WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;
Between:
Her Majesty the Queen
— AND —
D.A.H., a young person
Before: Justice P. K. Doody
Heard on: May 18 and 19 and September 8, 2016
Reasons for Judgment released on: October 3, 2016
Counsel:
- Michael Boyce, counsel for the Crown
- Ross Stewart, counsel for the defendant
Doody J.:
Introduction
1The defendant is charged with driving while his ability to operate a motor vehicle was impaired by a drug, contrary to s. 253(1)(a) of the Criminal Code. Defence counsel raises two issues, submitting:
a. that the officer did not have reasonable and probable grounds to arrest the defendant, so that his rights under s. 8 and s. 9 of the Charter were infringed and the evidence resulting from that arrest should be excluded under s. 24(2); and
b. that the Crown has not proven beyond a reasonable doubt that his ability to drive was impaired by a drug.
2While defence counsel made some submissions about whether the evaluation by the Drug Recognition Expert (DRE.) was carried out "as soon as reasonably practicable" as required by s. 254(3.1), that issue does not affect my decision. No application was made for a ruling that the failure to carry out the tests as soon as reasonably practicable had infringed any of the defendant's Charter rights. Nor is there a presumption of identity for the results of the DRE's analysis such that its result is proof, in the absence of some other evidence, of whether the defendant was impaired at the time of driving, as there is by s. 258(c) for breath samples in charges of driving with a blood alcohol level over 80 mg in 100 ml of blood.
3The trial proceeded as a blended voir dire.
Basic Facts
4The defendant was alone in his car at some time shortly before 11:30 a.m. on June 12, 2015. He struck a tree on the left side of the road. It was a single car accident – there were no other vehicles on the road at the time. The airbags deployed. The drivers' side door could not be opened. The defendant left the vehicle through the passenger door. He had sustained a cut to his head and was bleeding.
5Cst. Thomas Mondoux was dispatched to the scene. At 12:03 p.m. he arrested the defendant for driving while his ability to do so was impaired by a drug. At 12:05 p.m. he demanded that the defendant submit to an examination by a DRE to determine whether his ability to operate a motor vehicle was impaired by drug. Cst. Lisa Grison, who has been accredited as a DRE by the International Association of Chiefs of Police conducted an evaluation of whether the defendant's ability to drive was impaired by a drug at 2:00 p.m.
First Issue – Reasonable and Probable Grounds for the Arrest
The Law in Respect of Reasonable and Probable Grounds to Arrest
6An arrest without reasonable and probable grounds is a breach of s. 9 of the Charter. On an application to exclude evidence as a result of a s. 9 breach, the onus is on the defendant to establish the breach on a balance of probabilities.
7In R. v. Guenter, [2011] O.J. No. 2233 at paragraph 28, Justice Rutherford of the Superior Court summarized many of the principles dealing with this issue. As he indicated, he took these principles from the decision of the Ontario Court of Appeal in R. v. Bush, 2010 ONCA 554. He wrote:
Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed the offence of impaired operation or driving over 80. Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case.
Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer's belief must be supported by objective facts. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest.
Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom.
There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest. Impairment may be established where the prosecution proves any degree of impairment from slight to great. 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.
Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered. That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case. In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene without the luxury of judicial reflection. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni [2001] O.J. No. 5189, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information.
That there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable. Consideration of the totality of the circumstances includes the existence of an accident. That the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration.
There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds. There is no requirement that a roadside sample be taken. The ASD provides evidence of the blood alcohol concentration in the suspect's blood, not evidence of impairment. A trained police officer is entitled to draw inferences and make deductions drawing on experience. The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the arrest she subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in a very short time is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual.
8I would add to the above summary the general principle that in deciding whether reasonable and probable grounds to arrest exist, an officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable. (R. v. Golub (1997), 117 C.C.C. (3d) 193 at para. 21 (O.C.A.))
The Evidence in Respect of Reasonable and Probable Grounds for the Arrest
9When Cst. Mondoux arrived at the scene, he noticed that the roads were wet. The fire department and ambulance were already there. He saw that the vehicle had crashed into a tree "pretty severely". He testified that the front end was "totalled" and the airbags were deployed.
10He went up to the vehicle. The driver's door was jammed shut so he stuck his head in the passenger door. He noted an odour of marijuana which he described as being recently burned – "not something like two weeks ago".
11He then spoke with Jessica Phillips, the ambulance attendant. She told him that she had spoken with the defendant who had told her that he was driving too fast and had lost control.
