Court Information
Ontario Court of Justice
Date: September 2, 2016
Court File No.: Newmarket 15-06132
Between:
Her Majesty the Queen
— and —
Reza Abbasi-Rad
Before: Justice Joseph F. Kenkel
Heard: July 21, 22, 2016
Judgment: September 2, 2016
Counsel
Mr. McCallion — counsel for the Crown
The defendant Mr. Abbasi-Rad — on his own behalf
Decision
KENKEL J.:
Introduction
[1] Mr. Abbasi-Rad was driving with a tail light out. That caught the attention of the investigating officer who then queried his plate and found it didn't match the vehicle. The officer spoke to the accused after he stopped at a nearby Tim Horton's parking lot. Based on the officer's observations and discussion with the accused he reasonably came to believe that the accused had been operating his vehicle while his ability to drive was impaired by marijuana consumption. The accused was arrested. Following a Drug Recognition Evaluator (DRE) examination at the station he was charged with driving while impaired by drug.
[2] The Crown's case is based on the evidence of the arresting officer and the DRE officer. The accused did not call evidence. There's one issue – whether the Crown has proved the impairment in the ability to drive by drug as alleged.
The Arresting Officer
[3] Constable Storrey followed the accused's car Southbound on Yonge and noticed a tail light was out. He then queried the plate and found out it wasn't registered to a particular vehicle. The accused turned into a plaza and parked in front of Tim Horton's. The officer spoke to him about the registration and tail light in the parking lot.
[4] In cross-examination, Constable Storrey confirmed that there were no "imperfections" in the driving on Yonge Street. There was no problem with the turn, the driving in the parking lot or the manner of parking and location in which the accused parked within a marked space.
[5] The accused's statements at the roadside were relevant to grounds but are not available to prove the alleged offence.
[6] There was evidence of marijuana use in the officer's observation of the odour of fresh marijuana and burnt marijuana coming from the vehicle and the presence of wrapping papers. He seized marijuana from the vehicle on a search incident to arrest.
[7] Constable Storrey noted that the accused moved slowly and had a tired appearance. He "wasn't unsteady" but was lethargic. Later at the station in better lighting the officer noticed some redness in the accused's eyes but otherwise the accused's condition appeared similar to what he'd observed at the roadside.
[8] Constable Storrey agreed in cross-examination that he had been shown the accused's marijuana license at the time.
The DRE Examination
[9] Constable Meffe saw the accused over an hour after his arrest and noted that the accused's movements were slow as Constable Storrey had told him when they discussed grounds for the arrest and DRE demand. Constable Meffe conducted the 12 step Drug Recognition examination as provided for in the Criminal Code.
[10] In step 1 of the test the officer was able to confirm that there was no alcohol present in the accused's system. Step 2 is an interview with the arresting officer. The interview in Step 3 revealed that the accused had existing injuries to his leg and back due to a motor vehicle collision. He was under the care of a doctor and receiving medications. The accused's pulse was normal and he correctly answered a question about the time.
[11] At step 4 Constable Meffe tested the tracking ability of the accused's eyes and found that to be normal. He conducted a Horizontal Gaze Nystagmus and Vertical Gaze Nystagmus test and they were normal with no nystagmus present. He conducted a convergence test to see if the accused could converge or cross his eyes. Thirty percent of the sober public cannot do this test. The accused's left eye converged to the centre but the right eye did not fully converge.
[12] In step 5 there are four tests – the Romberg balance test, the walk and turn, one leg stand and the finger to nose. In the modified Romberg test the accused stood with heels and toes together, eyes closed and head back. The accused was then asked to estimate 30 seconds and the officer timed his estimate at 38 seconds. The officer concluded the accused had a "slow internal clock" as he understood that the average person would be off +/- 5 seconds. On the heel-to-toe test the officer marked a "fail" as the accused raised his arms 4 times to maintain balance and he took only 17 of the 18 steps he'd been instructed to take. The accused performed poorly on the one legged stand test. On the finger-to-nose test the accused performed well except he used the pad of his finger instead of the tip as instructed on certain attempts and once he touched just below his nose.
[13] Step 6 monitors vital signs including a second pulse check. His blood pressure was slightly elevated which might be a sign of marijuana impairment, but the officer fairly noted it is not uncommon to have elevated blood pressure when being examined in that manner in a police station. The accused's body temperature and pulse were normal. Step 7 involves examination of the eyes in a darkened room. The accused's pupil size, dilation and reaction to light were all normal. The officer explained cannabis might be expected to affect pupil size, other drugs such as central nervous system stimulants will always affect pupil size.
[14] An examination of the accused's muscle tone in step 8 showed nothing abnormal. The step 9 examination found no injection marks or unusual body signs. The accused's third pulse test measured very slightly above normal (92 where 90 is the top of the normal range). The DRE examination concluded with the 10th step which was an interview with the accused about his drug use that day. The officer determined that the accused had taken opioid prescription medication at 11:30 am that morning at a pharmacy and marijuana later at 9 pm at home.
