R. v. Langfeld, 2017 ONCJ 382

ONTARIO COURT OF JUSTICE CITATION: R. v. Langfeld , 2017 ONCJ 382 DATE: 2017-06-09 COURT FILE No.: Central East Region BETWEEN: HER MAJESTY THE QUEEN — AND — DYLAN LANGFELD Before Justice J. Bliss Heard on April 26, May 30, and June 5, 2017 Reasons for Judgment released on June 9, 2017 S. Sullivan............................................................................................. counsel for the Crown D.

Wilcox......................................................... counsel for the defendant Dylan Langfeld BLISS J.: Overview [ 1 ] Just after 3 o’clock in the morning on May 11, 2016, Dylan Langfeld sat reclining in the driver`s seat of his mother’s vehicle. He was some 20-25’ from the road in a farmer’s field having somehow managed to traverse a ditch running between the road and the field. Not surprisingly, the vehicle`s unusual location attracted the attention of passing paramedics. In short order, police were contacted and after observing Mr.

Langfeld’s peculiar state of dress, his physiological response to a flashlight shone in his eyes, an exaggerated gait as he wandered away from them, and a veritable Aladdin’s cave in his car, Mr. Langfeld found himself charged with having care or control of a motor vehicle while his ability was impaired by a drug and breach of probation for failing to keep the peace and be of good behaviour. [ 2 ] It is admitted that Mr. Langfeld was in care or control of the vehicle. The only issue is whether the prosecution has proven beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by drug.

Facts [ 3 ] In the early morning hours of May 11, 2016, paramedics Mark Collins and Scott Silverberg were returning to the Stroud ambulance station and driving on Lockhart Road near Bayview Avenue when they noticed a car sitting off the road in a farmer’s field. Unsure as to how it got there, and why it was there, they stopped to investigate. While one of the paramedics remained in the ambulance and contacted police, the other approached the vehicle and found a lone male sitting in the driver seat. That male was Dylan Langfeld. After a brief conversation with Mr.

Langfeld about whether he knew where he was and confirm he did not need medical help, police arrived and the paramedics left the scene. [ 4 ] Constable Velema arrived with Cst. Hayes at about 3:13 a.m.. With 16 years of policing experience, Cst. Velema was the coach officer for the newly graduated Constable Hayes. The car was about 25’ from the ditch parallel to the road. The field appeared recently planted and the dirt was dry and relatively flat. As Cst. Velema walked to the car, he testified to seeing tire tracks within the field. The tracks married up, and ended, where the vehicle was parked.

While the tire tracks were obvious to Cst. Velema, no mention

was made of any tracks in either the paramedics’ written statements that were admitted into evidence nor by Cst. Hayes. The vehicle’s headlights were on and the driver’s window was down. Mr Langfeld was seated in the driver’s seat in a reclining position. [ 5 ] While he spoke to Mr. Langfeld, Cst. Velema stood at the open driver’s window. Cst. Hayes was beside him. Cst. Velema testified that Mr. Langfeld held onto the steering wheel and looked out the front windshield during much of their interaction even though the officer was standing at his side window. Mr Langfeld was asked for his identification.

Although unable to provide his driver’s licence, he provided a Health Card which confirmed his identity. Checks of the licence plate indicated the vehicle belonged to Mr Langfeld’s mother. [ 6 ] The exchange between Mr. Langfeld and police was adduced in support of their grounds. It was, as the prosecution put it, the manner of Mr. Langfeld’s responses and not the utterances themselves that were being introduced into evidence. Mr. Langfeld answered the questions that were asked of him, seemed to understand what he was being asked and his responses were understood by the officers.

The officers did not detect any odour of alcohol or any slurring of his speech or other typical indicia of impairment by alcohol. The investigation then focused on the possibility that Mr. Langfeld’s ability to operate a motor vehicle was impaired by drug. [ 7 ] Given the hour and the lack of artificial light, Cst. Velema used his flashlight to investigate Mr. Langfeld’s physical state as well as any items of interest in the vehicle that were in plain view. When the officer shone his flashlight at Mr. Langfeld, he noticed that Mr. Langfeld’s pupils were, in his words “enormous, like the size of a dime”.

