Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
Michael Murdoch and Neil Dietrich for the Crown
— And —
Paul Martin Allen
John Abrams, for the Defence
Heard: April 7th and 9th, May 14th and June 11th, 2015
MCKERLIE J.:
Charges
1As a result of events that occurred at approximately 6:30 pm on August 16, 2014, Paul Martin Allen is charged with four offences:
Operating a motor vehicle while his ability to do so was impaired by a drug, contrary to s. 253(1)(a) of the Criminal Code.
Dangerous operation of a motor vehicle, contrary to s. 249(1)(a) of the Criminal Code.
Unlawful possession of Cocaine, a Schedule 1 substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act.
Failing to comply with the condition of his April 28, 2014 Officer-in-Charge undertaking that required him to abstain from drugs, except in accordance with a medical prescription, contrary to s. 145(5.1) of the Criminal Code.
2The accused, Paul Martin Allen, pled guilty to the charges of unlawful possession of cocaine and failing to comply with the Officer-in-Charge undertaking.
3The impaired driving and dangerous driving charges proceeded to trial. In order to accommodate the schedules of counsel and expert witnesses, the trial was scheduled on April 7th and 9th, 2015 and continued on May 14, 2015 and June 11, 2015.
Issues
4Time, date, place and identity are not in dispute. Mr. Allen admits that he was driving a cube van, which crossed the centre line on Road 119 and forced oncoming vehicles off the road at approximately 6:30 pm. Mr. Allen admits that he was still operating the cube van when he was stopped by Constable Morissette on Mornington Street as he entered the City of Stratford at 6:37 pm.
5There is no issue respecting reasonable and probable grounds for arrest, the validity of the demand for the drug evaluation pursuant to s. 254(3.1) of the Criminal Code or the validity of the demand for a urine sample pursuant to s. 254(3.4) of the Criminal Code.
6The defence concedes that Mr. Allen showed obvious signs of impairment at the roadside and during the subsequent drug evaluation by Constable Jardine. Defence counsel submits that there is no way to reliably determine whether such impairment was caused by drugs, exhaustion, hypothermia, dehydration or a combination of some or all of those factors.
7As to the drugs found in Mr. Allen's urine sample, defence counsel submits that there is no evidence respecting when the drugs were taken, the amount consumed or whether the drugs were still psychoactive at the time of driving. Defence counsel emphasizes Mr. Allen's testimony that the last drug he consumed was cocaine at approximately 8:00 pm the previous evening.
8On the dangerous operation charge, defence counsel submits that while the driving in question was objectively dangerous, the Crown has not proven beyond a reasonable doubt the requisite mens rea of a marked departure from the standard of care that a reasonable person would exercise in the accused's circumstances. Defence counsel emphasizes that the mens rea for dangerous driving cannot be inferred simply from the fact of driving which was objectively dangerous.
Evidence
9The crown's case consisted of:
The testimony of Mike Tovell, whose vehicle was forced off the road by the accused's cube van;
The testimony of Rodney Golds, whose vehicle was also forced off the road by the accused's cube van;
The testimony of the investigating officer, Stratford Police Service Constable Morissette.
An admission that Stratford Police Service Constable McMillan, who conducted the Standard Field Sobriety Test at the roadside, noted at the beginning of his 5:00 pm shift "weather: rain" and did not make any note about Mr. Allen admitting to the consumption of a drug.
The testimony of Stratford Police Service Constable Jardine, who is certified as a drug recognition expert by the International Association of Chiefs of Police. Constable Jardine conducted the drug evaluation to determine whether the accused's ability to operate a motor vehicle was impaired by a drug pursuant to s. 254(3.1) of the Criminal Code. The Drug Influence Evaluation form was filed as Exhibit "4";
The testimony of Dr. Marie Elliot, a forensic scientist at the Centre of Forensic Sciences, who testified respecting the pharmacological and toxicological effects of drugs on the human body. Dr. Elliot's November 13, 2014 Report respecting the drugs detected in Mr. Allen's urine sample was filed as Exhibit "7".
Mike Tovell
10The first crown witness, Mike Tovell, was an off duty police officer employed by the Guelph Police Service. He was driving his family home on Road 119 after his eleven year old daughter's soccer tournament in Stratford. It was 6:30 pm. The sky was overcast, but the paved road was dry. The road was flat and straight with one lane in each direction.
11Mr. Tovell was driving a large pickup truck in the northbound lane. He was following a small blue car and could see over the top of that car. His friend, Rodney Golds, who was also on his way home from the soccer tournament with his wife and children, was driving the vehicle directly behind the Tovell pickup truck.
12As Mr. Tovell was driving northbound on Road 119, he saw a large cube van approaching in the southbound lane. His attention was drawn to the cube van because it started drifting across the centre line. At that point, the cube van was a few hundred meters away. Mr. Tovell expected that the driver would correct himself. Mr. Tovell testified that he was on his horn for a good five seconds, hoping that the driver of the cube van would make a correction. However, the southbound cube van continued to come into the northbound lane of traffic.
13Mr. Tovell testified that the southbound cube van kept drifting more and more across the centre yellow line so that it was now fully in the northbound lane and approximately 20 meters in front of the blue car ahead of the Tovell pickup truck. At that point, the blue car pulled onto the northbound gravel shoulder to avoid being struck by the oncoming cube van.
14The driver of the cube van then corrected himself a little bit such that now the cube van was head on, heading directly into the path of the Tovell vehicle rather than toward the northbound gravel shoulder. Mr. Tovell described it as a minor adjustment which brought the cube van directly into the path of his pickup truck. Prior to the correction, the cube van had been closer to the northbound gravel shoulder. In Mr. Tovell's words, "It was more towards the gravel when the blue car made its decision to go to the gravel. It then corrected itself a little bit and came directly into my path".
15The cube van was some 30-50 meters from the Tovell vehicle. It was still travelling an estimated 90 to 100 kph and at no point did Mr. Tovell see any signs of braking by the driver of the cube van.
16Mr. Tovell described making a split second decision. The large cube van was now right in front of him, fully in the northbound lane. He could not see what traffic, if any, was behind the cube van. There was no room on the northbound shoulder because of the blue car. He made a split second decision to enter the southbound lane and pull over on the southbound gravel shoulder. Mr. Tovell testified that had he not pulled into the oncoming southbound lane of traffic, his pickup truck would have been struck head-on by the cube van or would have been forced into the northbound ditch. There was no room for him to pull his pickup truck onto the northbound shoulder because the blue car had just pulled off to the shoulder to avoid being struck by the cube van. Therefore, Mr. Tovell hit the brakes and swerved to the left toward the southbound shoulder.
17Mr. Tovell testified that when he made the quick decision to go left, the cube van was really close to his pickup truck. He was afraid that the cube van would strike the rear passenger side of his truck where his daughter was sitting.
18Once he got his pickup truck onto the southbound shoulder, Mr. Tovell looked back and saw that Mr. Golds had made the same decision and had followed him into the southbound lane and onto the southbound gravel shoulder.
19Mr. Tovell observed that the cube van was now travelling southbound on the northbound gravel shoulder with its right rear indicator light flashing on the passenger side. The driver of the cube van did not stop and continued southbound along the northbound shoulder. Mr. Tovell watched for several seconds and estimated that the cube van travelled several hundred meters on the shoulder of the road.
20Mr. Tovell's immediate concern was to make sure that the other drivers and passengers were okay. He described the situation as pretty scary. His wife and children were in tears. After checking the well-being of the occupants of the other vehicles, Mr. Tovell made a u-turn and proceeded southbound on Road 119 while his wife called 911. He testified that it is a long, straight, flat road and he could see the cube van still proceeding southbound a kilometer and a half ahead of him. By that point, the cube van was back in the proper lane. However, the cube van's right indicator light was still flashing. Due to other traffic, Mr. Tovell lost sight of the cube van as it entered the city limits. As he continued into Stratford, Mr. Tovell saw that the cube van had been pulled over by the Stratford police.
21On his way home, Mr. Tovell returned to the scene of the incident and inspected the area. He saw marks on the gravel shoulder indicating that the cube van had continued some 300-500 meters southbound on the north gravel shoulder. He also observed "C" cuts in the gravel, which indicated 4 different attempts by the driver of the cube van to get back onto the roadway.
22Under cross examination, Mr. Tovell confirmed that his attention was drawn to the cube van when the driver started drifting across the yellow line. He confirmed that the cube van kept slowly moving into the northbound lane, it was not a hard swerve. The only slight correction was when the blue car pulled onto the gravel shoulder. It was a quick correction away from the path of the blue car as the blue car pulled onto the shoulder.
23Mr. Tovell confirmed that the cube van actually went onto the northbound shoulder, but he did not know whether all four wheels of the southbound cube van left the travelled portion of the northbound lane. He did not think the shoulder was wide enough to support the large cube van and believed that two wheels were on the gravel when he saw the cube van travelling southbound on the northbound gravel shoulder. He did not see the cube van's attempts to get back on the paved roadway. When he looked back after checking that Mr. Golds' vehicle was okay, Mr. Tovell noticed that the cube van was on the shoulder and its turn signal was on. As he put it, "I remember it flashing almost instantly". He did not see the indicator light on as the cube van approached him.
24Mr. Tovell confirmed that once the cube van was back in its proper lane as it proceeded toward Stratford, he did not notice any other difficulties with the driving.
25When asked if what he observed of the van drifting across the yellow line and then making a last second correction would have been consistent with a driver who had fallen asleep and woke up at the last second, Mr. Tovell replied that it was quite possible. However, he also stated that when he blared the horn, it did not cause the driver of the cube van to correct himself or wake up at that point.
Rodney Golds
26The second crown witness was Rodney Golds, who was the driver of the vehicle directly behind the Tovell pickup truck. Mr. Golds testified that he was driving home from the soccer tournament when all of a sudden the vehicles ahead of him swerved to the right and to the left and he saw the cube van approaching him in the wrong lane. As he put it, "There was a vehicle approaching in my lane and I had to veer off to avoid a collision". He did not see the cube van until the Tovell pickup truck veered out of the way, moving left into the oncoming lane of traffic. Mr. Golds' vehicle was approximately 2 car lengths behind the pickup truck. At that point, the cube van was in his lane and coming at him straight on, approximately a car length ahead of him. Mr. Golds veered into the oncoming lane to avoid the collision and stopped his vehicle on the gravel shoulder of the southbound lane. He estimated that he was driving approximately 85 kph and the cube van was travelling at least that speed.
