Court Information

Information #10-1564

Ontario Court of Justice (East Region)

Between: Her Majesty the Queen -and- Robert Conron

Reasons for Judgment

Before the Honourable Mr. Justice Grant Radley-Walters

On March 28th, 2012 at Pembroke

Appearances

Jason Nicol – Counsel for the Crown

Adrian R. Cleaver – Counsel for the Accused

Reasons for Judgment

Radley-Walters, G.

Introduction

1Robert Conron is charged with operating a motor vehicle while his ability to do so was impaired by drugs. The Crown seeks to introduce the evidence of a Drug Recognition Expert (DRE) and the Report of the Centre of Forensic Sciences relating to the urine sample obtained from the accused on the issue of impairment by drug.

2Bill C-2 amends the Criminal Code to include a comprehensive testing system designed to detect drug impairment. The system sets out three steps:

1. Standard Field Sobriety Tests (SFST);
2. Drug Recognition Expert Testing (DRE); and
3. Bodily Fluid Sampling.

3The legislative scheme as amended is set out in sections 254(2), 254(3.1), 254(3.4), and 254(4).

4An evaluating officer is defined as a peace officer who is qualified by regulation to conduct evaluations under section 254(3.1) of the Criminal Code, and must be a certified Drug Recognition Expert accredited by The International Association of Chiefs of Police. Constable Ian Morin of the Pembroke Police Service testified on behalf of the Crown. Constable Morin testified that he was designated as an evaluating officer under the Criminal Code of Canada. He testified as to his qualifications as set out in the regulations.

5An issue has arisen in this case as well as in recent jurisprudence in Canada as to whether or not an evaluating officer is an expert. I have reviewed the decision of Mr. Justice Di Giuseppe in the case R. v. Wakewich, 2010 ONCJ and I adopt his reasoning on this particular issue. In paragraph 15 he sets out his conclusion which I adopt in this case:

"15. The application will be disposed as follows:

1. The evaluating officer must establish his or her qualifications as set out in Regulation 2008-196 of the Criminal Code.

2. The evaluating officer may testify as to the evaluation conducted pursuant s. 254(3.1) of the Criminal Code, particularly describing the evaluation tests and procedures as set out in Regulation 2008-196.

3. The evaluating officer may testify that a demand was made pursuant to s.254(3.4) of the Criminal Code, and the grounds for that demand.

4. Any opinion by the evaluating officer as to impairment by drug, other than for the purpose of making a demand pursuant to s. 254(3.4) of the Criminal Code, will not carry the weight of expert opinion, unless the criteria in R. v. Mohan have been met."

6Specifically in the case before the court, Constable Morin was candid with respect to his limitations noting that he was not a doctor and could not give accurate information with respect to a person's blood pressure. Constable Morin noted that this was the first time that he had testified as an evaluating officer. Constable Morin also acknowledged that he had never dealt with the issue of carbon monoxide poisoning and any effect that carbon monoxide would have on an individual. Constable Morin also testified with respect to the issue of red eyes. Constable Morin conceded that there could be numerous reasons for an individual having conjunctivitis.

Facts

7Sergeant John McDonald and Constable Ian Morin of the Pembroke Police Service were on a shift on December 23rd, 2010 in the City of Pembroke. They were dispatched to a convenience store on Eganville Road in the City of Pembroke. The owner of the convenience store had noted that there was a motor vehicle which was parked on the East side of Eganville Road pointing North with its front tires partially on the roadway. The motor vehicle in question was running and had been in that position for some considerable period of time. The two officers attended at the scene and noted that the accused was in the vehicle asleep. He was the sole occupant of the vehicle. The keys were in the ignition and the motor was running. On the date in question, namely, December 23rd, 2010 it was a clear day and the temperature was minus 5 degrees Centigrade.

8The officers were able to awaken the accused after a period of time. The accused was very slow and lethargic. When the accused exited the motor vehicle he was unsteady on his feet. The officers conducted a search of the motor vehicle and there were no beer bottles or alcohol bottles found in the motor vehicle. The accused did not smell of alcohol on his breath.

