Court File and Parties
Ontario Court of Justice
Date: 2016-10-03
Court File No.: Brampton 15-7122
Between:
Her Majesty the Queen
— and —
Amrit Kler
Before: Justice J.M. Copeland
Heard on: May 31, June 1 and June 7, 2016
Reasons for Judgment released on: October 3, 2016
Counsel
C. Hackett — counsel for the Crown
R. Mann — counsel for the defendant Amrit Kler
Judgment
COPELAND J.:
Introduction
[1] Mr. Kler is charged with operating a motor vehicle while his ability to do so was impaired by a drug. The events arise out of the stop of Mr. Kler at a static RIDE check at the entrance to a plaza parking lot by Constable Bell.
[2] Counsel for Mr. Kler filed an application under ss. 8 and 9 of the Charter. The lawfulness of the initial stop is not contested, but counsel alleges lack of reasonable suspicion to make the standard field sobriety test ("SFST") demand, and lack of reasonable and probable grounds to make the drug recognition evaluation ("DRE") and urine sample demands. The matter proceeded as a blended trial and Charter voir dire. It is not contested that Mr. Kler was operating a motor vehicle at the relevant time. The only issues in dispute are the Charter claims, and whether the Crown has proven beyond a reasonable doubt that Mr. Kler's ability to operate a motor vehicle was impaired by a drug at the time he operated the motor vehicle.
[3] The Crown bears the burden to prove the elements of the offence charged beyond a reasonable doubt. On the Charter issues, Mr. Kler bears the onus of proof to establish that his Charter rights were infringed. However, with respect to the allegation that his s. 8 rights were infringed, because the SFST demand and the DRE and urine sample demands are warrantless searches, the burden lies with the Crown to justify the searches as reasonable on a balance of probabilities: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Haas, (2005), 76 O.R. (3d) 737 at paragraphs 24-38 (ONCA).
1. Was there reasonable suspicion to make the SFST demand?
[4] Counsel for Mr. Kler argues that Constable Bell did not have reasonable suspicion to make the SFST demand to Mr. Kler.
[5] The test for an officer to make a demand for a person to perform SFSTs requires that the officer who makes the demand have a reasonable suspicion that at the time of the driving, the person has alcohol or a drug in his or her body (s. 254(2)). Reasonable suspicion is something more than a mere suspicion, and something less than reasonable and probable grounds. Like reasonable and probable grounds, reasonable suspicion is an objective standard that requires "objectively discernable facts, which can be subject to independent judicial scrutiny". However, reasonable suspicion is a lower standard than reasonable and probable grounds, looking at reasonable possibility, rather than reasonable probability. The trial judge must consider whether the reasonable suspicion threshold is met in the totality of the circumstances. It is a fact-based, flexible assessment, grounded in common sense and every day experience: R. v. Valere, 2013 ONCJ 594 at paras. 11-13, and cases cited therein.
[6] It is important to note that the fact about which an officer must have reasonable suspicion is that the person has alcohol or a drug in their body, not that the person is impaired. Thus, the issue is does the officer have a reasonable basis to suspect that the person has alcohol or a drug in their body.
[7] Constable Bell testified that he reasonably suspected that Mr. Kler was impaired by a drug based on the following:
When Constable Bell stopped Mr. Kler and the RIDE check and spoke to him, he seemed agitated and his speech was rapid.
Mr. Kler was saying things to Constable Bell at the time of the initial stop that did not make sense in the circumstances and seemed scattered. Some examples were: Mr. Kler wanted to tell Constable Bell about some guys he wanted arrested. He also said something about an uncle who was a Sergeant in New York and about a police foundations course.
When Constable Bell asked Mr. Kler about whether he had consumed any alcohol, he was not responsive, and Constable Bell had to raise his voice to get Mr. Kler's attention.
Constable Bell did not smell an odour of alcohol from Mr. Kler.
[8] I find that Constable Bell was a credible witness. He appeared to be fair in his evidence. For example, with respect to both the SFSTs and the DRE examination[1], he admitted that Mr. Kler performed well on some aspects of the tests. As I will explain in relation to the issue of proof of impairment of the ability to operate a motor vehicle, although I do not share all of Constable Bell's conclusions, and to some extent did not observe everything he said he saw when I reviewed the video of the DRE examination, I find that he was a truthful witness.
