R v. Hicks, 2020 ONCJ 649

Court File and Parties

Court File No.: London 18-9183 Date: 2020-01-29 Ontario Court of Justice

Between: Her Majesty the Queen — and — Wesley Hicks

Before: Justice Mark T. Poland

Heard on: 27-28 November 2019, 10 December 2019, 20 December 2019, 15 January 2020

Reasons for Judgment released on: 29 January 2020

Counsel:

• K. Thomas, for the Crown
• The defendant Wesley Hicks, on his own behalf

POLAND J.:

INTRODUCTION

1The Crown alleges that Wesley Hicks operated a motor vehicle while his ability to do so was impaired by drug in London on July 16, 2018.

2The allegations in this case arose from a motor vehicle collision. After the collision, and during his interactions with the police, Mr. Hicks demonstrated some unusual behaviours. The motor vehicle collision in this case occurred in circumstances that were odd. Mr. Hicks, a man who is medically compromised, had a variety of drugs in his urine. His motor skills were subpar. He followed directions that were given to him poorly. A Drug Recognition Evaluator provided an opinion that Mr. Hicks' ability to operate a motor vehicle was impaired by two classes of drugs.

3Mr. Hicks was not represented by counsel. He represented himself throughout this proceeding.

OVERVIEW

4Mr. Hicks was arrested for drug impaired driving on Andover Drive in London by P.C. Buckle of the London Police Service (LPS) at approximately 1:30 PM. Prior to arresting Mr. Hicks, P.C. Buckle had been provided information about Mr. Hicks from the civilian witnesses who had been involved in the collision with Mr. Hicks.

5As a result of the information provided by the civilian witnesses, P.C. Buckle first suspected that Mr. Hicks had alcohol in his body. He read Mr. Hicks an Approved Screening Device (ASD) demand. Mr. Hicks provided a sample into the ASD. It registered a zero.

6P.C. Buckle then formed grounds to suspect that Mr. Hicks' ability to operate his motor vehicle was impaired by drugs. He required Mr. Hicks to perform a Standard Field Sobriety Test ("SFST"), conducted by a trained officer. The trained officer, P.C. Pelaez conducted the test and concluded that Mr. Hicks "performed poorly". He relayed this information to P.C. Buckle, who formed reasonable grounds to suspect that Mr. Hicks' ability to operate a motor vehicle was impaired by drugs. He arrested Mr. Hicks, and transported him to LPS headquarters ("HQ").

7At LPSHQ, Mr. Hicks was required to comply with a drug recognition evaluation ("DRE") demand. He was assessed by P.C. Hush who is a trained drug recognition evaluator. P.C. Hush performed what he described as a 12 step evaluation of Mr. Hicks. This evaluation was video recorded. Mr. Hicks performed poorly on a number of the components of the evaluation. Some of the performance deficits that were observable were caused by Mr. Hicks' compromised medical condition. P.C. Hush concluded that Mr. Hicks' ability to operate a motor vehicle was impaired by two classes of drugs: narcotic analgesics and cannabis.

8Mr. Hicks was required to submit a urine sample. He did so. A urinalysis was performed. Ms. Cara Shepard, a toxicologist with the Centre of Forensic Sciences ("CFS") testified that Mr. Hicks' urine contained indications of past use of morphine, codeine, hydrocodone, doxepin and clonazepam. No cannabinoid metabolites were found in Mr. Hicks' urine. Ms. Shephard was unable to give an opinion concerning which, if any, of these substances were present in Mr. Hicks' blood, and thus could potentially have impaired his ability to operate a motor vehicle at the relevant time.

9Mr. Hicks testified. He denied that he had taken any drugs prior to driving, and asserted that his ability to operate a motor vehicle was not impaired by drugs. He disagreed with the explanation of the collision that was offered by the civilian witnesses. He explained some aspects of his interactions with P.C. Hush.

THE ONUS AND BURDEN OF PROOF

10In assessing the evidence, I instruct myself on several key elements of our criminal law. Mr. Hicks is presumed innocent. The Crown bears the burden of displacing that presumption, and can only do so where the level of proof satisfies me that it is beyond a reasonable doubt that Mr. Hicks committed the offence with which he is charged. The burden of proof never shifts. It remains with the Crown. Proof beyond a reasonable doubt is inextricably linked with the presumption of innocence that is expressly enumerated in the Canadian Charter of Rights and Freedoms at section 11(d). A reasonable doubt is one based on reason and common sense. A reasonable doubt can be logically derived from the evidence or the absence of evidence. R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.), at para. 36 and R. v. Sanichar, 2012 ONCA 117 (Ont. C.A.), at para 46.

ISSUES

11There are two issues in this case:

(1) Issue #1 – Is the eyewitness testimony capable of supporting a conclusion about drug impaired driving that can stand independent of the expert opinion evidence about impairment?

(2) Issue #2 – What weight and effect should be afforded to the expert opinion evidence in this case?

12As I consider these issues, I recognize of course that neither issue exists in isolation from the other, and that my duty is to look at all the evidence as a whole when considering Mr. Hicks' culpability.

ISSUE #1 – ASSESSING THE EYE WITNESS EVIDENCE

13The eye witness evidence in this case has three key components:

1. The testimony of the civilian witnesses;
2. The testimony of P.C. Buckle, the investigating officer; and
3. The testimony of Mr. Hicks.

The Civilian Witnesses

14Three civilians provided viva voce testimony in this case. Two of the witnesses, Harrison and Kiera McKellar, were occupants of the motor vehicle that was involved in the collision with Mr. Hicks. Linda Goddard was a third-party observer who was sitting in her car parked a short distance away from where the collision occurred.

Harrison McKellar

15Mr. McKellar was the driver of the vehicle that was involved in the collision with Mr. Hicks' vehicle. The front seat passenger in his car was his sister, Kiera McKellar.

16It quickly became clear that Mr. McKellar was confused about where he was driving. Although he admitted that he was "not too good with roads", he first mentioned that the collision occurred as he drove "down Wonderland Road" and was turning left at "Cubby's Bar and Grill". In fact, this collision took place on Andover Drive, a short distance south of the intersection of Andover Drive and Commissioners Road.

17Mr. McKellar said that he spotted Mr. Hicks' vehicle as he approached an intersection. He intended to turn left. Mr. Hicks's vehicle was ahead of Mr. McKellar's vehicle. He had already entered the intersection. Mr. Hicks' vehicle was observed to be stopped in the intersection as Mr. McKellar approached the intersection and entered the left turn lane. Mr. McKellar indicated that Mr. Hicks drove nearly all the way through the intersection to the point of the far side pedestrian crosswalk. Observing that Mr. Hicks' vehicle was not moving, Mr. McKellar turned left at the intersection prior to Mr. Hicks completing his turn. Mr. McKellar described being struck from behind at the point that his vehicle had just completed the left turn.

18Mr. McKellar testified that Mr. Hicks' vehicle made contact with the rear right or passenger side. As a result of the collision, Mr. McKellar's vehicle suffered damage to the rear quarter panel and to the rear right wheel. Mr. McKellar indicated that he exited the car after the collision. Mr. McKellar observed that Mr. Hicks looked "incoherent and really frail". Mr. McKellar described Mr. Hicks as being "aggressive" toward his sister.

19Mr. McKellar saw Mr. Hicks open all the doors on his vehicle and his trunk. He then hung two air fresheners inside the vehicle. During their initial verbal interactions, Mr. Hicks seemed to think that Mr. McKellar's sister had been driving. This confused Mr. McKellar, as it seemed clear to him that Mr. Hicks saw him exit the driver's door and his sister exit the passenger door. In response to a request for information, Mr. Hicks said that he was driving a Nissan motor vehicle. Mr. McKellar noted that Mr. Hicks was actually driving a Chevrolet Equinox.

Kiera McKellar

20Ms. McKellar was the front seat passenger when her brother's car was struck from behind by Mr. Hicks. She indicated that as they approached the intersection of Commissioner's Road and Andover Drive, she observed Mr. Hicks' vehicle in the intersection. She saw his vehicle far into the intersection, to the point that it was practically touching the crosswalk on the west side of the intersection. Her brother turned left onto Andover Drive. Immediately after making the turn, Mr. Hicks struck them from behind.

21After the collision, Mr. Hicks repeatedly stated that the McKellar vehicle had struck his vehicle. Mr. Hicks' vehicle had clearly struck the other car from behind. Furthermore, Ms. McKellar indicated that even though she exited the passenger side of the car, Mr. Hicks continued to assert that she had caused the collision.

22Ms. McKellar testified that the collision occurred immediately after her brother turned left. She agreed that Mr. Hicks' vehicle had caused damage to the rear right side of her brother's car. She indicated that immediately prior to the collision, she heard car tires screeching and yelled to her brother, "We're about to be hit". She believed that this caused her brother to speed up. In her opinion, this minimized the impact of the collision.

23Ms. McKellar observed several indicators that Mr. Hicks might be impaired. She described that Mr. Hicks seemed like he was going to fall as he was walking. Mr. Hicks was slurring his words. She developed the impression that Mr. Hicks was "drunk". She also stated that Mr. Hicks provided the wrong make when he was asked what kind of car he was driving. Ms. McKellar called 911 and told the 911 operator about her observations.

