Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
ASHLEY ANN TUCKER
Before: Justice Lesley M. Baldwin
Heard on: June 12, 15 and 25, August 11 and 12, December 7 and 8, 2015
Adjourned for Written Submissions and Reasons for Judgment reserved to and released on: June 20, 2016
Counsel:
- Sean Bradley, for the Crown
- Russell Allegra, for the defendant Ashley Ann Tucker
BALDWIN J.:
[1] Charge
1Ashley Tucker is charged with impaired driving, in this case by drug, on (Sunday) October 20, 2013, in the Town of Milton contrary to s. 253(1)(a) of the Criminal Code.
2The Crown proceeded summarily.
3At the outset of trial, date, jurisdiction, identity and the voluntariness of statements made by the accused were admitted.
Summary
4There was no issue at the end of this trial that Ms. Tucker was prescribed methadone and was using this drug at the time of the offence. Ms. Tucker has been on methadone since 2011 or 2012 as a result of being prescribed the powerfully addictive drug OxyContin starting when she was only 12 years old. She admitted to taking her methadone an hour or more before driving to all the police officers who dealt with her in this case, and later at the hospital where she was treated for a drug overdose. (Note: Her versions as to the dates and times of consumption of this and other drugs were inconsistent at trial. Ms. Tucker's account of events was 24 hours off – which leads to the ultimate conclusion that she has no reliable memory of the events.)
5Charter Applications alleging violations of s. 8, 9 and 10(b) proceeded in a blended fashion on consent. The s. 10(b) Charter Application was withdrawn during the course of the trial. The section 8 and 9 Charter Applications were dismissed with reasons given on December 8, 2015.
6During the course of this trial, testimony was heard from two civilian witnesses (Sara Alderman and Ashley Talbot) about the driving they observed by Ms. Tucker before she was found by police as a result of their 911 call.
7These two witnesses observed Ms. Tucker's driving for approximately 10 to 15 minutes. Many of their observations are recorded on the 911 call. They observed driving which included: creeping into an intersection when the light was red; remaining in the intersection stopped while the light was green; mounting a curb; abruptly swerving in front of them without signalling; driving into oncoming traffic and almost hitting a transport truck head-on; driving through a parking lot and almost hitting a cyclist; running two red lights; pulling a U-turn across four lanes of traffic; making sharp turns with tires squealing; and driving at varying and erratic speeds.
8Testimony was heard from Officer Linda Williams of the Halton Regional Police. She located Ms. Tucker at 9:17 p.m. as a result of the 911 call. Ms. Tucker had entered a small plaza and stopped her large Yukon truck behind a building. The engine of the vehicle was running and Ms. Tucker was under her vehicle at the time with her legs sticking out underneath the bumper. Ms. Tucker explained that she was looking for the spare tire to replace a flat tire on the Yukon SUV truck.
9A reasonable suspicion that she was impaired by drug was formed. A request was made for a Standard Field Sobriety Test (SFST) and Officer Walter Trulsen responded at 9:34 p.m. After the proper Demand, the SFST was conducted and Ms. Tucker did poorly, resulting in the grounds for the Drug Recognition Officer's Examination. Officer Williams made the Demand at 9:58 p.m.
10Ms. Tucker was transported to the Hamilton police detachment where there was an available DRE Officer.
11Ms. Tucker was extremely aggressive upon her arrest and in the cruiser en route. Handcuffs and hobble restraints were required.
12They arrived at the police station at 11:00 p.m.
13Ms. Tucker was turned over to a qualified DRE Officer, Joanne Serkeyn at 11:10 p.m.
14The Examination was videotaped and played in court. Ms. Tucker performed spectacularly poorly on the Examination. The opinion of the DRE Officer was that she was impaired by a narcotic analgesic. A urine sample was obtained.
15The urine sample was examined at the CFS by Forensic Toxicologist Betty Chow. Drugs detected in Ms. Tucker's urine were as follows: Methadone; Diazepam; Nordiazepam; Oxazepam; Temazepam; Carboxytetrahydrocannabinol; Mirtazapine.
16Methadone is a narcotic analgesic, which is a central nervous system depressant.
17After the DRE Examination, Officer Williams drove Ms. Tucker to the Hospital due to concerns for her health and safety given the level of her impairment.
18At the hospital, Ms. Tucker was given 2 doses of the drug Narcan which reverses the effects of narcotic overdose. She responded to that treatment. The examining physician, Dr. K. Martin, reported to the Ministry of Transportation, as is required by s. 203 of the Highway Traffic Act, that Ms. Tucker has a drug dependence and that she should not be operating a motor vehicle.
19Ashley Tucker testified. She denied any bad driving. She testified that any driving problems noted were due to a flat tire. Any indicia of impairment noted by the police after she stopped driving were due to her being assaulted by her boyfriend earlier in the day, sleep deprivation or the side effects of her prescribed drugs. She denied being impaired by drug.
20The defence called Dr. David Rosenbloom. He was called to provide alternative innocent explanations for the signs of impairment observed by the police and the medical doctor who dealt with Ms. Tucker.
Trial Evidence
(1) Civilians' Driving Evidence
21Sarah Alderman testified that she is 25 years of age. She lives in Oakville and is employed as a cashier. Her evidence painted a clear picture of what can only be described as dangerous and terrible driving on the part of the accused.
22It was the evening of (Sunday) October 20th, 2013. She was spending time with her friend, Ms. Talbot. They had just attended Tim Horton's in Georgetown and were going for a drive. This occurred around 9:00 p.m. and it was dark out at the time. Ms. Alderman was driving and Ms. Talbot was the passenger in the front seat.
