ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SHANE CULP
Before Justice Fergus ODonnell
Reasons for judgment released on 15 December, 2025
Michael Lucifora.................................................................................................... for the Crown
Mark Evans................................................................................. for the defendant, Shane Culp
Fergus ODonnell J.:
Overview
Most people go through life without ever being investigated for impaired driving. Some get investigated once in their lives. An even smaller number get investigated for impaired driving twice. It is exceedingly rare, however, for a person to be investigated for impaired driving twice in the same day. Shane Culp is one of that exceedingly small number of people. He was investigated by the police twice in the same evening, in very similar circumstances, about three hours and twenty kilometres apart. On the first occasion the two responding officers sent Mr. Culp on his way, much to the consternation of the citizen who called them. The responding officer on the second occasion, however, arrested Mr. Culp for operating or having care and control of his car while allegedly being impaired by a drug, a charge that Mr. Culp contested over a two-day trial.
The facts are fairly straightforward, being unusual mostly in their slightly deja-vu character. It is mid-October, 2023. Victoria Cardill's neighbour in Niagara Falls alerts her to a man in a parked car and Ms. Cardill accompanies her neighbour and sees Mr. Culp slumped over in the driver's seat of his car, with the engine running and the interior light on. He is holding a lighter in one hand and some tin foil with something crystalline on it in the other.1 There are other pieces of tin foil on the passenger seat. Ms. Cardill calls 911, not knowing if Mr. Culp is alive or dead. After a while two police officers attend and speak with Mr. Culp and Ms. Cardill shows them videos of what she had seen when she first approached Mr. Culp's car. The officers said there was no reason to hold Mr. Culp and Ms. Cardill berated them, asking what if it was their child that Mr. Culp killed on the road. This tongue-lashing apparently did not cause the officers to reconsider their appraisal of Mr. Culp's driving condition. Ms. Cardill provided her video and photo of Mr. Culp in his car to the police after being told the next day that Mr. Culp had been arrested by another officer in Stevensville later that night.
Neither the Crown nor the defence called either of the two responding Niagara Falls officers at the trial.
Perhaps an hour later and about twenty kilometres away, Lorelai Laverne is rounding out her evening shift at Tim Horton's in Stevensville when she sees Mr. Culp's car parked across the street in a plaza whose businesses are all closed at that hour. When she finishes work two hours after that first observation, she rides past the car and sees Mr. Culp inside, his head bobbing up and down. She thinks he is drunk or high, more likely the latter. She rides to grandma's house nearby and returns with grandma, Donna Burton, who also testified, whereupon they call the police. She is worried about the driver's and other people's safety.
Constable Kayla Bays responds to the Stevensville 911 call; she also has access to the details of the police response in Niagara Falls earlier that evening. Her trial testimony demonstrates her to be a capable, clear and balanced witness. She finds Mr. Culp in the driver's seat of his car, "not awake",2 with his head slouched down. On his lap she sees tin foil with burn marks and a glass pipe, also with burn marks. The engine is running. Mr. Culp is non-responsive, but wakes up, seemingly startled, when Constable Bays opens the driver's door. She sees him put the tin foil and pipe on the passenger seat. He is unable to find his driver's licence, although it was also on the passenger seat, but there are a lot of things on that seat. He is very nervous, speaking quickly and stuttering. He turns off the car as directed and is very cooperative. Constable Bays arrests him for drug-impaired driving. She finds only drug paraphernalia (there is no realistic dispute about its nature) in his car, not any non-prescription controlled substances. In her cruiser Mr. Culp starts to blurt out comments about how any drug paraphernalia or drugs in the car are not his and about the many travails he has been enduring in his personal life. In her communications with Mr. Culp, Constable Bays says he seems to understand what she is saying and that his responses make sense.
At the station Constable Bays describes everything she has observed to the drug recognition expert ("DRE"), Constable Frank Chadwick before handing Mr. Culp over to him for examination.
