R. v. Baillie, 2022 NSPC 17

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Baillie , 2022 NSPC 17 Date: 20220405 Docket: 8317382 Registry: Dartmouth Between: Her Majesty the Queen v. Cameron Kenneth Baillie Judge: The Honourable Judge Theodore Tax, Heard: November 19, 2019, and March 8, 2022 in Dartmouth, Nova Scotia Decision April 5, 2022 Charge: 320.14(1)(

a) of the Criminal Code of Canada Counsel: Sarah Lane, for the Public Prosecution Service of Nova Scotia Drew Rogers for the Defence Counsel By the Court: [ 1 ] Mr. Cameron Baillie was charged with operating a conveyance while his ability to operate it was impaired to any degree by drug, contrary to

section 320.14 (1) (

a) of the Criminal Code . The offence is alleged to have occurred on or about February 8, 2019, at or near Dartmouth, Nova Scotia. The Crown proceeded by way of

summary conviction. [ 2 ] Trial evidence was heard on November 19, 2019, and on March 8, 2022. At the completion of the evidence, the Crown Attorney and Defence Counsel made their closing submissions. The Court reserved its decision until today’s date. [ 3 ] Parenthetically, I note that the impact of the Covid 19 pandemic on the progress of this trial was significant as the pandemic necessitated the adjournment of scheduled trial continuation dates for defence evidence on April 1, 2020, February 16, 2021, July 6, 2021, and January 25, 2022.

As a result, the Court ordered a transcript of the evidence heard on November 19, 2019, to assist counsel with their trial preparation for the conclusion of evidence and their closing submissions. [ 4 ] At the outset of the trial, the Crown Attorney advised the Court during an opening statement that she and Defence Counsel had made certain agreements to narrow the number of witnesses to be called by the Crown to the Drug Recognition Evaluator (DRE) and the arresting officer. They also agreed that the toxicology report dated September 23, 2019, and curriculum vitae of Dr.

Tracey Cherlet, Ph.D., who is a Forensic Toxicologist with the RCMP-National Forensic Laboratory Services in Edmonton, Alberta could be filed as Exhibit 1 by consent. Since neither side wished to pose any additional questions, it was not necessary to call Dr. Cherlet as a witness in relation to her analysis of Mr. Baillie’s urine sample. Positions of the Parties: [ 5 ] At the outset, it is important to note that the parties have also agreed that, although the police were contacted about Mr.

Baillie’s vehicle being driven by a possible impaired driver, the Crown Attorney confirmed, that they were not relying on any information relating to the operation of the vehicle. She confirmed that both the police officer and Mr. Baillie observed that both of his front and rear tires on the driver’s side had blown. They also noticed that the rims on that side of the vehicle were damaged because he had driven a short distance on them. [ 6 ] As a result, the Crown Attorney confirmed that, given the police officer’s observation of those blown tires and damaged rims and Mr.

Baillie’s evidence, the Crown acknowledges that there was a reasonable alternative explanation for any weaving of the truck before Mr. Baillie parked it in front of a pizza store. For that reason, the Crown Attorney confirmed that they were not relying on any driving evidence to establish that the essential elements of the offence before the Court. [ 7 ] It is the position of the Defence that the burden is on the Crown to establish beyond a reasonable doubt that Mr. Baillie’s ability to operate a conveyance, in this case a truck, was impaired to any degree by drug. Since the driving evidence itself does not

support a verdict of guilt, and there was no evidence or indicia of recent consumption of cannabis in the vehicle itself, Defence Counsel submits that the small amount of cannabis consumed by water pipe had no effect whatsoever on Mr. Baillie’s ability to drive. Moreover, Defence Counsel noted that the toxicology report from the RCMP Forensic Toxicologist only indicated what Mr. Baillie had stated, that there was a presence of cannabis in his urine, but it could have been there for several days or weeks. [ 8 ] Although Mr.

Baillie acknowledged consuming an average of 3-5 grams cannabis on a daily basis, on the date in question, he only consumed a minimal amount of cannabis in his water pipe around 2:30 to 3:00 PM. It is the position of the Defence that Mr. Baillie had built up a tolerance to the impact of cannabis on him, given his daily usage and that the court could take judicial notice of a tolerance to impact of cannabis from frequent use.

Defence Counsel submitted that this would likely be similar to the tolerance to alcohol from frequent consumption of large amounts. [ 9 ] If the Court was not inclined to take judicial notice of that proposition, Defence Counsel also provided the civil litigation case of Tousignant v. LS Mutual Life Insurance Company , 2010 QCCQ 1704 . The Court concluded that although marijuana metabolites were found in the blood of the deceased person, the quantity consumed by the individual was unknown.

As a result, it was not established whether that person was “intoxicated by cannabis” because metabolites for cannabis might be detected in the body for up to three weeks after it had been used. As a result, the Court concluded that it had not been established that the marijuana in Mr. Tousignant’s system had impaired his normal faculties. [ 10 ] In terms of Mr. Baillie’s performance on the DRE examination, Defence Counsel states that for a couple of observations by the police officer, his client cannot provide an explanation for them, but there is no onus on him to provide an explanation.

The onus rests on the Crown to prove all the essential elements beyond a reasonable doubt. Mr. Baillie believed he did well on the DRE examination and Defence Counsel submits that the officer’s observations may equally be attributed to the fact that Mr. Baillie was surprised, flustered and upset that he had been, detained and then required to participate in a DRE examination. Mr.

Baillie maintains that his ability to operate a motor vehicle was not impaired by his much earlier consumption of a minimal amount of cannabis. [ 11 ] Defence Counsel submits that the DRE officer is not an expert in pharmacology to be able to provide an opinion on the effects of a recent minimal consumption of cannabis by a relatively heavy user of cannabis on a daily basis. In the final analysis, Mr. Baillie’s evidence of a very small recent consumption of cannabis combined with no evidence of erratic driving, at the very least, should leave the Court in reasonable doubt with respect to the charge.

He submits that Mr. Baillie should be found not guilty. [ 12 ] For her part, the Crown Attorney submits that the investigating officer had the reasonable grounds to make the breathalyzer and DRE demands based upon his observations that Mr. Baillie’s eyes were bloodshot, “extremely glossy” and “shiny” and there had been a complaint that he was driving “all over the road” on the rims of the truck on Albro Lake Road. After speaking with the driver for a few moments, Const. Mandru also briefly checked the reaction of Mr.

Baillie’s eyes to his flashlight in the darkness as it was approximately 8:40 PM on February 8, 2019. In addition to those observations, the officer also said that while he spoke with Mr. Baillie, he had a “thousand-yard stare” and was not able to follow his instructions, which formed part of his decision to arrest Mr. Baillie for driving while impaired by alcohol and arrested him for that offence. [ 13 ] In addition to formulating those grounds to arrest Mr. Baillie for impaired operation of a motor vehicle, Const. Mandru also made a breathalyzer demand. Pursuant to that demand, Mr.

Baillie provided a breath sample at the station at about 9:40 PM which resulted in 0 mg of alcohol per 100 mL of blood. Const. Mandru confirmed that the result meant that there was no alcohol in Mr. Bailee’s blood. However, based upon the totality of circumstances and what Const. Mandru had observed, he believed that Mr. Bailee’s ability to operate a motor vehicle was impaired by a drug and he made a Drug Recognition Evaluation demand. [ 14 ] The Crown Attorney noted that Sgt. Carmichael had been qualified by the International Association of Chiefs of Police as a Drug Recognition Expert. Sgt.

Carmichael conducted a drug influence evaluation of Mr. Baillie. She also noted that Sgt. Carmichael acknowledged that Mr. Baillie had done well on certain parts of the evaluation as noted on his “Face Sheet.” However, the Crown Attorney pointed out that, based upon the modified Romberg balance results, the divided attention tests, and a rebound dilation of Mr. Bailiee’s pupil as well as the “totality of the circumstances” provided to him by Const. Mandru, Sgt. Carmichael believed that Mr. Baillie’s ability to operate a motor vehicle was impaired by cannabis. [ 15 ] The Crown Attorney submits that Mr.

Baillie’s evidence that he only smoked a very minor amount of cannabis in his bowl between 2:30 and 3:00 PM on the date in question is inconsistent with the observations of Sgt. Carmichael. In those circumstances, the Crown Attorney submits that it is far more likely that Mr. Baillie consumed more cannabis than he acknowledged during his testimony and that the more recent consumption of a more substantial amount of cannabis is consistent with the results of the drug influence evaluation by Sgt. Carmichael. [ 16 ] In the final analysis, the evidence of the Forensic Toxicologist, Dr.

