R. v. Mann, 2017 ONCJ 840

CITATION: R. v. Mann , 2017 ONCJ 840 DATE: June 27, 2017 Court File No . 1211 998 15 965 5 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN

10 v. PRATEEK MANN 15 R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE D. HARRIS on June 27, 2017, at MILTON, Ontario 20 M. Ward Counsel for the Crown R. Brooks Counsel for Prateek Mann APPEARANCES : 25

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i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S W I T N E S S E S WITNESSES Examination in-Chief Cross- Examination Re- Examination

5 10 E X H I B I T S RULING REASONS FOR JUDGMENT 1 REASONS FOR SENTENCE 15 EXHIBIT NUMBER ENTERED ON PAGE Transcript Ordered: July 6 2017 Transcript Completed: July 13, 2017 Ordering Party Notified: July 13, 2017 20

25 Reasons for Judgment TUESDAY JUNE 27, 2017 HARRIS, J. (Orally) : REASON S F O R JUDGM E N T

5 Prateek Mann is charged with operating a motor vehicle in the Town of Halton Hills on March 20, 2015 when his ability to operate a motor vehicle was impaired by alcohol or drug. 10 Crown counsel elected to proceed summarily. Mr. Mann pled not guilty and a trial was held. Mr. Mann had applied for an order that all police 15 evidence should be excluded pursuant to s.24(2) of the Canadian Charter of Rights and Freedoms . Counsel agreed that we should proceed with a “blended” hearing in which all of the evidence would be applicable to both the Charter Application 20 and to the trial.

Halton Regional Police Constables Paul Webber and Goran Zivkovic and Ms. Betty Chow from the Centre of Forensic Science testified for the Crown. 25

Mr. Mann testified for the defence. There was no issue that Mr. Mann was operating his motor vehicle in Halton Hills on March 20, 2015. 30 He has also agreed that alcohol was not a factor in this case. Reasons for Judgment The issues before me are: 1) whether the police evidence should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms , and 2) whether the Crown has proven beyond a reasonable 5 doubt that Mr. Mann’s ability to operate a motor vehicle was impaired by a drug, in particular marijuana or cannabis.

More particularly with respect to the Charter 10 Application, counsel for Mr. Mann argued that the evidence should be excluded on the basis that the police did not have the reasonable and probable grounds necessary to stop Mr. Mann’s vehicle, thereby violating his right not to be arbitrarily 15 detained as guaranteed by s.9. I will deal with the Charter Application first. In that regard I note that the onus is on Mr. Mann 20 to establish on a balance of probabilities that his s. 9 rights were infringed. Mr. Mann testified that he believed that Constable Webber stopped him because Mr.

Mann had dark skin. 25 There was no other reason why Constable Webber would have acted as he did. I did not believe Mr. Mann. He was neither credible nor reliable as a witness. My reasons for 30 saying this are as follows:

Reasons for Judgment Mr. Mann treated his unsupported beliefs as if they were actual facts. For example, he stated that there were no other dark-skinned patrons at the Nashville North bar. He knew that because he had 5 not seen any other dark-skinned people there.

His certainty in this was not tempered even the slightest bit by the fact that he could not have seen who went into the bar before he arrived, or that he could not have seen who went in while he 10 and his friends were smoking marijuana in the car, or that he might not have seen everyone who went inside, even while he was waiting in his car and talking to his wife on the telephone. Mr. Mann did not see any other dark- skinned people there, so 15 there were none. He and his counsel also argued that this position was bolstered by the fact that Nashville North was a country and western bar.

Even if it was, I have 20 no reason to believe that only white-skinned people go to country and western bars. Quite frankly the argument struck me as relying on racial stereotyping or profiling. 25 The argument also fails because the evidence before me was that Nashville North sometimes featured

country and western music but that on Thursday nights – and March 19, 2015 was a Thursday night - the bar featured top 40 music which attracted a 30 diverse crowd, mostly in the 19 to 30-year-old demographic. Reasons for Judgment The other flaw in his argument is that even if Mr. Mann had been the only dark-skinned person at Nashville North that night, it was still possible that Constable Webber stopped him not because of 5 the colour of his skin but because of the manner in which he was driving. Mr. Mann also testified that he thought there was nothing wrong with his driving and therefore there 10 was nothing wrong with his driving.