12Ms. Phillips testified that she had been told this by the defendant. It was her evidence that the defendant also told her that he estimated that he was driving 60 kilometres per hour at the time of the accident. Ms. Phillips also testified that the interior of the car smelled like recently burned marijuana.
13At the ambulance, Cst. Mondoux spoke to the defendant. He was being treated for cuts on his face and hand. Cst. Mondoux testified that his gaze seemed a bit unfocussed. He appeared to be under the influence of something. Cst. Mondoux believed that it was marijuana.
14He asked the defendant why his vehicle smelled like marijuana and if he had smoked marijuana and he replied that he had, earlier in the day. Cst. Mondoux noted that the defendant seemed to be rather calm and relaxed for someone who had just had a major accident.
15Cst. Mondoux was questioned about the times he obtained the information described above. He did not have a note in his duty book of the time he arrived at the scene. He testified that he was dispatched at approximately 11:30 and "would have" arrived "before noon, I would say around - probably 11:45". In cross-examination, it was put to him that he had told Cst. Grison that he had arrived at 11:47 a.m. His response was to say "then that is what I told her. I was pretty close."
16Cst. Mondoux testified that he "probably" went to the car first after arriving at the scene. He agreed with the suggestion that it probably took a minute or two for him to make his observations at the car. He then walked over to the bus stop near the ambulance to speak to Ms. Phillips. He estimated that that conversation took about a minute. He agreed with defence counsel that by the time he finished speaking with her, it would have been 11:51. He testified that he then went to speak to the defendant in the ambulance. The defendant had been bandaged and was being assessed by the paramedics. He then spoke with the defendant. He estimated that that conversation would have taken about five minutes. He agreed with defence counsel that the time when he finished the conversation with the defendant would have been at least 11:55 or 11:56.
17There was nothing in Cst. Mondoux's notes about him calling Cst. Grison. It was put to him that he had called Cst. Grison at 11:50 because that was what she was going to testify to. In the same question, defence counsel put to Cst. Mondoux that in as little as three minutes after he had arrived at the scene, he had already made up his mind to call Cst. Grison to conduct a DRE exam. Cst. Mondoux's answer was "well, if I called her, I called her." When it was suggested to him that he had called for a DRE exam even before speaking to the defendant, he responded "if she put it in her notes – honestly, I do not remember calling her before I spoke with him, but I – yeah."
18Cst. Grison did not testify that Cst. Mondoux told her that he had arrived at 11:47. When she was questioned about this by defence counsel, she said that either he had told her or she saw it on the internal computer system of the police service, which will indicate a time when an officer arrives at a scene if he or she pushes an "on-scene" button on the terminal.
19Cst. Grison testified that she was contacted by Cst. Mondoux at 11:50 a.m. He explained the circumstances and asked her to attend to conduct a DRE evaluation on the defendant. The time of 11:50 was noted by her when she made notes in her duty book after 12:34 p.m. when she arrived at the hospital where the defendant was being taken. She also testified that her conversation with him was over by 11:58, because by 11:59 she was driving to the hospital.
20At 12:03 p.m. Cst. Mondoux arrested the defendant for driving while his ability to do so was impaired by a drug.
21He testified that when he arrested the defendant, he believed that he was impaired by marijuana while he was operating the vehicle. When asked to explain the grounds for that belief that he formed while in the ambulance speaking to the defendant, he said that he relied on the statements by the defendant that he had consumed marijuana; the defendant's unfocused gaze and relaxed state and that he did not provide any explanation for the accident being a single car collision.
22In cross-examination, he testified that at the time of the arrest he did not have any evidence as to the speed of the defendant's vehicle at the time of the crash. This was contrary to the evidence he had given in chief that he had been told by Ms. Phillips that the defendant had told her he had been driving too fast.
Analysis of Reasonable and Probable Grounds Issue
23Defence counsel submitted that Cst. Mondoux had decided to arrest the defendant and require him to submit to a DRE evaluation by 11:50 a.m., only three minutes after he arrived at the scene and before he had spoken to the defendant. In making this submission, he was relying on the evidence with respect to times set out above.
24Cst. Mondoux testified that he did not remember calling Cst. Grison before speaking with the defendant. He did not believe that he had done so. His evidence was clear that he had spoken to the defendant before forming his belief that he had been operating the vehicle while impaired by a drug.
