ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
Bailey Crossman
Before Justice B.C. Oldham
Heard on July 14, 16, January 20 and 23, 2026
Reasons for Judgment released on March 18, 2026
E. Metz counsel for the Crown
D. Lakie counsel for the defendant Bailey Crossman
OLDHAM J.:
1Mr. Crossman stands charged with one count of impaired operation of a motor vehicle contrary to section 320.14(1)(a) of the Criminal Code (the “Code”) and one count of possession of a prohibited substance, cocaine, contrary to section 4(2) of the Controlled Drugs and Substances Act (“CDSA”).
2Counsel for Mr. Crossman acknowledged the date, jurisdiction and identification of Mr. Crossman as the accused arrested and charged. The utterances made roadside and during the Drug Influence Evaluation (“DIE”) were admitted as being voluntary. At the close of the trial, Counsel further acknowledged that Mr. Crossman should be found guilty of being in possession of the four grams of cocaine seized from his motor vehicle on the night of the arrest.
3With respect to the impaired operation charge, the Court heard evidence from four police officers, Provincial Constable (“PC”) Eade and PC Osipenko from the Anishinabek Police Services (“APS”) and Seargent (“Sgt”) Jacques and PC Logue from the Ontario Provincial Police (“OPP”). James Rajotte, a Forensic Scientist from the Center of Forensic Sciences (“CFS”) provided expert evidence in respect of the Toxicology Report. On consent he was qualified as a forensic toxicologist with expertise in the following areas:
(1) the absorption, distribution and elimination of drugs and alcohol in the human body;
(2) the detection and analysis of bodily substances for the presence and concentration of drugs and alcohol; and
(3) the pharmacological and toxicological effects of drugs on the human body including the ability to operate a motor vehicle or conveyance.
4Mr. Crossman testified and his family doctor, Dr. Bradley Rietze provided evidence about his medical history.
5The circumstances that led to Mr. Crossman’s arrest are relatively straight forward and not contested. The OPP and APS were conducting a joint RIDE program on Highway 400 north of Parry Sound on June 6, 2024. The RIDE was set up at a location described as the ‘split’ which is where Highways 69 and 400 meet and the where the two-lane highway turns into a divided highway. PC Eade and PC Osipenko were monitoring traffic traveling southbound and PC Logue and Sgt Jacques were focused on the northbound lanes.
6PC Logue was the officer who first observed Mr. Crossman as he entered the RIDE location. While PC Logue’s viva voce evidence was that Mr. Crossman approached the RIDE at 9:25 pm, all other evidence, including his own DIE indicate the time as being 11:25 pm.
7PC Logue acknowledged that his observations of Mr. Crossman’s driving was limited, and no concerns were noted as he approached the RIDE. No other officer or witness observed Mr. Crossman while he was operating his motor vehicle that night. PC Logue formed a suspicion that Mr. Crossman may be impaired based on his observation that Mr. Crossman was sweating, nervous, had dilated pupils and marks in his arm that looked consistent with an intravenous drug user. The temperature was 17 degrees and accordingly, the fact that Mr. Crossman was sweating while wearing a tank top caught PC Logue’s attention as being unusual.
8PC Logue was the only qualified Drug Recognition Evaluator (“DRE”) available that night and accordingly, he asked PC Eade to conduct the roadside standard field sobriety test (“SFST”) to avoid any appearance of bias should he be called upon to conduct the DRE.
9PC Eade testified that she commenced the SFST at 11:25 pm. She noted that Mr. Crossman’s eyes were not tracking but recognized that it was possibly due to an ocular issue. Mr. Crossman suffered a workplace injury on July 31, 2020 leaving him blind in his right eye. Her greater concerns arose during the walk and turn test and the one-legged stand. On both he performed poorly with observations of loosing balance, swaying, stumbling, using his arms to balance and missing the heal to toe twice throughout the two sequences. Mr. Crossman used both feet to turn on the walk and turn test and noted that he forgot what to do next. On the return he took 10 steps instead of nine as instructed.
