Her Majesty the Queen - v. -, 2013 SKPC 158

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 158 Date: October 2, 2013 Information: 24439596 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lanny Allan Lee Appearing: Tyla Olenchuk For the Crown Jonathan Bodvarson For the Accused DECISION I. CARDINAL , J INTRODUCTION [ 1 ] Mr. Lee is charged that on July 10, 2012, near Melfort, Saskatchewan he did operate a motor vehicle while his ability to do so was impaired by a drug contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code . [ 2 ] While Mr. Lee admits he is the driver, he denies he was impaired by a drug but rather submits that it was fatigue that was observed by the witnesses.

[ 3 ] For the following reasons I find Mr. Lee guilty of the charge. EVIDENCE [ 4 ] At approximately 1:00 p.m. on July 10, 2012, Joanne Lee, no relation to the accused, was driving north towards the Mac store on Broadway Avenue in Melfort, Saskatchewan. Ms. Lee is an addictions counsellor and also knows the accused although they are not friends. She observed Mr. Lee in his vehicle driving erratically. She testified he came off of a dirt road to her right, crossed onto the roadway in front of her and into oncoming traffic, causing her to slam on the brakes to slow her vehicle down to avoid hitting him.

He swerved back into the proper driving lane and then veered to his right, almost hitting a power pole along the lane side. He swerved back into the centre of the roadway and took the right-hand turning lane but rather than turning right, he drove straight across Saskatchewan Drive and directly to the Mac store parking lot. Her diagram of his path of travel is marked Exhibit P-1 in these proceedings. He was not speeding according to Ms. Lee. [ 5 ] He pulled into the parking lot at the pumps, almost hitting the pumps with the front of his car, and brought his car to a stop.

Joanne Lee pulled into the parking lot and immediately went into the store to call the police. The attendant dialled the phone number and gave the portable phone to her and she went outside, spoke to the police on the phone and observed Mr. Lee. [ 6 ] Mr. Lee was still in his vehicle which was running. She observed him open his car door and she said he “kind of stumbled out and looked like he was drinking or on a bender”. He did not acknowledge her even though she said hi to him as he walked by her, two feet away. She said he was hunched over with his head down and not paying attention.

He went into the store and she followed. [ 7 ] Inside the store he was walking back and forth to the slush machine and the counter with the till. She said it did not appear to her that he was just trying to decide what he wanted to buy but rather he had no expression on his face, it was simply a blank slate. To her it looked like he was in a comatose state, “like really high or drunk and not functioning properly”. [ 8 ] Mr. Lee walked around by the slush machine and turned and looked at people and then turned back and wouldn’t respond to anything.

He was walking back and forth and then would just stop and stand there. He was walking slowly and, according to Joanne Lee, “he wasn’t himself”. She observed him for approximately five minutes inside the store before the police attended. She also testified that prior to the police attending, she had gone out to Mr. Lee’s vehicle, which was in park and still running, shut it off, took the keys and gave them to the gas station attendant. She removed the keys because she was concerned he would continue to drive and possibly hurt someone. [ 9 ] Cst. Abbott and Cst.

Pidlinsky of the RCMP in Melfort were dispatched to the call made by Joanne Lee and attended to the store at approximately 1:30 p.m. Cst. Pidlinsky did not testify. Cst. Abbott testified that he observed Mr. Lee’s vehicle, a car, parked nose in between two gas pumps in a crooked, odd position. When the police entered the store, Cst. Abbott testified Cst. Pidlinsky spoke briefly to the accused and while he was doing so, Cst. Abbott observed the accused’s speech was slurred; he had glassy eyes; he was fumbling and shuffling his feet; and was moving very slowly with deliberate movements.

He observed a little bit of drool or spittle on the side of Mr. Lee’s mouth but detected no odour of alcohol. Mr. Lee was standing by the till area staring at it and, to Cst. Abbott, it was “blatantly obvious” that Mr. Lee was impaired. He testified that the accused did respond to questions but his responses were slurred and not consistent. [ 10 ] Cst. Pidlinsky arrested Mr. Lee for operating a motor vehicle while impaired, handcuffed him and escorted him to the police vehicle. Mr. Lee was able to walk on his own while Cst. Pidlinsky had one hand on his shoulder. Mr.