[9] As noted above, the test for reasonable suspicion is whether on the evidence there is a reasonable possibility that the person has alcohol or a drug in their body. I find that in all the circumstances, in particular those outlined at paragraph 7 above, Constable Bell had reasonable grounds to suspect that Mr. Kler has alcohol or a drug in his body when he made the SFST demand.
2. Were there reasonable and probable grounds to make the DRE and urine sample demands?
[10] Counsel for Mr. Kler argues that Constable Bell did not have reasonable and probable grounds to make the DRE and urine sample demands.
[11] The reasonable and probable grounds standard has both a subjective and an objective aspect. The subjective aspect requires that the officer have an honest belief that the suspect committed the offence. The objective aspect requires that a reasonable person in the position of the officer would be able to conclude that there were reasonable and probable grounds for the arrest and DRE demand (and later urine sample demand). Stated differently, was the officer's belief supported by objective facts? The reasonable and probable grounds standard is not an onerous one: R. v. Bush, 2010 ONCA 554 at paras. 36-58; R. v. Censoni, [2001] O.J. No. 5189 at paras. 29-48 (S.C.). In the context of a demand to engage in a DRE examination under s. 254(3.1), the officer must have reasonable and probable grounds to believe that the individual's ability to drive was even slightly impaired by a drug or a combination of alcohol and a drug, and that he or she has driven or had care or control of a motor vehicle in the preceding three hours. The test for a urine sample demand is also reasonable and probable grounds (see 254(3.4)). A trial judge considering whether reasonable and probable grounds existed must consider the totality of the circumstances.
[12] Constable Bell testified that he had reasonable and probable grounds to make the DRE demand based on the following:
His observations of Mr. Kler at the time of the initial stop (described above at paragraph 7) and during the SFSTs.
Mr. Kler's performance on the SFSTs. In particular, Constable Bell noted that in the walking a straight line part of the test, Mr. Kler counted steps faster than he took steps, and as a result took the wrong number of steps, ended up on the wrong foot at the end of the line (and as a result turned in the wrong direction), he twice stopped walking between steps, he raised his arms, which he had been instructed not to do, and he lost his balance while Constable Bell was giving him instructions. During the one leg stand, Mr. Kler put his foot down 3 times and swayed while balancing.
I note as well that Constable Bell considered the full circumstances before him, including that Mr. Kler performed normally on some aspects of the SFSTs. The aspects on which he performed normally were that in the walking a straight line test Mr. Kler did not miss a heel or toe. On the one-leg stand Mr. Kler did not hop at all.
Constable Bell testified in cross-examination that he provided clear verbal instructions to Mr. Kler for the SFSTs, and demonstrated what Mr. Kler was to do. He also testified that he used a painted line to mark the parking as the straight line, so the line was clear, and also that the ground was paved and flat.
Constable Bell also explained that he asked medical questions of Mr. Kler, checked that his pupils were equal in size, and performed an eye tracking test (i.e., following an object with the eyes) as part of the SFSTs in order to rule out a cause of abnormal performance on the SFTs other than impairment such as a head injury or previous brain injury.
[13] I note that the test for the DRE demand and for the urine sample demand is the same, reasonable and probable grounds. Because the urine sample demand was made after the DRE examination was done, in addition to the factors I have just listed, Constable Bell also relied on the DRE examination results in his grounds to make the urine sample demand.
[14] As I have explained above, I find that Constable Bell was a credible witness.
[15] Although I have some concerns with respect to the subjectivity of both the SFST and DRE examinations, and also the fact that Mr. Kler had a mix of normal and abnormal results on the DRE examination, which I will discuss in more detail in relation to the elements of the offence, I find that Constable Bell's observations from the SFSTs and all the surrounding circumstances were sufficient to constitute reasonable and probable grounds to make the DRE demand. I further find that the DRE examination results in the context of all of the circumstances were sufficient to constitute reasonable and probable grounds to make the urine sample demand.
3. Has the Crown proven beyond a reasonable doubt that Mr. Kler's ability to operate a motor vehicle was impaired by a drug at the time he was driving?
[16] In order to prove the offence, the Crown must prove beyond a reasonable doubt that Mr. Kler operated a motor vehicle, and that at the time he did so his ability to operate a motor vehicle was impaired by a drug. As in cases involving impairment by alcohol of the ability to operate a motor vehicle, when the alleged impairment is by a drug, if the Crown proves beyond a reasonable doubt any impairment caused by a drug of the ability to operate a motor vehicle, from slight to great, then the offence will be proven.
