Court File and Parties

Court File No.: Durham Region 15-IS29003 Date: June 9, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — David Imrie

Before: Justice S.C. MacLean

Heard on: October 24, 25, November 29, 30, 2016, January 3, 2017 and February 9, 2017

Decision on Charter Ruling and Judgment Given on: April 28, 2017

Reasons for Charter Ruling and Judgment Released on: June 9, 2017

Counsel:

• Julie O'Connor, Counsel for the Crown
• Daniel Freudman, Counsel for the Defendant

Overview of the Case

[1] The issue on this trial was whether the Crown could prove beyond a reasonable doubt that on March 31, 2015, David Imrie had the care or control of a motor vehicle while his ability to do so was impaired by drugs. All of the drugs found to be present in Mr. Imrie's urinalysis were medications prescribed for him by a doctor. There were no illicit drugs.

[2] Mr. Imrie had also been facing a count of unlawful possession of Oxycodone, however, partway through the trial, on January 3, 2017, the Crown requested and was permitted to withdraw that charge. She based her decision to withdraw this count on the evidence presented during the trial supporting that Mr. Imrie had a lawful prescription for that medication.

[3] The Defence also alleged breaches of sections 8, 9 and 10(b) of the Charter. The focused issues are related to whether the Demand for the Standard Field Sobriety Tests was made "forthwith" and whether the related immediacy requirement was met. It is argued that the delay in providing Mr. Imrie with his Rights to Counsel at the roadside resulted in a breach. It is argued that all evidence from the point of the breach forward should be excluded pursuant to s. 24(2) of the Charter. The matter proceeded by way of a blended Charter application and trial.

[4] On April 28, 2017, I advised the parties that I would provide Reasons to follow, but since the matter had commenced last October, I did not wish to delay advising them of my decision. I informed the parties that while I had concluded that the police had breached Mr. Imrie's s. 10(b) Charter Rights to Counsel, no evidence would be excluded, pursuant to s. 24(2). I also found that no breach of his s. 8 or 9 rights had occurred. I also found that the Crown had proven beyond a reasonable doubt that Mr. Imrie's ability to operate a motor vehicle was impaired by one or more prescription drugs.

[5] Mr. Imrie was also sentenced by me on April 28, 2017. He was fined $1,200.00 (to reflect his current limited income, otherwise it would have been higher) in addition to a Victim Fine Surcharge. He was placed on a one-year Driving Prohibition Order. I would have also placed him on a Probation Order to address counselling for drug use, however, after advising the parties that I was convicting Mr. Imrie, I was told that Justice Maresca, sitting in Brampton, had convicted Mr. Imrie earlier this year for offences including a Drug-Impaired Driving charge (also involving prescription drugs). Those offences had taken place on April 24, 2015, approximately 3 weeks after the incident before me (while on release for the offence before me). It was agreed that the matter before me should, therefore, be treated as a first offence. I am specifically disregarding those convictions in these Reasons for Judgment, as they are irrelevant to any issues that were before me, and amount to bad character evidence. They were only relevant to the issue of sentencing, as it became unnecessary for me to place Mr. Imrie on probation. On April 5, 2017, Justice Maresca had imposed a sentence of 50 days in custody, an 18-month Driving Prohibition Order and an 18-month Probation Order which includes terms to take counselling for substance abuse. I was of the view that it was not necessary for me to impose an additional Probation Order, since Justice Maresca's sentence already addresses Mr. Imrie's rehabilitation needs. I was also informed, following my imposition of a conviction, that Mr. Imrie had been sentenced in Durham Region for other non-cognate offences on April 11, 2017. Again, I am disregarding those convictions in these Reasons as irrelevant and bad character evidence. Mr. Imrie was in custody still serving all of those other sentences when he appeared before me on April 28, 2017. I took into consideration the effect of the totality of all of the sentences imposed, and that Justice Maresca's jail sentence would address specific deterrence, which assisted me in determining the amount of the fine which I should impose on Mr. Imrie.

[6] These are my Reasons for the Charter Ruling and Judgment in this case.

David Imrie's Background and Medication Needs

[10] David Imrie is 48 years old, with a date of birth of May 25, 1968. He is a welder-fabricator by trade. He has suffered two serious accidents that have caused him to suffer significant pain, requiring medication to address the pain.

