Court File and Parties

Date: December 4, 2015

Court File No.: 13-876

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Torrie Thompson

Before: Justice Paul F. Monahan

Heard on: October 28, 29 and 30, 2015

Reasons Released on: December 4, 2015

Counsel:

Ms. C. Valarezo for the Crown

Mr. D. Freudman for the defendant Torrie Thompson

MONAHAN J.:

INTRODUCTION

[1] Ms. Torrie Thompson was pulled over on Erin Mills Parkway in the City of Mississauga driving a black Jeep on January 20, 2013 at about 11:17 PM after a 911 call from a gas station patron and after Ms. Thompson was viewed by a civilian witness and a police officer swerving her vehicle within her lane. She was arrested and charged with operating a motor vehicle while her ability to do so was impaired by a drug contrary to section 253(1)(a) of the Criminal Code.

[2] The principal issue in this case is whether the Crown has proved beyond a reasonable doubt that Ms. Thompson's ability to operate a motor vehicle was impaired by a drug.

[3] There was no Charter application before the Court. The Crown called six witnesses, including an expert toxicologist. The defence called no evidence.

FACTS

[4] It is not necessary to review all of the facts. I will review what I have found to be the facts. To the extent that there were contested facts, and there were some, I will address them and determine the facts accordingly.

(a) The Gas Station Events

[5] It was common ground at trial, and I find based on my consideration of the evidence, that Ms. Thompson was captured on a video camera at 10:35 pm on January 20, 2013 entering a gas station convenience store on foot and at 10:46 pm exiting the gas station store. The gas station is located at the corner of Erin Mills Parkway and Battleford Road in the City of Mississauga. The video of her entrance and exit from the store was entered into evidence at the trial. At 10:35 PM she is shown running into the store. As she enters the store she has to quickly maneuver to avoid another person leaving the store. At 10:46 PM she leaves the store walking backwards using the back of her body to open the door as she exits holding a coffee in one hand and her purse and a food item in the other. She appears normal and stable in her walking, running and overall presentation at both 10:35 PM and 10:46 PM.

[6] Mr. Mohammed Ali was a civilian witness who testified. On January 20, 2013, he was working at the gas station as a cashier. He said a woman came in and bought coffee and a food item and then got into a Jeep. He was unable to identify the woman or say whether she was black or white. He was shown the store video mentioned above with Ms. Thompson in it and he said he could not say if she was the woman he dealt with. He said that another customer complained about a Jeep being parked for a long period of time near the exit but still within the parking lot of the gas station. This other customer apparently thought that the driver of the jeep was asleep in her car within the boundaries of the gas station. Mr. Ali phoned 911 and the customer spoke to the 911 operator in the presence of Mr. Ali.

[7] Let me pause at this point to observe that the customer who spoke to 911 and may have seen someone sleeping in their car did not testify at trial. There is no evidence that Ms. Thompson was sleeping in her vehicle at the gas station. I note that on the video of the drug evaluation discussed below, Ms. Thompson denied sleeping in her vehicle.

[8] Mr. Ali said the same woman who got into the Jeep and who purchased the coffee and the food item did not appear normal to him when she was buying her coffee and food item. Her body was shaking a little and her voice was shaking. I note that there was no mention of the shaking in his statement to police. I don't accept the implication the Crown seeks to have me draw from his evidence that it was Ms. Thompson who was shaky or shaking. He could not remember if the person he was recalling was even black or white and he could not identify Ms. Thompson on the video. Further, the fact that she was shaky was not in his original statement nor is it evident from the store video that Ms. Thompson was shaky. I understand that there may have been issues because he is not fluent in English and he had to deal with an English speaking police officer at the time his statement was taken and he did not have a Punjabi interpreter. Nevertheless, for the reasons mentioned, I find that it has not been established that Ms. Thompson was shaky or not "normal" in the store.

[9] Mr. Ali testified that he saw the vehicle leave the station on to Erin Mills Parkway in a northbound direction but that it stopped for two to three minutes on the roadway facing west in the northbound lanes about 15 to 20 feet from the traffic lights that are at the corner of Erin Mills Parkway and Battleford. There appeared to him to be no reason to stop. He said that the vehicle was perpendicular to the northbound lanes. I don't accept that Ms. Thompson's vehicle was perpendicular to the lanes as that was not in his original statement but I do accept that for some unexplained reason she stopped in one of the northbound lanes for approximately 2 to 3 minutes. Mr. Ali was not asked if she stopped because of the traffic light being red. He said simply that there was no reason for her to be stopped. I accept that she was stopped for no apparent reason and that it was for two to three minutes but I note that the light must have been red for at least some of that time. Nevertheless, there was an unexplained stopping of the car in a lane on Erin Mills Parkway. There was no traffic around Ms. Thompson's vehicle at that time.