Constable Chadwick is both a breath technician and a DRE. He obtained his DRE qualifications about sixteen months before these events, including training in Canada and the United States. In performing his duties as a DRE he is guided by that specialized training and by a script of factors to test for and assess before coming to a conclusion about whether or not a test subject is impaired by a drug and, if so, what drug or drugs he believes to underlie that impairment. If a DRE makes a finding of impairment by drug, he or she can then require a urine sample which is then sent for laboratory analysis to determine the presence of particular drugs in the subject's urine. The DRE could also require a blood sample, a more powerful evidentiary tool than urinalysis, but that was not done here.
In his testimony Constable Chadwick first went through the various steps involved in DRE examinations, explaining the relevance of each test in general terms. He thereafter went through Mr. Culp's particular results on each step, explaining the possible significance of various results within the context of indicators of use of various drug types, what are deemed to be "normal" ranges for people (e.g. a range of blood pressures or pulses or measured time estimates) and some external factors that might affect the outcomes on some of the stages. He stressed on a couple of occasions that no individual marker was determinative and that his conclusion was based on a consideration of all of the results, negative and positive (my words, not his) taken cumulatively as run through his DRE "matrix" (his word).
Constable Chadwick testified in a thorough and detailed way, clearly familiar with and comfortable with the subject matter of his expertise. Constable Chadwick concluded that Mr. Culp was impaired by a central nervous system stimulant, which would include cocaine and amphetamines, and by a narcotic analgesic, which would include fentanyl, methadone and suboxone. A urine sample was taken from Mr. Culp in light of Constable Chadwick's conclusion and the lab report was entered in evidence; drugs from the two categories identified by Constable Chadwick were indeed identified in the urinalysis from the lab, along with various prescription drugs. As a matter of science, the report makes it clear that the presence of a drug in a urine sample demonstrates only prior drug use or exposure and that drugs present only in urine in no way impair a person's ability to operate a motor vehicle, nor do they prove the presence of those drugs in a person's blood at the time of the sample.
A blood sample, along with very brief scientific evidence, would provide more robust evidence of what, if any, drugs were actually active in Mr. Culp's system. As noted, there was no blood sample taken in this case. It is, of course, a decision for the police to make about whether or not to seek a blood sample. Resource issues may play into that decision. If the case can be proved beyond a reasonable doubt with only a urinalysis, so be it. If the case falls short as a result of the absence of a blood sample and supporting expert evidence, that is an outcome that the state must live with in light of the investigative choices made.
With respect to the DRE examination, Constable Chadwick testified that it was recorded, but no video of the DRE examination was presented in court. Here again, those are choices outside the court's control. How the parties present their case is their business, but those choices may affect the strength of either the Crown or defence case depending on the circumstances. Generally speaking, however, the old adage that "a picture is worth a thousand words" is magnified a thousandfold when it comes to video evidence: a witness's verbal description of an event, hampered by normal human frailties such as limits on observation, retention, recounting and objectivity3 pales vastly compared with the harshly objective camera lens and its ability to see all, capture all and recite all unbound by those human limitations. Universally speaking, the onus is on the Crown to prove its case beyond a reasonable doubt, whereas the defence almost never bears any onus (other than perhaps to rebut a legal presumption that runs contrary to the defendant's interests).
The following provisions of s. 320.31 of the Criminal Code are relevant to Constable Chadwick's evidence:
(5) An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified....of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.
(6) If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug .....is presumed, in the absence of evidence to the contrary, to be the drug.... that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.
- Thus:
(a). The Crown is not required to prove Constable Chadwick's expertise; his expertise is established by the Criminal Code and by his designation as a drug recognition expert accredited by the International Association of Chiefs of Police (the criterion for an "evaluating officer" established in the regulations under the Criminal Code.)
(b). If a blood or urine sample shows the presence of a drug or drugs matching those identified by the DRE as a result of his physical testing of Mr. Culp, the court is required to accept that that drug or those drugs were also present at the time of the alleged offence (since the DRE testing and urine or blood samples may be some hours apart from the time of driving). Also, if the court determines that Mr. Culp's ability to operate the conveyance was impaired to any extent, the drug(s) identified are presumed to have been the cause of that impairment.
(c) The two presumptions established above can be overcome by "evidence to the contrary", for example evidence that creates reasonable doubt about the validity of the presumption.
