Court File and Parties

ONTARIO COURT OF JUSTICE Hamilton, Central West Region

DATE: November 14, 2022 COURT FILE No.: 19-11673

BETWEEN:

HIS MAJESTY THE KING

— AND —

TOMAS MULIUOLIS

Before: Justice K.L. McLeod

Heard on: September 6th and 8th, 2022 Reasons for Judgment released on: November 14th, 2022

Counsel: Patrick Harris, counsel for the Crown Peter Craniotis, counsel for the Defendant Tomas Muliuolis

K.L. McLeod J.:

Reasons for Judgment

[1] On the 30th of November, 2019, at 6.29 a.m., Tomas Muliuolis appeared to police to be sleeping in his car in the parking lot of a school. He was investigated and ultimately charged with being impaired while operating his car contrary to section 320.14 of the Criminal Code.

[2] The issues in this case have been narrowed to the following:

The Charter Issues:

• Whether Mr. Muliuolis has established that his Section 10(b) rights were violated as a result of not receiving his rights to counsel when arrested for a chronologically second set of offences: that of being impaired by drug and breach of his bail.
• Mr. Muliuolis alleges a breach of his Section 8 rights on two grounds: (1) that the arresting officer, Constable Mallick had not the required reasonable grounds to make a DRE demand as required by Section 320.28(2)(a) of the Criminal Code and (2) the 31 minute delay between arrival at the station and access to a lawyer immediately prior to being presented to the DRE contravened the “as soon as practicable” requirement set out in Section 320.28(2)(a); and
• If breach/es are found, whether the results of the DRE evaluation, the subsequent demand, the provision of a urine sample and the forensic examination of it should be excluded in accordance with Section 24(2) of the Charter.

The Substantive Issue:

• Has the Crown proven beyond a reasonable doubt that Mr. Muliuolis was in fact impaired?

The Credibility and Reliability Issue:

• All these issues, however, share one overriding consideration: that is a consideration of the reliability and credibility of the witnesses proffered by the Crown; particularly that of the arresting officer Constable Mallick.

The Non Issues:

• What is not in issue is that Mr. Muliuolis was found in the driver’s seat of a car and thus in care and control of it, when he was arrested. The information alleges an impairment by alcohol and drug; it is only the drug allegation that the Crown pursues. Date and jurisdiction as well as the qualifications of the Forensic Scientist, Ms. Cara Shepard, and the DRE qualifications of PC Blanchard are also admitted.

The Evidence on the Charter:

[3] Constable Mallick a 3-year officer at the time of the trial, testified that he was working on November 30th, 2019. He was in his 3rd month of policing, when at 6.29 am while on patrol with his coach officer, he saw a car in the parking lot of Hill Park High School in Hamilton.

[4] The Crown chose not to call the coach officer as a witness; thus, Constable Mallick was the only person who testified as to what occurred at the scene.

[5] Someway into his testimony, which, he conceded was his first ever court testimony, it appeared that Constable Mallick was using a will say, not his notebook, to assist him in his recollection of the events. He had not brought his notebook to court. After the location of a copy of his notes and a voir dire, he was permitted to use a copy of his notes to assist him.

[6] At one point in his testimony the officer described the compilation of his will say which was typed at 2:06 pm nearly 8 hours after his first interaction with Mr. Muliuolis. He testified that the will state was prepared with reliance on his notebook, and his recollection of the evidence. He was asked if he had assistance with its content: he said he could not recall who assisted him in the will say but conceded it was possible that his coach officer told him what to write. This is important as there is considerable embellishment contained in the will say when compared to his notes, to which I will refer throughout this narrative.

[7] Seeing the illuminated headlights of the car in which Mr. Muliuolis was found, both officers went to investigate. Officer Mallick testified the car was running although did not recall whether the gear shift showed it to be in park or drive.

[8] He testified that his first thought on approaching the car was that Mr. Muliuolis was deceased as he was slumped over: however, he was able to wake him up. On cross-examination he conceded that in his notebook there was no mention of appearing to be deceased, rather there was a note that Mr. Muliuolis appeared to be asleep.

[9] P.C. Mallick opened the driver door when his coach officer alerted him to the fact that there was a machete next to Mr. Muliuolis. Constable Mallick pulled Mr. Muliuolis out of the car and noted what he described as “drug paraphernalia” in the door pull. Mr. Muliuolis apparently had identification on him within his wallet clip.