25Furthermore, the evidence as to timing relied upon by the defendant is not compelling. Cst. Mondoux has no note as to the time he arrived at the scene. The times of 11:47 and 11:50 as when Cst. Mondoux arrived at the scene and telephoned Cst. Grison, the keystones upon which this submission rests, are found in Cst. Grison's notes made after she arrived at the hospital at 12:34, more than forty minutes later. There was no evidence that Cst. Grison's watch and Cst. Mondoux's watch were displaying the same time that day. The calculation of times made by defence counsel in his cross-examination of Cst. Mondoux cannot be said to be precise. I conclude that Cst. Mondoux had spoken to the defendant before calling Cst. Grison to ask her to conduct a DRE examination. The defendant has not met his onus of establishing the opposite on the balance of probabilities.
26In any event, he clearly spoke to the defendant before he arrested him at 12:03 p.m. By then, regardless of when Cst. Mondoux had spoken to Cst. Grison, the defendant had told Cst. Mondoux that he had consumed marijuana earlier that day and the officer had observed his relaxed demeanour and unfocused gaze.
27At the time of the arrest, Cst. Mondoux had the following bases for his belief that the defendant's ability to drive was impaired by alcohol:
- He had admitted consuming marijuana that day;
- He was in an unusually relaxed state;
- He had been involved in a single vehicle collision;
- He had lost control of his vehicle and hit a tree (as imparted to him by Ms. Phillips, who had been told this by Skye Sell, who had been waiting at the bus stop at the time of the accident); and
- There was an obvious odour of freshly burned marijuana in the vehicle.
28Defence counsel submits that Cst. Mondoux ought to have waited to speak to Ms. Sell, who had left the scene to go to work before he arrived. He did speak with her later that day. This submission has as its basis the Court of Appeal decision in Golub in which the court held that the officer must conduct the inquiry which the circumstances reasonably permit. That decision must be read in conjunction with the decision in Bush in which the court held that the issue is not whether the officer could have conducted a more thorough investigation.
29In my view, the circumstances did not reasonably permit Cst. Mondoux telephoning Ms. Sell before deciding whether to arrest the defendant. Even if he had done so, he would not have learned anything to displace the bases upon which he was relying. Ms. Sell testified that she saw the defendant lose control and hit a tree. Cst. Mondoux testified that when he did speak to her, after the arrest, she told him that the defendant was driving fast, lost control, and hit a tree. That information did not contradict any of the facts upon which Cst. Mondoux was relying.
30I find that Cst. Mondoux had reasonable and probable grounds to arrest the defendant. He believed that he had driven while his ability to do so was impaired by a drug. The basis of that belief was objectively reasonable.
Impairment Issue
The Law in Respect of Proving Impaired Ability to Operate a Motor Vehicle
31Most of the jurisprudence in respect of this issue arises out of charges of impairment by alcohol. Impairment by drugs presents special challenges because of the different nature of the effect of drugs on individuals and the lack of obvious signs of impairment such as glassy eyes, an odour of alcohol, and slurred speech.
32The offence of impaired driving has been made out where the evidence of impairment establishes beyond a reasonable doubt any degree, from slight to great, of impairment by alcohol of the defendant's ability to operate a motor vehicle. (R. v. Stellato, 78 C.C.C. (3d) 380, aff'd, [1994] 2 S.C.R. 478)
33Slight 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 at para. 47 (S.C.J. per Hill J., cited with approval in R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 at par. 47 (C.A.))
34In analyzing the evidence in order to decide if the offence has been proven, the courts have frequently considered the various matters set out in R. v. McKenzie, (1955), 111 C.C.C. 317 (Alta. D.C.). As the Ontario Court of Appeal held in Bush, these matters are appropriate to consider as an approach to the weighing of the evidence, to determine whether the defendant's conduct viewed objectively was consistent only with impairment and inconsistent with some other explanation. They are not the only measures to consider; other things to take note of include the manner of driving, reaction to the attempts of the police to have the driver stop his or her vehicle, and behaviour while interacting with police. No one factor should be considered in isolation; all of the circumstances must be taken together. (R. v. Andrea, 2004 NSCA 130 , [2004] N.S.J. No. 399 (C.A.)) In McKenzie, Sissons D.C.J. stated:
There appears to be no single test or observation of impairment of control of faculties, standing alone, which is sufficiently conclusive. There should be consideration of a combination of several tests and observations which, in charges of impairment by alcohol, include such things as general conduct, smell of the breath, character of the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes, and character of the breathing.
35Where the offence charged is impairment by drug, Parliament has authorized the DRE tests. As the Court of Appeal held in R. v. Bingley, 2015 ONCA 439, 325 C.C.C. (3d) 525, DRE officers may give opinion evidence, without meeting the usual requirements of qualification as expert witnesses, on the issue of whether the defendant's ability to operate a motor vehicle is impaired by a drug. That opinion must be given after administering a series of tests specified in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196. The DRE's opinion is not, however, determinative of the issue. It is for the court to decide what weight to give to the DRE's opinion evidence. The Regulations do not specify how the results of the prescribed tests can be used to reach a conclusion on impairment. It is open to defence counsel to cross-examine the DRE on the methodology that was used and on how the DRE reached her conclusion.