Lee entered the back of the police vehicle without difficulty or assistance from police. [ 11 ] Cst. Pidlinsky had other duties to attend to and left the scene, leaving Cst. Abbott with the accused. Cst. Abbott said he had formed the opinion from his observations of Mr. Lee and the manner in which he had parked his vehicle, that Mr. Lee’s ability to operate a motor vehicle was impaired by a drug. Thus, at approximately 1:39 p.m., in the police vehicle, Cst. Abbott again advised Mr. Lee he was under arrest for impaired operation of a motor vehicle and gave him his rights to counsel.

The accused declined to call a lawyer.

[ 12 ] Cst. Abbott read Mr. Lee the drug demand, pursuant to s. 254(3.1) of the Criminal Code , demanding the accused submit to an evaluation conducted by an evaluating officer to determine if his ability to operate a motor vehicle was impaired by a drug, and to accompany him for that purpose. Mr. Lee indicated he understood. He then immediately read him the police warning and the accused said he understood as well. Roadside tests were not administered as the location was unsafe and Cst. Abbott is not trained to perform such tests. [ 13 ] After ensuring the vehicle was being towed, and having called Cst.

Schmidt, a Drug Recognition Evaluation Officer in Tisdale to meet them, they left the scene at approximately 1:45 p.m. and went directly to the Melfort RCMP Station which was only three blocks away. Arriving at the police station at 1:50 p.m., Mr. Lee was taken into the detachment and presented to Cst. Schmidt. [ 14 ] Cst. Abbott maintained that from his observations, the accused was not suffering simply from fatigue. He has dealt with other people who are on drugs and Mr. Lee’s behaviour at the scene was similar and consistent with such behaviour. [ 15 ] Mr.

Lee was lodged in cells, released late the next morning and Cst. Abbott drove him home. He noticed that the accused spoke very clearly and concisely and was easy to understand with no signs of impairment detected. [ 16 ] The Crown called Cst. Schmidt of the Tisdale RCMP to testify. He was not qualified as an expert witness but he is a certified drug recognition expert having successfully completed the Drug Evaluation and Classification Program accredited through the International Association of Chiefs of Police (Exhibit P-2).

From his description, the training is in-depth and requires a high level of attention and successful evaluations before one is qualified. The tests he conducted and procedures he followed with Mr. Lee are outlined in the Evaluation of Impaired Operation (Drug and Alcohol) Regulations , SOR/2008-196 . [ 17 ] Cst. Schmidt testified that no breath test was done on Mr. Lee as there was no belief alcohol was involved. [ 18 ] Cst. Schmidt completed the evaluation using the standardized forms provided through his training. He testified that he started the evaluation exam at 2:31 p.m., but did not provide an end time.

When starting the tests, he asked Mr. Lee what time he thought it was, and Mr. Lee responded that it was 6:00 p.m. in the evening. [ 19 ] During the initial inquiry with Mr. Lee, he was able to rule out any medical condition that may affect the results of the tests. The first pulse was taken from Mr. Lee, being 100 beats per minute. The normal range is 60-90 beats, and this was above normal. Mr. Lee’s eyes tracked equally. Cst. Schmidt had difficulty understanding Mr. Lee as he was slurring his words, and responded slowly. His movements and coordination were very slow and his face red and flushed. [ 20 ] Cst.

Schmidt performed the tests involving the lack of smooth pursuit, horizontal gaze nystagmus, vertical gaze nystagmus, and the angle of onset, but he could not determine these as Mr. Lee simply could not focus on the pen or follow instructions. These tests involve the officer moving a pen in various fashions in front of Mr. Lee and having Mr. Lee look at and follow the pen without moving his head. Mr. Lee had no ability to understand and follow a simple direction in the constable’s opinion. His eyes were droopy and he couldn’t seem to keep them open. He did not believe Mr.

Lee was refusing, but rather that he simply was not able to perform them due to his state. [ 21 ] Cst. Schmidt testified he performed the divided attention tests which mimic multi-tasking of drivers. During the Modified Romberg Balance Test, Mr. Lee had to stand with his eyes closed, tilt his head back and estimate 30 seconds (not count it out) and bring his head forward. A time of plus or minus five seconds is considered normal. Mr. Lee was timed to have a 58 second response. He moved his head in a circular sway of about six inches.

He lost his balance at the 22 second mark but regained his balance and continued. [ 22 ] During the Walk and Turn Test, he was told to walk in a heel to toe fashion along a line on the floor for nine steps and then turn in a certain fashion using a foot pivot and walk nine steps. One must keep their arms at their sides at all times. For the first walk Mr. Lee wanted to wear his sandals, but then changed his mind and took them off in the instructional phase. He stepped off of the line on three occasions and missed touching his heel to toe on steps 4-5 and 5-6, and every heel to toe of the remaining steps.