10As a result of PC Eade’s SFST, Mr. Crossman was arrested for impaired operation of a motor vehicle and was provided with rights to counsel and caution. PC Logue read the standard DRE demand which was to be completed at the detachment. PC Eade and PC Osipenko transported Mr. Crossman back to the detachment. They left at 11:42 pm and arrived at 11:51 pm. PC Eade’s facilitated a call with duty counsel at 11:57 pm. PC Eade and PC Osipenko drove Mr. Crossman to the Tim Horton’s on Bowes Street following his release. He was polite and co-operative throughout his engagement with all of the officers.
11PC Logue was a qualified DRE having been first certified on November 7, 2022. He conducted the 12-step DIE at the detachment. All but the dark room testing was video recorded, but portions did not have audio making it difficult to capture and assess the full context of the evaluation. PC Logue determined that Mr. Crossman performed poorly on the DIE and opined that he had a central nervous system (“CNS”) stimulant in his system. Mr. Crossman provided a urine sample which was tested at the CFS. The Toxicology Report confirmed that cocaine and carbonoxytetrahydrocannabinol were detected in his system. A number of other drugs were “unconfirmed” meaning that if there was any presence of the particular drug identified, the level was too low to confirm detection. No other drugs were detected in Mr. Crossman’s urine.
12Mr. Crossman testified and denied that he was impaired by cocaine at the time that he was operating his motor vehicle. He acknowledged that he was a user but stated that the last time he used cocaine was at approximately 9:00 pm on June 5, 2024. He acknowledged that he was using approximately two to three times per week around the time of his arrest but denied that he was an addict. Mr. Crossman defined an addict as someone who could not do without cocaine. He described his use as recreational. He testified that generally the effects of his cocaine use would wear off within a few hours. He testified that on June 5, 2024 he used less than a gram and that the effects had worn off by the time that he woke up the next morning. He was adamant that he did not use on June 6, 2024 as he worked all day and that he never used when he was working. Mr. Crossman was employed as a mechanic and worked at a marina. His hours of work were from 8:00 am until 2:00 or 3:00 pm. When he was stopped on June 6, 2024 he was on his way from Dunchurch (where he lived) to Point au Baril (where he was going to visit a friend). Mr. Crossman testified that he had been driving for approximately one hour when he arrived at the RIDE stop.
13Mr. Crossman testified about his accident on July 31, 2020. He was working as a mechanic and was repairing a tire when the tire exploded. He was taken to Sunnybrook hospital and only recalls waking up approximately one and one-half days later. He suffered multiple fractures including fractures to his scull, chest and right arm. He lost his sight in his right eye and suffered hearing loss. He testified that he was off work for approximately two years following the accident and that he suffered from seizures resulting in the loss of his driver’s licence for at least six months. He traveled back and forth to Sunnybrook for almost three years following the accident.
14At the time of this incident, Mr. Crossman had been working for approximately two years and had not suffered any seizures for a number of years. His driver’s license was reinstated and while he undergoes annual testing, his license has not been revoked.
15Mr. Crossman testified that he continues to struggle with sight (he is blind in his right eye) which can impact depth perception. He has challenges with balance at times and notes that his cognitive functioning is not the best. He described it as having good days and bad days. He has not used cocaine since this incident.
16Dr. Rietze has been Mr. Crossman’s attending physician since July 2023. He testified to confirm Mr. Crossman’s injuries, recovery and ongoing medical issues. Dr. Rietze was not called as an expert witness to testify about how or whether Mr. Crossman’s impairments might have impacted on his ability to perform well on the DIE, only to confirm that he continues to suffer from hearing loss, vision loss and has mild balance issues.
