HIS MAJESTY THE KING Appellant - v. -, 2023 SKKB 4

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 4 Date: 2023 01 05 Docket: CRM-ES-00010-2021 Judicial Centre: Estevan ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING Appellant - and - ALVIN DITTMER Respondent Counsel: S. Nael Naqvi for the appellant Crown Joelle F. Graham for the respondent ___________________________________________________________________________ DECISION HILDEBRANDT J. January 5, 2023 ___________________________________________________________________________ INTRODUCTION [1] The respondent, Alvin Dittmer [Mr.

Dittmer], was charged that he, on October 12, 2019, at Redvers,Saskatchewan, operated a conveyance while his ability to do so was “impaired by any degree of alcohol or a drug or by a combination ofalcohol or a drug”, contrary to s. 320.14(1)(

a) of the Criminal Code, RSC 1985, c C-46. Following a trial held November 4, 2020, withwritten submissions filed by counsel thereafter, Mr. Dittmer was acquitted by the Provincial Court judge on February 17, 2021 (R vDittmer, 2017 SKPC 17). The Crown has appealed that decision. JURISDICTION AND STANDARD OF REVIEW [2] The Court of King’s Bench has jurisdiction to hear

summary conviction appeals by virtue of

Part XXVII ofthe Criminal Code and notably ss. 812(d), 813(b), and 814(2) of the Criminal Code. [3] The scope and standard of review for Crown appeals was discussed in R v Helm, 2011 SKQB 32, 368 Sask R115 [Helm], commencing at para. 12: [12] Pursuant to s. 686(4) of the Criminal Code, a court may allow a Crown appeal from an acquittal if of the opinion that thedefendant should have been found guilty. The relevant portion of s. 686(4) is as follows:

(4) If an appeal is from an acquittal ... the court of appeal may (

a) dismiss the appeal; or (

b) allow the appeal, set aside the verdict and (

i) order a new trial, or (ii) ... enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for theerror in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose asentence that is warranted in law. [13] Although on an initial reading of s. 686(4) it may be tempting to conclude that

summary conviction Crown appeals fromacquittal are restricted to “error(

s) in law”, such a conclusion is not correct. This is because the words “but for the error of law” foundwithin s. 686(4) should be, for the purpose of

summary conviction appeals, read out of the section. This is the conclusion reached by theBritish Columbia Court of Appeal in R. v. Antonelli (1977), (BC CA), 38 C.C.C. (2d) 206 (B.C. C.A.), where the courtheld that a proper

interpretation of s. 686(4) does not restrict the Crown’s right of appeal to questions of law alone. At para. 18, FarrisC.J.B.C. stated:

... The incorporating section, s. [822], qualifies its absolute incorporation with the words mutatis mutandis. They mean, of course, “with the necessary changes in points of detail” (see Jowitt’s Dictionary of English Law, 2nd ed. (1977)). It seems to me that a necessarychange which must be made in s-s. (4) when it is applied to

summary conviction appeals is the striking out of the words “but for theerror in law”. Those words are a necessary part of the

section as it applies to appeals in proceedings by way of indictment because of theapplication of s. [676(1)(a)] restricting the Crown to appeals on questions of law alone. However, as has already been pointed out,s. [676(1)(a)] does not apply to appeals in

summary conviction matters and the words “but for the error in law” are thus irrelevant in thatcontext. [Note: updated Criminal Code sections have been used] ... [16] Accordingly, it is clear that the Crown is not restricted on

summary conviction appeals to raising only questions of law but mayalso raise matters of fact and mixed fact and law. [4] The Helm decision, at paragraphs 19 and 20, also provides guidance over the standard of review to be appliedfor both defence and Crown appeals: [19] On the factual grounds, the standard of review is whether there is evidence upon which a trier of fact, properly instructed, couldreasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145, [2007] 4 W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15, [2000] 1S.C.R. 381; and R. v. Yebes, (SCC), [1987] 2 S.C.R. 168.