23They were stopped at a red light at the intersection of Barber and Mountainview when they observed the accused's vehicle in the lane next to them moving into the intersection despite the fact that the light was still red.
24When the light turned green, the accused's vehicle remained stationary within the intersection. Ms. Alderman drove through the intersection and passed the accused's vehicle. Ms. Alderman testified that she was able to make observations of the driver. (Note: Identity was admitted in this case; Transcript June 12th, 2015, p. 5)
25Both witnesses were still able to see the accused's vehicle behind them. It was at this point that Ms. Talbot advised Ms. Alderman that the vehicle had just gone up onto the curb. Ms. Alderman was able to look through her rear view and side mirrors and could see that the vehicle was up on the curb with its back tires on the curb before it came back down onto the road. She testified that the vehicle continued to travel along, but at a very slow rate of speed.
26At this point Ms. Alderman became concerned and she began to slow down as well. The accused passed them on the right hand side and then 'suddenly' and 'abruptly' and 'quickly', to use Ms. Alderman's words, swerved in front of them without signalling, essentially cutting them off.
27The witnesses were now directly behind the accused when she began to drift into oncoming traffic, but moved into the correct lane prior to being struck by an oncoming transport truck. At page 6 of the 9-1-1 Transcript the caller says, "She's driving like a maniac. Oh my God."
28At this point, the vehicle turned into a parking lot and proceeded through the parking lot and exited on the other side. The witnesses followed, and both of them testified that there was a cyclist crossing the entrance on the other side of the parking lot that was in risk of being struck by the accused's vehicle.
29The accused did not stop when she exited back out onto Guelph Street. They continued to follow after the accused exited the parking lot. The vehicle then ran a red light before turning and pulling a U-turn across four lanes of traffic and then began driving in the opposite direction on Guelph Street.
30The witnesses continued to follow and observed the vehicle run another red light before it made a sharp right turn back onto Mountainview. At this point, the witnesses briefly lost sight of the vehicle, but they both testified that they could hear the squealing of tires.
31When they did observe the vehicle again a short time later, it was now facing the opposite direction and approaching them. The vehicle then turned into the plaza and went behind the building where it was ultimately found by police. The witnesses remained out front until the police arrived on scene and they directed Officer Williams behind the building.
32Ms. Alderman's account of what she observed that night was very detailed. She did not attempt to exaggerate her evidence. She was completely unshaken on cross-examination.
33Ms. Talbot's evidence was also clear and uncontested. Her testimony was consistent with that of Ms. Alderman on all the crucial driving observations.
(2) Officer Williams
34She began transporting the accused to the Hamilton Detachment at approximately 10:18 p.m. for the purposes of bringing her before a Drug Recognition Evaluator. During the drive, the accused began to slam her head violently against the glass partition and began to spit through it at the officer.
35They arrived at Hamilton at 11:00 p.m. She was turned over to the custody of the DRE, Officer Serkeyn. Officer Williams stood by for portions of the DRE evaluation and at approximately 12:22 a.m. she took custody of the accused back from the DRE officer. They exited the Hamilton Detachment at approximately 12:41 a.m.
36Officer Williams specifically testified that over the course of the evening, the symptoms of impairment were getting progressively worse. It was difficult to wake the accused, and it was at this point that she became concerned for Ms. Tucker's safety due to possible drug overdose. Officer Williams decided to transport her to the Milton Hospital, arriving there at 1:24 a.m.
37Officer Williams left the hospital, but returned a short time later at 3:45 a.m. She attempted to wake the accused but was unsuccessful. A decision was made that, due to her unresponsive state, she would be released unconditionally.
38Officer Williams returned to the hospital one further time at 4:15 a.m. for the purpose of returning the accused's purse which had been left behind in her cruiser. At this time, she was able to have a conversation with the accused who was now lucid.
39Exhibit #10 shows that Ms. Tucker received two doses of Narcan. The second dose was administered at 4:07 a.m. which is evidence that the Narcan had been effective.
(3) Officer Serkeyn – DRE Officer
40She testified that she has been employed with the Hamilton Police since 1998. She completed the required training as a DRE in November of 2011, and her training was up to date at the time of this incident.
41The video shows this Officer being very fair and compassionate when dealing with the accused. The entire video was played during the course of this trial. It clearly shows that the accused is significantly impaired. Ms. Tucker had serious balance issues, difficulty understanding, confusion, and would 'nod off' or be 'on the nod' which is a term the Officer used in describing the effects of impairment by a narcotic analgesic, which was her ultimate conclusion.
42Methadone is a narcotic analgesic and that is what was found in Ms. Tucker's urine. In addition, there were numerous admissions of consumption of that drug at various times that day. (Note: The three police officers involved with this investigation; to medical personnel during the 2 hospital admissions; testimony at trial.)
(4) Forensic Toxicologist (CFS) – Betty Chow
43Betty Chow has been employed as a forensic toxicologist at the Centre for Forensic Sciences since 1988. She has given expert evidence in approximately 150 cases.
44Ms. Chow was qualified in this case to give expert evidence in the area of the effects of drugs on the human body, as well as their absorption, metabolism and elimination from the body. Ms. Chow's forensic report in this case was marked as Exhibit #2.
45Ms. Chow tested the sample of the urine from the accused and a number of drugs were detected: Methadone; Diazepam; Nordiazepam; Oxazepam; Temazepam; Carboxytetrahydrocannabinol; Mirtazapine.
46Methadone is a narcotic analgesic.
