R. v. Hypolite, 2017 ONCJ 371

CITATION: R. v. Hypolite , 2017 ONCJ 371 DATE: April 13, 2017 Information No. 16-2841 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DANIEL A. HYPOLITE REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on April 13, 2017 at MILTON, Ontario APPEARANCES : A. Stevenson Counsel for the Crown

H. Gonzalez Agent for Counsel for Daniel A. Hypolite ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Judgment ...starting at page one Transcript Ordered: April 13, 2017 Transcript Completed: April 27, 2017 Ordering Party Notified: April 28, 2017 THURSDAY, APRIL 13, 2017 ...OPENING DISCUSSIONS NOT REQUIRED FOR TRANSCRIPTION AT THIS TIME REASONS FOR JUDGMENT

HARRIS J. (Orally): Daniel Alex Hypolite stands charged that he operated a motor vehicle when his ability to do so was impaired by alcohol or drug onSeptember 26, 2016 at the City of Burlington. Crown Counsel elected to proceed summarily. Mr. Hypolite pled not guilty. We had a trial. Counsel for Mr. Hypolite advised me at the outset of the trial that Mr. Hypolite was abandoning his Charter application. Further, theevidence made it clear that Mr. Hypolite agrees that he was operating a motor vehicle at the time and place specified in the information.

The issue before me is whether the Crown has proven beyond a reasonable doubt that Mr. Hypolite’s ability to operate a motor vehicle atthe time was impaired and, more particularly, that this impairment was by a drug. There is no suggestion and no evidence to support any suggestion that alcohol was a factor in this case. To that end the Crown called four witnesses. These included Halton Regional Police Constables MacMillan, Bridgman and Lindsay. Thefourth witness was Dr. Daryl Mayers, a toxicologist from the Centre of Forensic Science. Mr. Hypolite testified on his own behalf.

He stated that his ability to operate a motor vehicle was not impaired at all and certainly not byany drug. In light of that position I am mindful of the direction provided by the Supreme Court of Canada in R. v. W.(D.) (SCC),[1991], S.C.J. No. 26. If I believe the evidence of Mr. Hypolite I must find him not guilty. Even if I do not believe his evidence, if thatevidence leaves me with a reasonable doubt about his guilt I must find him not guilty.

Even if his evidence does not leave me with areasonable doubt about his guilt if, after considering all the evidence that I do accept I am not satisfied beyond a reasonable doubt of hisguilt I must acquit. In going through this assessment I must remember that Mr. Hypolite, like every other person charged with a crime, is presumed to beinnocent unless or until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or proveanything. It is not enough for me to believe that he is probably or likely guilty.

Conversely, it is nearly impossible to prove anything withabsolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, Imust remember that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. For that I take direction from the Supreme Court of Canada in R. v. Starr 2000 SCC 40 , [2000] SCJ No. 40 at paragraph 242. This is a tough standard and it is so tough for a very good reason. As Justice Cory said in R. v.

Lifchus, (SCC), [1997]SCJ No. 77 at paragraph 13: “The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the principle safeguards, whichseeks to ensure that no innocent person is convicted.” This standard is dealt with, with respect to allegations of operating a motor vehicle while impaired by our appeal courts in R. v. Stellato.The following quote comes from (ON CA), [1993] OJ No. 18, the comments of Justice Labrosse of the OntarioCourt of Appeal at paragraph 14, which was subsequently affirmed at (SCC), [1994] SCJ No. 51.

The court stated: “In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused for impaired driving the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment the accused must be acquitted. If the evidence of impairment establishes any degree of impairment

ranging from slight to great the offence has been made out.” In determining this I must not assess each circumstance piecemeal, but must look at the totality of all the evidence. To borrow the words of Justice Doherty of the Ontario Court of Appeal I must consider the, “Constellation of objectively discernible facts.” I am not to automatically dismiss a particular from consideration simply because there might be another possible explanation rather than impairment. Rather, I am to decide whether the evidence, taken as a whole, leads to only one reasonable conclusion.

Needless to say, I must consider all of the circumstances including those that are inconsistent with impairment. I will then turn to a review of the relevant evidence. I will start by stating that I did not believe Mr. Hypolite. Further, his evidence did not leave me with a reasonable doubt. I will provide my reasons for this later. I also point out that I am aware that I may not rely on the results of the standard field sobriety tests performed by Mr. Hypolite and I did not rely on this. I did not rely on any statements made by Mr. Hypolite as proof of the truth of their content.