He took 10 steps instead of nine. This test was conducted close to a wall and when Mr. Lee stepped off of the line, Cst. Schmidt testified he would have fallen to the floor had it not been for the wall. A perfect score on this test is zero out of eight, but the accused scored five out of

eight. Through his training Cst. Schmidt testified that anything over two is a failure of the test. He said he did consider stopping the test but he wanted to give Mr. Lee a chance to finish it. He said he would have stopped it if he was concerned that Mr. Lee would get hurt. [ 23 ] During the One Leg Stand Test, Mr. Lee was to put his arms at his side and raise his right foot six inches off the ground with his toes out. The officer then times for 30 seconds but also has the person count out the 30 seconds. The test starts with the person standing on their left leg and then their right.

While standing on his left leg, Mr. Lee counted 15 out of 30 and was swaying, as well as using his arms by extending them out. He put his foot down four times during the test. While he was standing on his right leg, he counted to 17 out of 30 and put his foot down four times. He switched his feet when he lost balance and put his foot down. The accused scored three out of four with a fail being two or higher. [ 24 ] On the Finger to Nose Test, Mr. Lee did not perform well. Mr.

Lee was given instructions to stand with his heels and toes together, and when told to do so, close his eyes, tilt his head and touch the tip of his finger to the tip of his nose and immediately put his hand down. Contrary to the instructions, he used the pad of his finger and rather than touching the tip of his nose he touched the bridge or side of his nose. He had to be told every time to put his hand down. He would bring his head forward toward his finger. Mr. Lee would not wait for instructions and in the end, Cst.

Schmidt could not score him on this test. [ 25 ] During the clinical indicator tests, his second pulse was 108 beats per minute which was above normal and his blood pressure was 162 over 114, which was well above normal of 120 to 140 over 70 to 90. His body temperature was within the normal range at 36.6 with 37 degrees Celsius, plus or minus 0.5 degrees being normal. [ 26 ] Mr. Lee’s pupils were then measured under three types of light conditions. In room light, his pupils were equal at 4 mm, which was within the normal range being 2.5 to 5 mm.

In the complete darkness test he scored below normal at 4.5 mm with normal being in the range of 5 to 8.5 mm. In direct light his pupils were at 2.5 mm which was normal being between 2 and 4.5 mm. There was nothing abnormal about his rebound dilation going from a dark room into the light. Cst. Schmidt testified he had to continually tell Mr. Lee to keep his eyes open. His nasal examination was fine but the mouth examination showed decaying teeth but that alone is not determinative of anything. [ 27 ] During the check of muscle tone, Mr. Lee was found to be very flaccid.

He was sitting very droopy, “almost melting away”, his eyes were droopy, his face was droopy and his mouth was hanging open. The officer noted that Mr. Lee was “on the nod”. He also did a third pulse check and found it was 84 beats per minute, which was in the normal range. He checked Mr. Lee’s arms for needle track marks but found none. [ 28 ] After completing the Drug Recognition Evaluation, Cst. Schmidt testified that he had reasonable grounds to believe that Mr. Lee’s ability to operate a motor vehicle was impaired by a drug or a combination of alcohol and a drug, and demanded that Mr.

Lee provide a sample of his urine for analysis. [ 29 ] Cst. Schmidt came to this conclusion based on the dismal performance of Mr. Lee during the evaluation. Cst. Schmidt testified that this was the “worst evaluation” that he has ever done. He said it was a constant battle to have Mr. Lee stay awake, focus, and understand what was being said. While Mr. Lee was cooperative, he had extreme difficulty in following instructions, even when the constable demonstrated the test. [ 30 ] After concluding he required a sample of urine from Mr. Lee, Mr. Lee was given an opportunity to provide the sample.

It took close to 45 minutes to obtain a sample. Mr. Lee would tell the officer he had provided a sample when he had not. Mr. Lee would tell the officer he had to urinate, but could not. The officer noted that from his knowledge narcotics make it difficult to urinate. The sample was then sent off to be analysed and the resulting analysis by the RCMP Forensic Science and Identification Services Laboratory Report was filed with the Court, being Exhibit P-3. [ 31 ] The laboratory report indicates that the following drugs were detected in the urine sample of Mr.

