Court Information

Court: Ontario Court of Justice

Information No.: (Not specified)

Between: Her Majesty the Queen v. Earl Coulas

Decision Rendered By: The Honourable Justice P.O. Griffiths

Date: February 4, 2016 at Ottawa, Ontario

Appearances

For the Crown: Mr. M. Geigen-Miller, Counsel

For the Accused: Mr. R. Carew, Counsel

Reasons for Judgment

GRIFFITHS, J., (Orally)

Mr. Earl Coulas is charged that on June 25th, 2014 in the City of Ottawa he operated a motor vehicle while his ability to do so was impaired by a drug. He has had a trial in front of me on that charge.

The issue in the trial is quite straightforward. It is acknowledged that Mr. Coulas had marijuana in his system at the time of his arrest. The issue is whether his ability to operate a motor vehicle was impaired by marijuana.

I had the benefit in the trial of the evidence of Constable Lisa Grison who is a police officer in the Ottawa Police Service and is both a designated breathalyzer technician and a designated officer as a drug recognition evaluator.

On the 25th of June she was on a routine traffic patrol set up on an intersection in a residential area of Ottawa where I infer there had been some difficulties with people going through the stop sign. So she was at that intersection around the time of 8:00 a.m. She observed a vehicle driven by Mr. Coulas to come to what was referred to as a rolling stop but in fact there was no stop. He rolled slowly through the intersection without stopping. And as a result the officer turned on her emergency lights and siren and stopped Mr. Coulas's car. She testified that it took him about a half a block to stop and that she thought that was a little long. But in the end nothing really hung on how long it took him to stop his car.

So she exited the police vehicle and she came up to the driver's side window where Mr. Coulas was the sole occupant. The driver's window was rolled up and she tapped on the window and signalled to Mr. Coulas that he should lower the window and he did so. As the window was lowered the uncontradicted evidence is marijuana smoke came out of the car. It was so obvious in terms of its appearance and its odour that the officer's first question to Mr. Coulas was "Were you smoking?" And he answered "Just a small j" and thereby acknowledged that he had been smoking.

Later at the police station Mr. Coulas, as a part of a drug influence evaluation, gave a statement to the officer that he had smoked marijuana back in his backyard at home. Mrs. Coulas testified and said that smoking in the backyard was where Mr. Coulas would normally retire to smoke a marijuana cigarette. She did not recall him smoking a cigarette that morning in the backyard but it appears that Mr. Coulas has said that he did. So the marijuana cigarette in the car was not his first joint that morning.

Indicia of Impairment

The indicia of impairment for marijuana is very different from the indicia of impairment for alcohol. The courts are quite familiar with the indicia of impairment for alcohol. They are often blindingly obvious. The indicia include red, watery eyes, odour of alcohol on the breath, slurring of speech, unsteadiness on the feet. Sometimes aggressive behaviour. That's not the indicia of impairment for marijuana.

I had the benefit in the trial of the evidence of Doctor Karen Woodall, a toxicologist with a PhD in pharmacology from the Centre of Forensic Sciences. She testified that the physical signs of marijuana use were much subtler than the physical signs of alcohol abuse. Marijuana use would frequently be accompanied by red eyes, eyelid tremors, the individual was frequently relaxed and talkative, and she testified it is not easy to tell if somebody is impaired by marijuana. She said there is a marked impact on the time perception of somebody who was under the influence of marijuana which can impair one's ability to drive. She further testified that marijuana has a marked impact and impairs an individual's ability to perform tasks requiring divided attention. She told the Court also that while the level of impairment is impacted by the strength of the THC chemical in the plant, and the pattern of smoking, the effect of marijuana smoke is greatest within a half-hour of partaking of the drug.

Drug Influence Evaluation

Mr. Coulas was partaking of the drug at the time he was stopped by the police. And I find that the effect on him at that time was marked and impaired his ability to drive.

I find I am supported in that conclusion by his performance on the drug influence evaluation that he submitted to back at the police station about an hour to an hour and a half after he was stopped.

The particular tests that I want to focus on are not those that cannot be explained by a layman. There is a process of taking the pulse a number of times and measuring blood pressure. I cannot draw any conclusion from the results of those tests. But there were, in particular, three divided attention tests that were performed by Constable Grison at the station on Mr. Coulas that in my view show that his attention was clearly divided. And I have no doubt on that. And support that his ability to operate a motor vehicle was impaired by the drug marijuana.

Mr. Coulas is a gentleman in his late sixties who had some trouble with balance. And one of the tests is a heel-to-toe walk down the hallway of the police station for nine steps and turn around and walk heel-to-toe back. Mr. Coulas simply could not perform that test. He kept falling off to the side, raising his arms rather than keeping them at his side. I do not draw any conclusions from his inability to perform that test or a subsequent test where he stands on one foot at a time, holds the other foot in the air and has to balance. And he had a terrible time doing that. I find both of those tests would be difficult for somebody with arthritis, somebody who was out of shape. So I draw no conclusion from his poor balance. In particular, I accept the evidence of Mrs. Coulas that he has poor balance in general.

But there are other aspects to those tests that I think tell against Mr. Coulas. There is what is described as a modified Romberg balance test where he was directed to stand erect, lean his head back, close his eyes and estimate 30 seconds. Well, he got the stand straight and put his head back and close his eyes all right, but he was not even close to estimating 30 seconds. In fact, his guess was that 30 seconds had expired after only 10 seconds.

On the heel-to-toe walk nine steps one way down the hall, turn around, nine steps back, there were several instructions. He was told to do the heel-to-toe and it was demonstrated and he was told to count the steps. Counting the steps was part of the test dividing his attention. He did not count at all on the first nine which actually were not nine steps. He only took seven steps. He turned around and on the return trip, as if to make up for it, he took 11 steps.

There was a test called a one-leg stand where he was to stand on one leg, each leg individually, for 30 seconds and he was to count out the 30 seconds by 1,000s. Again, a divided attention: balancing on one leg while counting by thousands - one-1,000, two-1,000, three-1,000. Well, he only got to 11 on one leg and on the other leg he got to 21. Never counted to 30. In my view, those tests provide overwhelming support that Mr. Coulas was under the influence of marijuana to such an extent that his ability to perform divided attention tasks was impaired. Driving is a divided attention task.

Conviction

And I am satisfied beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by a drug, in this case marijuana. And there will be a conviction. The marijuana charge of possession, no submissions were made, and there will be a finding of guilt on the marijuana charge.

Decision Approved by Griffiths, J. February 16, 2016