Cherlet established that the urine sample provided by Mr. Baillie confirmed the prior use of cannabis. Moreover, her report also highlighted several of the effects from cannabis usage that were noted by the police officers, including drowsiness, motor incoordination [i.e. body sway], increase in reaction time and decreased comprehension and attention. Although the case involves the application of the instructions for triers of fact as stated in R v. W(D), Sgt. Carmichael’s evaluation was supported by the toxicology evidence and Mr.

Baillie’s evidence should not leave the court in reasonable doubt with respect to the charge. [ 17 ] While Defence Counsel has submitted that it is quite possible, based upon Mr. Baillie’s regular usage of a significant amount of cannabis on a daily basis, that he developed a tolerance which did not impact his ability to operate a motor vehicle on the night in question, the Crown Attorney submits that the issue is not tolerance but rather Mr. Baillie’s performance on the drug evaluation test. Therefore, taking into account the principle in R. v. Stellato, she submits that the Crown has established Mr.

Baillie’s ability to operate a motor vehicle was impaired by virtue of his consumption of cannabis prior to operating his motor vehicle. [ 18 ] In response, Defence Counsel submits that the drug influence evaluation test conducted by Sgt. Carmichael, a Drug Recognition Expert, is simply an opinion, but does not automatically result in a conviction. He repeats that the Crown has confirmed that they are not relying on any evidence of erratic driving in this case. In those circumstances, the position of the Crown rests almost entirely

on the opinion of Sgt. Carmichael. The Crown has the onus to prove the essential elements of the charge beyond a reasonable doubt, and Defence Counsel submits that, in this case, the totality of the evidence does not support that finding.

Summary of Trial Evidence: [ 19 ] Const. Egist Mandru stated that around 8:40 PM on February 8, 2019, he was dispatched to investigate a complaint of a possible impaired driver. Const. Mandru was in the area and within a couple of minutes, arrived at a Greco pizza restaurant located at 102 Albro Lake Road. On arrival, he saw a blue Ford truck backed on an angle against a small concrete pad in front of the building. The right rear wheel was past the end of the small concrete barrier while the other wheel was up against the barrier to protect the building.

The dispatch report had indicated that a vehicle was driving all over the road. Const. Mandru observed that the front driver and back driver’s side tires were broken, and it looked like the truck had driven on the rims for a while as they were bent. [ 20 ] Const. Mandru approached the driver’s window and used his flashlight to see who was in the car. The eyes of the driver were extremely glossy, almost shiny, and bloodshot. Mr. Baillie opened the window and the officer informed him that he was investigating a possible impaired driver complaint and later identified him by looking at his driver’s license. Const.

Mandru asked Mr. Baillie to step outside the truck and he tried to see if there was any smell of alcohol coming off his breath or his clothing. He detected a “faint” and “old” smell of an alcoholic beverage as Mr. Baillie was speaking with him. [ 21 ] In addition, Const. Mandru had asked Mr. Baillie to look at his face and not the flashlight so that he could get a look at his pupils. In his years of experience, as a breath technician for the Intox EC/IR II breathalyzer, he has observed that people consuming alcohol have enlarged pupils as result of consuming alcohol or drugs or both.

He noted that, instead of looking at his face as he had asked, Mr. Baillie looked at the flashlight and said it was too bright and then turned away. Const. Mandru repeated that instruction, but Mr. Baillie still looked at the flashlight instead of his face. On the third attempt, he pointed the flashlight down until Mr. Baillie’s eyes contacted the officer’s eyes and at that point, he noticed that the movement of the pupil was not smooth and seemed to be jerking as it remained large instead of closing. [ 22 ] Const. Mandru stated that Mr.

Baillie was either not following the instructions or not understanding them but stated that his instructions were clear and simple. He added that, from prior dealings with numerous impaired drivers, Mr. Baillie had a “thousand-yard stare” where the person seems to be looking through you because they cannot focus if you are close to them. In addition, Const. Mandru observed that Mr. Baillie was swaying back-and-forth and could not keep his head straight without movements. He was also fidgety and seemed to be moving his arm and leg all the time which indicated to him that Mr.

Baillie’s fine motor skills were not present. [ 23 ] Based upon those observations and his prior experience as a breath technician, Const. Mandru believed that Mr. Baillie was impaired by alcohol while he was driving. He arrested Mr. Baillie for impaired driving, provided Charter information, and police cautions and then read a breathalyzer demand at 8:47 PM. A few minutes later at the police station, Mr. Baillie agreed to provide breath samples. The first breath sample was taken at 9:40 PM which resulted in a reading of in 0 mg of alcohol in 100 mL of blood. The result indicated to the officer that Mr.

Baillie had no alcohol in his blood. However, based upon Const. Mandru’s belief that Mr. Baillie, if not impaired by alcohol, was impaired by drug, at about 9:45 PM, he made a Drug Recognition Expert demand [DRE]. [ 24 ] Sgt. Garland Carmichael, who is a certified Drug Recognition Expert happened to be at the Dartmouth police station was able to conduct the test. Const. Mandru observed the DRE test done by Sgt. Carmichael and after Sgt. Carmichael informed Mr. Baillie that he had failed the DRE demand, Sgt. Carmichael made a demand for Mr. Baillie to provide a urine sample. Mr.

Baillie agreed to provide a sample which was turned over to Const. Mandru, who stored in a fridge until it was sent to the laboratory for evaluation. After Mr. Baillie was informed that he had failed the DRE test, he was charged with impaired operation of a conveyance by drug. [ 25 ] On cross-examination, Const. Mandru confirmed that Mr. Baillie’s truck was stationary and parked when he met with him. He confirmed that both tires on the driver’s side were flat and there was damage to their rims. The officer confirmed that Mr. Baillie was cooperative the entire time with the officer.

Initially, he detected an odour of “old alcohol” on Mr. Baillie’s breath and based on the other “impaired signs” that he had observed, he believed Mr. Baillie was impaired by alcohol. Const. Mandru agreed that Mr. Baillie blew “zero” on the breathalyzer, however, he then believed that Mr. Baillie was impaired by drug and made the DRE demand. [ 26 ] Const. Mandru confirmed that during the search incident to arrest, he did not find any marijuana in the car or any paraphernalia such as pipes or bongs, joints or even a lighter.

He agreed that he would likely be able to detect recently smoked marijuana on a person’s breath or clothing and confirmed that he did not detect any odour on Mr. Baillie’s breath or his clothing. Const. Mandru stated that he formed his belief of impairment based upon the “totality of things” including that Mr. Baillie had bloodshot and glossy eyes as well as him being fidgety and nervous. [ 27 ] Const. Mandru agreed that when he first met with Mr. Baillie, he was upset because his tires were flat, and his rims were damaged. He confirmed that Mr.

Baillie had told him that the tires were blown after hitting a pothole and that he had driven about 1.5 km from there to safely park his vehicle away from traffic. When questioned about some of the indicia observed by the officer, Const. Mandru agreed that an individual who is hung over could have watery, bloodshot eyes and attention focus issues. The officer agreed he had never met Mr. Baillie before and had no idea what he had done the previous evening or how much he may have had to drink at that time. [ 28 ] The final Crown witness was Sgt.

Garland Carmichael, who has been certified by the International Association of Chiefs of Police as a Drug Recognition Expert. Sgt. Carmichael’s recertification cards were filed as Exhibits 3 and 4. The Crown Attorney posed several questions with respect to Sgt. Carmichael’s prior experience and certification, recertification, and training of other Drug Recognition Experts at the outset of his testimony. [ 29 ] Both counsel agreed and the Court noted that R. v. Bingley 2017 SCC 12 at para. 27 clarified that there was no need for a so- called Mohan voir dire and that with Sgt.

Carmichael’s certification by the International Association of Chiefs of Police, the provisions of the Criminal Code and Regulations made pursuant to

section 320.38 (

a) of the Criminal Code , the statutory regime conclusively presumed the special expertise of the evaluating officer and the officer’s opinion was admissible in evidence as a certified Drug Recognition Expert.

[ 30 ] I also note that the majority in Bingley held that the officer should be regarded as an expert in the limited scope of administering the twelve-step procedure and determining, based upon the proper administration of that procedure, whether person being evaluated was driving while impaired by one drug or more. However, in Bingley , the Supreme Court held that an evaluating officer’s opinion was not conclusive proof of impairment, and that the evaluating officer’s opinion of drug impairment may be challenged on several bases. [ 31 ] Sgt. Carmichael performed the drug influence evaluation tests on Mr.