Linda Goddard

24Ms. Goddard was a third-party eyewitness. She was not involved in the collision. She indicated that she had stopped her car at the Pioneer gas station at the intersection of Commissioners Road and Andover Drive to buy cigarettes. She was in her car, in the exit lane of the Pioneer gas bar, attempting to turn left onto Andover Drive. As she looked left, she first saw a black car. She looked to the right to see if she if she could safely exit the parking lot, and when she turned her head to the left again, she saw Mr. Hicks' vehicle. As she testified, Ms. Goddard had difficulty being precise with her observations because according to her, "it happened so fast". Nonetheless, it was her perception that the car being operated by Mr. McKellar was not going quickly, whereas the car being operated by Mr. Hicks was going quickly. Ms. Goddard described that the site of the collision was to the south of her location, between the two exit/entrances to the gas bar. It occurred between the exit that she was stopped in (which was the furthest north, or closest to Commissioners Road) and the second exit to the gas station which was further south on Andover Drive.

25Ms. Goddard indicated that it was her view that Mr. Hicks was either "intoxicated, impaired or mentally compromised." According to her testimony, Mr. Hicks was not making sense during his interactions with the occupants of the black car. He was accusing them of hitting his car, whereas it appeared clear to her that Mr. Hicks had struck the other vehicle. Ms. Goddard did not see either of the two vehicles turn left from Commissioners Road onto Andover Drive.

The Investigating Officer – P.C. Buckle

26Constable Buckle responded to the scene of the motor vehicle collision at 12:40 PM. Constable Buckle testified that on the way to the scene of the collision, information had been received by the 911 call taker that a male party was "stumbling around" and that he had been observed to have the odour of an alcoholic beverage on his person. Constable Buckle incorporated this information into his "grounds to suspect" that Mr. Hicks had alcohol in his body. This led to the officer making an ASD demand to Mr. Hicks.

27P.C. Buckle indicated that after he had spoken to Mr. McKellar he formed the suspicion that Mr. Hicks had alcohol in his body. Constable Buckle asked Mr. Hicks if he had consumed alcohol. Mr. Hicks replied that he had not. Pursuant to a demand, Mr. Hicks provided a sample into the ASD. The ASD indicated that Mr. Hicks' blood alcohol concentration was zero.

28After observing the results on the ASD, P.C. Buckle formed a suspicion that Mr. Hicks had a drug in his body. He observed that Mr. Hicks appeared disheveled and that he seemed "a little off". P.C. Buckle also noted that Mr. Hicks was having issues with balance. In particular, P.C. Buckle observed that Mr. Hicks had difficulty exiting his motor vehicle. Mr. Hicks had to pull himself out of the vehicle, and he had trouble gaining his balance when he did so. [1]

29Having formed a suspicion about drug impairment, Constable Buckle read Mr. Hicks a standard field sobriety testing ("SFST") demand. He called for an SFST officer and informed Mr. Hicks about his right to counsel by reading him the appropriate text from his police notebook. The SFST officer who attended was Constable Pelaez. [2] Based on Constable Pelaez's opinion following the completion of the SFST, Constable Buckle formed reasonable grounds to believe that Mr. Hicks' ability to operate a motor vehicle was impaired by drugs. Some of the elements relied upon by P.C. Buckle in forming his grounds included the fact that Mr. Hicks had been observed by the witnesses chain-smoking and that he hung air fresheners in his vehicle. According to P.C. Buckle, hanging an air freshener within a vehicle is often a technique used to mask the odour of marijuana.

30Constable Buckle gave Mr. Hicks a DRE demand at 1:31 PM and left the scene, with Mr. Hicks under arrest, at 1:36 PM. He arrived at LPSHQ with Mr. Hicks at 1:49 PM. Constable Buckle noted that during the "booking in" procedure and following, Mr. Hicks dropped his eyeglasses a number of times. Constable Buckle observed that when he did so, Mr. Hicks bent down quickly and put his glasses back on. According to Constable Buckle, this action seemed inconsistent with the medical issues that Mr. Hicks had asserted. Mr. Hicks was searched as a part of the "booking in" procedure. He was not found to be in possession of any drugs or drug paraphernalia.

31Constable Buckle stated that he observed that Mr. Hicks had a "glazed over look", and that he "seemed off". P.C. Buckle provided his grounds to the drug recognition evaluator, P.C. Hush, at 3:20 PM. P.C. Hush provided the results of the DRE to P.C. Buckle at 4:25 PM.

Mr. Hicks' Evidence

32Mr. Hicks testified about the circumstances of the collision, and about his interactions with P.C. Buckle. While some of his testimony related specifically to the DRE, this section will focus on the parts of his testimony that dealt with the collision, his interactions with the civilian witnesses, his use of prescribed and non-prescribed substances, and with his state of sobriety.

33Mr. Hicks testified at some length about the extent of his compromised medical state and the manner in which it impacted on his conduct and the observations of other witnesses. In 2005, Mr. Hicks was diagnosed with cancer. This resulted in him losing some portion of his lip. His manner of speech was materially impacted. This difficulty was apparent during Mr. Hicks' interactions with the Court.

34Mr. Hicks also described having significant trouble with arthritis, two herniated discs in his back, and shrinking vertebrae in his neck. He described having lost 100 pounds over the last few years. In addition, Mr. Hicks indicated that he suffers from significant medical challenges with his hip. He anticipates being forced to use a cane very shortly.

35Mr. Hicks described his impression of the motor vehicle collision. He indicated that as he travelled west on Commissioners Road, he approached Andover Drive and entered the left turn lane. He travelled slowly through his left turn and agreed that he had turned too wide. As he was turning, Mr. McKellar, who was also travelling westbound, approached Mr. Hicks' vehicle from behind and entered the left turn lane. Mr. Hicks indicated that Mr. McKellar overtook him in the process of turning left, by cutting to the inside of the turn. As they turned Mr. McKellar's vehicle was slightly ahead. As both vehicles headed southbound on Andover Drive, Mr. McKellar applied his brakes in an aggressive fashion. Mr. Hicks indicated that he was unable to stop, and struck Mr. McKellar from behind. Mr. Hicks described this collision as having occurred somewhere south of the second entrance/exit to the Pioneer gas bar.

36During cross-examination, Mr. Hicks denied that he drove nearly all the way through the intersection on Commissioners Road prior to turning. Mr. Hicks turned from the left turn lane on Commissioner's Road into the single lane southbound on Andover Drive. He agreed that he struck Mr. McKellar's vehicle, although he also remained adamant that the collision was caused because Mr. McKellar "jammed on the brakes" a short distance after the turn.

37Mr. Hicks also agreed that when he got out, he opened the doors and back hatch on his motor vehicle and hung air fresheners. He indicated that both he and his wife smoke in the car, and that he was simply "trying to keep the car as fresh as he could". He described being concerned about his granddaughter, who often travelled in the vehicle, being exposed to the smell of cigarette smoke. Mr. Hicks denied that he either fell asleep or was unconscious after the collision.

38Mr. Hicks testified that he was prescribed a number of medications as a result of his medical challenges. He was prescribed Percocet at the time of the collision and was supposed to take six tablets per day. He was instructed that he should take two pills in the morning, two in the afternoon, and two at night before bed. Notwithstanding the existence of this prescription, and those instructions, Mr. Hicks asserted that he did not take any Percocet on July 16, 2018. He indicated that he had not consumed any medications for two days because there were two days per month when was without all medication. According to Mr. Hicks, this medication gap occurred because of the way his prescription was filled. Mr. Hicks described that his pharmacist provides medication in booklets or blister packs. He described receiving 14 days worth of medication for the first two weeks, and a further 14 days worth of medication for the second two weeks each month. The result of this method of filling his prescription was that Mr. Hicks did not have his medication for two days per month.

39When Mr. Hicks was confronted during cross-examination, he indicated that when he experienced significant pain he would periodically take an amount of Percocet beyond what was prescribed or recommended to him. He suggested that on certain days, when he was in a lot of pain, he would take perhaps eight Percocet tablets when his prescription instructions called for six.

40Mr. Hicks' evidence about this prescription drug use was significantly challenged by the Crown who made reference to the prescription history filed as Exhibit 8. Mr. Hicks had provided this document to the Crown as a part of pre-trial discussions. Mr. Hicks took the position that "whatever the document said" was accurate. It quickly became clear that Mr. Hicks was uncertain about his medication ingestion patterns. He attempted to reconstruct his usual practices in reference to Exhibit 8 but was effectively unable to describe the nature or quantities of medications that he took in any comprehensible detail.

41Ms. Thomas suggested to Mr. Hicks that Exhibit 8 supported the contention that his various prescriptions were filled on June 21, 2018. If correct, this would have meant that as of July 16, 2018, Mr. Hicks would not have run out of medication as he had described. Mr. Hicks agreed that if Exhibit 8 supported the Crown's proposition, it must be true. Notwithstanding Mr. Hicks' ready acceptance of this suggestion, in the absence of evidence concerning what was meant by "first fill", and "filled date status" on Exhibit 8, I find it difficult to accept this proposition. Exhibit 8, on its own, is not particularly helpful in terms of understanding what medications Mr. Hicks may or may not have possessed as of July 16, 2018.

42One thing does appear relatively clear in the prescription history: Mr. Hicks testified that he was unable to fill his nabilone prescription for some weeks prior to the collision. The last notation concerning a prescription for nabilone appears to be April 26, 2018. On that date, Exhibit 8 evidences a nabilone prescription being either presented or filled, with approximately 30 days worth of tablets. That notation does not appear in May, June, or July 2018. In his evidence, Mr. Hicks described that he had not had his nabilone prescription (which he referred to as his "Pot pills") for approximately six weeks prior to the collision. Accordingly, regardless of what conclusion might be drawn concerning the other medications, Mr. Hicks' evidence about the absence of a source of prescription synthetic cannabinoids as of the date of the collision is corroborated by Exhibit 8.