47"It is a drug prescribed for the treatment of opioid addiction and pain. Effects that occur after use of this drug 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." (Exhibit #2, conclusion 2)
48"Diazepam is a drug prescribed for the treatment of anxiety and panic disorders and belongs to the benzodiazepine class of central nervous system depressants. Effects that occur after use of this drug may include lack of muscle control, drowsiness, loss of consciousness, impaired judgment, impaired memory, confusion and dizziness. The effects of diazepam depend on the concentration within the blood and the tolerance of the individual to the drug. Nordiazepam, oxazepam and temazepam can arise as pharmacologically active metabolites of diazepam." (Exhibit #2, conclusion 3)
49"Carboxytetrahydrocannabinol (THC-CooH) is an inactive metabolite of tetrahydrocannabinol (THC), the major psychoactive compound in cannabis products such as marijuana and hashish. The detection of THC-COOH indicates prior use of/exposure to a cannabis product. Effects that occur after use of the THC may include mild euphoria, relaxation, altered time perception, motor incoordination and decreased ability to concentrate." (Exhibit #2, conclusion 4)
50"Mirtazapine is a drug prescribed for the treatment of clinical depression. Effects that occur after use of this drug may include somnolence, dizziness and weakness." (Exhibit #2, conclusion 5)
51"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." (Exhibit #2, conclusion 1)
(Note: It is significant that the DRE Officer concluded in this case that Ms. Tucker was impaired by a narcotic analgesic. It is not possible to say with exact certainty when the drugs themselves would have been consumed. This is a urine test, not a blood test, and this is circumstantial evidence of the effects of drugs in Ms. Tucker's body.)
(5) Testimony of Ashley Tucker
52When she testified on August 11, 2015, Ashley Tucker was 25 years of age. She lived in Wheatley, Ontario and was unemployed.
Assault by Boyfriend and Hospitalization #1 on Sunday October 20, 2013
53She testified that at 10:30 p.m., on Friday October 19th, 2013, she drove her boyfriend Michael Brooks from Wheatley to 'The Trany Shop' located at 559 Guelph Street in Norval (Georgetown). (Note: Friday was October 18th, in the year 2013.)
54The "Trany" transmission business had belonged to her boyfriend's father who had passed away the year before. They were in the process of selling the business.
55They arrived in Norval at 2:30, 3:00 or 4:00 a.m. on Saturday. (Transcript p. 7) Michael fell asleep in the truck. She could not sleep. She slept for maybe 30 minutes before they had to get up at maybe 5:30, 6:00 or 6:30 a.m. (p. 8)
56When she woke up, Michael was already dressed and out of the car. He had been working on a car in the shop he was going to sell to the people that were coming to help him clean up the shop.
57She was in the process of getting herself dressed when Michael approached the car and been arguing with her. She locked herself in the truck because he was so angry.
58The next thing she knew, the passenger side window was smashed in with a brick. Michael did it because she would not let him into the truck.
59Michael then opened the driver's side door where she was sitting and grabbed her by the neck and the shirt and ripped her out of the truck and threw her onto the ground.
60As she was getting up, he grabbed her methadone drinks for that day and for the next day and he dumped the one for the next day on the ground. He was in the process of dumping her methadone for that day on the ground. He had dumped 50 or 60 percent of it. She tried to stop him and she got punched or hit with something multiple times and from then on everything kind of went black.
61The next thing she knew she was sitting in the back of an ambulance. Her next memory is sitting in the hospital. She does not remember anything about being in the hospital at all.
62The next thing she remembers is someone dropping her off back at the 'Trany' shop where her vehicle was.
63Exhibit #9 consists of the (Georgetown) hospital records with respect to this first attendance.
64It shows an arrival time by ambulance at 1556 (3:56 pm) on October 20th, 2013.
65This defence Exhibit states that Ashley Tucker reported an assault by her boyfriend. Abrasions were noted on her neck and chest and she reported that her nose felt swollen and her wrists were sore. A small abrasion on the bridge of the nose was noted.
66She reported taking methadone and prescription drugs for anxiety and depression.
67The nursing notes state "No head trauma".
68Ashely was discharged against medical advice before any investigative X-rays could be taken at 1640 (4:40 pm). It is noted that the patient was belligerent with the police and the nurse and "wants methadone". (p. 4)
69On page 1 of 4 of the Halton Paramedic Services Report, it is noted that the patient has a "history of OxyContin abuse". The patient is currently on methadone.
Drugs Consumed
70In examination in-Chief, Ashley testified that the night before, she had taken her antidepressants. After the assault happened, she drank the remaining 40 to 50 percent of her (methadone) drink at about 7:30 or 8:00 in the morning, she believes. (p. 9)
71Ashley could not say if she was given any medications in the hospital because she does not remember being in the hospital. (p. 15)
Drop Off and Drive Away from the 'Trany' Shop
72Somehow she got back to the 'Trany' shop. She does not know if someone drove her there or if she took a cab.
73She found her car in the shop. Someone had covered the broken window up with plastic and tape. The keys had been left in the ignition.
74She got into the truck and started it up. She intended to drive home to Wheatley; maybe some 300 kilometres away. (p. 18)
75She turned right onto Guelph Street to head into Norval to go to the Mac's Milk store.
76On the way she noticed that the truck was driving a little weird.
77"I had maybe thought that it just had to do with you know something that had gone on that day. Maybe it was just me." (p. 16)
78She went into the Mac's Milk and got cigarettes and a drink. She got back into the truck and made a left back onto Guelph Street. She now was headed to the TD Bank because she needed to put gas in the truck and she was not sure how much money was in her account at the time.