Baillie starting at 10:30 PM on February 8, 2019, and the 12-step evaluation was completed at 11:23 PM. He made notes of those 12 steps on a “Face Sheet” which was filed as Exhibit 5. Sgt. Carmichael also provided a document which was filed as Exhibit 6 which summarizes the 12 steps and contains a “pupilometer” to gauge the size of a person’s pupil in normal room light, in direct light and in near total darkness. On the back of that document, Sgt.

Carmichael indicated that there is a “matrix card” which lists the categories of drugs and symptomatology that he would observe in reaction to some of the steps in the evaluation. [ 32 ] During his testimony, in referring to his “Face Sheet”, Sgt. Carmichael conducted the evaluation in accordance with the twelve- step evaluation, which entailed the following tests and his comments in relation thereto: 1. Breath Alcohol Test - he had been informed by Const. Mandru that Mr. Baillie had provided a breath sample which had indicated 0mg/% of alcohol in 100 mL of blood.

Based upon that result, there was no need for Sgt. Carmichael to repeat the step and it immediately eliminated alcohol as a factor in the evaluation. 2. Information from the Arresting Officer – Sgt. Carmichael indicated that his decisions are based upon the “totality of the circumstances,” so he needed to know what information the investigating officer had observed when interacting with Mr. Baillie at the scene. He stated that Const. Mandru had provided information relating to the state of the vehicle, the state of Mr.

Baillie, his glossy, watery and bloodshot eyes and that the subject had something like a “blank stare.” Const. Mandru also informed him that Mr. Baillie had some difficulty relating communication to the officer. 3. Preliminary Examination - This third step is where Sgt. Carmichael began his first-hand interaction with Mr. Baillie. Questions were posed to rule out any medical issues or a medical emergency. Mr. Baillie said that the only food he had eaten that day was at 1:00 PM. Sgt. Carmichael noted that his demeanour was “cooperative” which indicated that there were no medical issues.

Several other questions including measuring Mr. Baillie’s pulse were noted on the “Face Sheet” [Exhibit 5] as being in the “normal range” which confirmed there were no medical issues. Mr. Baillie also confirmed that he had no disabilities, was not prescribed any medications, was not injured but had a head cold. The last part of step 3 is an initial check of pupil size to ensure that his eye was not affected by any injury. 4. Eye exams - this part of the test is whether the subject is able to follow and track a stimulus. Sgt.

Carmichael stated that he is looking to see whether the eyelids are droopy and heavy which might indicate that a person was really tired and whether Mr. Baillie had a lack of “smooth pursuit” of the stimulus. The purpose of these tests are to see whether the person’s eyes have the physiological ability to track and to determine whether or not there is any horizontal gaze nystagmus. Mr. Baillie’s eyes moved smoothly on the two occasions to follow the stimulus pen from left to right on two occasions and did not exhibit any signs of horizontal gaze nystagmus at maximum deviation.

After that first test of the eyes, Sgt. Carmichael next did a vertical gaze nystagmus test which involved moving the stimulus pen up and down so that the subject’s eyes go to the top of their sockets, again to see whether his eye jerks as it moves to follow the stimulus. He indicated that these tests may indicate the presence of either central nervous system depressant, inhalants or dissociative anaesthetics. Mr. Baillie was able to follow the stimulus and he did not see any jerking up and down. The final part of the step 4 eye examination is a lack of convergence test.

In this part, the stimulus (pen) is held about 12 to 15 inches to the side of the subject’s nose and then it is slowly brought to the bridge of the nose to see if the person can track the stimulus and is unable to cross their eyes. Sgt. Carmichael indicated that a failure to cross the eyes may well be an indication that one of the three central nervous system drugs is present. Sgt.

Carmichael also acknowledged that it is a “weak bit of symptomatology for drug impairment” because about 40% of the population cannot cross their eyes, so it is not something that he necessarily would “hang his hat on.” On the Face Sheet, Sgt. Carmichael noted that both eyes bounced while converging. 5. Divided Attention Tests – These tests include the modified Romberg balance test to see whether a person’s body is swaying and their estimation of time, a walk and turn test [9 steps in each direction], a one leg stand [30 seconds on each leg] and finally a finger to nose test which involves three attempts.

On the modified Romberg test, a person is asked to stand and tilt their head back, close their eyes and then stay in that position until 30 seconds have passed. Mr. Baillie’s eyes fluttered as he tilted his head back, but he estimated the passage of 30 seconds in 31 seconds which was “pretty well bang on.” Sgt. Carmichael noted that there was no swaying, weaving or bobbing of his head. However, he saw some rapid “body tremors” which indicated that his muscles were reacting to something in his body. Next on the walk heel-to-toe and turn nine step test, Mr.

Baillie performed the heel-to-toe steps along the line as explained by Sgt. Carmichael. The officer said that Mr. Baillie’s performance was “consistent with what I would expect in an average person.” The next test was the one leg stand, for a period of 30 seconds, starting with the left leg, Mr. Baillie balanced on that foot with the other foot in the air, did not put the foot down or use his arms for balance as he counted to 20 in what the officer timed as 30 seconds. Then, standing on the right leg, Sgt. Carmichael noted that Mr.

Baillie swayed a bit while he was balancing but recovered and counted to 21 in a timed 30 seconds. While Mr. Baillie balanced on one leg, Sgt. Carmichael noted some tremors and a sway on the Face Sheet. He added that he normally likes to see “stronger evidence of dropping his foot or what have you” but at this point he noted that it was over two hours since Mr. Baillie was arrested at the roadside and if there was a drug present, it was probably starting to wear off. The final part of this divided attention test involved the finger to nose touch. Sgt. Carmichael stated that Mr.

Baillie “performed poorly” on this portion of the divided attention test when he was asked to touch his nose six times – three times with each hand.

On the first try with his left hand, Mr. Baillie touched above his lip on the right side, on the second try with his right hand, he touched his nostril. On touches 3, 4, 5 and 6, he used the centre portion or pad of his finger not the tip and then dragged the finger back to the tip of the nose. Sgt. Carmichael viewed this as an “impairing factor” to operate a motor vehicle because Mr. Baillie was “unable to spatially recognize where his nose is and touch it” or to follow the instructions that he had been given. 6. Clinical Indicators and second pulse - Sgt. Carmichael checked Mr.

Baillie’s temperature, pulse and blood pressure at 10:49 PM and his temperature was 37.3° which is within the normal DRE range of 37°. Mr. Baillie’s pulse rate was 82 bpm which is also in the normal DRE range and was starting to fall. This indicated to Sgt. Carmichael that Mr. Baillie was not under any “undue stress.” Mr. Baillie’s systolic blood pressure was 152 which is slightly above the DRE normal range of 120-140 mL of mercury. The diastolic measure was 78 mL of mercury which was within the DRE average range of 70 - 90 mL of mercury. 7. Dark room Checks of Pupil Size - Sgt.

Carmichael used a pupilometer to measure the size of Mr. Baillie’s pupil in normal room light, direct light and in near total darkness. Both eyes were tested under those three situations. The measurements on the pupilometer were the same for both eyes, being 4 mm in normal light, 7.5 mm in total darkness and 3 to 4.5 mm in direct light. Those results were within the “DRE average range” and Sgt. Carmichael added that Mr. Baillie’s pupil constricted in a normal fashion to direct light. On a test for “rebound dilation” when direct light was introduced into the pupil, Sgt.

Carmichael said normally the pupil is unable to remain constricted and it bounces back to another measurement. Here, it never returned to the initial remeasurement. When direct light was introduced to the left and right eye of Mr. Baillie, his pupils constricted normally within one second, but Sgt. Carmichael noted there was a “rebound dilation” as his pupils constricted to 3 mm and then rebounded slowly back out to 4.5 mm but did not return to the same 3 mm measurement again. Sgt.

Carmichael stated that this reaction is specific to the drug category of cannabis, which indicated to him that the drug is still “psychoactive” in the body and affecting the perception of the subject’s eyes. It could impair a person’s ability to properly focus on objects in a field of view because of the glare of lights. However, he did note that the direct light test, fell “within the DRE average range” when the pupil constricted to 3 mm but was on the edge of that average range. Based upon that result, he believed that the drug was still psychoactive. With respect to the “rebound dilation,” Sgt.