9For the purposes of determining whether the officers had grounds to make a demand of the accused, the accused stated to the officers that he was very tired as he had an argument between himself and his girlfriend and their three year old daughter who was sick. The officer indicated that the accused's speech was slurred and that the accused's pupils initially looked abnormal and then they became normal.

10At 8:32 a.m., Constable Morin demanded that the accused comply with a Standard Field Sobriety Test. Constable Morin had the accused conduct three tests on the sidewalk which Constable Morin described as clear and flat. The first test involved Constable Morin looking at the accused's eyes to observe their vertical and horizontal movements. This is referred to as the Horizontal Gaze Nystagmus Test and the Vertical Gaze Nystagmus Test. Constable Morin indicated that there was nothing of concern with respect to the accused's eyes and their movement. The second test is a walk and turn step requiring the accused to take nine steps on a heel to toe basis and then return. The accused lost his balance twice and missed step six on the returned portion of the test. The accused was wearing winter boots at the time and his arms went up when he lost his balance. The third test is a one leg stand test which is considered a divided-attention test. In this test an accused is required to stand on one leg for 30 seconds with the alternate leg raised in front of the individual's six inches off the ground. The accused is to mentally count to 30 seconds and only then put their raised foot down. In this situation the accused put his foot down four times in the course of the 30 seconds.

11Constable Morin testified that he arrested the accused for having care and control of a motor vehicle while his ability to drive was impaired by a drug at 8:40 a.m.. Constable Morin read the rights to counsel to the accused and then subsequently cautioned him and gave him a Drug Recognition Evaluation Demand. The accused understood these demands and consented to them.

12Sergeant McDonald testified that the accused's behaviour was relatively consistent throughout the morning but that he was more alert when he woke up initially and then he was sluggish and subsequently fell asleep. Sergeant McDonald also testified that the accused fell asleep in the back of the cruiser in the very short ride from the location of the accused's car to the detachment. Constable McDonald also testified that he had not considered the issue of carbon monoxide poisoning when the accused exited his motor vehicle.

13Constable Morin testified that the accused was able to speak to duty counsel at the detachment by telephone. The accused gave a sample of his breath into an approved instrument after a demand was made of him. This breath sample determined that the accused did not have any alcohol in his blood. By 9:35 a.m. Constable Morin had demanded that the accused submit to an evaluation by himself that required further physical testing at the detachment.

14The accused was required to answer some questions which revealed that the accused's speech was slow and sluggish. The accused's eyes were red. The accused stated that he was colour-blind. Constable Morin conducted the same test with respect to the accused's eyes which again revealed no abnormalities apart from their redness. Constable Morin noted that the accused had a pulse of 60 beats per minute which was in the normal range. Once again, the accused was required to participate in the Romberg balance test, the walk and turn test, the one leg stand test and the finger to nose test. In addition, Constable Morin took the accused's pulse and made a visual examination of his arms, neck, nose and mouth. Constable Morin testified that the accused swayed front to back in the Romberg balance test and that he had a problem with the turn in the toe to heel test. Constable Morin noted that the accused put his foot down once in the one leg stand and that he missed high and low on the finger to nose test. Constable Morin noted that the accused's nose and mouth were clear and that his arms were also clear for any indication of intravenous drug use. Constable Morin noted that the accused's muscles were flaccid.

15Constable Morin completed the physical test of the accused at 10:10 a.m. At 10:20 a.m. Constable Morin made a demand of the accused for a sample of his urine which the accused complied with. This sample was sealed and eventually sent to the Centre of Forensic Sciences.

16In cross-examination, Constable Morin testified that the accused's performance on the various tests was better than at the road side. Constable Morin testified that he did not know how long the accused was in his motor vehicle with the engine running and the windows up. Constable Morin also testified that he had never dealt with the issue of carbon monoxide poisoning before.

17Constable Morin introduced the results of the urine analysis of the accused from the Centre of Forensic Sciences. Constable Morin conceded that the drugs that were detected in the accused's urine sample could have been in his body for some extended period of time.