Constable Webber told a different story. He said that he parked across the street where he could see vehicles leaving Nashville North. He could not see 15 people getting into their cars in the parking lot, and he could not even see the vehicle until it crested the hill leading up to the road, but he did not park in the parking lot itself because he did not wish the drivers to see him. Even when the 20 vehicles came into sight, he could not see into them. It was not unusual for him to do this on a Thursday night. Thursdays, Nashville North might attract as 25 many as 900 people.

The police often received calls for service arising out of the bar. Constable Webber testified that in 2015 he had made 21 arrests, and 13 of these originated at the Nashville North. 30 In any event, with respect to this matter he testified that on that evening, prior to stopping

Reasons for Judgment Mr. Mann, he had followed five or six vehicles down Guelph Street, but had found no reason to pull these vehicles over. At 1:00 a.m. he saw the black Ford Fusion come to the crest of the hill where it 5 stopped. It turned left and went by him. Up until this point it was driving fine, but it was coming from Nashville North and therefore he wished to investigate further. 10 He pulled out and followed the vehicle in order to observe how it proceeded. At one point he noted that the vehicle was swaying within its lane towards the line, but it did not cross.

He noted that the rear window of the vehicle was tinted; he 15 could not see anything inside. He could not tell how many people were there, let alone what their colour was. Finally, the vehicle crossed the centre line three 20 times. At that point, Constable Webber decided to stop the vehicle for a sobriety check. He activated the

lights but not the siren on his vehicle. The Ford Fusion stopped. It pulled over in what the Officer described as a “fine manner”. 25 Constable Webber typed in the plate number and notified dispatch regarding the stop but he did not wait for a response before getting out of his vehicle. He indicated the system was slow and 30 response can take up to a minute. He went to the driver’s side door where the window was down. He informed the driver, Mr. Mann, of the reason for Reasons for Judgment the stop. His reason was for a sobriety check.

He mentioned that the vehicle had swayed within the lane and then crossed the line three times. Constable Webber used his flashlight to see if 5 anyone was in the backseat of the vehicle. Mr. Mann was the only person in the vehicle. Constable Webber noted that he did not know Mr. Mann.

He asked for documents. He asked particularly for 10 a driver’s licence. Mr. Mann told him that he had no driver’s licence. He provided verbal identification. Constable Webber then went back to his vehicle to run this information to determine if there was a police record and to determine driver’s 15 licence status and also to confirm Mr. Mann’s I.D. He indicated that the computer system would allow him to access digital photos. Constable Webber testified that he was alone at the 20 scene and he wanted to know who he was dealing with. The vehicle was registered to a female person in Etobicoke.

There was no information reflecting any 25 problems with the vehicle. The response with respect to Mr. Mann, however, was that the photo matched with him, his driver’s licence had been suspended since 2014 for unpaid fines. 30 Finally, there was a warrant outstanding for the arrest of Mr. Mann. A warrant had been issued by the Ontario Provincial Police in Superior East with

Reasons for Judgment a 400 kilometre radius. Constable Webber testified quite candidly, he had no idea where Superior East was. He returned to Mr. Mann’s vehicle and explained there was a warrant for his arrest. He 5 asked Mr. Mann to turn off the vehicle and step out because he was arresting him on that warrant. Mr. Mann indicated that he knew about the warrant, and that they would not come to get him. 10 Constable Webber said he could not rely on that information. Mr. Mann got out of the vehicle. He explained that this had happened before. Constable Webber arrested him. He indicated that Mr.

Mann was cordial and cooperative. He read Mr. Mann his 15 rights to counsel and the caution. Mr. Mann indicated he did not want to speak to a lawyer at that time. Constable Webber placed handcuffs on him and began to conduct what he described as a level one search. Mr. Mann stated “I’m not going 20 to lie to you, I have a bag of marijuana in the car.” Constable Webber noted he had not asked anything about the car at that point. He then made

25 observations of Mr. Mann noting that his pupils were dilated. He asked if Mr. Mann had been smoking weed that night and was told “Yeah, I smoked earlier”. He was asked when and the reply was around 6:30 p.m. Constable Webber also noted 30 balance issues. Mr. Mann was swaying on his feet moving from side to side. Reasons for Judgment Constable Webber took him back to the police vehicle and placed him in the rear. This was for the safety of both of them. He then went to Mr. Mann’s car and seized the marijuana. It was in the 5 form of buds contained in a zip lock bag.