[11] In the first accident, which was industrial, someone backed up a forklift and hit Mr. Imrie's back. This occurred in approximately 2009 to 2010. He had to be taken to the hospital where it was determined that he had damage to one of the discs in back (Mr. Imrie believed it was either the S1 or S2). This injury resulted in him having pain and stiffness when standing or walking. Mr. Imrie was taking pain medication following that accident.

[12] The second accident occurred in March of 2014, when Mr. Imrie was in a motor vehicle accident. When leaving a job, his vehicle slipped on ice and hit a concrete light pole. The airbag did not deploy. He woke up in the hospital with severe pain. He had suffered a concussion, a broken nose, broken ribs, a herniated lower disc and nerve damage in his back. He has had four corrective surgeries.

[13] Following the second accident, Mr. Imrie described that his injuries made moving around in work and his daily life "a chore" and that they caused problems with him getting in and out of a car. He can't lift much weight. Pain radiates from his lower back to his upper back. He has tremors in his hands due to the nerve damage, and has medication prescribed specifically to deal with that issue. Mr. Imrie has neuropathic pain, which he described as a constant burning feeling in the nerves of his back, like an electrical buzzing sensation. His pain symptoms are mainly when he is moving, but the pain also flares up at times when he is inactive.

[14] Mr. Imrie is under the care of a pain specialist as well as his family doctor. Neither of them testified on this trial. As a result of his injuries, Mr. Imrie has been prescribed several medications for pain as well as to reduce inflammation and to address neuropathic issues. Exhibit 6 is the Patient Medical History Report listing of all medications and doses prescribed for Mr. Imrie leading up to and around the time of the driving incident. His pain specialist also performs injections into his lower back to calm his nerves down and numb the sciatic nerve.

The Expert Opinion Evidence of Dr. Robert Langille

[15] Following his arrest and pursuant to a demand, on March 31, 2015, Mr. Imrie provided a urine sample which was analysed. Dr. Robert Langille, a highly qualified and very experienced toxicologist with the Centre of Forensic Sciences, gave expert evidence regarding the prescription medications involved in this case. Dr. Langille has testified in approximately 30 to 40 cases involving drug-impaired driving since the legislation came into effect in 2009. His expertise was conceded by the Defence. Dr. Langille's Curriculum Vitae/Statement of Qualifications is Exhibit 4. The Report he prepared dated July 29, 2015 is Exhibit 5. I found Dr. Langille's evidence to be extremely informative, helpful, fair, balanced, credible and reliable. In short, everything a court would hope an expert witness' evidence to be.

Evidence of Poor Driving by David Imrie

[65] P.C. Kathy Johnston, Badge #693 is a member of the Durham Regional Police Service and was in her 16th year as an officer as of the date of the incident. On March 31, 2015, she was off-duty and driving in her personal motor vehicle to pick up her daughter from school. She ended up driving behind Mr. Imrie for approximately 6 to 7 kilometres. She was so concerned about the observations she made of Mr. Imrie's driving that she followed him and used her cell phone to call for on-duty officers to attend and deal with what she suspected was an impaired driver. She prepared her written report when she returned to work on April 2, 2105. I found her to be a very credible and reliable witness. Mr. Imrie denies or tries to explain away most of the poor driving that she observed. If his driving had been as normal as Mr. Imrie claims it to have been, it is difficult to imagine why P.C. Johnston would have taken her personal time en route to get her daughter to follow him and call it in to the police.

[66] It was 3:05 p.m. when P.C. Johnston first made her observations. She was travelling northbound on Thickson Road north of Conlin Road when she first noticed the vehicle which Mr. Imrie was driving. There is a traffic light at Conlin Road. His vehicle was travelling at approximately 30 k.p.h. in an 80 k.p.h. zone, slowly crossing over the centre yellow line into southbound Thickson Road traffic. The driver's side of the vehicle and both front and rear tires were over the lane marker about 1/3 of the way into the southbound lane. There is no median on Thickson. In spite of their slow driving, no one behind them honked at Mr. Imrie or P.C. Johnston or tried to pass them. P.C. Johnston's saw a dump truck coming southbound, which did not take any evasive action and did not honk its horn. She could not remember the distance between Mr. Imrie's vehicle and the dump truck, but agreed there was no imminent peril. P.C. Johnston saw Mr. Imrie's vehicle slowly travel back into the northbound lane. It was a slow, gradual movement back, not a sharp movement.