Lee and comments made: - clonazepam; - 7-aminoclonazepam;

- methamphetamine; - amphetamine; - cocaine; and - methylecgonine. CLONAZEPAM is a central nervous system (CNS) depressant drug with sedative properties used in the management of a number of medical conditions including seizures and anxiety. 7-aminoclonazepam is a metabolite of clonazepam. METHAMPHETAMINE and AMPHETAMINE are CNS stimulant drugs commonly abused for their euphoric and stimulant effects.

The initial stimulant effects may include euphoria, excitation, talkativeness, restlessness, reduced need for sleep, increased heart rate and blood pressure, elevation of the body temperature (ie. sweating), dilated pupils, body tremors, rigid muscle tone, hallucinations and delusions. The stimulant effects are gradually replaced by anxiety, inability to concentrate, irritability, dysphoria, fatigue and uncontrollable sleepiness. Amphetamine is also a metabolite of methamphetamine. COCAINE is a potent CNS stimulant drug, used for its euphoric effects.

The stimulant effects of cocaine are short lived and may include euphoria, alertness, increased energy and confidence level, talkativeness, restlessness, body tremors, exaggerated reflexes, dilated pupils and elevated body temperature (ie. sweating). The stimulant phase is followed by a “crash” or dysphoric phase which is characterized by agitation, irritability, and anxiety. METHYLECGONINE is a metabolite of cocaine. Remarks 1.

Within the Drug Evaluation and Classification Program (DECP), clonazepam is a CNS depressant; methamphetamine and cocaine are CNS stimulant drugs. [ 32 ] By way of an Agreed Statement of Facts, the parties agreed that: a. Rivotril is the brand name for clonazepam. b. The detection of drugs in the urine indicates that those drugs were used at some time in the recent past, but are not quantified. [ 33 ] Based upon his observations, Cst. Schmidt testified that Mr. Lee was impaired by a drug which he believed was a narcotic analgesic.

He said during the tests the slow speech and being “on the nod” are classic symptoms of a narcotic. He based this on his years of experience in Vancouver working from an ambulance where he treated hundreds of people with narcotic overdoses. He said only narcotics restrict people’s pupils. Slow thick speech is another indicator of a narcotic. He further stated that a narcotic analgesic tends to slow people down. [ 34 ] Cst.

Schmidt acknowledged that the toxicology report (Exhibit P-3) results do not indicate a narcotic analgesic, but rather notes the drugs detected were in the central nervous system depressant and central nervous system stimulant categories. He testified that in his opinion his evaluation shows impairment by a drug and the toxicology report shows there were drugs in Mr. Lee’s system. [ 35 ] Cst. Schmidt disagreed that Mr. Lee’s performance was due to fatigue, given his years of knowledge and experience in dealing with drugs. In his opinion it was not even a possibility that Mr. Lee was just tired.

During the initial phase of the test, Mr. Lee had told Cst. Schmidt that he had had six hours of sleep the night before. In cross-examination Cst. Schmidt was asked if he misunderstood, but the constable reiterated that Mr. Lee’s response was that he had had six hours of sleep the night before. DEFENCE EVIDENCE [ 36 ] Mr. Lee testified on his own behalf. On July 10, 2012, he was living in an apartment on Broadway Avenue in Melfort and was in his vehicle on his way to get his son a slushy.

He drove to the Mac store and while he was inside the store he was grabbed from behind, his arm was twisted and the RCMP had a hold of him. He said he went to the police station and remembers going through the tests. He said he was feeling tired and stressed out about a recent separation from his wife and he was having a hard time being on his own without his children. He testified he did not sleep well the night before the police stopped him as he just tossed and turned, would

fall asleep for a few minutes and then lay awake. [37] He was shown the toxicology report which identified certain drugs had been detected in his system and he testified he couldnot explain the clonazepam as it was not prescribed to him. He said that he did take a prescription drug, either Seroquil or Rivotril at6:00 a.m. that day but was not feeling the effects of it when he was driving.

He agreed that perhaps one of those prescriptions containedclonazepam but he was not certain. [38] When asked about the drugs found in his system as indicated in the toxicology report, he said he was prescribed eitherSeroquil or Rivotril as he had quit narcotics and was trying to get off them, but he was not told of the effects, nor did he notice anyeffects. Regarding the methamphetamine and cocaine, he was at a residence on Sunday and “took a little sniff” of cocaine around 11:00p.m. - 12:00 a.m., although this was a lapse in judgment as he does not usually use cocaine.