The appellate court ought not substitute its own view of theevidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and reweigh the evidence, but only forthe purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. B. (R.H.), (SCC), [1994] 1 S.C.R. 656. [20] On a question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in lawunless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred.

See R. v. Shepherd,2007 SKCA 29, [2007] 4 W.W.R. 659; and R. v. Henry, 2006 SKQB 469, 286 Sask. R. 154. [5] More recently, the Saskatchewan Court of Appeal in R v Abramoff, 2018 SKCA 21 at para 18, 359 CCC (3d)386 [Abramoff], reviewed the case law on the Crown’s right to appeal a

summary conviction acquittal and concluded: [18] In my view, jurisprudence has clearly established the Crown has a right to appeal a

summary conviction acquittal on questions offact: see R v Antonelli (1977), (BC CA), 38 CCC (2d) 206 (BCCA); R v Nelson, (SK CA), [1979] 3WWR 97 (Sask CA); R v Purves (1979), (MB CA), 50 CCC (2d) 211 (Man CA), leave to appeal to SCC refused; R vWilke (1980), (ON CA), 56 CCC (2d) 61 (Ont CA); R v Medicine Hat Greenhouses Ltd., 1981 ABCA 114 ,[1981] 3 WWR 587 (Alta CA), leave to appeal to SCC refused, [1981] 1 SCR xii; R v Johnson (L.C.) (1986) (SKCA), 29 CCC (3d) 395 (Sask CA); R v Sall (1990), (NL CA), 54 CCC (3d) 48 (NLCA); R v Labadie, 2011 ONCA227 at para 50, 275 CCC (3d) 75 [Labadie]; R v Balogun-Jubril, 2016 ONCA 199 at para 9, 94 MVR (6th) 1.

As stated by OttenbreitJ.A. in R v Wetzel, 2013 SKCA 143 at para 71, 306 CCC (3d) 306, “[t]oday it is well accepted that s. 813 allows both the Crown and theaccused an appeal based on grounds of mixed fact and law, of law alone or of fact alone”: see also Jackson J.A. at paragraph 18. [6] The Court of Appeal in Abramoff, at paragraphs 23 and 24, noted the “judicial

interpretation equating thestandard” under s. 813(b)(

i) of the Criminal Code with the standard under s. 686(1)(a)(

i) and confirmed that the reviewing judge is “notto substitute his own view of the evidence but was entitled to review, re-examine, and re-weigh the evidence to determine if it wasreasonably capable of grounding the trial judge’s conclusion.” See also R v Wetzel, 2013 SKCA 143 at para 81, [2014] 2 WWR 559. It isin accordance with this standard that the trial judge’s decision will be examined. [7] By the Crown’s notice of appeal, it is asserted that the trial judge made several errors of law, including amisapprehension of ss. 320.12(d), 320.14(1)(

a) and 320.28, a misapprehension or misapplication of R v Bingley, 2017 SCC 12, [2017]1 SCR 170 [Bingley], a failure to consider the evidence in its totality, and a misapprehension of the evidence. The Crown seeks to havethe acquittal overturned and a new trial ordered. As questions of law have been raised, the standard to be applied on the appeal is one ofcorrectness.

ISSUE [8] In light of the grounds outlined in the notice of appeal, which pertain to an alleged misapprehension on the partof the trial judge of the applicable Criminal Code provisions, the evidence and the Bingley decision, which pertain to the drugrecognition expert [DRE] evidence, the issue on appeal may, as defence counsel suggests, be expressed as: Did the trial judge err by misapprehending the nature, scope and purpose of DRE evidence? [9] For the reasons discussed in the following, I find that the trial judge did err by such a misapprehension.Accordingly, a new trial is required as the acquittal must be overturned.