I have considered the fact that certain things were said by Mr. Hypolite because of the fact that these comments are indicative of some confusion on his part. I will first address the evidence relevant to the issue of whether Mr. Hypolite’s ability to operate a motor vehicle was impaired by something. Following that I will address the evidence relevant to whether any such impairment was caused by a drug, particularly marihuana or for purposes of simplicity and consistency I am going to attempt to refer to cannabis on a consistent basis.

Anticipating that I might not be successful, I will point out that if I use the words cannabis or marihuana, or T.H.C. I am referring to the same substance. The evidence established that Mr. Hypolite was speeding. He was driving his motor vehicle 88 kilometres an hour in a 50 kilometre an hour zone. This shows bad judgment. I note that on any road travelling 38 kilometres per hour over the speed limit shows bad judgment. Travelling 88 kilometres per hour in a 50 kilometre per hour zone, that is to say, a built up area in town shows worse judgment.

Doing this with a nine year-old child in the car shows worse judgment still. Needless to say I can make the same comment when I add the fact that this was in an area where there was busy traffic near a GO Station, a public transit station near rush hour in Burlington. Mr. Hypolite did not come to a stop immediately when signaled to do so. He did not do this even though he said he saw Constable MacMillan. He then came to an abrupt stop. I note that Mr. Hypolite testified that he stopped in a normal fashion.

However, according to him a marihuana grinder that was found in the car was on the floor of the car at his feet. He assumed that it had rolled there from under the seat. That, of course, would be consistent with somebody having brought the motor vehicle to an abrupt stop. That was the full extent of any bad driving. Constable MacMillan quite candidly admitted that he was not expecting to find an impaired driver when he first approached Mr. Hypolite to speak to him. There was more, however. Mr. Hypolite referred to the child in the car as being his son. Actually the child was his nephew. Mr.

Hypolite explained to the officers and in his evidence that he regularly mixes these two individuals up. I also note he said that he smoked marihuana regularly. He did not say whether or not his regular mixing up of the two individuals coincided with his regular consumption of marihuana. In any event I note that the circumstances here were that he had just taken his son to Scarborough the day before. It was his nephew who had to go home to St. Catherines to go to school.

The fact that there was a mix up with respect to who was in his vehicle shows, to my mind, confusion and it is certainly a factor to be taken into account. Mr. Hypolite was driving a vehicle without possessing a valid driver’s licence. He was driving a rental car. Driving any car and especially a rental car without a licence meant that any agreement with an insurance company was breached and he therefore was driving without any valid insurance coverage. Again, all of these show bad judgment. Driving a young child in a car that smelled of marihuana showed bad judgment. Smoking marihuana showed bad judgment.

I do note that Mr. Hypolite showed the same bad judgment the day before when he drove his son home to Scarborough and I have heard no evidence that he had been smoking marihuana before he did that.

The evidence was that Mr. Hypolite was driving from Guelph to St. Catharines by way of Highway 6. However, he was stopped onWaterdown Road. The direct route from Guelph to St. Catharines would involve travelling south on Highway 6 to Highway 403 andtaking the 403 over to the Queen Elizabeth Way, which would then take one directly to St. Catharines. Where Mr. Hypolite was stoppeddid not make sense if someone was trying to travel that route. He explained he was using an “app”. There were no details regarding this. Ipresume that this is some program that was on his Smartphone.

He did indicate that this “app” was designed to assist drivers in avoidingheavy traffic. I heard no evidence as to what this “app” was beyond that. I did not hear a name. I did not hear any more details about whatit did or did not do, or how exactly it got him into this mess. I also heard no evidence as to whether he was using a handheld device whileoperating the motor vehicle. Finally, he did not say why the “app” would have directed him off of the direct highway route and ontoBurlington streets during rush hour. He was unable to indicate when he left the highway or how he got onto Waterdown Road.

Another indication of a lack of situational awareness came during the drug recognition evaluation process when he was asked what timeit was. He answered that it was around 9:15 to 9:20 a.m. The time was actually 10:49 a.m. He did not know what date it was. When Constable MacMillan asked for a driver’s licence and ownership, and insurance Mr. Hypolite told him that he did not have them.It is true that he did not have a driver’s licence. However, the vehicle was a rental vehicle and ownership and insurance papers were inthe glove compartment. Mr.

