Court File and Parties

Court File No.: 12/6902 Ontario Court of Justice

Between: Her Majesty the Queen — and — Michael Khalaf

Before: Justice Gregory A. Campbell

Heard: September 23, 2015 Released: September 25, 2015

Counsel:

• S. Pratt for the Crown
• R. DiPietro for the Accused

CAMPBELL J.: REASONS FOR JUDGMENT

1: THE PROCEEDING

[1] On September 20, 2012, at or around 2:40 a.m., Mr. Khalaf was speeding in his black Cadillac northbound on Pillette Avenue when he passed in front of Officers Lee and Kettlewell who were stopped in their car on Reginald at the intersection facing westbound. The officers turned north on Pillette to follow Mr. Khalaf and next came to a stop behind the Cadillac as it was stopped at a red traffic light at Pillette and Seminole. When the light turned green, Mr. Khalaf accelerated quickly. The officers followed in an effort to keep pace and track his speed. At 50 kilometres per hour, Mr. Khalaf's car continued to pull away. They estimated his rate of speed at 80 kilometres per hour in the 50 km/hr zone. The officers activated their lights and pulled Mr. Khalaf over. Officer Lee estimated they followed the Cadillac a distance of approximately four city blocks in a straight line from Reginald to just south of Wyandotte Street.

[2] Both Officers Lee and Kettlewell remarked how Mr. Khalaf appeared startled when they approached him while he was seated in his car. He responded properly when the officer requested Mr. Khalaf's licence, ownership and insurance. Mr. Khalaf's speech was described as slow and his eyelids appeared droopy but his movement was said to be erratic which Officer Lee clarified as being rapid and jittery. From the foregoing, Officer Lee was suspicious that Mr. Khalaf was impaired. He requested delivery of an approved screening device. It arrived in short order and instructions were provided to Mr. Khalaf in regard to how to provide a sample of breath. Without difficulty, Mr. Khalaf provided that sample which resulted in a 'pass' or no measurable alcohol content.

[3] Officer Briscoe delivered the approved screening device and was informed by Officer Lee about his observations. He was standing nearby when the results of the approved screening device appeared. Officer Briscoe is a qualified breath technician and certified drug recognition evaluator. He made a demand that Mr. Khalaf perform physical coordination tests. Following completion of those tests at roadside, the officer concluded he had reasonable grounds to believe Mr. Khalaf committed the offence of operating his motor vehicle while his ability to do so was impaired by a drug. Officer Lee effected the arrest of Mr. Khalaf while Officer Briscoe issued a further demand that Mr. Khalaf submit to an evaluation to determine whether his ability to operate his motor vehicle was impaired by a drug.

[4] Mr. Khalaf was transported to headquarters and brought into a search room suitable for the officer to conduct his evaluation. In addition to preliminary matters which include reflecting on information from the officers and making inquiries of Mr. Khalaf, the officer satisfied himself that Mr. Khalaf did not suffer from any physical difficulties which might impact the results of the evaluation and that Mr. Khalaf had a good night's sleep within the last 24 hours. Officer Briscoe checked Mr. Khalaf's vital signs, conducted nystagmus testing and balance testing among others. Following completion of those tests, which took approximately 35 minutes, Mr. Khalaf was brought to his cell. Officer Briscoe then spent approximately an hour finalizing his notes and reviewing the results before concluding he had reasonable grounds to believe Mr. Khalaf's ability to operate his motor vehicle was impaired by a drug. He next demanded further that Mr. Khalaf provide a sample of urine for analysis pursuant to s. 254(3.4) of the Criminal Code.

[5] Mr. Khalaf's urine sample was sent to the Centre of Forensic Sciences in Toronto for analysis. The sample submitted for testing resulted in the preparation of a report from a forensic scientist in toxicology. The report indicated there was evidence of a variety of drugs in Mr. Khalaf's urine sample which included, among other things, cocaine, a known stimulant; and oxycodone, hydromorphone and hydrocodone, all commonly used for pain management; as well as alprazolam, citalopram and norquetiapine, commonly used for anxiety, depression and psychotic disorders. Although the report identifies effects associated with the use of these drugs and the presence of others, it provides no assistance in regard to what if any measurable impact of effect they may have had on Mr. Khalaf at the time of operating his motor vehicle.

2: ANALYSIS

[6] The onus is on the Crown to prove beyond a reasonable doubt that Mr. Khalaf's consumption of drugs impaired his ability to drive. It is the effect of the drug which must be considered and not simply the fact that the accused had drugs in his system.

[7] It is interesting to note that in the case of alcohol, there is a separate subsection that creates an offence by measurable blood alcohol content. Parliament determined that a certain measurable amount of alcohol in one's system, regardless of surrounding circumstances, is unacceptable. There is no similar provision in regard to a measurable amount of drugs in the body.

[8] The drug recognition expert's opinion that the accused was impaired was based on an evaluation of Mr. Khalaf that left him reasonably confident the accused had drugs in his system. This of course was later verified by the results of a urinalysis.

[9] While the drug recognition expert's opinion is admissible evidence going toward proof of the offence, in the circumstances of this case it is not determinative in the absence of more. Officer Briscoe had to carefully weigh and consider his findings before he formed his opinion based on a variety of tests which at times included results that were outside of what might be considered normal range and other results he found that were completely within an acceptable or normal range. The officer spent a fair amount of time assessing the results before he reached his final opinion.

[10] Unlike alcohol, which is eliminated from the body fairly quickly, the same cannot be said about drugs which can be detected in the blood and urine, depending on the substance, in many instances for days and with respect to some substances even weeks after consumption.

[11] It therefore seems to me that the only way one can determine to what extent the drugs identified in Mr. Khalaf's urine may have adversely affected things like his reaction time, attention and ability to judge speed and distance can best be understood by looking at the actual evidence of impairment at or around the time of driving as was observed by Officers Lee and Kettlewell.

[12] From their account, the only departure from normal driving was driving at an excessive rate of speed based on an estimate of 80 kilometres in a posted 50 kilometre per hour zone on a main thoroughfare at 2:40 a.m and the quick acceleration after being stopped at a traffic light. Beyond driving, the officers thought, quite reasonably, it was unusual that the accused appeared startled when they approached the car and added that by subsequent observations he appeared jittery and his speech was slow. I appreciate that any degree of impairment by drug, even if slight, is proof of that element of the offence. However, it remains the Crown's onus to prove beyond a reasonable doubt that Mr. Khalaf's ability to operate his car was compromised as a consequence of the drugs that were in his system. While the evaluation expert's opinion is persuasive with the results of the urinalysis corroborating an important element of the offence, I am not satisfied, upon considering what I regard to be in this case necessary and important observations made by the officers at the time of driving, that there is proof, beyond a reasonable doubt, the accused's ability to operate his car was in fact impaired by a drug.

[13] The charge is hereby dismissed.

Released Orally: September 25, 2015

Gregory A. Campbell Justice