[10] To summarize, Ms. Thompson is perfectly stable on the video at 10:35 PM and 10:46 PM. She was not shaky in the store at any time as I have found the facts. Even though Mr. Ali could not identify Ms. Thompson I accept that it was Ms. Thompson in the Jeep vehicle at the gas station and that she exited onto Erin Mills Parkway. Given the timing of the roadside stop, she must have been in the gas station parking lot after she left the store for about 25 minutes. As she exited on to Erin Mills Parkway, she stopped entering a lane on the roadway for approximately two to three minutes for unexplained reasons although part of that time may have been due to a red light.

(b) The Roadside Arrest

[11] After she left the gas station, Ms. Thompson was driving her Jeep northbound on Erin Mills Parkway. She was pulled over by Constable Stafford at approximately 11:17 PM who had received a dispatch call at about 11:13 PM for a driver who was thought to require medical assistance.

[12] Prior to her being pulled over by Constable Stafford, he saw Ms. Thompson swerving her vehicle within the right lane in which she was traveling. She did not go over the line but she swerved within the lines. Constable Stafford said this took place over the distance of a city block and that she was swerving the whole time. According to Constable Stafford, he said that the poor driving was "not that dramatic" and I infer from the city block comment that it was over a relatively brief period of time (about one minute). I accept his evidence on this point. His evidence was largely confirmed by the civilian witness, Mr. Pradeep Upreti, who was also driving north behind Ms. Thompson that evening on Erin Mills Parkway at the same time. At trial, he suggested that she had swerved over the line but in his statement to police shortly after the events in question he said that she swerved within the lane extending to the dividing line. I note that on a subsequent video taken at the police station at the time of the drug evaluation test, Ms. Thompson said that she thought she had swerved over the line.

[13] I believe that Constable Stafford's evidence as well as Mr. Upreti's statement to police closer to the time of the events in question taken together are accurate and that she was swerving within her lane but not over the line. I accept as well the evidence of Mr. Upreti that another vehicle applied the brakes as Ms. Thompson was swerving. I also accept Constable Stafford's evidence that her eyes were red and watery. He said she seemed upset.

[14] I also note further that Constable Stafford agreed that Ms. Thompson was not driving too fast or too slow. He did not consider that he had the grounds based to arrest her for careless driving based only on his observations of her driving.

[15] Constable Stafford also said that Ms. Thompson appeared disheveled. I disagree with this evidence based on the store video marked at trial which depicts Ms. Thompson shortly before she was pulled over in which she does not appear disheveled. In addition, he testified that her physical state was the same at the roadside as it was during the drug evaluation video discussed below and she was not disheveled on that video either. I do accept the evidence of Constable Martin who also testified that he assisted at the scene that the inside of her car was a mess with clothing and other items which I will return to a moment.

[16] I accept Constable Stafford's evidence that there was no smell of alcohol coming from Ms. Thompson or her vehicle. I further accept his evidence that she was not unstable or unsteady at the roadside.

[17] Constable Stafford said that she was slurring her words and was slow in her movements at the roadside. As mentioned above, he testified that she remained the same throughout the time that he dealt with her including when she was videotaped at the station during the drug evaluation test.

[18] I don't dispute that Constable Stafford was sincere in his views that he thought she was slurring her words and slow in her movements at the roadside but I consider that she was not clearly slurring her words and there was no slowness in her movements. I base this on two points. First, the videotape at the gas station store about half an hour before she was pulled over shows no slowness in her movements. Her walking and running as shown on store video was stable and fluid including walking backwards with a coffee in one hand and her purse and a food item in the other. Second, Constable Stafford said she was similar at the roadside to how she was at the station afterwards. In my view, her speech on the video at the station during the drug evaluation test was not clearly slurred and I disagree with the evidence of Constable Stafford and Constable Kosher when they both said that it was. I consider that on the video at the station, her use of language was appropriate and her communication skills and interaction with the officers appeared appropriate. Constable Stafford acknowledged that what he said was her slurred speech might be the normal way she talks. Ms. Thompson has a certain nasal tone to her voice on the video which at times sounds somewhat unpleasant and it might be interpreted to be slurred speech but in my view she was not clearly slurring her words. She did slur her speech when crying towards the end of the video but this made sense in context.

[19] Before he arrested her, Constable Stafford ran a police computer search and determined that she was subject to other drug-related charges and another impaired driving charge. Based on his observations at the roadside and the information he had from the original dispatch call and his information that she had drug charges against her and another impaired driving charge, Constable Stafford considered that he had reasonable and probable grounds to arrest her for impaired driving at the roadside where the impairment was alleged to be by way of a drug and he proceeded to arrest her. There was no Charter application challenging his reasonable and probable grounds.

[20] After she was arrested, Constable Stafford did a search of her for officer safety and he found a glass pipe inside a small pink purse in her jacket. That pipe and purse was marked as an exhibit at trial. The pipe was not warm nor was it ever tested for any drug residue.

[21] Ms. Thompson was read her rights to counsel at 11:22 PM and given a caution and a secondary caution. They left the scene shortly thereafter and arrived at 11th division station at 11:44 PM. The police thereafter facilitated a private conversation for her with a lawyer.