27When asked to estimate how close the cube van came to his vehicle, Mr. Golds testified. "It felt within inches. It was close". After stopping his vehicle on the gravel shoulder, Mr. Golds immediately turned around and saw the cube van still travelling down the opposite side of the highway, on the shoulder of the road. He thought at least two wheels of the cube van were on the gravel shoulder.
28Under cross examination, Mr. Golds confirmed that he first noticed the cube van when the Tovell pickup truck swerved out of the way. He confirmed that he only had time to react and did not have time to think or use his horn.
Constable Morissette
29The third crown witness was the investigating officer, Stratford Police Service Constable Morissette, who was on uniform patrol duty and operating a marked police cruiser. At 6:34 pm, Constable Morissette was dispatched to investigate the driving complaint involving the cube van. At approximately 6:37 pm, the officer observed the cube van as it came into the City. When the cube van reached her location, she activated her emergency lights, made a u-turn and pulled in behind the cube van. When the cube van did not stop immediately, the officer activated her sirens. The cube van travelled another block or two and then pulled over.
30Constable Morissette exited her police cruiser and approached the driver's side of the cube van. The driver's side window was only slightly open. The accused, Paul Allen, was the driver of the cube van. He appeared dazed and disoriented. He did not appear to be aware that she was a police officer or that she was conducting a traffic stop.
31Constable Morissette testified that she repeatedly had to ask Mr. Allen to open the window. After 30-60 seconds, he complied with the request. As the officer put it, "It almost appeared as though it needed to sink in that I was a police officer and directing him to open up his window to explain the reasons for my stop".
32Constable Morissette testified that she told Mr. Allen that she had stopped his vehicle in relation to a driving complaint. She requested his driver's licence, ownership and insurance. By that time, Constable McMillan had arrived on the scene and was speaking to the passenger.
33Constable Morissette testified that she had to explain to Mr. Allen the reason for the stop and her request for documentation several times. Mr. Allen then pulled out a green file folder and fumbled through the documentation in the folder. She described Mr. Allen as confused or dazed. The officer saw the driver's licence in the folder, but Mr. Allen kept fumbling through the documents.
34Mr. Allen did not appear to know where he was, so the officer asked him, "Do you know where you are now?" Mr. Allen thought he was in Kitchener and, at one point, said he thought he was on the 407. He was rambling and appeared confused. The officer noticed that Mr. Allen's speech was very slow and slurred, that his eyelids were droopy and his pupils were dilated. As she put it, "He didn't appear right", but she did not detect the odour of alcohol.
35After obtaining Mr. Allen's driver's licence, the officer asked him to exit the vehicle. Mr. Allen hung onto the driver's side door and steering wheel to steady himself as he exited the cube van. His pants were undone and he stumbled when he got down to the ground. For safety reasons, the officer asked Mr. Allen to walk over to the sidewalk. He did so in a very slow and deliberate fashion. He was unsteady and did not walk in a straight line. He was cooperative, but continued to appear confused or dazed.
36Constable Morissette testified that she believed that Mr. Allen appeared to be under the influence of drugs. She did not detect the odour of marijuana, but testified that she seemed to recall a conversation about Mr. Allen smoking a marijuana joint sometime that day. The officer did not record that conversation in her notes, nor did Constable McMillan who by that time had arrived on the scene. I place no weight on that somewhat vague recall of a conversation which was not recorded in either officer's notes.
37Constable McMillan conducted the Standard Field Sobriety Test at 6:50 pm. Based on those results and her own observations, Constable Morissette formed the requisite reasonable and probable grounds for arrest and made the demand for a drug evaluation pursuant to s. 254(3.1) of the Criminal Code.
38Mr. Allen was placed under arrest at 6:54 pm and given his rights to counsel, caution and the drug evaluation demand. Mr. Allen was handcuffed, searched and placed in the rear of the police vehicle. He stated, "I'm not drunk, I haven't had anything". Constable Morissette noticed that his speech continued to be slow and slurred. He was transported to the police station. Given his slow and unsteady movements, the officer assisted him walking up the stairs to the booking area.
39At the station, Constable Morissette searched Mr. Allen incident to arrest. As she was peeling down his socks, a glass drug pipe fell out of his right sock and fell to the ground. Mr. Allen immediately stated, "I don't know where that came from. That's not mine". The pipe had residue in it. Accordingly, the officer also placed Mr. Allen under arrest for unlawful possession of a controlled substance, which she believed was cocaine. It is not in dispute that the residue was analyzed and found to be cocaine residue.
40After exercising his rights to counsel, the officer noticed that Mr. Allen's condition appeared to be deteriorating slightly. He became very dozy and tired. His speech continued to be slurred. He fell asleep when talking on the phone to counsel. She observed that he was slumped over in his chair and was not talking on the phone. The officer knocked on the door and Mr. Allen woke up. The officer provided her grounds for arrest to Constable Jardine, the drug recognition officer, and turned custody of Mr. Allen over to Constable Jardine to conduct the evaluation to determine if his ability to operate a motor vehicle was impaired by a drug.
41Under cross examination, Constable Morissette confirmed that prior to the traffic stop, she observed the cube van in motion for ½ to ¾ of a kilometer. She did not observe any difficulty with the driving during that brief period. Mr. Allen was slow to react to the emergency lights and siren, but did stop his vehicle shortly after she activated the siren. The officer confirmed that in speaking to Mr. Allen at the roadside she had the sense that he did not know that he was in Stratford.
42Constable Morissette confirmed that Mr. Allen's pants were undone and he appeared somewhat disheveled, but she did not recall if his clothes, which she described as typical work clothes, were damp. She did not recall if his hair was wet or dry.
43When asked whether physical exhaustion would explain Mr. Allen's impaired condition, the officer testified that exhaustion might have been a part of his condition, but not without some drug or substance. Constable Morissette confirmed that she found methadone prescriptions among the paperwork in Mr. Allen's file folder.
Constable Jardine
44The fourth crown witness was the Evaluating Officer, Stratford Police Service Constable Jardine, whose qualifications to provide opinion evidence are not in dispute on this trial. In July 2010, Constable Jardine was certified as a Drug Recognition Expert by the International Association of Chiefs of Police and has re-certified until July, 2016. He completed 21 drug recognition evaluations prior to conducting the evaluation of Mr. Allen.
45Constable Jardine testified that he uses a classification tool referred to as a "Matrix" (Exhibit "2") to determine which category or categories of drugs that a subject is under the influence of at the time of the evaluation and a Pupilometer card (Exhibit "3") which also contains a summary of the 12 Step Drug Evaluation and Classification Program.
46In his testimony, Constable Jardine described the steps he followed in conducting the drug evaluation of Mr. Allen. He started the evaluation at 8:05 pm and finished at 9:05 pm. He recorded his findings on the Drug Influence Evaluation Form, which was filed as Exhibit "4". The evaluation was also videotaped. The DVD of the video was filed as Exhibit "5". The crown acknowledged that the audio quality is very poor as is position of the camera and indicated that steps have since been taken to improve sound quality and adjust the camera position for future evaluations.
47In summary, Constable Jardine's testimony respecting the 12 step process by which he evaluated Mr. Allen was as follows:
1. Breath Alcohol Test: As there was no indication that Mr. Allen had alcohol in his body, the officer skipped Step 1, which is the Breath Alcohol Test.
2. Interview of Arresting Officer: Constable Jardine was satisfied that there were grounds for arrest and the drug evaluation demand.
3. Preliminary Examination: The officer conducted an interview of Mr. Allen and made an initial assessment of his condition and appearance. Constable Jardine observed that Mr. Allen's eyes were bloodshot and watery. His pupils were equal in size and he was able to track a moving object with both eyes. Mr. Allen's eyelids were droopy and he appeared to be having a hard time keeping his eyes open. He had poor coordination and his movements were slow. Mr. Allen was very cooperative, but on several occasions appeared to be falling asleep. When the officer asked for his middle name, Mr. Allen gave his birthdate. Mr. Allen complained that he was tired and cold. Mr. Allen reported that the only thing he had to eat that day was candy floss at about 4:00 pm. As to beverages, Mr. Allen stated that he consumed tea, milk and water and that the last beverage he had consumed was in the morning. Mr. Allen believed it was 7:00 pm. The correct time was 8:05 pm. Mr. Allen did not report any medical conditions, but did indicate that he was under the care of a doctor. He was not able to provide a reason or when he had last been seen by a doctor. Mr. Allen advised that he was currently taking some prescription medications, including methadone, which was prescribed because of his past history of heroin use. He was also taking prescription Seroquel and Ativan for anxiety and to help his sleep. He did not know when his last dose was or how much he had taken. When asked when he last took methadone, Mr. Allen replied "yesterday". The officer noted that Mr. Allen's speech was slurred, low, raspy and hard to hear at times. His face was pale and his breath was stale. He was swaying from side to side and back and forth in a circular motion. The officer also took his initial pulse, which at 68 beats per minute was within the normal range.
4. Eye Exam: Constable Jardine described nystagmus as an involuntary jerking of the eye. He had to remind Mr. Allen to keep his eye on the pen during the test. At times, Mr. Allen lost his focus on the pen and looked at the officer instead. Mr. Allen was swaying continuously during the test. Constable Jardine determined that Mr Allen had distinct and sustained horizontal gaze nystagmus in both eyes, being a lack of smooth pursuit as he tracked the movement of the pen. If a subject had not consumed drugs or alcohol, the officer would not expect to see nystagmus unless there was a pre-existing medical condition which would be very rare. Mr. Allen did not display vertical gaze nystagmus. The lack of convergence test was conducted to determine if Mr. Allen's eyes are able to converge or "go cross-eyed". Mr. Allen's eyes were not able to converge. His right eye was able to follow the pen, but his left eye just went straight down.