[67] The traffic was light to moderate when she first observed Mr. Imrie's vehicle. Mr. Imrie's vehicle continued at a slow rate of speed northbound at a considerable distance from the rest of the northbound traffic, approximately 10 car lengths behind. P.C. Johnston testified that there was no reason for Mr. Imrie to pass any other vehicle since they were that far ahead of him and he was driving that slowly. P.C. Johnston's vehicle was directly behind Mr. Imrie's. The stretch of Thickson Road for approximately 1 kilometre north of Conlin was under construction and all torn up at that time for the new section of the highway 407 ramps which were being built. There were construction vehicles in the area. There were pylons on the sides of the road with gravel and dirt on the shoulders. P.C. Johnston could not remember if the road in the area of the construction was all gravel or if any parts of it were paved. As a result of the construction, there was stop and go traffic (she noted this in her report but did not tell the dispatcher this detail). There was one lane northbound and one lane southbound with a posted 80 k.p.h. speed limit. There were no speed advisories posted in the area of Conlin Road. P.C. Johnston was pacing Mr. Imrie's vehicle so she believes she would have been driving at approximately 30 k.p.h., the same speed as his car. He was following the vehicles ahead of him at a proper distance (not too close).

Mr. Imrie's Condition at the Roadside

[95] P.C. Catherine Cornes was the officer who was dispatched at 3:11 p.m. to the suspected impaired driver call reported by P.C. Johnston. She has been an officer for approximately 18 years. On March 31, 2015, she was working uniform patrol in north Durham. She was not working with a partner that day. The information provided to her by communications branch was that an off-duty officer had been following a suspected impaired driver for a couple of kilometres since Thickson Road and had not lost sight of the vehicle. She was told that the vehicle was swerving all over the road and that it had struck a hard curb. A description of the vehicle, license plate, location and direction of travel was also given.

[96] I find that P.C. Cornes was a frank and credible witness who was very fair in conceding what she could and could not remember. Her memory was poor at times, and to a large extent this was caused by her very poor note keeping with respect to several aspects of what took place. In those areas where she kept no notes and/or has a poor memory, I place less weight on her evidence. Even though I found her to be an honest witness, I have to view her evidence cautiously with respect to the reliability of those areas of her evidence for which she made no notes. Where her evidence is supported by other officers, I find it is more reliable. The details of the problem areas of her evidence are discussed below.

The Standard Field Sobriety Tests

[130] P.C. Jeffrey Bastien has been a police officer with the Durham Regional Police Service since 2002. He has been certified as a Drug Recognition Expert by the International Association of Chiefs of Police since 2009. It was agreed that for this trial he would be referred to as a Drug Recognition Evaluator (D.R.E.). P.C. Bastien is also a qualified officer to conduct Standard Field Sobriety Tests (S.F.S.T.'s).

[131] P.C. Bastien described the training he had received to become a D.R.E. officer in 2009. It was a three-week course with 80 hours in class. It included ten quizzes, two exams and a practical sign-off by two instructors. After successfully completing that, he had to also take a one week practical course to receive his certification. This included 12 D.R.E. evaluations, of which 6 were hands-on and six were observed. There was the theory portion of the course in the classroom and the practical portion which involved evaluating subjects who were each impaired by different drugs in their system. There was no challenge to his training or qualifications in this trial.

Observations of the Drug Recognition Evaluator at the Police Station

[178] P.C. Bastien decided to conduct the Drug Recognition Evaluation Tests at the Port Perry police station at Highway 12 and Reach Street. He chose that location because it was P.C. Cornes' home station, it was in the direction that Mr. Imrie had been travelling and it was about half-way between the Port Perry police station and the Whitby one. Given the traffic and traffic lights, P.C. Bastien expected it would actually take less time to get to Port Perry than Whitby. They arrived at the Port Perry station at 4:33 p.m. Mr. Imrie travelled in P.C. Cornes' police vehicle to get there. P.C. Cornes remained with Mr. Imrie and P.C. Bastien for only part of the evaluation tests. For the test that required darkness (described below), she entered the room to be present for officer safety reasons.