43During his testimony, Mr. Hicks stated that he took one of his wife's clonazepam pills the night before the collision. He was not prescribed clonazepam. He indicated that he had had trouble sleeping after recently losing his sister to cancer. He took his wife's medication in order to help him sleep. He indicated that he had taken the medication and then slept 12 hours. Mr. Hicks agreed in cross-examination that this medication was not prescribed to him. Mr. Hicks asserted that the only medication that he had taken on the day of the accident was three aspirins, which he then described alternatively as three "Tylenol".

44At one point during his testimony, Mr. Hicks stated that although he had no medication at the time of the accident, he had planned to go to the doctor to get his prescriptions refilled the day after the accident, on July 18. It was pointed out to him that July 17 was the day after the accident.

45During cross-examination, Mr. Hicks agreed that he may have told Mr. McKellar "Your girlfriend fucked up my car" when he was approached after the collision. Ms. Thomas pointed out to him that this utterance would seem to make little sense, because he must have seen Ms. McKellar exit the passenger side of the car. In response to this line of questioning, Mr. Hicks indicated that he attributed any confusion on his part to the fact that he was upset because Ms. McKellar had called him a "drunken old bastard".

46Mr. Hicks was also confronted concerning the suggestion that he told a witness that he was driving a Nissan, when in fact he was driving a Chevrolet Equinox. In response, Mr. Hicks indicated that that he had simply "said a lot of crap" in order to "piss off" Ms. McKellar because she had called him a name. Mr. Hicks described a very adversarial interaction with both occupants of the other motor vehicle at the scene of his arrest.

47Mr. Hicks also testified that he was very nervous when dealing with the police. In cross examination, he asserted that he was an eight on a scale of 0 to 10 when dealing with the police. He also denied that he missed touching his nose with the tip of his finger during the finger-to-nose test.

Analysis of the Evidence – The Law

48The evidence demonstrated that Ms. McKellar was the only person who called 911. The evidence of alcohol impairment that was provided by the 911 operator to P.C. Buckle was clearly not admissible for the truth of its contents. It may, however, be admissible for another purpose. As the ASD evidence demonstrated, Mr. Hicks was unlikely to have had the odour of an alcoholic beverage on his person. He apparently had no alcohol whatsoever in his breath.

49Ms. McKellar did not testify about smelling the odour of an alcoholic beverage on Mr. Hicks' breath during her interactions with him. Accordingly, Ms. McKellar either told the 911 operator something that was both untrue and inconsistent with her trial evidence, the 911 operator relayed information to P.C. Buckle that was false, or P.C. Buckle's evidence was untrue and he made an ASD demand having been given no information about alcohol on Mr. Hicks' breath.

50While I cannot definitively determine the source of the error, this evidence suggests that additional caution should be applied when assessing the reliability of the Crown's eyewitness evidence.

51Assessing testimonial evidence requires an inquiry into both the reliability and credibility of the witnesses. Exculpatory evidence has been proffered in this case, and as such I instruct myself in a manner consistent with the principles that follow from the Supreme Court's decision in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.), at 409 [hereinafter "WD"]. In that case, the court suggested the following analysis:

(1) First, if you believe the evidence of the accused, obviously you must acquit.

(2) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

(3) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

52Although this three-part test can seem formulaic, appellate courts have reinforced the point that the importance of WD lies in the guidance it offers to the trier of fact, not in the mechanistic application of a rote incantation. In reality, the principles that flow from WD and its progeny help trial judges cope with credibility assessment in cases where exculpatory evidence exists, whether that evidence comes from the accused or from another source. The key messages applicable to the WD analysis are as follows [3]:

1. A trial is not a credibility contest that is decided based on whose evidence is preferred. The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt; (R v. Y.(C.L.), 2008 SCC 2 (CanLII), [2008] 1 S.C.R. 5);

2. A reasonable doubt can be raised by exculpatory evidence of any type, even if that evidence is not entirely accepted or wholly adopted. (R v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788);

3. The rejection of exculpatory evidence, including the evidence of the accused, is not a basis for convicting. (WD);

4. If a trial judge is uncertain as to which of two conflicting stories to accept, that uncertainty is itself a hallmark of the existence of reasonable doubt. (R v. M(E) (2008), 2008 SCC 51 (CanLII), 235 CCC 3d 290); and

5. In some circumstances a rejection of the accused's evidence based on a "considered and reasoned acceptance beyond a reasonable doubt" of the truth of a credible conflicting account may be appropriate. (R v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J.No. 4749 (C.A.)).

Analysis of the Evidence – Application

53In this case, the Crown relies on the following seven categories of evidence in order to support the proposition that Mr. Hicks was operating his motor vehicle while his ability to do so was impaired by drugs:

1. The evidence of poor driving offered by Harrison and Kiera McKellar and Linda Goddard;
2. The utterances, behaviour and interactions of Mr. Hicks with the civilian witnesses;
3. The observations of investigating officer P.C. Travis Buckle;
4. The opinion of Drug Recognition Evaluation Officer P.C. Ben Hush;
5. The urinalysis performed on Mr. Hicks' urine taken pursuant to a demand on July 16, 2018;
6. The expert evidence of CFS expert Cara Shepard;
7. The video evidence concerning Mr. Hicks' performance during the evaluation; and
8. The evidence of Mr. Hicks during cross examination.

54For his part, Mr. Hicks relies on his own evidence. Mr. Hicks has testified and offered exculpatory evidence. Accordingly, the WD principles must be considered.

Do I Accept Mr. Hicks' Evidence?

55If I accept Mr. Hicks' evidence, I must conclude that he should be found not guilty. Mr. Hicks denied having consumed any drugs that impaired his ability to operate his motor vehicle on July 16, 2018. In fact, with the exception of the clonazepam, which he took many hours before the collision, Mr. Hicks asserts that he had not consumed any drugs whatsoever. Furthermore, Mr. Hicks asserted that it was Mr. McKellar's driving that caused the collision.

56Mr. Hicks gave his evidence in a way that was compelling at times, although he was clearly inconsistent at other times. He testified with a degree of sincerity and did not appear to be possessed of sufficient sophistication to permit his evidence to be delivered with undetected deception.

57There are, however, elements of Mr. Hicks' evidence that simply do not make sense. Mr. Hicks asserted that he had ingested no potentially impairing substances prior to driving. The only impairing drug taken by Mr. Hicks, according to his evidence, was the clonazepam from his wife's prescription that he took well over 12 hours prior to the driving in question. In giving this evidence, Mr. Hicks testified that he could not have taken any drugs because his prescriptions had run out.

58I do not accept Mr. Hicks' evidence about the significant gaps in the availability of his necessary medications. Mr. Hicks is clearly medically compromised. It seems beyond comprehension that his doctor and pharmacist would together be unable to solve a longstanding medication dispensing or ordering problem that would result in Mr. Hicks being left without any prescription medications whatsoever for two days every month.

59Mr. Hicks presents as a person coping with significant pain. He clearly testified that he needed his medication to control this pain. I cannot imagine that Mr. Hicks would be required to have to "tough it out" two days a month without medication because of some administrative issue associated with the delivery of his medication by pre-dosed blister pack.

60Mr. Hicks testified that at times he would take percocet tablets in excess of the prescribed or recommended dosage. While I accept this evidence on its face, it was nonetheless difficult to reconcile with his other evidence. After all, if I accepted his earlier evidence, I would have to conclude that in order to increase his daily pill allocation, he would necessarily have to break into the blister pack containers that were set aside for subsequent days, thereby leaving himself unmedicated even more frequently than the two days per month he had previously testified to.

61Mr. Hicks' answers concerning when he was going to receive his monthly medication allocation in reference to the timing of the collision was also contradictory and internally inconsistent. Although Mr. Hicks testified about the two day medication gap, he also said that he had no medication on July 15, and no medication on July 16. He later said that he had intended to have his prescription filled on July 18. At still another point, he mentioned July 19. If I was to accept this evidence, Mr. Hicks would not have been contending with a two-day gap in his medication regime, he would have been contending with a five day gap. There is simply no way that someone as reliant on a highly controlled opioid-based pain medicine like percocet to control his pain (to the point that he would need to frequently exceed his own prescribed dose to achieve relief) would be either willing or able to go five days with absolutely no medication.

62Mr. Hicks presented as confused and overwhelmed when he attempted to answer the Crown's questions about his nightly medication regimen. He struggled to add up the five different kind of medications that he had been prescribed. He made reference to Exhibit 8, and poured over it in detail. When he did ultimately attempt to answer the question, he entirely forgot to include the obvious percocet prescription that he had previously testified that he took every night.

63In short, I do not accept that Mr. Hicks was without medication at or shortly before the time of the collision as he testified.

64As I consider Mr. Hicks' reliability and credibility, I am also left with the fact that the Centre of Forensic Sciences analysis detected Morphine, Codeine, and Hydrocodone in Mr. Hicks' urine. No admissible or acceptable explanation was provided that would explain this finding. Mr. Hicks provided no explanation. These substances do not form any part of the prescription medications that are listed in Exhibit 8. While it may be that such substances can find their way into one's urine through an innocent or even inadvertent path such as the taking of over the counter medication, there is no evidence before me to support such a conclusion in this case.