Carmichael added that this reaction is “specific to cannabis” and he has only ever seen that reaction when someone was impaired by cannabis. He has never seen not reaction if the person had consumed some other type of drug. While in the darkroom, Sgt. Carmichael checked the nasal area of Mr. Baillie with his flashlight and observed a red mucosa lining the inside of his nose which was consistent with Mr. Baillie’s statement that he had a head cold. Mr. Baillie also had a had pasty film on the inside of his mouth and dry, cracked lips which Sgt.

Carmichael stated were quite common with someone who consumed cannabis products. 8. Check for Muscle Tone - Sgt. Carmichael said certain types of drugs will cause muscle rigidity like MDMA, methamphetamine or cocaine, but that is not a characteristic of use of the cannabis. Sgt. Carmichael checked the muscle tone of the shoulders, arms, back of the arm as well as the biceps and triceps. Mr. Baillie had a “normal muscle tone.” 9. Check for Injection Marks and Third Pulse - Sgt. Carmichael used a magnifying glass with a light to see if there were injection marks or needle or track marks or collapsed veins.

He noted that none were present, and that Mr. Baillie had been forthright in telling him that he does not use those kind of drugs. The third pulse taken was at 11:04 PM and was 76 bpm, which was again within the DRE average range. 10. Interview, statements, and Other Observations - Mr. Baillie initially told Sgt. Carmichael that he did not take any medicines or drugs, then indicated that he smoked weed in a pipe bowl. The officer noted that a pipe bowl could contain different amounts of cannabis, but the average user might have a third to a half gram of marijuana in a pipe bowl. Mr.

Baillie stated that he had used marijuana in a pipe bowl at a friend’s house between 2:30 and 3 PM that afternoon. Once the interview was completed, Const. Mandru was asked to remove from Mr. Baillie the room so that Sgt. Carmichael could review all of the information obtained from Const. Mandru and review his information from the various tests and then make “a decision on the basis of the totality” if Mr. Baillie was on a certain drug. 11. Opinion of evaluation - Sgt.

Carmichael stated that he looked at the Face Sheet and at the matrix and because the horizontal gaze nystagmus was not there, he could eliminate three of the drugs on that matrix. He noted that there was no sign of central nervous system depressants, inhalants, or dissociative anaesthetics in Mr. Baillie’s body. Based upon his matrix and what he had observed, that left 4 possibilities – cannabis, central nervous system stimulants, hallucinogens and narcotic analgesics. However, Sgt. Carmichael ruled out everything but cannabis because he had not seen the pupil dilate very slowly in reaction to light. Mr.

Baillie did not display any horizontal or vertical gaze nystagmus, but Sgt. Carmichael had already noted that, a person’s inability to cross their eyes, was a weak indicator of impairment. On his matrix, cannabis usage would tend to show a higher rate of blood pressure and pulse rate, but with Mr. Baillie, both of those were in the “normal range.” In the final analysis, looking at the “totality of the circumstances,” Sgt. Carmichael believed that Mr.

Baillie had performed poorly on the finger to nose tests, was exhibiting muscle tremors, eye flutter and rebound dilation, and formed the opinion, based upon those “physiological tasks” that Mr. Baillie’s ability to operate a conveyance was impaired by cannabis. Sgt.

Carmichael was asked to estimate when the cannabis would have been consumed and he indicated that the symptomatology would be different if it was several hours after consumption and the peak of the “psychoactive phase.” After five or six hours, the effects of cannabis should wear off and the person will start to feel like they are returning to “normal” or should be “fairly normal.” He added that a “body’s ability to cope” with cannabis would be much different between a person who did it for the first time and you would not expect to see the same thing for example, if it was a person’s time 15 th time using cannabis.

Sgt. Carmichael stated that it would be difficult to pinpoint a time of consumption, “but the time of consumption stated by Mr. Baillie is inconsistent with the symptomatology” that he had observed. He believed that the consumption was probably “around the time of operating the conveyance” and not between 2:30 PM and 3:00 PM as Mr. Baillie had stated, because that was not consistent with what he saw. 12. Toxicological Sample - After providing his opinion, this final step is to read a demand for a urine sample and Mr. Baillie provided that sample at 11:15 PM and it was turned over to Const.

Mandru for continuity and ultimately sending to the laboratory for analysis. Sgt. Carmichael confirmed that Mr. Baillie had been cooperative throughout the tests and did not seem to be nervous. [ 33 ] On cross-examination by Defence Counsel, Sgt. Carmichael agreed that he was aware there was a toxicology report, which had said that cannabis was in Mr. Baillie’s urine. He also agreed with the comment in that report that cannabis can remain in a person’s body for a long time and that it could last “upwards of 45 days” because it is a fat-soluble drug not like alcohol which is water-soluble.

He stated that the body metabolizes it into hydroxy THC which is the stuff that impairs and that is what he saw in Mr. Baillie. [ 34 ] Defence Counsel asked what clinical symptoms the officer would expect to see from the psychoactive cannabis and Sgt. Carmichael agreed that lack of convergence to cross one’s eyes is a poor indicator of impairment. He stated that dilated pupils would be a good indicator of cannabis use, but he agreed that Mr. Baillie’s pupil size were not dilated. Sgt.

Carmichael also agreed with Defence Counsel that the clinical symptoms such as blood pressure being up and pulse rate being up, would be symptomatic of cannabis use but not necessarily indicate a person was impaired. However, Sgt. Carmichael added that he was relying on the totality of the information available, and that Const. Mandru had informed him that Mr. Baillie had dilated pupils at the roadside. [ 35 ] Defence Counsel posed the question whether a person having a head cold could have been a possible cause for the body tremors. Sgt.

Carmichael said that, over the last nine years, he has done 44 DRE tests and he had never seen anyone who had a cold experience body tremors because of the cold. He has only seen body tremors when a person is on something like a central nervous system stimulant or cannabis marijuana. [ 36 ] With respect to both police officers noting that Mr. Baillie had glossy or shiny eyes, Sgt. Carmichael was asked if that could occur because a person was sleep deprived. He said that it might be possible but not probable.

Furthermore, with respect to droopy eyelids, Defence Counsel suggested that it might just be indicative of needing sleep and Sgt. Carmichael again responded based upon the totality of everything, it might be possible but not probable. [ 37 ] Defence Counsel noted that Sgt. Carmichael had said that Mr. Baillie’s estimate of the 30 seconds was “bang on” and he agreed that it would be indicative that somebody was either normal or coming out of the effect of the drug.

He indicated that as the person moves away from the initial ingestion, they are starting to normalize and come back to themselves between 3 to 5 hours later. However, with respect to cannabis use if the person is “getting back to normal” he does not see rebound dilation or tremors. Sgt. Carmichael added that those things were an indicator that Mr. Baillie was coming off a drug and his ability to perceive time had returned to “somewhat normal.” [ 38 ] Defence Counsel suggested that Sgt. Carmichael’s opinion with respect to impairment to operate a conveyance seemed to place little emphasis on the tests which Mr.

Baillie had passed or done well. Sgt. Carmichael stated that his opinion was based upon a review of the matrix of indicators, consulting with what Const. Mandru had observed and then reviewing his information on the Face Sheet. He added that physiological signs and symptoms vary among people and that he was aware that Mr. Baillie smokes weed. Sgt. Carmichael did not know how much weed he smoked, how often he smoked and whether he had a tolerance or not.

However, he said tolerance did not matter because, during the tests, he is observing the things that are impairing and when the drug is psychoactive in a person’s system, it impairs their ability to operate a conveyance. [ 39 ] When asked whether something like the finger to nose test or the totality of the circumstances would allow the officer to indicate what the person’s level of impairment was at the time of the test, Sgt.

Carmichael responded: “I can only say whether or not I believe he is impaired, I cannot say to what degree.” He added that his understanding of the present law is that this is not a quantifiable thing without a blood test to confirm that the person has X number of nanograms in his blood. He agreed that no blood test was done in this case. [ 40 ] Defence Counsel suggested that Sgt. Carmichael had essentially placed undue influence on the finger to nose test and that Mr. Baillie was not able to follow the instructions on certain tests that had been provided by the officer. Sgt.

Carmichael confirmed that he has never concluded that a person was not impaired when they performed the finger to nose test as Mr. Baillie had done. When it was suggested that this was then a “very significant” part of the assessment, Sgt. Carmichael stated that it was “lumped in with everything else”, including the tests that Mr. Baillie had performed well and the observations of Const. Mandru which are the “totality of the circumstances” that he considers. [ 41 ] Sgt. Carmichael agreed with Defence Counsel that after spending about an hour with Mr.