79When she was on the way there she noticed that the driving seemed to be getting worse. She made a right into the parking lot where the Bank is. She entered the drive-thru and got money. She turned right out of the parking lot and that is when she noticed the driving was "really getting bad…it seemed to be all over the place…the truck was turning to the right like crazy." (p. 17)
80Ms. Tucker said that the windows were too tinted to see what the tires were like. She needed to get gas anyway, so she decided to go to the Petro Station at the corner of Mountainview and Guelph Street. It was maybe a quarter of a kilometre away from the Bank.
81When she turned right out of the Bank onto Guelph Street she noticed things were really getting bad. She decided she would go to a family friend's automotive shop that was maybe half a kilometre away in case there was something actually wrong with the motor vehicle. It was dark and the shop was closed.
82As she drove down Mountainview, the truck was going all over the road so she slowed down to maybe 40 (kilometres an hour). She turned right into the parking lot and went to the back where they have hoists to bring the cars that need to be fixed. She parked the truck but did not turn it off.
83She got out of the truck and walked around it. She noticed that the right rear passenger tire was partially off the rim. She went under the truck to get the spare tire which was bolted underneath the truck – and that is when the police showed up.
Police on Scene
84When the cruiser pulled up, the cruiser lights were shining directly at her. Seeing the police made her nervous and really anxious. (p. 19)
85She jumped to a standing position and felt a bit of a head rush. She lost her balance for a quick second.
86She told Officer Williams that she had a flat tire and was trying to unbolt the spare tire. She knew the owner of the business. She talked to the Officer for a few minutes and was told that another Officer would be arriving to do a test.
87She was put into the back of the cruiser to wait for the second Officer.
88Ms. Tucker testified that she had a bit of a breakdown in the back of the cruiser. She had a panic attack and could not breathe. She was now in the back of police cruiser, after having been assaulted by her boyfriend of eight years, and she had not slept in either 24 or 36 hours.
89Ms. Tucker testified that she also remembers "dozing off" for maybe 10 minutes before the second Officer arrived.
90The second Officer performed tests on her. She only remembers bits and pieces of the tests. She was in slippers at the time and basically her pyjamas because she had been in the process of getting dressed when her boyfriend assaulted her.
91After the tests, she was put back into the cruiser and read her rights. She really lost it and had a full blown panic attack. She could not breathe at all. She was crying. She was pounding on the door because she wanted the Officer to open the door because she needed fresh air to breathe.
92Other Officers arrived and she was put in restraints. The next thing she remembers is waking up in the hospital. (p. 22)
93She does not remember being at the Hamilton Police station or performing the DRE tests. (p. 23)
94Ms. Tucker explained that she was feeling exhausted. After viewing the DRE Examination videotape in Court, she thinks she was sleep deprived and was not impaired by drug.
Hospitalization #2 – Monday October 21st, 2013
95Exhibit #10 states that Ms. Tucker was taken to hospital by police and arrived at 1:39 a.m.
96Ms. Tucker testified that she does not remember the police taking her to the hospital. (p. 24) According to Ms. Tucker's chronology of events, this would have been Sunday morning.
97In Exhibit #10, it is listed that the following substances were detected in her system; cannabinoids, methadone and benzodiazepines.
98Ms. Tucker testified that she smoked marijuana maybe 3 or 4 days before to help her sleep.
99Ms. Tucker testified that she had last taken her methadone at eight o'clock the previous morning. She only took 40 to 50 millilitres of her prescribed 100 millilitres because her boyfriend Michael had poured part of it out. She usually takes her prescribed dose in the morning, otherwise she will suffer from withdrawal. (p. 27, 28)
100She has been prescribed methadone since either 2011 or 2012. Her original dose was 120 millilitres a day.
101Ms. Tucker testified that the benzodiazepine would be her prescribed antidepressant medication. It is called 'Mirtazapine". She takes that drug to help her sleep. She takes it basically every night. She last consumed this drug on October 18th.
102She had also consumed a two-milligram Valium pill the night she smoked the marijuana to help her sleep on October 16th.
103Ms. Tucker testified that she does not remember being discharged from the hospital this second time.
Cross-Examination
104Ms. Tucker testified that she was 23 years of age at the time of the incident.
105She had lived in Georgetown until just a few weeks before the incident when she, together with her mother and her boyfriend, moved to Wheatley (Leamington). Both she and her boyfriend had been addicted to OxyContin. (p. 77)
106She originally started taking methadone for her OxyContin addiction in either 2011 or 2012. She was prescribed 125 millilitres a day. She had been dropped down to 115 millilitres a day maybe a week before the incident before the court. (p. 35)
107Ms. Tucker testified that the doctor does not tell you what time of the day to take your methadone. It is at your discretion. She would usually take it in the morning as soon as she woke up, which was usually around 10:00 a.m.
108She took her methadone about 10:00 a.m. on the Friday morning of October 19th. (Note: This date is wrong again – Friday was the 18th). She had 5 days' worth of prescribed methadone left. (p. 40) She brought 2 days' worth of methadone to Georgetown. She left the rest at home.
109She and Michael left Leamington and headed to the 'Trany' shop at 10:00 p.m. Friday night. They arrived at about 2:00 a.m. the morning of October 20th. (Note: Her dates continue to be wrong.)