Evidence in Respect of Impairment
36In addition to the evidence already described, Skye Sell, Cst. Grison and Dr. Daryl Mayers, a toxicologist from the Centre for Forensic Sciences, gave evidence on this point.
(a) Evidence of Cst. Mondoux
37Cst. Mondoux testified that after he had given the DRE demand to the defendant, he went back to the vehicle. He seized a grinder that could be used to grind marijuana, a small empty baggie, and rolling paper. The grinder had residue on it that he believed to be marijuana.
(b) Evidence of Skye Sell
38Ms. Sell is a second year student studying biology at Carleton University. She was waiting for a bus at the bus stop. She testified that it had been raining most of the morning and the road was wet. She was listening to music with ear buds and did not hear the car approaching. Nor did she recall hearing the sound of tires screeching. She noticed the car just before the accident. She said that she was not paying too much attention to the vehicle until it hit the tree. She testified that she thought that it was going a little fast. She only saw the car for a few seconds, however. The car came around a bend in the road and veered to the left side. It lost control and the front end of the car hit the tree on the left side of the road. The car ended up perpendicular to the road. The front end was crushed in.
39She saw that the defendant was unable to open his door. He crawled out of the passenger door. She brought him back to the bus shelter. He was bleeding from his head.
40She testified that he was a little dazed and confused for the first few moments and it took him a few minutes to come to the understanding that he was okay. She believed that he was in shock. He was coherent and able to respond to questions. She asked him for his name and age to test his coherence. He responded appropriately, telling her his name and that he was 17 years old. She asked him how many fingers she was holding up and a few general questions she had been taught to ask in a first aid course and he answered those questions appropriately as well.
41Ms. Sell went to the vehicle and looked inside it. She was there only a few moments. It was very smoky, with smoke coming through the air vents from the direction of the engine. She could not recall the scent or smell of the smoke.
42The fire fighters were the first responders to arrive. She was still on scene when the paramedics arrived. She spoke to a firefighter very briefly. She left to go to her part time job before the police arrived. She spoke with Cst. Mondoux at approximately 12:15 to 12:30.
(c) Evidence of Jessica Phillips
43Ms. Phillips, the paramedic, arrived on scene at 11:35 and went immediately to the defendant, who was in the bus shelter. She spoke with the defendant. He told her, as I have said earlier, that he had lost control of his car, he was driving too fast, and he estimated his speed to be 60 kilometres per hour. She had put quotation marks around the words "lost control""driving too fast" and "60 km an hour" in her incident report to indicate that they were verbatim records of what he said to her. Defence counsel admitted that the statements made by the defendant to Ms. Phillips were voluntary and waived the necessity of a voir dire, agreeing that they were admissible for the truth not just on the voir dire but on the trial, which was held as a blended voir dire.
44She examined the defendant. She found two small lacerations, one inch in size, on his forehead. His bleeding had been controlled by the fire fighters. She did a preliminary assessment. His breathing was normal. His heart rate was slightly elevated, which she testified was normal considering his situation. She noted no other abnormalities. She graded his level of consciousness as "alert and aware of situation". He was not confused. He was oriented to his person and place. He knew who he was and where he was.
45He seemed stressed about the situation and maybe a little flustered. When asked what he appeared to be stressed about, she testified that in her view it was the accident – that it was stressful for everyone to be there – her, the firefighters, and the police.
46She went to the vehicle and noted a smell of marijuana that had been burned.
(d) Evidence of Dr. Daryl Mayers
47Dr. Daryl Mayers testified as an expert witness. He is a forensic toxicologist and has been employed at the Centre of Forensic Sciences since 1992. He holds a doctorate, a Master's of Science, and a Bachelor of Science, all in toxicology. He is very experienced in researching, studying, observing, and teaching the pharmacological and toxicological effects of alcohol, drugs, and poisons on the central nervous system and the isolation, detection, and quantification of alcohol, drugs, and other biological components.
48Dr. Mayers was, on consent, qualified to give expert evidence in the area of forensic toxicology and the absorption, distribution, and elimination of drugs, alcohol, and similar volatile substances in the human body and the impairing effects of drugs, alcohol or similar volatiles on the human body, and the ability to operate a motor vehicle.