Given Constable Chadwick's opinion and the urinalysis which showed the presence of drugs of the classes he identified in Mr. Culp's urine and as a result of s. 320.31(6) there is thus a rebuttable presumption that those drugs were in Mr. Culp's body at the time he had care and control of the car in Stevensville (i.e. that his state of impairment was the same at the time of arrest as it was at the time of evaluation) and, if he is proved to have been impaired in relation to operating a conveyance, that those drugs were the cause of the impairment.
Mr. Culp testified. The first question he was asked was whether he was nervous and he said he was. My very strong impression from watching Mr. Culp through the whole of the trial was that he is a person who spends a lot of his life being nervous. Indeed, he testified to suffering from an anxiety disorder as well as borderline personality disorder, attention deficit disorder and depression. Constable Bays’s evidence also supports Mr. Culp’s evidence about being anxious. Mr. Culp is 37 years old. He testified that he was born with one leg shorter than the other, which causes him problems with balance and which specifically affected his ability to perform the heel-to-toe test and the one-leg balance test. He says he has trouble walking straight at the best of times. At five feet and three inches tall, Mr. Culp weighs two-hundred-and-fifty pounds. His physical ailments include high blood pressure.
Mr. Culp has also been a user of non-prescription controlled substances, starting around 2017. He began with morphine and has used fentanyl and cocaine (the latter two of which were in his urinalysis), but not methamphetamine (which was also one of the substances in his urinalysis).4 He testified that as of the time of the trial the only controlled substance he was on was methadone (also in the urinalysis), which he had been on for about six years in order to control his addiction. He testified that he is allowed "full carries", which means he only has to visit the methadone clinic once a week, whereupon he is allowed to leave with his methadone for self-administration for the next six days. He said that he is subject to urinalysis every two weeks and that failing a test would disqualify him from his full carries and require him to attend daily for his methadone. He testified that he had had clean urine tests for almost two years, which would have taken him back to around the time of the alleged offence (nineteen-and-a-half months before the trial). He said that with the help of the methadone he has his drug issue under control. He said that his arrest scared him straight and that he no longer associates with the people he had been associating with the weekend of his arrest.
Mr. Culp said that when he was stopped by the police he was on his way home to Ridgeway on a Sunday night after spending Saturday and Sunday at a friend's birthday celebration in Niagara Falls, where he and some now-former friends hung out and "chilled." He said that he didn't sleep much at all because he was sleeping on the couch and people were arguing during the night. He said that around midday on Saturday he had taken some fentanyl and some cocaine. He was unaware that either of those was adulterated with any of the other street drugs in his urinalysis. He didn't take any other drugs after about five o'clock on Saturday afternoon because he ran out. He had last taken his prescribed methadone when he left his home on Saturday morning.
Mr. Culp testified that he pulled over only a few blocks after leaving his friend's house in Niagara Falls because he was too tired and wanted to sleep. This would have been in front of Ms. Cardill’s home. He was awakened by the first police officers. He testified that he had not used any drugs in the car because he didn't have any but admitted the presence of the foil, lighter and so on. He said that the officers searched his car and let him go. He then proceeded on his way home but stopped again about twenty minutes later because he was tired and didn't feel it was safe to continue the last ten or fifteen minutes to his house. He said that he was awakened again, this time by Constable Bays who he said rushed him and didn't really allow him time to find his documents. At the station he described his anxiety as a 10/10 and said he was shaking and fidgeting. He attributed his failure to tell Constable Chadwick about his balance and other issues to his nervousness: "I was a mess."
When cross-examined about why he had a lighter in one hand and tin foil in the other when he was passed out in Niagara Falls, Mr. Culp said he had just picked up the foil and that he might have been planning on smoking a cigarette. To be charitable to a witness I consider to have been mostly reliable, this was not the most convincing part of his evidence; even he agreed that most people wouldn't believe it and would think he had just smoked drugs. His testimony that he was surprised that there was any methamphetamine in his system, that he had lent his car to another person at the party on Saturday and that another piece of foil and crack pipes in the car were not his was more convincing. Within the context of the Supreme Court of Canada decision in R. v. W. (D.), that testimony at a minimum creates doubt about the relevance of some pieces of evidence to Mr. Culp’s guilt.