Constable Webber placed that in his cargo pocket and continued to search the driver’s area. He went back to his vehicle, told Mr. Mann that he was also charged with possession of a controlled substance. 10 He read rights to counsel and caution again. Mr. Mann still did not want to talk to a lawyer. Constable Webber indicated he had formed a suspicion that Mr. Mann was driving with drugs in

15 his body. He was basing this on the driving evidence, the swaying, the dilated eyes, and the admission of consumption. He made a demand for standard field sobriety tests, SFST’s. He took Mr. Mann back to a nearby gas station where there was 20 sufficient light and level ground that these tests could be conducted properly. Constable Webber conducted the SFST’s with Mr. Mann; I am not going to review these. I am 25 satisfied that once they were completed Constable Webber had reasonable and probable grounds to demand that Mr. Mann submit to a drug recognition evaluation.

The SFST’s were admissible only for the purpose of establishing those reasonable and 30 probable grounds. They cannot be considered by me when determining whether the Crown has proven impairment beyond a reasonable doubt. Reasons for Judgment During cross-examination a number of suggestions were made to Constable Webber. He agreed that Mr. Mann drove up and stopped safely at the intersection. He agreed that Mr. Mann made a safe

5 left turn. He disagreed that he could see through the windshield of Mr. Mann’s vehicle. He disagreed that he made eye contact and turned his head to follow Mr. Mann. He disagreed that he had noticed that Mr. Mann was not white. 10 When asked whether Mr. Mann was the only dark- skinned person that he followed that night, Constable Webber stated “I don’t know”. He disagreed when it was suggested that he only pulled 15 Mr. Mann over because he was dark-skinned. He also disagreed that he had embellished the evidence regarding driving. He also disagreed that he had made up his mind to pull Mr.

Mann over once he first saw him. 20 He indicated that he noticed that Mr. Mann’s pupils were dilated. He agreed it was night time, however, he had shone his flashlight on Mr. Mann’s face and the pupils were larger than normal. He 25 indicated he was made aware of Mr. Mann having a back injury that could cause difficulty performing the SFST’s. I note that counsel did not ask Constable Webber 30 the skin colour of the 13 people he had arrested coming out of Nashville North on other occasions.

Reasons for Judgment Quite frankly, I found Constable Webber to be a very credible witness. His evidence was given in a straight-forward, professional manner. He showed no animus towards Mr. Mann, either in his behaviour 5 that night, or during his testimony. Even Mr. Mann testified that Constable Webber treated him in a professional manner that night. He was polite and fair. He was a gentleman. 10 Constable Webber’s evidence was internally consistent. I would note also that Nashville North is not just known to the police. I have heard many trials regarding incidents that arose out of Nashville North.

These included enough drinking 15 driving offences that it would appear that the police do stake it out regularly in order to detect impaired drivers. Mr. Mann was not consistent in his evidence. 20 During his statements to the police officers and in his evidence in court, he gave various different times for when he and his friends travelled to Nashville North, and for when and where they smoked marijuana.

25 In his affidavit in support of the Charter Application he stated that he was not provided with a reason for being stopped. In his evidence he stated that Constable Webber told him that he was 30 checking sobriety. He testified that he did not leave the parking lot before the time he was Reasons for Judgment stopped. He told Constable Zivkovic that he had gone for a drive earlier. Further, Mr. Mann had been smoking marijuana that 5 night. I am satisfied that this could well have affected both his ability to perceive events and his ability to recall them.

In the end Mr. Mann fell far short of proof on a 10 balance of probabilities that Constable Webber had engaged in a racial profiling here. All I heard were baseless allegations by Mr. Mann and that is something that disturbs me. 15 Racial profiling is not to be tolerated, and if I had believed that Constable Webber had engaged in racial profiling, I would have readily excluded the evidence or even stayed the charges. However, baseless allegations like these made by Mr. Mann in 20 this case, cast a shadow over the genuine complaints made by others, and for that he should feel truly ashamed.

I find that Constable Webber did not infringe Mr. 25 Mann’s rights. He first followed Mr. Mann’s vehicle because it was leaving Nashville North at a time when the ability of many drivers leaving the place was impaired by alcohol. He stopped the vehicle as a result of erratic driving. He first 30 arrested Mr. Mann because of an outstanding warrant. He later added charges of possession of

Reasons for Judgment marijuana and impaired driving when he developed a reasonable and probable grounds to do so. The Charter Application is dismissed. 5 That then brings us to the second issue. Has the Crown proven beyond a reasonable doubt that Mr. Mann’s ability to operate a motor vehicle was impaired by marijuana or cannabis? 10 Mr. Mann testified on his own behalf. He stated that his ability to operate a motor vehicle was not impaired at all, and certainly not by drug.