[10] Officer Mallick said that at 6.32 he arrested Mr. Muliuolis for possession of a methamphetamine pipe and provided his rights to counsel and his caution. Mr. Muliuolis apparently responded that he understood and asked to speak to his lawyer, Dean Paquette.

[11] Mr. Muliuolis was then put in the back of the police van while the officers spent approximately 20-30 minutes searching the car in which he was found. At 7.05 Constable Mallick told Mr. Muliuolis he would be also charged with fail to comply with a release due to the finding of drugs and weapons in his car. Apparently, the officer discovered the pre-existing release from a CPIC query. The officer testified that at this time he noted Mr. Muliuolis as speaking slowly and was difficult to understand and was slumped over and had red glassy eyes. Again, none of these observations were contained in his notes, but were found in his will say.

[12] As a result of these observations, Constable Mallick said he arrested Mr. Muliuolis and made the DRE demand, although to deepen this officer’s problems, he was not able to testify as to what words were used in the demand; he could not remember and had no note. Given his newness on the job, it certainly would have been important for him to contemporaneously note and provide evidence on exactly what he had said.

[13] When asked if he provided a further caution and right to counsel with respect to these new charges, Constable Mallick said that he didn’t do it as he already provided that information at 6.37.

[14] Constable Mallick originally testified that he arrested Mr. Muliuolis on the charge of possession of narcotics; at same stage during this investigation, it appears that charge was changed to possession for the purpose of trafficking. There is no evidence as to when or if that was communicated to Mr. Muliuolis.

[15] The officers left the scene and drove to the police station, arriving at 7:20. Mr. Muliuolis apparently started his phone call with Mr. Paquette at 7.51. Constable Mallick was cross-examined about the 31-minute delay between the arrival and the station and the facilitation of the right to counsel. The officer responded that he provided the grounds for the arrest of Mr. Muliuolis to the custody sergeant, provided his grounds to the DRE, lodged him into the cell and conducted another search. Constable Mallick was asked if he had actually conducted a search his answer was: “I don’t specifically recall if I searched him. It was standard practice for me to do it.” He then added: “I would say yes I did the search”.

[16] I found this testimony to be astounding: he was a 3-month “veteran” of the police service; nothing would have been “standard practice” at that time, furthermore the officer then just posited a guess when he said: “I would say yes, I did the search”. The officer had conceded that this was first time testifying in a courtroom, to respond with a guess almost as if he was in a quiz show is indicative of, at the very least, carelessness to his oath.

[17] Mr. Muliuolis was handed over to the drug evaluation officer at 8:00 a.m. after speaking to Mr. Paquette at 7.51 a.m.

Section 10(b)

[18] Mr. Craniotis argues that the purposeful failure of the officer to provide a further right to counsel upon the arrest for the breach and impaired by drug and the demand is a wilful breach of the right to counsel, given the change in jeopardy from drug and weapons charges to impaired and breach charges.

[19] Mr. Harris argues that there was not a fundamental and discrete change in Mr. Muliuolis’ jeopardy upon the arrest for the impaired by drug charge. He argues the import of R. v. Evans, [1991] 1 SCR 869, is this: as per McLachlin J. at para. 48:

I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that in order to comply with the first of the three duties set out above, the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. (emphasis added)

[20] Mr. Harris submits that the impaired charge is not a “significantly more serious offence” than the original charge of possession of drugs for the purpose of trafficking which is a straight indictable offence. He also argues that the impaired and the original drug charge are not unrelated because they both involve drugs. Furthermore, he argues that Mr. Muliuolis was afforded his right to speak to Mr. Paquette after his arrest on the impaired by drug and therefore it can be presumed he was aware and spoke to his counsel about the additional charges.

[21] Mr. Harris also refers to the recent decision of R. v. Li, 2022 ONCA 523. Mr. Li was initially charged with impaired driving of a Maclaren sports car which had been involved in a single car accident which led to the demolition of the car. When the first officer arrived on the scene, he had received information of a serious, possibly fatal accident. One of the occupants (not the driver) of the car was lying on the ground, being attended to by paramedics. The defendant was arrested for impaired driving, provided his rights to counsel which he exercised. He provided breath tests which revealed readings of 183 and 172 milligrams of alcohol in 100 millilitres of blood. Approximately three and a half hours after the officer first responded to the accident scene; because of information concerning the passenger’s injuries, the defendant was arrested for the impaired causing bodily harm charge for which he was convicted.