65I also cannot accept Mr. Hicks explanation concerning what occurred after the collision. The reality is that Kiera McKellar exited the passenger's side of the car. Harrison McKellar exited the driver's side of the car. Mr. Hicks either saw who was driving, or he did not. It is difficult to understand why Mr. Hicks might have said "Your girlfriend fucked up my car" unless he believed Ms. McKellar to have been driving. I do not accept Mr. Hicks evidence that he was attempting to "piss off" either Harrison or Kiera McKellar by "saying crap". I find that it is far more likely that Mr. Hicks concluded Ms. McKellar had been the driver. That is concerning.

66Mr. Hicks' explanation about why he told Ms. McKellar that he was driving a Nissan, when he was actually driving a Chevy Equinox was also difficult to follow. I do not accept that he did so in an effort to further antagonize her. That simply makes no sense. I do not know why Mr. Hicks said what he did, but Mr. Hicks was clearly mistaken. This must be acknowledged to be consistent with impairment of some aspect of cognitive functioning. The conclusion that this impairment was caused by drugs is certainly possible, and perhaps even probable, but it is not inexorable.

67The evidence leads to the obvious conclusion, even on Mr. Hicks' own evidence at trial, that he rear-ended Mr. McKellar's vehicle. Having said that, Mr. Hicks continued to blame Mr. McKellar for causing the accident by overtaking him during the left turn and subsequently engaging in hard braking. In that respect, his blame-casting behaviour at the collision scene appears consistent with his trial testimony, although the asserted mechanism of the collision was not accurate.

68In conclusion, I am unable to accept Mr. Hicks' evidence in totality. I find there to be, at a minimum, substantial reliability factors associated with his evidence, that cause me significant concerns.

Does Reasonable Doubt Exist in the Evidence of Mr. Hicks, or Elsewhere in the Evidence?

69Notwithstanding my rejection of the main part of Mr. Hicks' evidence as unreliable, I must avoid jumping from that conclusion to a finding of guilt. I must ask myself further whether I am left with a reasonable doubt having reviewed the remaining aspects of Mr. Hicks evidence, and the evidence found in the case as a whole.

70Having heard the viva voce evidence, and having also viewed the video evidence concerning the drug recognition evaluation, I have had a chance to observe Mr. Hicks' obvious lack of motor skills, coordination and balance. I find that it is quite likely that Mr. Hicks' ability to operate a motor vehicle was impaired by the consumption of drugs at the relevant time.

71Although I have not accepted substantial aspects of Mr. Hicks' evidence, I also find myself unable reconcile the Crown's evidence of the motor vehicle collision in a satisfactory fashion. In short, I find myself unable to draw a conclusion about precisely what occurred between Mr. Hicks' vehicle, and Mr. McKellar's vehicle.

72After assessing all of the evidence, I make the following findings:

1. Mr. Hicks' vehicle was the first (westmost) vehicle in the left turn lane from Commissioner's Road onto Andover Drive;
2. Mr. McKellar approached Mr. Hicks' vehicle from behind, and passed Mr. Hicks either through the corner or as Mr. Hicks was in the course of making the left turn onto Andover Drive;
3. The collision between the two vehicles occurred south of the first entrance/exit to the Pioneer gas bar;
4. The collision likely occurred after Mr. McKellar engaged the brakes of his car, after he had passed Mr. Hicks.

73I come to these conclusions for the following reasons:

74First, if one looks at Exhibit 1, Mr. McKellar drew (and described) Mr. Hicks' vehicle in the cross walk on the west side of Commissioner's Road. Mr. McKellar's sister gave a similar description. Those observations cannot stand together with the aerial photograph of the intersection that was presented as Exhibit 9. If Mr. Hicks' vehicle had been stopped in or at the cross walk at the moment the McKellar car approached the intersection, it would not have been possible for the vehicles to have collided at the location described by Mr. McKellar in his evidence. The crosswalk is simply too far west and north to have permitted that possibility.

75Second, we know from the evidence of Ms. Goddard (corroborating the evidence of Mr. Hicks) that the collision occurred much further south than Mr. McKellar described. Ms. Goddard's evidence is not consistent with a collision occurring in the manner described by both Mr. McKellar and his sister. While I accept that Ms. Goddard saw Mr. Hicks' vehicle travelling much faster than Mr. McKellar's vehicle as it proceeded southbound on Andover Drive, there is simply no doubt on her evidence that both vehicles were well clear of the intersection, and well clear of the point she was positioned in the first entrance/exit when the collision occurred. Ms. Goddard looked to her right (south) to see the collision. The intersection, and the location that Mr. McKellar described as the collision point was to Ms. Goddard's left (north).

76Furthermore, as I already averted to, I am concerned about the reliability of both Harrison and Keira McKellar's evidence. Mr. McKellar was unable to articulate relatively basic facts about where he was driving. Both described a collision point and mechanism of collision that seems unsupportable on the evidence. Both were convinced that Mr. Hicks was "drunk". Somehow, evidence came into possession of P.C. Buckle that Mr. Hicks smelled of alcohol. That was untrue. P.C. Buckle incorporated that information into his investigation. This led to the ASD demand that indicated that Mr. Hicks had not been consuming alcohol.

77It is clear that bad driving resulted in this collision. Whose bad driving caused the collision is much less clear. On the evidence presented, and notwithstanding the obvious fact that Mr. Hicks struck Mr. McKellar from behind, I am unable to afford significant weight to the purported bad driving evidence against Mr. Hicks.

78Having indicated my concerns about the Crown's evidence concerning the collision, I must now assess the evidence of impaired driving in relation to the other evidence.

79In that respect, I can draw very little from P.C. Buckle's observations. I mean no criticism of P.C. Buckle in this regard. He seemed inclined to treat Mr. Hicks appropriately and to deal with this collision properly. He formed grounds to suspect that Mr. Hicks' ability to operate his motor vehicle was impaired by the consumption of alcohol. He was wrong about that suspicion. In coming to his suspicion, P.C. Buckle used equivocal observations, including unreliable evidence concerning alcohol consumption, in the face of a denial and an absence of other indicators including breath odour. He drew an adverse conclusion from the fact that Mr. Hicks had to pull himself to standing using his vehicle when he stood up, and that Mr. Hicks had difficulty with his balance. Having now observed Mr. Hicks for a period of several days throughout the trial, and on the DRE video it seems clear that Mr. Hicks would have difficulty exiting a motor vehicle as described. He is a medically compromised and physically frail individual. Frankly at an early stage of the investigation, P.C. Buckle jumped to some conclusions that were not objectively supportable. He did not do so improperly or unfairly, but he was nonetheless mistaken. His remaining observations concerning Mr. Hicks, including that he "looked off" or that he had a "glazed over" look add very little to the analysis.

80In light of the issues associated with the Crown's lay evidence, I would be unable to draw a conclusion that Mr. Hicks' ability to operate his motor vehicle was impaired by drugs without reliance on the Crown's expert opinion evidence in this case. Accordingly, the Crown's case rests heavily upon the expert evidence, including most particularly the DRE conducted by P.C. Hush.

ISSUE #2 – Ascribing Appropriate Weight to the Expert Opinion Evidence

81Expert opinion evidence in this case was given by both Ms. Cara Shepard, a toxicologist from the Centre of Forensic Science ("CFS"), and by the drug recognition evaluation officer in this case, P.C. Hush. While the opinion of Ms. Shepard was helpful, and while Ms. Shepard was a highly qualified and capable witness, the value of her evidence is contingent upon an assessment of the evidence of P.C. Hush.

Cara Shepard – CFS

82A voir dire was conducted during the second day of the trial, prior to receiving the evidence of Ms. Cara Shepard. As a result of this voir dire, I deemed Ms. Shepard's evidence to be admissible. The scope of her evidence was filed in a written document that was filed as Exhibit 2.

83Ms. Shepard provided a report containing the toxicological analysis of a urine sample that had been provided by Mr. Hicks pursuant to a demand that was made following the DRE. The continuity of this sample and of the ensuing analysis was proved. The toxicology reports concerning Mr. Hicks' urine sample were filed as Exhibit 4A and 4B. Those reports indicate the presence of a number of drugs that were detected in Mr. Hicks' urine. Those drugs included morphine, codeine, hydrocodone, doxepin, and clonazepam. No cannabinoid metabolites were found in Mr. Hicks' urine.

84The first three substances that were detected included morphine, codeine and hydrocodone. Ms. Shepard indicated that all three can persist in a person's urine for approximately two to three days after use. Clonazepam was also detected in Mr. Hicks's urine. It can persist in a person's urine for a number of days after use, extending out to as long as perhaps two weeks. Finally, the drug doxepin was detected in Mr. Hicks' urine. It can persist in a person's urine for approximately a week after last use.

85Ms. Shepard was of assistance in describing the possible effects of ingestion of each of the identified substances. She indicated that morphine is an opioid drug. It is said to produce varying degrees of sedation and potentially impaired motor coordination. Opioid drugs have the potential to impair divided attention tasks and motor coordination. The effects are dependent on how much of the drug is present in the blood at the material time. The effects of morphine are also dependent on the degree to which the user is tolerant to the drug. The effects of morphine will be less pronounced where the user has had prolonged exposure to morphine and to other opioids. Ms. Shepard also advised that the effects of morphine are also obviously dose dependent.