[179] Once they arrived at the police station, while P.C. Bastien was writing up the grounds he had received from P.C. Cornes, he observed that Mr. Imrie appeared to be having difficulty standing and was leaning on the counter. Mr. Imrie agreed with this, testifying that during the booking process he was standing, but leaning on the desk because he was in a lot of pain and cannot put his full weight on the one leg. P.C. Bastien gave evidence that upon seeing this, the police offered him a chair to sit on to prevent him from losing his balance. P.C. Bastien also observed that Mr. Imrie was speaking quietly and slowly in a raspy voice, and that during conversation with him, Mr. Imrie appeared to be falling asleep.

Alleged Charter Breaches and the "Forthwith" Requirement

[274] The Defence argues that there were breaches of s. 8, 9 and 10(b) of the Charter in this case. The written Defence Notice of Application with respect to the Charter argues that P.C. Cornes did not have reasonable grounds to make a Demand for the S.F.S.T.'s. The argument at trial, however, focused instead on the claim that there were in fact sufficient grounds early on, but that the demand pursuant to s. 254(2) was not made "forthwith".

[275] The relevant portions of Section 254(2) of the Criminal Code for suspected impairment by a drug require as follows:

254(2) If a peace officer has reasonable grounds to suspect that a person has…a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle…the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug… (a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection…(3.1) [for D.R.E. evaluation tests] and, if necessary, to accompany the peace officer for that purpose.

[277] In R. v. Quansah 2012 ONCA 123, the Court of Appeal recognizes the relationship between the "forthwith" requirement and sections 8, 9 and 10(b) of the Charter in paragraphs 21 to 23:

21 The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, 2005 SCC 42 at para. 29. This justifies what would otherwise be sustained as violations of ss. 8, 9 and 10(b) of the Charter. Thus, in interpreting "forthwith", this court must bear in mind Parliament's choice of language and Parliament's intention, which is to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29.

22 So long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made "forthwith" - for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads: see Degiorgio, at para. 37.

23 As this court noted in Degiorgio, at para. 46, the "forthwith" period is the time in which Charter rights are justifiably infringed. That is to say, within this time a detained person can be required to comply with an ASD demand and respond to that demand - be it blowing and registering a "fail" or be it refusing or failing to blow - and incur criminal liability that is justified despite ss. 8, 9 and 10(b) of the Charter.

[281] I also adopt and apply the law as set out by Justice Felix in the case of R. v. Placidass [2016] O.J. No. 6256 with respect to "forthwith" and the immediacy requirements of section 254(2) as detailed in paragraphs 15 to 17:

"Forthwith" and the Immediacy Requirement

15 The delicate balance between the detection and prevention of drinking and driving and the rights of the individual is preserved by the "immediacy requirement": See Woods, 2005 SCC 42 at para 1; R. v. Quansah, 2012 ONCA 123 at para.26.

16 The immediate nature of both the demand and the required compliance means that in the ordinary course there should be minimal delay at the roadside. Where the ASD demand is made "forthwith" that is to say within the scope of the s.254(2) statutory provision, the individual driver is legally expected to comply with the demand. Compliance with the 'immediacy requirement' furnishes no realistic opportunity to contact counsel. Further there is no ancillary breach of ss.8 and 9 of the Charter in these circumstances. See Woods, paras. 29-36; See Quansah, paras. 17-22.

17 In Quansah, at paragraphs 45-49, the Ontario Court of Appeal explained the five considerations at play when the Court is analyzing the immediacy requirement:

45. In sum, I conclude that the immediacy requirement in s.254(2) necessitates the courts to consider five things: First the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

47. Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of the reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample, must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s.254(2).

48. Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49. Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s.10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

Section 24(2) of the Charter

[300] In the circumstances of this case, I conclude that even though there was a breach of Mr. Imrie's s.10(b) rights, that the admission of the evidence would not bring the administration of justice into disrepute. Therefore, no evidence will be excluded pursuant to s. 24(2) for the following Reasons.

