R. v. Duhamel, 2011 ONCJ 365

Information No. 102168 Citation: R. v. Duhamel , 2011 ONCJ 365 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DARREN PIERRE DUHAMEL ********** REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE P.T. BISHOP On June 1, 2011 at DRYDEN, Ontario *********

APPEARANCES: P. Keen Counsel for the Crown K. Seeley Counsel for Darren Duhamel WEDNESDAY, JUNE 1, 2011 REASONS FOR JUDGMENT BISHOP, J. (Orally) : Having heard all the evidence, I am going to find that the Crown has not proven the case beyond a reasonable doubt for the following reasons. There is an evidentiary problem with drug cases; there is no standard and no norm as there is with blood alcohol consumption. The court is left in a doubt as to the quantity of THC in Mr. Duhamel’s urine. It is after it has gone through his body. It could be anything from a trace to a significant amount.

I have to then go back and apply that, the data that caused the driving behaviour that was observed by the police officer and denied by the accused and his passenger. There is an absolute denial of Mr. Duhamel using any marijuana and that evidence is corroborated by Mr. Davis and neither consumed marijuana that particular evening. The court is left with the question; well where did the THC or the marijuana come from in his body or in his urine, rather. And I am finding that both Mr. – and I accept their evidence – both Mr.

Davis and Duhamel smelled marijuana on the patio; there was five minutes when there was secondhand smoke. Mr. Rajotte gave evidence; it has to be in a closed space. There is a problem here that Mr. Duhamel is a longtime employee at the Queen Street Station and he is regularly looking for marijuana, smelling marijuana and there is a doubt whether or not there has been an accumulative affect of that job that he has in face of the absolute denial and the denial by Mr. Davis. And I accept that, I accept that he did not consume marijuana that night. Mr. Rajotte indicates impairing effects could last one to two hours.

I would have to then be able to relate back to whatever THC was in his system and try and ascertain, did that cause the, the behaviour that the police officer observed. It could be in his system for four to six hours. The Crown and the defense never asked Mr. Rajotte about the cumulative affect of secondhand marijuana smoke and this, this causes a doubt for the court; how did that get there. It is perfectly consistent with – in my mind – that that it could have been there as a result of smelling marijuana for five minutes. Notwithstanding Mr. Rajotte’s opinion evidence; I simply do not accept that.

Science is not as exacting as many people would like it, to believe. There is a human element; as I said I believe Mr. Davis and Mr. Duhamel about the source of this particular marijuana. The indicia with respect to impaired driving; there is contradictory evidence there as well. Constable Olsen indicated that he saw the brakes slam on an abrupt stop. He stopped(sic) one car length back; slow, wide turn, crossing into the other lane, touched the snow bank and inconsistent speed. Mr.

Davis, who is a passenger – and I reject the Crown’s submission, he is not a licensed driver; therefore he cannot make observations – he is in a good or better position than the police officer to make the same observations with respect to the driving. Mr. Davis said there was no abrupt stop; he was there. He did not observe the car stopping back – the only thing he observed was a wide turn onto the one street that we have already alluded to. So there is contradictory evidence with respect to that. So I reject that evidence as indicia of impairment, because I cannot decide who is telling the truth.

There is a real difference of opinion between the Crown witness, Constable Olsen and the two defense witnesses. So that contradiction causes a reasonable doubt with respect to whether the impaired indicia as enunciated by Constable Olsen was correct. Both were sober; Mr. Davis - and I have already found that Mr. Davis and Mr. Duhamel were sober. They had not consumed any alcohol; they had not consumed any drugs. The further problem that the Crown has is the, the officer did his test on a snow covered road after a snowstorm. The accused mumbled and he indicated he was nervous; I accept that.

He had a thousand mile stare; some people just look – I had an opportunity to look at Mr. Duhamel here today and he speaks very slowly, he thinks about, he thinks very slowly and processes information very slowly. He was not able to follow the stilus. I have to look at an individual - which I do - and some people can not do these tests. And that is what I am finding with Mr. Duhamel. Lost his balance; well he is really overweight. He, he is standing at, being asked to stand on one leg; he is a big man, he weighs over 295 pounds and I notice when he walks in the court; he walks with a roll to his gait.

The other problem that the Crown has is that Constable Hildebrand took notes from Constable Olsen. That is a problem because I do not know how accurate the note-taking was nor how accurate the conveyance of the information was from Hildebrand to Olsen. It is not the person who is doing the observations taking the notes; it is a scribe and invariably as we see in court and other situations; people make mistakes. They write things down incorrectly or there is a different

interpretation and I find that problematic from the Crown’s case. Particularly when Constable Olsen was doing a cut and paste; he got the facts, he took a cut and paste from some other case; put it into his notes and he corrected that here today or yesterday when he gave his evidence. That was a mistake; “I was looking at another case and I cut and pasted that.” Did he, get the information correct from Constable Hildebrand or did Hildebrand take the notes correctly as Constable Olsen was relating to him?