86Ms. Shepard also testified about the other two opioids found in Mr. Hicks' urine: codeine and hydrocodone. Their effects are similar to those described in respect of morphine. Ms. Shepard indicated that if a person were to take codeine, a positive indication for morphine and hydrocodone would be possible, depending upon how the person metabolizes codeine. In this respect, she indicated that the detection of morphine and hydrocodone after taking codeine was highly variable. Ms. Shepard indicated that codeine is available in some over-the-counter medications. She stated that studies have shown that if a person takes as few as two tablets containing 8 mg of codeine, the presence of codeine can be detected in urine.

87Ms. Shepard was also questioned specifically about oxycodone, given that Mr. Hicks had a prescription for this substance, according to Exhibit 8. Ms. Shepard indicated that oxycodone is an opioid drug. It would be expected to have similar effects to morphine, codeine and hydrocodone. Ms. Shepard indicated that if a person developed a tolerance to oxycodone, the tolerance to that drug would have a spillover effect to provide a tolerance to all opioid drugs.

88According to Ms. Shepard, the drug doxepin that was found in Mr. Hicks' urine is an anti-depressant medication. It is unlikely to produce impairing effects when taken therapeutically, particularly where the user is not taking the drug for a first time, or after materially increasing the dose.

89Ms. Shepard testified that clonazepam is a central nervous system depressant. It can be prescribed for panic, anxiety, and seizure disorders. Its effects can result in sedation and impaired coordination, although these effects are dependent upon the person's tolerance and upon its concentration in the blood. If clonazepam was present in the blood at the time of a DRE, it could result in the subject of a test demonstrating observable nystagmus in the eyes.

90Mr. Hicks' urine was also screened for a metabolite of heroin. When a person uses heroin, this metabolite exists and potentially persists in a person's urine. It is of particular interest in any case where the urinalysis detects morphine. The toxicologist looks for the marker as a way of determining whether the presence of morphine was related to heroin or to some other type of opiate including prescription medication. The metabolite of heroin was not found in Mr. Hicks' urine.

91Ms. Shepard examined Exhibit 8 in this proceeding. She compared the results of the urinalysis to the drugs that had been prescribed to Mr. Hicks. She found that of the drugs that were present in his urine, only doxepin had been prescribed to Mr. Hicks.

92Ms. Shepard testified that the impairing effect of the opioid drugs that were found in Mr. Hicks' urine would last for approximately six hours. She indicated that the effects of clonazepam could last between 12 to 24 hours. She indicated that the time estimates provided would be the longest times that could be expected, and that the impairing effects in the given individuals (particularly in individuals who had developed a degree of tolerance to the drugs) could be less. Similarly, Ms. Shepard agreed that the consumption of cannabinoids was associated with the development of nystagmus.

P.C. Hush – The Drug Recognition Evaluator

93Constable Hush has experience as a drug recognition examiner with the LPS. Although he testified that Mr. Hicks' examination was his 38th examination, his first 17 evaluations were conducted as part of his training. Constable Hush testified that in four or five of those investigations, charges did not proceed. He indicated that in one case, he concluded that the subject was not impaired. In the remaining three or four investigations that did not result in charges, Constable Hush determined that medical issues that were present compromised his ability to come to an opinion concerning the subject's impairment. In this case, notwithstanding the fact that Mr. Hicks presented with obvious medical issues, Constable Hush concluded that Mr. Hicks' ability to operate a motor vehicle was impaired by the consumption of drugs.

94Constable Hush presented his evidence in conjunction with a video recording that had been made of Mr. Hicks during the DRE. This video recording demonstrated that Mr. Hicks was seemingly alert, responsive, and even cooperative in relation to the requirements of the evaluation.

95Constable Hush described that his evaluation consisted of 12 steps or components. He ultimately concluded that Mr. Hicks' ability to operate a motor vehicle was impaired by the consumption of drugs in two categories: narcotic analgesics, and cannabis.

96Although he did not outline the 12 steps precisely, the process that P.C. Hush referred to in his evidence appeared similar to the 12 steps described in the case of R v. Imrie, 2017 ONCJ 383 at para. 184.

97There are some similarities and overlap between the 12 step process executed by P.C. Hush, and the 12 step Drug Recognition Evaluation that is prescribed by regulation made pursuant to the Criminal Code. These regulations are titled "Evaluation of Impaired Operation (Drugs and Alcohol) Regulations", SOR/2008-196 (hereinafter "SOR 2008-196" or "the Regulation").

98In this case, the first two steps conducted by P.C. Hush consisted of an interview with the arresting officer, and a consideration of the possibility of an alcohol screening test. There was no alcohol screening test run in this case, as Mr. Hicks had already provided an ASD sample that had registered a zero. From his perspective, Constable Hush testified that alcohol was "never a possibility".

99P.C. Hush began his evaluation with an assessment of "clinical factors". During the initial part of the examination Constable Hush determined that Mr. Hicks' pulse was 84 beats per minute (bpm). The officer's training indicated that a heart rate between 60 to 90 bpm would be considered "normal".

100P.C. Hush then began to examine Mr. Hicks' eyes. Regarding this step, the officer stated, "One of the indicators I am looking at it whether his eyes are tracking together. Both of his eyes were tracking in the same way, at the same time." This evidence appears to satisfy the third element of the Part (a) "preliminary examination" in the Regulation. Under this component, the officer should determine whether "the eyes track an object equally". P.C. Hush apparently observed no issues of concern. P.C. Hush also looked at Mr. Hicks' pupils. He observed Mr. Hicks' pupils to be the same size. This was considered normal.

101Constable Hush then examined Mr. Hicks' eyes more closely. He conducted both the horizontal and vertical nystagmus tests. Nystagmus refers to a condition where the subject's eyes move in an uncontrolled, erratic or jerky fashion. The officer testified that he would only expect to see horizontal gaze nystagmus where the subject was under the influence of central nervous system depressants, inhalants, or dissociative anesthetics.

102P.C. Hush did not observe evidence of horizontal gaze nystagmus in the examination of Mr. Hicks' eyes. P.C. Hush also testified that Mr. Hicks did not demonstrate vertical gaze nystagmus. This was unsurprising to the officer as his training indicated that one would not expect to see vertical gaze nystagmus unless horizontal gaze nystagmus was also present.

103The officer also conducted part three of the eye examination, which consists of testing the subject to determine if they demonstrate a "lack of convergence". Convergence refers to the ability of a person to "cross" their eyes. In this test, the officer placed his pen in front of Mr. Hicks, and asked him to continue looking at the pen as he moved it closer to Mr. Hicks' nose. Mr. Hicks was not able to cross his eyes. P.C. Hush conceded that not everyone is able to cross their eyes, regardless of the presence or absence of the influence of an impairing drug. The officer did not testify as to the category of drugs that he would expect to cause problems with convergence.

104One of the problems that P.C. Hush identified with Mr. Hicks' presentation at this portion of the examination was an inability on the part of Mr. Hicks to engage in what the officer referred to as "smooth pursuit". P.C. Hush concluded that Mr. Hicks' ability to track an item with his eyes was comprised. He referred to the "definite presence" of an inability on the part of Mr. Hicks to "smoothly track" or follow the officer's pen as he moved it back and forth.

105After completing the assessment of Mr. Hicks' eyes, P.C. Hush commenced the "divided attention" portion of the examination. Mr. Hicks complied with the officer's request to participate in the divided attention tasks.

106The first component of the divided attention tasks that the officer referenced during his examination concerned what he described as the "modified Romberg test". In this test Mr. Hicks was asked to hold his head back with his arms out and estimate the passage of 30 seconds. Mr. Hicks' time estimate was six seconds off. This is a one second variance from what the officer would consider as a "normal" or "successful" test. Otherwise, Mr. Hicks demonstrated what P.C. Hush referred to as "a bit of swaying, but otherwise nothing obvious."

107Similarly, the officer testified that he observed Mr. Hicks to evidence "eyelid tremors". The officer suggested that the existence of eyelid tremors is exclusively linked to the impairing influence of cannabis.

108As P.C. Hush continued to conduct the divided attention tasks, Mr. Hicks brought it to the attention of the officer that he was likely to experience dizziness during the evaluation. Indeed, throughout the evaluation, Mr. Hicks' ability to maintain his balance was clearly challenged. Mr. Hicks' balance issues were clearly evident in the "walk and turn" test, and in the "one leg stand" test. Mr. Hicks explained to P.C. Hush that he had a number of medical challenges. Those medical challenges were not only apparent during the DRE, but were also frankly obvious during Mr. Hicks' interactions with the court while testifying and otherwise.

109Constable Hush maintained a balanced perspective relating to Mr. Hicks' obvious challenges. He stated that he did not consider Mr. Hicks' lack of balance as a negative or inculpatory factor during the evaluation.

110On the other hand, the officer did consider the fact that Mr. Hicks seemed unable to follow directions appropriately as evidence of drug impairment. In providing the very detailed and somewhat complex instructions that were associated with each of the divided attention tasks, the officer spoke quickly and in a manner that appeared to be pro forma or by rote. The combination of the relative complexity of the instructions, and the manner in which they were delivered would have made precise and error-free compliance very difficult for anyone.

111It is, nonetheless, clear that Mr. Hicks performed well below what might reasonably be said to be an acceptable standard. The challenge in assessing this component, however, is that the evaluation is highly individualized, and the judgment concerning performance is subjective. There are a number of factors that might impact upon a person's ability to hear, process, and ultimately follow through on instructions given by a police officer in a circumstance like this. For example, if a person was unusually nervous as a result of being arrested, their ability to follow the detailed and quickly provided instructions might well be detrimentally impacted.