17Mr Crossman acknowledged that he did poorly on the SFST but claims that he was very nervous and that his anxiety and lack of vision impacted his ability to do well. He knew he had cocaine in his car and that he was not allowed to have that substance. He noted that the lights and presence of the officer’s was stressful and made it difficult to perform well. He told both PC Eade and PC Logue that he was blind in one eye. He explained to PC Logue that the marks on his arm are the result of sweat sores that have been picked. While the lighting at the station was better, Mr. Crossman maintains that his disabilities were not properly taken into consideration in the DIE. He denied ever taking cocaine intravenously and testified that on June 5, 2024 he snorted the cocaine through his nasal cavity.
Position of the Parties
18Counsel for Mr. Crossman submits that the Crown has not met its onus in this case. There is no evidence of bad driving and in fact only one officer, PC Logue even observed Mr. Crossman driving.
19Counsel further submits that this case involves significant and unusual personal circumstances related to the accused which are outside of the scope of the codified 12-step test. The significant physical and cognitive issues resulting from Mr. Crossman’s accident make any of the testing which requires co-ordination (such as balance, vision and hearing) and cognitive abilities very problematic and unreliable.
20Counsel provided two decisions which apply the 12-step DIE in circumstances where an individual has medical issues (R. v. Takov 2025 ONCJ 316 (“Takov”) and R. v. Hicks 2020 ONCJ 649 (“Hicks”)). In submissions Counsel focused on Justice Poland’s decision in Hicks which provides a very thorough review of the results of a DIE involving an individual with clear physical and medical conditions. In Hicks, the Court accepted the accused’s evidence of the impact that nervousness and anxiety may have on overall performance.
21Counsel reminds the Court of the Supreme Court of Canada’s direction in R. v. Bingley 2017 1 SCR 12 (“Bingley”) which is to accept the reliability of the 12-step drug evaluation for the purposes of s. 254(3.1) of the Code. Justice Hawke in Takov tracks the regulations and concludes that the drug influence evaluation of The International Chiefs of Police is the 12-step test referenced in s. 254 (3.1) and incorporated by reference in the current regulations. The DRE need not be qualified as an expert, but his opinion is not a presumption of guilt, just one factor to be considered. Hicks, Counsel submits, is a reminder that the officer’s expertise is limited in scope to the DIE. Observations outside of the 12 step-test may require a Mohan voir dire to establish further expertise. Counsel referred to the fact that PC Logue considered eye lid tremors, for example, which are not part of the 12-step test.
22Moreover, in cases such as the one before this Court, the DRE is not qualified to assess the impact of Mr. Crossman’s physical and medical limitations on the accuracy of the DIE. Counsel submits that if one were to make allowances for all of the cognitive impairments suffered by Mr. Crossman, it would be dangerous to conclude that he was impaired even taking in all of the cumulative impacts.
23Mr. Rajotte, Counsel submits, corroborates Mr. Crossman’s evidence that he would not be impaired if ingestion occurred on June 5, 2024, 24 hours before he was operating his motor vehicle. Mr. Rajotte confirmed that cocaine has a ½ life as low as 30 minutes and up to 60 minutes. He confirmed that there are many factors such as timing, amount of administration and manner of administration that can impact whether cocaine had an impairing impact at the time of driving. Tolerance to a substance can also be a factor.
24Mr. Rajotte described outward observations in the stimulant and crash phase, many of which were not present in the observations of Mr. Crossman. For example, Mr. Rajotte testified that one might observe rapid speech, grinding of teeth, inability to sit still, euphoric or aggressive behavior. A person in the stimulant phase may not be able to follow direction well. High heart rate or high blood pressure may be present in a CNS stimulant user. The only identifiers present with Mr. Crossman were an elevated pulse on the 2nd and 3rd test and an elevated blood pressure. None of the other identifiers were observed.
25Crash phases are marked by drowsiness or an inability to stay awake; none of which was present with Mr. Crossman.
26Mr. Rajotte also confirmed that cocaine can remain in a urine sample long after the effects are gone and for up to 12 hours. The cocaine detected in Mr. Crossman’s urine does not allow him to opine as to whether he would have been impaired at the time that he was operating his motor vehicle.
