Between

Her Majesty the Queen

Ms. A. Sandberg for the Crown

— AND —

Thierry Dejesus

Mr. P. Mergler for the defendant

Reasons for Judgment

Lipson J.:

[1]

Mr. Dejesus pleaded not guilty to a charge of operation of a motor vehicle while impaired by a drug.

[2]

On February 27, 2012 at approximately 10:30 a.m. Mr. Dejesus was involved in a minor property damage accident. Ms. Mai Yan was driving slowly through the intersection of Dundas and Dufferin Streets in Toronto when her car was struck from behind by another vehicle driven by Mr. Dejesus. Following the accident, Mr. Dejesus did not leave his vehicle nor provide Ms. Yan with any insurance information. Ms. Yan contacted the police. She testified that moments before the accident, she was approaching Lansdowne Avenue when Mr. Dejesus's vehicle touched the back of her vehicle. Ms. Yan got out of her car but detected no damage and drove on. Ms. Yan didn't observe anything unusual about the condition of Mr. Dejesus prior to the arrival of police.

[3]

The first officer on the scene, P.C. Silva, found Mr. Dejesus slouched over the wheel. The accused was very slow in providing his driving documents. Another officer at the scene of the accident, P.C. Mugford, observed that Mr. Dejesus had glossy eyes and small pupils. His responses to the officer's questions were slow and his words were "not well-enunciated". Physical movements were slower than normal. There was no scent of alcohol. The accused stumbled as he got out of his vehicle and had to raise his arms to steady himself. P.C. Mugford formed reasonable grounds to suspect that the accused had a drug or drugs in his body and made a demand pursuant to s. 254(2)(a) of the Criminal Code that the accused perform standard field sobriety tests. On the horizontal gaze nystagmus test, there was a "lack of smooth pursuit in both eyes." There was no issue with respect to the vertical gaze nystagmus test. Mr. Dejesus did poorly on the walk and turn test but complained of a bad back. He was unable to do the one leg stand test. P.C. Mugford formed reasonable grounds to believe that the accused had been driving while impaired by a drug and made a s. 254(3.1) demand that Mr. Dejesus be evaluated by a Drug Recognition Evaluation (DRE) officer.

[4]

At approximately 12 p.m., P.C. Reimer, a qualified DRE officer, performed the evaluation prescribed by regulation. This is a 12 step procedure based on testing and observations for a variety of signs and symptoms considered to be reliable indicators of drug impairment. Mr. Dejesus complained of nausea, a sore shoulder and back pain. He had acupuncture marks on his arm and told the officer he had taken over the counter Tylenol that morning. Mr. Dejesus' coordination and hand movements were slow. His eyes appeared normal. His pupils were small. On the horizontal gaze nystagmus test P.C. Reimer noted a lack of smooth pursuit in both eyes with an onset of a 45 degree angle in both eyes. Mr. Dejesus demonstrated poor balance during the eye tests as well as the divided-attention tests. His blood pressure was below normal range. His eye reaction to light was normal as was his muscle tone. P.C. Reimer formed the opinion that Mr. Dejesus was under the influence of drugs and that some form of central nervous system depressant and narcotic analgesic were in the accused's system. As a consequence P.C. Reimer formed reasonable grounds to make a demand for a urine sample pursuant to s. 254(3.4).

[5]

Dr. D. Mayers is a forensic toxicologist employed by the Centre of Forensic Sciences. He detected the presence of Lorazepam, a central nervous system depressant that is primarily prescribed for the treatment of anxiety disorders. Potential effects of the use of this drug can include lack of muscle control, drowsiness, loss of consciousness, impaired judgment, impaired memory, confusion and dizziness. The effects of Lorazepam would depend, of course, on the concentration within the blood and the tolerance of the individual to the drug. Also present in Mr. Dejesus' system was an inactive cannabinol without THC, the major psychoactive compound found in cannabis products such a marijuana and hashish. The presence of that substance indicates prior use of or exposure to a cannabis product. In both his report and testimony, Dr. Mayers indicated that the detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration. However, he also observed that urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time, since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug or drug effects. Dr. Mayers stated that the Lorazepam could have been ingested as long as three or four days before the time of the accident. Cannabis can be present in an individual's system for a matter of days and weeks.

[6]

The defence does not dispute that there is cogent evidence of impairment in this case. Crown and defence counsel correctly submit that the central issue is whether the prosecution has proven beyond a reasonable doubt that the accused's ability to operate his vehicle was impaired by a drug or drugs at the time of driving.

[7]

There is, as well, a threshold issue to address. This concerns the use to be made by the court of the opinion evidence of DRE officer on the issue of impairment by drug. The defence submits that any opinion by the evaluating officer as to impairment by drug, other than for the purpose of making a demand pursuant to s. 254(3.4), will not carry the weight of expert opinion, unless the criteria in R. v. Mohan, [1994] 2 S.C.R. 9 have been met. The defence submission finds support in a number of Ontario Court of Justice decisions including R. v. Wakewich, [2010] O.J. 1128 at para. 15 and R. v. Card, [2012] O.J. 6331 at para. 16.