[22] Constable Stafford said that he thought that she was somewhat unsteady at the station. In my view, she was not unsteady at the station and my reasons for this conclusion are set out below when I review the drug evaluation test evidence.

[23] Constable Martin also testified that Ms. Thompson had what appeared to be some unused needles on the front seat and in the back seat. There were two needles loose on the front seat and the needles in the backseat were in a medical bag. All of the needles appeared to be the same and all appear to be unused. Ms. Thompson apparently claimed to Constable Martin that the needles were for a friend of hers who was diabetic.

(c) The Drug Evaluation Process

[24] Constable Kosher is an experienced Peel Regional Police officer having been a police officer for 21 years at the time of the events in question. Since October 2011, he has been qualified under regulations to the Code to conduct drug evaluations under section 254(3.1).

[25] Constable Kosher received grounds for arrest from Constable Stafford, and based on those grounds, he demanded under s. 254(3.1) that Ms. Thompson submit to a drug evaluation to determine if her ability to operate a motor vehicle was impaired by a drug. Ms. Thompson was subject to such an evaluation which was videotaped and which took place from approximately 12:50 AM to 2:07 AM on January 21, 2013. Constable Stafford was present at the evaluation as an observer.

[26] The drug recognition evaluation of Ms. Thompson was undertaken by Constable Kosher following a protocol which he was trained to administer. He concluded based on the results as a whole that he had reasonable grounds to believe that Ms. Thompson's ability to operate a motor vehicle was impaired by a drug. In this regard, his opinion was that she was "slightly impaired" by a drug to operate a motor vehicle. His view was that she had a central nervous system depressant drug in her body.

[27] As a result of his conclusion reached by virtue of the drug evaluation, Constable Kosher made a demand that Ms. Thompson provide a urine sample pursuant to s. 254(3.4). I note that he could have sought a blood sample but, if he had done so, blood could only be obtained by or under the direction of a medical practitioner.

[28] Constable Kosher was assisted in obtaining the urine sample by a female officer. Constable Kosher placed a CFS seal on the urine sample vial at 2:13 AM. I infer that the urine sample was provided immediately before that time.

[29] Constable Kosher said that Ms. Thompson had giggled inappropriately in her dealings with some other officer prior to the videotape. Given that she did not giggle or laugh once on the lengthy drug evaluation video and in the absence of any further context for the alleged giggle, I attach no significance to this evidence.

[30] The video was played in court as part of the trial and marked as an exhibit at trial. I have watched the video of the evaluation a number of times. I accept that Constable Kosher did form the view, based on the evaluation, that he had reasonable grounds to believe that Ms. Thompson's ability to operate a motor vehicle was impaired and that his view was that she was only slightly impaired. I also accept that based on the belief he held, Constable Kosher was entitled to make the urine (or blood) sample demand. The defence did not suggest otherwise. However, it is apparent to me that there is a significant subjective element to the role of the drug evaluation officer in any drug evaluation including the one undertaken by Constable Kosher. There is nothing surprising about this observation. In my view, the nature of the evaluation is such that one officer might identify some action as a sign of impairment and another officer might not detect the action at all or, if detected, might not view the action in the same way for any number of reasons. I was unable to see directly some of the tests such as the nystagmus test on the eyes and the touching of the nose test which was off video based on the placement of her head and the video camera. Having said that, most of the tests including the Romberg balance test, the one leg stand, the walk and turn test and related observations and interactions were all clearly visible to the court on the video. In addition, the conversation and interaction between Constable Kosher and Ms. Thompson during the 1 hour and 17 minute video and Ms. Thompson's overall presentation during the video formed part of the evidence and I am in a position to apply my own common sense and judgment in determining what weight should be given to the conclusions of Constable Kosher. It is ultimately the court that must determine the central issue in the case namely whether the Crown has proved beyond a reasonable doubt that Ms. Thompson's ability to operate a motor vehicle was impaired by a drug at the time she was seen operating her motor vehicle between about 11:13 PM and 11:17 PM on January 20, 2013.

[31] In my view, Ms. Thompson performed well on a number of the drug evaluation tests and presented well on the video in terms of her speech and communication and her overall stability. I make the following observations. First, she was asked to close her eyes and put her head backwards and estimate the passage of 30 seconds. She allowed 29 seconds to pass and said that it was her judgment that 30 seconds had passed. My view is that she performed well on this part of the test. Constable Kosher noted that she swayed 2 inches when doing this test. This swaying was a mark against her on the test. I did not detect the swaying on the video although I accept Constable Kosher's evidence on the point. I note that she was not instructed not to sway. Given that she was not told not to sway I do not consider it is particularly fair to hold such a minor sway against her.