27In the application of the W.D. analysis, Counsel acknowledges that there are some inconsistencies but submits that these can be explained away by Mr. Crossman’s cognitive issues. For example, when testifying about his last use, Mr. Crossman initially said an hour ago and then 12 hours ago but was adamant that the last use was around 9:00 pm on June 5, 2024. When he did the math, he realized that it was more than 24 hours before.
28At one point he told the Crown that none of his disabilities had any bearing on the SFST, but when asked the same question with respect to the DIE he said ‘of course’ they had an impact and referenced his inability to maintain balance. In cross examination, he was challenged about how it could be that his disabilities do not ‘impair’ his ability to drive yet impair his ability to do the SFST and the DIE. Mr. Crossman responded by saying that it was a daily struggle with balance, lack of depth perception and in interpreting what is happening around him. That daily struggle does not mean that he cannot function in the sense of driving or working.
29Finally, Counsel submits that the absence of any bad driving observations is a significant hurtle especially when present with a number of personal and cognitive impairments.
Crown’s position
30The Crown submits that the Court cannot make much if anything from Dr. Rietze’s evidence. The doctor was not qualified as an expert and therefore the Court cannot accept the suggestion that Mr. Crossman’s disabilities may have impacted his ability to perform all aspects of the DIE. The Crown submits that the onus is on the accused to bring an expert to challenge the DIE on these aspects.
31The Crown relies on the findings of PC Eade on the SFST and those of PC Logue on the DIE as supporting a finding that Mr. Crossman was impaired. He did poorly on a number of aspects of both tests. There were observations of eye lid tremors, lack of balance on the walk and turn, using the pad instead of the tip of his finger on the finger to nose test. The constellation of results on the DIE support a finding that Mr. Crossman was impaired.
32Mr. Rajotte confirmed that cocaine was in Mr. Crossman’s urine. The Crown acknowledges that he was careful to emphasis that impairment or measurement cannot be confirmed by the presence of cocaine in his system.
33On a WD analysis, the Crown submitted that the Court must be careful in accepting Mr. Crossman’s claim that he performed poorly because he was nervous or because of a brain injury. The Crown submits that driving is a highly regulated activity and that if Mr. Crossman was cleared to drive a motor vehicle after his accident, the disabling impacts could not be that severe to impact his ability to perform the SFST or the DIE. Further, the Crown submits that it is not credible that lights and the presence of police would impact his ability to complete the tasks required by the DIE. If the impacts are that severe then he likely has a duty to report under section 2(a) of the Highway Traffic Act. He cannot, the Crown submits have it both ways.
Law and Analysis
34This is a case where the sole issue is whether Mr. Crossman was impaired by drugs, specifically cocaine, while operating his motor vehicle on June 6, 2024. There was no suspicion or allegation with respect to alcohol consumption and impairment.
35As noted above, while the SCC in Bingley acknowledges the reliability of the 12-step test which was originally described in s. 254(3.1) of the Code, it remains with the trier of fact to determine whether the Crown has proven either through the DIE or other evidence that the accused was impaired by drugs at the time that he was operating a motor vehicle. Justice Hawke in Takov sets out a helpful list of points made about a DRE in Bingley that still apply. At paragraph 66 she notes the following:
[66] I am going to interrupt the interpretation of evaluation for a moment in order to include some points about DREs made in Bingley, that still apply today. They are:
(i) A DRE’s determination is a result of administering the prescribed evaluation. That is the only expertise conferred on a DRE. (Bingley, para 29)
(ii) The focus of the analysis at trial 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. (Bingley, para 30)
(iii) The statutory framework does not change a trial judge’s role regarding expert evidence and examples include: absence of standardized approach can affect weight of a DRE’s evidence; and this may include being unable to explain how an opinion was determined based on the 12-step evaluation. (Bingley, para 30)
(iv) There are a number of possible issues that may arise in assessing a DRE’s evidence including: the officer may fail to conduct the drug recognition evaluation in accordance with his or her training; and a DRE may draw questionable inferences from his or her observations. (Bingley, para 32)
36In the case before this Court, there are no observations of impaired driving and the Toxicology Report while, confirming that Mr. Crossman had cocaine in his urine, cannot opine on whether he was impaired by cocaine at the time that he was operating his motor vehicle.