In cases of this nature, the key questions a court has to address are whether or not the Crown has proved beyond a reasonable doubt that:
(a) Mr. Culp was operating or had care and control of a conveyance. Mr. Evans made no contest about this issue, reasonably so.
(b) Mr. Culp's ability to operate that conveyance was impaired at least to some extent.
(c) That impairment was caused by alcohol or a drug.
Those determinations have to be made on all of the evidence. The Crown has the benefit of certain "helping hands" in making its case, including, for example, the statutory recognition of the DRE officers as experts and the rebuttable presumption that if the DRE's drug identifications are consistent with the urinalysis results, then those drugs are proved to have been in the defendant's body at the time of driving and, if he was impaired, to have been the cause of the impairment. It goes without saying that a rebuttable presumption is not necessarily determinative of the outcome of the trial, nor is the DRE's status as a statutorily recognized expert. As in any trial, the ultimate question is whether or not the Crown has proved its case beyond a reasonable doubt, taking into account the quality of the Crown's evidence and the impact of any defence evidence.
The defendant, Mr. Culp, has the benefit of certain helping hands in this case also. These include the presumption of innocence, the burden of proof on the Crown to prove its case in a criminal prosecution and the Crown's burden being to prove its case beyond a reasonable doubt, a very high standard. Having testified, Mr. Culp's evidence must also be assessed as described by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC).
In R. v. Bingley, 2017 SCC 12, the Supreme Court of Canada made the following observations about the roles of different players in drug-impaired driving cases:
30The statutory framework does not undermine a trial judge’s important role as gatekeeper to safeguard the trial process and ensure that it is not distorted by improper expert opinion evidence. The trial judge always maintains residual discretion to exclude evidence if its probative value is outweighed by its prejudicial effect. Limitations, such as the absence of a standardized approach to weighing the various tests in reaching a determination, may affect the probative value of a DRE’s opinion evidence. A DRE may be unable to explain how he or she made the determination based on the application of the 12-step evaluation. If the probative value of an individual DRE’s evidence is so diminished that the benefits in admitting the evidence are outweighed by the potential harm to the trial process, a trial judge retains the discretion to exclude that evidence. I reiterate here that the focus of the analysis must be on the DRE’s administration of the evaluation, not on the reliability of the steps underlying the evaluation, which have been prescribed by Parliament.
31It is also important to note that the determination of the DRE is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug. The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge or jury to consider.
32That Parliament has established the reliability of the 12-step drug evaluation by statute does not hinder the trier of fact’s ability to critically assess a DRE’s conclusion of impairment or an accused person’s right to test that evidence. Cross-examination of the DRE may undermine his or her conclusion. Evidence of bias may raise doubt about the officer’s conclusion. The officer may fail to conduct the drug recognition evaluation in accordance with his or her training. A DRE may draw questionable inferences from his or her observations. Bodily sample evidence obtained under s. 254(3.4) may refute the DRE’s assessment, as may evidence of bystanders or other experts. It will always be for the trier of fact to determine what weight to give a DRE’s opinion. Any weight given to a DRE’s evidence will necessarily respect the scope of the DRE’s expertise and the fact that it is not conclusive of impairment.
(emphasis added)
(Obviously, the comments above are subject to the post-Bingley statutory changes, such as the presumption that is now found in s. 320.31(6) of the Criminal Code).
Mr. Evans suggested that Mr. Culp should be found not guilty because, to Mr. Evans's recollection Constable Chadwick referred in his conclusion only to Mr. Culp being "impaired" and not to "his ability to drive being impaired". Mr. Evans may be correct that Constable Chadwick did not use that precise incantation in his final statement of opinion in the stand (my notes show that he did not use the word "drive" or something similar), but he did say earlier, right after outlining the process, that the entire purpose of his examination was, "to determine if his ability to operate a conveyance was impaired by a drug or alcohol". I have no doubt that Constable Chadwick's conclusion related specifically to Mr. Culp's ability to drive.