[17] A few precisions with respect to the elements of the offence and evidence are helpful at this stage. The Crown is not required as an element of the offence to prove a specific drug as the cause of the impairment.
[18] Further, the evidence of the qualified evaluating officer regarding the DRE examination is admissible as relevant to proof of impairment by a drug without a Mohan voir dire: R. v. Bingley, 2015 ONCA 439 at paras. 36-55 (leave granted to the Supreme Court of Canada. The appeal has not been heard as of the date of these reasons). Constable Bell is qualified as an evaluating officer for DRE examinations. He has held that qualification since July 2012, and has also been a DRE instructor since February 2015.
[19] Bingley also holds that the evaluating officer's evidence about the DRE examination is relevant and admissible not only on this issue whether there were reasonable and probable grounds to make the urine sample demand, but also on the ultimate issue of proof that the defendant's ability to operate a motor vehicle was impaired by a drug. However, Bingley, and decisions of this court in relation to drug impaired operation of a motor vehicle are also clear that it is up the trial judge to assess the weight to give to DRE evidence, and to assess whether all of the evidence proves impairment by a drug of the ability to operate a motor vehicle beyond a reasonable doubt: Bingley at para. 49; R. v. Dejesus, 2014 ONCJ 489 at para. 8; R. v. McCarthy, 2014 ONCJ 75 at para. 20-22; R. v. Biagi, 2014 ONCJ 153 at paras. 49, 177-179.
[20] Crown counsel made her submissions on the basis that I could use the toxicology evidence to prove presence of a drug in Mr. Kler's body, and use the DRE test results and observations by Constable Bell to prove impairment of the ability to operate a motor vehicle. I am not sure if Crown counsel meant to submit that I should consider these bodies of evidence separately. However, in looking at the evidence, I consider all of the evidence together with respect to both issues (i.e., whether a drug was present, and whether Mr. Kler's ability to operate a motor vehicle was impaired by a drug).
[21] Given the body of evidence in this trial, the issue is whether the DRE examination evidence, plus Constable Bell's observations of Mr. Kler, plus the toxicology evidence is enough to persuade me beyond a reasonable doubt that Mr. Kler's ability to operate a motor vehicle was impaired by drugs, in the absence of any evidence of problems with his driving. I note that I do not consider the SFST evidence in determining if the Crown has proven impairment of the ability to operate a motor vehicle beyond a reasonable doubt, because that test was done at the roadside (in this case in the parking lot) before Mr. Kler was afforded the right to counsel. As Ms Hackett fairly conceded, like an approved screening device result, the SFSTs are only admissible with respect to the issue of reasonable and probable grounds to make the DRE and urine sample demands: R. v. Tran, 2015 ONSC 4688 at paragraphs 30-34.
Constable Bell's evidence regarding the DRE tests and his observations
[22] Constable Bell gave evidence in relation to the DRE examination he performed on Mr. Kler at the police division. In addition, the video of the examination was tendered as evidence. I have carefully considered that evidence, as well as Constable Bell's conclusion based on the DRE examination that Mr. Kler's ability to operate a motor vehicle was impaired by a drug. I am, of course, not bound by his conclusion, and must assess the DRE examination in the context of all of the evidence.
[23] Without summarizing all of the DRE examination evidence, a number of aspects of how Mr. Kler performed on the DRE evaluation and how that performance was assessed by Constable Bell lead me to have concerns about its probative value as evidence that Mr. Kler's ability to operate a motor vehicle was impaired by a drug. Essentially, my concerns about the DRE examination evidence are threefold, and I will explain each in turn.
[24] First, many aspects of Mr. Kler's performance in DRE examination are normal – thus, the results cut both ways. For example, Constable Bell did not observe any resting nystagmus, horizontal gaze nystagmus, or vertical gaze nystagmus in Mr. Kler's eyes. Mr. Kler performed normally on modified Romberg balance test requiring the person to estimate 30 seconds while standing with feet together, head back and eyes closed (Constable Bell described Mr. Kler's time estimate of 29 seconds instead of 30 as "actually quite good"), although Constable Bell did note some swaying on the part of the defendant. Although Constable Bell was of the opinion that there were some problems with the first half of Mr. Kler's straight line walking test (see paragraph 25 below), he testified that after the turn, Mr. Kler performed the second half of the straight line walking test "without any difficulty, without missing a heel-to-toe, without stopping, without stepping off the line, and without raising his arms". Although Constable Bell testified that Mr. Kler swayed and used his arms to balance on the one leg stand test, Mr. Kler was able to stand on each leg for 30 seconds without putting his foot down. Constable Bell testified that when he examined the size of Mr. Kler's pupils in light and in the dark, they were within the normal range in size, and reacted normally to light.