112Furthermore, a person's basic cognitive capacity and experience in following directions and instructions are also factors to be considered. It is difficult to apply an objective analysis to this aspect of the DRE when the potential for so many impacting variables exists. It was a credit to the officer that he acknowledged this reality during his testimony. Nonetheless, Constable Hush maintained that Mr. Hicks' consistent inability to follow instructions supported his opinion that Mr. Hicks' ability to operate a motor vehicle was impaired by the consumption of drugs.

113My review of the DRE video demonstrates that Mr. Hicks performed poorly on the "heel to toe" test. He did not follow the officer's directions well. His sense of balance was poor. He walked down the hallway with his hands outstretched, touching the walls as he walked in order to maintain his balance. He did not follow the instructions given by the officer. In fact, he walked down the painted line, took a left turn and completed a number of steps at a 90° angle to the line, disappearing from view at one point into an open doorway. When called back by the officer, Mr. Hicks returned to the line, executed a 90 degree right turn, and walked back along the line towards the officer. The number of steps that Mr. Hicks took bore no resemblance to the instructions that he was given. He was apparently unable to walk in the heel-to-toe fashion that was required.

114During the "one leg balance" test, Mr. Hicks' performance was even more difficult to assess. He was simply unable to stand on one leg. As one looks carefully at the video, it is obvious that Mr. Hicks was physically incapable of completing the task. As he raised his feet off the ground, Mr. Hicks said "this hurts my back a lot". His supporting leg began to shake and tremor in an obvious manner.

115In fact, the officer did not require Mr. Hicks to complete this test due to his obvious physical incapacity. Notwithstanding the fact that the officer was prepared to forgo this part of the evaluation, Mr. Hicks was apparently very keen to show his cooperation and willingness to follow the officer's instruction. Even after the officer told him that he would not be required to complete the "one leg balance" test, Mr. Hicks told P.C. Hush that he would like to try the test in any event. I drew no negative inference from Mr. Hicks' failure to complete this task as I am unable to determine whether his inability to comply with the officer's directions was a manifestation of impairment or of physical incapacity.

116Constable Hush also instructed Mr. Hicks to perform the "finger to nose" test. Once again, this time with his eyes closed and his head back, Mr. Hicks was unable to keep his balance. Accordingly, the officer modified the test and permitted Mr. Hicks to lean against the wall. Mr. Hicks was again unable to follow directions particularly well. The officer described that Mr. Hicks touched his nose with his finger on one out of six attempts, but that at no time did he actually touch his nose with the tip of his finger. Instead of using the tip of his finger, the officer described that Mr. Hicks used pad of his index finger. The officer concluded that this test demonstrated that Mr. Hicks' spatial awareness was compromised.

117As I stated earlier, Mr. Hicks presents with an affect and behaviour that seems somewhat unusual. This was also obvious on the video. For example, Mr. Hicks' eyeglasses fell off of his face numerous times during his interaction with P.C. Hush. Taken at face value, this could be seen to demonstrate some sort of loss of physical dexterity or compromised motor control that might evidence drug impairment. When considered in the proper context, however, the fact that Mr. Hicks lost his glasses so many times is actually rather understandable. When Mr. Hicks was taken into custody, the police removed a strap that he had been using to secure his glasses to his head. At some point during the DRE, P.C. Hush kindly offered to retrieve the strap in order to help Mr. Hicks affix his eyeglasses to his head. After this point, Mr. Hicks had no further problems with his glasses. I noted that during his own testimony, and indeed throughout his interactions with the court, Mr. Hicks wore the same type of eyeglass retaining strap. His eyeglasses were clearly broken, and did not fit him well. During his testimony, I noted the presence of a very large accumulation of glue on the arm of Mr. Hicks' glasses where he had obviously attempted to effect a repair. Mr. Hicks' problems with his glasses during the DRE provided a good example of the requirement to look beyond the obvious in drawing conclusions about drug impairment: What might well be seen to be evidence of impairment in some people, can be explained as a function of personal characteristics that have nothing to do with impairment in others.

118After completing the divided attention tasks, P.C. Hush undertook a second assessment of Mr. Hicks' clinical variables. This included taking his pulse for a second time, taking his blood pressure, and taking his temperature. Mr. Hicks' pulse was now elevated to 104 bpm. The officer considered this to be above the 60 to 90 normal range. Considering that Mr. Hicks' heart rate was 84 bpm prior to conducting the physical testing, the fact that his heart rate had increased modestly during the testing was not surprising. Frankly, given Mr. Hicks' age and obvious medical challenges, the fact that his heart rate was modestly elevated is simply not a factor that ought to form a major part of any conclusion about the existence of drug impairment.

119Mr. Hicks' body temperature was 34.4° degrees Celsius. The normal range, according to the officer, was 36.5 to 37.5°C. This temperature was taken orally. The officer assessed Mr. Hicks' blood pressure at 150/100. He indicated that the normal range was 120 to 140 over 70 to 90.

120Interestingly, Mr. Hicks' clinical factors would ordinarily lead to conclusions on opposite ends of the spectrum of potential impairing substances. For example, the officer's testimony was that he might associate a low temperature with one class of drugs such as an opiate. On the other hand, if one were under the influence of an opiate, it would also be expected that the heart rate and blood pressure would be depressed. In this case the temperature was low, but both the heart rate and blood pressure were high. In the circumstances of this case it is challenging to understand how one might draw any significant conclusions from this portion of the evaluation.

121Constable Hush then conducted an assessment of Mr. Hicks' pupils. He measured Mr. Hicks' pupils and found them to be within the normal range both in regular light and in near total darkness. Constable Hush then testified about the appearance of what he referred to as "rebound dilation". According to the officer's evidence, rebound dilation describes the phenomenon that can be seen when the pupil is exposed to a very bright light. In normal circumstances, the pupil constricts in response to the light stimulus. According to the officer, rebound dilation occurs in circumstances where, having constricted in response to the light stimulus, the pupil subsequently relaxes and opens up. Constable Hush also indicated that Mr. Hicks' eyes demonstrated a slow reaction to bright light. The officer testified that this effect can be caused by the consumption of cannabis, central nervous system stimulants, hallucinogens and central nervous system depressants.

122In the final part of the test, P.C. Hush once again took Mr. Hicks' pulse. By this time, Mr. Hicks' heart rate had slowed to 94 bpm. P.C. Hush also checked Mr. Hicks' muscle tone. He observed nothing out of the ordinary.

123At one point P.C. Hush suggested that the fact that he was observing some clinical indicators above and some clinical indicators below accepted averages was consistent with a person experiencing either antagonistic effects of multiple drugs, or of the existence of a purported "rebound effect" that occurs in response to the body's efforts to react to the presence of drugs by releasing biological responses, such as hormones, as the effect of the drugs wear off. The officer's approach to equivocal results may be correct. On the other hand, equivocal results in the assessment of clinical factors could also point to biological variability in the subject, or to other non-culpable inferences. I find it impossible to distinguish appropriately between the possibilities outlined by the officer, and the existence of non-substance related biological variability or other non-culpable possibilities. The illustration of Mr. Hicks' body temperature being low, and his heart rate and blood pressure being high is an obvious example of the foregoing. The officer's willingness to explain equivocal results by reference to inculpatory inferences while not incorporating possible non-culpable inferences into his analysis causes me concern about the reliability of his opinion. It is suggestive of the existence of confirmation bias.

124Finally, P.C. Hush checked for indications of injection drug use by examining Mr. Hicks for injection marks. Mr. Hicks was entirely cooperative in this endeavor. He even offered to show the officer between his toes in order to demonstrate that he was not an intravenous drug user. P.C. Hush noted no injection sites, and offered no concerns about this final aspect of the examination.

125In coming to the conclusion that Mr. Hicks' ability to operate a motor vehicle was impaired by a narcotic analgesic, and cannabis, Constable Hush relied on the following:

1. His vital signs were elevated;
2. His temperature was depressed;
3. He was experiencing pupil rebound dilation;
4. His eyes would not converge;
5. His eyes showed an absence of "smooth pursuit"; and
6. The cognitive elements of the evaluation demonstrated a very poor ability on the part of Mr. Hicks to appropriately complete the divided attention tasks.

Assessment of the Opinion Evidence

126In the Crown's submissions, Ms. Thomas pointed to a number of the conclusions that were drawn by P.C. Hush as being strongly supportive of his opinion that Mr. Hicks' ability to operate a motor vehicle was impaired by a drug.

The Toxicology Evidence

127Ms. Thomas argued that the urinalysis and toxicological evidence that was filed as Exhibit 4A and 4B supported P.C. Hush's opinion. In other words, the Crown's proposition was that P.C. Hush concluded that Mr. Hicks was impaired by a narcotic analgesic, and the urinalysis bore that out. That is correct, but the toxicology opinion is not probative on its own. After all, it must be kept in mind that whether or not Mr. Hicks' ability to operate his motor vehicle was actually impaired by a drug or not at the relevant time, his urine may well have produced the same result. Ms. Shepard testified that opioids like the kind prescribed to Mr. Hicks (and the kinds found in his urine that he was not prescribed) can be detected two to three days after use. Accordingly, a person can be perfectly sober and safe to drive, and yet produce a positive urinalysis for opioids. The same analysis applies to clonazepam which is a CNS depressant, except that it can "linger" for up to two weeks.