Baillie, he did not detect any odour of marijuana or burnt marijuana on him. In addition, he confirmed that Const. Mandru had not found any drugs on Mr. Baillie. Therefore, the only information that he had with respect to Mr. Baillie’s consumption of marijuana was what Mr. Baillie had said towards the end of the testing, that he had smoked a small amount in a bowl of cannabis between 2:30 to 3:00 PM. [ 42 ] Defence Counsel noted that Sgt.

Carmichael had indicated that tolerance level is a factor and he agreed that no questions were posed with respect to a history of usage, just the last usage. [ 43 ] In addition to the evidence of the Const. Mandru and Sgt. Carmichael, as mentioned previously, there was an agreement between counsel to file the toxicology report, prepared by Dr. Tracy Cherlet on September 23, 2019, as Exhibit 1. The “ Key Findings ” and “ Conclusions” in the report were as follows: • Mr.

Baillie’s urine was found to contain metabolites of a drug in the cannabis category. • The presence of the two inactive metabolites of THC, the primary active drug found in cannabis in the urine indicates prior

usage. • The duration that those compounds can be detected in the urine is dependent on the frequency of cannabis use. • The two inactive metabolites of THC “may be detected in the urine for several days or weeks following abstinence.” • No inference can be made as to the time of the drug use or effects. • The best evidence of recent use and effects on an individual is observation. • The effects of cannabis include, euphoria, relaxed inhibitions, sedation, drowsiness, impaired memory (inability to recall new information), distortion of time and space perception, psychosis, motor incoordination (i.e. body sway), increase in reaction time and decreased comprehension and attention.

Physical effects include increased heart rate, increased blood pressure, relaxed muscle tone, dilated pupils, eyelid tremors, increased appetite and reddened conjunctiva of the eyes. • Remarks: (4) “The presence of drugs and/or drug metabolites in the urine merely confirms prior drug use. No direct inference can be made with respect to a degree of impairment, or the time of drug use based on these findings alone.” [ 44 ] Mr. Baillie stated that he was 20 years old when he interacted with police officers on the evening of February 8, 2019. The prior evening, Mr.

Baillie said that he had gone to a bar in downtown Halifax with his girlfriend and some friends and stayed at the bar from 11:00 PM until the 3:00 AM closing time. While he was at the bar, he had several drinks of alcohol, spending about $100. Prior to going to the bar, he had gone to a friend’s house and smoked some marijuana. After the bar closed, Mr. Baillie and his girlfriend took a cab and got home around 4:00 AM, but he stayed up until sunrise around 6:00 AM, when he fell asleep. [ 45 ] On February 8, 2019, Mr.

Baillie recalled waking up around 2:00 PM and smoking a small “hit” of marijuana in a waterpipe bowl which he estimated to be about 0.1 g of marijuana. He stated that this was a minimal amount as he usually smokes between 3 to 5 g daily, adding that he is done that for about the last 10+ years.

During that afternoon, he felt hungover, groggy, tired and was experiencing some nausea from the amount of alcohol that he had consumed the previous night. [ 46 ] During the afternoon, after smoking about 0.1 g of cannabis from the waterpipe and although he still felt “tired”, he also felt “great.” Around 6:00 PM, his girlfriend got a call from her mother asking them to pick her up at her work and drive her home. At that time, Mr. Baillie was living at the house of his girlfriend’s mother. Mr. Baillie felt “fine to drive” and was not under the influence of either alcohol or cannabis.

He picked up his girlfriend’s mother approximately four hours after he had smoked the 0.1 g in his waterpipe. He estimated that he would feel the effects of that small amount of cannabis for about 1.5 hours. [ 47 ] Mr. Baillie drove the short distance to pick up his girlfriend’s mother, then returned to the house and after that, he and his girlfriend went to a Subway restaurant to eat some food. The Subway restaurant was located on Wyse Road near the No Frills store. They ate there for about 15 to 20 minutes and then went to the Dartmouth Crossing area to do some shopping at the Walmart store.

After that, they left Dartmouth Crossing, drove on the highway and then onto to Albro Lake Road because his girlfriend lived on Nivens Street. [ 48 ] As they were exiting from the main road on an offramp, around 8:00 PM, Mr. Baillie’s truck hit a big pothole, which burst his driver’s side front and rear tires. Although there were some streetlights, it was dark and the roads were a bit slushy, he immediately pulled over to the side of the road to inspect the damage. Since vehicles were driving by him at a relatively high rate of speed on the offramp, Mr.

Baillie decided to drive his vehicle to a Greco pizza store about 1.5 km away at the end of Albro Lake Road. At that location, he backed his vehicle into a parking spot near the store where it be would safely parked off the main road. He then called for a tow truck and called 311 to report the location of the serious potholes. [ 49 ] A few moments later, a police officer arrived at that location. At the outset, Mr. Baillie assumed that the police officer was there to assist him in dealing with the two blown tires and the inability to drive the car further on its rims.

However, he stated that he was in “shock” when the officer pushed him against the car and arrested him for impaired operation of a motor vehicle. [ 50 ] Mr. Baillie acknowledged that the officer had asked him to look in his eyes while he held a flashlight, and he believes that his tiredness and the lighting may have led to the eye issues mentioned by Const. Mandru. He does not have any eye issues and maintained that he was not under the influence of cannabis.

There was no problem whatsoever with his driving prior to hitting the potholes and the tires being blown by the pothole caused him to drive a short distance on the rims. [ 51 ] With respect to the twelve-step evaluation conducted by the DRE officer, Sgt. Carmichael, Mr. Baillie stated that he felt he was doing “well” on all the tests because he was not “high.” With respect to the heel-to-toe walk and standing on one leg, Mr.

Baillie said that he told the officer that he would probably not do well on that because he had a second toe capsulitis, which is a detachment of the ligament on the second toe from the foot, so it would be difficult for him to balance. [ 52 ] Mr. Baillie stated that he was “shocked” when he was informed that he was being charged with impaired operation of a conveyance by drug. He reiterated that he had smoked cannabis for the last nine or 10 years, but not necessarily the same amount each day because he has been working for a few years.

He added that when he started consuming cannabis in his earlier years, then he would have been much more under the influence after consuming 1½ to 2 g of cannabis. [ 53 ] However, Mr. Baillie added that, in more recent years, and now as a 20 years old, he has to consume a lot more cannabis to be under the influence as a 20-year-old. For that reason, Mr. Baillie stated that the 0.1 g smoked about six hours before he hit the pothole, was the equivalent of a “cup of coffee” as a “wake-up” for him.

He does not the dispute the fact that some marijuana or cannabis was in his system at the time when he operated his motor vehicle, but he maintains that the marijuana in his system did not impair his ability to operate a motor vehicle. [ 54 ] Furthermore, Mr. Baillie stated that by the time he completed the drug evaluation around 11 PM on February 8, 2019, it was about eight hours after he consumed 0 .1 g of cannabis which was much less than the normal amount that would have made him feel

“high” at that time. He reiterated he had not consumed any cannabis after the 2:00 PM to 3:00 PM timeframe. He cannot say why hispupils reacted as Sgt. Carmichael had indicated during the evaluation, but he said that his eyelids were tired, because he was sleepy andhungover from the alcohol consumed the previous evening. [55] On cross-examination, Mr. Baillie confirmed that he has smoked marijuana since an early age and over the years he has gainedan increased tolerance to the substance. As a result, he now uses 3 to 5 g daily when he is not working, to get a “normal” reaction.

Heusually smokes the cannabis in the bowl and for each “hit,” he uses 0.3 to 0.5 g. However, on February 8, 2019, he recalled that he didnot use that much and in fact, that day he scraped the top of the tray to put that small amount of cannabis in the bowl. He added that,because he had spent over $100 at the bar on alcohol the previous night, he did not have money to buy more cannabis. [56] He also clarified that, when he was talking about a daily average usage of 3 to 5 g of cannabis, on some days, he did not haveenough money to buy that amount of cannabis.

In addition, he was working at that time and when he worked, he either did not use anycannabis or smoked less than his estimated daily average. He added that 2.5 to 3 g of cannabis would have to be consumed for him tofeel its effects. The 0.1 g of cannabis had little effect on impairment, but he felt “more humanly” rather than being under the influence. [57] On February 8, 2019, he woke up around 2:00 PM in the afternoon and smoked the marijuana from a water bong between, 2:00PM and 2:20 PM that day. He said that the 0.1 g of cannabis was consumed within seconds.