[22] The argument at trial was that there was a breach of this defendant’s right to counsel because he was not aware of the full extent of his jeopardy when provided the initial rights to counsel and acceded to the breath testing obligation.

[23] The Court of Appeal dismissed the appeal, concluding that the appellant’s jeopardy while increasing with the more serious charge, found that “the nature of the jeopardy was similar” not requiring a further recitation of his 10(b) rights. Both charges, the court found centred on the impaired driving charge and found that the appellant spoke to duty counsel before the first breath test was taken. The court distinguished the facts in Evans because he was arrested for marihuana and then investigated for murder.

[24] I read the decision of the Court of Appeal as distinguishing the similarity of the jeopardy as the original charge as being pivotal in this case. In Mr. Muliuolis’ case the jeopardy anticipated by the charge of impaired driving compared to a drug and weapons charges is totally different. While both the primary and secondary caution provided on the first arrest speak to the right of remaining silent, and the informational aspect of the right to counsel is important because of the right against self-incrimination, the impaired driving legislation mandates a detainee provide evidence against himself, and for which a refusal thereof can result in yet another charge. The jeopardy is entirely different.

[25] Additionally, Mr. Muliuolis was arrested on a breach of conditions on which he had been previously released. This could trigger an application for a revocation of that original bail (see Section 524 of the Criminal Code), and for which a new bail hearing on all charges would be the process, thereby increasing and complicating his bail situation in a fundamental way.

[26] In that regard I quote the decision of Justice Doherty, in the Court of Appeal, after Evans in R. v. Sawatski, [1997] 35 O.R. (3d) 767:

Considering the purpose underlying s. 10(b) and its fundamental importance in maintaining the fairness of the criminal investigatory process, I think it is appropriate to decide close cases in favour of the reiteration of the s. 10(b) rights. The police should be encouraged to readvise detainees of the right to counsel when the focus of an investigation begins to shift or broaden. The administration of criminal justice is better served by a restatement of the detainee's s. 10(b) rights which is a little early than one which is too late to serve its intended purpose. Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee's right to counsel and connect that right to the new allegations.

[27] I am obviously cognisant of the fact that Mr. Muliuolis did in fact speak to counsel after his second arrest, and that indeed will be a factor in any Section 24(2) analysis. However, to accede to the argument of “no harm, no foul”, defies the importance of the informational aspect of the Section 10 right. It does not excuse the state from performing its obligations.

[28] I find that Mr. Muliuolis had the right to be made aware of his rights to counsel again, thereby bringing home to him the importance of these new charges and the changed jeopardy. I find a breach of Section 10(b) has been established.

Section 8

[29] I will now turn to the allegation of Mr. Muliuolis of the breach of his right to be free from unreasonable search and seizure under Section 8 of the Charter as a result of an unlawful arrest and detention on the impaired charge and a noncompliance with the statutory preconditions of the drug evaluation.

[30] Section 320.28 of the Criminal Code states that an officer must have reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired by a drug may by demand made as soon as practical require the person to submit as soon as practicable to an evaluation by an evaluating officer.

[31] Mr. Craniotis makes two arguments:

• The officer did not have the required reasonable grounds to believe that Mr. Muliuolis was impaired by drug, and
• That the evaluation was not conducted as soon as practicable.

The issue of reasonable grounds and credibility of Constable Mallick:

[32] The determination of whether reasonable grounds for the officer’s belief existed requires proof of both an objective and subjective component. The subjective component requires an honest belief that the suspect's ability to operate a motor vehicle is impaired to any degree by a drug and objectively the existence of reasonable grounds for this belief. The second component requires the determination as to whether a reasonable person, standing in the shoes of the police officer, would believe that reasonable grounds existed. The threshold for reasonable grounds is reasonably based probability.

[33] I will deal specifically with the observations made by Constable Mallick when he first saw Mr. Muliuolis. He testified as to the following observations of Mr. Muliuolis in his car:

• slumped over the wheel, pale skin, mouth open and the officer thought he was deceased:

[34] As already referred to, under cross-examination he conceded his notebook revealed only his impression the defendant was asleep. There was no mention of appearing deceased or indeed anything else. There was no explanation as to why this additional dramatization was added.