[32] Second, she was asked to do the walk and turn test. In this regard, she was told to walk on a straight line putting one foot in front of the other nine steps one way and nine steps back the other way and she did so without falling or stepping off the line as instructed and as appeared on the video. The officer said, and I accept, that she stepped off the line at the end on the second passing but that was not recorded on the video. However, any such stepping off of the line would have been minor because it is clear on the video where the upper part of her leg was placed and it could not have resulted in her foot being far off the line. The point here is that she walked along the straight line without any difficulty but was said to have failed this part of the test because of four errors: she stepped off the line slightly at the end (not shown on the video); she counted 10 steps instead of nine (which the court did not detect watching the video); on one of 18 steps in the test she allowed about 1 inch to exist between her placement of the toes of one foot and the heel of her other foot (contrary to instructions); and it is said that she grabbed a chair for balance. I note in this regard that she did grab the chair for balance but this was before the test started while she was standing stationary waiting for the test to begin and receiving instructions. She was standing on a line in an awkward position with one foot in front of the other with her heel touching the toe of her foot. She did not ever need to grab the chair for balance when she actually performed the test. Four errors is a failure on the walk and turn test (whereas three is not) so she was said to have failed the walk and turn test. A further error was mentioned that Ms. Thompson did not turn properly half-way through the walk and turn test but I disagree that there was any significant error in her turn.

[33] Third, she was said to have failed the one leg stand because she had used her arms for balance and swayed while balancing contrary to instructions. This is notwithstanding the fact that she stood on one foot for twenty-seven seconds without putting the other foot down and on her other foot for twenty-nine seconds without putting the other foot down and any use of her arms for balance was slight in my view. There was some swaying but it too appeared to be part of a normal balancing exercise that occurs when one stands on one foot. Further, she could have stood on each foot for longer but Constable Kosher told her to stop. In my view, she demonstrated more than reasonable stability on this part of the test.

[34] Constable Kosher made observations about a nystagmus about which I cannot comment as it is not possible to view the eye tests on the video. The test that required her to touch her nose was also not captured completely on video and she apparently performed poorly on that part of the test.

[35] The court also accepts that her blood pressure was low and that her pulse at 56, 58 and 56 (3 readings) was just slightly lower than a normal reading which would start at 60 bpm. These were said to be indicators of the presence of a central nervous system depressant. I must say that having a pulse of 56 or 58 instead of 60 hardly seems like a major issue to me. However, her blood pressure at 100 over 60 was definitely lower than the normal range as stated by Constable Kosher.

[36] To summarize, I consider that her performance on these tests, while taken together with other tests performed by Constable Kosher, gave him reasonable and probable grounds to make a urine demand or a blood demand. However, from the court's perspective, Ms. Thompson's performance on a number of these tests that Constable Kosher thought indicated impairment did not appear to be unreasonable to the court and I do not consider that they indicated impairment. I am specifically referring to the one leg stand test and the walk and turn test. The internal clock test result was not a mark against her in Constable Kosher's view and the court agrees. In addition, I find as a fact that she was not unsteady on her feet throughout the time of the drug evaluation report. I repeat as well that the observation made at the roadside was that she was also not unsteady on her feet at that time.

[37] Further, I consider that Ms. Thompson communicated appropriately throughout the entire video. I do not think her speech was clearly slurred and I have discussed this point further above.

[38] It was also submitted by the Crown that she did not properly follow instructions during the drug evaluation test. I disagree with this observation. She followed the instructions acceptably in my view.

[39] Finally, I note that the entire drug evaluation test took place in the early morning hours when most people are tired and Ms. Thompson said on the video that she was tired and I believe that she was. This is a factor to be considered in determining the weight to be given to the drug evaluation test evidence.

[40] Ms. Thompson provided a urine sample which was analyzed and I will turn to that in a moment. Prior to providing the sample she told Constable Kosher a number of things. The voluntariness of her statements to Constable Kosher was conceded by the defence. Ms. Thompson said that she had taken some prescription medicine. The first was lorazepam which she said she took 0.5 milligrams at night to help her sleep and had taken it on the previous night about midnight. The Crown submitted that she also said she took lorazepam three times that day which she said was a prescription medication for her for anxiety. In my view, the video is open to interpretation on this point but I consider that she was saying she had taken three clonazepams that day (in addition to the 0.5 mg of lorazepam the night before). She said she was permitted to take four a day of the clonazepam and that she took one at noon, one at 3 PM and one at 6 PM. She said she had had a bad day. Whether she said she was taking three clonazepams during the day or three lorazepams does not really matter because neither were detected in her urine so it would appear that she was being untruthful whether she was referring to lorazepam or clonazepam.

[41] She was asked about the events at the gas station and she said that she had not fallen asleep at the wheel. She said she was tired and was sitting in the gas station with her head leaning on her hand and doing something with her GPS and that she was on her way to visit her friend at the hospital.

(d) Toxicology Evidence: Dr. Daryl Mayers

[42] Dr. Mayers was agreed by the parties to be an expert witness qualified to give evidence in a number of areas including with respect to toxicology. He had worked for the Center of Forensic Sciences for 21 years at the time of his work in connection with this matter. His evidence was helpful and not contested in any way. His report was marked as an exhibit. He gave further oral evidence expanding upon his report.