He confirmed that there is no residual smellfrom a water bong as the smoke goes into the lungs and then he blows it out a window. As a result, there would be no residual smell ofcannabis on his clothing. [58] On the evening in question, he felt “great” when he was driving his truck with his girlfriend and their plan was to go out to getsomething to eat.

However, she got a call to pick up her mother at work and after they dropped her mother at home, they went out to eat.Later on, as they were on their way back to the house was when he hit the potholes, the tires blew, and he pulled over to the side of theroad to see the damage. After seeing the damage to his driver’s side tires, he decided to drive a short distance to park in a safe place offthe main road in front of the pizza restaurant. [59] Mr.

Baillie agreed with the Crown Attorney that he had backed into a parking space in front of the pizza restaurant and that onetire was against a concrete pad to protect the building, while the other one was a little bit behind it. He still felt he was within the linesand that there was no problem with his parking as the concrete pad was there to protect the building and he did not hit the building. [60] With respect to his interaction with Const. Mandru, Mr. Baillie said that when the officer approached his vehicle, he thoughtthat the police officer was there to help him with the tire situation.

However, the officer informed him that he was being detainedbecause there had been a complaint about drunk driving. After he stepped out of the car at the officer’s request, Const. Mandru grabbedhim within seconds and pushed him against the vehicle and told him he was under arrest. Mr. Baillie agreed that the officer had givenhim directions to look at his face when he held the flashlight, that he had been asked to do that a few times and he agreed that he haddifficulty complying with that direction. Mr.

Baillie maintained that it was because the officer’s face was dark, and he was “frantic andscared” that he was being accused of impaired operation. [61] Mr. Baillie denied that he was slow and lethargic in his actions or was shaking his foot and tapping his hand. He stated that hewas not sure exactly what he said but he was “irritable, frantic and flustered” from the stress of the two tires being blown by hitting apothole and he could not understand why he was being placed under arrest.

He disagreed with the Crown Attorney’s suggestion that hewas slow to respond to some questions but did agree with the Crown Attorney that some of his answers may not have been a directresponse to the question posed. [62] The Crown Attorney questioned Mr. Baillie on the capsulitis foot issue, and he explained what it was and that he has had theissue for several years, but it was only diagnosed in the last two years. It is a ligament issue on his second toe of his right foot, whichaffects his stance on that foot. Mr. Baillie maintained that he told Sgt.

Carmichael of that capsulitis issue and told him that he would notdo well on that test because of his “sore foot.” In looking at the Face Sheet, Mr. Baillie maintained that he told Sgt. Carmichael aboutthe capsulitis issue, but it appears that the officer did not make a specific note of it. [63] Finally, when challenged by the Crown Attorney, Mr. Baillie maintained that some details of the night are not as clear whileothers are “very clear.” He repeated that he had told Sgt. Carmichael about the sore foot and that the foot issue would create problemswith balance.

He agreed with the Crown Attorney that the sore foot issue would not have an impact on what he had to do on the finger tonose test. [64] However, Mr. Baillie completely disagreed with the Crown Attorney’s suggestions that he had smoked more cannabis thanstated and that he had smoked it much closer time to the driving. Mr.

Baillie repeated that he had smoked 0.1 g of cannabis in theafternoon but acknowledged that during his earlier evidence he had stated that he had smoked that small amount between 2:00 PM and2:30 PM, whereas he had told the officer it was between 2:30 p.m. and 3:00 PM, which is the time noted on the Face Sheet. ANALYSIS: [65] At the outset of my analysis, it is important to note the general principles which apply in all criminal trials. First, in a criminaltrial the burden is on the Crown to prove the charges against any accused beyond a reasonable doubt. Furthermore, Mr.

Baillie ispresumed to be innocent of the charge before the court unless I conclude that the Crown has proved his guilt beyond a reasonable doubt.The burden of proof is on the Crown, and it never shifts to him. [66] The presumption of innocence and the requisite standard of proof beyond a reasonable doubt are fundamental principles in ourcriminal law. The Supreme Court of Canada has established in cases such as R. v. Lifchus, [1997] 1 SCR 320 and R. v.

Starr, 2000SCC 40 , [2000] 2 SCR 144 that “reasonable doubt” does not require the Crown to prove the allegations to an absolute certainty.Those cases have determined that a “reasonable doubt” does not involve proof to an absolute certainty, but more is required than proofthat the accused is probably guilty. [67] The Supreme Court of Canada has also pointed out that a reasonable doubt is not based upon sympathy or prejudice, nor is it an

imaginary or frivolous doubt. It is a doubt based upon reason and common sense which is logically connected to the evidence or the lackof evidence. Reasonable doubt may arise if the Court determines that the evidence called by the Crown was vague, inconsistent,improbable, or lacking in cogency. Of course, reasonable doubt can also arise from testimony of an accused or any other defenceevidence. [68] Where credibility is the key issue of the case, as it is here, then reasonable doubt will also apply to that issue. In R. v.

W. (D.), (SCC), [1991] 1 SCR 742, the Supreme Court of Canada formulated model instructions for a trier of fact regarding theissue of reasonable doubt which I must keep in mind and apply. If I accept the evidence of the accused, I must acquit. If I do not acceptthe evidence of the accused, but the evidence of the accused leaves me with a reasonable doubt, then I must acquit.

If I am not left with areasonable doubt by the evidence of the accused, then I must look at the totality of the evidence which I accept and, on that basis,determine whether the Crown has proved its case beyond a reasonable doubt. [69] It must be emphasized that mere disbelief of the accused’s evidence does not satisfy the burden of proof which rests upon theCrown. Given the third step in the application of the burden of proof as mentioned in the W. (D.) case, it is not necessary for the trialjudge to believe or accept the Defence evidence for there to be a reasonable doubt.

The evidence as a whole may leave the trier of factwith a reasonable doubt and in considering the evidence or lack of evidence, I may believe and accept all, some or none of the evidenceof a witness or accept parts of the witness’s testimony and reject other parts. [70] In R. v. HC, 2009 ONCA 56 at para. 41, Watt J.A. discussed the difference between credibility and reliability. He stated, forthe court, that credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of thewitness’s testimony.

Accuracy engages consideration of the witness’s ability to accurately: (

i) observe; (ii) recall, and (iii) recount theevents in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability, as a credible witness may give unreliable evidence. The Law Relating to Impaired Driving by Drug [71] The Supreme Court of Canada in affirming the Ontario Court of Appeal decision in R. v. Stellato, (ONCA), 78 CCC (3rd) 380, affirmed (SCC) 90 CCC (3rd) 160n (SCC) confirmed that there is no special test for determiningimpairment, such as a “marked departure” from normal behaviour.

The trial judge must be satisfied, beyond a reasonable doubt, that theaccused’s ability to operate a motor vehicle was impaired by alcohol or drug. The trial judge must be satisfied that the evidence ofimpairment established “any degree of impairment ranging from slight to great” for the offence to be made out. [72] In R v. Toews, (SCC), the Supreme Court of Canada held that the mens rea for driving while impaired is theintent to drive a motor vehicle after the voluntary consumption of alcohol or a drug.

The actus reus is the act of driving where thevoluntary consumption of alcohol or a drug has impaired the person’s ability to drive. [73] Furthermore, the Ontario Court of Appeal in Stellato, supra, at page 384 stated that if the Court concludes that the evidence ofimpairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. A reasonabledoubt that it was the alcohol or a drug that caused the impairment of the ability to drive will mean that the Crown has failed to prove theactus reus of the offence.

Furthermore, a review of the case law has also confirmed that several courts have concluded that the merepresence of a drug or drugs in the accused’s body with the potential to cause driving ability impairment is not sufficient to establish theactus reus of the offence beyond reasonable doubt. [74] In this case, it is important to note that, although Const. Mandru indicated that he was dispatched to the area by a report of apossible impaired driver, Const. Mandru himself never saw the vehicle in motion. In fact, Const.

Mandru was advised in the dispatchreport that the vehicle involved was a blue Ford Ranger truck which had backed into a parking spot in front of a Greco Pizza restauranton Albro Lake Road. It was at that location, while the vehicle was stationary, that Const. Mandru interacted with Mr.

Baillie and arrestedhim for impaired operation of a motor vehicle. [75] In most of the cases which I have reviewed where the accused person has been convicted of impaired operation of a motorvehicle or a “conveyance” by virtue of the consumption of a drug, there was also evidence of some erratic operation of the motor vehicleor an accident. Here, the Crown Attorney has confirmed that there is no evidence before the Court that Mr.