When he shone the light directly into Mr. Langfeld’s eyes, the pupils did not contract. [ 8 ] More peculiarly, Mr. Langfeld was wearing a t-shirt as pants, having inverted the shirt, with his legs through the arm holes and his groin where the neck would be. When questioned why he was wearing his t-shirt that way, Mr Langfeld explained that he was hot. When the officers looked in the car, they noticed a Bic lighter on his lap. Beside him on the passenger seat was a duffel bag, dildos, and a significant amount of women’s underwear in the front passenger footwell.

Behind him on the back seat was an open family size jar of vaseline. Also in the back was a tote with beer bottles inside as well as a broken mirror. [ 9 ] Mr. Langfeld was asked to exit his vehicle, and he grabbed his jeans from the back seat. When he came out of the car, Mr. Langfeld was only wearing socks on his feet. Cst. Velema described him as being unsteady on his feet, swaying and leaning back to the point that he had to lean on the car to stop himself from swaying. Mr Langfeld’s movements to clothe himself were described as extremely slow.

As he was putting on his jeans, he was seen to be wearing what appeared to be a woman’s thong. [ 10 ] Cst. Hayes also found Mr. Langfeld to be unsteady on his feet but noted that when he was trying to put his jeans on, he was doing so over the t-shirt that he was wearing as pants. Cst. Hayes also testified that Mr. Langfeld took stutter steps and was constantly adjusting his footing to get his balance all while not wearing shoes. After successfully, albeit slowly, dressing himself, the officers testified that Mr. Langfeld inexplicably started walking off into the farmer’s field in what was described by Cst.

Velema as like a “clown with a wide stance and toes out” and by Cst. Hayes as a “duck walk”. Either way, Mr. Langfeld was retrieved and escorted, or guided, back to the police cruiser. [ 11 ] The location and state of the vehicle with Dylan Langfeld seated in the driver’s seat, his dilated pupils, the absence of any odour of alcohol or slurring of speech, the absence of a reasonable explanation why he was in a farmer’s field at that hour, his peculiar or improper clothing arrangement, the observations of items within the car, the way Mr.

Langfeld got dressed after exiting his vehicle, his swaying, and exaggerated gait led the officers to believe that Mr Langfeld was likely impaired by a drug and Mr Langfeld was arrested for operating a motor vehicle while impaired by drug. [ 12 ] Mr. Langfeld was searched at the scene with a more thorough search at the station. Nothing of note was found. When his vehicle was searched incident to arrest, Cst.

Vilema searched the blue tote in the back seat and found a large dusty broken mirror with a large white smudge on it that appeared fresh which, to the officer, was indicative of some drug having recently been used. There were also four warm sealed bottles of beer. In a ziploc bag was what was described as a “drug pipe” with residue in it and two bags of what Cst. Velema suspected to be cocaine; one being a powdered substance and the second being chunky. There was also a green transparent bag in a York Regional Police business card holder with approximately 2 grams of suspected marijuana.

In the same Ziploc bag was a drinking straw with a white substance on the uncut end which the officer believed to be used for consuming cocaine. There was another contraption which consisted of a long corrugated plastic tube with a drinking straw taped to it with suspected cocaine residue on the drinking straw portion. While both officers were not familiar with the particular contraption and how it is used, the suspicion was that it was for the consumption of drugs. The suspected “drugs” and “drug paraphernalia” were seized and Mr Langfeld was advised he would be charged with possession of cocaine and marijuana.

A drug recognition demand was also provided to Mr. Langfeld. [ 13 ] When Cst. Hayes returned to the station he processed the evidence to be submitted to Health Canada: 2.2 grams of suspected MDMA, 2.79 grams of suspected cocaine and 2 grams of suspected marijuana. An exhibit bag containing the “drug paraphernalia” was tendered as an exhibit. [ 14 ] At the station, Mr. Langfeld was booked. Cst. Vilema testified that even when being paraded, Mr.