49Dr. Mayers tested a urine sample provided to Cst. Grison at the hospital at 16:15 hours on the day of the accident. The urine contained THC and Carboxy-THC. The latter substance is a metabolite of THC, which is the principal psychoactive ingredient in cannabis. Carboxy is inactive. Carboxy can be present in urine for weeks after ingestion of cannabis. When it is found in urine along with THC, cannabis was probably ingested within the last several hours. He could not be more accurate than that about the time of ingestion.
50He testified that it is not possible to calculate the concentration of TCH in the blood with only the concentration in the urine. Blood concentration is what is required to provide an opinion as to the effects of the drug, including potential impairment, on an individual at a given time. As he wrote in his 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.
Tetrahydrocannabinol (THC) is the principal psychoactive constituent of cannabis products such a marijuana and hashish. Effects that occur after use of this drug may include mild euphoria, relaxation, altered time perception, motor incoordination and decreased ability to concentrate. The inactive metabolite, carboxy-THC, demonstrates a much longer time course compared to the parent compound (THC) due to slow release and subsequent metabolism of THC from tissue stores.
51He was asked to expand on paragraph 2 from his report, quoted immediately above. He testified that the effect of THC on one's ability to drive is a lot more complicated than is the effect of alcohol. In addition to blood concentration, it is necessary to know the time it was last ingested. THC has a rapid response rate. Users feel its effects very rapidly but most studies show that the effects diminish within 3 to 4 hours to a point that a person's ability to operate a motor vehicle would not be impaired. The effects will diminish in some persons more rapidly than others.
52He testified that there is a significant difference among persons in the speed at which THC is excreted. Its "half-life" in the body varies among different persons from 20 hours to 60 hours. The time frame over which the drug's effects are lost varies among persons. It is also affected by the potency of the drug being used and how it is used.
53He was asked if the effects of THC have any correlation to outward signs or symptoms. He testified that it can affect motor coordination, so that a person under the influence might have difficulty with balance and stability. A person under the influence doing something complex might show some swaying or distortion from his or her normal gait.
54The drug can also produce altered time perception, causing a person to underestimate the time that has passed. THC increases the size of the blood vessels in the eyes, causing red eyes.
55He was asked if THC causes body or eye tremors. He carefully noted that he had never encountered anything that suggested that body or eye tremors was indicative or not indicative of cannabis ingestion.
56He was asked if he had an opinion as to whether cannabis and its ingredient THC could have an impact on the ability of an individual to operate a motor vehicle. He replied that it was certainly possible and there is a lot of data in the literature that supports that position. There is also data that counters that view, but in his opinion that is a result of study design.
57He testified that unless one knows the concentration of THC in a person's blood, and the time of ingestion, it was very difficult to be definitive about its effect on the ability of a person to operate a motor vehicle. A person who has ingested the drug may have difficulty keeping a car in its lane or in reaction time if it is present in the relevant concentration and was ingested at the appropriate time.
58Dr. Mayers was given a hypothetical situation in which an individual ingests .4 grams of marijuana early in a day and was tested for their motor skills between 2:00 p.m. and 3:00 p.m. the same day. He was asked if it would be reasonable that that person would show little or no signs of impairment. He responded that it would be reasonable and that he would not expect such a person to be impaired by 11:00 a.m. or noon. It was his evidence that outside a 4 hour window following ingestion it is unlikely that a person would be impaired by cannabis, although it could be detected in the urine.
(e) Evidence of Cst. Lisa Grison
59Cst. Lisa Grison has been a certified drug recognition expert since January 20, 2014. In order to obtain that certification, she attended a three week course in Jacksonville, Florida. Two weeks were spent on in class training and one week on testing of individuals who had consumed various drugs. 14 evaluations are carried out by each attendee on these subjects in order to determine whether they are impaired by a drug and, if so, which drug. Since being certified Cst. Grison has conducted 16 evaluations with the Ottawa Police Service or the Ontario Provincial Police.
60Cst. Grison testified that she was contacted by Cst. Mondoux at 11:50 a.m.. He told her that the defendant had hit a tree, that he had smelled marijuana in the vehicle, and that he had located a grinder, a baggie and rolling paper. He also told her that the defendant had dilated pupils. I note that Cst. Momdoux gave no evidence about dilated pupils in this trial.
61She then went to the hospital where she had been told the defendant was being transported, arriving at 12:34 p.m. She was told by medical staff that the defendant had not yet been cleared medically so she was unable to conduct her evaluation. She spoke with Cst. Mondoux who told her that the vehicle had left the road and struck a tree, travelling at a high rate of speed. He told her that the defendant had told him that he had smoked marijuana earlier in the day, that his pupils were dilated, and that he seemed very relaxed for someone who had been in a motor vehicle accident.