[43] He analyzed Ms. Thompson's urine. He detected four drugs in her urine: Gamma-hydroxybutrate ("GHB"), 7-Aminoclonazepam ("7 amino"); methamphetamine and amphetamine. He did not detect any lorazepam or clonazepam in her urine.

[44] One of the central conclusions from the court's perspective is in the first numbered paragraph in his conclusions:

the detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration. 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. (emphasis added)

[45] He explained that GHB appears naturally in the body. His conclusion here says nothing about the amount of it in her urine other than that there would have had to be at least 50 mg per litre as he said he would not have mentioned it in his report otherwise. He made no observations and gave no opinion as to the effects that 50 mg per litre of GHB in a person's blood would have on a person in terms of their impairment either generally or in respect of their possible impairment to drive. He specifically stated in his report that "the effects of GHB depend on the concentration within the blood and the tolerance of the individual to the drug". He did say that a person with 160 or 170 mg per litre in their blood would be very significantly affected. It would be like an anesthetic in those circumstances.

[46] I note that Dr. Mayers pointed out that a blood sample is entirely different than a urine sample. A blood sample permits a properly qualified expert to determine the amount of a drug in a person's system and to give estimations as to the amount of the drug and the effect of that drug on the person at a particular time in question. A urine sample permits no such opinion. Although he did give evidence about the minimum 50 mg per litre of GHB found in her urine (which I might add was not in his written report), Dr. Mayers gave no opinion as to the amount of 7-amino, methamphetamine or amphetamine in Ms. Thompson's urine or blood.

[47] Dr. Mayers explained that GHB occurs naturally in the body and the usual amount is 0.1 to 7 mg per litre. It is also present in a prescription drug known as Xyrem. It is also taken as an illicit "recreational" drug. It has a short half-life ranging from 20 minutes to 1 hour. A drug will be eliminated in the blood after 5 to 6 half-lives. That means that it could be eliminated in the blood at the low-end at around one hour and 40 minutes to two hours and at the high-end at about five to six hours. In addition, Dr. Mayers noted as well that simply because the drugs are in someone's urine doesn't mean the drug is still in their blood. Drugs can be located in a person's urine after they have already left the blood and are completely out of the body so to speak save that they are in urine held in the bladder. He said that a person might hold their urine in their bladder for a few hours more.

[48] Dr. Mayers said that a person will usually feel the effects of GHB for up to 3 hours or less. Dr. Mayers testified that the effects of GHB range from euphoria to dizziness, drowsiness, motor incoordination and varying degrees of impaired consciousness. He testified that it could have very negative effects on the ability of the person to drive or it could simply make someone euphoric and not impair their ability to drive at all.

[49] The Crown posed a hypothetical question to Dr. Mayers based on the facts the Crown ultimately urged the court to find. The Crown asked Dr. Mayers to comment on the following circumstances: a person moves their vehicle perpendicular onto a roadway for 2 to 3 minutes for no apparent reason; the person is later seen weaving their vehicle in and outside of their lane; the person had red and watery eyes, slurred speech and exaggerated movements; the person had no odour of alcohol, displayed a horizontal nystagmus, a lack of convergence and slight swaying while standing and needed to hold a chair for balance with slight difficulties on physical tests. Dr. Mayers responded that a lot of what has been described and specifically the weaving, swaying, balance and slurred speech were indicative of a central nervous depressant. He specifically said that he did not have a blood sample and so he could not scientifically indicate what was occurring but that a "likely candidate is GHB". In cross-examination, Dr. Mayers seemed to accept that if you were to change the underlying facts and insert no slurred speech and no unsteady walking as assumptions then his opinion could change.

[50] The following is an example of the implications of what Dr. Mayers said about the half-life of GHB and its effects as well as the finding of the drug in a person's urine. A person could take GHB at 8 PM. I understood his testimony to be that it could have an effect for up to approximately 3 hours. Depending upon the amount taken and the person's tolerance for the drug it could cause them to feel nothing or it could cause them to be euphoric at the lower end of the spectrum of effects or drowsy/dizzy/impaired consciousness somewhere further along the spectrum of effects. It may or may not impair the person's ability to drive. The drug could stay in the person's blood for anywhere from one hour and 40 minutes to six hours. Depending upon when a person urinates it could be then held in the bladder, and not be present in the blood at all and thereby have no effect on the individual, for perhaps another hour or two after it leaves the blood. I note that the estimate that it would have an effect for up to three hours on a person would most certainly not be the case if the half-life were only one hour and 40 minutes. In the example of taking the drug at 8 PM, it may have no effect on the person at all or, if it has an effect, the drug would likely be having no material effect by 11 PM or earlier. The GHB could have left the person's blood anywhere from approximately 9:40 PM to 2 AM (depending upon the half-life). Once it leaves the blood completely it has no effect on the individual but could still be detected in the person's urine.