[313] I conclude, therefore, that while any breach of the Rights to Counsel is serious, this first factor favours admission of the evidence.

[323] For all of these Reasons, I find that while there was a breach of the Right to Counsel due to the delay in informing Mr. Imrie of that right, no evidence will be excluded pursuant to s. 24(2). The Charter Application is therefore dismissed.

The Law with Respect to Driving While Impaired by a Drug

Degree of Impairment Required for the Actus Reus of Impaired Driving

[332] I instruct myself to follow the law which has been settled for many years with respect to the degree of impairment required to establish impaired driving. In R. v. Stellato, the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal. The issue in that case was whether the Crown must prove that the driver's conduct demonstrated a "marked departure" from that of a normal person with respect to being impaired by alcohol or a drug. At paragraph 14 of the Ontario Court of Appeal decision the Court came to the conclusion that:

14 In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

The Mens Rea Required for Drug-Impaired Driving

[341] As indicated above, in R. v. Toews, the Supreme Court of Canada held that the mens rea for driving while impaired is the intent to drive a motor vehicle after the voluntary consumption of alcohol or a drug.

[342] Based on the following cases, I accept the Crown's submission that the mens rea of drug-impaired driving consists of two elements: 1) the voluntary consumption of a drug; and 2) knowledge of, or reckless indifference to, the fact that the drug could impair one's ability to operate a motor vehicle. Proof of the actus reus creates a rebuttable presumption of the mens rea. In cases where the impairment results from the ingestion of prescription medication, this presumption can be rebutted. The presumption can be rebutted, for example, where there is evidence that the consumption of a drug was involuntary, there were unexpected side effects of a drug or where there were unexpected side effects as the result of combining drugs.

Was David Imrie's Ability to Operate a Motor Vehicle Impaired by a Drug?

[362] Applying the three steps of W.(D.), for the reasons indicated elsewhere in this Judgment, firstly, I do not believe Mr. Imrie with respect to many aspects of his evidence including his description of his driving and his consumption of drugs. Secondly, his evidence does not leave me with a reasonable doubt. Thirdly, based on all of the evidence which I find to be credible and reliable, I am convinced beyond a reasonable doubt that Mr. Imrie is guilty of operating a motor vehicle while his ability to do so was impaired by a drug or drugs with respect to both the actus reus and mens rea elements of the offence.

[363] As indicated earlier, in coming to this conclusion, I am specifically disregarding evidence of the results of the field sobriety tests (S.F.S.T.'s) obtained before Mr. Imrie's Rights to Counsel were provided, as they are only admissible to provide the officer with grounds to make a demand for the D.R.E. evaluation and not for proof of impairment. The only evidence from the roadside which is admissible for this purpose is that of the general symptoms seen by the officers who were observing him at the roadside.

[364] I have applied the law as set out in Stellato, that any degree of impairment from slight to great is sufficient to make out the offence of drug-impaired driving.

[365] In summary, the evidence which clearly establishes that Mr. Imrie's ability to operate his motor vehicle while his ability to do so was impaired by a drug is based on the evidence of poor driving and some of the symptoms observed at the roadside and the police station. While some of the physical clues seen in Mr. Imrie might be, in part, as a result of impairment by a drug, it is difficult to determine whether they were in fact due to that or solely due to his pre-existing injuries. I am not, therefore, placing any weight on those physical clues observed by police officers which involve Mr. Imrie's balance or walking in finding that he was impaired. There is more than sufficient evidence of impairment without considering those symptoms. I am also specifically disregarding the results of the Standard Field Sobriety Tests conducted prior to Mr. Imrie being given the opportunity to consult with counsel, as they are admissible only with respect to the grounds of the officers and not as proof of impairment. The factors supporting a finding of impairment by a drug include:

1. While travelling on Thickson Road at 30 k.p.h. in an 80 k.p.h. zone, and in the area of Conlin Road Mr. Imrie drove his vehicle into the oncoming southbound lanes with one third of his vehicle in that lane, then slowly drifted back to his own lane. A dump truck was in the southbound lane when he did this;

2. As he continued northbound on Thickson Road, Mr. Imrie slowly veered to the right side of the road kicking up dust and gravel when he hit the shoulder. He jerked back into his lane rather than moving over gradually;