Now the Drug Evaluation Officer, Drug Recognition expert; there are problems with that because it is, it is like, like the – you get to do the tests when you do blood alcohol and you form your reasonable and probable grounds. Well here, he has to form his reasonable probable grounds after taking the tests as a Drug Evaluation Officer. He is suspicious up until that time, but then when he does his drug evaluation tests as a

Drug Recognition Expert; the pulse was 92, normal is 60 to 90. What is normal for Mr. Duhamel; I have no idea. I cannot apply a universal standard based on what the, the officer is saying. He is unable to do the horizontal nystagmus test; well he cannot cross his eyes. Some people cannot do that, some people are naturally cross eyed; so I reject that. The Romberg balance test; he has already explained, he has difficulty standing on one leg; he has difficulty standing for those minutes. I observed him in court; he had difficulty standing in the stand and he was sober.

Same thing with the walk and turn test; he is grossly overweight. For an individual that size to put heel in front of toe, heel in front of toe; it is very difficult and I already talked about the one legged stand test. Counting time; he was off on some of the counting of time. I do not find that as indicia of impairment by a drug. It is more – all of these tests are the person’s inability to perform these particular tests and it is so independent and it is so particular. Finger to nose; many people put their pad of their finger – they do not realize that the tip of the finger is the tip and not the pad.

Some people do not follow instructions very well, notwithstanding that there has been a demonstration. And I am finding that Mr. Duhamel has, has created a doubt here. With respect to blood pressure; the police officers are playing physician. The normal range is 120 to 140; he has a 150, he is slightly higher. I cannot take that as an indication that his ability to drive is impaired by a drug. But the other lower one – diastolic was 90; well within the range. So you can look at the, the accused, he is overweight; perhaps he has high blood pressure, perhaps he does not.

I do not know; that was never really explored. But these tests are really not conclusive. The pupilometer; He has three normal readings on the pupilometer. And again, people are individual and I have to look at the individual here and the officer came up with the conclusion. Here is what he said; he is under the influence of cannabis. He did not relate all of these tests to the consumption of cannabis and he did not, and he also said he could not operate a motor vehicle safely. He did not form the conclusion that his ability to drive a motor vehicle was impaired.

May be a small distinction, but I think he has to say those words and he has to give better evidence on how he concluded as a result of these tests that he is under the influence of cannabis. I suspect really strongly that he was able to say that at trial, because he got the tests back from Mr. Rajotte. Although I do not know; there is no evidence of that. That is what my suspicion is. There was no evidence put forward by Constable Olsen linking the tests, which he is entitled to take as a Drug Recognition Expert, to the consumption of cannabis. There was no connection, no correlation in his evidence.

I have to look at Regina versus WD and if you believe the accused, then you have to acquit. If you do not believe the accused, what do you believe of what he said and his witness said; do they create a doubt and has - the last test has the Crown proven all of the elements of the offence. I am finding that I believe the accused with respect to not consuming any marijuana that particular evening. I accept his defense witness’s evidence.

I accept that Constable Olsen took the tests, that he is a Drug Recognition Expert and can give an opinion – he is not an expert, but I find those testings(sic) really problematic in this particular case. And I am finding that on all the evidence – there is contradictory evidence of bad driving, there is contradictory evidence with respect to consumption of drugs. There is no standard, we do not know how much THC was in his system; if there was some kind of way that it could be valued like a one gram reading in his, in his urine would not result in being impaired, but a ten would be.

I do not know what the, the measurements would be. We simply do not have that; that is lacking in this particular case. His failure to perform adequately and properly – although he did perform I would say, three of the tests – within the norm, normal range; really cannot be corroborated back to his ability to drive was impaired by a drug. The Crown has presented two cases; Bois, which was a decision of this court – and that was an entirely different fact situation.

The accused admitted that he was taking oxycontin, did not have a prescription; he was taking apo, he was taking – I do not know - some other drug as well. And you know, the, the officer there was – and so was Mr. Rajotte – able to backdate to show what the affects were on that oxycontin. Jurastic(ph); I have read that as well and it is distinguished on the facts.

In that case there was no evidence of impaired driving and Justice DeGuiseppe outlined the test and I – for all of those reasons I am finding I have an reasonable doubt in these unusual fact circumstances that his ability to drive a motor vehicle was impaired by a drug and he must be aquitted; all right. MR. KEEN: Thank you Your Honour. MISS SEELEY: Thank you Your Honour. MR. DUHAMEL: Thank you Your Honour.