5. Divided Attention Tests: This consists of four tests:
a. Modified Romberg Balance Test: During which Mr. Allen was swaying significantly from side to side and front to back. When estimating the passage of 30 seconds, Mr. Allen stopped counting at 20 seconds, which was 36 seconds in real time. When he continued to 30 seconds, the total real time elapsed was 50 seconds, well outside the normal range of 25 to 35 seconds. In other words, he had a slow internal clock.
b. Walk and Turn Test: During which the evaluator looks for eight clues that would indicate impairment by drugs. During the instruction stage, Mr. Allen lost his balance several times and eventually gave up and stood off to the side, not in accordance with the instructions. When taking the nine heel to toe steps in a line, he missed touching his heel to toe at one point. During the turn, he stepped off the line and did not complete the turn as instructed. He also raised his arms for balance contrary to the instruction to keep his hands down at his sides at all times. He also touched the wall for balance. During the test, Mr. Allen complained that he was cold and asked for warmer clothes. He expressed concern about only wearing socks during the test. Constable Jardine testified that he would expect that a person not impaired by a drug would be able to follow instructions, complete the test without asking for additional instructions, not raise their arms for balance, not step off the line, complete the turn properly and consistently touch their heel to their toe.
c. One Leg Stand Test: During which Mr. Allen swayed when trying to balance, used his arms to assist with balance, and put his foot down on a number of occasions because he was losing his balance. He had to be told to lift his foot and continue on a number of occasions. He touched the wall for balance at some points. Constable Jardine testified that people who are not under the influence of drugs are able to stand without raising their arms for balance, do not need to touch the wall for balance and are able to keep their foot in the air and stand straight without swaying.
d. Finger to Nose Test: On all six attempts to touch the tip of his nose, Mr. Allen was unsuccessful. He touched various spots on his face between his chin and the bridge of his nose. After every attempt, he had to be reminded to put his hand back down to his side. On his first two attempts, Mr. Allen touched his chin, not his nose. On the next two attempts, he touched between his lip and his nose. On the fifth attempt, he touched the bridge of his nose and the sixth attempt, the side of his nostril. Constable Jardine testified that people who are not under the influence of drugs are able to touch the tip of their nose and remember to return their hand to their side.
6. Clinical Indicators and Second Pulse: Mr. Allen's temperature was 35.5 degrees Celsius, which was a full degree below the normal range, which is 37 Degrees Celsius plus or minus .5 degrees. His blood pressure was 118 over 68, which was below the "normal range" of 120 - 140 millimeters of mercury over 70 - 90 millimeters of mercury. His second pulse was 60 beats per minute. The normal range is 60 - 90 beats per minute.
7. Dark Room Checks of Pupil Size and Ingestion Examination: Constable Jardine used the Pupilometer to assess Mr. Allen's pupil size in three different lighting conditions. Mr. Allen's pupil size was within the normal range in normal room lighting, near total darkness and direct light. He also examined Mr. Allen's nasal area and oral cavity and found no abnormalities.
8. Check for Muscle Tone: Constable Jardine assessed Mr. Allen's muscle tone as flaccid.
9. Check for Injection Marks and Third Pulse: The officer testified that he observed old track marks or old injection sights on Mr. Allen's right arm. The third pulse was 64 beats per minute, which was in the normal range.
10. Interview, Statements and Other Observations: During which Mr. Allen confirmed his use of Seroquel, Ativan, methadone, acetaminophen and hydromorphone. Mr. Allen indicated that he had used hydromorphone two weeks ago and it was still "probably in my system". He was not sure about the time or dose of the other medications. He indicated that he had taken them at home in Hamilton. Mr. Allen complained of being tired and cold. The officer described Mr. Allen as generally being "on the nod", meaning that he presented as having a very difficult time staying awake and having a very hard time keeping his eyes open, yet still heard what was going on around him and was relatively quick to respond when something was said. During the interview, Mr. Allen acknowledged that while he was driving, he was swerving on the road and that his passenger told him to pull over and rest.
11. Opinion of Evaluation: Constable Jardine testified that based on his observations, he determined that Mr. Allen was under the influence of two categories of drugs: Central Nervous System Depressants and Narcotic Analgesics. It was the officer's opinion that both categories of drugs were psychoactive at the time, meaning that both were affecting Mr. Allen's body at the time of the evaluation. In explaining how he reached this conclusion, the officer reviewed the results of the first 10 steps of the evaluation process and related his findings to the Matrix (Exhibit "2"). He also explained the impact when a person uses more than one category of drug or what is referred to as "poly-drug use". Constable Jardine testified that in his opinion, Mr. Allen's ability to operate a motor vehicle was impaired by drugs and he was not able to operate a motor vehicle safely at the time of the evaluation, which was completed at 9:05 pm. Mr. Allen's general physical condition and appearance was consistent throughout the evaluation.
12. Toxicological Sample: Having formed the opinion that Mr. Allen was under the influence of central nervous system depressants and narcotic analgesics and that his ability to operate a motor vehicle was impaired by a drug, Constable Jardine had the requisite grounds to make a demand for a urine sample pursuant to s. 254(3.4) of the Criminal Code. Mr. Allen complied and the urine sample was sent to the Centre of Forensic Sciences for analysis.
48Under cross examination, Constable Jardine confirmed that Mr. Allen told him about various drugs that he consumed and that Mr. Allen was not sure about when he consumed them. The officer confirmed that Mr. Allen did not make any admission of drug use on the date of the examination. Mr. Allen was not sure when he had last taken the drugs, but indicated that he had taken them in Hamilton.
49Constable Jardine confirmed that Mr. Allen indicated he had very little sleep over the past two nights and that Mr. Allen complained of being cold and tired during the evaluation. The officer indicated that the room and corridor in which the evaluation was conducted were quite warm and he was sweating as he conducted the evaluation on Mr. Allen. He did not see Mr. Allen shaking or shivering. The officer did not recall Mr. Allen's clothes being visibly wet or Mr. Allen complaining that his clothes were wet. He did recall Mr. Allen saying that his shoes were wet and that is why he had difficulty with the roadside sobriety tests. When the video was played, the officer confirmed that Mr. Allen could be heard asking for warm clothes and saying that "These are my work clothes and they are soaked".
50The officer confirmed that he noted the weather in his notebook, which at 6:45 pm was cloudy. There had been some light rain earlier that day and the temperature was 18 degrees.
51When asked if Mr. Allen looked physically exhausted, Constable Jardine testified that he looked "on the nod", which is a common symptom of a narcotic analgesic drug. He agreed that it could be possible that it was also a symptom of a person suffering from exhaustion.
52Constable Jardine testified that his opinion as to impairment was based on the drug evaluation tests, the evidence provided by the arresting officer and Mr. Allen's general behaviour, attitude and physical coordination while he was in custody. The officer explained that he would not be able to formulate an opinion unless there was an agreement between the clinical signs and the signs of the physical testing. He testified that if the symptoms he saw were attributable to something other than drugs or alcohol, he would not be seeing the agreement between the clinical signs displayed and the physical testing.
53Under cross examination, Constable Jardine confirmed that cocaine was detected in the urine test and that cocaine is a central nervous system stimulant. The officer confirmed that he had no basis to conclude that a central nervous system stimulant was affecting Mr. Allen at the time of the evaluation. The officer explained that cocaine typically affects the body for a period between five and 90 minutes and agreed with defence counsel's characterization of cocaine as a fast acting drug.
54The officer confirmed that both methadone and oxycodone, which were detected in the urine analysis, are narcotic analgesics.
55The officer agreed with defence counsel's suggestion that for the drugs to have had an effect on Mr. Allen at the time of driving or at the time of the evaluation, Mr. Allen would have had to have consumed them within a 24 hour period. In the officer's words, "That would be a fair assumption".
56The officer agreed with defence counsel's suggestion that falling asleep could be a sign of exhaustion, but he would not attribute slurred speech to exhaustion. He agreed that paleness and bloodshot, watery eyes could be caused by exhaustion, but he would not attribute poor balance, poor coordination, a slow internal clock or muscle flaccidity with exhaustion. The officer emphasized that he is not a sleep expert or health professional and does not have training in those areas.
57Constable Jardine agreed that many people have difficulty crossing their eyes even when they are totally drug free and it is not uncommon to find unimpaired individuals who exhibit a lack of convergence. He agreed that having normal pupil size is a contra-indication to narcotic analgesic impairment, but explained that when multiple drugs are in a person's body, the outcome will vary depending on which drugs are active at the time.
58The officer testified that horizontal gaze nystagmus is not affected by fatigue to his knowledge. He testified that there are some extremely rare medical conditions that can cause nystagmus, but most people in that situation would not have a valid driver's licence because of the health implications. The officer was not aware of any studies that linked fatigue, lack of nutrition or hypothermia to nystagmus.
59The officer confirmed that Mr. Allen's body temperature, being a full degree lower than the low end of the normal range was a fairly low body temperature and agreed that Mr. Allen complained of being cold during the evaluation. From his training, the officer was not aware of any possible effects of low body temperature on the tests performed during the evaluation, but emphasized that the evaluation took place in a climate controlled room and corridor.
60The officer agreed that the urine test does not indicate how much of a drug was taken, when the drug was taken, or whether the drug was currently active in the person's body.
Dr. Marie Elliot
61The last crown witness was Dr. Marie Elliot, a forensic scientist with the Centre of Forensic Sciences, who provided opinion evidence respecting:
The absorption, distribution and elimination of drugs in the human body;
The pharmacological and toxicological effects of drugs on the human body; and
The impact of certain drugs on the ability to operate a motor vehicle.
62Dr. Elliot confirmed that the Centre of Forensic Sciences received a urine sample from Mr. Allen. The results of analysis are set out in Dr. Elliot's report dated November 14, 2014, which was filed on consent as Exhibit "7". As set out in the report, the following drugs or metabolites were detected in Mr. Allen's urine sample: cocaine, benzoylecgonine, dextromethorphan, lorazepam, methadone, and oxycodone. The finding respecting hydromorphone was inconclusive in that Dr. Elliot could neither confirm nor exclude the presence of hydromorphone in the urine sample. The results of analysis were qualified with the following statement in the report:
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.
63Dr. Elliot testified that it is not possible to take urine findings and relate them back to specific levels of impairment or whether impairment even existed at the time the sample was collected or any time prior to that sample collection.
64Dr. Elliot explained that the operation of a motor vehicle is a very complex task, which requires a significant amount of concentration, alertness and vigilance to be able to pay attention to the entire driving situation. The driver must monitor not only the internal environment of the vehicle, for example speed, direction and lane position, but also monitor the external environment, for example other vehicles, signage and pedestrians. Therefore, anything that can reduce a driver's ability to concentrate or remain alert and vigilant has the potential to cause impairment of the ability to operate a motor vehicle.
65Dr. Elliot further explained that a central nervous system depressant decreases or slows the function of the central nervous system. As such, it has an impact on the speed that a person processes information and a wide impact on the faculties required for the operation of a motor vehicle. It includes decreasing a person's ability to appropriately divide attention between all of the tasks which are required of a driver. For example, a person may tend to focus on one task to the detriment of the other tasks necessary to be performed. Also, central nervous system depressants have a tendency to increase a person's reaction time, particularly when the task is complex or the person is faced with a number of different choices for a particular stimulus or event.
66Dr. Elliot reviewed the findings in her November 13, 2014 report respecting the drugs detected in Mr. Allen's urine sample and timeframes within which she would expect to see the effects of the drugs after their last use.