Hypolite testified that he assumed this and that he was pretty sure that he had told Constable MacMillanthat. Constable MacMillan testified to the contrary. I note there was no indication of any problems with Mr. Hypolite’s balance while he was walking or standing at the scene. There were anumber of tests during the drug recognition evaluation process where Constable Lindsay indicated some difficulties with balance. Theseincluded the modified Romberg test, the one-leg-stand and the heel-to-toe test.

I attach little weight to these particular results in myassessment of whether the Crown had proven impairment beyond a reasonable doubt. I do that fully aware of Constable Lindsay’s statusas a drug recognition expert. I am aware of the recent decision by the Supreme Court of Canada in R. v. Bingley 2017 SCC 12 , [2017] SCJ No. 12. Thefollowing

summary of that decision is based on paragraphs 20 through 32 of the decision. A DRE, literally, is a ‘drug recognition expert’, certified as such for the purposes of the scheme. It is undisputed that the DRE receivesspecial training in how to administer the 12-step drug recognition evaluation and in what inferences may be drawn from the factual datahe or she notes. It is for this limited purpose that a DRE can assist the court by offering expert opinion evidence.

While a DRE’s evaluation certainly has an investigative purpose, their application of the 12-step recognition evaluation anddetermination of impairment is relevant evidence and can assist the trier of fact. This conclusion is not negated by the fact that a DRE is not trained in the science underlying the development of the 12-step evaluation. The reliability of the 12-step evaluation comes from the statutory framework itself. Parliament has determined that the 12-step evaluationperformed by a trained DRE constitutes evidence of drug impairment.

It may not be conclusive, but it is evidence beyond the experienceand knowledge of the trier of fact. The regulations set out a uniform evaluative framework that a DRE must follow in order to reach a conclusion regarding drugimpairment. Parliament is entitled to establish such a framework, and in doing so, established that the 12-step drug evaluation issufficiently reliable for the purposes of determining impairment. Parliament has established through the adoption of the Regulations, that the 12-step drug evaluation is sufficiently reliable for thepurpose of a DRE’s determination of impairment.

The scope of a DRE’s expertise is limited to that determination, and it is only for thepurpose of making that determination that Parliament has established the 12-step drug evaluation’s reliability.

It is also important to note that the determination of the DRE is not conclusive of the ultimate question of whether the accused wasdriving while impaired by a drug. The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’sevidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge to consider. 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’s evidence willnecessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment.

I also note the comment of Justice Kenkel in R. v. Abbasi-Rad, [2016] OJ No. 4601 at paragraphs 24 through 27. He wrote: (24) “The DRE officer’s opinion as to the accused’s impairment was received pursuant to R. v. Bingley. Aside from the statutory deemedexpertise, opinion evidence from impairment is admissible from any witness. See R. v. Graat, (SCC), [1982] SCJ No102. The DRE officer was able to explain the purpose of the tests and in particular the way certain tests isolate for the presence ofcertain drugs.

His evidence established a reasonable basis for the urine test.” (25) “Beyond that though, there was little explanation about how the accused’s performance on various DRE tests related to the issue ofalleged impairment and the ability to drive. What does it mean if later during a test, one eye converges and the other doesn’t?Something? Nothing?” (26) “Even with some of the physical motor tests it is not plain how the results relate to impairment at the time of driving. There was noevidence about the relationship, if any, between performance on the one-legged-stand test and the ability to drive.

With no baseline as tohow the average sober person performs and no baseline as to how this particular accused with his injuries performed sober as opposedto when he is in an impaired state, it is not plain what to make of the results.” (27) “Common sense inferences are available of course where the accused exhibits physical or mental errors performing simple taskswhere the errors are not reasonably explained otherwise.

Combined with other circumstances such as similar observations at theroadside, no intervening drug or alcohol consumption since arrest, evidence of prior drug use, reasonable inferences may be availableregarding the physical and mental abilities required to drive safely. It is harder to know what to make of other DRE test errors, but allcircumstances are considered here in assessing the overall case for impairment.” In the case of Mr. Hypolite some of the deviations noted by Constable Lindsay were slight and I too have no baseline as to how theaverage sober person performs.