37The Crown bears the onus and must prove beyond a reasonable doubt that Mr. Crossman was impaired by drugs. In this case that issue turns on the results of the DIE and the evidence of the officers. Mr. Crossman testified and provided an exculpatory explanation for the results. The Court must conduct an analysis of the testimonial evidence within the framework of the Supreme Court of Canada’s decision in R. v. W.(D). 1991 93 (SCC), [1991] 1 S.C.R. 742 (“WD”) which provides as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
W.(D)., supra, para 28.
38The Crown submits that without expert evidence to address and guide the Court with respect to how Mr. Crossman’s cognitive and physical disabilities impacted his ability to perform well on the DIE, the Court cannot take these issues into consideration. This submission, in my view, is akin to reversing the onus of proof onto the accused. Experts are required to give evidence where the Court cannot rely on common knowledge or common sense. Just as was done by Justice Poland in Hicks, where there are clear and observable disabilities, the Court can and should consider how and whether they may impact the reliability of the DIE. Does the presence of the cognitive impairment or disability raise a reasonable doubt about the results or observations of the DRE or other witnesses? Common sense tells us that if an individual is blind in one eye, they may have more difficulty performing certain tasks than a sighted person. An expert is not required to provide that evidence.
39However, without expert evidence to confirm that the disability nullifies the results of the DIE, the fact that an individual has a medical or cognitive issue does not mean that the Crown cannot meet its standard of proof.
40Mr. Crossman denied that he was impaired but acknowledged that he had used cocaine the night before. On the surface that might appear to be a convenient explanation which addresses the fact that cocaine was found in his urine and in the motor vehicle. However, there are a number of aspects of the evidence of other witnesses which corroborate his testimony. They are as follows:
(1) There was no evidence of any observations of bad driving. The only officer who observed Mr. Crossman driving was PC Logue. His observations were limited to the approach at the RIDE stop. What is notable is that, if Mr. Crossman’s evidence is accepted, he drove from Dunchurch which was approximately one hour away without any civilian or other witnesses reporting concerns about his driving. Mr. Rajotte testified that if Mr. Crossman was in the stimulant phase one might observe aggressive or fast driving or inattentive behaviors. In the crash phase one might observe drowsiness or inability to stay awake. One might expect that to result in observations of swerving between lines or an accident. Nothing was reported and nothing was observed.
(2) Mr. Rajotte’s evidence confirmed that cocaine has a ½ life of 30 to 60 minutes, but that it could remain in the urine for 12 hours and longer than it would be detectable in a blood sample. Ultimately, the detection will depend upon the amount taken, the method of administration and the time administered. Mr. Rajotte’s evidence confirms that the cocaine detected could have been ingested long before Mr. Crossman was operating his motor vehicle and would not have impacted his ability to drive.
(3) Some of the evidence that led to the initial suspicion that Mr. Crossman might be impaired, were not present or significant in later testing. For example, what caught PC Logue’s attention was the fact that Mr. Crossman was sweating, appeared to be nervous had dilated eyes and marks on his arms that appeared consistent with intravenous drug use. Mr. Crossman explained that the marks were sweat sores that had been picked. There is no indication of any further analysis of the marks. PC Logue noted them as injection sites, noting Mr. Crossman’s explanation. The sweat marks may also explain the sweating. Mr. Crossman acknowledged that he was very nervous knowing that he had cocaine in his motor vehicle and that it was illegal to possess it. In direct light, Mr. Crossman’s pupil size was within the range. His pupils were slightly dilated 9 mm (in a range of 5.0 – 8.5 mm, in the dark) and 6.0 mm (in a range of 2.5 - 5.0 mm in room light). It is not clear how the fact that he is blind in one eye factors into the pupil size which likely depends upon type and location of the damage to the eye.