Baillie operated his motorvehicle in any erratic or dangerous manner on the evening in question. [76] In this case, the Crown Attorney has confirmed that they do not rely upon any information relating to Mr. Baillie’s actualoperation of the motor vehicle as the evidence of both the police officer and Mr. Baillie established that the front and rear tires on thedriver’s side of his vehicle were flat and the truck had been driven on its rims for a short period of time.

The Crown Attorneyacknowledges that those blown tires and driving some distance on the rims of the driver’s side provides a reasonable alternateexplanation for any erratic driving that may have been reported, before Mr. Baillie parked his vehicle in front pizza restaurant rather thanany degree of impairment by drug. [77] In those circumstances, the issue of whether the Crown has established, beyond a reasonable doubt, that Mr. Baillie’s ability tooperate a conveyance was impaired to any extent by a drug is based entirely upon Const. Mandru’s initial observations of Mr.

Baillie atthe roadside, which were communicated to Sgt. Carmichael and Sgt. Carmichael’s opinion based upon the 12-step drug influenceevaluation of Mr. Baillie. [78] There is no dispute between the parties that, for the purposes of administering the twelve-step drug evaluation of Mr. Baillie,Sgt. Carmichael was a certified Drug Recognition Evaluating Officer by the International Association of Chiefs of Police as a DrugRecognition Expert. As such, the Exhibits of his certification as a drug recognition expert were established to be in accordance with therequirements of the Regulations made pursuant to

section 320.38(

a) of the Criminal Code. R. v. Bingley - Considerations Re: Drug Recognition Evaluation Evidence: [79] With respect to Sgt. Carmichael’s opinion, it should also be noted that in R. v Bingley, 2017 SCC 12, the Supreme Court of

Canada has concluded that the previous

section relating to drug recognition evaluation by an evaluating officer [section 254 (3.1) Code ] which is now

section 320.28(2) of the Code, gives the police investigative tools to enforce laws against drug impaired driving and that the DRE opinion evidence is admissible to prove the offence of drug impaired driving. The majority of the Supreme Court of Canada concluded, supra , at para. 27 that it was not necessary to hold a Mohan voir dire if the DRE [“drug recognition expert”] has been certified as such in accordance with the Regulations .

If so, then the DRE’s expertise has been conclusively and irrebuttably established by Parliament. [ 80 ] The Supreme Court of Canada also stated, in Bingley , supra , at para. 20-22 that, a DRE or “evaluating officer” receives special training in how to administer the 12-step drug recognition evaluation and what inferences may be drawn from the factual data that he or she notes. However, the Supreme Court added that it is for this “limited purpose” that a DRE can assist the Court by offering expert opinion evidence.

The scope of the DRE’s expertise is in the application of the proscribed twelve-step evaluation, not in its scientific foundation. [ 81 ] In Bingley , supra at para. 24 , Chief Justice McLachlan writing for the majority stated that: “Parliament has determined that the twelve-step evaluation performed by a trained DRE constitutes evidence of drug impairment.

It may not be conclusive, but it is evidence beyond the experience and knowledge of the trier of fact.” Furthermore, supra , at para. 27, McLachlan CJC added that the DRE “is thus an expert for the purpose of applying the twelve-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of section 254 (3.1).” [ 82 ] To provide additional clarity with respect to the opinion evidence provided by a DRE to a court, McLachlan CJC added, supra , at para. 29 that: “it is important to reiterate that a DRE’s section 254 (3.1) determination is a result of administering the proscribed evaluation.

That is the only expertise conferred on a DRE. The trial judge has an “ongoing duty to ensure that expert evidence remains within its proper scope”: Sekhon , at para. 46. If opinions beyond the expertise of a DRE are solicited, a Mohan voir dire to establish further expertise may be required.” [ 83 ] Most importantly, the majority of the Supreme Court of Canada noted in Bingley , supra , at para. 31 that: “It is also important to note that the determination of the DRE is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug .

The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge or jury to consider.” [ Emphasis is mine ] [ 84 ] McLachlan CJC added, in Bingley , supra , at para. 32 that the fact that Parliament has established the reliability of the twelve- step drug evaluation by statute does not hinder the trier of fact’s ability to critically assess a DRE’s conclusion of impairment or an accused person’s right to test that evidence.

For example, cross-examination of the DRE may: • undermine his or her conclusion or raise evidence of bias; • indicate that the officer failed to conduct the drug recognition evaluation in accordance with his or her training; • indicate that a DRE drew questionable inferences from his or her observations; • confirm that bodily substance sample evidence obtained refutes the DRE’s assessment as may evidence of bystanders or other experts. [ 85 ] The majority of Supreme Court of Canada concluded, in Bingley , supra , at para. 32 , that 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 will necessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment.” [Emphasis is mine] [ 86 ] In conducting the factual analysis of this case, first, it must be remembered that the Crown bears the onus of proving the essential elements of the offence before the Court beyond a reasonable doubt. [ 87 ] In this case, the Crown Attorney has acknowledged that there is no evidence that Mr. Baillie actually operated his motor vehicle in some erratic or dangerous manner prior to being arrested by Const. Mandru.

I find that the Crown Attorney fairly conceded this point based upon the evidence of Const. Mandru and Mr. Baillie himself with respect to blown tires and damaged rims on the driver’s side.

I find that there was ample evidence to support that concession as what may have appeared to be erratic driving apparently reported by a concerned citizen, was likely due or at least equally explainable by having two inflated tires on the passenger’s side and having to drive on the rims of the wheels on the driver’s side, as both tires on the driver’s side of the truck had blown after hitting a pothole in the road. [ 88 ] Therefore, in the absence of any evidence that Mr.

Baillie actually operated his motor vehicle in an erratic or dangerous manner, which might support an opinion that his ability to operate a motor vehicle was impaired by a drug, the Crown’s case essentially boils down to whether Sgt. Carmichael’s opinion, which incorporated information from Const. Mandru is actually “conclusive” of the ultimate issue, that is, whether Mr. Baillie’s ability to operate a motor vehicle was impaired by a drug on the evening of February 8, 2019. [ 89 ] On the other hand, Mr. Baillie had told Sgt.

Carmichael during the DRE evaluation and reiterated during the trial that he had consumed a very small amount of cannabis approximately six hours before driving his vehicle that evening. As a result, it is not surprising to see that the laboratory test of Mr. Baillie’s urine sample was found to contain metabolites of a drug in the cannabis category. During his testimony, contrary to the opinion expressed by Sgt. Carmichael, Mr. Baillie maintained that the small amount of cannabis which he had consumed on the date in question, had not impaired his ability to operate a motor vehicle.

[90] Furthermore, Dr. Cherlet’s Toxicology Report [Exhibit 1] specifically noted in “Remarks” #4 that “the presence of drugsand/or drug metabolites in the urine merely confirms prior drug use. No direct inference can be made with respect to a degree ofimpairment, or the time of drug use based on these findings alone.” As a result, I find that Dr. Cherlet’s “Key Finding” that the lab testsimply confirmed the presence of cannabis metabolites in Mr.

Baillie’s urine, which she indicated could be detected in the urine forseveral days or weeks following abstinence, is simply a statement that the urine contained some cannabis metabolites. [91] I find that it is also very important to keep in mind Dr.

Cherlet’s cautionary note in her “Remarks” that the presence of thosemetabolites only confirmed some prior drug use, and that “no direct inference can be made with respect to a degree of impairment.” Thisremark contained in the Forensic Toxicology report is also important to keep in mind in assessing whether the Crown has established theessential elements of this offence, beyond a reasonable doubt. [92] In addition, although Dr.

Cherlet highlighted some of the effects that cannabis consumption may induce such as euphoria,relaxed inhibitions, or physical effects such as increased heart rate, increased blood pressure, etc., once again, those effects may simplybe indicators of the presence of cannabis in a person’s body. The issue before the Court is not only the consumption or presence ofcannabis in the body, but whether Mr. Baillie’s consumption of cannabis had impaired his ability to operate a motor vehicle on theevening of February 8, 2019. [93] Having noted that key distinction, I find that during the 12-step evaluation, Sgt.

Carmichael had confirmed that there was noalcohol at all on the breath sample, Mr. Baillie’s pulse was normal, and his blood pressure was only slightly above the normal rangeduring the evaluation. The examinations of Mr. Baillie’s eyes established that there was no horizontal gaze nystagmus, nor any verticalgaze nystagmus and the lack of convergence was not unusual. Although Sgt.