15 In light of that position, I am mindful of the direction provided by the Supreme Court of Canada in R. v. W.(D.) 1991 S.C.R. No. 26. If I believe the evidence of Mr. Mann I must find him not guilty. Even if I do not believe his evidence, if 20 that evidence leaves me with a reasonable doubt about his guilt, I must find him not guilty. Even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all of the evidence that I do accept, I am not satisfied 25 beyond a reasonable doubt of his guilt I must acquit. In going through this assessment I just remember that Mr.

Mann, like every other person charged with 30 a crime, is presumed to be innocent unless or until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or Reasons for Judgment prove anything. It is not enough for me to believe that he is probably or likely guilty. Conversely, it is nearly impossible to prove anything with absolute certainty and the Crown is not required to

5 do so. However, I must remember that the reasonable doubt standard falls much closer to absolute certaintythan to prove on a balance of probabilities. For that I take direction from the Supreme Court of Canada in R. v. Starr, [2000] 10 S.C.R. 40 at paragraph 242. This is a tough standard and it is so tough for a very good reason as Justice Corey said in R. v. Lifchus, [1997] S.C.R.

No 77 at paragraph 13, 15 “The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is one of the principle safeguards whichseeks to ensure that no innocent person is 20 convicted.” This standard is dealt with in respect to allegations of operating a motor vehicle while impaired by our appeal courts in R. v. Stellatto. 25 The follow passage comes from (ON CA), 1993 O.J. No. 18, at paragraph 14, whichare the comments of Justice Labrosse of the Ontario court of Appeal, which was subsequently affirmed at 1994 S.C.R.

No. 51, he stated, 30 “In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a

Reasons for Judgment reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused for impaired driving the trial judge must be satisfied that the accused’s ability to 5 operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of 10 impairment established any degree of impairment ranging from slight to great, the offence has been made out.” In determining this I must not assess each 15 circumstance piecemeal, but must look at the totality of the evidence. To borrow the words of Justice Doherty of the Ontario Court of Appeal, I must consider the “constellation of objectively discernible facts”. 20 I am not to automatically dismiss particulars from consideration simply because there might be another possible explanation rather than impairment. Rather, I am to decide whether the evidence taken

25 as a whole leads to only one reasonable conclusion. Needless to say I must consider all of the circumstances, including those that are inconsistent with impairment. 30 I will then turn to a review of the relevant evidence. Reasons for Judgment I will repeat my earlier statement that I did not believe Mr. Mann. Further, his evidence did not leave me with a reasonable doubt. I have provided my reasons for this already, and will not repeat 5 them here. I again point out as well that I am aware that I may not rely on the results of the standard field sobriety test performed by Mr. Mann and I did not 10 rely on them.

I will first address the evidence relevant to the issue of whether Mr. Mann’s ability to operate a motor vehicle was impaired by something. Following 15 that I will address the evidence relevant to whether any such impairment was caused by a drug, particularly marijuana or cannabis. I will point out that when I use the words ‘cannabis’ ‘marijuana’ or ‘THC’ I am referring to the same 20 substance. I have already reviewed the evidence of Constable Webber with respect to his observations of Mr. Mann and the manner in which he was driving. I will not 25 repeat that review here.

That then leaves the evidence of Constable Zivkovic who testified as a drug recognition expert. I am aware of the recent decision of the Supreme Court 30 of Canada in R. v. Bingley , 2017 S.C.R. No. 12. The following

summary of that decision is based on

Reasons for Judgment paragraphs 20 through 32 of the Supreme Court of Canada decision. A DRE literally is a “drug recognition expert” 5 certified as such for the purpose of the scheme. It is undisputed that the DRE receives special training in how to administer the 12 step drug recognition evaluation and in what inferences may be drawn from the factual data he or she knows. It 10 is for this limited purpose that DRE can assist the court by offering expert opinion evidence.

While a DRE’s evaluation certainly has an investigative purpose their application of the 12 step recognition evaluation and determination of 15 impairment is relevant evidence and can assist the trier of fact. This conclusion is not negated by the fact that a DRE is not trained in the science underlying the 20 development of the 12-step evaluation.

The reliability of the 12-step evaluation comes from the statutory framework itself. Parliament has determined that the 12-step evaluation 25 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. The regulations set out a uniform evaluative framework that a DRE must follow in 30 order to reach a conclusion regarding drug impairment.