POSITION OF THE PARTIES [10] On behalf of the Crown, it is submitted that the evidence of the DRE, Cst. Lamontagne, including his opinion asto the impairment on the part of Mr. Dittmer, was probative of that issue without tendering additional evidence to relate to the observedindicia to impairment. The trial judge appeared to have made this error as she held that the primary purpose of the DRE evaluation wasto determine whether drugs were in the accused’s body and, if so, what class of drugs.

However, the Crown contends, in a viewsupported by both Bingley and R v Stipo, 2019 ONCA 3, 370 CCC (3d) 311 [Stipo], that the purpose of the DRE evaluation is todetermine whether a person’s ability to drive is impaired by drugs. What class of drugs is causing the impairment is only a secondaryconsideration. For instance, in Stipo, at para 96, the court noted that, “The DRE determines whether the evaluation indicates drug

impairment.” [ 11 ] Defence counsel, on the other hand, submits that although DRE evidence “can assist the trier of fact”, as noted at paragraph 21 of Bingley , such evidence “is not conclusive of the ultimate question” of guilt, as stated at paragraph 31 of Bingley . The trial judge, as directed by the Supreme Court in Bingley , acknowledged the admissibility of Cst. Lamontagne’s evidence, and she accepted his expert opinion on the results of evaluation, as noted at paragraph 25 of her decision. However, the trial judge also went on to weigh and consider the DRE evidence in light of other evidence tendered.

Defence counsel submits that paragraphs 29 and 30 of the trial judge’s decision – which will be considered further below – are not cause for concern as the trial judge noted gaps or difficulties with the evidence underpinning Cst. Lamontagne’s conclusion on the issue of Mr. Dittmer’s impairment. ANALYSIS Did the trial judge err by misapprehending the nature, scope, and purpose of the DRE evidence? [ 12 ] In 2008, amendments were made to Canada’s driving laws to assist law enforcement officers in the detection of drug-impaired drivers.

These were in part reflected in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196 [ Regulations ], to the Criminal Code , which outline the certification requirements of a drug recognition expert and list the evaluation tests. In Bingley , the Supreme Court of Canada held that the DRE is an expert, trained in administering the 12-step evaluation. As such, the DRE may draw factual conclusions from the results of the evaluation and give expert opinion evidence on the issue of whether an accused was impaired.

At paragraph 21 of Bingley , the court noted: [21] While a DRE’s evaluation certainly has an investigative purpose, their application of the 12-step drug recognition evaluation and determination of impairment is relevant evidence and can assist the trier of fact. The DRE’s opinion is based on his or her specialized training and experience in conducting the evaluation.

By reason of this training and experience, all DREs undoubtedly possess expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact . [Emphasis added] [ 13 ] The Bingley court went on to state, at paragraph 26: [ 26 ] Allowing a DRE to give relevant opinion evidence outside the experience and knowledge of the trier of fact is not “an unqualified endorsement of the underlying science” of the 12-step drug evaluations, as my colleague suggests (para. 46). Reliability is not assessed in a vacuum.

Parliament has established, through the adoption of the Regulations , that the 12-step drug evaluation is sufficiently reliable for the purpose of a DRE’s determination of impairment under s. 254(3.1). 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 12-step drug evaluation’s reliability. [Emphasis added] [ 14 ] Since Bingley , the reliability of a properly administered evaluation has been codified in s. 320.12 (

d) of the Criminal Code : 320.12 It is recognized and declared that ... (

d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug. [ 15 ] This amendment came in 2018, along with the repeal of s. 254, and related sections, and the enactment of the revised provisions in

Part VIII.1 of the Criminal Code , offences relating to conveyances, including s. 320.14(1) (a), pursuant to which Mr. Dittmer was charged. [ 16 ] The Provincial Court judge, in her reasons, noted s. 320.12 (

d) of the Criminal Code and went on to quote from R v Branson, 2018 ONCJ 163 , 407 CRR (2d) 294 [ Branson ] , and R v Bennett (2018), 21 MVR (7th) 86 (Nfld Prov Ct) [ Bennett ] . [ 17 ] In Branson , the court was dealing with an application for disclosure of the DRE’s rolling log, which is a record of all evaluations conducted by a DRE officer from the first day of training, in a form created by the International Association of Chiefs of Police [IACP]. The IACP is referenced in s. 1 of the Regulations .