110It was two o'clock in the afternoon when the brick came through the truck and she was assaulted. (p. 45)
111The next thing she remembers is Michael pouring out some of her methadone. She tried to stop him and in the process hit him with a wooden hair brush. Then the brick came through the truck. (p. 46)
112She had taken a few sips of her methadone at 10:00 a.m. and was planning to take the rest later in the day. (p. 48) Ms. Tucker then contradicted herself and stated that she took some sips maybe 15 minutes after she woke up that morning between 6:30 and 7:00. (p. 49, 50)
113When shown the methadone bottle that was seized from her truck, Ms. Tucker corrected herself and stated that she is prescribed 115 milligrams of methadone a day as listed on the front. Ms. Tucker explained the confusion because the methadone is mixed with Tang.
114After she was assaulted by Michael she sat on a curb and drank the rest of her methadone. The next thing she remembers is sitting in the back of the ambulance. She does not remember being at the hospital. She does not remember going to the police station. She does not remember how she got back to the truck. She does not know what time she got dropped off there.
Her Memory Returns Back at The 'Trany Shop'
115She was upset and agitated and wanted to get home to Leamington that night. Ms. Tucker stated that it was the Saturday night.
116Ms. Tucker remembers going to the Mac's Milk for cigarettes and going through the drive-thru of the TD Bank. She cannot remember how much money she took out.
117She had planned to go to the gas station for gas, but decided to go to the 'Accurate Transmissions' on Armstrong and Mountainview because there was something wrong with the truck.
118Even though the shop was closed, she drove right by an open gas station because if there was something wrong with the truck, she did not have enough money for a tow truck.
119Ms. Tucker denied running any red lights. She denied having any trouble stopping her truck. She denied cutting through the Georgetown Mall parking lot.
120Ms. Tucker maintained that she had driven to Georgetown on the Friday night and she was driving back home on the Saturday night. (Note: Ms. Tucker was again in error here as October 20, 2013, was a Sunday)
121Ms. Tucker agreed that she probably said 'she shouldn't be driving' when she spoke with Officer Williams at the scene.
122She probably said that because she was crying uncontrollably and she was emotionally and physically exhausted. Her driver's licence was also suspended at the time.
123Ms. Tucker has no memory of telling Officer Williams at the scene that she had taken her methadone an hour and half prior to driving.
124She recalls calling the officers "pigs" and kicking at the cruiser door.
125After she was arrested and put in restraints, she has no memory of what happened. She did "nod off". (p. 85)
126In re-examination, Ms. Tucker stated that she had last consumed OxyContin about 6 months before this incident.
(6) Dr. David Rosenbloom
127Dr. Rosenbloom was called as an expert witness by the defence. The better part of a day was spent conducting a voir dire to determine exactly what Dr. Rosenbloom is an expert in, and what he would be permitted to testify about.
128Dr. Rosenbloom attempted to qualify himself in several different areas, including fatigue and head trauma. This is not the first time he has attempted to over-qualify himself and there are several reported decisions that have specifically criticized his attempts at over qualification.
R. v. Hall, [2011] O.J. No. 5112 (SCJ) at paras. 3, 6, 12, 13
R. v. Mathisen, 2008 ONCA 747 (CanLII), [2008] O.J. No. 4382 (ONCA) at paras. 125-127
R. v. Griecken, [2009] O.J. No. 5037 (SCJ) at paras. 26-27
129After a voir dire, I ultimately ruled that Dr. Rosenbloom would not be qualified in the area of fatigue and head trauma. He was, however, qualified in the area of narcotics and their effects on the human body. This was done with the consent of the Crown, as Dr. Rosenbloom does have legitimate credentials in this area as a pharmacist. (August 12th, 2015 Transcript, at pages 61-63.)
130Although Dr. Rosenbloom was qualified as an expert in a limited area, it is up to the Court to determine what weight, if any, will be given to his evidence. I have concluded that, based on his testimony as a whole, no weight should be afforded.
131Dr. Rosenbloom came across as an unprepared and biased witness. For example, it became apparent early on that he was not prepared and had not properly reviewed the case before taking the stand:
Q. Did you get an opportunity to view the DRE video?
A. I did.
Q. In your opinion how would you describe the accuracy of the testing that you saw compared to other medical testing in which you have been involved throughout your research and teaching in pharmacology?
A. Sorry. I'm hesitating for a couple of reasons, but I have three of these cases on the go. Is this case - - is this the one where they removed the chord from the trousers that she was wearing and they were falling down ? I'm sorry, I can't remember that.
Q. I don't believe so.
August 12th, 2015 Transcript, at page 14, lines 2-13 (emphasis added).
132It is apparent based on the above, that Dr. Rosenbloom was prepared to give expert opinion evidence, without even knowing which one of his cases he was testifying about. This causes me to have grave concerns regarding the reliability of his evidence.
133In addition to being unprepared, Dr. Rosenbloom's evidence also demonstrated a bias in favour of the defence. He testified that Narcan is a narcotic antagonist and its purpose is to reverse the effects of a narcotic. It would normally be administered when a drug overdose is suspected. He further testified that the effect of the Narcan would be expected to come on straightaway. The following exchange then occurred during his examination in-Chief:
Q. If you were to have a patient who had no, who had no drugs in their system and you were to administer them Narcan, what kind of response would you expect?
A. I wouldn't expect any response because it's specific to antagonizing morphine type drugs like methadone.
Q. In your opinion does this statement (referring to exhibit #10) show that she has had a significant response to the administering of the Narcan?
A. No.
August 12th, 2015 Transcript, at page 69 lines 14-23.