[15] Constable Meffe reviewed his examination results and concluded that performance in the 9 categories related to cannabis together showed him that the accused was "impaired by cannabis". He made demand for a urine sample based on his conclusion.
Submissions of the Parties
[16] The Crown submits that the evidence as a whole shows the accused's ability to operate his vehicle was impaired by cannabis as alleged. The defendant submits the evidence shows he was a licensed medical user of marijuana and was not impaired at the time of driving.
Analysis
[17] The accused was receiving an opioid medication daily pursuant to prescription and he was a licensed medicinal user of marijuana. I agree with the Crown that neither circumstance authorizes a person to operate a vehicle while impaired by a drug. Even where a person follows a prescription precisely, if their ability to operate a motor vehicle is thereby impaired they must not drive during that time. There is no prescription or medical license exception to s.253 of the Criminal Code.
[18] Some of the deficiencies noted by the DRE officer were slight – a time estimate 3 seconds off what the officer understood would be an average range, taking 17 steps instead of 18 as instructed (9 out, 9 back), a pulse of 92 BPM where 90 is the end of the normal range. I'm aware of the need to view evidence as a whole and not to simply dismiss single items of evidence that seem minor or that might bear other explanations, but that caution does not apply to deviations so small that they can't reasonably add anything on the issue of impairment.
[19] Seven of the nine physical indicators the officer viewed as relevant to marijuana impairment were normal. The other two (incomplete convergence and slightly higher blood pressure during testing at the station) were not significantly off. As the officer explained, the many normal results are not necessarily inconsistent with marijuana impairment as some would be expected to be normal for that drug. While numerous normal results may help eliminate other drugs or may support the defendant's position they can add nothing to the Crown's case for impairment.
[20] There were three performance testing deficiencies of substance – the failure of one eye to fully converge, the failures on the heel-to-toe test, and the one-leg-standing test. The accused's balance issues must be considered in context given his injuries from a prior accident. His drug consumption that day was prescribed treatment related to those injuries. I note that by the time of the DRE examination the officer found no evidence of an active opioid drug from consumption that morning.
[21] At the roadside the accused's movements were slow and he appeared tired. It was late at night and the arresting officer agreed with the accused's suggestion in cross-examination that the tired look he saw could reasonably be consistent with fatigue.
[22] There's no evidence of bad driving. The accused did not weave while driving on Yonge street. He was not driving too fast or too slowly. The accused turned his vehicle into the parking lot and parked in a designated spot all without any difficulty. Aside from slow movements the arresting officer stated he was not unsteady on his feet. The accused understood their conversation, understood the multi-step testing procedure at the station and responded appropriately to both officers.
[23] The arresting officer's evidence as to the continuity of the accused's presentation provides some link between the evidence from the DRE examination and the accused's ability to operate his vehicle an hour and twenty minutes earlier.
[24] The DRE officer's opinion as to the accused's impairment was received pursuant to R v Bingley 2015 ONCA 439 leave granted [2015] SCCA No 361. Aside from the statutory deemed expertise, opinion evidence from impairment is admissible from any witness. See: R v Graat, [1982] SCJ No 102. The DRE officer was able to explain the purpose of the tests and in particular the way certain tests isolate for the presence of certain drugs. His evidence established a reasonable basis for the urine test.
[25] Beyond that though, there was little explanation about how the accused's performance on various DRE tests related to the issue of alleged impairment in the ability to drive. What does it mean if later during a test, one eye converges and the other doesn't? Something? Nothing?
[26] Even with some of the physical motor tests it's not plain how the results relate to impairment at the time of driving. There was no evidence about the relationship, if any, between performance on the one-legged-stand test and the ability to drive. With no baseline as to how the average sober person performs and no baseline as to how this particular accused with his injuries performs sober as opposed to when he's in an impaired state, it's not plain what to make of the results.
[27] Common sense inferences are available of course where the accused exhibits physical or mental errors performing simple tasks where the errors are not reasonably explained otherwise. Combined with other circumstances such as similar observations at the roadside, no intervening drug or alcohol consumption since arrest, evidence of prior drug use, reasonable inferences may be available regarding the physical and mental abilities required to drive safely. It's harder to know what to make of other DRE test errors, but all circumstances are considered here in assessing the overall case for impairment.
[28] The impact of the few significant deficiencies observed in the DRE examination is much reduced in this case where the accused's prior injuries reasonably provide an alternate explanation. The accused's slow movements did not manifest in any observed driving deficiency and the defendant is correct that a number of circumstances indicate his ability to operate his vehicle was not impaired even to a slight degree at the time of operation.
Conclusion
[29] While I find that both officers had reasonable grounds for the investigative steps they took, considering the evidence as a whole I find that the Crown has failed to prove beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired as alleged. The charge is dismissed.
Released: September 2, 2016
Justice Joseph F. Kenkel