It was in this context that the Branson court noted, at paragraph 16 : [16] It is worth noting that the Supreme Court, in upholding the admissibility of DRE opinion evidence, made it clear that the evidence is subject to the same assessment for credibility and reliability as any other evidence. As stated at para. 32 of R. v. Bingley , the fact “[t]hat Parliament has established the reliability of the 12-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.

Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer’s conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE’s assessment, as may 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.” [ 18 ] While Branson recognizes the ability of the trier of fact to assess the conclusion of the DRE regarding impairment, Bennett underscores the significance of the Bingley decision and Parliament’s recognition of the DRE in addressing impaired driving offences. At paragraph 53, the court in Bennett stated: [53] In R. v. Ware , [2017] N.J. No. 87 (N.L. Prov. Ct.) , I had the opportunity to consider Bingley .

I suggested that the “significance of what the Supreme Court is saying in Bingley sho uld not be underestimated” (at paragraph 70): The Court makes it clear that a drug recognition expert is an expert witness without question of training or experience. His or her

credentials are statutorily deemed to exist. Thus, a drug recognition expert's evidence must be assessed in the same manner as otherexpert witnesses. Therefore the weight to be attributed to a drug recognition expert's opinion “must be determined by the trial judgehaving regard to the reasons given for the expert opinion, the evidence bearing on the basis of the expert opinion and the extent of theexpert’s expertise” (see R. v. Strickland, 2013 NLCA 65, at paragraph 19). Undoubtedly, a trial judge can reject an expert’s opinion(see Keresturi v.

Keresturi, 2017 ONCA 162, at paragraph 7), including one proffered by a drug recognition expert, but not withoutreason (see, for instance, R. v. D.A.H., 2016 ONCJ 585 and R. v. Sualim, 2017 ONCA 178, at paragraph 37). In addition, by granting adrug recognition expert statutorily deemed expertise Parliament and the Supreme Court of Canada have set impaired drugdriving offences apart from impaired alcohol driving offences. Let me explain. It is well settled that a witness need not be an expert to proffer an opinion on whether someone was drunk (see R. v. Gratt, (SCC), [1982] 2 S.C.R. 819).

It has also been held that a non-expert may express an opinion as to whether someone was under theinfluence of drugs (see R. v. Polturak (1988), 1988 ABCA 306 , 9 M.V.R. (2d) 89 (Alta. C.A.)). However, in such cases, thatperson’s evidence is of no more value than any other witness' evidence and holds no special weight. Bingley and section 254(3.1) of theCriminal Code constitute a significant change in this area of the law. A drug recognition expert is not just another witness.

He or sheis an expert which the Supreme Court has said has knowledge “beyond the experience and knowledge of the trier of fact”(Bingley, at paragraph 24).

Thus, the weight to be given to a drug recognition expert’s opinion as to whether an accused person’sability to operate a motor vehicle is impaired by a drug is of a qualitative difference to such an opinion proffered, for instance,by a lay person or other police officer. [Emphasis added] [19] Against this backdrop, the trial judge then made some troubling conclusions, at paragraphs 29 and 30 of herdecision: [29] In reviewing the new sections in the Criminal Code and in considering Constable Lamontagne’s testimony, it can be seen thatthe main purpose of these sections is to determine if a suspect has drugs in his or her system, and if so, what particular drug orwhat category of drug it may be.