Langfeld’s pupils were still large although not as large as they were at the roadside. [ 15 ] Although a request was made for a Drug Recognition Expert (DRE) to attend shortly after Mr Langfeld’s arrest, the officers were advised shortly after the booking process that there was no drug recognition expert available. [ 16 ] Apart from the still dilated pupils, there was nothing of note observed during Mr. Langfeld’s time at the station.

He walked from the booking room to breath room where a more thorough search was to be conducted without difficulty, and he engaged in the standard booking practice of putting his hands on the wall and alternately lifted his legs without any apparent problem. [ 17 ] Despite the suspected drugs and drug paraphernalia being seized, no Certificate from any analysis of any suspected substance was tendered in evidence. The evidence before me is of observations and seizures of suspected drugs.

Notwithstanding that, the prosecution called Robert Langille, an expert forensic toxicologist, to give evidence on the detection, pharmacology, and toxicology of drugs and the

interpretation of analytical findings including behavioural and impairing effects in a judicial context. His report premised,

in part, on the seizure of suspected MDMA, cocaine and marijuana from the vehicle, was filed on consent. He was allowed to sit in thecourtroom during the evidence of Csts. Velema and Hayes and testified further to his written report. [18] Dr. Langille’s report sets out the possible impairment and general opinion regarding the effects of MDMA, cocaine andmarijuana and the impairment that may result. He testified about the half-life of MDMA and how it is typically consumed by tablet orby snorting powder.

He testified that one of the hallmarks of MDMA use, consistent with the observations described by ConstableVelema, is very large pupils and the lack of contraction. He considered the so-called “clown” or “duck walk” and Mr. Langfeld havingto steady himself and opined that that MDMA used over a period of time can produce “incoordination” and that one explanation for whatwas observed could be due to past and current use of that particular drug. Dr. Langille would only say it was possible from what he hadheard that Mr Langfeld had consumed MDMA.

He was not able to give an opinion as to Mr Langfeld’s impairment specifically, but thatuse of MDMA can impair the ability to operate a motor vehicle. [19] Dr. Langille similarly testified about the way cocaine can be consumed, including by snorting it. He said it generally looks likea white powder while crack looks like a piece of white or off-white plastic. Cocaine use can also cause pupil dilation as well asincreased heart rate and body temperature. According to Dr. Langille, it does not usually produce incoordination.

The use of cocainewould impair one’s ability to operate a motor vehicle by increasing risk-taking and causing a driver to be less vigilant and moreimpulsive. [20] With marijuana, while the behavioural effects of marijuana use can differ amongst users, Dr. Langille testified that itsconsumption can also impair the ability to operate a motor vehicle. [21] From all that he had heard, Dr. Langille concluded that it was possible, based on the physical signs observed, that DylanLangfeld was impaired by drug.

Analysis [22] A conviction for impaired driving requires proof beyond a reasonable doubt that the accused’s ability to operate a motor vehiclewas impaired by the consumption of a drug or drugs. If the evidence of impairment establishes any degree of impairment ranging fromslight to great, the offence has been made out. (R. v. Stellato (ON CA), [1993] O.J.

No. 18 (C.A.), aff’d (SCC), [1994] S.C.J. 51) [23] Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impactingon perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. (R. v. Censoni, [2001] O.J. No.5189 at para. 47 (S.C.J. per Hill J., cited with approval in R. v. Bush 2010 ONCA 554 , [2010] O.J. No. 3453 at par. 47 (C.A.)) [24] It is the totality of the evidence that must be assessed.

The question is, considering all of the circumstances, whether thedefendant’s conduct, viewed objectively, is consistent only with impairment and inconsistent with some other explanation. (R. v. Andrea2004 NSCA 130 , [2004] N.S.J. No. 399 (C.A.)) [25] The prosecution submits that proof that Mr. Langfeld was impaired by a drug rests circumstantially on the following: ● The location of the vehicle in the farmer’s field ● Mr. Langfeld’s dilated pupils which, according to Robert Langille, is a hallmark of cocaine and/or MDMA consumption ● His “peculiar” attire ● Items within the car suggestive of Mr.