Parliament is entitled to establish such a framework and in doing so establish the 12- Reasons for Judgment step drug evaluation as sufficiently reliable for the purposes of determining impairment. Parliament has established through the adoption of the regulations that the 12-step drug evaluation is 5 sufficiently reliable for the purpose of the DRE’s determination of impairment. The scope of a DRE’s expertise is limited to that determination and it is only for the purpose of making that determination that Parliament has established the 10 12-step drug evaluation reliability.

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.

15 The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not determine the ultimate issue of guilt; it is merely one piece of the picture for 20 the judge to consider. It will always be for the trier of fact to determine what weight to give the 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 was not 25 conclusive of impairment. I also note the comments of Justice Kenkel of the Ontario Court of Justice in R. v. Abbasi-Rad [2016] O.J. No. 4601 at paragraphs 24 through 27.

I have 30 summarized his comments as follows. Reasons for Judgment Aside from the statutory expertise, opinion evidence regarding impairment is admissible from any witness. A DRE officer is able to

explain the purpose of the test, and in particular the way 5 certain tests isolate for the presence of certain drugs. His evidence establishes a reasonable basis for the urine test. Beyond that though there is often little 10 explanation about how an accused performance on various DRE tests relates to the issue of alleged impairment and the ability to drive. It is not always evident how the results relate to impairment at the time of driving.

With no baseline as to how 15 the average sober person performs and no base line as to how a particular accused with his injuries and other particular circumstances performed sober as opposed to when he is in an impaired state, it is not always plain what to make of the results. 20 Justice Kenkel stated at paragraph 27 that, “Common sense inferences are available of course where the accused exhibits physical or 25 mental errors performing simple tasks where the errors are not reasonably explained otherwise.

Combined with other circumstances such as similar observations at the roadside, no intervening drug or alcohol consumption since 30 arrest, evidence of prior drug use, reasonable inferences may be available regarding the physical and mental abilities required to drive

Reasons for Judgment safely. It’s harder to know what to make of other DRE test errors, but all circumstances are considered here in assessing the overall case for impairment.” 5 In the case of Mr. Mann some of the deviations noted by Constable Zivkovic were slight and I too have no baseline as to how the average sober person performs. These are however circumstances that I 10 have to consider, along with all the others. I note further that I attached greater weight to the observations that during the one leg stand Constable Zivkovic asked Mr.

Mann to count out loud 15 to 30 seconds: one thousand and one, one thousand and two one thousand and three, etcetera. Instead, Mr. Mann counted one thousand and one, one, one thousand and one, two, one thousand and one, three, etcetera. He either did not listen or he did not 20 understand the instructions or he ignored them.

Similarly, during the modified Romberg balance test he was told not to do anything until Constable Zivkovic finished the instructions. Mr. Mann began 25 before Constable Zivkovic finished the instructions. During the walk and turn test Constable Zivkovic had to tell him repeatedly to step on the yellow 30 line. Reasons for Judgment His performance on the finger to nose test was basically a complete and utter failure. He was told the distinction between the tip of his finger and the pad of his finger. He was told to touch 5 the tip of his finger to the tip of his nose.

On the first of six attempts he touched the left nostril with his left hand and then moved his finger to the tip of his nose. On the second occasion he touched the right nostril with his 10 right hand and lifted his finger to the tip of his nose and then left his finger there until he was told to move

it. He had been originally instructed to move it away immediately following any touch. On the third attempt he used the pad of his finger to 15 touch the side of his nose and then slid his finger over to the tip. On the fourth occasion he touched his upper lip he gave a slight laugh and then directed his finger to the tip of his nose. On the fifth attempt he touched his right nostril with his 20 right hand, and then his finger glided to the tip of the nose.

On the sixth attempt he touched the left side of his cheek with his left hand, just to the left of his nose, and then he moved his hand to the tip of his nose and kept it there. 25 I do note that neither Constable Webber nor Constable Zivkovic noted any problems at all with Mr. Mann’s speech. 30 I will next examine the evidence supporting the allegation that any impairment was caused by marijuana. Reasons for Judgment

I note that Constable Webber found marijuana in Mr. Mann’s car. Mr. Mann told Constable Webber that he had been smoking marijuana earlier that night, 5 around 6:30 p.m. He also told Constable Zivkovic that he had been smoking marijuana earlier that night, although he told DRE Constable Zivkovic that he did so around 9:15 p.m. 10 His pulse was greater than normal. His blood pressure was greater than normal. His eyes were dilated to a greater extent than normal. He exhibited rebound dilation. He showed visible eyelid tremors. All of these are indicative of 15 marijuana or cannabis use.