Clonazepam

128The Crown also argued that Mr. Hicks' admission that he took his wife's clonazepam the night before the collision was inculpatory. Clonazepam is a CNS depressant. The Crown asserts that it need only prove that Mr. Hicks' ability to operate his motor vehicle was impaired by a drug. The Crown is not required to prove precisely which drug caused the impairment. Ms. Thomas points out the following:

(1) Clonazepam was detected in Mr. Hicks' urine; (2) Mr. Hicks admitted to ingesting the clonazepam the night prior to the collision; and (3) Clonazepam has the potential to impair a person's ability to operate a motor vehicle for 12 to 24 hours after use.

129The difficulty with this submission is that P.C. Hush did not observe any indicia within his evaluation that suggested the presence of a CNS depressant. P.C. Hush concluded that Mr. Hicks did not demonstrate either horizontal or vertical nystagmus. Both forms of nystagmus are associated with CNS depressants. While the absence of nystagmus, like the absence of any single factor is not determinative, if clonazepam had been present at the time of the collision, one would have expected that the officer would see at least some clear or recognizable indication of CNS depressant-related impairment during his evaluation.

The Impact of Individual Factors on Cognitive Elements of the Evaluation

130P.C. Hush concluded that Mr. Hicks followed his instructions poorly throughout the evaluation. The video evidence filed at Exhibit 6 corroborates that conclusion. On the other hand, Mr. Hicks was also clear in his evidence that he was nervous in his dealings with the police. As Mr. Hicks stated, this was the first time that he'd ever "been in a jail". He rated himself as an 8 out of 10 in terms of a self-evaluation of nervousness. P.C. Hush interacted civilly and appropriately with Mr. Hicks. He was not overbearing or unduly forceful with Mr. Hicks. He did, however, present the instructions for the examinations quickly, and in a formulaic fashion. In attempting to follow the officer's directions, Mr. Hicks presented as cooperative and pleasant, and yet he also presented as somewhat naïve and seemingly unsophisticated. Although I did not accept portions Mr. Hicks' evidence wholly, I am unable to reject his testimony concerning the impact of his nervousness on his ability to understand and comply with P.C. Hush's directions. As a result, I must consider the impact of Mr. Hicks' nervousness when I assess the evidence about his performance on the "divided attention" tasks.

The Approved Scope of the Drug Recognition Evaluation Evidence

131As an overall matter, the assessment of P.C. Hush's evidence is governed by the Supreme Court of Canada's dicta in the case of R v. Bingley, 2017 SCC 12 (hereinafter "Bingley"). The direction of the Court at paragraphs 26 and 29 concerning the appropriate scope of drug recognition evaluator evidence is important:

[26]…Parliament has established, through the adoption of the Regulations, that the 12-step drug evaluation is sufficiently reliable for the purpose of a DRE's determination of impairment under s. 254(3.1). The scope of a DRE's expertise is limited to that determination, and it is only for the purpose of making that determination that Parliament has established the 12-step drug evaluation's reliability.

[29] It is important to reiterate that a DRE's s. 254(3.1) determination is a result of administering the prescribed evaluation. That is the only expertise conferred on a DRE. The trial judge has an "ongoing duty to ensure that expert evidence remains within its proper scope": Sekhon, at para. 46. If opinions beyond the expertise of a DRE are solicited, a Mohan voir dire to establish further expertise may be required. [Emphasis added].

132As the document concerning the qualification and scope of P.C. Hush, filed as Exhibit 5 demonstrates, this officer's evidence was expressly limited by his role as a "Bingley-approved" DRE. Unless the officer has been authorized to tender an opinion beyond SOR 2008-196 in a voir dire, the officer's opinion concerning impairment is limited to the conclusions that flow from his assessment of the approved 12 step evaluation. P.C. Hush was not approved to provide an opinion outside the confines of the evaluation that is prescribed by the Regulation. As a result, his conclusions cannot rest upon extrinsic findings that are outside the scope of his approved opinion. Bingley is clear: the drug recognition officer's assistance to the court is circumscribed by the Regulation.

133The Regulation prescribes the following steps or tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code:

(1) A preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;

(2) Eye examinations, which consist of

• (a) the horizontal gaze nystagmus test,
• (b) the vertical gaze nystagmus test, and
• (c) the lack-of-convergence test;

(3) Divided-attention tests, which consist of

• (a) the Romberg balance test,
• (b) the walk-and-turn test referred to in paragraph 2(b),
• (c) the one-leg stand test referred to in paragraph 2(c), and
• (d) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;

(4) An examination, which consists of measuring the blood pressure, temperature and pulse;

(5) An examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;

(6) An examination, which consists of checking the muscle tone and pulse; and

(7) A visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.

134The "12 step" process followed by P.C. Hush and the 12 step evaluation prescribed by SOR 2008-196 are not the same. That is problematic.

The Modified Romberg Test

135As an initial point, the Regulation does not authorize the officer to conduct a "modified Romberg test". SOR 2008-196 refers only to the "Romberg balance test". Although I suspect that the difference between the two tests relates to the additional (or "modified") component of having the subject estimate the passage of time during the test, the distinction between these two tests was not described in the evidence before me. While P.C. Hush may have conducted the "modified Romberg test" in accordance with his training, incorporating the result of this test that does not comply with the Regulation into his opinion would be an error. Having said that, not a great deal turns on this issue in the circumstances of this case because Mr. Hicks did not demonstrate any significant deficiencies during this part of the evaluation. The officer did not take Mr. Hicks' performance on this portion of the evaluation into account as an adverse factor in the formulation of his opinion.

"Smooth Pursuit"

136In contrast, however, P.C. Hush did rely on his observation concerning the absence of "smooth pursuit" (the inability of Mr. Hicks' eyes to "smoothly track" or follow the officer's pen as he moved it back and forth) in the formation of his opinion concerning drug impairment. The evidence is unclear about whether the officer understood his assessment of "smooth pursuit" to be an independent ground of assessment, or whether he understood it to be a sub-component of one of the 12 steps. As he testified, P.C. Hush appeared to include his observations concerning "smooth pursuit" as a part of the nystagmus test.

137If the officer understood "smooth pursuit" to be one of the approved 12 steps, he was incorrect. An assessment of "smooth pursuit" is not contained in SOR 2008-196. According to Bingley the officer's reliance on "smooth pursuit" is therefore beyond the scope of his approved opinion.

138It is also problematic if the officer assessed "smooth pursuit" as part of the nystagmus tests. To draw a conclusion that Mr. Hicks did not present with nystagmus, but to nonetheless use one of the sub-components of that otherwise exculpatory test for an inculpatory purpose in the formulation of an opinion about impairment would be unfair. It would elevate the importance of a sub-test not set out in SOR 2008-196 to the level of the approved test that it emanates from. If the regulation-making authority had intended to elevate the "smooth pursuit" analysis to the level of importance attached to the "horizontal gaze nystagmus test" in the Regulation, it would have done so expressly.

Rebound Dilation

139P.C. Hush also used his finding of the existence of "rebound dilation" in arriving at the conclusion that Mr. Hicks' ability to operate a motor vehicle was impaired by drugs at the time of his evaluation. P.C. Hush testified that the existence of "rebound dilation" was an indicator of active substance effects. "Rebound dilation" may or may not be an appropriate indicator of drug influence. There is little doubt that examining a subject for "rebound dilation" formed part of P.C. Hush's training. Regardless, however, the use of this indicator in forming an opinion concerning drug impairment again goes beyond the scope of a Bingley-qualified drug recognition evaluator's approved scope. The only way for P.C. Hush to have his opinion on "rebound dilation" accepted by the Court (and thus capable of being incorporated into his overall opinion concerning impairment) would be through the process of a voir dire that expanded his court-approved qualification and scope of opinion beyond the evaluation that is authorized by the Regulation. [4]

Pupil Light Reactivity

140As previously indicated, apart from rebound dilation, P.C. Hush also assessed the reactivity of Mr. Hicks' pupillary response to light. While this testing may well have been conducted in accordance with the officer's training, and while this evidence may or may not be accurate, I am unable to accept it. The Regulation envisions a drug recognition evaluation that takes into account, "an examination of pupil sizes under light levels of ambient light, near total darkness, and direct light". Nowhere in the regulation is it suggested that an officer ought to be attempting assess the sensitivity of the reaction of the subject's pupil to a light stimulus. Similarly, the Regulation does not suggest that the evaluator attempt to assess the subject's pupillary reaction according to objective time measurements. As a result, while the officer's examination of Mr. Hicks' pupil size was appropriate and clearly envisioned by the Regulation, his reliance upon Mr. Hicks' purportedly irregular pupillary response can be afforded no weight and ought to have had no role in the formulation of the officer's opinion.

The Effect of the Officer's Reliance on Out of Scope Elements

141P.C. Hush's reliance on these "out of scope" components in formulating his opinion is particularly problematic in this case. P.C. Hush relied heavily on his examination of Mr. Hicks' eye reactions to rule out medical and other explanations for the problematic aspects of Mr. Hicks' testing including his gross motor skills deficits, and the cognitive impairment that was apparent in Mr. Hicks' response to the divided attention tests. In this respect, P.C. Hush stated as follows:

… And the eyes are a very good indicator. When you see that the eyes have no lack of smooth pursuit, when they are not showing rebound dilation, when the sizes are all within the normal range, ah, these are all indicators that perhaps it's not a drug impairment even though they couldn't complete the psychophysical testing properly, ah, it's perhaps a medical issue…

142In this case, Mr. Hicks presented obvious medical issues. The question of whether or not those issues could be isolated during the evaluation in order to enable P.C. Hush to formulate a valid opinion concerning Mr. Hicks' possible drug impairment was at the center of the officer's analysis. Mr. Hicks presented pupil sizes within the normal range. That is an SOR 2008-196 approved indicator. It ought to have operated in Mr. Hicks' favour. Lack of smooth pursuit is not. Neither is the presence or absence of rebound dilation. They may or may not be elements of a proper opinion concerning drug impairment, but they are not elements of a proper opinion concerning drug impairment by this officer, testifying as a Bingley-approved evaluator.

