosed with bi-polar personality disorder.

He indicated that he does not functionwell under stress. His condition is treated by a psychiatrist and through medication. He is prescribed a daily dose of 300 mg of Seroquelto treat this condition. Mr. Dittmer indicated that his medication affects his balance and that he has in fact suffered from a balanceproblem for many years. [9] Mr. Dittmer also informed the Court that he has smoked cannabis since he was 18 years old, i.e., for the last 40 years. Heregards himself as a medicinal user of cannabis but does not have a prescription for it.

The accused indicated that cannabis calms hisanxiety but otherwise does not affect him, nor does it affect his balance or coordination. Mr. Dittmer admitted that he is not an expert oncannabis. However, he based his opinion on having smoked cannabis for 40 years and recognizing how it assists him with his anxiety. [10] Constable Lamontagne is trained to complete DRE testing. A voir dire was not held as per s. 320.31(5): see R v Bingley, 2017SCC 12 , [2017] 1 SCR 170 [Bingley]. Constable Lamontagne completed his training in Phoenix, AZ on a two-week trainingcourse and is a certified drug assessor.

The Constable is also trained and provides instruction on the Intoxilyzer. He has dealt withhundreds of cases dealing with alcohol impaired drivers, including arresting hundreds of people for alcohol impaired driving. ConstableLamontagne has dealt with a few alleged drug impaired driver cases. He has completed 49 evaluations, including the ones he completedin training. He is the officer tasked to complete DRE testing in the Carlyle area. [11] Constable Lamontagne completed the 12-step DRE on Mr. Dittmer at 3:20 p.m. The Constable understood that Mr.

Dittmerhad committed a traffic violation, that it was observed that his vehicle smelled of burnt cannabis, that he had red eyes and was found withcannabis when Constable Zaya stopped Mr. Dittmer. Constable Lamontagne gave Mr. Dittmer a second caution before doing the DREwhich he indicated that he understood. The accused called Legal Aid before starting the DRE test.

[ 12 ] Constable Lamontagne asked the accused if he was under the care of the doctor and on any medication. He was informed that Mr. Dittmer was under the care of a doctor and that he was also on antipsychotic medication for his condition. The Constable did not inquire on whether Mr. Dittmer was properly medicated and indicated on cross-examination that he assumed the accused was not properly medicated. He found the accused to be cooperative and easy to understand. He did not note any impairment in how Mr. Dittmer spoke. [ 13 ] The accused’s pulse was checked, pupils were checked, and eye movement was checked.

All came back as normal. As well, the accused was said to be in the normal range for the Horizontal Gaze Nystagmus Test and Vertical Gaze Nystagmus Test. On the Convergence Test, Mr. Dittmer was not able to cross his left eye, but Constable Lamontagne noted that some people are not able to do this test. However, it may be an indication that Mr. Dittmer may have been affected by cannabis. [ 14 ] Constable Lamontagne completed the Divided Attention Test and noted that Mr. Dittmer’s internal clock was off. It took him 18 seconds to count 30 seconds.

He was also noted to have eye tremors, however the Constable indicated that such tremors may be indicative of drug use but was not determinative. On the Walk and Turn test, Mr. Dittmer used the wall and he started too soon but did keep his stride. The Constable determined that the accused performed poorly on this test. As well, on the One-Leg Stand test, Mr. Dittmer swayed and used the wall for balance on his left leg counting only to 21 seconds for the directed 30 seconds. For his right one- leg stand, he only counted 17 seconds for the directed 30 seconds.

Again, the Constable determined that the accused performed poorly. [ 15 ] On the Finger to Nose test, Mr. Dittmer was to use the tip of his finger to touch his nose. He used the pad of his finger and was ruled to have done poorly and that his fine motor skills were off. On checking his clinical indicators, Mr. Dittmer’s body temperature was below normal. His blood pressure was above normal. As well, his tongue was green but oral and nasal cavities were otherwise normal. His muscle tone was also found to be normal. These indicators did not in themselves contribute to a conclusion that Mr.

Dittmer was affected by a drug. Mr. Dittmer made the same voluntary statement to Constable Lamontagne that he had smoked cannabis at 10:00 that morning. [ 16 ] Constable Lamontagne relied on his experience and on the following factors to conclude that Mr. Dittmer was not capable to operate a vehicle and to make his demand for a urine sample: • Mr.

Dittmer’s mellow attitude; • Reddish face; • Cannabis on his breath; • Red eyes; • Inability to cross his left eye; • Eye lid tremors; • Internal clock was too fast; • Balance issues; • Green tongue; • Blood pressure was high; • Finger to nose test showed a lack of fine motor skills; • Admission of using cannabis that morning, some five hours previous. [ 17 ] The Constable indicated that he could not know the level of tetrahydrocannabinol (THC), the active ingredient in cannabis, the accused used that morning. No THC levels were determined. [ 18 ] A urine sample was obtained and analyzed.