Constable Zivkovic concluded that Mr. Mann had been using cannabis. Counsel for Mr. Mann tried to attack the reliability of Constable Zivkovic’s conclusion on 20 the basis that some DRE’s turn out to be false positives. Ms. Chow, the toxicologist from the Centre of Forensic Sciences testified that she had seen one or two of these over the course of the 100 or 200 tests she had performed. This challenge 25 struck me as strange, however, since Constable Zivkovic was correct in his conclusion. Mr. Mann testified that he used marijuana or cannabis regularly and he had used it as recently 30 as that evening. Ms.

Chow testified that the test of Mr. Mann’s urine detected Carboxy- Tetrahydrocannabinol, but not Tetrahydrocannabinol

Reasons for Judgment or THC. She explained that the Carboxy- Tetrahydrocannabinol is an inactive metabolite of THC. THC is the major psychoactive compound found in cannabis products, such as marijuana and 5 hashish. The detection of the Carboxy- Tetrahydrocannabinol indicates prior use of or exposure to a cannabis product. The absence of the THC itself in the urine is not significant because THC is eliminated from the human body by that 10 means. The presence of the metabolite indicates prior use of cannabis. Ms.

Chow testified that the effects of cannabis may include mild euphoria, relaxation, altered time 15 perception, motor incoordination, and increased ability to concentrate. I translated all of that to mean that it can impair a person’s ability to operate a motor vehicle. 20 Ms. Chow testified that the psychoactive effects of marijuana or cannabis would usually wear off within four hours, but might linger for up to six hours, with some individuals.

25 Counsel for Mr. Mann argued that Mr. Mann had smoked marijuana more than four hours before driving. I disagree with that argument. Mr. Mann said a number of things at different times 30 during his conversations with Constable Webber and Constable Zivkovic and during his evidence in court. At one point he said he smoked marijuana at Reasons for Judgment approximately 6:30. He said he smoked at the apartment before leaving for Nashville North. Another time he said he smoked at 9:15, but changed that to 9:30. He smoked that marijuana in the 5 Nashville North parking lot.

I suppose both might be true and he had smoked marijuana twice that night. As to the time he had smoked marijuana I noted that 10 at one point he said that they only left the apartment to go to Nashville North at 9:15 in which case he would arrive there around 9:45 or even later and it would have been then that he and his friends smoked the marijuana there. I note that he

15 only established a firm time more than four hours before his being stopped after he had been provided with the toxicologist reports stating that the effects of marijuana would usually be gone after that time. 20 His credibility was also weakened by the fact that in response to questions by both Constable Webber and Constable Zivkovic as to the drug use he admitted smoking marijuana but he neglected to 25 mention the methamphetamine and the ethylone that were also found in his urine. I am therefore taking the following into account in reaching my final conclusion. 30 Mr.

Mann drove his vehicle up to the road where Constable Webber was watching him. He stopped Reasons for Judgment properly at the intersection and made a proper left hand turn. Shortly afterwards his vehicle began swaying within its lane and then

actually crossed the centre line three times. Constable Webber 5 activated his lights and the vehicle properly pulled over to the side of the road. Constable Webber noted that Mr. Mann’s pupils were dilated. He was also swaying on his feet moving 10 from side to side. There were no problems with his speech. His speech was also fine when dealing with Constable Zivkovic. He provided inconsistent statements as to when and 15 where he had smoked marijuana that evening. He had some difficulties with balance during a number of the DRE tests, but not so much that I was prepared to place much weight on them.

He had difficulty following the instructions given by Constable 20 Zivkovic regarding three of the tests. He performed very poorly with regard to the finger to nose test. He was using marijuana that night. The evidence with respect to any of the other drugs in such that I cannot say that they were still 25 affecting him at the time that he was driving. After considering all of the evidence, including these particular elements of it I am satisfied that the Crown has proven beyond a reasonable doubt that 30 Mr.

Mann’s ability to operate a motor vehicle was impaired by a drug at the time that he was operating his motor vehicle. The drug was

Reasons for Judgment marijuana. I find him guilty of that offence and I enter a conviction. 5

10 15 20 25