62The defendant was medically cleared to proceed with the evaluation at 2:00 p.m. Cst. Grison then commenced the evaluation. She testified that the purpose of the evaluation was to determine whether the individual was impaired and, if so, by which category of drug among the seven categories available.
63She smelled burnt marijuana in the room in which she interviewed the defendant. She noted that he was very relaxed and used his cell phone several times while they she was speaking with him. She had to repeatedly tell him to put his phone away. She concluded from that that he was not taking the situation seriously – that he was treating it as kind of a joke.
64She noted that he was fidgety. He spoke few words. When he did it was in a slow cadence.
65She testified that, in her opinion, it is not unusual for individuals who are under the influence of cannabis to be not stressed or not take things seriously. She said that that was typical of someone under the influence of cannabis. She also testified that she has seen individuals under the influence of cannabis who are fidgety or shaky.
66His pulse rate was 78 beats per minute. She testified that the normal range is 60 to 90 beats per minute. She said that 78 was "toward the higher end of the normal range".
67It was her evidence that since the peak of cannabis' effects is between 15 and 60 minutes, perhaps as long as 90 minutes, after consumption, and she was testing the defendant 2 ½ hours after the collision, she was not surprised to see a pulse rate which was not above normal. She would expect to see fewer and fewer physical and clinical symptoms from the drug with the passage of time.
68She noted that his eyes were normal. No vertical nystagmus (involuntary jerking of the eyes) was noted. She examined the pupil size to see if it was abnormal. She determined that the pupils were a normal size. No horizontal nystagmus was present when she performed the two prescribed tests.
69She performed a test called "lack of convergence" in which she moved a stimulus in a circle in front of the defendant's face, asking him to follow it. She brought it within 2 inches of the bridge of his nose. His eyes did converge on it, but after a second his left eye rolled towards the down side of his eye socket. She said that this was one indicator of potential cannabis use.
70The "divided attention test" deals with the subject's ability to multitask. In the modified Romberg balance test, he was asked to stand with heels and toes together and his arms at his side. He was told to, on command, tilt his head back, close his eyes, and estimate the passage of 30 seconds. When he believed that 30 seconds had passed, he was to tilt his head forward and open his eyes.
71When he did this, she noticed that the defendant swayed one inch toward his back. He did not sway to either the side or the front. A one inch sway is within the normal range.
72The other component of this test was to measure the defendant's internal clock. The defendant tilted his head forward and opened his eyes after just 23 seconds had passed. Cst. Grisom took from that, in accordance with her instructions to the defendant, that the defendant thought time passed more quickly than it actually did. Cst. Grison testified that cannabis will typically slow down one's perception of time. Since 23 seconds was not close to 30 seconds, this was an indicator that there was some kind of drug operating.
73Cst. Grison also testified that she saw eyelid tremors on the defendant while he was standing with his eyes closed. It was her evidence that many drugs, including cannabis, cause eyelid tremors.
74The next test she performed was the "walk and turn" test. The defendant was told to stand on a line with his heels and toes together, his right foot in front with his left foot touching his right toe, and his arms at the side. She then continued with the instructions while observing him. Twice, the defendant took his right foot off the line and placed it back in position.
75Cst. Grison told the defendant to take nine heel and toe steps down the line, turn around, and take nine more. The turn requires several small steps. He performed the first nine steps appropriately and then stopped and asked if he needed to go again. Cst. Grison's response was to tell him to just follow her original instructions. He then completed the turn and the next nine heel and toe steps. At one point, he raised his arms more than two inches from his body.
76The result of this test was that the defendant was noted to have stepped off the line twice during the instructional phase, asked for more directions, and raised his arms more than two inches on one occasion. When asked if there was a standard against which the results were scored, Cst. Grison responded that there was no standard. Instead, she takes into account the totality of all the observations and clinical indicators in all of the tests.
77The next test was the one legged stand. The defendant is asked to raise one foot six inches off the floor, keeping it parallel to the floor, and count out loud one thousand and one to one thousand and thirty, keeping his foot off the ground, and his arms at his side. He is told to watch his raised foot while he is counting and keep both legs straight.