He did not consume any methamphetaminebut said they may have been in the cocaine but he did not know for sure. He said the matter before the Court occurred on the Tuesday. He was not feeling the cocaine or methamphetamines on Tuesday as “like the officer said, you only feel a little effect for half an hour orso”. He testified he did not use any cocaine or methamphetamine, nor did he consume alcohol that morning prior to the officer stoppinghim. [39] With respect to his manner of driving to the store, he said he may have driven a little aggressively but denied almost hittingthe light post.

He did not see any other vehicles as he drove to the store. He did not swerve on the road, but if he did it may have beenbecause he was trying to put his seat belt on as he drove. He testified he did not see Joanne Lee at the store and had a hard time believingshe said hi to him as they are not friends, although he used to be friends with her little brother. [40] In an effort to explain his staggering, he said he had cork sandals on with leather straps and they flop on his feet making itdifficult to move.

With respect to the slurring of his speech, he said he feels that he slurs all the time and that people tell him he talkslike he has a mouthful of marbles. Regarding the tests performed at the detachment, he said that they were difficult and confusing andquite technical. [41] In cross-examination he couldn’t recall if his children, who were 11 and 5 at the time, were at his apartment or if he wastaking the slushies over to his mother’s place. He said he didn’t know if he was taking Seroquil or Rivotril at the time, but believed itwas only one and not the other.

He did not recall the dosage nor how long the medication would last or affect him. [42] He testified he also had been thinking about the roads and said the roads were horrible and full of potholes. Concerning theseat belt, he testified initially that he went over the yellow line because he was putting on his seat belt. However, he was not sure if hehad put the seat belt on before he started driving. He said when he parks at the pumps he always pulls in in that manner and leaves hisvehicle running and doors unlocked.

He did not recall on July 10, 2012, if that was the case as he does not always leave his vehiclerunning, but he had no answer as to why he did on that day. He said since he took the cocaine on Sunday, it would not conflict with themedication, being the Seroquil or Rivotril that he took on the Tuesday. He believed his drugs were an antidepressant but did not recallwhat side effects they may have. He testified that before the police attended, events were clear to him, but after the police arrested himeverything was a blur. ISSUE [43] Has the Crown proven beyond a reasonable doubt that Mr.

Lee’s ability to operate a motor vehicle was impaired by a drug? ANALYSIS [44] Given the testimony of the accused, I am mindful of the test outlined by the Supreme Court of Canada in R. v. W.D. (1991), (SCC), 63 C.C.C. (3d) 397. In this case, I do not believe the evidence of the accused nor does his evidence leave mewith a reasonable doubt. Further, on all of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of theaccused.

[45] While I agree with defence counsel that there is no expert or other evidence that relates the toxicology report or theobservations of Cst. Schmidt to the time of driving, I find that such evidence is not required. [46] The test for impairment is that as stated in the Supreme Court of Canada case of R. v. Stellato, [1994] 2 S.C.R. 418, which isthat “any degree of impairment from slight to great, will make out the offence”. [47] In R. v. Landes, (SK KB), [1997] S.J.

No. 785, Justice Klebuc (as he then was) stated at paragraph 16: An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences. Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability toperformphysical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [48] The Court went on to state further at paragraph 17: In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible. ... [49] These comments apply equally to cases of impaired operation of a motor vehicle by a drug as they do to impaired operation ofa motor vehicle by alcohol. [50] As noted in R. v. Polturak, 1988 ABCA 306 , there is nothing unusual with lay people and police officers testifyingas to their experience in narcotics control and observations of the accused’s driving pattern as well as his behaviour post driving.

Furtherthere is nothing untoward with police officers and lay people providing their opinion to the Court as to impairment of one’s ability tooperate a motor vehicle. The Alberta Court of Appeal stated at paragraph 5: [5] We all agree that the acceptability of this type of evidence of a non-expert is within the rationale of the decision of the SupremeCourt of Canada in Graat v. The Queen (1983), (SCC), 2 C.C.C. (3d) 365. That decision should, in our view, not beconfined only to situations involving impairment by alcohol as suggested by counsel for the Appellant.

In that decision Dickson C.J.C.approved the statement of Howland C.J., Ontario Court of Appeal, in (1983), (ON CA), 55 C.C.C. (2d) 429 at page 442-3 wherein he pointed out that “to testify that a person is impaired is really tantamount to saying ‘I don’t think that he should have beendriving’”. And that is a subject “about which most people should be able to express an opinion from their ordinary day-to-dayexperience of life”. [51] There is no requirement that the Crown link the toxicology report to the time of driving by expert evidence. The informationcharging Mr.