[25] Second, for some aspects of the DRE examination, when I review the videotape of the examination I do not see some of the problems in Mr. Kler's performance that Constable Bell testified he observed. I note that I do not take issue with the honesty of Constable Bell's evidence. However, the DRE examination is subjective in many ways, and having reviewed the video of the examination, I do not share Constable Bell's observations of all aspects of the test. In coming to this conclusion, I have considered that sometimes a video may not pick up every aspect of an interaction that may be visible in person. However, I find that where my observations differed from Constable Bell's, the video was sufficiently clear for me to draw that conclusion. For example, in relation to the test of walking a straight line, I did not observe the problems in Mr. Kler's performance that Constable Bell testified. Constable Bell testified that he observed Mr. Kler step towards the right once, and reach towards the left once, which he viewed as balance problems. He testified that Mr. Kler missed one heel-to-toe in the first 9 steps, and that he observed a pause between 2 steps. On my review of the portion of the video with the walking a straight line test, Mr. Kler took the correct number of steps as he counted, and his balance looked fine. His turn may have been a bit off, but not significantly.
[26] Third, I find that some aspects of the test either the test itself or Constable Bell's administration of it are nitpicky to the point that I do not find it probative of impairment. I will give two examples of this. Constable Bell testified that in the finger to nose test, 5 times out of 6, Mr. Kler touched the tip of his nose with his finger, but 4 of those times he did so with the "pad" of his finger instead of the "tip" as he was instructed (for the other 2 occasions, once he touched his nose with the tip of his finger, and once he touched his upper lip with the "pad" of his finger). I have reviewed the video of the DRE examination. On the 4 occasions where Constable Bell says Mr. Kler touched the tip of his nose but used the "pad" of his finger instead of the "tip", Mr. Kler touched his nose with the end of his finger, in the sense that he touched it with the end part of his finger before the first knuckle. Constable Bell's instructions to Mr. Kler did not explain what he meant by "tip" of his finger or that if he touched with the "pad" of his finger it would not count. I expect that many people, when asked to do something with the "tip" of their finger would understand that to mean any part of the end of their finger up to the first knuckle, in the absence of an explanation that the "tip" means only the very tip near the top of the fingernail. Thus, I find that Mr. Kler largely did follow the finger to nose command successfully. Just to be clear, what I am talking about is not the one time that Mr. Kler apparently did not touch his nose, but touched his upper lip. Rather, I am referring to the 4 times he touched his nose, with his finger, and clearly with the end of his finger in the sense that it is before the first knuckle of his finger, but did not touch it with the very tip of his finger.
[27] Similarly, with respect to the one leg stand, as I have noted, Mr. Kler was able to stand on one leg on each side for 30 seconds without putting his foot down. In respect of Constable Bell's concern that Mr. Kler swayed and at times used his arms to balance, many sober people would do the same if asked to stand on one leg for 30 seconds.
[28] I note that DRE evidence does not benefit from the presumptions that intoxilyzer evidence does in the Criminal Code. In light of present limitations on quantitative testing in relation to issues of impairment by drugs, DRE testing is much more subjective evidence than the results of a breathalyzer test: Bingley at para. 49; Dejesus at para. 10; McCarthy at para. 27; Biagi at para. 180. Thus, although I find that Constable Bell was an honest witness, and I accept that he performed the DRE examination according to his training, I have concerns about how probative the evidence of Mr. Kler's DRE examination is with respect to whether his ability to operate a motor vehicle was impaired by drugs. I am unable to draw the same conclusions from the DRE as Constable Bell draws. As I am required to, I consider the DRE examination in the context of all of the evidence in assessing whether the Crown has proven impairment by a drug of the ability to operate a motor vehicle beyond a reasonable doubt. This brings me next to consider the evidence or lack of evidence with respect to manner of driving.