18Exhibit #3 in this trial is the report from the Centre of Forensic Sciences relating to the accused's urine sample. Exhibit #3 made the following findings with respect to that urine sample.

Item	Description	Results
1	Urine 2G37106	Clonazepam detected Cocaine: detected Benzoylecgonine: detected Diphenhydramine: detected Fentanyl: detected Morphine: detected Oxazepam: detected Carboxytetrahydrocannabinol: detected Tetrahydrocannabinol: not detected No other significant findings by an opioid screen No other significant findings by a benzodiazepine screen No other significant findings by a GC and GC-MS screen

19Exhibit #3 in its conclusion also states the following:

"1. The detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration. Urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time, since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug, or drug effects."

20Constable Morin acknowledged based on his training that he was aware of the general effects of a number of drugs but his specific knowledge of the effects of certain drugs was limited. He testified he knew that the drug Clonazepam was a depressant and affected the central nervous system. Typically it causes the pulse of an individual to go down. He was aware that cocaine was a stimulant and had the reverse effect namely, that an individual's pulse generally went up. These would have a counter balancing effect on one another.

21The author of exhibit #3, namely, Marie Elliot, did not testify at the trial. Marie Elliot is a Forensic Scientist and a Toxicologist.

22The accused elected not to testify at his trial.

Analysis and Findings

23Mr. Conron is presumed innocent. Before he can be convicted of having care and control of a motor vehicle while impaired by a drug, the Crown must establish beyond a reasonable doubt all of the essential elements of the offence.

24In the conclusions in Exhibit #3, the author in paragraph one quotes that urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time, since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug or drug effects. The Criminal Code has identified that it is critical to identify the quantity of alcohol in an individual's bloodstream as well as the timing of that quantity of alcohol in an individual's bloodstream in order for there to be a conviction under s. 253 (b) of the Criminal Code. The Crown enjoys certain presumptions under s. 258 of the Criminal Code with respect to samples of breath analysed by an approved instrument. There are no such presumptions with respect to the evidence with respect to drug recognition expert testing or the report of a toxicologist from the Centre of Forensic Sciences.

25In the case before the court, we have the evidence that the accused had a number of different drugs which were analysed in his urine sample and no indication as to the quantities of those drugs or the effects of those drugs on the accused's ability to drive a motor vehicle. Although I have mentioned the issue of carbon monoxide poisoning that was raised in cross-examination, there was no evidence in this case that the accused suffered from carbon monoxide poisoning. We have the subjective determination of Constable Morin as an evaluating officer that the accused was impaired by the consumption of drugs based on Exhibit #3 and the accused's performance on the physical co-ordination tests.

26I find that there was a lack of evidence at this trial as to whether or not poor performance on the physical co-ordination test was strong evidence of impairment to operate a motor vehicle as a result of consumption of drugs or if they were equally consistent with an individual who had either poor balance or poor physical co-ordination whether they had a drug in their bloodstream or not.

27While I acknowledge that the observations of Constable Morin could be considered consistent with impairment by a drug, I must also consider evidence, or lack thereof, which might tend to show that Mr. Conron was not impaired at the time. In this regard I note that there is no evidence of bad driving. I acknowledge that the accused did not park his vehicle well in the parking lot of a convenience store but there was no evidence adduced as to his previous bad driving. It is clear that the accused was extremely tired which is consistent with why he may have performed poorly on the physical co-ordination test. The accused after conducting the roadside Standard Field Sobriety Test fell asleep in the short drive from the scene to the police detachment. I have noted that the accused passed various tests including the Horizontal Gaze Nystagmus Test, the Vertical Gaze Nystagmus Test, examination of his pupil sizes under various light conditions, and a normal pulse reading. I note that the accused performed better at the police detachment than at the roadside and that there was no evidence led apart from the physical co-ordination test as to the accused's ability to walk in and around the police detachment.

28When I consider the totality of the evidence, particularly the lack of any expert evidence on the issue of the impact of the drugs found in the accused's urine sample, I am left in a reasonable doubt as to whether the Crown has met its burden of proof.

29There will be a finding of not guilty.

The Honourable Mr. Justice G. Radley-Walters