The Crown opened his submissions with an admonition5 that in determining the outcome of the case the court should consider that Constable Chadwick was "right" because in his DRE examination he properly identified two classes of substance that were later identified in Mr. Culp's urinalysis. I, "need to keep that in mind in considering his evidence," he said.
I am forced to demur on the relevance or at least the force of that conclusion. To the extent that it applies, I am obviously bound by the presumption set out in the Criminal Code, but I am also bound to remember that it is a rebuttable presumption and by the simple reality that the DRE is not the trier of fact, the court is.6 Presumptions can be rebutted in a variety of ways, including from weaknesses in the evidence of the party relying on the presumption or in contradictions or strengths from other evidence. With respect to Constable Chadwick "getting it right", there is one glaring counterpoint (as well as more issues below): the classes of drugs identified by Constable Chadwick happened to coincide perfectly with the paraphernalia observed by Constable Bays in Mr. Culp's car. While the drug recognition framework is set out by Parliament and by regulation, it remains that the framework is only one piece of evidence and that it must be measured like any other piece of evidence (albeit with a rebuttable presumption, where triggered) in terms of any weaknesses or counterpoints (indeed weaknesses and counterpoints may on the facts of a given case be what rebuts the presumption). If this were a case in which Constable Chadwick had not been given any helping hand with his analysis based on items found in Mr. Culp's vicinity, then the Crown's submission would have greater force, but the inclusion of those factors within his determination does force one to be alive to the issue of potential pre-judgment based on criteria arguably outside those established in the regulations. It is obviously Parliament's prerogative to establish the DRE scheme (and regulations) to combat a real and present danger to users of the roads, but the determination of any given prosecution will necessarily involve consideration of any weaknesses in the evidence, including any features in the legislative formula that could undermine reliability of the DRE's conclusions in some cases.
(I also note that when challenged in cross-examination with an alternate explanation for Mr. Culp's test results, Constable Chadwick's response was that he was right because Mr. Culp was in a car with a crack pipe and the drugs he identified matched the urinalysis results. Ex post facto “confirmation”, especially ex post facto confirmation only of the presence of some undefined amount of various substances in the defendant’s body at some undefined point in the past, which is what the urinalysis results are limited to, is far from the sturdiest of backstops).
I also disagree with the Crown's position that Mr. Culp admitted his driving was affected by his sleepiness.7 It is true that he admitted he stopped driving on two occasions because he felt it was imprudent to carry on because of sleep (not drugs), but he also testified that he had not fallen asleep at the wheel and felt it would be more responsible to park because he was losing focus. That thought process, which I accept as true, is a sign of rational decision-making, not impaired judgment. There is, in this case, absolutely no evidence of unsafe or erratic driving. To the contrary, there is evidence of Mr. Culp pulling over, even despite being close to his home, parking safely and sleeping for up to two hours before being roused, all of which could be taken as evidence of prudence rather than impairment.
Obviously, the greatest weakness in Mr. Culp's testimony is the image of him holding a lighter and tin foil when he parked the car in Niagara Falls. I agree with the Crown that that piece of his evidence does not make much sense. It is, by far, the most challenging part of Mr. Culp's evidence, so much so that even Mr. Culp recognizes that to be so, a recognition he offered with no resistance. At the same time, the evidence establishes to my satisfaction that the first two police officers (in Niagara Falls) interacted with Mr. Culp, searched him and told him to drive home (despite being berated by Ms. Cardill for endangering the public by doing so), hours before Constable Bays arrested him. I am not satisfied that Constable Bays's evidence about his difficulty getting his driver's licence is more reliable than Mr. Culp's evidence that she allowed him no time to get it before arresting him. If he ingested anything in Niagara Falls, there is no strong evidence of what it was, what effect it would have had on his ability to drive or how long those effects would have lasted (a blood sample might well have determined those issues one way or the other). There is no evidence of ingestion in Stevensville. There is no suggestion that alcohol was involved at any point.
Realistically, what we have in this case is Ms. Cardill's observations in Niagara Falls, the observations of the civilian witnesses and Constable Bays in Stevensville and Constable Chadwick's analysis, plus Mr. Culp's own evidence.
