RULING

Ontario Court of Justice (Toronto Region)

Between:

Her Majesty the Queen

v.

Emily Cripps

Justice: Brent Knazan

Date: April 15, 2014

Appearance

Counsel for the Crown: M. Lockner

Counsel for the Accused: S. Robichaud

Introduction

This ruling deals with whether a drug evaluation officer defined in s. 254 of the Criminal Code can give expert evidence on the issue of whether a person's ability to operate a motor vehicle is impaired by a drug.

It arises in an unusual way. A good faith attempt by defence counsel to simplify the trial instead complicated it. As a result, this judgment is a final judgment only if I decide it one way. If I decide it the other way, it becomes a preliminary ruling on a point of law that necessitates a return to the trial and the continuation of a motion to exclude evidence.

Facts

The Stop and Initial Investigation

Officer Hibbits, who had only been an officer for six months on November 29, 2011, and had no experience with a driving while under the influence of a drug investigation, stopped Ms. Cripps after she turned left at 4:03 p.m. in the afternoon at an intersection controlled by a sign prohibiting turns after 4 p.m. The officer made the same turn and followed her, with lights and sirens indicating for her to stop. Cripps drove about 20 or 30 seconds and turned left again and then pulled over. Ms. Cripps started to get out of her car but the officer told her to stay in it so she did. The officer approached the car and saw what she thought were burnt, though not recently burnt, marijuana cigarettes and smelled a strong smell of marijuana. Ms. Cripps was pale, her pupils were dilated, she slurred her words a little bit and said "I'm sorry, I'm sorry".

What followed was confusing.

Based on the improper turn, her manner of stopping the vehicle, her observation of the marijuana cigarettes and the pupils and the speech, Officer Hibbits arrested Ms. Cripps for operating a motor vehicle while her ability to do so was impaired by drugs. She did testify that she was a little unsteady on her feet or had an unsteady gait, though it is not clear whether that observation was after she arrested her.

Field Tests and Second Arrest

Prior to arresting her, Officer Hibbits called an officer to conduct physical tests to determine under s. 254(2)(a) of the Criminal Code whether there were grounds to make a demand under s. 254(3.1) that Ms. Cripps submit as soon as practicable to an evaluation conducted by an evaluating officer to determine whether her ability to operate a motor vehicle was impaired by a drug or by a combination of alcohol and a drug. When the officer, Officer Mugford, arrived, he administered the field tests. It is not clear whether Hibbits told him that she had arrested Cripps. But the field tests were entirely unnecessary in the statutory scheme given that she had already formed reasonable grounds to determine that that was the case. Indeed, when Hibbits arrested her, she also made a demand under s. 254(3.1) that she submit to a demand by a drug evaluation officer.

Mugford was more experienced than Hibbits although he had only passed his test to become an evaluator a week or two before. Although he seems to have known that Hibbits had arrested her already, after administering the physical evaluation tests, which she failed, he may have arrested her again, according to Hibbits.

He also made a demand under s. 254(3.1) of the Criminal Code that she undergo an examination by an evaluating officer. Hibbits drove Cripps to the police station. By this time, Cripps had apologized to Hibbits repeatedly and Hibbits said, though her notes were not verbatim, that Cripps said she did not deny being impaired and that she tended to talk a lot when she was nervous.

Drug Evaluation Officer Assessment

At the station, Officer Mathews, a certified evaluating officer under the Regulations promulgated under s. 254.1 conducted an evaluation under s. 254(3.1) to determine whether Ms. Cripps's ability to operate a motor vehicle was impaired by a drug or a combination of alcohol and a drug. After his evaluation, Officer Mathews had reasonable grounds to believe based on his evaluation, that Ms. Cripps's ability to operate a motor vehicle was impaired by a drug and he made a demand under s. 254(3.4) that she provide a urine sample, which she did.

During her exchange with Officer Mathews, Ms. Cripps advised that she had smoked marijuana that day as she does for medical purposes but did not say at what time she began or ended in relation to when Hibbits saw her driving at 4:03 p.m. She said that she smoked about five cigarettes. She also said she should not have been driving and had taken prescription medication.

Toxicology Evidence

Based on the urine sample, expert witness Dr. Langille testified and provided a report testifying that TCP, or marijuana was present in Ms. Cripps's urine along with prescription drugs. He described the effects that all of the drugs present could have on Ms. Cripps, including her ability to operate a motor vehicle. But he specifically stated that he was unable to give any opinion on whether or not her ability to operate a motor vehicle was impaired by a drug at the time that she was driving, or at all.