67Dr. Elliot's report indicates that cocaine is a central nervous system stimulant primarily used as a drug of abuse. Benzoylecgonine is an inactive breakdown product of cocaine that can form both in the body and in collection tubes during storage. The effects of cocaine use may include excitation, euphoria, increased risk taking behaviour, blurred vision and hallucinations. A "crash" phase may follow a cocaine high during which time individuals can suffer from exhaustion and extreme fatigue.
68Dr. Elliot testified that cocaine is a fairly short acting drug and its primary effects are generally over within one to two hours of its use. She explained that when cocaine is used and primarily when it is used in a binge fashion, once a person stops administering cocaine they experience a crash or a come down effect from the stimulation they have experienced. The person might become very fatigued and dysphoric as opposed to euphoric.
69The next drug addressed by Dr. Elliot is dextromethorphan, which her report indicates is a cough-suppressant medication found in many over-the-counter preparations. At higher than therapeutic doses, this drug has some hallucinogenic properties, including euphoria, sedation, lack of coordination and dizziness. Dr. Elliot testified that if a person uses a therapeutic dose, there would be no significant effect in terms of sedation or the ability to operate a motor vehicle. A high dose will cause sedation, drowsiness and central nervous system depressant effects.
70The third drug addressed by Dr. Elliot is lorazepam, which her report indicates is a drug primarily prescribed for the treatment of anxiety disorders and belongs to the benzodiazepine class of central nervous system depressants. Effects that occur after use may include lack of muscle control, drowsiness, loss of consciousness, impaired judgment, impaired memory, confusion and dizziness. The effects depend on the concentration within the blood and the tolerance of the individual to the drug.
71Dr. Elliot testified that there are many studies examining lorazepam's impact on a person's ability to operate a motor vehicle. The effects have been well studied and lorazepam has consistently been shown to demonstrate impairing effects with respect to the ability to operate a motor vehicle. An important consideration is a person's tolerance. A person who frequently consumes lorazepam on a routine basis can develop tolerance to its sedating effects. Studies on chronic users who use their medications as prescribed have demonstrated that the levels of impairment are less and in some cases there is no demonstrated impairment.
72The fourth drug addressed by Dr. Elliot is methadone, which her report indicates is a drug prescribed for the treatment of opioid addiction and pain. Effects may include dizziness, drowsiness and stupor. The effects of methadone depend on the concentration within the blood and the tolerance of the individual to the drug.
73Dr. Elliot testified that it is an analgesic drug and also has central nervous system depressant effects. Methadone is also subject to tolerance. If people take methadone routinely in the prescribed manner, their bodies are able to compensate for the continual presence of the drug and, in those cases, they may not demonstrate impairment. If the prescribed dose increases, the apparent effects will begin again until the person is able to develop tolerance at that new dose. Dr. Elliot also explained that if a person adds another central nervous system depressant, then the apparent effects will appear again until their body has time to develop tolerance to the addition of the new drug.
74Dr. Elliot further explained that when a number of central nervous system depressants are added together, the person will experience an increase in the effects, over and above each drug on its own.
75The fifth drug addressed by Dr. Elliot is oxycodone, which her report indicates is a drug prescribed for the treatment of moderate to severe pain. Effects may include dizziness, drowsiness and stupor. The effects of oxycodone depend on the concentration within the blood and the tolerance of the individual to the drug.
76Dr. Elliot testified that oxycodone is an analgesic drug and a central nervous system depressant. In the drug evaluating classification, oxycodone and methadone fall within the category of narcotic analgesic. Oxycodone and methadone are commonly abused for their euphoric effects.
77In summary, Dr. Elliot testified that all of the drugs detected, with the exception of cocaine, have or have the potential to have central nervous system depressant effects. Cocaine, as a central nervous system stimulant, will not reverse the effects of the central nervous system depressants because they act in very different manners. Cocaine would reduce or counteract sedating effects and make a person feel more alert, but it would still have an impact on that person's risk taking or ability to respond appropriately to sudden events. One drug does not cancel out the other. It may counteract some of the effects, but other effects will remain regardless for each of the different types of drugs.
78Under cross examination, Dr. Elliot confirmed that many drugs can remain in the urine for a period of time after they have stopped having effects on the human body. She confirmed that she would expect the impairing effects of smoking a small amount of crack cocaine to last one to two hours maximum. The crash effect is more likely to occur after periods of binge use. The bigger the binge, the more significant the crash phase will be. After a single administration of cocaine, the crash phase would be very difficult to detect and be somewhere within 12 hours of the last use.
79Dr. Elliot testified that generally a ten times the normal therapeutic dose of dextromethorphan would produce impairing effects. As to how long those effects last, it depends on the individual because there is a genetic component to the elimination of dextromethorphan. In general, the duration is somewhere between two to six hours.
80Dr. Elliot testified that the effects of lorazepam last approximately eight to 12 hours depending on the individual. Some studies show some residual effects that last longer, but they would not be significant for the operation of a motor vehicle. She explained that the primary impairing effects of lorazepam are sedation and drowsiness. Over time, the body is able to adapt to having the drug present and a person is able to act in normal fashion even with that drug present.
81Dr. Elliot confirmed that Ativan is a common name for lorazepam. Seroquel, on the other hand, is an antipsychotic drug, that is also used in the treatment of bi-polar disorder. It is a drug that would have been found in the screening procedures used at the Centre of Forensic Sciences, but it was not detected in Mr. Allen's urine.
82Dr. Elliot testified that methadone is a drug which takes a long time for the body to eliminate, so there can be active effects and impairing effects somewhere up to about 12 hours. Given that the drug is used therapeutically, it is easy to study. Studies show that people can develop a tolerance to methadone and no longer demonstrate driving impairment when using a stable dose. It takes weeks or months for a tolerance to develop.
83As to the impairing effects of oxycodone, Dr. Elliot testified that it depends on the formulation that is used and how it is administered. Oxycodone is available in an immediate release formulation as well as an extended release formulation, formerly known as OxyContin, now known as OxyNeo. It depends if a person is taking the drug orally as prescribed or abusing the drug by, for example, crushing it. In general, the effects for the immediate release formulation would be present for three to five hours and for the extended release, 12 hours approximately, depending on the individual and provided it is taken orally as intended. Dr. Elliot also confirmed that Percocet is a brand name of oxycodone.
84Dr. Elliot explained that the term "psychoactive" means that a drug is having an impact essentially on the central nervous system. Dr. Elliot agreed with the suggestion that for any of the drugs found in Mr. Allen's urine to be psychoactive at 6:00 pm, he would have had to ingest them no earlier than 6:00 am that morning if the maximum duration was about 12 hours. Therefore, any drugs ingested prior to 6:00 am would be unlikely to still be psychoactive at 6:00 pm.
Defence Case
85The defence case consisted of the testimony of the accused, 33 year old Paul Martin Allen and the testimony of Dr. David Rosenbloom.
Paul Martin Allen
86Mr. Allen testified that he has been taking prescription methadone since March 2014. He stated that when he left his job driving a truck in Halton, he had "kind of a life crisis at that time and had a bit of a relapse" and thought methadone would be a good solution. He explained that his opioid dependency started in Vancouver in 2012. In Vancouver, he was taking heroin. When he came to southern Ontario, he substituted painkillers because heroin was not as readily available. The painkillers were not prescribed for him.
87Mr. Allen testified that on August 16, 2014, he was driving a large cube van, which contained inflatable amusement rides for festivals and parties. He had not worked regularly for the company since 2005, but picked up some sporadic work for a few weeks. He was hired to deliver the amusement rides, set them up and maintain them at the event. He did not know about the details of the event until he arrived at the warehouse to pick up the cube van that morning.
88Mr. Allen testified that he was scheduled to leave the warehouse in Oakville at 6:00 am, but did not end up leaving until closer to 7:00 am. As to his residence, Mr. Allen testified that he was living part of the time in Hamilton with a friend and the rest of the time with his parents in Oakville. As a result, he was doing a lot of travelling back and forth.
89On August 16, 2014, Mr. Allen drove from Hamilton to the warehouse in Oakville in his own car. He picked up the cube van containing the inflatable rides to take it to a private corporate event. He could not remember where the event was held, but recalled it was at a park.
90Mr. Allen testified that he had been having a very chaotic week. When asked to describe his activities on August 15th (the day before the incident) Mr. Allen replied:
I had spent the day relatively sober with the one exception where a friend and I did some drugs later on that evening. We spent some time at a friend's house and spent some time at my house. I then had an incident where a good friend of mine …has a drinking problem and he called me from a bar in East Hamilton saying the taxi driver would not pick him up because he was too intoxicated. I felt obliged to go pick him up.
91Mr. Allen testified that he received the call well after midnight, sometime between midnight and 2:00 am. He did not recall the exact time. This was on the same morning that he had to be at work at 6:00 am.
92Mr. Allen testified that he smoked crack cocaine earlier that evening, probably about 7:30 or 8:00 pm, in Hamilton at the house in which he resided with his friend Calvin. He could not remember Calvin's last name. When asked how much cocaine he had that day, Mr. Allen replied, "It was just a little bit. Probably about $40 worth. Nothing for a huge bender or anything". He estimated the amount to be just under half a gram. Mr. Allen testified that he and his friend Calvin both smoked the crack cocaine. They consumed all of it fairly quickly and used the glass crack pipe that the police subsequently found in his sock.
93Mr. Allen testified that he did not consume any other drugs before his arrest. As to his prior cocaine use, Mr. Allen testified that he used it sporadically over the last year, but not very often. He stated, "It's not something I devote all my time to seeking, it's just more of a social group thing".
94As to the dextromethorphan found in his urine, Mr. Allen testified that he was not feeling well that week and took one cold medication pill, but did not have any liquid cold medication in his house. He estimated that he took the medication either one or two days before August 15th.
95As to how the lorazepam got into his system, Mr. Allen replied, "I don't have a prescription for lorazepam. My mother does and when I would spend time at home, if I was suffering from anxiety or whatever, or insomnia, then she would give me one. She's given it to me on a few occasions".
96When asked if he remembered when he took lorazepam, Mr. Allen replied, "Not exactly. Like I said I was bouncing back and forth between the residence in Hamilton and my parents' residence in Oakville. Life was very chaotic for me at that point. I don't remember the exact date that I took the lorazepam, but it would have been at a time when I was with my parents in Oakville". He testified that it would have been on some date before he consumed the cocaine.