I accept Mr. Culp's evidence about his physical and emotional health issues and, at a minimum I am left with a reasonable doubt about his actual ingestion of controlled substances at any time after around 5 p.m. on Saturday (the arrest having taken place about thirty hours later). I accept that he failed to notify Constable Chadwick about some of those health issues that would have been relevant to the administration or analysis of the DRE examination, but I do not doubt the existence of those issues as described by Mr. Culp and I accept his anxiousness as the reason he failed to mention them. Some of his various issues seem plausible or probable simply upon his physical presentation (e.g. the anxiety, balance issues) and some of them are consistent with the Crown's own scientist's urinalysis notes (e.g. medications for depression and high blood pressure).
The Crown's DRE evidence suffers from the following weaknesses:
(a) I have only Constable Chadwick's description of events rather than the video evidence of the examination. As noted earlier, this is a poor substitute for the video, not because of any weakness inherent in Constable Chadwick but because the video will almost always provide a more complete, more nuanced and more reliable record. I do not propose to get into a detailed discussion of the ambit of the "best evidence" rule, but commend the comments of the Alberta Court of Appeal some thirty years ago (albeit in a very different context) at paragraphs 6 and 7 of R. v. After Dark Enterprises Ltd., 1994 ABCA 360, wherein the general benefits of video evidence over fallible human descriptions of events are noted. This is not to say that I think Constable Chadwick was making things up, only that better evidence was available and not presented so I cannot be as confident as I might be about the details, for example, of the physical coordination tests.
(b) Constable Chadwick was self-contradictory about the relevance of a test subject's personal details for his testing. At one point in cross-examination, he specifically said that age, height, body shape, etc. had no relevance to the testing (and presumably the conclusions). When asked if Mr. Culp's body shape ("carrying an extra sixty or seventy pounds" in Mr. Evans's words, which is consistent with Mr. Culp's own evidence) would not create more difficulty with the coordination tests, Constable Chadwick answered, "I'm not a doctor. I can't say." Quite apart from those dismissive answers being patently absurd on the facts of this case, in re-examination Constable Chadwick said that he would take into account if a person needed extra accommodation for age or fitness, adding, "I'm not going to expect a one-leg stand to go well for a ninety-year-old". The inconsistency in his responses seemed to align with whether he was being examined by defence or Crown counsel.
(c) As with other legal concepts such as reasonable grounds, the DRE conclusion is supposed to be a totality of the circumstances process, where individual results are not determinative. That being said, when there are weaknesses or real ambiguities in multiple factors, the ultimate conclusion necessarily becomes increasingly frail. I am not confident that Constable Chadwick truly recognized that reality and meaningfully applied it in his analysis and conclusion. For example, Mr. Culp was one second out of the "normal" range in his estimate of how long thirty seconds was. Obviously it was outside "normal", but only by the smallest of measures, and Mr. Culp explained that he got to that point by counting it out-individual results may vary. Mr Culp's failure of the one-leg balance test including his tremors at that time strike me as having zero reliability as a consideration in the circumstances of this case; I would suspect that the likelihood of someone with his body composition passing the one-leg balance test is approximately nil. I accept Mr. Culp's evidence about his legs being unequal since birth, which undermines any reliance on loss of balance. As set out herein there were sufficient of the criteria being assessed by Constable Chadwick that suffered from such frailties for his ultimate conclusion to become unsupportable. It is not so much a situation of “nothing plus nothing makes nothing” as “not much plus not much plus maybe plus perhaps does not equal proof beyond a reasonable doubt.”
(d) It also seemed that whenever there was a result that appeared neutral or innocent, Constable Chadwick was a bit too ready to reject any innocent explanation. For example, Mr. Culp's muscle tone was normal. Some drugs would cause rigidity he said, some drugs would cause muscles to be flaccid, but he went on to explain that antagonistic drugs might even out for normal muscle tone. He chose to go with the antagonistic explanation rather than another explanation, the rejection of which he did not explain, i.e. that, the absence of any drugs could lead to normal muscle tone just as readily as the presence of multiple antagonistic drugs. Any weight to be given to a factor like that seems dubious when it is so ambiguous. The same was done with Mr. Culp's pulse and pupil size, which were normal.