The report indicated that Mr. Dittmer had THC in his urine but did not say how much. The Court was informed that a toxicologist can only comment generally how a drug may impair the driving of a vehicle. Based on the evidence before Constable Lamontagne, he concluded that Mr. Dittmer was impaired by cannabis. The Constable also agreed on cross-examination that Mr. Dittmer’s results were similar to someone who is sober.

[19] Mr. Dittmer testified in his own defence. He informed the Court that he had smoked some cannabis in his vehicle at around10:00 a.m. on the day he was stopped by Constable Zaya. He indicated that he smoked in his vehicle because his mother would not haveliked that he smoked in her house or garage and it was too cold to smoke outside. He also informed the Court that he had not been ableto take his prescribed medication. He indicated that he forgot his medication at his own home at Indian Head and had not taken hismedication since October 9.

He was stressed with being at his mother’s and was sleepless without his medication. He had not sleptmuch the night before. He was on his way to the Pharmasave in Redvers to fill his prescription. [20] Mr. Dittmer indicated that he rolled through the stop sign for two reasons. First, the clutch on his manual transmissionvehicle was malfunctioning and he was hesitant to use the clutch unless he had to. Second, he indicated that he was following a truckthat also rolled through the stop sign. On the police video, it was observed that the truck in front of Mr.

Dittmer did roll through the stopsign but not as quickly as did the accused. ISSUE [21] Has the Crown proven the allegation that Mr. Dittmer operated a conveyance while ability to do so was impaired by anydegree by alcohol or a drug or by a combination of alcohol or a drug, contrary to

section 320.14(1)(

a) of the Criminal Code? POSITION OF CROWN [22] It is the Crown’s position that the Court heard cogent expert evidence by Constable Lamontagne that should be accepted. Itis also the Crown’s position that the Constable’s evidence is highly reliable and based on expertise recognized by Parliament; seeBingley. The Crown says that, although Mr. Dittmer provides a fair account of what he perceived, he is not an expert and cannot provideinsight into whether he was impaired by cannabis. Rather, the Crown puts forward the position that the DRE evaluation clearlyestablishes that Mr.

Dittmer’s ability to operate a conveyance was impaired by cannabis. POSITION OF THE DEFENCE [23] It is Mr. Dittmer’s position that this Court must consider whether his conduct, viewed objectively, was consistent withimpairment and inconsistent with other explanations. The legal standard that must be established is proof beyond a reasonable doubt, ofany degree, from slight to great, of impairment of Mr. Dittmer’s ability to operate a motor vehicle; see R v D.A.H., 2016 ONCJ 585.

Thedefence argued that a trial judge must consider all observations which support or negate impairment of an accused’s mental and physicalcapabilities before being satisfied beyond a reasonable doubt that an accused’s ability is impaired to any degree prescribed by theCriminal Code: see R v Landes (1997), (SK KB), 161 Sask R 305 (Sask QB). [24] The defence also argued that erratic driving could be attributed to reasons other than impaired driving: see R v Turnbull, 2014NSPC 70 at paras 30 to 32.

Defence referred to R v Abbasi-Rad, 2016 ONCJ 542 to support his position that there is a danger in blindlyaccepting the evidence of the DRE officer when there is little or no explanation of the relationship between the accused’s performanceon the various DRE tests and impairment of the ability to drive. ANALYSIS [25] As indicated, Mr. Dittmer completed a number of tests for the DRE. It was the opinion of Constable Lamontagne that theaccused was impaired by cannabis.

The admissibility of the Constable’s evidence is not at issue and is accepted by the Court asConstable Lamontagne’s expert opinion on the results of the DRE. [26]

Section 320.12(

d) of the Criminal Code confirms the value of Constable Lamontagne’s testimony: It is recognized and declared that

(

d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate aconveyance is impaired by a drug or by a combination of alcohol and a drug. [27] What is at issue is the assessment of Constable Lamontagne’s evaluation in consideration of all the evidence that wasprovided to the Court.

From R v Branson, 2018 ONCJ 163, the Court stated: [16] It is worth noting that the Supreme Court, in upholding the admissibility of DRE opinion evidence, made it clear that theevidence is subject to the same assessment for credibility and reliability as any other evidence. As stated at para. 32 of R. v. Bingley, thefact "[t]hat Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact's ability tocritically assess a DRE's conclusion of impairment or an accused person's right to test that evidence.