Langfeld engaging in sexual activity; sexual activity that could be “enhanced” by use ofcocaine ● The seizure of multiple suspected drugs ● Drug paraphernalia including the broken mirror with white smudge believed to be cocaine ● Straw and “drug pipe” with residue consistent with drug use [26] The prosecution also seeks to have me consider the manner of Mr. Langfeld’s responses to questions from police that suggestedsome inability to explain where he was, but not the responses themselves, as further evidence of impairment.

The prosecution submitsthat considering the whole of the evidence, the only reasonable inference is that Mr. Langfeld was impaired by drug. [27] The defence counters that the factors that the prosecution points to just add up to possibilities. There was no drug recognitionexpert enlisted, no standard field sobriety testing, no evidence of any drug analysis of the substances found in the vehicle. No testing ofany residue or substance purportedly contained on the drug paraphernalia, and no photographic record of any substances found in thevehicle. The swaying or wobbling as Mr.

Langfeld tried to put his jeans on is what you would expect of someone in socks trying to puton jeans with one hand while holding the inverted t-shirt fashioned as pants with the other. The “clown” or “duck” walk was just asconsistent with Mr. Langfeld seeking some privacy to embarrassingly “adjust” himself after he put his jeans on. The defence submitsthat the only indicator of possible drug use is dilated pupils which only amounts to a possibility and not proof beyond a reasonabledoubt. Drawing the Inference that Dylan Langfeld was Impaired by Drug [28] In R. v. Munoz (ON SC), [2006] O.J.

No. 446 at para 25 (S.C.J.), Ducharme J. drew on the process ofinference drawing described by Doherty J.A. in R. v. Morrissey (ON CA), 97 C.C.C. (3d) 193 (C.A.) at p. 209 asfollows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably andlogically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonablyfrom established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v.

White (1994),1994 NSCA 77 , 89 C.C.C. (3d) 336 at p. 351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.): These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from thewhole of the evidence on the other. [29] So is the inference that I am being asked to draw one that logically or reasonably flows from the established facts?

Where isthe line between an available inference that permits me to find guilt and conjecture? [30] In Munoz (supra), Ducharme J. analyzed how inference drawing can become impermissible speculation: [26] The first step in inference drawing is that the primary facts, i.e., the facts that are said to provide the basis for the inference, must beestablished by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be theproduct of impermissible speculation. The decision of Lord Wright in Caswell v.

Powell Duffryn Associated Collieries Ltd., [1940] A.C.152, [1939] 3 All E.R. 722 (H.L.), at pp. 169-70 A.C. is often cited as authority for this long-standing principle: The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture orspeculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed.

In other cases theinference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, themethod of inference fails and what is left is mere speculation or conjecture. [28] The second way in which inference drawing can become impermissible speculation occurs where the proposed inference cannot bereasonably and logically drawn from the established primary facts. This possibility stems precisely from the fact that an inductiveconclusion is not necessarily valid.

As McLachlin C.J.C. put it in Arcuri at p. 839 S.C.R., pp. 31-32 C.C.C.: [W]ith circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is,an inferential gap beyond the question of whether the evidence should be believed. . . The judge must therefore weigh the evidence, inthe sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.

Consequently, one can overreach and draw an inference that should not properly be drawn from the primary facts. [29] The courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gapexists, it can only be properly overcome by evidence. [31]…As Fairgrieve J. noted in R. v. Ruiz, [2000] O.J.

No. 2713 (C.J.), at para. 3, "[s]imply because a possibility cannot be excludeddoes not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence." The inference must beone that can be reasonably and logically drawn and, even where difficult, it cannot depend on speculation or conjecture, rather thanevidence, to bridge any inferential gaps. [31] Notwithstanding the absence of proof of the exact nature of the substances found on the paraphernalia found in Mr.