41Mr. Crossman acknowledged that he did poorly on his SFST and explains his performance as being related to his cognitive and physical disabilities. Mr. Crossman testified that he was very nervous. He acknowledged being at other RIDE stops before this incident but stated that when he was asked to step out of his motor vehicle, his anxiety heightened. He also acknowledged being in situations where there are police lights and noise but testified that it was different when he was expected to perform tests requiring focus and balance which presented challenges because of his particular physical limitations. Mr. Crossman performed better (hitting only 3 of 8 cues versus 5 of 8 cues at the roadside) on the walk and turn test at the detachment.
42Mr. Crossman’s evidence was very straightforward and unshaken. He used cocaine the night before but was certain he had not used on June 6, 2024. He testified that he had to work and that he never uses when he is working. He testified that he was on his way to a friend’s house. There were no significant inconsistencies in his evidence. Unlike some of the details noted by Justice Poland in Hicks, there were no explanations that did not make sense or that could not be reconciled with the other evidence. The only area where this Court was left with some question was the gap in time from 2:00 or 3:00 pm when he finished work on June 6, 2024 and when he was stopped on the highway at 11:25 pm. The Crown asked how he could be sure he did not use on June 6, 2024 and Mr. Crossman responded ‘because I was working’. The Crown then stated but you finished work at 2:00 or 3:00 pm and Mr. Crossman’s answer was but my last use was on June 5, 2024. The questioning did not go further to explore what he was doing during the period of 2:00 to 3:00 pm until he was stopped at 11:25 pm. The only evidence is that on the day prior, Mr. Crossman testified that he used at approximately 9:00 pm which would not be inconsistent with him not using right after work.
43Finally, there were no significant observations which would be consistent with Mr. Crossman being in either a stimulant phase or the crash phase throughout the DIE. Mr. Rajotte testified that during the stimulant phase, one might observe fast speech, grinding of teeth, inability to sit still, and euphoric or aggressive behaviour. None of those behaviours were noted.
44If in the crash phase one might expect to observe drowsiness or an inability to stay awake. Again, none of these observations were noted.
45As a result, the Court is not left with any reason not to believe Mr. Crossman’s evidence with respect to the timing and amount of cocaine use. Based on his evidence he would not be impaired at the time that he was operating his motor vehicle on June 6, 2024.
46Hicks and Takov are reminders that while the 12-step test is accepted as a reliable test to determine whether someone is impaired by drugs, it is the application of the test and the observations outside of the test that may give rise to concerns about the reliability of the DRE evidence. PC Logue is an experienced officer and was detailed in his observations. That said, this was an unusual case in that Mr. Crossman has medical and cognitive issues. He is blind in one eye and Dr. Rietze confirmed that he continues to have hearing loss and mild balance issues. PC Logue commented that he examined Mr. Crossman’s eyes to assess whether he could complete the eye exams. It is not clear what expertise he has that would allow him to make that assessment. He commented that the horizontal/vertical nystagmus and convergence tests do not test vision, but tracking. There was no evidence with respect to whether the tracking would be different for someone who is blind. PC Logue noted eye tremors, but again without evidence of how that impacted his assessment and whether it should in a case involving someone who is blind. Those concerns couple with the complete absence of any observation of bad driving and the absence of observation of most of the general indicators such as anxiety, body tremors, dry mouth, euphoria, exaggerated reflexed, excited mode, grinding teeth, hyperactivity, increased alertness, insomnia, irritability, restlessness runny nose or talkative behaviour, raises a reasonable doubt about the conclusion that Mr. Crossman was impaired.
47Accordingly, even if the Court did not accept Mr. Crossman’s evidence that he did not used cocaine before driving, taking all of the evidence into consideration, the Crown has not met the heavy burden of proof beyond a reasonable doubt in this case.
48Mr. Crossman is acquitted of impaired operation as alleged in Count 1 on the information.
49If not already noted, there will be a finding of guilt entered with respect to Count 2 being the charge of possession of cocaine.
Released: March 18, 2026
Signed: Justice B.C. Oldham