These are, however, circumstances that I have to consider along with all of the others. I note further that I attach greater weight to the observation that during the one-leg-stand Constable Lindsay asked Mr. Hypolite to raisehis foot a little higher. In complying, Mr. Hypolite lost his count and when he resumed counting he did so a few numbers back of wherehe left off. Dr. Mayers testified that cannabis use can lead to reduced attention and decreased ability to concentrate. Constable Lindsay pointed out a number of occasions where Mr. Hypolite did not follow instructions.

I note in particular that ConstableLindsay explained the finger to nose test to Mr. Hypolite, instructing him to touch the tip of his finger to the tip of his nose. ConstableLindsay further pointed out the difference between the tip of the finger and the pad of the finger. Despite this Mr. Hypolite consistentlyused the pad of his finger throughout the test. He either did not follow the instructions or did not understand them, or he was unable toperform as instructed. He also missed the tip of his nose often enough and by a large enough margin for me to consider this in mydeliberations. I note here that Dr.

Mayers testified that the finger to nose test requires a mix of gross motor control and fine motorcontrol. Cannabis has more impact on fine motor control, which is very important in operating a motor vehicle. There was no indication that Mr. Hypolite had any problem speaking to the police officers at the side of the road. He did and does stutterwhen speaking on occasion, but nothing can be read into that. Constable Lindsay did note that his speech was, “Rambling”, at times during the DRE process. Based on what I saw on the video Iwould also characterize this rambling as being slight.

Constable Lindsay also noted that Mr. Hypolite’s eyes were bloodshot and his eyelids were droopy. Dr. Mayers testified that cannabis

dilates veins including those in the eyes, turning them red. It can also dilate pupils. I will now turn to the evidence regarding the presence of marihuana in this case. Constable MacMillan testified that he smelled fresh marihuana in the car. It was not a burnt marihuana smell. Constable Bridgman smelled burnt marihuana. Constable Lindsay detected a strong odour of burnt marihuana. Mr. Hypolite testified that both he and his girlfriend had smoked marihuana in the car previously and there would have been a smell of burnt marihuana present.

I note that Constable MacMillan’s evidence was inconsistent with everyone else’s on this particular score. From that I reached the conclusion that Constable MacMillan was wrong. The police found paraphernalia in the form of a marihuana grinder and rolling papers, and empty “dime bags” in the car. They also found a number of roaches. They also found fresh marihuana in a jar in Mr. Hypolite’s pocket. During the DRE Constable Lindsay noted the odour of stale marihuana on Mr. Hypolite’s breath. He noted that the response of Mr.

Hypolite’s pupils to light and the rebound dilation of his eyes, and the lack of convergence of his eyes were all consistent with cannabis use. The rebound dilation of the eyes was in fact consistent with recent use. Mr. Hypolite’s high blood pressure was also consistent with cannabis use. His low pulse, on the other hand, was very inconsistent with this. Constable Lindsay noted the presence of leg tremors and eyelid tremors, which can be indicative of recent marihuana use. He noted no nystagmus , which ruled out certain other drugs including alcohol, but would not normally be present following cannabis use.

Constable Lindsay concluded that Mr. Hypolite had been using cannabis. It turned out he was right. Mr. Hypolite testified that he used marihuana or cannabis regularly and he had used it as recently as the previous night. Dr. Mayers testified that the test of Mr. Hypolite’s urine detected carboxytetrahydrocannabinol, but not tetrahydracannabinol or THC. He explained that the carboxytetrahydrocannabinol is an inactive metabolite of THC. THC is the major psychoactive compound in cannabis products such as marihuana and hashish.

The detection of the carboxytetrahydrocannabinol indicates prior use of or exposure to a cannabis product. The absence of the THC itself in the urine is not significant, because THC is not eliminated from the human body by that means. The presence of the metabolite indicates prior use of cannabis. Dr. Mayers testified that the effects of cannabis may include mild euphoria, relaxation, altered time perception, motor incoordination and decreased ability to concentrate. In short, it can impair a person’s ability to operate a motor vehicle.

However, the results of urine testing cannot be used to determine the effects including impairment of a drug on an individual at a given time since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug or drug effects. Blood testing would be much more informative in that regard. Both Dr. Mayers and Constable Lindsay testified that marihuana can continue to affect a person for six hours following use. However, it will take much longer to clear the THC out of a person’s body. I note, however, that this was not the only drug found in Mr. Hypolite’s urine.