Langfeld’svehicle, the prosecution submitted, correctly, that even given that absence of evidence, “the totality of the evidence can includecircumstantial evidence that would support consumption of alcohol or a drug.” The prosecution relied upon the decision of Paciocco J.,as he then was, in R. v. McGrath [2013] O.J. No. 3728 as standing for the proposition that “evidence of a substance, consistent with thelook of a drug, found on the accused could support an inference of recent consumption.

This is so even where the item was not tested toconfirm that it was, in fact, a drug.” [32] In that case, a urine screen showed clonazepam and clonazepam metabolites in the accused’s system. The untested “drug” was awhite flaky substance or a red and white substance inside the accused’s nostrils. The question for the Court was what to make of thisevidence given that no analysis was ever done of the substance. As Paciocco J. noted at para 28-29: Mr. Konyer, for Mr. McGrath. called this evidence a "red herring" absent proof of what the powder was.

While I agree that the relevanceof this evidence has been materially compromised by the failure of the police to seize and analyse the substance, I do not agree that thisevidence is so bereft of relevance as to be a "red herring." In my view, this evidence, even without analysis of the powder is somecircumstantial evidence consistent with recent drug ingestion. Indeed, given that it is unlikely that powder and apparent pill fragmentsare apt to enter one's nose by accident, it is also evidence of voluntary consumption.

This is not, in my view, unlike treating needle markson one's arm as consistent with drug abuse without laboratory confirmation of the substance injected. It is not unlike recognizing that thepresence of a sticky compound surrounding the nose and chin of an impaired person is evidence consistent with glue inhalation, evenwhere that compound has not been tested. Drug sniffing can leave residue, just as glue sniffing can. That is why Drug RecognitionEvaluators are trained to examine the nasal area. Ultimately, the presence of a powdery substance in Mr.

McGrath's nasal cavities has to be considered in the context of other proof. Thisis a case in which there is uncontested evidence that Clonazepam, which comes in pill form, was ingested by him. There is also evidencebefore me that one mode of ingesting pills is to crush them and snort them. The presence of a powdery substance inside Mr. McGrath'snose, while incapable on its own of affirmatively proving voluntary ingestion of the Clonazepam, is not red herring information. It issome evidence consistent with voluntary consumption of drugs.

Coupled with the evidence showing that the only drug in his system wasClonazepam. It is some evidence consistent with the voluntary consumption of Clonazepam. [33] In the case before me, the relevance of the evidence is similarly materially compromised by the failure to tender any analysis ofthe substances. While it is still some circumstantial evidence, is it circumstantial evidence of drug consumption by Mr. Langfeld? Unlike the situation in McGrath, there were no observations of any powdered or other remnants of consumption by Mr. Langfeld, recentor otherwise.

[34] In R. v. Villaroman 2016 SCC 33 , [2016] S.C.J. No.33, the Supreme Court of Canada posed the question this way: Isthe circumstantial evidence, viewed logically and in light of human experience, reasonably capable of supporting an inference other thanthat the accused is guilty; that is, does the evidence exclude any other reasonable alternative. (para 38-41) [35] The Court in Villaroman adopted the language of the Alberta Court of Appeal in R. v. Dipnarine, 2014 ABCA 328, 584 A.R.138, at paras. 22 and 24-25, to highlight that “circumstantial evidence does not have to totally exclude other conceivable inferences. Thetrier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable. Alternative inferencesmust be reasonable, not just possible”. (para 42) Applying the Law to the Facts [36] My task is to consider the presence or absence of evidence in totality, and consider the evidence contextually, to determinewhether impairment has been established beyond a reasonable doubt. [37] Mr. Langfeld’s attire was certainly peculiar as was his choice of parking spot.

It was not, however, surprising that when heexited his vehicle, that he had to work to balance himself while standing in the field and putting his jeans on while also holding onto theinverted t-shirt that remained with his legs in the arm holes. His walking away from police, who were clearly engaged in an investigationof him, and doing so by way of an exaggerated gait described as being like a clown walk or duck walk is less easy to explain. Despitebeing guided back to his vehicle and ultimately into a police cruiser, that was the only occasion either at the scene or at the detachmentthat Mr.