3. Approaching the traffic lights at the intersection of Thickson and Winchester Mr. Imrie slowed down to 30 k.p.h. in a 60 k.p.h. zone and drifted to the left as though he was going into the left-turn lane to turn left/westbound. He did not signal to turn, but rather, veered back to the right and continued northbound through the green light;

4. After passing the intersection at Thickson and Winchester Mr. Imrie veered to the right again, hitting the gutter, and then veered sharply and jerked back into his own lane;

5. At Carnwith Street, north of Winchester, Mr. Imrie signalled to turn right/eastbound and slowed as if it was going to turn, but then did not turn and continued northbound, at some point turning off his signal;

6. When approaching Baldwin Street, Mr. Imrie's vehicle drifted into the southbound lane and then back into the northbound lane;

7. As Mr. Imrie approached Myrtle Road he veered one last time into the gutter on the east side again, kicking up dust. He then once again corrected sharply back into the northbound lane in a manner that caused P.C. Johnston to believe he was going to lose control of his vehicle;

8. After pulling out of the parking lot of the body shop at Myrtle Road, Mr. Imrie drove with his hazard lights on prior to being pulled over by the police and for no apparent reason;

9. At various points Mr. Imrie's vehicle continued to weave or veer from side to side within his own lane and at some points crossed the centre line;

10. Over the 6 or 7 kilometres that P.C. Johnston followed him Mr. Imrie's speed was erratic. At times he sped up and drove the posted speed limit of 60 k.p.h. (the speed limit was 80 k.p.h. in some areas) and at other times he slowed down to as slow as 25 k.p.h., well below the speed limit and much slower than called for in relation to other users of the road. Although there was a construction zone for part of this route, Mr. Imrie was travelling at a speed that was much slower than the surrounding traffic ahead of him. His driving could not reasonably be explained by the conditions in the area of the construction zone;

11. While standing at the side of the road P.C. Cornes and Sgt. Glionna saw Mr. Imrie step back onto the busy roadway into the live lane of northbound traffic and he had to be called back for his safety. Sgt. Glionna felt that Mr. Imrie did not seem to be aware of his surroundings. I find that his stepping back into the road suggests that his judgement was compromised. Further, immediately following this, when asked if he had been drinking, he reacted suddenly and irrationally by lunging at Sgt. Glionna, demanding to be given a roadside breath test. It was an unnecessary overreaction;

12. Mr. Imrie's behaviour and mood during part of the time at the roadside was escalating and diving (sudden mood swings) and he appeared to be irrational at times. I accept that these mood swings were not, however, observed by P.C. Bastien at the police station;

13. When asked for his date of birth, Mr. Imrie provided P.C. Cornes with an incomplete date of birth, providing the year and day, but not the month, until the officer specifically clarified this with him. It was an odd/peculiar way to respond;

14. Both P.C. Cornes and Sgt. Glionna noticed that Mr. Imrie's pupils were very small. Shortly after stopping his vehicle, P.C. Cornes observed that Mr. Imrie made slow and deliberate movements with his eyes;

15. P.C. Bastien observed Mr. Imrie's speech to be slow and deliberate and he had difficulty focusing;

16. At the police station Mr. Imrie appeared to be "on the nod" (falling asleep) and P.C. Bastien had to keep reminding him to open his eyes;

17. P.C. Bastien also observed that Mr. Imrie's pupils were very constricted, indicating the presence of drugs to the D.R.E.;

18. Mr. Imrie's pulse rate was well above normal ranges, and his blood pressure was below normal, both indicating a substance "on board";

19. During the Horizontal Gaze Nystagmus test there was a lack of smooth pursuit and distinct and sustained nystagmus at maximum deviation. This supports the conclusion that a drug was actively present. As Dr. Langille described it, the ability to track objects would be diminished, and this is one of the abilities that is necessary to operate a motor vehicle;

20. On the Walk and Turn Test, Mr. Imrie failed to follow the instructions correctly. He missed placing his heel to toe once on the first 9 steps. He failed to stop after 9 steps and took a 10th step before turning, which caused him to turn in the wrong direction. On the return 9 steps he failed to place his heel to his toe once and took 10 steps instead of 9;