Lee does not particularize the type of drug the Crown alleges was involved, nor is the Crown required to prove more thanthe ability of the accused to operate a motor vehicle was impaired by a drug. Unlike the case of R. v. Perillat, 2012 SKPC 135, there isample evidence that Mr. Lee’s ability to operate a motor vehicle was impaired by a drug. [52] The manner in which he drove as observed by Joanne Lee, whose evidence I accept, was erratic to say the least. Herobservations of Mr. Lee both outside and inside the store, coupled with her background as an addictions counsellor, indicated to her thatMr.

Lee was under the influence of a drug or alcohol. She was very matter of fact in her evidence and did not appear to have any ill willtoward Mr. Lee. She was so concerned she removed the keys from his vehicle so he would not be able to drive any further and perhapshurt someone.

[ 53 ] Her evidence was supported by that of Cst. Abbott who observed similar signs of impairment, being slurred speech, glassy eyes, slow deliberate movements and the way in which the accused had parked his vehicle at the pumps at the gas station. While Cst. Abbott did have some difficulty with times and ensuring he referenced his notes accurately, this does not affect his overall evidence. He was prepared to agree where he believed his evidence was contradicted by other evidence, but maintained Mr. Lee’s ability to operate a motor vehicle was impaired by some type of drug. [ 54 ] The evidence of Cst.

Schmidt was that Mr. Lee was impaired by some type of drug, probably a narcotic analgesic, due to his poor performance during the Drug Recognition Evaluation tests. His observations of Mr. Lee’s poor performance during those tests illustrate that Mr. Lee had slurred speech, could barely keep his eyes open, could not focus on the task at hand and was unable to follow simple directions. [ 55 ] Although the drug recognition tests are not related back to the time of driving, they occurred within a short time after the accused had been arrested.

The officer explained that these tests are designed to test one’s ability to multi-task. It is clear the drug recognition tests are about assessing a person’s motor skills, their coordination and their reaction time. While there is no evidence as to the effect of cocaine or clonazepam on a person’s ability to operate a motor vehicle, Cst.

Schmidt offered his opinion that the accused’s ability to operate a motor vehicle was impaired by a drug, not only based upon the tests he administered and the accused failed, but also based upon his many years of experience as a first responder who dealt with many people under the influence of drugs. [ 56 ] Even if I were to find that Cst.

Schmidt’s evidence is not helpful, given there is no correlating the tests back to the time of driving, or evidence as to how these particular drugs impact upon one’s ability to operate a motor vehicle, I still find the evidence satisfies me beyond a reasonable doubt as to the guilt of Mr. Lee. [ 57 ] The toxicology report indicates that drugs were detected in Mr. Lee’s system. While there is no indication of the quantity of drugs found, it still stands for the fact that drugs were detected in Mr. Lee’s system at the time he provided the urine sample on July 10, 2012.

The presence of drugs supports the observations and opinions of Joanne Lee, Cst. Abbott and Cst. Schmidt that Mr. Lee’s ability to operate a motor vehicle was impaired by a drug. [ 58 ] Mr. Lee’s recollection of events was sketchy, with little detail provided. He was quick with the explanations for his erratic driving, his manner of walking and talking, as well as his poor performance on the tests conducted by Cst. Schmidt. He tried to diminish Joanne Lee’s evidence by saying she was not his friend so why would she say hi to him in the Mac store.

He could not recall what medication he was taking at the time, nor the dosage. He tried to suggest that the tests conducted by Cst. Schmidt were difficult and technical and confusing, despite Cst. Schmidt’s testimony that he explained the tests and/or demonstrated them prior to Mr. Lee having to perform them and that he had no difficulty performing them in full uniform. [ 59 ] On his own evidence, the accused admitted to using cocaine, and possibly methamphetamine and taking a prescription drug. I do not believe that his cocaine or methamphetamine use or his taking of a prescription drug was as he testified.

Rather, I believe he consumed those drugs much closer to the time of driving. [ 60 ] I find Mr. Lee’s evidence was self serving, and not believable. Where his evidence conflicts with Joanne Lee, I accept her evidence. I also accept the evidence of the two police officers. [ 61 ] On all of the evidence I accept, I find the accused guilty of operating a motor vehicle while impaired by a drug.

I. Cardinal, J