97As to methadone, Mr. Allen testified that he was not at an extremely high methadone dose because he did not want to become too dependent on methadone. He thought his dose at the time was somewhere between 40 and 60 milligrams. He testified that he takes the methadone every day, but sometimes misses doses because he is too busy or not able to get to the pharmacy. He added, "If I miss a day, it would be okay, I wouldn't be experiencing any withdrawals. If I missed two days I would usually be okay… if I missed three, then I would kind of be in trouble in that respect". When his lawyer pointed out that the prescription found by the police indicated ten milligrams, Mr. Allen replied, "I didn't know I was on such a low dose; that must have been one of my times to taper off".
98Mr. Allen testified that in the summer of 2014 he was attending a Methadone Clinic in Hamilton every week. He would have a dose there and renew his prescription. He sometimes picked up his dose at a pharmacy in Hamilton and sometimes in Oakville. It was a daily dose mixed in orange juice, which he drank in the presence of a pharmacist. As to whether he took a dose on the day he was arrested, Mr. Allen indicated that he would not have had time. He testified that his dose fluctuated and there were some repeated attempts to try and taper it off.
99As to oxycodone in his urine, Mr. Allen testified that he had taken a few Percocets that week as well. When asked how many and when, Mr. Allen replied, "I think that throughout that whole week I think it was just one day and I think it was two. Pretty sure". He testified that he did not take Percocet on August 15th. When asked how long before August 15th it was that he took the Percocet, Mr. Allen replied:
"I don't remember the exact day because it's not an event thing for me. … I've used drugs recreationally and casually so I don't recall the exact day. But I know I took some that week".
100Mr. Allen testified that when his friend Alex called from the bar between midnight and 2:00 am, he was just falling asleep. When asked if he had any idea how long he had been asleep, he replied, "It might have been an hour. It might have been two hours. I don't know. I dozed off a few times when I was watching TV".
101Mr. Allen testified that he was still wearing the street clothes that he had been wearing all day and left the house accompanied by Calvin. He stated, "Reluctantly I got in my car and drove to the bar. I don't remember exactly which bar it was. I remember I had to call him a few times to get him to redirect me because his instructions were not very clear".
102Mr. Allen indicated that when they got to the bar, Alex asked him to drop him off at his home in Stoney Creek. Alex fell asleep enroute. When they got to his house, it took a long time to wake Alex. When he finally did wake, Alex said he was too drunk to go into the house and his mom would kill him if he came home that intoxicated. Alex then asked Mr. Allen to take him to his girlfriend's house in west Hamilton. Alex again fell asleep in the car. They could not get a hold of his girlfriend and so Mr. Allen had to take Alex to a friend's house downtown. Mr. Allen stated, "It just turned into a really long series of shenanigans. I was pretty ticked off with him. … I can't leave him on the side of the road … so I took him to his friend's house. His friend came out and helped me carry him in. At this time it was probably 6:00 am in the morning and I was like oh, I gotta get to work".
103Mr. Allen testified that he then drove straight to work in Oakville. He already had his work boots and work clothes in his car. He asked Calvin to accompany him because he was late and was going to need an extra hand setting things up. Mr. Allen arrived at the Oakville warehouse at 7:00 am and picked up the cube van. He did not have any breakfast. He did not know when he got on the road in the cube van. Mr. Allen explained that the times given in his testimony are approximations and he cannot be certain they are the right time. In his words, "an hour, give or take".
104Mr. Allen drove the cube van to the site of the corporate event. He did not know how long it took to get there or where the event was held. He indicated that there was some confusion in that respect. His boss told him that the event was in the Kitchener-Waterloo area. Calvin dictated the directions from the back of the contract while Mr. Allen drove. Mr. Allen stated, "I guess the event ended up being closer to Stratford, I don't recall the name of the park".
105Mr. Allen described the work day as exhausting because it was raining off and on and he had to keep deflating the rides and then inflate them again when the sun came out. The client who rented the rides was agitated and angry with him. Mr. Allen testified that the day ended probably around 4:00 pm. It was difficult to pack up the rides because they were full of water. It took a lot longer to pack up and he did not remember the exact time he left the park.
106Mr. Allen testified that the only thing he ate was some candy floss in the morning when he set up the candy floss machine. He did not recall drinking anything that day. When asked to describe how he felt when he left the park, Mr. Allen replied,
"Physically I was very tired. Mentally I was agitated. One, because I was late for the event, two because I couldn't please the client. … I was also really agitated with the client because despite my protests I was kind of just pushed aside and they took one of the rides and just set it up in the rain regardless and then I had to deal with trying to roll this thing up afterwards. I was pretty mad about that. Physically, I was exhausted and agitated".
107Mr. Allen testified that he did not even have time to change from his street clothes into his work clothes and his work boots. He was wearing dress shoes instead of work boots and just some scruffy clothes he wears around the house. He indicated that by the time he finished, his clothes were soaking wet and dirty. When asked why he did not change into his dry work clothes for the drive home, Mr. Allen replied that it did not cross his mind. He was trying to get the cube van back to the warehouse in Oakville so it could be unloaded and set up for the next day.
108When asked to describe the driving incident involving the crown witnesses, Mr. Allen stated:
"I was more tired than I thought. When I left the site I was in a state of agitation and I was in a hurry to get back to the warehouse. I was wet and cold and I wasn't feeling very well. I suppose I must have dozed off while driving which I really regret. I didn't know I was that exhausted. I suppose when I had been sitting still in the truck for long enough, maybe my level of fatigue started to set in. …I didn't know because I wasn't feeling that, what's the word, unable to operate when I left the site".
109When asked how long he had been driving before dozing off and crossing the line, Mr. Allen indicated that it was not too long, probably between five and ten minutes. Mr. Allen testified that it had never happened to him before in his career as a truck driver. He stated, "I have driven tired, and been tired from work, but no, I have never been tired to the point where I've lost my ability to operate completely".
110When asked to explain when he realized something was wrong, Mr. Allen stated,
"I heard my friend Calvin scream "look out" and I realized I was on the other side of the road. So I swerved back into my proper lane and at that exact moment I realized I should probably get this truck off the road. I'm obviously too tired. At that point I had such a surge of adrenaline I was wide awake because I was scared. I scared the people on the other side of the road who had to swerve to avoid me. I scared myself. I scared my friend. I'm very, very thankful that nothing happened, that nobody was hurt, no property damage. I was just looking for a place to stop and my friend, Calvin, agreed with me whole heartedly that I should stop the truck and look for somewhere to stop and I was looking for an appropriate place to stop. Somewhere I could get a coffee or use the bathroom, splash my face or whatever. Figure out what my next move was going to be".
111When asked what he saw when he realized that he was on the other side of the road, Mr. Allen replied, "Headlights from the oncoming traffic and another vehicle that was over on the shoulder. I guess that it had swerved to avoid me. That's about it. … I just got back onto my side and tried not to have a heart attack and just carried on from there until I could find a place to stop".
112When asked if he knew whether his truck ever went onto the shoulder, Mr. Allen replied, "I believe it did, yes". He thought he had only two wheels on the shoulder, but he was not too sure. He added that he was in a state of panic and everything just happened so fast. He stated, "I just knew that my truck is not where it's supposed to be, you know, and I had to put it in the right position to avoid a collision".
113Mr. Allen testified that he did not remember hearing any car horns. He agreed that he had his turn signal on when he was getting back into his lane and then he had it on when he was looking for a place to stop. He estimated that he was pulled over by the Stratford police a couple minutes after the incident. In his words, "It wasn't long at all. It wasn't seconds, but it was a couple minutes, tops".
114Mr. Allen did not recall whether he drove through Stratford on his way to the event. He testified that his friend Calvin was dictating the directions to him and he followed those directions. Mr. Allen did know that when he left the park, he made a wrong turn and had to turn around and go the right way. He testified that he could not be sure of the route he took. He explained that he did not have time to prepare for the drive, so he just left it up to his friend Calvin to dictate the directions, both on the way to the event and on the way back from the event.
115When asked by defence counsel for an explanation for falling asleep at the police station and doing poorly on the balance and coordination tests, Mr. Allen replied,
"I naturally have poor coordination and poor balance. I am probably one of the world's least athletic people. I was extremely tired. At that point in time I was going through a lot of grief and stress. I hadn't been eating right. I hadn't been sleeping properly. I had a very disturbed night the night before. I hadn't been eating right that day. I hadn't had an opportunity to eat anything. I had not had an opportunity to have anything to drink. … I was shutting down".
116When defence counsel prompted Mr. Allen by saying "at one point on the video you talk about shivering", Mr. Allen replied, "Yeah, I was also very cold. I was feeling miserable. I was wet". When his lawyer asked if he was actually shivering, Mr. Allen replied:
"I can't recall if I was shivering all the time, but I remember it being freezing cold and I would assume that, you know, shivering would probably be a side effect of being that cold. But yes I was abnormally cold to the point where like I was vocalizing it to the officers that I was wet and I was cold".
117Under cross examination, Mr. Allen admitted that he did not remember what he ate the night before or if he ate anything after consuming the cocaine. He did not remember with any certainty how much cocaine he bought. He admitted that he did not remember at which bar he picked up his friend or which park he drove to on the day in question. He could not recall times. In general, he admitted that he had "a little bit" of difficulty remembering the details surrounding the events in question.
118Mr. Allen admitted that when he was driving down Road 119, he was agitated, he thought he was late, he thought he did not have time to take a break and was probably a bit distracted by the fact of being cold.
119As to why his pants were undone when he exited the vehicle, Mr. Allen testified that he broke the top button on his pants when he was rolling up one of the rides. Notwithstanding the broken button and the fact that his pants were wet, Mr. Allen testified that he had not considered changing into his dry work clothes. He stated, "Well I don't need a top button on my pants to operate the vehicle, right. I have been wet and cold driving a truck before, but not associated with this extended fatigue".
120Mr. Allen agreed that when he left Hamilton in the morning, his plan was to be back in Hamilton at some point when the day was over. When it was put to him that it made no sense for him to take along his crack pipe, Mr. Allen replied,
"That was a mistake. I didn't mean to bring it with me. It was just an oversight…that I still had that paraphernalia on me".
121Mr. Allen agreed that he must have had the glass crack pipe on him since 8:00 pm the night before. When asked if it remained in his sock the whole time, Mr. Allen stated, "I'm not too sure if it was always in my sock, but I had it on my person, that I can be certain of, yes". Mr. Allen denied that he smoked cocaine on August 16th.
122When pressed that it made no sense that he brought the glass pipe with him from Hamilton, Mr. Allen replied,
"I suppose you could criticize. That's a valid criticism, but I have many things in my pockets that I don't necessarily need. Sometimes I just overlook things as I get dressed and I have keys in my pockets or other items in my pockets that I overlook, right".