Cross-examination of the DRE mayundermine his or her conclusion. Evidence of bias may raise doubt about the officer's conclusion. The officer may fail to conduct thedrug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or herobservations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE's assessment, as may evidence of bystanders orother experts. It will always be for the trier of fact to determine what weight to give a DRE's opinion.

Any weight given to a DRE'sevidence will necessarily respect the scope of the DRE's expertise and the fact that it is not conclusive of impairment. [28] In contemplating the significance of Constable Lamontagne’s expert opinion, the Court looked to R v Bennett, 2018CarswellNfld 5 (NL Prov Ct), Gorman, J. who indicated the following: [53] In R. v. Ware, [2017] N.J. No. 87 (P.C.), I had the opportunity to consider Bingley.

I suggested that the "significance of what theSupreme Court is saying in Bingley should not be underestimated" (at paragraph 70): The Court makes it clear that a drug recognition expert is an expert witness without question of training or experience. His or hercredentials are statutorily deemed to exist. Thus, a drug recognition expert's evidence must be assessed in the same manner as otherexpert witnesses.

Therefore the weight to be attributed to a drug recognition expert's opinion "must be determined by the trial judgehaving regard to the reasons given for the expert opinion, the evidence bearing on the basis of the expert opinion and the extent of theexpert's expertise" (see R. v. Strickland, 2013 NLCA 65, at paragraph 19). Undoubtedly, a trial judge can reject an expert's opinion (seeKeresturi v. Keresturi, 2017 ONCA 162, at paragraph 7), including one proffered by a drug recognition expert, but not without reason(see, for instance, R. v. D.A.H., 2016 ONCJ 585 and R. v. Sualim, 2017 ONCA 178, at paragraph 37).

In addition, by granting a drugrecognition expert statutorily deemed expertise Parliament and the Supreme Court of Canada have set impaired drug driving offencesapart from impaired alcohol driving offences. Let me explain. It is well settled that a witness need not be an expert to proffer an opinion on whether someone was drunk (see R. v. Gratt, (SCC), [1982] 2 S.C.R. 819). It has also been held that a non-expert may express an opinion as to whether someone was under theinfluence of drugs (see R. v. Polturak (1988), 1988 ABCA 306 , 9 M.V.R. (2d) 89 (Alta. C.A.)).

However, in such cases, thatperson's evidence is of no more value than any other witness' evidence and holds no special weight. Bingley and section 254(3.1) of theCriminal Code constitute a significant change in this area of the law. A drug recognition expert is not just another witness. He or she isan expert which the Supreme Court has said has knowledge "beyond the experience and knowledge of the trier of fact" (Bingley, atparagraph 24).

Thus, the weight to be given to a drug recognition expert's opinion as to whether an accused person's ability to operate amotor vehicle is impaired by a drug is of a qualitative difference to such an opinion proffered, for instance, by a lay person or otherpolice officer. [29] In reviewing the new sections in the Criminal Code and in considering Constable Lamontagne’s testimony, it can be seen thatthe main purpose of these sections is to determine if a suspect has drugs in his or her system, and if so, what particular drug or whatcategory of drug it may be.

Constable Lamontagne’s observations and testing led him to conclude that Mr. Dittmer had a drug in hissystem and that it was cannabis. This conclusion was first formulated because of Constable Zaya’s information, next by the accused’sown admission and then by the determination Constable Lamontagne made through the DRE. Constable Lamontagne’s conclusion waspartly confirmed by the laboratory analysis, which found cannabis in the accused’s urine. [30] The difficulty with Constable Lamontagne’s evidence is that he does not explain Mr.

Dittmer’s test results and how they relateto his ability to drive a conveyance or how they relate back to the time of his driving. Labach J. in R v Perillat, 2012 SKPC 135, 403Sask R 187 [Perillat] faced a similar dilemma and indicated the following: [26] Without testimony on these points, I am left with many questions. For example, what signs of impairment would one expect tosee in someone who has been using marijuana? How long after using marijuana would you expect to see these signs and how long wouldthey last?

Can the results of Drug Recognition Evaluation tests taken over one and one-half hours after the time of driving be reliablyrelated back to the time the accused was pulled into the check stop? Was the accused’s performance in some of the tests just as consistentwith someone who had poor balance or poor coordination as it was with someone who used marijuana?

[27] The Ontario Court of Appeal in R v Stellato (1993), (ON CA), 18 C.R. (4th) 127 (affirmed by the Supreme Court of Canada at (1994) (SCC), 31 C.R. (4th) 60) set out the legal test to establish impaired driving. The test is thesame whether the impairment is alleged to be by alcohol or a drug or both. A trial judge must be satisfied beyond a reasonable doubt thatthe accused’s ability to operate a motor vehicle is impaired by alcohol or a drug.