[35] With respect to the appearance of Mr. Muliuolis, the officer agreed that there was nothing in his notebook about any indicia of impairment other than the sleeping in the car at 6.29 a.m., but in his will say there was a mention of glossy red eyes, speaking slowly and Mr. Muliuolis slouching, all of which the officer says led him to make the DRE demand. There was no other indication of consumption of drugs, rather than the presence of drugs and money and 3 cell phones and something described as a meth pipe in the car, leading to the charge of possession of drugs for the purposes of trafficking, as opposed to simple possession.

[36] Given the lack of any evidence from the coach officer to assist in the explanation as to the reason for the need and process of the compilation of a will say, I am only left with Constable Mallick’s evidence. The officer’s testimony as to his alleged grounds for belief which appear to be based on his will say does not leave me with confidence that it truly represents what Constable Mallick observed at the scene, not only because the details were not in his original notes but also that the will say, he concedes, could have been the product of his coach officer’s instruction hours after the event.

[37] Added to my concerns is this: Constable Mallick testified that he returned to the police van holding Mr. Muliuolis and made some observations and decided to arrest for the breach and impaired. His notebook and his testimony put the time of arrest at 7:05. However, the DRE officer, Constable Blanchard, testified that he was notified at 6.59 am of the need for his services for Mr. Muliuolis. To state the obvious this is before Constable Mallick says he returned to the police van and made the observations that he put in his will say and the subsequent arrest.

[38] Thus, I have great concerns about the credibility and reliability of this officer, which may be excused by the fact that this man was testifying for the first time, but that does not change the nature of the proffered evidence or indeed his attitude to his oath. To summarize: my concerns are these:

• He chose not to bring his notebook to court; rather he brought the will say which purported to fill in the obvious gaps and was, he admitted, possibly a product of what his coach officer told him to write.
• The very fact that there is a second document, made hours after the event and the making of contemporaneous notes, which add significant alleged observations leading to the demand.
• He chose not to re-caution and give rights to counsel to Mr. Muliuolis when arresting him on new charges.
• He testified that he would have searched Mr. Muliuolis at the station as that was his “usual practice”. Frankly it is surprising that the officer speaks of a usual practice when he had only been in the job three months, which makes his answer under oath not credible. Additionally, frankly the arrogance of such a response explains why he felt confident enough to make a conscious choice not to recaution and readvise of rights to counsel upon a second arrest, rather than have a usual practice of undertaking his informational duty each and every time he takes the significant step of charging someone with a criminal offence.
• The officer’s adherence to his oath to tell the truth (emphasis added) would have been well served by him testifying that he could not remember if he searched Mr. Muliuolis at the police station, it was not served by him guessing at the answer.
• The unresolved conflict between the timing evidence referred to in paragraph [37] above.

[39] Because of all of this, I have great difficulty in placing any reliance on this officer’s testimony. There are just too many issues with Constable Mallick’s testimony and as such it would be wrong to consider it reliable.

[40] I have concluded that what is not in dispute is that there were drugs (subject to testing) and a weapon in Mr. Muliuolis’ car. He was arrested on those charges before the car was fully searched when more drugs and cash were found. Only after a CPIC search was Mr. Muliuolis arrested for the impaired and the breach of his bail. I know not what that CPIC search revealed other than the fact of an outstanding charge, but it may be the officer jumped to a conclusion; presence of drugs and asleep in the car were grounds to make the demand. However, that would be sheer speculation by me.

[41] I cannot find that this officer has provided credible evidence of a reasonable belief. As a result, I am also unable to conclude that the evidence of drugs in the car and a sleeping person behind the wheel of a car at 6:29am without more could provide the necessary grounds to make the DRE demand.

[42] I therefore find that the making of the demand was without the necessary grounds and was therefore unlawful and contrary to Section 8 of the Charter.

As soon as practicable

[43] I will now turn to the issue of “as soon as practicable”. Mr. Craniotis argues that Constable Mallick’s narrative of what took place after he arrived at the police station would have only taken approximately 10 minutes, as opposed to the 31 minutes that elapsed between arrival and phone call with Mr. Paquette.

