Court File and Parties

Court File No.: 2811 998 Date: December 18, 2014

Ontario Court of Justice

(Central East Region)

B E T W E E N:

Her Majesty The Queen

K. Saliwonchyk, Counsel for the Crown

- and -

Patricia A. Wilkinson

N. Baker, Counsel for the Defendant

Heard: June 27, 2014, June 30, 2014, August 22, 2014, October 3, 2014, October 14, 2014

Judgment

BLOCK, J:

Facts and Charge

[1] On May 30, 2013 Patricia Wilkinson was charged with having care or control of a motor vehicle while her ability to drive was impaired by a drug, contrary to s. 253(1)(a) of the Criminal Code. On October 3, 2014 I dismissed various Charter applications brought by counsel. I now rule on the merits of the charge against her. Her profound impairment is not disputed. The defendant contends that the crown has not proven that the impairment was caused by a drug. I disagree. I find that the crown has established beyond reasonable doubt that the driving was caused by a drug. Here are my reasons for so doing.

Police Evidence

[2] The witnesses at trial were all officers serving in the Durham Regional Police Service. At 13:23 Constable Rendell was dispatched to Thickson road at Consumers road regarding an impaired driver report. He found the defendant while she was operating her vehicle near that location.

[3] PC Rendell activated his emergency equipment to get Ms Wilkinson's attention. It wasn't easy. As he approached the driver side window the vehicle continued to roll slowly through the intersection. It took the defendant approximately 10 seconds to roll down her window in response to the constable's presence. She then started driving northbound on Thickson when the light turned green. PC Rendell smacked the window with his palm to get her attention. Ms. Wilkinson then complied with his demand to turn the engine off.

[4] PC Rendell demanded the appropriate documentation and advised her that he was investigating an impaired driver report. She appeared to be in a daze. When asked the date, she stated: "the 26th". He asked her where she was. She replied: "I'm going home sick from work". PC Rendell noted the odour of freshly burned marijuana in the vehicle. She identified herself and exited the vehicle on his demand. As she was walking to the rear of her car she stumbled into the corner panel and nearly fell on the roadway. She needed to use him for support. She also nearly fell while walking up onto the sidewalk. PC Rendell testified that he could smell the very faint odor of alcohol in Wilkinson's breath. Although cooperative she was confused and struggled to answer questions.

[5] At 1335 PC Rendell formed the opinion that Ms. Wilkinson's ability to operate a motor vehicle was impaired by alcohol consumption and arrested her for impaired driving. He read to her the appropriate breath demand. PC Rendell was puzzled by the contrast of the faint odor of alcohol and the obvious, profound impairment. He took steps to get a Drug Recognition Expert (DRE) to the scene.

[6] At 1337 PC Rendell read the defendant her rights to counsel. She nodded up and down when he asked her whether she understood her rights. She ultimately declined to speak to counsel. She did not respond to the subsequent caution. He then read her the breath demand and drove Ms. Wilkinson to 18 Division. They arrived at 1349.

[7] A female police officer, PC Burke, conducted a search of Ms. Wilkinson at 18 Division. It was obvious to PC Burke that Ms. Wilkinson was impaired. According to the Constable "she appeared out of it". Ms. Wilkinson was observed to speak slowly; she had droopy eyes, slow physical movements, was unsteady on her feet, appeared confused by instructions and took an inordinately long time to remove her jewelry. PC Burke was suspicious that contraband might be concealed in Ms. Wilkinson's clothing. The defendant became confused when asked to pull down her waistband to facilitate the search of that area and dropped her trousers to her knees.

Breath Testing and DRE Evaluation

[8] At 1434 PC Rendell handed custody of Ms. Wilkinson over to PC Harding, who was the breath technician for the test on the Intoxilyzer 8000c as well as the DRE on this investigation. Ms. Wilkinson then supplied breath samples that indicated she had no perceptible blood/alcohol level. PC Harding drew the conclusion that Ms Wilkinson's obvious impairment was not caused by alcohol.

[9] At 1446 PC Harding made a DRE demand to Ms. Wilkinson and at 1508 he began the prescribed evaluation pursuant to s. 254(3.1). Before doing so, PC Harding asked a series of questions regarding Ms. Wilkinson's personal health. The purpose of the questions was to rule out the possibility that health issues, unrelated to the ingestion of drugs or alcohol, might be responsible for some of the findings of the evaluation. Ms Wilkinson denied suffering any health issues or injury that would explain her impairment. Indeed, there is no shred of evidence before this court that would support impairment by illness or injury.

[10] PC Harding noted Ms Wilkinson's slow and lethargic manner when she handled the Intoxilyzer mouthpiece, her slow, laboured and very quiet speech and, despite her cooperative attitude, her difficulty following directions. All of these reactions were corroborated by the breath room video recording, which was played for the court and entered into evidence.

[11] PC Harding took Ms Wilkinson through the drug evaluation prescribed under s. 254(3.1). It was clear from the various physical coordination tests that her coordination, perception and dexterity were profoundly impaired. As a result of the evaluation, her admissions and the breath test result, PC Harding concluded that Ms. Wilkinson was impaired by reason of drug consumption. He believed the drug to be a central nervous system depressant.

[12] At 1608 he demanded a urine sample from Ms. Wilkinson, pursuant to s. 254(3.4)(a), which was provided at 1611. She was charged with impaired operation of a motor vehicle by drug at 1646.

Toxicological Analysis

[13] The report of a qualified forensic toxicologist was introduced at trial as exhibit 4. That report featured an analysis of the above-mentioned urine sample. It was positive for Lorazepam, a central nervous system depressant, and Chlorpheniramine, an allergy medication. The report indicates that Chlorpheniramine could account for sedation, drowsiness, dizziness and motor incoordination. Lorazepam may cause lack of muscle control, drowsiness, loss of consciousness, impaired judgment, impaired memory, confusion and dizziness. All of the above indicia were noted in Ms Wilkinson's behavior on the day of her arrest.

Legal Analysis

[14] Any person may give an opinion regarding impairment without a Mohan voir dire. See Her Majesty the Queen v Graat. In my view, the opinion of PC Harding regarding impairment by drug may well have more weight than most other citizens because of his work experience and training, codified in his certification as a DRE. His opinion is not a medical opinion, nor is it the opinion of a qualified toxicologist, but it is evidence.

Conclusion

[15] Based on the opinion of each of the police witnesses described above, my review of the breath room video-recording, the description of the defendant's operation of her motor vehicle, the analysis contained in exhibit four, the defendant's admissions excluding illness or injury as the potential cause of impairment, and the proven absence of any blood alcohol content, I conclude that Ms Wilkinson's impairment by drug at the time of care or control of her motor vehicle on May 30, 2013 is proven beyond reasonable doubt.