There was codeine and hydrocodone. According to Dr. Mayers: “Codeine is a drug prescribed for the treatment of mild to moderate pain. Effects that occur after use of this drug may include dizziness, drowsiness and stupor. The effects of codeine depend on the concentration within the blood and the tolerance of the individual to the drug. Hydrocodone is a drug prescribed for the treatment of mild to moderate pain and the suppression of coughs. Effects that occur after use of this drug may include euphoria, dizziness, drowsiness and sedation.

The effects of hydrocodone depend on the concentration within the blood and the tolerance of the individual to the drug.” He pointed out that hydrocodone in the urine could simply be a metabolite of codeine. Both codeine and hydrocodone could impair a person’s ability to operate a motor vehicle.

Mr. Hypolite testified that he got a tablet from a friend who called it “Morphine”. He used it for pain, because the Ibuprofen 600 milligram tablets prescribed by his dentist were not controlling the pain with respect to his infected tooth. He testified that he may have taken it on the Saturday or the day before. He took it a couple of times. I will have some comments later as to Mr. Hypolite’s reliability with respect to when he used certain drugs and in what quantities. However, I note the comments by Dr. Mayers indicating that codeine has a short half-life of only two to four hours.

There was ketamine in the urine. Dr. Mayers wrote in his report that: “Ketamine is used clinically for its analgesic and anesthetic properties and it is also used recreationally for its hallucinogenic and euphoric properties. Effects that occur after use of this drug may include feelings of euphoria, sedation, lack of coordination, out of body experiences, dizziness and blurred vision. The effects of ketamine depend on the concentration within the blood and the tolerance of the individual to the drug.” In short, this drug too could impair one’s ability to drive. Dr.

Mayers testified that ketamine could remain in a person’s body for maybe up to 24 to 30 hours. Mr. Hypolite testified that he believed he took ketamine at the party the night before prior to going to the bar. He could not be sure. There was methamphetamine found in the urine. Dr. Mayers in his report wrote: “Methamphetamine is a central nervous system stimulant primarily used as a drug of abuse. Effects that occur after use of methamphetamine may include excitation, euphoria and increased risk taking behaviour. Amphetamine is a pharmacologically active metabolite of methamphetamine.” Mr.

Hypolite testified that he last used methamphetamine a week earlier. If so it would not have been affecting him at the time that he was driving. He acknowledged, however, that he could not rule out the possibility that the marihuana he smoked or the cocaine he snorted might have been contaminated by methamphetamine. Speaking of cocaine, there was cocaine found in the urine. Dr. Mayers wrote in his report that: “Cocaine is a central nervous system stimulant primarily used as a drug of abuse.

Benzoylecgonine is an inactive breakdown product of cocaine that can form both in the body and in collection tubes during storage. The effects of cocaine use may include excitation, euphoria, increased risk taking behaviour, blurred vision and hallucinations. A crash phase may follow a cocaine high, during which time individuals can suffer from exhaustion and extreme fatigue. While the onset and duration of a cocaine crash cannot be predicted it has been reported to last for up to 24 hours after cocaine use and thus well beyond the timeframe for any detectable levels of cocaine to be present in the blood.” Mr.

Hypolite testified that he used cocaine the day before he was arrested. Dr. Mayers testified that cocaine would not impair a person’s ability to drive a motor vehicle after the passage of one hour. There is no reason for me to believe that Mr. Hypolite was using cocaine during the time that he was actually driving. The drive would have covered more than the hour, so it is a non-factor with regard to causing any impairment while he was driving a motor vehicle on this date. It is a significant factor, however, in my later assessment of Mr. Hypolite’s reliability as a witness.

Mr. Hypolite testified that he was also taking Ibuprofen 600 milligram and an antibiotic, which had been prescribed by a dentist to deal with an infected tooth. He was taking the Ibuprofen in greater quantities than that prescribed because the drug was not controlling his pain. Dr. Mayers testified that these drugs would not have impaired his ability to operate a motor vehicle. Earlier I indicated that I did not believe Mr. Hypolite and that his evidence did not leave me with a reasonable doubt as to his guilt. There are a number of reasons for this.