[44] I cannot give effect to this argument. As Justice Rosenberg opined in R. v. Vanderbruggen, [2006] O.J. No 1138, the question is one of whether the DRE examination was conducted in a reasonably prompt fashion. In this case I rely on the testimony of the DRE officer (Constable Blanchard) who provided information about the booking process, the provision of grounds to him and the evidence that contact was made with Mr. Muliuolis’ counsel. Regardless of whether there was a search completed by anyone, I find I am unable to conclude that there were unrelated activities attended to so as to create a delay and that the officers were acting unreasonably.

Section 24(2) – Should the evidence be excluded.

[45] Given my findings of a breach of s. 8 and s. 10(b) I must now turn to the application to exclude the evidence of the DRE and the drug analysis of Mr. Muliuolis’ urine. I am obligated therefore to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following:

The seriousness of the breach

[46] This is about the actions of the state; the more severe or deliberate the state conduct that led to the violation, the more the courts must distance themselves from such action.

[47] In this case the breach is inextricably linked to my adverse findings of credibility against Constable Mallick. This is about an officer making two sets of notes, the second set not being made contemporaneously and with considerable embellishment of incriminatory evidence when compared to the first set of notes – all without explanation. This is about an officer who in his first court case, is allowed to or chooses to bring the best case scenario version of events from which to refresh his memory two years after the event in question, this about the choices that he was allowed to make with respect to rights to counsel in the presence of a “coach officer”, and this is about an officer who chooses, when he can’t remember something, to opt for the best case scenario version of events rather than the whole truth.

[48] Having said that, while the breach of a right to counsel is always serious: but on a scale of seriousness, less so when, as in this case, Mr. Muliuolis was permitted to speak to his lawyer of choice, after the breach. Mr. Harris submitted that it could be presumed that Mr. Muliuolis, when he actually got to speak to counsel of choice, was apprised of all of the charges he was facing and could discuss his rights and obligations with counsel. It is not for me to conclude that, but had this been the only breach, my conclusion about its seriousness would have been that it was not. However, this breach is just one of the poor decisions this officer made, both at the time and subsequently.

[49] I am not able to decide whether this is a systemic issue or an individual issue, but it is important to emphasize that just because a rookie officer makes a series of “errors” which could be excused as being in good faith, is tantamount to denying equal justice to all defendants and the expectation of clear and convincing evidence. This is not the case of an officer who essentially put his hands up to admit his error/s, it is much more than that as my examination of the evidence shows. Thus, I find these breaches favour exclusion.

Impact of the breach on the accused.

[50] As a result of the breaches, Mr. Muliuolis was obligated to undergo a number of physical tests and examinations, and ultimately to provide a urine sample. This was not a breath sample. Mr. Muliuolis was asked to undergo a 12-step physical examination and urinate. I find the impact of this breach to be high, the investigation that followed is not minimally intrusive.

[51] This favours exclusion.

Society’s interest in adjudication of the case on its merits

[52] This favours exclusion despite the fact that cases of impaired driving have been (and sadly continue to be) the cause of death, bodily harm, excruciating grief and societal cost. Dismissing cases purely on a technicality does not serve society. However, in this case, it is the officer’s actions or lack thereof that have led to the Charter breaches. It is in society’s interest that all officers pursue their tasks with thoroughness and vigour and that they testify truthfully and to the best of their ability. This did not happen in this case and courts must distance themselves from any form of acceptance of this type of testimony.

[53] Obviously therefore, the DRE evidence and the analysis of the resulting urine sample will be excluded.

The Substantive Issue: Reasonable Doubt

[54] For the sake of completeness, I will now turn to the evidence of the DRE and expert evidence.

[55] Constable Blanchard was the Drug Recognition Expert. The only issue with respect to this matter is whether his conclusion that Mr. Muliuolis was impaired is one that passes muster for the Crown.

[56] He said he met with the arresting officer.

[57] He received the following information:

• The car was in park, running with its lights on.
• The male was passed out in the driver’s seat.
• Male was removed.
• He was searched incident to arrest for being impaired.
• Drugs were found in the car and in his back pocket.
• Male was described as jittery, bouncing around and nodding off.

[58] Obviously, these “observations” are not evidence but assist in the officer’s grounds for making a demand, but it should be noted that if the Constable Blanchard is correct in his recollection; these were additional embellishments given by Constable Mallick, after he made his notes, but before he made his will say and certainly with respect to the indicia, are not contained in either note.