Motion to Exclude Evidence and Trial Procedure

Ms. Cripps brought a multi-pronged application under sections 24(1) and 24(2) of the Charter to exclude much of the evidence including the results of Officer Mathews's evaluation and the urine tests.

At the conclusion of the evidence, both sides having agreed that the evidence on the trial could apply to the motion to exclude evidence, defence counsel, attempting to assist and expedite the trial in the interests of his client, suggested that rather than embark on the complicated and possibly lengthy argument on the motion to exclude evidence, that I hear arguments on the charge as if all the evidence had been ruled admissible. So confident was he that he could persuade the court to acquit because the case had not been proven beyond a reasonable doubt, that he submitted that this would expedite the trial.

Crown counsel agreed to this procedure, and I, in a decision I now regret, did also. This is how the complication arises.

Analysis

Initial Assessment of Evidence

In my opinion, based on all of the evidence and assuming that it would be admitted after the motion to exclude were completed, the Crown has not proven beyond a reasonable doubt that Ms. Cripps's ability to operate a motor vehicle was impaired by a drug.

Officer Hibbits's Evidence

Officer Hibbits was an inexperienced officer as shown by her reversal of procedure, first arresting Ms. Cripps based on having the ultimate grounds to believe that her ability to operate a motor vehicle was impaired by a drug, and then continuing an investigation whose purpose is to determine just that, whether there are reasonable grounds to make a request for the urine, which requires the same grounds as arrest does. Quite apart from the motion to exclude evidence, she used grounds within her reasonable grounds which were not grounds; there is no possible relation between making a turn at a prohibited turn sign three minutes after the prohibited time and not pulling over for 20 seconds, and operating a motor vehicle while your ability to do so was impaired by a drug. Her investigation was confused, her grounds were confused, and she made her notes of the unsteady walking on from the car one and a half hours later at the police station after she already knew the results of Mathews's and Mugford's testing and it is not clear whether she observed this before arresting Ms. Cripps. I give no weight to her opinion that Cripps's ability to operate a motor vehicle was impaired by a drug and little weight to her observations. I find no cogent evidence that Cripps was apologizing for driving impaired.

Officer Mugford's Evidence

As far as Mugford goes, Crown counsel agrees that none of his field tests are admissible to prove the charge; they were admissible for grounds only. Although pieces of his evidence are admissible to prove the charge, such as Ms. Cripps's statements, they don't, either alone or with the other evidence. And, significantly, once the basis for his opinion is removed because the tests and the evaluation results are only admissible for grounds, there is no underlying evidence for his opinion that Ms. Cripps's ability to operate a motor vehicle was impaired by a drug. So even though a police officer's opinion on impairment is admissible like any other person, R. v. Graat, [1982] 2 S.C.R. 819 there is little basis for it and it adds little to the case.

Dr. Langille's Evidence

Dr. Langille could not have been clearer that he is able to report on the detection of drugs in the urine but not able to proffer any opinion about Ms. Cripps's ability to operate a motor vehicle. He specifically declined to provide an opinion when Crown counsel asked him to - he said that is reserved to the Drug Evaluation Officer, Mathews. His evidence does show that Ms. Cripps had smoked marijuana and consumed drugs, findings which do contribute to the circumstantial case against Ms. Cripps, but that is as far as they go.

Officer Mathews's Evidence

This leaves Officer Mathews. He too is entitled to provide an opinion on Ms. Cripps's ability to operate a motor vehicle. And the underlying evidence for his opinion has been proven. He is an evaluating officer and he observed that she failed some of the tests and passed others and had normal or close to range findings in some of his measurements and departed from the normal range in others.

But even with his opinion, giving it the weight that it deserves, according to the authority of R. v. Graat, supra, in my opinion the prosecution has not proven the charge beyond a reasonable doubt.

Absence of Impaired Driving

There was no bad driving. There was a left hand turn against a sign but no evidence that it was not properly executed. There was another left hand turn and then the driver pulled over. Without any driving to show impaired ability, this is a circumstantial case, with proof of consumption of drugs but no evidence of how much or when. Only slight impairment must be proven and there is no one way of proving impaired ability to drive, but without any sign of impaired ability during the operation, the charge if proven, must be made out by the observations and opinions of the police officers.