123Mr. Allen testified that he forgot that the crack pipe was on his person. When the crown suggested that the pipe was an important thing to overlook, Mr. Allen replied, "It is, yes, and I admit that my attitude with these things is a bit casual". Mr. Allen confirmed that what he meant by "these things" was drug paraphernalia. When it was suggested that his attitude toward drugs in general was a bit casual, he replied, "It has been in the past, yes, but I've been really taking steps to turn it around".
124Mr. Allen admitted he was aware that the combination of drugs he took can cause fatigue and he was advised not to operate heavy machinery and motor vehicles after taking the drugs. Mr. Allen denied taking any drugs on August 16th, being the date of the driving, and testified that the last drugs he took were on the night of August 15th.
125Mr. Allen admitted that he could not say with any certainty when he took the dextromethorphan or lorazepam. He was pretty sure he took methadone on August 15th, but admitted that he did not remember which pharmacy he attended. He reasoned that if he was home in Hamilton that day, he would have attended the Whitney Plaza pharmacy. When asked what time he attended the pharmacy, Mr. Allen replied, "Likely in the morning, or the afternoon. I don't recall exactly when I took it".
126Mr. Allen agreed that when he is taking prescribed methadone he is told to abstain from other drugs. When it was put to him that using cocaine while on methadone was a bad idea, Mr. Allen agreed that he had been advised not to combine those drugs. He realized that it could negatively impact him, yet decided to ignore that advice.
127Mr. Allen admitted that he could not remember what day he took the Percocets or how many Percocet he took.
128With respect to his description of having a chaotic week, Mr. Allen indicated that he was feeling run down and was not feeling well. He thought he was getting a cold. He was involved in counselling and some of the topics were upsetting to him, including his parents' health. He indicated that he was under a lot of stress. His best friend was in the army, stationed in a conflict zone.
129Mr. Allen admitted that he could not remember if he woke up in Hamilton or Oakville on August 15th. He did not remember whether he took methadone in the morning or the afternoon of August 15th. He thought it was probably in the morning as that is when he usually went to the pharmacy. The crown then showed Mr. Allen the prescription receipt filed as Exhibit "8", which showed a time of 4:55. When it was put to him that his recall was completely wrong, Mr. Allen replied, "In this case, yes".
130Mr. Allen then looked again at the prescription receipt and saw it was from an Oakville pharmacy, which is a 24 hour pharmacy. He testified that it was possible he attended that pharmacy at 4:55 in the morning, but it was likely 4:55 in the afternoon.
131When the crown suggested that in terms of being able to report what happened and when it happened, Mr. Allen was not able to help with that very well, Mr. Allen replied, "I'm not a huge help to you at all in this case, no, sorry".
132Upon further reflection, Mr. Allen testified that he did not think he would have been at the pharmacy at 4:55 am. He ultimately testified that he picked up the prescription in Oakville on the afternoon of August 15th. He then went to someone's house in Hamilton and obtained cocaine, which he consumed in Hamilton.
133As to exhaustion, Mr. Allen testified that he had stayed up all day and all night and then all day again. It was rainy and cold on August 16th and setting up and taking down the rides was exhausting. Staying up all night helping his friend was not only aggravating, but also exhausting. The following exchange then took place:
Q. You know very well, sir, that a tired driver is a dangerous driver, don't you.
A. Yes. Well, it depends on the degree of fatigue. I have to add there's tired and there's being, you know, so exhausted you can't operate. I've never been so exhausted that I can't operate before.
Q. Except on this occasion.
A. Except on this occasion, yes.
Q. And you had every reason to know that you were exhausted.
A. I had every reason to know I was very, very tired. I did not know I was exhausted to that degree that I couldn't operate.
Q. It was your word. To describe what you had done that day was "exhausting".
A. Yeah, it would have been exhausting. But as many people have to do exhausting tasks often, and so I have to operate the vehicle.
Q. You knew you had been up perhaps 36 hours by now.
A. Close to it.
Q. You knew you had a number of distractions, correct.
A. Yes.
Q. You knew you hadn't eaten.
A. Yes.
Q. You knew that was bad. That doesn't help you at all, does it.
A. No, it's not a help.
Q. And you knew that you hadn't had anything to drink.
A. Yes.
Q. And you knew that wasn't helpful, correct.
A. Correct.
Q. And you knew, by the time you set the vehicle in motion, you knew you were cold and agitated, correct.
A. Agitated and a little bit cold. I wasn't feeling too horrible that I couldn't function.
134Mr. Allen admitted that he did not know what route he took to get to the park or what route he took on the return trip. He was following the directions that his passenger, Calvin, was giving to him. Calvin was trying to read the instructions backwards and retrace the route they had taken that morning. On the way back, Calvin was telling him which way to go. Mr. Allen did not recall what other conversations they were having or if they were having any conversation on the way back.
Mr. Allen testified that his priority was to get the equipment back to the warehouse and he does not know what else he was thinking about at the time. He heard Calvin cry "look out". When asked if he was awake or asleep, Mr. Allen replied, "I must have dozed off". He indicated that it must have woken him up because he was awake very shortly afterwards to correct his course on the road.
135When it was put to Mr. Allen that he did not remember being on the shoulder of the road to any extent, Mr. Allen replied, "No, I don't recall being on the shoulder to much extent". Mr. Allen testified that he remembered seeing headlights in front of him because he was on the wrong side of the road. He admitted that he was completely on the wrong side of the road. He admitted that he was aware of the vehicle that was already on the gravel shoulder to his left.
136Mr. Allen testified, "You know what, I'm sorry. I'm not trying to be evasive, but I do have a lot of difficulty recalling exactly what happened. I just woke up. I knew I was on the wrong side of the road. I'd seen headlights in front of me. I'm pretty certain there was a car on my left. I think there might have even been a car on my right, I don't recall exactly".
137He also stated, "I just knew I was in the wrong lane and I had to get back over". Mr. Allen acknowledged that he knew it was a very dangerous situation.
138When it was put to him that he did not know what happened to the other vehicles, Mr. Allen testified that he could see in his rearview mirrors that there were some cars on the shoulder. After he corrected his course, he could see that it did not look like any collision had occurred. He agreed, however, that he could not say that with 100% certainty. Mr. Allen admitted that he did not know if there was another car off in the ditch.
139Mr. Allen testified that his priority was to stop the cube van and get it off the road. When the Crown put to him that is exactly what he did not do, Mr. Allen replied, "Not immediately, no. I was looking for an appropriate spot to stop it right. I didn't want to stop it right on the side of the highway". The following exchange then took place:
Q. You'd rather be driving down the wrong side of the highway than be stopped on the wrong side of the highway.
A. It wasn't my intention to be on the wrong side of the highway at all.
Q. You didn't brake at all, did you?
A. My training told me if I'm in a situation like that to not hit the brakes. I just steer in the direction that looks to be the safest.
Q. You didn't even let off the accelerator, you just continued along on the shoulder and then came back onto the highway and kept going, correct.
A. For a period, yes.
Q. Measured in not seconds, but minutes, correct.
A. Longer than a few seconds, but about a minute, maybe two at the most. You know I'm not even too sure.
140Mr. Allen testified that he corrected his course and at that point he was "flooded with adrenaline". He stated, "I was wide awake, my heart was pounding. I was terrified. My friend was terrified. I was certain I had just terrified those people. I looked in my mirrors ... There wasn't any collision because I would have noticed a collision and I would have heard a collision. That probably would have been the incident that had roused me if there was a collision. And I carried on looking for a place to stop".
141Mr. Allen admitted that he did not hear the horn honking for five second or at all.
142Mr. Allen's cross examination ended with the following exchange:
Q. You would have us understand drugs had nothing to do with this, it was merely exhaustion?
A. I was very tired, yes.
Q. You knew you were tired. No one had to tell you that.
A. I knew I was tired.
Q. You agreed with me several minutes ago that tired driving, especially to your degree, tiredness is dangerous, correct?
A. To that degree, I would have to agree with you. But I didn't know that I was that exhausted. I really didn't know.
Dr. David Rosenbloom
143The final trial witness was Dr. David Rosenbloom. His Curriculum Vitae was filed as Exhibit "9". In his May 11, 2015 report, filed as Exhibit "11", Dr. Rosenbloom described himself as a licensed pharmacist and a clinical professor in the Department of Medicine at McMaster University, where his duties include teaching about drugs and medicine to medical students and staff physicians.
144Dr. Rosenbloom's qualifications in the area of pharmacology were accepted on the consent of the Crown. Following a voir dire into Dr. Rosenbloom's qualifications, the Crown consented to the court receiving opinion evidence from Dr. Rosenbloom respecting horizontal gaze nystagmus on the basis that Constable Jardine was permitted to testify respecting horizontal gaze nystagmus in relation to the drug recognition evaluation. Although Dr. Rosenbloom provided opinion evidence respecting horizontal gaze nystagmus, I emphasize that it was on the basis of the Crown's consent and with limitations as to the weight to be given to such opinion evidence.
145The voir dire established that Dr. Rosenbloom's education, experience or training respecting horizontal gaze nystagmus was confined to a review of literature in the area, namely 6-8 articles, only one of which Dr. Rosenbloom brought with him to court because he did not want "to burden the court". The paper, filed as Exhibit "10", was written by Steven J. Rubenzer and Scott B. Stevenson and is entitled "Horizontal Gaze Nystagmus: A Review of Vision Science and Application Issues". It was published in the March 2010 Journal of Forensic Sciences. As set out in its abstract, "This article reviews the literature on smooth pursuit eye movement and gaze nystagmus with a focus on normative responses, the influence of alcohol on these behaviors, and stimulus conditions similar to those used in the HGN sobriety test."
146In his report filed as Exhibit "11", Dr. Rosenbloom indicated that in the DVD of Drug Evaluation, Mr. Allen clearly displays multiple instances of poor balance and coordination. He states:
"While I do not dispute the physical findings on the video, I am not sure attribution to the drugs he admitted consuming (or that were found in the CFS screen) is the only explanation for these findings for a number of reasons".
147Dr. Rosenbloom listed the following reasons and stated that "these considerations may need to be factored into the entire picture":
We do not know when he took the drugs or in what doses.
Tolerance usually develops to the impairing effects of central nervous system depressants (such as lorazepam) within a month or two.
Finding drugs in the urine is indicative of prior drug use and cannot be used to determine the effects, including impairment, at a given time.
Mr. Allen's temperature was 35.5 degrees Celsius and at this low temperature (normal 36.5-37.5) confusion and poor coordination can set in. While some drugs such as methadone and oxycodone can lower body temperature, unfortunately there is simply no way to know whether his low body temperature on that day was the result of narcotics, or simply sitting around in wet clothes for an extended period of time. Mr. Allen also appears to have had little to eat or drink that day, which leads to consideration of metabolic changes and dehydration as further complicating factors. This reflects a slowing down of metabolic processes, which can affect cognitive and physical functioning.