[59] It is important to point out the role and limits of the DRE: as laid out in R. v. Stipo, 2019 ONCA 3, [2019] 144 O.R. (3d) 145 Ont.CA at paragraph 94:

Said in another way, the DRE is an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1).

[60] And its limits: at paragraph 96:

Parliament has established the reliability of the 12-step drug evaluation test. But it has not determined or said that the conclusion drawn by the DRE is dispositive of guilt. The DRE determines whether the evaluation indicates drug impairment. This opinion is neither more nor less than a piece of evidence for the trier of fact to consider in deciding whether the Crown has proven that the ability of the person charged to operate a conveyance was impaired by a drug. No presumption of guilt follows from the conclusion expressed by the DRE: Bingley, at para. 31.

[61] With that backdrop, I turn to the evidence of the officer with respect to the 12-step evaluation; there is no argument that given the information he received from the arresting officer, he had the grounds to make the appropriate demand.

[62] It should be noted that while in many jurisdictions, the DRE process is videotaped and forms part of the evidence: no such tape was played during the trial.

[63] I will now recount the steps and findings as outlined by Constable Blanchard:

The preliminary examination questions and observations:

[64] Officer Blanchard described the following:

• Mr. Muliuolis was cooperative.
• His coordination showed small shaky jitteriness.
• When calmed, or in a moment of repose would nod off, like sleeping in a very comfortable state.
• Speech low and quiet.
• Nothing unusual about pallor.
• Pupils equal in size.
• Eyes were bloodshot.

Eye examination:

• Asked to stand keeping head still and follow a stimulus; had jerky eye movement, both eyes moved together.
• The horizontal gaze nystagmus test: no evidence of distinct and sustained horizontal gaze nystagmus.
• The vertical gaze nystagmus test: no evidence of vertical gaze nystagmus.
• The lack-of-convergence test: no lack of convergence.

Divided-attention tests, which consist of:

• Modified balance test: A slight sway, not characterized as notable or abnormal.
• Count to 30 seconds – counted to 37 seconds.
• Eyelid flutters – no tremors.
• The walk-and-turn test (and walk back test): On way out: Stepped out twice, stopped walking once between 5th & 6th step, raised arms for balance. On way back: stopped walking during 3rd and 4th step, raised arms. Turn: did a backward pivot.
• The one-leg stand test, “could not remain balanced” dropped foot on count 4 and 12. Used his arms to balance body 3 times, on other leg foot down on counts 3 & 4 and used arms twice.
• The finger-to-nose test: used landmarking on first touch, left hand touched underside of nose to tip. On third touch with left hand touched right nostril to tip. On right side touched left nostril.

An examination, which consists of measuring the blood pressure, temperature and pulse:

• First pulse taken at beginning of tests: 114 which was apparently above average for DRE.
• Second pulse after tests: 120 (average 60-90)
• Systolic blood pressure 156 (average 120-140)
• Body temperature normal 37 degrees Celsius

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

• Normal except for in room light which showed enlarged pupils by half a millimetre from the outer end of the DRE acceptable range. The officer agreed that the rather rudimentary measurement method – simply by holding up a card – was just that and the difference from normal was tiny.

An examination of checking the muscle tone and pulse:

• No issues were observed with muscle tone.
• Pulse: 108 beats: above normal.

A visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites:

• There was no evidence of injection sites.

[65] Constable Blanchard’s conclusion was that Mr. Muliuolis was impaired and appeared to be under the influence of a Central Nervous System stimulus and as a result made a demand that Mr. Muliuolis provide a urine sample. He complied.

[66] Despite this finding, Constable Blanchard, a 23-year veteran, testified he watched the booking process of Mr. Muliuolis to watch his interactions, comportment, and behaviour. He had no notations of indicia of impairment.

[67] I will now turn to the evidence from Ms. Cara Shepard, Toxicologist

[68] Ms. Shepard confirmed that she had received the urine sample. Her analysis confirmed the presence of the following Central Nervous System stimulus: particularly Methamphetamine, Amphetamine, Cocaine and Benzoylecgonine which, she testified is an inactive metabolite of cocaine and MDA and Ephedrine, all of which could produce impairment.

[69] While she testified that a CNS stimulus can increase heartrate and blood pressure above a baseline, she could not say whether this was the case with Mr. Muliuolis as she had no knowledge of his baseline.