134It is very difficult, if not impossible, to understand how Dr. Rosenbloom could state that Exhibit #10 does not show that the Narcan had no effect on the accused. A review of Exhibit #10 reveals that Narcan was given to the accused at 2:55 a.m. and 4:07 a.m. The notes from the hospital staff specifically state "Narcan given with effect" and "Awakens to tactile stimuli, now becoming more somnolent". I conclude that when Dr. Rosenbloom was unwilling to admit that the Narcan had an effect, particularly when presented with such clear evidence that it did, demonstrates bias on his behalf.
135This is not the first time that Dr. Rosenbloom has demonstrated bias in a court room. R. v. Phung was a first degree murder trial where the Crown was attempting to introduce prior statements made by the deceased's girlfriend, as during examination in-Chief she testified that she was unable to remember certain aspects surrounding the death. At issue was whether the witness had been of an operating mind at the time the prior statements were made. Dr. Rosenbloom was called by the defence and qualified as an expert on the effect of drugs on the human body. The Court held that portions of his testimony were misleading and that Dr. Rosenbloom was evasive during cross examination:
The court found that Dr. Rosenbloom's testimony was often not given in a direct manner. He demonstrated bias. He was evasive, non-responsive, and inconsistent. He was not careful to indicate when he was being asked about areas that were peripheral to his core expertise. He presented as a witness with limited experience and knowledge who tried to sound more experienced and knowledgeable than he was. The court rejects his testimony when it differs from Dr. MacLeod's.
R. v. Phung, [2006] O.J. No. 5657 (SCJ) at para. 226 (emphasis added)
136Dr. Rosenbloom's report was filed with the Court as Exhibit #11. It is clear that it contains a number of errors and further demonstrates bias in favour of the accused. For example, the report suggests that Ms. Tucker takes the drug methadone twice a day, which is an obvious error that he did acknowledge while on the stand. His report concludes by stating:
For all these reasons, it is my conclusion that Ms. Tucker was not impaired by a drug and the combination of being struck on the head and fatigue were the sole contributing factors in this case. (Exhibit #11, p. 2)
137The majority of Dr. Rosenbloom's evidence was based solely on the information that was provided by the accused. The possibility that she was being untruthful had never even crossed his mind. Indeed, this is also something the Court in Phung criticized him for, the failure to consider alternative explanations including dishonesty. The failure to consider reasonable alternative explanations is just another example of his demonstrated bias.
R. v. Phung, [2006] O.J. No. 5657 (SCJ) at para. 219
138As the majority of his evidence is based on information provided by the accused, if his evidence is to be of any use, the Court would have to accept Ms. Tucker's evidence as fact. Having determined that the evidence of the accused is rejected in this case, I conclude that the testimony of Dr. Rosenbloom is of no use based on the following features of his testimony:
(a) he attempted to qualify himself as an expert in areas he has no expertise in;
(b) he was unprepared;
(c) he was unsure of what case he was there to testify about;
(d) he repeatedly demonstrated bias in favour of the accused;
(e) he has been sternly criticized by courts in the past for similar behaviour;
(f) he failed to consider reasonable alternative explanations;
(g) his ultimate conclusion was unsupported by the evidence;
(h) his expert report contained errors; and
(i) he admitted during cross-examination that his ultimate conclusion would be incorrect.
139Accordingly I give his evidence no weight.
Analysis
140Defence counsel in his submissions has referred to the decision in R. v. Jansen, which is a decision of a Provincial Court Judge and not binding on this Court. The facts of the case are important, as they are clearly distinguishable from the facts of the present case.
141In Jansen the suspect vehicle had been involved in a single motor vehicle collision. It appeared that the vehicle had travelled onto the shoulder, struck a mail box and came to a rest in a ditch. The arresting officer located the vehicle with the accused in the driver's seat. It is important to note that this was a care or control case. There was no evidence to prove that the accused had been driving the vehicle. Furthermore, there was no evidence whatsoever regarding the time of the collision. This is completely different from the present case, as there is strong evidence that Ms. Tucker had been operating the vehicle for an extended period of time while exhibiting extreme signs of impairment such as jumping a curb, running red lights and drifting into oncoming traffic. In addition, she was located by the police immediately after having been observed by the witnesses. As such, there is no question as to how long it had been since she was last operating the vehicle.
142The arresting officer in Jansen had no grounds to believe that the accused had consumed narcotics. He observed signs of impairment and, based solely on the absence of an odour of alcohol, came to the conclusion that the accused must have been impaired by a drug. In the present case, it was not just the absence of an odour of alcohol, but also the Officer's prior knowledge that Ms. Tucker was a methadone user, together with the admission of consumption and the results of the Standard Field Sobriety Tests (SFST's), that ultimately led to her arrest.
143The trial judge in Jansen had significant difficulty with the fact that the Drug Recognition Evaluator (DRE) did not give an opinion as to whether the accused's ability to operate a motor vehicle was impaired, only that he was impaired by a CNS depressant. This was an error. The law is clear that whatever level of impairment, regardless of how slight, will make out the offence.
R. v. Stellato, 1994 CanLII 94 (SCC), [1994] S.C.J. No. 51 (SCC)
144In Jansen, it would appear that the trial judge did not have the benefit of a video recording of the DRE examination. Otherwise, he would have been able to come to his own conclusions regarding whether the accused's ability to operate a motor vehicle was impaired. He found it "particularly troubling" that the DRE never expressed to the court the degree of impairment that the accused was exhibiting. Fortunately, that is not a problem in the present case as the video recording makes it clear that Ms. Tucker's ability to operate a motor vehicle was extremely impaired.