Carmichael stated that there was a lack of convergence infollowing the stimulus, he acknowledged that it is a “weak bit of symptomatology for drug impairment” given the large percentage of thepopulation that cannot cross their eyes and that he would certainly not “hang his hat” on that fact. [94] However, Sgt. Carmichael stated that Mr. Baillie had performed “poorly” on a few of the divided attention tests involving thefinger to nose test, exhibited some muscle tremors, eye flutter, and rebound dilation. Based upon those “physiological tasks” and the“totality of the circumstances,” Sgt.

Carmichael formed the opinion that Mr. Baillie’s ability to operate a conveyance was impaired bycannabis. On the other hand, Mr. Baillie’s perception of the various tests was that he had performed well and was quite surprised thatSgt. Carmichael had formed that opinion. [95] During the cross-examination of Sgt. Carmichael, the officer confirmed that he did not know how much or how often Mr.Baillie consumed cannabis, nor whether he had any tolerance to cannabis in forming the opinion that Mr. Baillie’s ability to operate amotor vehicle was impaired by a drug, in this case, cannabis. Sgt.

Carmichael was of the view that tolerance was not a factor to consideras he was simply observing, during the test, the things that he believed were impairing Mr. Baillie while the drug was “psychoactive.” [96] With respect to the issue of a person’s “tolerance” to a drug, in this case, apart from a few questions being posed on crossexamination by Defence Counsel, there was no further evidence or opinion adduced during the trial. As indicated at the outset of thetrial, the parties had agreed that Dr.

Cherlet, Ph.D., Forensic Toxicologist’s, curriculum vitae, and report be filed as Exhibit 1 and thatshe could be qualified as an expert to provide opinion evidence with respect to the physiology and pharmacology of drugs and the effectsof drugs as it relates to the ability to operate a conveyance. However, since the parties had agreed that they had no additional questionsfor Dr.

Cherlet, she was not present to answer further questions on direct or cross examination with respect to the issue of a persondeveloping a “tolerance” to the effects of a drug, if taken on a regular basis. [97] Notwithstanding the fact that the issue of “tolerance” to the effects of a drug, was not specifically addressed in any detail, inthis case, I am prepared to take judicial notice of evidence presented on that issue, which was addressed in other cases of a similar naturewhich I considered in my analysis of this case. [98] In R. v.

Domb, 2011 ONCJ 756 , a DRE evaluation had determined that the accused’s ability to operate a motorvehicle was impaired by a drug. In that case, Mr. Justin Hinman who was qualified as an expert in Forensic Toxicology, testified thatseveral drugs including fentanyl and clonazepam were present in the urine sample provided by the accused. Fentanyl, which is a narcoticanalgesic, had been prescribed by Mr. Domb’s doctor as an opioid treatment for his severe back pain. In the final analysis, Judge Pringleacquitted Mr.

Domb based upon reasonable doubt that any impairment by drugs on the date in question was due to any voluntary faultattributable to him, as he was following his doctor’s orders and was unaware of any ill effects that the medication might have had on hisdriving. [99] However, in the Domb decision, supra at paragraphs 21-22 and 62, Judge Pringle summarized the key aspects of Mr. Hinman’stestimony, with respect to the issue of “tolerance” to a particular drug, as follows: “[21] Mr. Hinman explained that it is not possible to relate detection of a drug in someone’s urine to specific effects of impairment on thebody.

The effects of a drug are dependent on that person’s tolerance. When a drug is frequently administered, the body developstolerance and becomes accustomed to it, so that the effects of the drug are reduced. [22] In respect of fentanyl, Mr. Hinman said that it is an opioid for treatment of severe pain that is classified as a narcotic analgesic…. Ifsomeone had been taking fentanyl consistently for months, then they could develop some tolerance so that the effects on them would beless than on someone who was not tolerant.

In other words, use of fentanyl could result in impairment for a non-tolerant individual, butit might not cause impairment in a tolerant one. [62] However, Mr. Hinman was unable to say how these drugs might have affected Mr. Domb that night without knowing Mr. Domb’stolerance to them, and without knowing the concentration of the drugs in his blood.” [Emphasis is mine] [100] More recently, in the case of R. v. Bacon, 2019 NSPC 32 , which was a case before me with respect to a charge ofimpaired operation of a motor vehicle by alcohol or drug, a DRE 12-step evaluation of Mr.

Bacon had concluded that his ability tooperate a motor vehicle was impaired by a central nervous system depressant as well as alcohol. In that case, the Crown introduced theevidence of Mr. Christopher Keddy, who was qualified as an expert in Forensic Toxicology.

[ 101 ] In the Bacon case, supra , at para. 41 , I summarized Mr. Keddy’s opinion with respect to the analysis of the urine sample provided by Mr. Bacon, which confirmed the presence of CNS depressant drugs and CNS stimulant categories, being lorazepam and cocaine. In dealing with the issue of tolerance to drugs, I summarized the Forensic Toxicologist’s opinion as follows: [41)] … Mr. Keddy added, in his conclusions, that the presence of drugs and/or drug metabolites in the urine only confirms prior drug use and that “no direct inference can be made with respect to the time(

s) of use or the degree of impairment at the time of driving based on these findings alone.” Drug dose, manner of use and a person’s tolerance to the drug play a significant role in the effects experienced from any CNS active drug. Tolerance refers to decreased drug responsiveness after a period of repeated use.” [ Emphasis is mine ] [ 102 ] In this case, Mr. Baillie testified that he had been a regular user of cannabis for the last nine or 10 years, on a daily basis.

He indicated that in the earlier years he might have been under the influence by consuming 1½ to 2 g of cannabis, but more recently, to be under the influence of the drug, and make him feel “high” he might have to take, on average, roughly twice that amount. In other words, I find that his credible testimony, which was unshaken on cross-examination, really speaks to the issue of developing a “tolerance” or referring to Mr. Keddy’s statement, “decreased drug responsiveness after a period of repeated use.” [ 103 ] In those circumstances, given Mr.

Baillie’s admission to having consumed a very small amount of cannabis [0.1 g] approximately six hours before he operated his vehicle, and given what I find to be his “tolerance” to cannabis, which is supported by the expert opinion evidence presented in other trials, I find that his evidence leaves me in reasonable doubt as to whether Mr.

Baillie’s ability to operate a conveyance, in this case a motor vehicle, was impaired by a drug on the evening of February 8, 2019. [ 104 ] Furthermore, as the Supreme Court of Canada has stated in Bingley that a DRE officer’s opinion evidence may be received by the court for the purpose of applying the twelve-step evaluation and determining whether that evaluation indicates drug impairment for the purpose for the purposes of the prior section, section 254(3.1) of the Code .

However, in Bingley , supra , at para. 32 the Court concluded that: “[32] … Bodily sample evidence obtained under section 254(3.4) may refute the DRE’s assessment, as may the evidence of bystanders or other experts. It will always be for the trier of fact to determine what weight to give a DRE’s opinion. Any weight given to a DRE’s evidence will necessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment. ” [Emphasis is mine] [ 105 ] In this case, without any evidence of erratic or aberrant driving, I find that Dr.

Cherlet’s opinion, which is identical to the opinion expressed by Mr. Hinman in the Domb case that “no direct inference can be made with respect to a degree of impairment or the time of drug use” from her findings that cannabis metabolites being present in Mr. Baillie’s urine, only established some presence of cannabis metabolites in his body. I find that, based upon Mr.

Baillie’s frequent usage of and likely tolerance to cannabis as well as taking judicial notice of the opinion evidence relating to a person’s “tolerance” to a substance provided by the forensic toxicologists to which I have referred, I am left in reasonable doubt as to whether Mr. Baillie’s ability to operate a conveyance was actually impaired by drug on the evening in question. [ 106 ] While I accord a certain degree of weight to Sgt. Carmichael’s opinion, I find that his opinion alone is not conclusive of the issue of whether Mr.

Baillie’s ability to operate a conveyance was impaired by cannabis, which had been voluntarily consumed by him earlier that day or perhaps even on other days prior to the evening of February 8, 2019. [ 107 ] Having come to those conclusions, I find that the Crown has not established, beyond a reasonable doubt, that Mr. Baillie’s ability to operate a conveyance on the evening of February 8, 2019, was impaired to any degree by a drug, and as a result, the accused will be acquitted and found not guilty of the charge. Theodore Tax, JPC