78While the defendant was standing on his right foot with his left leg raised, he reached one thousand and thirty in 22 seconds. Furthermore, he did not count one thousand and twelve, jumping directly to one thousand thirteen from one thousand eleven. He also extended his arms from his body for balance once. She also noted that he did not follow instructions. Instead of counting starting with one thousand consistently – i.e. with the first number being a spoken one thousand one and the last number being a spoken one thousand thirty – he switched after each ten units, so instead of saying one thousand eleven he said two thousand one, and instead of saying one thousand twenty-one he said three thousand one.
79When the defendant stood on his left foot with his right leg raised, he counted the same way. She noted no balance issues on this test.
80Next was the "finger to nose" test. He stood in the same position, with his heels and toes together and his arms at his side. He was told to turn his palms forward, close his hands, and point his index fingers to the ground (his hand being at his side). He was then asked to tilt his head back, close his eyes, and bring the tip of his finger to the tip of his nose. This is repeated six times, switching between his left hand and his right hand. On three of the six attempts, he touched the tip of his nose. Once he touched to the right of his nose, once to the right of the tip of his nose, and once to the left of the tip of his nose.
81Cst. Grison was asked if there was a standard measurement against which to judge the results. She testified that there was not; the result was simply one of the things she takes into account. He slightly missed three times out of six, so he was having some difficulty finding the tip of his nose which could be an indicator of impairment.
82She also noticed eyelid tremors and body tremors – a slight shaking of his body. She testified that body tremors were not uncommon for someone who may be impaired by a drug.
83She then took the defendant's pulse and blood pressure. Both were normal – 84 beats per minute and 136/82 (with a normal range of 120-140/70-90).
84The next test was to determine the defendant's pupil size. His pupils were all within normal ranges. Cst. Grison testified that this was to be expected with cannabis taken some time before, since its effects peaked 15 to 30 or 45 minutes after consumption, although would continue to act for up to three hours on individuals and in some cases longer. She also checked for "rebound dilation" which can be caused by cannabis. She could see no rebound dilation in the defendant's pupils.
85She also checked the defendant's muscle tone. It was normal.
86She checked for the reaction of his eyes to light. It was normal.
87Finally, she took his pulse one more time. Again it was normal, at 84 beats per minute when she performed this test at 14:54 hours.
88Cst. Grison testified that after she completed her evaluation she concluded that the defendant was impaired by cannabis.
89She was asked to list all the reasons for that conclusion. She listed:
- An odour of freshly burnt marijuana was noted at the scene by Cst. Mondoux
- A marijuana grinder with marijuana residue had been located in the car
- Rolling papers, drug paraphernalia associated with cannabis use, had been located in the car
- A small baggie, typical of marijuana use, had been located in the car
- Cst. Mondoux had noted that the defendant's eyes were dilated at the scene 2 ½ hours before her evaluation
- Cst. Mondoux found the defendant to be very relaxed despite having just been in an accident, and this is an effect of marijuana sometimes seen
- Cst. Mondoux believed that the defendant was impaired by a substance of some kind, and this opinion, from a trained officer with a lot of experience dealing with individuals impaired by alcohol and drugs, is entitled to weight
- She smelled burnt marijuana on the defendant
- His inability to count the passage of time accurately with his internal clock is not uncommon for cannabis use
- He displayed a nonchalant attitude about the circumstances that he was in by repeatedly accessing his cell phone and, when asked if he was under the care of a doctor, responding "right now I am" and laughing
- His slow cadence of speech
- The lack of convergence in his eyes
- His eyelid tremors and body tremors, typical of cannabis use
- His inability to keep his balance in the instruction phase of the walk and turn test
- His seeking further instructions after walking one leg of the walk and turn test
- His inability to follow instructions in the one leg stand test
- His miscounting in the one leg stand test
- His inability to touch the tip of his nose accurately three times out of six
- The circumstances of the accident, with the defendant driving at a high rate of speed.
90During the course of her evidence, Cst. Grison was asked about the extent that her conclusion was affected by the normal scores in parts of her test which tested for signs of cannabis impairment. In every such circumstance, she testified that she expected a normal result because of the length of time since the defendant had been arrested – any effect of cannabis would be expected to have dissipated.
91Cst. Grison was asked both in examination in chief and in cross examination if her opinion as to the defendant's impairment was in respect of the time of his driving or the time of her examination. Twice she said that her opinion was only with respect to the time she performed the tests. When she was asked a third time, she testified that if he was impaired when she tested him, she was confident in saying he had been impaired 3 hours earlier because he had been in police custody for that entire period of time. If he was still impaired at 3:00 pm, she testified, he must have been impaired at noon.