[70] However, Ms. Shepard testified, there is a large caveat relating to any such opinion, that is that a urine sample cannot provide evidence of what is in the bloodstream, nor can it provide the dose, route of ingestion or when the drug was taken.

[71] With respect to other effects on the body; Ms. Shepard testified those would include excitation, euphoria and increased risk-taking behaviour. The ingestion of these drugs if done in a binge style could include extreme fatigue in what she termed the crash phase which can follow the binge use.

[72] With respect to what I would call the shelf life of these drugs in the urine, Ms. Shepard said the following:

• Methamphetamine and Amphetamine: depending on the individual dose could be detected in the urine for several days up to a week after ingestion.
• Cocaine; typically up to a day possibly longer if frequently used in a binge manner.
• Benzoylecgonine: can persist for up to several days to a week.
• MDA: more short-lived, a few days.
• Ephedrine: a couple of days.

[73] Mr. Harris has correctly argued that given the findings by both the DRE and Ms. Shepard, the presumption contained in Section 320.31(6) of the Code applies; it states:

(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 — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that 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.

[74] This presumption of accuracy applies only if the Crown has proven beyond a reasonable doubt that Mr. Muliuolis was impaired. To state the obvious; it is not a presumption of guilt.

[75] My concern, given my findings of credibility and reliability, is that I am left with a paucity of evidence of impairment. I must acknowledge the import of R. v. Stellato (1993), 78 C.C.C. (3d) 180 which stands for the proposition that the term “impairment” covers any degree of impairment from slight to great.

[76] The real issue that I have grappled with is whether there is evidence 1) the defendant had consumed drugs: the answer to which is clearly “yes” but the timeframe can be anything from 24 hours to 7 days, and 2) whether the Crown has proven beyond a reasonable doubt that those drugs were still operative so as to cause any degree of impairment of his ability to drive.

[77] I will refer to two further cases which assist me: First: R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 21, 22, 24, 28, 33; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

Impairment is a question of fact which can be proven in different ways. On occasion, proof may consist of expert evidence, coupled with proof of the amount consumed. The driving pattern, or the deviation in conduct, may be unnecessary to prove impairment. More frequently, as suggested by Sissons C.J.D.C. in McKenzie, proof consists of observations of conduct. Where the evidence indicates that an accused’s ability to walk, talk, and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may be drawn that the accused’s ability to drive was also impaired. In most cases, if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol. Put another way, as was done in Stellato, the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol.

.. [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[78] I will also refer to the appellate decision of Justice Durno in R. v. Palanacki, [2001] O.J. No. 5194 at para. 11 which reminds me of my duty to examine the totality of the evidence:

I agree with the Chief Justice that when the physical symptoms alone would not support a conviction, a trial judge must examine not only the driving pattern, but all of the evidence, including evidence of non-impairment, in assessing whether the Crown has satisfied the onus. This is consistent with the judgment of Hill J. in R. v. Elvikis (1997), 25 M.V.R. (3d) 256 (Ont. Gen. Div.), relied upon by the Crown, where His Honour found:

Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physical symptomology or physical test results, or some combination thereof, will have probative value on the issue of impairment ability to drive a motor vehicle, more or less, depending upon the nature and strength of the evidence adduced. Items of circumstantial evidence are not to be viewed in isolation, but the entirety of the evidence must be considered in determining whether the prosecution has discharged the burden of proof. (Emphasis added.)

[79] I have, of course, previously opined on my view of the officer’s reliability and credibility in terms of additional observations and, therefore, do not factor the entirety of his testimony into my determination of this issue.

[80] I have no evidence of “driving” – there is only evidence that the defendant was asleep in the car in the early hours of the morning, which of course places him in care and control. There is no evidence of any inability to be awoken, no evidence of inability to walk from the car to the officers’ van, no evidence of what symptoms he exhibited during the period of time that he was sitting in the van while his car was searched. While I accept that Constable Blanchard drew a conclusion, it is simply not enough for me to draw the conclusion beyond a reasonable doubt that Mr. Harris urges.

[81] Having weighed all of the evidence that I do accept, including the evidence of non-impairment, I am unable to find that the Crown has proven the issue of impairment to any extent, beyond a reasonable doubt.

[82] Thus, Mr. Muliuolis is acquitted.

Justice K.L. McLeod November 14, 2022