Constable Lamontagne’s observations and testing led him to conclude that Mr. Dittmer had adrug in his system and that it was cannabis. This conclusion was first formulated because of Constable Zaya’s information, next bythe accused’s own admission and then by the determination Constable Lamontagne made through the DRE. Constable Lamontagne’sconclusion was partly confirmed by the laboratory analysis, which found cannabis in the accused’s urine. [30] The difficulty with Constable Lamontagne’s evidence is that he does not explain Mr.

Dittmer’s test results and how they relate tohis ability to drive a conveyance or how they relate back to the time of his driving. Labach J. in R v Perillat, 2012 SKPC 135, 403 Sask R187 [Perillat] faced a similar dilemma and indicated the following: [26] Constable Schaefer’s evidence does not explain the accused’s test results and how they relate to the accused’s ability to drive amotor vehicle or how they relate back to the time of driving. Without testimony on these points, I am left with many questions. Forexample, what signs of impairment would one expect to see in someone who has been using marijuana?

How long after using marijuanawould you expect to see these signs and how long would they last? Can the results of Drug Recognition Evaluation tests taken over oneand one-half hours after the time of driving be reliably related back to the time the accused pulled into the check stop? Was the accused’sperformance in some of the tests just as consistent with someone who has poor balance or poor co-ordination as it was with someone whohad used marijuana? [27] The Ontario Court of Appeal in R. v.

Stellato (1993), (ON CA), 18 C.R. (4th) 127 (affirmed by the Supreme Court of Canada at (1994), (SCC), 31 C.R. (4th) 60) set out the legal test to establish impaired driving. The test is thesame whether the impairment is alleged to be by alcohol or a drug or both. A trial judge must be satisfied beyond a reasonable doubt thatthe accused’s ability to operate a motor vehicle is impaired by alcohol or a drug.

If the evidence establishes any degree of impairmentfrom slight to great, the offence is made out. [Emphasis added] [20] The trial judge’s suggestion, at paragraph 29 of her decision, as to the main purpose of the DRE evidenceappears to be in error. As previously mentioned, Crown counsel noted, relying on Bingley and Stipo, that the primary purpose of theDRE is to assess whether there is impairment.

This view is supported by the comments of the Saskatchewan Court of Appeal, atparagraph 35 of R v Parada, 2016 SKCA 102, [2016] 12 WWR 536: [35] The Ontario Court of Appeal’s decision in Bingley is significant because ss. 254(3.1) and (3.4) require the testing officer to havea higher level of qualification and training.

Furthermore, the impairment by drug testing scheme goes further than the impairment byalcohol testing procedure, in the sense that the Criminal Code requires the drug recognition expert to actually come to a conclusionregarding impairment (Bingley at paras 46-47). [Emphasis added] [21] On this issue, Crown counsel noted that following the introduction of DRE evaluations in Canada, many withinthe legal system “struggled with the nature and scope of the DRE’s evidence” with some holding that such evidence was “the means bywhich police could obtain evidence the subject had drugs in his or her system”.

Although Bingley attempts to address thesemisconceptions, “these erroneous notions continue to colour trial decisions” with Mr. Dittmer’s case being “a prime example”. [22] The trial judge here, in light of her reasons quoted above, misapprehended the purpose of the 12-step evaluation,failing to recognize that such is to determine impairment. Although police officers are to go on and identify the class of drugs theybelieve to be causing the impairment, such is not a required element of the offence outlined in s. 320.14(1)(

a) of the Criminal Code.Convictions may still be entered where the class of drugs is misidentified. For example, in dismissing an appeal by an individualconvicted under the predecessor section, the court in R v Henry, 2014 ONSC 4115 at paras 43-44, stated: [43] The appeal must be dismissed. The trial judge reviewed the evidence and he concluded that the observations of the arrestingofficers and those of Officer Murchland, as well as the appellant’s admission that he had smoked marijuana were proof of the appellant'sguilt beyond a reasonable doubt. He recognized that the urine analysis did not support the Crown’s case but it did not raise areasonable doubt about the appellant's guilt.