Summarizing the Regulation and the Findings

143In the paragraph below, I have summarized the results of P.C. Hush's evaluation by setting out his conclusions and my findings in reference to the drug recognition evaluation that is approved in SOR 2008-196 [5]:

Evaluation of Impaired Operation (Drugs and Alcohol) Regulations

(a) A preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;

• Mr. Hicks' pulse was 84 beats per minute (BPM). "Normal" was considered to be 60 to 90 BPM.
• Mr. Hicks' pupils were the same size;
• Mr. Hicks' eyes tracked an object equally.

(b) Eye examinations, which consist of

(i) the horizontal gaze nystagmus test,

• Mr. Hicks did not evidence horizontal gaze nystagmus.

(ii) the vertical gaze nystagmus test, and

• Mr. Hicks did not evidence vertical gaze nystagmus.

(iii) the lack-of-convergence test;

• Mr. Hicks' eyes demonstrated a lack of convergence. Many people who are not drug-impaired also demonstrate a lack of convergence.
• "Smooth pursuit" is not mentioned in the Regulation.

(c) Divided-attention tests, which consist of

(i) the Romberg balance test,

• Mr. Hicks was subjected to what was referred to as a "Modified Romberg balance test", not the Romberg balance test. He showed no significant deficits.
• No evidence was tendered as to the difference between the two tests.

(ii) the walk-and-turn test,

• Mr. Hicks was not able to appropriately follow the directions of P.C. Hush. His balance was compromised, but this factor was attenuated in light of asserted medical issues;

(iii) the one-leg stand test, and

• Mr. Hicks was physically unable to complete this test. Apart from issues pertaining to his inability to follow directions, it was not considered by P.C. Hush

(iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;

• Mr. Hicks performed poorly on this test. He was not able to appropriately follow the directions of P.C. Hush. He did not use the tip of his finger. He touched his nose, but did not touch the tip of his nose, except on one occasion.

(d) An examination, which consists of measuring the blood pressure, temperature and pulse;

• Mr. Hicks' blood pressure was modestly elevated to 150/100. The top end of the normal range is 140/90.
• Mr. Hicks' pulse was 104, but his pulse while sitting during the first clinical evaluation was 84. Mr. Hicks had just been exerting himself in the physical testing.
• Mr. Hicks' body temperature was low.
• Given the existence of two factors that tended to be very modestly "high", and one factor that was low, the result of this examination must be seen to be equivocal.

(e) An examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;

• Mr. Hicks' pupils were within the normal size range for all light conditions. There is no mention of "rebound dilation" in the Regulation.
• There was no examination of Mr. Hicks' nasal and oral cavities.

(f) An examination, which consists of checking the muscle tone and pulse; and

• No issues were observed with Mr. Hicks' muscle tone.
• Mr. Hicks' pulse had returned to 94 BPM.

(g) A visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.

• There was no evidence of injection sites on Mr. Hicks' body.

Cannabis

144P.C. Hush concluded that Mr. Hicks was under the influence of cannabis and a narcotic analgesic. With respect to the officer's opinion concerning cannabis, four things are relevant:

1. Mr. Hicks was, at one time, a synthetic cannabis user by reason of his prescription for nabilone. According to Mr. Hicks, that prescription had long expired, he had not received this medication for some weeks, and the supply of the drug to or by his pharmacy had been problematic. Mr. Hicks' evidence was corroborated by the Patient Medical History found at Exhibit 8;

2. No cannabis or related byproducts were found within Mr. Hicks urine;

3. The only unique indicator P.C. Hush found concerning cannabis was the existence of "eyelid tremors". Evidence of "eyelid tremors" is not part of the 12 step evaluation that is approved by SOR 2008-196; and

4. The only other time that P.C. Hush further mentioned cannabis in his evidence was in relation to the pupil light reactivity tests that he conducted. Again, while SOR 2008-196 envisions testing for pupil size, it does not contain an endorsement of the applicability of pupil reactivity assessments by drug recognition evaluators.

5. Mr. Hicks consistently and expressly disavowed ever having taken any cannabis product at any time, apart from what he referred to as his "pot pills" (nabilone) that were not available to Mr. Hicks through his prescription for a period of at least several weeks before his arrest.

145There was, in fact, no evidence whatsoever that Mr. Hicks had consumed or was under the influence of cannabis or any synthetic cannabis product. At its highest, apart from the evidence concerning eyelid tremors, the suggestion of cannabis use was only supported by the conclusion that P.C. Buckle drew from the hearsay evidence at the collision scene that Mr. Hicks hung air fresheners in his car after the collision: In that respect, P.C. Buckle asserted that people sometimes hang air fresheners in their cars to mask the smell of marijuana. P.C. Hush's opinion concerning Mr. Hicks being under the influence of cannabis during the evaluation was not supportable on the evidence presented in this case.

Assessment of P.C. Hush's Opinion

146P.C. Hush's opinion that Mr. Hicks' ability to operate a motor vehicle was impaired by drugs rested on components of an evaluation that were, at least in part, out of scope. Those portions of his evaluation that were conducted in accordance with the Regulation demonstrated some components that were either neutral or positive, and some components that were negative. While the Regulation-approved elements that P.C. Hush did assess appeared somewhat equivocal on their face, it is the expert who must generate the opinion, not the Court. Given the challenges with the evidence, I am not in a position to determine whether or not P.C. Hush would have been in a position to provide an opinion concerning Mr. Hicks' drug impairment if he had not considered the out of scope factors that have been outlined. [6]

Procedural Issues and Trial Fairness

147The difficulties with P.C. Hush's opinion evidence were not obvious during the hearing of evidence. Mr. Hicks represented himself at trial. The court heard no objection to the evidence of the officer as it was called. The fact that the officer's opinion relied upon elements beyond the approved scope of his evidence did not become apparent until after the evidence was heard and the Crown and Defence had each closed their case. Accordingly, the Court's ongoing role as the gatekeeper of opinion evidence (see I.e. Bingley at para. 29) was not exercised in a contemporaneous manner during the evidence hearing phase of the trial.

148In recognition that if this issue was left unaddressed, it could work an unfairness to the Crown, the matter was brought to Ms. Thomas' attention, and she was afforded an additional opportunity to make submissions on the areas of concern. I further extended an offer to entertain an Application to reopen the Crown's case for the purpose of hearing further evidence on the issue if necessary. Ms. Thomas declined the invitation to apply to reopen her case.

149Given that we are now beyond the point of an admissibility ruling, P.C. Hush's evidence must be treated as a matter of weight. I am unable to afford the identified and problematic portions of P.C. Hush's out of scope evidence any weight. Without these components of the officer's opinion, I am left with a reasonable doubt as to the viability of his opinion concerning whether Mr. Hicks' ability to operate his motor vehicle was impaired by drugs.

Conclusion

150Having considered the evidence in this case carefully, and having watched the DRE video filed as Exhibit 6 in detail, while it is at least possible that Mr. Hicks' ability to operate his motor vehicle was impaired by drugs, that is not sufficient to sustain a finding of guilt. After applying the WD analysis to the evidence and after assessing P.C. Hush's opinion evidence in detail, I conclude that the Crown has not borne its onus to prove beyond a reasonable doubt that Mr. Hicks operated his motor vehicle while his ability to do so was impaired by drugs contrary to s.253(1)(a) of the Criminal Code of Canada.

151Mr. Hicks is found not guilty.

Released: January 29, 2020.

Signed: Justice Mark T. Poland

Footnotes

1Having been provided with evidence about the extent of Mr. Hicks' medical challenges, and having observed him over several days in Court, this observation is unsurprising. Nonetheless, Mr. Hicks has not challenged the officer's "grounds to suspect", nor has he brought a Charter application seeking relief from an arbitrary detention.

2I have not relied upon that portion of the Crown's submissions that referred to the observations of this officer formed during the SFST. Evidence emanating from an SFST demand made pursuant to s.254(2)(a) is not admissible for any purpose other than the formulation of the grounds necessary to make a demand pursuant to s.254(3.1). See R v. Orbanski, 2005 SCC 37 (CanLII), [2005] SCJ No. 37 at para. 58. I have also disregarded the otherwise inadmissible evidence that P.C. Buckle used in forming his grounds, including the hearsay evidence that was called in this case.

3See R. v. Ryon, 2019 ABCA 36 (C.A.).

4As a forensic toxicologist whose evidence was the subject of a voir dire, Ms. Shepard was likely qualified to profess an opinion concerning "rebound dilation", and perhaps the absence of "smooth pursuit" as indicators of drug use. In this case, however, she was not asked and provided no such evidence.

5The italicized text represents the language of SOR 2008-196. The bolded text represents P.C. Hush's evidence.

6I appreciate that P.C. Hush, like any officer, may be entitled to give a non-expert opinion concerning impairment (see i.e. R v. Graat, 1982 CanLII 33 (SCC), [1982] 2 SCR 819) without resort to his Bingley-approved qualifications. He did not do so on the evidence in this case.