It would appear from the DVD that Mr. Allen was extremely fatigued.
The DRE Officer noted horizontal gaze nystagmus in both eyes. While this can be symptomatic of certain drugs, including CNS depressants, some studies have shown that it can also be caused by other factors, including a number of medical conditions, as well as psychiatric conditions, such as mania and depression.
148Dr. Rosenbloom concluded his report with the following statement:
"I have attached a review of the literature in this area published in the Journal of Forensic Sciences in 2010 which sets out some of the limitations, and makes clear that more research in this area is needed before HGN can be considered a reliable test for impairment. For example (and this example is pertinent to Mr. Allen) some studies concluded that fatigue does not produce HGN, while others found the opposite. Where such uncertainty exists, it would be dangerous to place much reliance on this particular test. While the attached study looked at the efficacy of HGN and Smooth Pursuit tests for alcohol impairment, it would also be relevant to attempted detection of any other CNS depressant".
149In his viva voce evidence, Dr. Rosenbloom stated that while drugs can cause horizontal gaze nystagmus, it does not happen every time and is dependent on the dose when it does happen. He testified that fatigue can cause horizontal gaze nystagmus, but added that there are two sets of studies, one showing that fatigue does cause it and the other showing it does not. In other words, there are contradictory findings.
150Under cross examination, Dr. Rosenbloom confirmed that the point he was making in his report is that he is not satisfied that the only explanation for the officer's observations and conclusions is that drugs were psychoactive in the body of the accused at the relevant time. He agreed that from what he saw on the video, the last thing that Mr. Allen should have been doing was operating a motor vehicle in his condition. He did not know whether Mr. Allen's condition was caused by drugs or some other factor. He agreed that the only other factor he addressed his mind to was fatigue.
151Dr. Rosenbloom confirmed that fatigue, cold, dehydration and lack of nutrition are taxing on the body and can reduce a person's alertness, coordination and ability to operate a motor vehicle. Dr. Rosenbloom also confirmed that he had no way of knowing whether drugs were in Mr. Allen's body and psychoactive at the relevant time. He agreed that if they were, that could be one very valid explanation for what was observable. He explained that what he meant by "could be" depends on whether tolerance developed to the effects of the drugs.
Analysis
152The starting point in this trial is the presumption of innocence. Mr. Allen is presumed to be innocent and is not required to prove or disprove anything. The onus of proof is on the crown and never shifts. The standard of proof is high—proof beyond a reasonable doubt. Any reasonable doubt on any issue must be resolved in Mr. Allen's favour. I am mindful that the principle of reasonable doubt applies to issues of credibility and reliability as well as to issues of fact.
153In assessing the credibility and reliability of the witnesses, I take into account their opportunity and ability to make observations, their capacity to remember and relate the events in question, issues of bias and interest, the completeness, consistency and reasonableness of their testimony and the manner in which it was given in both examination in chief and cross-examination.
154The test for determining proof beyond a reasonable doubt where credibility is in issue was set out be the Supreme Court of Canada in R. v. W. (D.), (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397:
If I believe the evidence of the accused, I must acquit;
If I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit;
Even if I am not left in reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
155The accused, Paul Martin Allen, was not a compelling witness. For the most part, his memory was vague and conveniently selective. For example, he gave a relatively detailed account of his activities between approximately 2:00 and 6:00 am on August 16th, yet had very little recall of events before and after that time, including the period immediately before he forced three oncoming vehicles off the road. He did not know his route or his destination that day. He did not know the last name of his friend Calvin with whom he smoked cocaine on August 15th and spent the day on August 16th. He did not know if he woke up in Hamilton or Oakville on August 15th or when he filled his methadone prescription that day.
156Mr. Allen's testimony was fraught with internal inconsistencies. It was also inconsistent with the roadside observations made by Constable Morissette and the clear, credible and reliable testimony of both Mr. Tovell and Mr. Golds.
157For example, Mr. Allen's testimony that he was more tired than he thought and that fatigue was the explanation for crossing into the oncoming lane of traffic was not credible. He stated, "I suppose I must have dozed off while driving, which I really regret. I didn't know I was that exhausted. I suppose when I had been sitting still in the truck for long enough, maybe my level of fatigue started to set in". However, he later estimated that he had only been driving five to ten minutes before he dozed off and crossed the centre line.
158Mr. Allen did not remember hearing a car horn. He stated that he realized he was on the other side of the road when his passenger yelled "look out". He stated that he swerved back into his proper lane and realized he should get his vehicle off the road. He testified that he was looking for a place to stop his vehicle. However, on all the evidence, Mr. Allen did not stop his vehicle after forcing the three oncoming vehicles off the road. He continued to drive, proceeding southbound along the northbound shoulder. He did not even stop his vehicle when Constable Morissette activated the emergency lights on the police cruiser. The officer had to activate her sirens in order to get Mr. Allen's attention.
159Mr. Allen testified that after swerving back into the proper lane, he had such a surge of adrenaline that he was wide awake. Yet when Constable Morissette stopped him only minutes later, he was anything but alert or wide awake. I accept as credible and reliable Constable Morissette's testimony that at the roadside Mr. Allen appeared dazed, disoriented, and confused, his speech was slow and slurred, and he stumbled and was unsteady.
160Mr. Allen's testimony respecting his driving at the critical time was inconsistent with the testimony of both Mr. Tovell and Mr. Golds, whose testimony I accept as credible and reliable. Mr. Allen did not, in fact, swerve back into his proper lane and continue on while looking for a place to stop as described in his trial testimony. He had been heading toward the northbound shoulder. Mr. Allen did not swerve into his proper lane (the southbound lane). He swerved directly into the path of the oncoming Tovell vehicle and then onto the northbound shoulder. It is evident that Mr. Allen did not know what lane he was occupying when he encountered the oncoming vehicles.
161Furthermore, Mr. Allen did not even recall driving along the gravel shoulder as clearly described by Mr. Tovell and Mr. Golds. Mr. Allen drove southbound along the northbound gravel shoulder some 300 to 500 meters until he eventually manoeuvred his vehicle back into the southbound lane. He then continued to Stratford without stopping his vehicle.
162Throughout his testimony, Mr. Allen was focused on linking his bad driving to fatigue rather than his consumption of drugs. Notwithstanding his poor memory as to virtually every other detail, he purported to be certain that he had not consumed any drugs after smoking crack cocaine at 7:30 or 8:00 pm on August 15th. His certainty in that regard was incredible, particularly given his admissions respecting his casual approach to the abuse of street drugs and prescription drugs, including Percocet and his mother's prescribed lorazepam.
163Mr. Allen's testimony that he simply forgot about the crack pipe in his sock had no air of reality, particularly given his testimony that he had smoked the crack cocaine at his Hamilton residence. In those circumstances, it would make no sense for him to be carrying around the glass crack pipe in his sock the next day.
164In summary, Mr. Allen was not a credible or reliable witness. I reject his testimony that he did not consume any drugs after 7:30 or 8:00 pm on the evening of August 15th. I also reject his testimony that his poor driving was attributable to fatigue, not drugs. Applying the test in R. v. W. (D), I do not believe the evidence of Mr. Allen, nor does his evidence have sufficient probative value to raise a reasonable doubt.
165The issue on this trial is not whether I believe Mr. Allen. The issue is whether the crown has discharged its onus of proving beyond a reasonable doubt that:
Mr. Allen had the requisite mens rea for the offence of dangerous operation of a motor vehicle; and
Mr. Allen's ability to drive was impaired to some degree by a drug or a combination of drugs.
Dangerous Operation of a Motor Vehicle
166In R. v. Ramage, 2010 ONCA 488 (CanLII), [2010] O.J. No. 2970, the Ontario Court of Appeal confirmed that the distinction between the offences of impaired driving and dangerous driving is as follows:
[64] An impaired driving charge focuses on an accused's ability to operate a motor vehicle or, more specifically, on whether that ability was impaired by the consumption of alcohol or some other drug. A dangerous driving charge focuses on the manner in which the accused drove and, in particular, whether it presented a danger to the public having regard to the relevant circumstances identified in s. 249 of the Criminal Code. The driver's impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offence. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focusing on different dangers posed to road safety. Impaired driving looks to the driver's ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle.
167The defence appropriately conceded that Mr. Allen's driving was objectively dangerous. The road was flat and straight. The weather was not a factor. The crown has clearly proven beyond a reasonable doubt the actus reus of the offence of dangerous operation of a motor vehicle.
168On the issue of mens rea, I am guided by the direction given by the Supreme Court of Canada in R. v. Beatty, 2008 SCC 5 (CanLII), [2008] 1 S.C.R. 49 and R. v. Roy, 2012 SCC 26 (CanLII), [2012] 2 S.C.R. 60. In Beatty, at paragraphs 6 and 7, the Supreme Court of Canada emphasized that:
Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state. …
The modified objective test … remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences.
169At paragraph 43 of Beatty, the Court restated the test for the mens rea of dangerous driving as follows:
… In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
170At paragraph 46 of Beatty, the Court held:
As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. … The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving.
171Four years later in Roy, the Supreme Court of Court emphasized that it is an error in law to infer the necessary fault element simply from the fact of objectively dangerous driving. As succinctly summarized in the Court Summary (Headnote):
The fault component ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. Determining whether the fault component is present may in turn be done by asking two questions. First, in light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? Second, was the accused's failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused's circumstances? The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault, is a matter of degree, but the trier of fact must identify how and in what way the driver went markedly beyond mere carelessness. This will generally be done by drawing inferences from all of the circumstances. Furthermore, in answering these questions, personal attributes will only be relevant if they go to capacity to appreciate or to avoid the risk. Of course, proof of deliberately dangerous driving would support a conviction for dangerous driving, but it is not required.
172The totality of the trial evidence in this case establishes that Mr. Allen's driving conduct on the date in question was a marked departure from the standard of care expected of a reasonable person in the circumstances and deserving of the stigma of a criminal conviction.
173Firstly, quite apart from the issue of impairment by drug, a reasonable person would not get behind the wheel of a vehicle in the condition described by Mr. Allen. On Mr. Allen's evidence, apart from dozing off for an hour or two in front of the television, he had not slept for some 36 hours, he had not eaten anything except candy floss, nor had he consumed any liquids since morning. He was not feeling well. He felt rushed. He did not know what route he should be taking. He did not know where he was. He had a long, frustrating day and was angry at the client. He described himself as physically exhausted and mentally agitated. He was wearing wet clothes and shoes and had not bothered to change into his dry work clothes. He still had his glass crack pipe in his sock.