I have already dealt with Hibbits and Mugford; their evidence alone and together, does not add substantially to Mathews's opinion. Although I accept Mathews's opinion and do give it weight, it is the very same as the opinion that he had to form in order to make the urine demand and amounts to reasonable grounds to believe that her ability to operate a motor vehicle was impaired by a drug. It does not rise to proof beyond a reasonable doubt in this case; some of Cripps's measurements were normal, she could perform some of what was asked of her and her driving was fine except for a traffic violation that cannot support an inference of impaired ability to operate a motor vehicle. She was responsive and cooperative. As Justice LeSage ruled in R. v. Singh, [1997] O.J. No. 1164 a case where there was bad driving and evidence of alcohol consumption, but no evidence of how much, the Court must consider not only the indicia of impairment but any evidence that tends to indicate that the ability to operate a motor vehicle was not impaired.

The Central Issue: Expert Evidence Status of Drug Evaluation Officers

Crown's Submission

This does not end the matter. Crown counsel submits that Mathews's opinion goes much further than the opinion of any other person who can give an opinion, even a police officer. He submits that because Mathews is an evaluating officer, and Parliament has given him the power to determine the very matter that I have to decide, that is whether a person's ability to operate a motor vehicle is impaired by a drug and created a test by regulation to help the officer make the determination, that the opinion of an evaluating officer is entitled to greater, almost special weight when compared to any other non-expert giving their opinion. Crown counsel, although choosing not to precisely define the status that he submits that I should grant to an evaluating officer or the weight that I should give to the opinion, does rely on authority that holds it should be expert evidence, and does submit that it is somewhere between the opinion evidence authorized in R. v. Graat and the opinion of a qualified expert defined in R. v. Mohan, [1994] 2 S.C.R. 9.

The issue is joined, because Ms. Cripps agrees that if I give any added or special status to Officer Mathews and give his opinion the weight that I would give to an expert's opinion, and accept his opinion, which I do, then the charge might be made out and the trial would have to continue to a ruling on the motion to exclude and a final verdict. I will therefore consider the submission of Crown counsel.

The Weight to be Accorded the Opinion of an Evaluating Officer

Relevant Statutory Provisions

The relevant parts of s. 254 of the Criminal Code read as follows:

254. (1) In this section and sections 254.1 to 258.1,

"evaluating officer" means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1);

254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(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) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Video recording

254(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

Samples of breath or blood

254(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

Video recording

254(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

Testing for presence of alcohol

254(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer's opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

Regulatory Framework

The regulation passed under s. 254.1 establishing the qualification of a drug evaluation officer and describing the tests they perform reads as follows:

SOR/2008-196 P.C. 2008-1033 June 11, 2008

1. An evaluating officer must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police.

EVALUATION TESTS AND PROCEDURES

3. The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are:

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

(b) eye examinations, which consist of

• (i) the horizontal gaze nystagmus test,
• (ii) the vertical gaze nystagmus test, and
• (iii) the lack-of-convergence test;

(c) divided-attention tests, which consist of

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

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

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

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

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

Opinion Evidence

The Established Law on Police Officer Opinion

The starting point in determining the weight to be given Officer Mathews's evidence is that the law of a police officer giving an opinion is well established and has been for 32 years. In R. v. Graat, supra, Justice Dickson dealt with the admissibility of a police officer's opinion that a person's ability to drive was impaired by alcohol. He called the question a vexed one on which the authorities were not congruous and in a scholarly, definitive judgment reviewed the law in Canada, England, Northern and Southern Ireland, Australia and New Zealand as well as the disputes between the great evidence scholars Cross and Wigmore. He concluded that the difference between fact and opinion was not clear and that a police officer should be able to give such an opinion such as any other witness who had first-hand knowledge of the driver's condition and his driving. But he emphasized:

The "opinion" of the police officer is entitled to no special regard.

Since Officer Mathews is not an expert, his opinion seemingly would be admissible on the authority of R. v. Graat, but not as an expert witness. That is because the law of expert evidence is just as well established as the law of non-expert opinion evidence and it cannot be admitted without meeting the R. v. Mohan, [1994] 2 S.C.R. 9 qualifications. These are:

a) relevance;

b) necessity in assisting the trier of fact;

c) the absence of any exclusionary rule;

d) a properly qualified expert.

Crown's Reliance on R. v. McCarthy

Crown counsel although characterizing the special weight he seeks for Officer Mathews opinion as something between the opinion any officer can give and an expert opinion seeks admission of Officer Mathews's opinion as "an expert opinion of the certified drug evaluation expert regarding the accused's ability to operate a motor vehicle being impaired by drug without the necessity of a Mohan voir dire."