[51] We don't know when Ms. Thompson last urinated but she did not urinate during the time she was undergoing the drug recognition test in the videotaped room which was from approximately 12:50 AM to 2:07 AM. The urine sample was sealed at 2:13 AM which I infer means that she urinated for the purposes of the sample immediately prior to 2:13 AM. There is no evidence as to whether she urinated from the time she was pulled over at 11:17 PM through to 12:50 AM.

[52] Clonazepam is a parent drug to the 7-amino. The presence of 7-amino in the blood would not impair a person. Clonazepam can have the effect of causing drowsiness and impaired judgment, memory confusion and dizziness. However, to be clear, there was no clonazepam noted in her urine. Clonazepam has a long half-life namely 19 to 60 hours. If it were taken that day, it would still be in the blood and urine.

[53] Methamphetamine and amphetamine are both stimulants and used as a drug of abuse. They can cause excitation, euphoria and increased risk-taking behavior. They both have a very long half-life. As a result, the fact that methamphetamine and amphetamine were found in her urine means that they could have been taken weeks before.

LAW AND ANALYSIS

[54] Ms. Thompson is charged with an offence under s. 253(1)(a) which provides, in part, as follows:

253. (1) Every one commits an offence who operates a motor vehicle …,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug. (emphasis added)

[55] As indicated above, the specific allegation against Ms. Thompson is that she was impaired by a drug. The Crown must of course prove all of the elements of the offence beyond a reasonable doubt.

[56] Section 254(3.1), (3.2) and (3.4) of the Code provide as follows:

(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.

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

(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. (emphasis added)

[57] The issue in a case is whether the Crown has proved beyond a reasonable doubt that Ms. Thompson's ability to operate a motor vehicle was impaired by a drug. The evidence of impairment must only be any degree of impairment ranging from slight to great: R v. Stellato, 78 C.C.C. (3d) 380 (Ont. C.A.) at p. 384 affirmed , [1994] 2 S.C.R. 478. In that case, Justice Labrosse stated as follows:

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (emphasis added)

[58] Where the impairment to operate a motor vehicle may be caused by more than one factor such as fatigue and by alcohol or a drug, it is sufficient if the Crown proves that the drug or alcohol contributed to the impairment: R v. Bartello, 1997, 35 W.C.B. (2d) 81 (Ont. C.A.) at para 2.

[59] Where the charge is impaired driving by alcohol, the court cannot take blood alcohol test results and use them to support a finding of the degree of impairment in the absence of expert evidence linking the results on that issue: see R v. Letford, 150 C.C.C. (3d) 225 (Ont. C.A.) at para 22. Notwithstanding this point, the Ontario Court of Appeal in the same case effectively held that impairment may nevertheless be proved by other evidence in the absence of expert evidence on this point: see R v. Letford at para. 22.

[60] Blood alcohol readings, whether derived from breath samples or through the analysis of blood, indicate how much alcohol is in a person's blood at a given point in time. Based on this evidence, experts can project the amount of alcohol in a person's blood at an earlier time. An expert may also be able to testify to the effect that a person with a certain blood alcohol content will most certainly be impaired to operate a motor vehicle. See for example R v. Zanner, 1991 ABCA 247, [1991] AJ 844 (C.A.) and R v. Maharaj, 2007, 45 M.V.R. (5th) 14 (Ont. S.C.J.) at paras. 12 and 31 (per Durno J.).

[61] In cases involving allegations of "over 80" involving alcohol consumption and driving, the Crown has the benefit of numerous presumptions including the presumption of identity which relates back to the time of driving a blood-alcohol reading where the first sample is taken up to two hours later (see s. 258 of the Code).

[62] In an impaired by drug case, the Crown does not have the benefit of any presumption of identity and must relate evidence bearing on the issue of impairment by drug to the time of driving and it must do so in the traditional manner: R v. Jansen, [2010] O.J. No. 959 (C.J.) at para. 61.

[63] In an impaired driving case, evidence of impairment post driving (or at the time of the roadside stop) can be considered by the court in its assessment of the question of impairment at the time of driving: see R v. Maharaj, 2007, 45 M.V.R. (5th) 14 (Ont. S.C.J.) at para. 29 (per Durno J.). Whether the inference should be drawn that evidence of post driving impairment should apply to the accused's condition at the time of driving will depend upon the circumstances of the case including, for example, whether there is other evidence of impairment at the time of driving. In my view, this principle applies whether the allegation is impairment by alcohol or by drug.

[64] As Dr. Mayers pointed out in this case and is apparent from the case law, urine tests, unlike blood tests, do not show the amount of a drug in a person's blood or urine. Urine tests detect the presence of a drug in the urine. As indicated above, Dr. Mayers indicates in his report that "urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time."