[8]

The most recent case on this issue is R. v. Bingley, 2014 ONSC 2432, [2014] O.J. 2468 (S.C.J.) which is a summary conviction appeal decision. Mclean J. held that the language of s. 254(3.1) made it clear that an officer was entitled to reach a conclusion on drug impairment based on a DRE evaluation. The court was of the view that the science on which the tests were conceived was already established and had been considered by Parliament which set out the prescribed tests in regulations. McLean J. held that there was no need for a Mohan voir dire. The court also reiterated the well-known principle that a non-expert witness is permitted to give evidence that a person was intoxicated or impaired. What weight is to be given to the opinion evidence of the DRE officer is a matter for the trial judge.

[9]

In my view, the operation of the doctrine of stare decisis applies here. In R. v. Smith, [1988] O.J. 1750 at para 84 Watt J. (as he then was) held that "…within the same judicial hierarchy, the determination of an issue by an appellate court would bind the trial courts to reach an identical conclusion in equivalent circumstances. Further it matters not the territorial division in which the proceedings originated…" In the result, the opinion of P.C. Reimer with respect to drug impairment based on the evaluation he conducted is admissible on the issue of impairment by drugs.

[10]

Has the Crown proven beyond a reasonable doubt that at the time Mr. Dejesus was operating his vehicle his ability was impaired by the consumption of a drug? In my view, it is probable given the manner of driving and the indicia of impairment observed by P.C. Silva and P.C. Mugford at the scene and later by P.C. Reimer during his drug recognition evaluation, that Mr. Dejesus' ability to drive was impaired by a drug or drugs. Of course, proof on a balance of probabilities does not amount to proof beyond a reasonable doubt. The mere presence of drugs in the accused's system with the potential to cause driving ability impairment is some evidence but not sufficient evidence in this case to found a conviction. Dr. Mayers' testimony and report make it clear that urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug or drug effects. Here the police decided not to have a blood sample taken from Mr. Dejesus. A blood sample has the potential to determinatively reveal that the accused's impairment was caused by the ingestion of an identified drug or drugs. A urine sample does not. The evidence does not establish that any identified drugs in the accused's system were in sufficient quantities to impair his ability to drive. I agree with the following observations made by Morgan J. in Card at para. 14:

In alcohol impairment cases breath tests are mandated. There are statutory presumptions of accuracy and identity, and these presumptions, by Parliament, are based upon a careful consideration of the science of breath alcohol testing and of the absorption and elimination rates as it applies to alcohol. In the case of drugs, however, the Crown does not have the benefit of these statutory presumptions. Accordingly, it must by cogent evidence relate back the findings of its expert evidence and the consequent analysis to the time of driving. That evidence is not here. So the sorts of evidence that I would be looking for would be: how much of the drug was found in her system, what was the absorption rate, what might have influenced the rate of absorption, what was the elimination rate of the drug from the body's system. Was the state of science of drug testing such that the results could be reliably related back to the time of the alleged offence? Was the state of the science investigation such that the presence of the drug in any quantity, or an ascertainable quantity, would lead one to the inescapable conclusion that the defendant's ability to drive, at the time she was found in the car, to have been impaired by the drug?

[11]

Lorazepam could have been ingested two to three days prior to the driving and could have been inactive at the relevant time. The same applies to the cannabinoid present in the urine. There is no evidence of recent ingestion of either of those substances. It is unclear on the evidence whether the minor property accident is attributable to drugs or human error or negligence. The results of the drug evaluation yielded mixed results. There was a negative test result on the vertical gaze nystagmus test. P.C. Reimer would have expected a positive result if there was a high dosage of a central nervous system depressant in the accused's system. On the horizontal gaze nystagmus test, the angle of onset was 45 degrees. Jerking of the eyes can start at point zero. The result on the convergence test to see if the subject could cross his eyes was indicative of the presence of cannabis but is not relevant to detection of a central nervous system depressant. The accused's body temperature was below normal range. With a CNS depressant active in the system, body temperature would be expected to be normal. The accused has small pupils which, in itself, had no relevancy to the drugs found in the urine. His pupils reacted normally to light but a slow reaction to light would have been indicative of a CNS depressant in the system. Normal muscle tone as exhibited by the accused can be indicative of cannabis use but not that of a CNS depressant. The accused performed poorly in balance tests at the roadside and during the evaluation but there is also evidence, not contradicted by other evidence, that the accused suffers from back and shoulder problems.

[12]

In summary, there is evidence indicating that the accused's ability to operate a motor vehicle was impaired but the Crown has not established beyond a reasonable doubt the cause of impairment.

[13]

Mr. Dejesus is therefore found not guilty.

Released: September 18, 2014

Justice T. Lipson