If the evidence establishes any degree of impairmentfrom slight to great, the offence is made out. [31] There are other questions beyond the ones raised in Perillat that come to mind from the evidence provided by ConstableLamontagne. How long is a person’s ability to operate a vehicle impaired by cannabis? The accused consistently admitted that he hadsmoked a small amount of cannabis some four hours before he was stopped by Constable Zaya and over five hours before ConstableLamontagne completed the DRE.

No information was provided to assist the Court to understand how long cannabis stays in the bloodstream to continue to impair a person’s ability to operate a vehicle. Although, Constable Zaya indicated to the Court that he knewcannabis stayed in the body for eight hours, it was not clear what the Constable’s information was based on other than a conversation hehad with his supervisor. [32] Mr. Dittmer indicated that he regularly smoked about a gram of cannabis every day. This raised the question as to whetherany urine sample from Mr.

Dittmer would ever be free from cannabis if he regularly smokes it on a daily basis. No information wasprovided to the Court to explain how long cannabis use would continue to show up in a urine sample. It is not clear whether cannabis inthe urine will continue to be found after hours, days or weeks. Furthermore, no evidence was provided to explain how cannabis found inthe urine demonstrates that a person is in fact impaired by it. No information was given to the Court about the accused’s THC level,either from Constable Lamontagne or from the toxicology report. [33] According to Constable Lamontagne, Mr.

Dittmer performed poorly on the tests in the DRE. However, the Constable alsoinformed the Court that Mr. Dittmer’s pulse, pupils, eye movements, Horizontal and Vertical Gaze Nystagmus tests were within normalrange. As well, the Constable indicated that Mr. Dittmer’s inability to cross his left eye was not inconsistent with other people’s inabilityto do the same. [34] Mr. Dittmer mistook 18 seconds for 30 seconds. It is not clear whether his performance was the result of Mr. Dittmer havingsmoked cannabis five hours previously, or from the other factors that Mr. Dittmer indicated were affecting him that day.

That is, didmissing a few days of his medication affect him so, or the stress caused by the lack of sleep, or for being with a stressful parent or as aresult of stress caused by being stopped, arrested and tested at the police station? [35] Constable Lamontagne also determined that Mr. Dittmer performed poorly on the Walk and Turn test and the One-Leg Standtest. Mr. Dittmer indicated that his medication affected his balance and that he has suffered from poor balance for many years. Mr.Dittmer did not provide professional evidence on the effects of his medication.

The Court notes that Constable Lamontagne did notexplain to the Court how poor balance is indicative of a person being impaired by a drug when other factors may explain such acondition. [36] Constable Zaya informed the court that he smelled the strong odor of cannabis when he went up to Mr. Dittmer’s vehicle. The accused freely admitted that he smoked cannabis in his vehicle that morning. It was not explained to the Court how long the odourof cannabis may linger in the vehicle. The Constable did not indicate that he observed any visible smoke in the vehicle.

If a vehicle isused to smoke cannabis, it stands to reason that it would continue to smell like cannabis until the vehicle has been cleaned or aired out. That is similar to how cigarette smoke may cause a vehicle to smell like cigarette smoke long after a cigarette has been extinguished. [37] Constable Zaya also indicated that he observed that Mr. Dittmer had red eyes. On cross-examination, the Constable alsoagreed that red eyes can also result when someone has not obtained enough sleep the night before. Mr. Dittmer testified that he had notslept well the night before due to not having his prescribed medication.

Exhaustion is a plausible cause to have red eyes and as such isnot determinative of a person being impaired. [38] In relation to the manner in which Mr. Dittmer was driving, he indicated that the clutch on his vehicle was on the verge ofbreaking. He indicated that for that reason he did not stop at the stop sign and simply followed the truck driving in front of him, whichalso drove through the sign without stopping. Mr. Dittmer did not produce any evidence that his vehicle was in need of repair of theclutch. Without such corroborating evidence, the Court can only accept that Mr. Dittmer drove through a stop sign.

However, that initself is not an indication that a person is impaired by a drug.

CONCLUSION [ 39 ] In consideration of the totality of the evidence, particularly the lack of evidence that would explain the effect of cannabis by a regular user of 40 years and the effects of cannabis on a person who smoked cannabis four to five hours before being stopped and before being tested under a DRE, the Court is left with a reasonable doubt that the Crown has proven the charge against Mr. Dittmer.

The Court accepts Constable Lamontagne’s opinion based on the DRE, however that evidence or lack thereof was considered in light of all the evidence provided to the Court. [ 40 ] As a result of the evidence, the Court is left with a reasonable doubt that Mr. Dittmer was operating a conveyance while his ability was impaired by a drug. The Court therefore acquits Mr. Dittmer of the charge on Information 90209927. ________________ M.R. Brass, J