[65] Dr. Mayers indicates that prior to being in the urine, the drug would have been previously in the blood and may still be in the blood. Dr. Mayers also explained that there comes a point in time when a drug is no longer in someone's blood but can be found in their urine and in those circumstances, it will have no effect on the individual.

[66] Accordingly, it must follow from Letford and from the science as outlined by Dr. Mayers, that when drugs are detected in a person's urine, absent expert evidence relating those results to impairment of the individual in question or absent other evidence of impairment, the mere presence of a drug in a person's urine does not prove beyond a reasonable doubt that a person was impaired by drug.

[67] The Crown submits, and I accept, that this is a circumstantial evidence case. The Crown submits in this case that the circumstantial evidence in this case proves beyond a reasonable doubt that the accused is guilty of impaired operation of a motor vehicle where the impairment is by drug. In broad terms, the Crown points to the following in support of this proposition:

(a) the evidence of Mr. Ali concerning his observations of Ms. Thompson in the gas station store and as she exited her vehicle on to Erin Mills Parkway;

(b) the evidence of Constable Stafford and in particular his observations of Ms. Thompson's driving and her behavior and presentation at the roadside and at the station. Related to this evidence is the evidence of Mr. Upreti;

(c) the evidence of Constable Kosher arising out of his drug evaluation test including his opinion that she was slightly impaired by a drug;

(d) the evidence of Dr. Mayers including his evidence as to the effects of GHB on a person including on their ability to drive a motor vehicle. The Crown specifically seeks to link Dr. Mayers' evidence about the effects of GHB to the other circumstances of the case including the observations made of Ms. Thompson by Mr. Ali, Mr. Upreti, Constable Stafford and Constable Kosher; and

(e) The conduct of Ms. Thompson on the drug evaluation video including what the Crown submits were untruths told by Ms. Thompson to Constable Kosher as concerns her drug consumption.

[68] I have already addressed some of the points raised by the Crown in my review of the evidence. First, as concerns the gas station evidence, I have concluded that Ms. Thompson was perfectly stable when she was in the gas station store and she was not "shaky" at that time. I do consider that it is part of the circumstantial evidence against Ms. Thompson that she exited onto Erin Mills Parkway and stopped for approximately 2 to 3 minutes for unexplained reasons although part of that time may have been due to a red light. The stopping of the car on the road for approximately 2 to 3 minutes, while somewhat strange, adds very little to the analysis in my view in light of my other findings concerning the gas station events and the evidence as a whole.

[69] Second, as concerns Constable Stafford's evidence (and the related evidence of Mr. Upreti), I consider that Ms. Thompson displayed poor driving in that she was swerving within her lane. However, the poor driving was limited. According to Constable Stafford, he said that the poor driving was "not that dramatic" and that it took place over a city block which I take to mean a short period of time (one minute). The fact that he did not consider that he had the basis to charge her for careless driving based on her driving alone provides some insight into the nature of the poor driving and suggests it was fairly limited. Ms. Thompson was stable at the roadside in terms of her walking and I have found that she was not clearly slurring her words.

[70] Third, as concerns the drug evaluation test, I have found that Constable Kosher had reasonable and probable grounds to make the urine demand and acted in good faith throughout. However, I have found that a number of the points that Constable Kosher thought indicated impairment did not indicate impairment to me. I have also found, contrary to the views of Constable Kosher, that Ms. Thompson's speech was not clearly slurred and that she properly followed instructions throughout the test.

[71] Fourth, the evidence of Dr. Mayers in my view did little more than raise a suspicion of impaired driving by drug. It confirmed that she had four drugs in her system. The 7-Amino would not have had any effect. The methamphetamine and amphetamine could have been taken weeks before and the Crown does not appear to rely on the presence of these drugs in her urine as part of its case. The court has no idea how much 7-Amino, methamphetamine or amphetamine were in Ms. Thompson's blood or urine at any time and therefore nothing can be said about the effects these drugs may have had on Ms. Thompson.

[72] Still considering the issue of Dr. Mayers' evidence, it is the presence of GHB that was detected in Ms. Thompson's urine that is the key drug from the Crown's perspective. However, we don't know how much, if any, of the drug was in her blood at the time of driving. According to Dr. Mayers, GHB would not have shown up in his report unless there was at least 50 mg per litre in her urine but Dr. Mayers gave no evidence as to the effects that 50 mg per litre in her blood would have upon Ms. Thompson or another person. The fact that GHB was detected in Ms. Thompson's urine taken at 2:13 AM leaves a myriad of possibilities as to when she first ingested GHB and the effects it would have on her, if any. Clearly she would have had to have taken it before she was pulled over at 11:17 PM. The Crown suggests that she must have taken it while she was in the parking lot at about 10:45 PM but there's absolutely no evidence of this and it is entirely speculative in my view. To give but one example, she could have taken the drug at 6 PM. By 9 PM it would be having no effect on her if it had any effect on her in the first place. It could be in her blood until midnight and then found in her urine for another approximately two hours after that until 2:13 AM when she gave her urine sample. Now the Crown would suggest that such a thesis is not possible or consistent with the other evidence including the poor driving at 11:17 PM and the failed drug evaluation test between 12:50 AM and 2:07 AM. I disagree that such a thesis is inconsistent with the other evidence given that Constable Stafford said her poor driving was "not that dramatic" and my observations that Constable Kosher's view that she was slightly impaired was highly subjective and dependent upon one's view of, among other things, her performance on a number of the physical tests which I consider she performed well on. In any event, as indicated, there are a myriad of other possibilities, none of which support the charge, as to when she took the GHB, how much she took, when it was in her blood, when it was in her urine and what the effects of it were on her ability to drive, if any.