R. v. Jansen, [2010] O.J. No. 959 (OCJ) at para. 59
145The trial judge goes on to find that the urine analysis was unhelpful because it "left many important questions unanswered". "How much of the drug was found? What was the absorption rate of the drug?" The problem with this line of thought is that it puts too high of a standard on the abilities of the currently available scientific procedures. If the answers to such questions were required in order to convict an accused, there would never be any convictions. The Crown concedes the obvious weaknesses in the current urine analysis procedures. They are unable to say with exact certainty when or how much of a drug was consumed. However, this is exactly why the urine analysis only forms part of the Crown's case. It is but one piece of the puzzle that allows the trier of fact to come to the conclusion that the accused was impaired by a drug. The trial judge in Jansen was expecting way too much from the current testing procedures. In fact, in R. v. Henry, such a line of thinking was specifically rejected. The Henry case was upheld by the Ontario Court of Appeal, making it the leading decision in this area.
R. v. Jansen, [2010] O.J. No. 959 (OCJ) at para. 60
R. v. Henry, 2014 ONSC 4115 (CanLII), [2014] O.J. No. 3275 (SCJ) at para. 44
R. v. Henry, [2014] O.J. No. 3989 (ONCA)
146The trial judge in Jansen also felt that the accident could not be used as evidence of impairment at the time of driving as many accidents occur on a daily basis where neither drugs nor alcohol are a factor. This would be an error in law. The fact that an accident occurred would not have been evidence of impairment because there was no evidence that the accused had been operating the vehicle. However, if there was evidence that the accused had been driving when the accident occurred, then it is undoubtedly one piece of evidence that could be used to support a finding of impairment. There is an abundance of case law that supports the position that unexplained accidents can be taken into account when making a determination as to impairment.
R. v. Jansen, [2010] O.J. No. 959 (OCJ) at para. 65
R. v. Watts, [2007] O.J. No. 1382 (ONCA)
R. v. Boomer, [2001] B.C.J. No. 760 (BCCA) at para. 22
147In the case of Ms. Tucker, we are not dealing with an unexplained vehicle collision, we are dealing with extremely bad driving over a prolonged period of time. As such, there is more than sufficient evidence to relate the issue of impairment back to the time of driving. I have considered the following evidence, all of which relates Ms. Tucker's impairment back to the time of driving:
(a) creeping into an intersection when the light was red;
(b) remaining in the intersection stopped when the light was green;
(c) mounting a curb;
(d) abruptly swerving in front of the civilian witnesses' car without signalling;
(e) driving into oncoming traffic and almost hitting a transport truck head-on;
(f) driving through a parking lot and almost hitting a cyclist;
(g) running two red lights;
(h) pulling a U-turn across four lanes of traffic;
(i) making sharp turns with tires squealing; and
(j) driving at varying and erratic speeds.
148The fact that at some point she may have been driving on a flat tire does not explain the driving that was observed. In fact, it has been held that the decision to continue to drive an unsafe vehicle over an extended period can be evidence of impairment.
R. v. Suchora, [2002] O.J. No. 3865 (OCJ) at para. 40
149Not only was Ms. Tucker exhibiting signs of impairment while operating the vehicle, there were also significant signs of impairment shortly after exiting the vehicle such as swaying off balance, exaggerated speech, the poor performance on the SFST's, and the unusual and aggressive behaviour she exhibited when she was attempting to kick her way out of the Officer's vehicle.
150In Jensen the Crown argued that the observations of the arresting Officer, taken together with the opinion of the evaluating officer, was sufficient to relate back the conclusion of the evaluation to the time of driving. The trial judge had the following to say:
While there may very well be cases where such a conclusion is inescapable, having regard to the prominence and severity of symptoms exhibited at the time of arrest, the evidence in this case in that respect was far from compelling, and I was left in great doubt as to the existence of an impairment of ability to drive at the time of arrest.
R. v. Jansen, [2010] O.J. No. 959 (OCJ) at para. 63 (emphasis added)
151The facts in the case before me are significantly distinguishable from the facts in Jensen. I conclude that there is no doubt regarding impairment at the time of driving and that this conclusion is inescapable.
152Such a conclusion was also inescapable in the case in R. v. Allen, which is strikingly similar to the present case, right down to the testimony of Dr. Rosenbloom. He testified for the defence and attempted to provide innocent explanations for indicia of impairment. In Allen, the accused was observed by civilian witnesses drifting into oncoming traffic. He was stopped by police shortly thereafter and appeared dazed and confused. His speech was slow and slurred. In the words of the officer, "he just didn't appear right". An SFST test was conducted and the accused performed poorly. He was taken to the station for a DRE evaluation and it was determined that he was under the influence of a narcotic analgesic and a central nervous system depressant. An analysis was performed on a sample of the accused's urine. Cocaine, lorazepam, oxycodone and methadone were detected.
R. v. Allen, 2015 ONSC 4154 (CanLII), [2015] O.J. No. 5646 (OCJ)
153In addition to the terrible driving and indicia of impairment at the roadside, there are numerous other similarities between Allen and the present case. In Allen, the officer noted that his condition seemed to deteriorate as time went on. He became very dozy and tired and even fell asleep at one point. In the words of the officer, "he appeared to be on the nod". Furthermore, Mr. Allen testified that he had last consumed drugs the day before his arrest and that the indicia of impairment he exhibited was due to exhaustion.
R. v. Allen, 2015 ONSC 4154 (CanLII), [2015] O.J. No. 5646 (OCJ) at paras. 40, 51, 92-97
154The issue in the Allen case was whether the Crown had proven beyond a reasonable doubt that the impaired state of the accused was as a result of a drug. The defence submitted that there was no way to reliably determine whether the signs of impairment were caused by drugs, exhaustion, hypothermia or dehydration as the results of the urine analysis could not demonstrate when or how much of the drug was consumed. Dr. Rosenbloom was called by the defence to support the position that the indicia of impairment could have alternative explanations.