For this request he relies on the very recent decision of my colleague Justice LeDressay in R. v. McCarthy [2014] O.J. where the above quotation appears. Crown counsel submits McCarthy as an exemplary decision in a line of decisions determining that a drug evaluation officer can give expert evidence without being qualified as an expert.

Justice LeDressay reached this conclusion by applying the statutory principle that the "words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament". The next step in his reasoning was to note that under s. 254(3.1) Parliament has described the purpose of the evaluation that an evaluating officer conducts as being: to determine whether the person's ability to operate a motor vehicle…is impaired by a drug or a combination of alcohol and a drug, that is, the very question at issue in a charge such as the one McCarthy and Ms. Cripps face.

From this, following the exercise of statutory interpretation that he began with, Justice LeDressay concludes that since the very words used in section 254(3.1) say that the evaluating officer is to determine whether the person's ability to operate a motor vehicle is impaired by a drug, in the context of the statute and regulations as a whole, this entitles the evaluating officer to give an expert opinion on this issue without being qualified as an expert. In reaching this conclusion, he finds support in the fact that the step that follows an evaluating officer having reasonable grounds to reach such a conclusion is a demand for a sample of oral fluid, urine or blood. Justice LeDressay concludes that this demand can lead to the obtaining of evidence that is,

… of value only as being some corroborative evidence of the evaluating officer's opinion regarding the person being impaired by a drug or by a combination of alcohol or a drug. Paragraph 10

He therefore concludes,

…the legislation would be rendered impotent if the only objective achieved by the evaluation process conducted by a qualified evaluating officer was the evaluating officer's ability to demand a sample of oral fluid, urine or blood. Paragraph 10

My Disagreement with McCarthy

With respect to my colleague and others of the same view, I disagree. There are a number of reasons even before undertaking an interpretation of the words of s. 254(3.1) for holding that an evaluating officer cannot give expert evidence:

1) Binding Supreme Court Authority

The decision of the Supreme Court of Canada in Mohan is binding. An expert must be qualified according to the criteria established in that case and McCarthy does not deal with the question of how statutory interpretation of a new section of the Criminal Code can result in not following a decision of the Supreme Court of Canada.

2) Non-Expert Opinion Already Available

No such finding is necessary in order for a drug evaluation officer to give an opinion; he already can, according to Graat and the court can give it the weight that it deserves, including taking into account the officer's training and experience.

3) Avoiding a Third Category of Opinion Evidence

Creating a third category of opinion evidence in addition to that covered by Mohan and Graat, assuming that there is a way that any court other than the Supreme Court of Canada could, would complicate an area of the law already encrusted with rules and qualifications, a result very much to be avoided: see R. v. Graat.

4) Avoiding Trial Lengthening

Allowing a drug evaluation officer to be qualified as an expert in every case will lengthen trials, another result very much to be avoided. Since any opinion, of the non-expert Graat type or expert opinion is only as good as the facts underlying it, giving the opinion of the drug evaluation officer the status of expert opinion will lead to lengthy cross-examinations and trials of the tests authorized by the regulations.

The Proper Interpretation of Section 254

This last point leads me to why my interpretation of the statutory scheme differs from that in McCarthy. The determination of the drug evaluation officer is by the very structure and words of the section of the Criminal Code, a step in the process of taking the very serious step of making a demand for bodily substance which in one case requires the taking of blood and in another urinating at the direction of the state, not entirely un-intrusive warrantless searches. Its place in the statutory scheme establishes exactly what the qualifications and training of a drug evaluation officer enable him to do - form reasonable grounds as to whether a person is impaired by alcohol or a combination of alcohol and a drug in order to justify the warrantless search of the blood, urine or oral fluid demand.

The drug evaluating officer comes at the midpoint of the statutory scheme. First, under section 254(2), with respect to drugs, if a peace officer has reasonable grounds to suspect that a person has a drug in their body and has within the preceding three hours operated or had care or control of a motor vehicle, the peace officer may by demand require the person to perform physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand under subsection (3.1) may be made. Subsection (3.1) permits the peace officer who has reasonable grounds to believe that a person who has committed an offence under section 253(1)(a), to require the person to submit to an evaluation by an evaluation officer to determine whether the person's ability to operate a motor vehicle is impaired by alcohol or a drug.