[73] Fifth, it is true that it appears to me that Ms. Thompson was not truthful with Constable Kosher when she told him that she had taken one dose of lorazepam and three doses of clonazepam in the last 24 hours. Dr. Mayers found no lorazepam or clonazepam in her urine and indicated that he would have found them had they been taken as Ms. Thompson suggested. Having said that, the fact that she was not truthful with Constable Kosher is of limited assistance to the Crown in this case. People can lie for any number of reasons. The fact that she apparently lied does not prove that she was impaired by a drug at the time of driving nor does it provide much supporting evidence, if any, for this submission.

[74] I recognize that the Crown's onus is only to prove any degree of impairment from slight to great. However, that impairment, however slight, must still be proved beyond a reasonable doubt. In this case, the facts as I have found them are suspicious. Without limitation, that includes the poor driving, at least some poor performance on the drug evaluation test (the eye tests and the touching of the nose test), the presence of GHB and other drugs in her urine, untruths told to Constable Kosher about her consumption of drugs and the presence of a glass pipe in Ms. Thompson's coat which in my view was clearly a pipe used for smoking illegal drugs.

[75] On the other hand, there is a fair amount of evidence which raises a reasonable doubt in my mind. First and foremost, Ms. Thompson appears normal and stable on the store video 30 minutes before she is pulled over, she is stable in her walking at the roadside and at the station, she performs well in the court's view on a number of the drug evaluation tests particularly the stability tests namely the walk and turn test and the one leg stand test, she follows instructions well on the test and interacts appropriately with Constable Kosher during the video. I have also found that her speech was not clearly slurred at any time she was in police custody. Dr. Mayers' evidence is also of assistance to Ms. Thompson as it leaves numerous reasonable possibilities including that the amount of GHB in Ms. Thompson's blood had no effect on her at all beyond euphoria or, if it did have a significant impairing effect on her at some point, that it had no effect on her ability to drive at the time of driving. Further, Dr. Mayers' answer to the hypothetical question in which she suggested the "likely candidate is GHB" was specifically linked to the assumed facts of weaving the vehicle, swaying, balance problems and slurred speech. I have found as a fact that there were no balance problems, the swaying on the drug test was very minor (two inches on one occasion and she was not instructed not to sway) and that her speech was not clearly slurred. Accordingly, this significantly undermines the "likely candidate is GHB" answer by Dr. Mayers to the hypothetical question, separate and apart from the other limitations of this answer and his evidence generally.

[76] I note as well that Constable Kosher did not give the opinion that Ms. Thompson was impaired by drug at the time of driving. He gave the opinion that he had reasonable and probable grounds to believe that her ability to operate a motor vehicle was impaired by drug at the time of the drug evaluation test. I note as well that his conclusion at that time was only that she was "slightly impaired". I recognize the point I made above in reviewing the case law that evidence of post driving impairment can be used as a basis for an inference that the person was impaired at the time of driving. However, it depends on the particular circumstances of each case. In my view, it would not be appropriate in this case to say that the subjective views of Constable Kosher that she was "slightly impaired" between 1 and 2 AM should, on its own or in conjunction with other evidence, be used to infer that she was slightly impaired to operate a motor vehicle 1 ½ to 2 ½ hours earlier (immediately before she was pulled over at 11:17 PM).

[77] The obligation of the court is to consider all of the evidence. I am not satisfied, taking into account all of the facts as I have found them, that the Crown has proved beyond a reasonable doubt that Ms. Thompson's ability to operate a motor vehicle was impaired by drug at the time she was pulled over at 11:17 PM on January 20, 2013.

[78] The police and the Crown have a very difficult challenge when it comes to drivers who are charged with impaired driving especially where the impairment is alleged to be by a drug. There can be no doubt that driving a motor vehicle when one's ability to do so is impaired by a drug is every bit as dangerous as driving while impaired by alcohol. However, while I am sympathetic to the challenge faced by police, the defendant before this court is charged with a criminal offence which must be proved beyond a reasonable doubt. In my view, notwithstanding the suspicious circumstances in this case, the Crown has not proved its case beyond a reasonable doubt.

CONCLUSION

[79] For the reasons given, the Crown has not proved its case beyond a reasonable doubt. There will be an acquittal.

Released: December 4, 2015

Justice Paul F. Monahan