[44] The trial judge’s decision is consistent with the analysis contained in R. v. Bingley (supra). A conviction may result from thedrug recognition expert’s evaluation, the observations of investigating officers, lay witnesses or a combination thereof. The urineanalysis may or may not provide corroboration. Although the appellant may not have had THC in his urine, this did not preclude theconclusion that it was in his system at the time he was driving. [Emphasis added] [23] It is therefore problematic to, as the trial judge did in Mr.

Dittmer’s case, fail to focus on the impairmentelement of the offence and the determination made by the DRE, Cst. Lamontagne, regarding impairment. [24] The Crown’s submissions regarding the trial judge’s misapprehension of the purpose and scope of the DREevidence are further supported by the trial judge’s reliance on R v Perillat, 2012 SKPC 135, 403 Sask R 187 [Perillat], a decision whichpreceded both Bingley and the enactment of s. 320.12(

d) of the Criminal Code. At the time Perillat was decided, DRE evidence was notfully understood nor had it been subject to consideration by appellate courts or the Supreme Court of Canada. Thus, dependence on thePerillat analysis reflects a misapprehension of the nature, scope and purpose of DRE evidence at the pertinent time. [25] At paragraph 39 of her decision, the trial judge states that she “accepts Constable Lamontagne’s opinion basedon the DRE” but then goes on to say, “that evidence or lack thereof was considered in light of all the evidence”.

Such a statement isinternally inconsistent as it seems the trial judge did not actually accept the expert conclusion that Mr. Dittmer was impaired but electedto consider individual indicia herself. While the ultimate determination of guilt is, of course, the trial judge’s to make, her approach ofassessing some of the individual indicia of impairment, rather than considering the totality of the evidence, was not correct.

As Crowncounsel notes, it is an error of law to consider a mere piece of evidence – as opposed to an element of the offence – in isolation andsubject it to the criminal standard of proof beyond a reasonable doubt, as was discussed in R v Morin, (SCC), [1988] 2SCR 345 at 361-62 [Morin]. [26] In this case, the trial judge made the error Morin describes. She assessed several of the indicia of impairment inisolation, contrary to how the 12-step evaluation is to operate, as was explained by Cst. Lamontagne in his testimony. At page T44 of thetranscript, for example, he referenced the “drug impaired driving matrix”.

After describing various of the tests, including some on whichMr. Dittmer did relatively well, Cst. Lamontagne testified, at pages T69 to T70, that the walk-and-turn “indicated that there was issuesrelated to balance and safely operating a motor vehicle”. Mr. Dittmer also performed poorly on the one-legged stands. Although Cst.Lamontagne explained that he would leave the formulation of his opinion until the end of the entire process, he did note, at page T73,that by the point of the walk-and-turn and the one-legged stands, he was of the view that Mr. Dittmer “wasn’t able to safely operate amotor vehicle”.

The finger-to-nose test had not yet been conducted. When it was, Mr. Dittmer also performed poorly on this. Cst.Lamontagne then went on to the clinical indicators and the second pulse reading. [27] As noted at pages T82 to T83 of the transcript, step 11 refers to the opinion of the evaluation. Cst. Lamontagnetestified: At that point, yes, I determined that there was enough grounds to – to believe that he – well, that he was not able to operate a vehicle,motor vehicle, safely, and that there was a drug in his system.

And at that point, I read the – the demand for a urine sample to verify myopinion and which my opinion was that he was – he was operating – he was impaired by cannabis at that point. ... That he was not able to safely operate a motor vehicle based on the totalitary [sic] of the circumstances of what I–I—I went through the12-step process and all the information that I obtained as a result. [28] Cst. Lamontagne, as noted, considered the totality of the test results. At pages T83 to T84, he summarized whathe relied upon to form his opinion regarding Mr. Dittmer’s impairment: Okay.