That officer then performs the tests authorized by the regulations and forms another opinion. And that opinion is specified in subsection (3.3) without ambiguity. I set out subsection 254(3.4) again for convenience and emphasis:

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer's opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

Applying the same principle of statutory interpretation used in McCarthy, that is the basic one that words in a statute are to be read in the context of the statute as a whole, the words "to determine whether the person's ability to operate a motor vehicle …is impaired by a drug or a combination of alcohol and a drug"- the words that Justice LeDressay uses to conclude that Parliament invested the evaluating officer with the status of an expert witness, cannot be read in isolation from the purpose for which he is to make that determination. That is contained in subsection (3.4) and is clear, because it is explicit-to form, if justified, reasonable grounds to believe and make the demand for a sample of bodily fluid, the intrusive personal warrantless search that requires grounds.

I do not agree with the statement in paragraph 10 of McCarthy that "the legislation would be rendered impotent if the only objective achieved by the evaluation process conducted by a qualified evaluating officer was the evaluating officer's ability to demand a sample of oral fluid, urine or blood". The step by step process that Parliament established in s. 254 is indeed potent-a scientist can use the urine results as in Ms. Cripps's case or the blood or bodily fluid results to confirm the presence of drugs and which drugs. This, along with all of the other evidence in the case, including the evaluating officer's non-expert opinion can form the basis for the prosecution to prove the charge beyond a reasonable doubt.

Analysis of Prior Case Law

McCarthy relies on R. v. Bingley [2010] O.J. No. 6268 reversed on appeal without ruling on this point: [2012] O.J. No. 739 where my colleague Justice Fontana stated:

It is clear on a reading of section 1 of the regulation that Parliament intended the accredited officer to testify as an expert in impaired operation cases without the necessity of a formal voir dire or examination of credentials. As Mr. Brown has rightly pointed out, this may not be all together clear in the wording of section 1 but it is obvious that that is its intent.

Again, and with the greatest of respect, it is not obvious at all that Parliament intended to effect an isolated pinpoint change to the law established in R. v. Mohan without even addressing it. Section 1 of the regulation that Justice Fontana refers to defines the officer - he or she is an evaluating officer who must be a certified drug evaluation expert accredited by the International Association of Chiefs of Police. To say, as the Court in Bingley did, that Parliament intended the evaluating officer to testify as a drug evaluation expert in impaired operation cases does not in my respectful opinion advance the discussion. He can clearly testify as a certified drug evaluation expert, which he is, that he conducted the tests properly, formed reasonable grounds to believe that the person's ability to operate a motor vehicle was impaired by a drug and that he made the proper demand for a sample of oral fluid, blood or urine. But whether his opinion that the person's ability to operate a motor vehicle while impaired by a drug, should be given the weight of expert opinion is the very issue to be determined, so it cannot be stated. This is especially the case when it is not altogether clear from the wording of the regulation as Justice Fontana acknowledges in the passage from Bingley, that I have set out.

In my opinion the legislation, despite its use of the word "expert" in the regulation stating the qualifications of an evaluating officer does not address the issue of expert evidence at all.

Justice LeDressay disagrees with Justice DiGiuseppe's analysis in R. v. Wakewich 75 C.R. (6th) 347, but I find his analysis persuasive as well as the results in the cases that followed Wakewich: see R. v. Conron 24 M.V.R. (6th) 334, R. v. Gardashnik, 2011 ONCJ 256, 14 M.V.R. (6th) 299 and R. v. Tonelli 2011 ONCJ 542, 24 M.V.R. (6th) 303.

Conclusion

From this discussion, it follows that I accord Officer Mathews's opinion, that he formed for the purpose of making a demand under s. 254(3.3) of the Criminal Code, the weight it deserves - he is a police officer who observed Ms. Cripps fail some of the tests, pass some of the tests and be normal in some of the physical measurements that he took. The underlying basis for his opinion is established but he did not see her driving and there was no bad driving to tell him about at all; there was a properly executed left turn three minutes after four by the officer's car clock. Most of what Mugford may have told him is not admissible to prove Ms. Cripps's guilt and most of what Hibbits told him cannot be relied upon because of her inexperience and confusion in the investigation.

For reasons that I have given I do not find Hibbits's evidence cogent evidence about Ms. Cripps's behaviour or her statements. When I remove Mugford's evidence that cannot be used to prove guilt and add Officer Mathew's opinion and observations, combined with Dr. Langille's evidence, I am not on the whole of the evidence, satisfied beyond a reasonable doubt that Ms. Cripps's ability to operate a motor vehicle was impaired by a drug.

So while the argument on the case as a whole turned out to be lengthy, perhaps lengthier than the application to exclude evidence may have been, in the result, defence counsel was correct that the hypothetical argument would dispose of the case. It is not necessary to litigate the application to exclude evidence.

The charge is dismissed.

Justice B. Knazan

April 15, 2014