Analysis of Impairment Issue
92Subsection 254(3.1) provided that the evaluation to be conducted by the DRE is "to determine whether the the person's ability to operate a motor vehicle ... is impaired by by a drug…". Crown councel conceded that provision authorizes the DRE to give her opinion on impairment as at the time of the evaluation. In order to provide an opinion of impairment at the time of driving, a witness would have to be qualified as an expert witness. Cst. Grison is not qualified as an expert witness other than the statutory qualification given by Parliament for the limited purpose set out in s. 254(3.1). As Crown counsel put it in an answer to a question, the opinion given by Cst. Grison the third time the question was asked of her is a conclusion that I may draw if I am convinced beyond a reasonable doubt.
93I have concerns with a number of the bases for Cst. Grison's opinion that the defendant was impaired at the time she evaluated him.
94She relied upon Cst. Mondoux's description to her of the defendant's dilated pupils shortly after the accident. Cst. Mondoux did not testify that the defendant had dilated pupils.
95She relied upon the fact that the defendant's internal clock failed to count time accurately, because she noted that he counted from one thousand and one to one thousand and thirty in 22 seconds rather than 30 seconds in the one legged stand test, and opened his eyes after just 23 seconds had passed rather than 30 seconds in the modified Romberg balance test. In other words, he overestimated the time that had passed She gave no evidence as to the range of deviation from actual shown by unimpaired persons when asked to take these tests. I have no doubt that there is a variation among unimpaired persons being subjected to such a test.
96Furthermore, and more importantly, Dr. Mayers testified that cannabis can cause subjects to underestimate the time that has passed, not overestimate it. Given his extensive education and experience in forensic toxicology, I accept Dr. Mayers' evidence.
97The defendant's jocular response of "right now I am" when asked if he was under the care of a doctor may well have simply been an automatic response to what was seen as a silly question when he was in a hospital in the process of being evaluated following a serious collision and had yet to have his lacerations sutured.
98Nor am I satisfied that it is reasonable to draw an inference of impairment from the fact that a teenager was continuously using his cell phone while being questioned. My own extensive life experience with teenagers and young adults allows me to conclude that this is exceedingly normal behaviour and not indicative of any abnormality, let alone impairment.
99Dr. Mayers testified, contrary to Cst. Grison's view, that he had never encountered anything that suggested that body or eye tremors was indicative of cannabis ingestion. I am not satisfied that body or eye tremors can be relied upon as an indicator of impairment by cannabis, given Dr. Mayers' lengthy experience and expertise.
100The defendant was evaluated as normal on a number of the tests performed by Cst. Grison. In every case, she explained the normal result by stating that that was to be expected, given the passage of time since possible ingestion. The effect of this is that the defendant was denied the benefit of a positive evaluation by these tests which may have served to counter the negative conclusion reached by Cst. Grison if the evaluation had been conducted sooner.
101I do not know what Cst. Grison's opinion would have been if the inappropriate factors upon which she relied were removed from the symptomatic picture before her.
102Cst. Grison's opinion stands in contrast to that of Dr. Mayers, who testified that unless one knows the concentration of THC in a person's blood, and the time of ingestion, it was very difficult to be definitive about its effect on the ability of a person to operate a motor vehicle. In this case, we know neither.
103In light of all of the evidence, I am not prepared to place any weight on Cst. Grison's evidence when considering the issue of whether the defendant's ability to drive was impaired by a drug at the time she performed the test. Nor am I prepared to rely on her opinion in order to reach my own conclusion on the issue of impairment at the time of the collision.
104That leaves as evidence on the issue of impairment the circumstances of the accident, the smell of marijuana in the vehicle, the baggie, grinder, and rolling paper in the vehicle, and the defendant's unfocused gaze and relaxed state noted by Cst. Mondoux. The defendant admitted that he was going too fast, estimating 60 in a 50 zone. It was a single car accident, with the car hitting a tree on the wrong side of the road.
105On the other side of the issue, Ms. Sell noted that the defendant responded appropriately to the questions she posed in an attempt to determine if he was concussed. Similarly, Ms. Phillips testified that when she examined the defendant, he was alert and aware of the situation, oriented to his person and place, and not confused.
106We have no admissible evidence of when the defendant last ingested marijuana or how much he ingested. Consequently, on the basis of Dr. Mayers' evidence, no conclusion can be drawn on the basis of what was consumed when.
107Furthermore, the accident could well have occurred simply because of the speed of the vehicle, the wet roads, and the bend in the road.
Conclusion
108I cannot conclude beyond a reasonable doubt that the defendant was impaired in his ability to drive the vehicle at the time of the collision.
109Both charges are dismissed.
Released: October 3, 2016
Signed: "Justice P.K. Doody J."