Langfeld’s gait was remarkable in any way. In fact, when asked to put his hands on the station wall and alternately lift his feet,he did so apparently without difficulty. Nor was there any issue with him walking from the booking area to breath room for the search tobe conducted. [38] While his pupils were dilated at the scene and marginally less so at the station, that was the only physical indicia that could beconnected to drug consumption. Despite being urged to consider how Mr.

Langfeld responded when questioned by police to furthersupport the inference of impairment, the evidence from the police was that there was nothing in the manner of his responses that wasremarkable. There was no slurring of speech. He appeared to understand the questions and responded appropriately, and displayed noissues with cognition. [39] The failings in the police investigation, while not fatal, are material. No standard field sobriety test was conducted, no drugrecognition expert attended despite requests to do so. As a result, no evaluation from a trained “expert” was put before the Court.

Insaying that, I am not saying that the lay opinions from non-DRE officers such as Csts. Velema and Hayes do not have probative valuebecause clearly their opinions are entitled to some weight according to their respective experience. [40] The suspected drugs and drug paraphernalia found in the blue tote in the back seat that the prosecution relies upon as evidenceof drug consumption has its own obvious problems since they were neither photographed nor analyzed. Cst. Velema’s evidence was thatthe smudge on the dusty broken mirror with white residue was likely cocaine and that the smudge was “fresh”.

The prosecution urgesme to accept that as a reasonable inference. How can I accept though that the smudge was “fresh”, and what does “fresh” mean? It isreasonable to infer that a smudge was made some time after dust accumulated on the mirror but when? Even if it is reasonable to inferthat the residue on the straws and other suspected drug paraphernalia were drugs, the inferential leap I am being asked to make is that thedrug or drugs had been consumed by Mr.

Langfeld. [41] All of the items, the contraptions, the paraphernalia, the Ziploc baggies containing suspected drugs were all seized and yetincredibly, no evidence of their analysis was before me. [42] Even when Mr Langfeld got out of the vehicle and wishes to put on his jeans, he does so while also holding up the inverted t-shirt that is covering his groin area. It is entirely reasonable and hardly speculative to appreciate that doing so would cause some loss ofbalance or swaying in some fashion. Having accepted that, it would be speculative for me to accept that Mr.

Langfeld wandered awayfrom police out of embarrassment or his unusual gait was explained by him “adjusting” himself. Mr. Langfeld’s presentation is one ofthe factors I must consider. [43] Dr. Langille gave evidence as an expert on the detection and pharmacology and toxicology of drugs including the behaviouraland impairing effects. He described the impairing effects of MDMA, cocaine and marijuana on a person`s ability to operate a motorvehicle and that pupillary dilation caused by MDMA and/or cocaine consumption would be evidence of impairment in the ability tooperate a motor vehicle. [44] What Dr.

Langille did not say was that pupillary dilation was caused exclusively by the consumption of the drugs. That is whywhen asked, he testified that from all that he had heard, having sat in court during the police officers’ evidence, he was able to come tothe conclusion that it was possible, based on the physical signs observed, that Dylan Langfeld was impaired by drug. [45] Criminal trials are not about possibilities or even probabilities. They are about proof beyond a reasonable doubt.

Notwithstanding the peculiarity of the manner in which Dylan Langfeld was located, including his pupillary dilation, there is limitedevidence of incoordination. In considering whether the prosecution has proven guilt beyond a reasonable doubt, I must also consider thefailure to conduct field sobriety tests, the failure to involve a drug recognition expert, and the failure to test the substances. So while, toadopt Dr. Langille’s words, Mr. Langfeld was possibly impaired by a drug, and maybe even probably impaired by a drug, that is simplynot good enough.

That is not proof beyond a reasonable doubt and accordingly Mr. Langfeld will be found not guilty. Released: June 9, 2017

Signed: Justice Jonathan Bliss