So – so we have the attitude, a very mellow attitude which we would exhibit in – in cannabis, you – a person that’s under theinfluence of cannabis. Face was reddish. He had a cannabis odour on his breath, the reddened conjunctiva, so the eyes were red. Theinability to converge his eyes as well. During the modified Romberg balance, there was eyelid tremors as well as the internal clock wasvery fast. So it was – it was distorted internal clock, 18 second he estimated as 30. During the walk and turn, he performed poorly duringthat, that part of the – at psychophysicals.

During the one-leg stand, there was issues as – as – as with the walk and turn as well, used thewall to keep his balance, and uses his arms and swayed while balancing. Then, like, when we go over to the oral cavity, there was asubstance on the tongue, a greenish substance on the tongue. The blood pressure systolic was above the normal range of 120 to 140. Itwas 142 systolic. There – the finger-to-nose tests, there was he had missed a few and as well was – used his – his pad of his finger forsome of the tests. So the fine motor skills were lacking on that as well.

And then we have an admission that he used cannabis thismorning, a pipe. I don’t know how much. At 10 AM, and it was in the car at Mom’s. So we do have an admission of cannabis. I don’tknow what the concentration of the cannabis was, so it depends on if it was – was it from – was it bought for legally? Was it bought froma store? Was it bought from somebody off the street? We don’t know what the THC level was in it, so it’s very, very difficult todetermine the duration of – of the – of how much effect would have him on it.

But at this point when I did the evaluation, at the end ofthe day, would I give him the keys to operate a motor vehicle at this point? No. And can he properly operate a motor vehiclesafely? Not at this point from based what I’ve seen. And the cannabis – all the signs show that there is – there is impairmentfrom the cannabis at that point. [Emphasis added] [29] Later, at page T87 of the transcript, Cst. Lamontagne was asked if the observations made of Mr. Dittmer couldhave been caused by “something other than impairment by drugs”. Cst.

Lamontagne responded that he tries to “rule out every otherpossible aspect of it” but from his training and experience, “there was impairment to safely operate a motor vehicle, and it was caused bya cannabis category”. [30] Cross-examination of Cst. Lamontagne confirmed his training credentials and the number of DRE evaluationshe had conducted. Thereafter, defence counsel’s questions were aimed at establishing that, in relation to some of the individual tests, Mr.Dittmer had done relatively well. In re-examination, Cst. Lamontagne explained the holistic nature of the assessment of whether or notMr.

Dittmer was impaired, noting, at page T108 of the transcript:

Yeah, the – the – the drug influence evaluation sheet is done as a whole. So it’s not just one test, but it’s everything together . It’s the whole package to make the--circumstances to make – make my opinion from that because we don’t just do one test. We do everything. We do all these tests so – as well as the – our observations, statements , the – the whole entire investigation to decide “A”, basically is – is there impairment and can this person operate a vehicle safely and – [Emphasis added] [ 31 ] Following the 12-step evaluation, a demand was made for a urine sample from Mr.

Dittmer, the laboratory analysis of which found cannabis. [ 32 ] Perhaps due to an inappropriate reliance on the Perillat approach, which, as previously noted, pre-dated Bingley and the enactment of s. 320.12 (d), the trial judge isolated and assessed each indicator of impairment individually, substituting her view of the discrete test results for the overall opinion of the trained DRE. Such an approach is not in keeping with how the 12-step evaluation is designed to operate nor is it in keeping with the recognition and declaration found in s. 320.12 (

d) of the Criminal Code regarding the reliability of DRE evidence. It also ignores the recognition by the Supreme Court, at paragraph 21 of Bingley , that “ all DREs undoubtedly possess expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact”. [ 33 ] The trial judge, while saying at paragraph 39 of her decision that she accepted Cst. Lamontagne’s “opinion based on the DRE”, clearly did not place any weight on it. Her acceptance appears only to constitute its admission into evidence. In circumstances where Cst.