(e) Mr. Culp's vital signs were generally fine, other than his blood pressure, for which he was taking medication.
(f) Mr. Culp's drowsiness could have been the effect of a narcotic analgesic as Constable Chadwick opined or it could have been the effect of someone who had slept very poorly as Mr. Culp testified.
Having considered all of the evidence, I accept the bulk of Mr. Culp's evidence as being truthful, although I have concerns about what exactly he was doing before he passed out or fell asleep in his car in Niagara Falls with the lighter and tin foil in his hands. In particular, leaving that aside I accept his evidence about his drug consumption otherwise ending late in the afternoon of Saturday, a version that is implicitly bolstered by the fact that when the police officers in Niagara Falls interacted with him they took no steps to stop him from driving, even in the face of condemnation from the redoubtable Ms. Cardill.
I have no reason to doubt the honesty or for that matter the reliability of any of the Crown's factual witnesses, but as noted I have precious little reason to doubt Mr. Culp's honesty or reliability, subject to my concerns about what Ms. Cardill saw in his hands in Niagara Falls. More than that, I accept much of what he said as true. The simple reality is that the Crown's case here leans very, very heavily on Constable Chadwick's opinion evidence and given the concerns I have raised that evidence is simply not convincing enough.
In the result, having considered all of the evidence and argument:
(a). I am not satisfied that the Crown has proved beyond a reasonable doubt that Mr. Culp's ability to operate a conveyance was impaired that day.
(b). Even if his ability to operate a conveyance was impaired in any way by some influence, the evidence does not establish that that influence was alcohol, a drug or a combination thereof.
(c). To the extent that the presumption in s. 320.31(6) of the Criminal Code might have been triggered, that presumption has clearly been overcome by the weaknesses in Constable Chadwick's evidence and the strengths in Mr. Culp's.
It is for these reasons that I have found Mr. Culp not guilty
Released: 15 December, 2025
Footnotes
- There was no analysis of any of the items or residue on them that were observed in Mr. Culp’s car during either of his police interactions that evening, although judicial notice can certainly be taken of the fact that the foil, lighter, glass pipes, etc. are consistent with the inhalation by someone at some prior time of controlled substances. In particular, whether the crystalline substance on the foil during Mr. Culp’s first police interaction was a controlled substance that he was ingesting or simply evidence of the past consumption of a controlled substance remains unclear, at least unclear to the required evidentiary standard in a criminal trial.
- Different terminology was used to describe Mr. Culp’s condition at the outset of the two stops. “Not awake” is probably the most neutral formula used, with “asleep” and “passed out” also being used at different times. “Asleep” is probably the most innocent-sounding descriptor. “Passed out” is not inherently pejorative but does carry a greater likelihood of implying a state brought about by drink or drugs.
- Subject, of course, to technical issues.
- Traffickers in illicit controlled substances are not known for their truth in marketing and the adulteration of the drug they say they are selling with other substances, either inert or different controlled substances that are cheaper, is commonplace, so I am inclined to accept Mr. Culp’s evidence about the methamphetamine.
- “Admonition” is a word with a broad range of meanings, from stern chastisement at the high end to enthusiastic advocacy at the low end. To be clear, I use it in the latter meaning here; Mr. Lucifora was a model of professionalism throughout the trial, as was his slightly older opponent, each representing their client with focus and skill.
- I do not believe the presumption actually serves in any way to reinforce the DRE’s conclusions or to safeguard them from scrutiny based simply on the fact that his or her drug selections ultimately match the urinalysis or blood analysis. The presumptions are narrower, focused on two specific issues. That is to say, the coincidence of DRE and analysis conclusions about drug type: (a) creates a presumption of identity between what drugs were present at the time of the DRE examination and the time of driving, thus avoiding a debate about some intervening change in facts that would make the driving innocent; (b) creates a presumption of causation, i.e. that if the court finds impairment and if the DRE and the urinalysis (or blood) both identify the same substances, then those substances are the cause of the impairment.
- Unless sleepiness is drug- or alcohol-related, driving while sleepy does not make out the criminal offence of impaired driving, although it might make out another offence.