The first reason is that his evidence is contradicted by the Crown evidence that I have already referred to. I am satisfied that this evidence is so compelling as to convince me beyond a reasonable doubt that Mr. Hypolite’s ability to operate a motor vehicle was impaired by drug that morning. Secondly, Mr. Hypolite has such a minimal recollection of the events of the preceding 24 hours that his evidence is totally unreliable. He partied with friends the day/evening/night before at someone’s house and at a bar. He smoked marihuana. He was not sure how much or when exactly. He does not keep track of those things.

He snorted cocaine. He was not sure how much or when exactly. He does not keep track of those things. He also drank alcohol. Again he was not sure how much or when exactly. In fact he was not sure what kind of alcohol he drank. The same can be said with respect to the ketamine, which he consumed. He did not know when he left the house to go to the bar. He did not know when he left the bar to drive back to Guelph.

He really did not know much of anything except that he knew for certain that he was not drunk or stoned when he drove and he knew for certain that he last smoked marihuana or cannabis more than six hours before he was stopped by the police. In short, he drank, smoked and snorted enough alcohol and drugs that he really remembers no details about the events except that he remembers stopping early enough that the marihuana/cannabis would no longer be affecting him when he was stopped by the Halton Police. I definitely note that Mr. Hypolite had already heard the evidence of Constable Lindsay and Dr.

Mayers as to how long marihuana/cannabis would continue to effect him before he recounted to us his clear recollection of that one fact. I also note that Mr. Hypolite has a very strong motive to believe that the events unfolded in the manner he described to us. Otherwise he might be found guilty. His recollection of events that morning was just as bad. He did not know when he left Guelph. He did not know where he got off the highway or how he got to Waterdown Road. His explanation was that he was relying on an “app” that helped him avoid traffic problems.

He did not identify the “app”, but apparently he relied on it so much that he had no awareness of where he had been driving immediately before he was stopped by the police. When asked by Constable MacMillan about drug use he told the constable that he had used marihuana and cocaine. He did not think to mention all the other drugs that turned up in his system. I did not attach any weight to Mr. Hypolite’s record in assessing his credibility. Quite frankly I did not need to. The record certainly does nothing to enhance his credibility, however.

After considering all of the evidence I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hypolite’s ability to operate a motor vehicle was impaired by a drug. The drug was marihuana, either alone or in combination with ketamine. In reaching that conclusion I have taken into account the following factors. He was speeding 88 kilometres per hour in a 50 kilometre per hour zone on a city street where traffic was fairly heavy. He was doing this with a young child in his car. He initially did not see the police officer motioning for him to stop.

When he did see Constable MacMillan he stopped abruptly. He did not know where he was.

A short time later he did not know what time it was or what the date was. He referred to his passenger as his son when in fact the passenger was his nephew. His eyes were bloodshot. His eyelids were droopy. He did not perform well with any of the DRE tests. He performed very poorly with respect to some of them, such as the finger to nose test. Mr. Hypolite and his counsel have advanced many alternate theories for how various of these factors could have been consistent with something other than impairment by drug.

However, I reject these theories noting that all of the factors are consistent with impairment by drug. That is the only explanation that all of them are consistent with. Further, I noted the observations of the DRE that were specifically associated with recent cannabis use. I noted the evidence of Mr. Hypolite as to his recent consumption of various drugs including cannabis although I reject his evidence as to when he last smoked it. Finally, I noted the evidence of Dr. Mayers regarding the effects of the various drugs, which were found in Mr. Hypolite’s urine. I noted how the effects described by Dr.

Mayers tally with many of the observations that were made by Mr. Hypolite by the police officers. Counsel for Mr. Hypolite provided me with a book of authorities containing six cases. I referred earlier to R. v. Abbasi-Rad . However, that case and all the others are trial decisions that are not binding on me. Further, not one of them is on all fours with the case of Mr. Hypolite. I find Mr. Hypolite guilty of the offence charged and a conviction will be registered. ...REMAINDER OF PROCEEDINGS NOT REQUESTED FOR TRANSCRIPTION. ...WHEREUPON THIS PROCEEDING WAS ADJOURNED.

Certification FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2)

I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Hypolite in the Ontario Court of Justice held at 491 Steeles Avenue East, Milton, Ontario taken from Recording No. 1213_11_20170413_083724_6_HARRISDAV.dcr , which has been certified in Form 1. __________________ _____________________________________ (Date) (Signature of authorized person)