R. v. Allen, 2015 ONSC 4154 (CanLII), [2015] O.J. No. 5646 (OCJ) at paras. 6-7, 146-148
155Justice McKerlie conducted a careful and detailed analysis of the case. She rejected the evidence of the accused as it was "fraught with internal inconsistencies". She found that his evidence was "self-serving, incredible, and unreliable". The learned Justice noted that Mr. Allen's testimony was inconsistent with the civilian witnesses, whose evidence she did accept as credible and reliable. Furthermore, she noted that Mr. Allen had poor memory to virtually every detail other than the details that would assist him in his defence. All of the same can be said with respect to the evidence of Ms. Tucker. In particular, the sudden lapses of memory resulting in purely self-serving testimony.
R. v. Allen, 2015 ONSC 4154 (CanLII), [2015] O.J. No. 5646 (OCJ) at paras. 56, 190, 160, 162, 164
156Justice McKerlie then turned her mind to whether the Crown had proven beyond a reasonable doubt that the impairment of the accused was attributable to drug consumption:
In 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. (Emphasis Added)
R. v. Allen, 2015 ONSC 4154 (CanLII), [2015] O.J. No. 5646 (OCJ) at para. 193
157Justice McKerlie convicted the accused based on the totality of the circumstances. The fact that the urine analysis was unable to show when the drugs were consumed or relate the effects of those drugs back to the time of driving was not a barrier to conviction when all the surrounding circumstances were taken into consideration. The same is true with respect to Ms. Tucker.
158The Honourable Justice Pockele came to a similar conclusion in R. v. Henry. Mr. Henry was observed driving erratically, and when he was pulled over he was exhibiting the classic symptoms of impairment. He admitted to the Officer that he had consumed marihuana approximately 3 hours prior to being stopped. He was arrested and taken for a DRE evaluation. The evaluating officer formed the opinion that his ability to operate a motor vehicle was impaired by a drug, specifically marihuana, and a sample of his urine was taken. However, the analysis revealed that Mr. Henry did not have any of the psychoactive elements of marihuana in his system, but rather only the metabolites indicating that he had consumed marihuana at some earlier point in time.
R. v. Henry, [2013] O.J. No. 6360 (OCJ) at paras. 1-13
159Regardless of the results of the urine analysis, Justice Pockele was satisfied beyond a reasonable doubt that the accused had been impaired by a drug and registered a conviction. He had the following to say with regards to the urine analysis:
On the other hand, this test is not deemed to be the gold standard of drug testing. More accurate and thorough results are obtained when blood samples are taken but this is rarely done, since it requires the supervision of a qualified medical professional. There are issues regarding the actual urine-taking process which make it less effective as an exclusionary test. In the end, while this test was not confirmatory of impairment by marihuana, it was not necessarily exclusionary.
R. v. Henry, [2013] O.J. No. 6360 (OCJ) at para. 13 (Emphasis Added)
160Despite the fact that the urine analysis was unable to demonstrate that the accused had drugs in his system and could not be related back to the time of driving, Justice Pockele was nevertheless satisfied of the accused's guilt based on the totality of the evidence:
Having regard to the erratic driving behaviour, again, the evidence of the investigating officer who observed the erratic driving behaviour, the evidence of the Drug Recognition Expert and the intensive tests undertaken under the 12-step protocol, the manifest impairment by marijuana, the admission that he had consumed marijuana, and even symptoms of the accused considering the toxicology report, while not supporting the prosecution's case does not negate it, I find the Crown has proven the impaired charge on the criminal standard of proof beyond a reasonable doubt.
R. v. Henry, [2013] O.J. No. 6360 (OCJ) at para. 25
161The decision of Justice Pockele was upheld by the Superior Court of Justice. Justice Rady had the following to say while upholding the decision of the trial judge:
The trial judge's decision is consistent with the analysis contained in R. v. Bingley (supra). A conviction may result from the drug recognition expert's evaluation, the observations of investigating officers, lay witnesses or a combination thereof. The urine analysis may or may not provide corroboration. Although the appellant may not have had THC in his urine, this did not preclude the conclusion that it was in his system at the time he was driving.
R. v. Henry, 2014 ONSC 4115 (CanLII), [2014] O.J. No. 3275 (SCJ) at para. 44
162A further appeal was also dismissed by the Honourable Justice Hourigan of the Ontario Court of Appeal, making the Henry case the leading case in this province on the issue of impaired by drugs.
R. v. Henry, [2014] O.J. No. 3989 (ONCA)
Conclusion
163The Henry case has established that a conviction for operating a vehicle while impaired by a drug can result from the Drug Recognition Expert's evaluation, the observations of investigating officers, lay witnesses or a combination thereof. All of this evidence was provided in the present case. There is additional evidence of impairment by drug contained in the medical records.
164There is no requirement in law that the evidence of the DRE evaluation be related back to the time of driving. This is particularly the case when the evidence of impairment consists of not only the DRE Evaluation, but also of evidence regarding dangerous driving and SFST tests conducted immediately after driving.
165Accordingly, the Crown has proven this case beyond a reasonable doubt and a conviction is registered.
Released: June 20, 2016
Signed: "Justice Lesley M. Baldwin"
Footnote
1The doctor also issued a Form 1 under the Mental Health Act to keep Ms. Tucker in hospital because she was adamant about leaving. Hospital security was alerted.