Lamontagne’s credentials were not challenged nor was the method of conducting the evaluation called into question, the trial judge apparently did not consider Cst. Lamontagne’s opinion as reliable, despite the declaration in s. 320.12 .(

d) of the Criminal Code . [ 34 ] As noted in Abramoff , this appellate court is entitled to “review, re-examine, and re-weigh the evidence”. While I do not question the ability of the trial judge to consider the ultimate question of whether the Crown had proven the elements of the offence beyond a reasonable doubt, her approach to the DRE evidence, which effectively gave it no weight at all, was incorrect, for the reasons outlined above. [ 35 ] While apparently rejecting the expert evidence of the DRE, the trial judge seems to have placed considerable reliance on the testimony of Mr. Dittmer.

His evidence, however, was speculative and based on unsubstantiated hearsay, apart from being self-serving. For example, concerning his other medications and their impact on his balance, Mr. Dittmer said, at page T122, that he “did do a little research” on the medication and “spoke to his doctor”. At page T125 of the transcript, the unreliability of his position on, for example, his other medications causing his problems with balance is demonstrated: A. My belief. Well, my belief is that it’s tied to the medication.

I’ve spoke with my doctor regarding it, and she has acknowledged that, yes, it can affect your balance as it does work on your brain, and not everyone is the same, so not everyone will experience the same symptoms. Q. So, Mr. Dittmer, my question to you is, if you weren’t on your medication, why was your balance being impacted on the day in question? A. Well, I – I couldn’t say what affects missing the medication. I mean, I – I – I’m no – I have no idea how it affects a person, so missing my medication could affect my balance, I mean – Q. But – but, like you said, you’re no doctor.

You’re no doctor; you’re not sure? A. Oh, I’m not a doctor – [ 36 ] In light of this evidence, as Crown counsel has noted, it was pure conjecture that the observed indicia of impairment could have related to something other than drug consumption, in light of Cst. Lamontagne’s evidence, which included his comments on the attempts to rule out causes other than cannabis for the impairment. [ 37 ] At page T115, Mr. Dittmer testified that he considers himself a medicinal user, although his 40-year pattern of consumption of cannabis began recreationally.

Despite his view of the drug as a medicine now, he does not have a medical licence for cannabis as he has “never been able to find a doctor that was able to help [him] with that”. This speculative inconsistency underscores the lack of reliability of Mr. Dittmer’s testimony. [ 38 ] As previously mentioned, the class of drugs identified by the DRE, namely cannabis, was supported by the toxicology results. This brings into play the presumption found in s. 320.31(6) of the Criminal Code : 320.31

(6) If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug – or, if the person has also consumed alcohol, the combination of alcohol and that drug – is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment. [ 39 ] The trial judge in this case failed to consider this presumption that it was cannabis which caused Mr.

Dittmer’s impairment. Failing to address this constitutes an error. Additionally, the presence of THC in Mr. Dittmer’s urine corroborated the evidence and opinion of the DRE, Cst. Lamontagne, regarding the cause of Mr. Dittmer’s impairment. Despite these important factors, the trial judge, while apparently accepting that Mr.

Dittmer’s motor function and ability to complete divided attention tasks were impaired, chose to speculate that such impairment may have been by something other than cannabis. [ 40 ] In light of the several errors of law discussed in the foregoing, I find that trial judge erred by misapprehending the nature, scope and purpose of the DRE evidence. These errors had a significant impact on the trial judge’s findings related to the central issue of the trial, which was the impairment of the accused. These were not, as defence counsel has suggested, mere factual findings that did not impact the ultimate result.

As such, this is not a circumstance such as in R v Kytwayhat, 2021 SKCA 67 at para 5 ,

where the trial judge did not reach an unreasonable verdict. CONCLUSION [ 41 ] In light of the errors of law, which demonstrate a misapprehension of the nature, scope and purpose of DRE evidence, the appeal by the Crown is granted and a new trial is directed. “B.R. Hildebrandt” J. B.R. HILDEBRANDT