21. During the One-Leg Stand test, Mr. Imrie had only counted to 23 when 30 seconds had in fact elapsed (with his right leg raised) and to 20 in 30 seconds with his left leg raised. This suggests that his internal clock was depressed. With his right leg, he failed to look at his foot as instructed. He also failed to count as directed "one thousand one, one thousand two, etc.", but rather counted, "1, 2, 3, etc." instead;

22. With the Finger to Nose Test, again Mr. Imrie failed to follow some of the instructions correctly. Mr. Imrie had a delayed response and had to be reminded to return his hand to his side after touching his nose on a couple of occasions. He also failed to keep his head tilted back as directed. On the fifth time, after being instructed to use his right hand, he initially put up his left hand and then corrected himself;

23. During the Rebound Dilation Test, Mr. Imrie's pupils remained constricted and the change in pupil size when a light was shone in them was slight (much less than normal). Dr. Langille testified that this inability of the eye to dilate properly is "essentially defining" for the active presence of narcotic analgesics such as the Codeine and Oxycodone involved in this case;

24. In his evidence Mr. Imrie admitted having consumed OxyNEO (the extended version of Oxycodone) on the date of the offence and Clonazepam the evening before. The urinalysis also detected Codeine and none of the medications listed in Exhibit 6 (Mr. Imrie's Patient Medical History) account for the presence of Codeine. He was also prescribed additional Oxycodone for breakout pain. Dr. Langille testified that although other drugs were detected there were likely only three drugs present: Oxycodone, Codeine and Clonazepam (with the other drugs being metabolites). Dr. Langille's evidence described the impairing effects of each of these medications. Those consuming Oxycodone may experience dizziness, drowsiness and stupor. Clonazepam may cause lack of muscle control, drowsiness, impaired judgement, impaired memory, confusion, dizziness and "somnolence". Codeine may cause dizziness, drowsiness and stupor. The drowsiness and somnolence seen in Mr. Imrie (being "on the nod") is consistent with these effects. Accepting that Mr. Imrie had built up some tolerance to his medications, I take into consideration the evidence of Dr. Langille about the additive effects of taking multiple medications and that even those who have become accustomed to their medications can become impaired given the circumstances.

[366] While the urinalysis results alone cannot establish that all of the drugs detected in Mr. Imrie's system were actively present at the time of driving, I am satisfied beyond a reasonable doubt that Mr. Imrie's medications were actively impairing him at the time he was observed driving poorly by P.C. Johnston. I base this on the totality of the evidence, including the symptoms detected by P.C. Bastien during the D.R.E. evaluation tests at the police station (ignoring the walking and balance test results which might be attributed to his injuries). In particular the rebound dilation test confirms the presence of a narcotic analgesic. His inability to follow directions correctly is also some evidence of drugs being actively present.

[367] I do not know whether Mr. Imrie was impaired by taking his medications as prescribed and the effects they were having on him that particular day, or if he took more medication than he was supposed to. With respect to the actus reus it does not matter which was the case.

[368] I accept that the Crown had proven beyond a reasonable doubt that Mr. Imrie's ability to operate a motor vehicle was impaired by one or more of his prescription drugs at the time he was driving and that he had voluntarily consumed those drugs.

Has the Mens Rea Element of the Offence Been Proven?

[369] As decided in King, the mens rea for impaired driving includes the voluntary consumption of a drug. In this case, based on Mr. Imrie's own evidence, it is clearly established that he voluntarily consumed all of his prescription medications.

[374] For all of these reasons I do not accept that Mr. Imrie has rebutted the presumption with respect to the mens rea issue. I find that the Crown had proven the mens rea aspect of this case beyond a reasonable doubt.

Conclusion

[375] While finding that Mr. Imrie's Rights to Counsel pursuant to s. 10(b) of the Charter were breached, the evidence will not be excluded under s. 24(2).

[376] I conclude that the Crown has proven its case beyond a reasonable doubt. In terms of the Stellato test, Mr. Imrie's driving demonstrates that his ability to operate a motor vehicle was significantly impaired by drugs at the time he was driving, and that he put other users of the road at risk.

Released: June 9, 2017

Signed: Justice S.C. MacLean