174Mr. Allen's decision to drive in such a state of mind and in that physical condition was a marked departure from the standard of care that a reasonable person would observe in the circumstances. A reasonable person would have been foreseen the risk and the danger involved in driving in that condition and would have taken steps to avoid it. A reasonable person would not have been behind the wheel in those circumstances. Mr. Allen's failure to foresee the risk and his decision to drive in those circumstances was a marked departure from the standard of care expected of a reasonable person.
175Secondly, Mr. Allen's bad driving was not due to a momentary lapse of attention. His vehicle drifted across the centre line. In a marked departure from the standard of care expected of a reasonable person in those circumstances, Mr. Allen "corrected" his path by steering away from the gravel shoulder and directly into the path of the Tovell vehicle. He then continued driving the wrong way (southbound on the northbound shoulder) for 300 to 500 meters before maneuvering back into the proper lane. A reasonable person would have stopped his vehicle as soon as he forced other vehicles off the road. A reasonable person would not have continued to drive in the wrong lane with two wheels on the gravel shoulder of the roadway.
176This was not a momentary lapse of attention. On his own evidence, Mr. Allen made a number of deliberate decisions which created actual danger for other users of the roadway. I am satisfied that the crown has discharged its onus of proving beyond a reasonable doubt the requisite mens rea for the offence of dangerous operation of a motor vehicle.
Impaired Driving
177I now turn to the impaired driving charge. The crown is required to prove beyond a reasonable doubt that Mr. Allen's ability to drive was impaired to some degree by a drug or combination of drugs. The crown is not required to prove that the impairment of his ability to drive was caused solely by a drug or drugs.
178As the Ontario Court of Appeal clearly and succinctly held in R. v. Moreno-Baches, 2007 ONCA 258 (CanLII), [2007] O. J. No. 1314:
Suffice it to say that this court's decision in R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380; aff'd (1994), 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.), remains the law in Ontario. That is to say, if there is sufficient evidence before the court to prove that an accused person's ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty.
179The Court of Appeal reaffirmed that direction in R. v. Bush, 2010 ONCA 554 (CanLII), [2010] O.J. 3453, at paragraph 47:
Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: R. v. Censoni, [2001] O.J. No 5189 (S.C.J.) at paragraph 47.
180As emphasized by the Ontario Court of Appeal in Stellato at paragraph 13:
Impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence. Courts should not apply tests which imply a tolerance that does not exist in law.
Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to 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 impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
181In this case, the evidence of impairment by drugs is not frail or ambiguous. The totality of the evidence of Mr. Allen's driving conduct and physical condition establishes that his ability to drive was impaired to some degree by his consumption of drugs.
182Fatigue or exhaustion does not explain Mr. Allen's condition at the roadside and during the drug evaluation. Mr. Allen would have it that he was suffering from exhaustion and after nearly colliding with oncoming traffic he was "wide awake" and experienced a rush of adrenaline. When stopped by Constable Morissette only minutes later, he was not wide awake. He appeared dazed, disoriented and confused. He did not appear to be aware that she was a police officer or that she was conducting a traffic stop. His speech was slow, slurred and rambling. He was unsteady, stumbled and could not walk in a straight line. This was not consistent with being jolted "wide awake" and experiencing a rush of adrenaline. As to the crack pipe with residue found in his sock, Mr. Allen exclaimed, "I don't know where that came from. That's not mine". Mr. Allen's testimony was self-serving and incredible.
183The totality of Constable Jardine's testimony respecting the 12 step Drug Evaluation of Mr. Allen establishes impairment by a drug or drugs, not simply impairment as a result of fatigue, dehydration, lack of nutrition or being in cold, wet clothing or a combination of those factors. The drug evaluating officer's opinion as to impairment by drug is not based on one or two factors in isolation. It is an opinion based on the totality of the findings on the evaluation, the observations during the evaluation and the observations made at the roadside by the arresting officer. I accept Constable Jardine's testimony that the combination of factors, including Mr. Allen's very poor performance on the divided-attention tests, the distinct and sustained horizontal gaze nystagmus in both eyes, and his flaccid muscle tone, were not explained by fatigue or exhaustion.
184The officer described Mr. Allen as generally being "on the nod", meaning that he presented as having a very difficult time staying awake and having a very hard time keeping his eyes open, yet he still heard what was going on around him and was relatively quick to respond when something was said. The officer attributed the totality of Mr. Allen's presentation and condition to impairment by drug rather than fatigue.
185I have considered Dr. Rosenbloom's opinion evidence that he was not satisfied that the only explanation for what the officer saw was that drugs were psychoactive in Mr. Allen's body at the relevant time. Dr. Rosenbloom testified that he did not know whether Mr. Allen's impaired condition was caused by drugs or some other factor such as fatigue. I have considered Dr. Rosenbloom's opinion that horizontal gaze nystagmus while symptomatic of certain drugs, including Central Nervous System depressants, might also be caused by other factors and it would be dangerous to place too much reliance on this particular test.
186Firstly, the Drug Evaluating Officer did not only rely on the fact that Mr. Allen displayed horizontal gaze nystagmus in both eyes. It was only one of the factors relied upon by the officer. Secondly, Dr. Rosenbloom's opinion about the reliability of the horizontal gaze nystagmus test is essentially his personal opinion based on his review of several articles in the field, only one of which he produced at trial. It is not a subject matter that is within his area of expertise by virtue of his education, training or experience.
187In contrast, the Ontario Court of Appeal in R. v. Bingley, 2015 ONCA 439, addressed the admissibility of opinion evidence given by a Drug Recognition Expert ("DRE") on whether a person's ability to operate a motor vehicle is impaired by a drug. The court emphasized that, "on a plain reading of s. 254(3.1), its purpose is to authorize the DRE to conduct an evaluation to reach an opinion as to whether the accused person is impaired by reason of a drug or a combination of a drug and alcohol".
188In Bingley, the Court specifically held that:
[45] By enacting Bill C-2, Parliament created a science-based regime for the effective testing and determination of whether a driver's ability to operate a motor vehicle was impaired by a drug. …
[46] While an evaluation under section 254(3.1) must be completed before the DRE can demand a urine, saliva or blood sample under s. 254(3.4), the sample is simply to confirm the presence of a drug in the driver's body, and not to determine the issue of impairment. Further, as we have seen, the bodily fluid sample demand is an investigative step that may, but need not, occur. Thus the DRE opinion evidence called for by s. 254(3.1) is not a screening tool but, rather, a determination of impairment and whether impairment is due to a drug or a combination of a drug and alcohol. ...
[48]…By creating this detailed regulatory regime, Parliament has shown that it is satisfied of the science underlying the drug evaluations.
[49]However, this is not to say that the DRE's opinion regarding impairment is determinative of the ultimate issue. It is for the court to decide what weight to give the DRE's opinion evidence: R. v. Dejesus, 2014 ONCJ 489; R. v. McCarthy, 2014 ONCJ 75 and R. v. Biagi, 2014, ONCJ 153.
189In the present case, Mr. Allen admitted to Constable Jardine that he was using Seroquel, Ativan, and methadone. At trial, Mr. Allen admitted to using cocaine, methadone, Percocet, and his mother's prescription lorazepam. Other than his bare assertion that his last drug use was the cocaine he smoked on the evening of August 15th, Mr. Allen had very little recall of his last dose of the other drugs or when he took them.
190I reject as self-serving, incredible and unreliable, Mr. Allen's testimony that he did not consume any drugs after smoking crack cocaine on the evening of August 15, 2014. On his own evidence, Mr. Allen casually used and abused prescription and street drugs, including cocaine, Ativan, his mother's prescribed lorazepam, methadone and Percocet. On his own evidence, Mr. Allen was not routinely using a stable dose of any of the drugs, including methadone, so as to account for a tolerance to the effects of the drugs as described by Dr. Elliot.
191I accept Dr. Elliot's clear, precise testimony respecting the impairing effects of central nervous system depressants on the ability to operate a motor vehicle and the tolerance that can develop when a person regularly consumes a stable dose of a prescribed drug on a routine basis. Dr. Elliot testified that when a number of central nervous system depressants are added together, the user will experience an increase in the effects, over and above each drug on its own.
192On all the evidence, this is not a situation where Mr. Allen's casual use and abuse of prescribed and non prescribed drugs would produce the tolerance to the sedating effects of central nervous depressants as described by Dr. Elliot. Mr. Allen was not routinely taking a stable prescribed dose of the drugs in question.
193In assessing the totality of the trial evidence, I take into account Mr. Allen's conduct and condition both at the roadside and during the evaluation conducted by Constable Jardine. I emphasize that it is the totality of Mr. Allen's conduct and condition that is determinative, not the individual observations considered in isolation. Mr. Allen's driving conduct, his presentation at the roadside and the observations and findings of the evaluating officer are consistent with Dr. Elliot's testimony respecting the effects of central nervous system depressants on the human body.
194Based on the totality of the trial evidence, I accept as credible and reliable Constable Jardine's opinion as a drug evaluating officer that Mr. Allen was under the influence of two categories of drugs: Central Nervous System Depressants and Narcotic Analgesics. Based on the totality of the trial evidence, I accept Constable Jardine's opinion that both categories of drugs were psychoactive at the relevant times, meaning that they were affecting Mr. Allen's body at the time of the evaluation and at the time of the arrest. Mr. Allen's appearance and physical condition during the evaluation was consistent with his conduct and condition at the roadside as observed by Constable Morissette. Constable Jardine's conclusions were consistent with the results of analysis of the urine sample and Dr. Elliot's testimony respecting the effects of central nervous system depressants on the human body.
195As affirmed by the Ontario Court of Appeal in Bush, "slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function". The divided-attention tests as prescribed by Regulation are validated as indicators of impairment and replicate or simulate some of the applications required for driving. Mr. Allen's driving conduct and physical condition on the date in question establish that his ability to drive was impaired by a drug or combination of drugs. Fatigue alone, or in combination with dehydration, cold and/or a lack of nutrition, is not an explanation for the totality of the observations made by Constable Morissette at the roadside or the results the evaluation by Constable Jardine.
196In summary, I am satisfied that the crown has discharged its onus of proving beyond a reasonable doubt that Mr. Allen's ability to drive was impaired by a drug or combination of drugs.
Verdict
197Accordingly, I find Paul Martin Allen guilty of the four offences before the court.
Released: October 29, 2015
Signed: "Justice K.L. McKerlie"