[29] With respect to driving observations, there is no evidence of problems with Mr. Kler's driving; indeed, the driving that Constable Bell observed was normal and appropriate. Constable Bell testified that he would have made a note if there had been any problem with the defendant's driving. Constable Bell did not observe Mr. Kler's driving prior to Mr. Kler pulling into the driveway to the plaza. Constable Bell testified that Mr. Kler drove normally into plaza driveway. Mr. Kler stopped normally at RIDE check as requested. After a brief conversation (during which, as noted above, Mr. Kler spoke rapidly and said some things that Constable Bell found strange), Constable Bell directed Mr. Kler to drive his car from the driveway to a parking space. Mr. Kler moved car normally into parking area when requested to do so by Constable Bell. Thus, there is no evidence showing that Mr. Kler's manner of driving was anything other than normal. I have considered that the evidence with respect to Mr. Kler's manner of driving is very limited. But what evidence there is of manner of driving shows that in the time he was observed driving by Constable Bell, Mr. Kler was operating the motor vehicle in a normal manner. I now turn to the toxicology evidence.
The evidence of the toxicologist
[30] Crown counsel called Laura Gorczynski to give toxicology evidence. I qualified Ms Gorczynski as an expert in the analysis of drugs, alcohol and other poisons in biological samples; in the ingestion, absorption, distribution and elimination of drugs, alcohol and poison in the human body; and on the impairing effect of drugs, alcohol and poison on the human body and on the ability to operate a motor vehicle. At the outset, I note that I found Ms Gorczynski to be a credible witness. She gave her evidence clearly and fairly. In particular, Ms Gorczynski was very careful to explain the limits of what the toxicology testing of the urine sample done in this case is able to prove.
[31] Ms Gorczynski gave evidence that Mr. Kler's urine sample was tested for various drug metabolites. Numerous different drug metabolites were found in his urine. Ms Gorczynski testified that for most of the drugs, the presence of the various metabolites showed that Mr. Kler consumed certain types of drugs some time previously, but that the presence in the urine could not show that he had taken a particular drug recently, and thus could not show that the drug would still be present in his system at the time he was driving in a way to cause impairment. Two of the drug metabolites were exceptions to this conclusion, the presence of Carboxy-Tetrahydrocannabinol ("Carboxy-THC"), which relates to marijuana, and 6-Monoacetylmorphine ("6-MAM"), which relates to heroin. As I will explain, the issues related to heroin need to be carefully considered.
[32] With respect to the presence of Carboxy-THC, Ms Gorczynski testified that its presence, but the absence in Mr. Kler's urine sample of Tetracannabinol ("THC"), showed that Mr. Kler smoked marijuana at some previous time, but not more recently than 24 to 36 hours prior to providing the urine sample. In light of that evidence, which I accept, it seems very unlikely that Mr. Kler was impaired by marijuana at the time he was driving. I note that this also means that Constable Bell's final conclusion that from the DRE tests that Mr. Kler was impaired by marijuana was incorrect.
[33] Ms Gorczynski testified that 6-MAM is an intermediate metabolite of heroin. When a person takes heroin, it is very quickly metabolized into 6-MAM. Ms Gorczynski testified in her examination in chief that 6-MAM will be found in an individual's urine for approximately 30 minutes to 2.5 hours after they have taken heroin. However, in cross-examination, she agreed that the time period that 6-MAM could be present in a person's urine after taking heroin can be as long as 6 hours. How long the 6-MAM stays present in urine can depend on the concentration of the heroin, the dose taken, and the frequency of use by the individual.
[34] Ms Gorczynski also testified that the duration that heroin has an effect on someone who has taken it can vary by individual. For individuals who have developed a tolerance to heroin the effects of the drug can wear off faster. She testified that, in general, the effects of heroin would be gone or mostly be gone in 4 to 6 hours, depending on the individual's tolerance (at the shorter end for people with a developed tolerance). Further, she said the effect of heroin is like a bell curve, in that when first ingested it takes some time for it to have an effect on a person (a short time if ingested by smoking or injection), the effect will increase over time, and then lower back down and dissipate. Thus, towards the end of somewhere between 4 and 6 hours after a person has ingested heroin (the shorter end of the time period if the person is tolerant of heroin), the heroin's effect will be gone.
[35] Ms Gorczynski testified that typical effects of heroin include sedation, sleepiness, drowsiness, problems with gross motor coordination and balance, and problems with focussing attention and performing divided attention tasks (like driving a motor vehicle). However, Ms. Gorczynski was very candid that individuals can develop a tolerance to the effect of heroin, such that they may not experience the same effects as someone who is not tolerant of the drug. She also testified that toxicology evidence cannot predict all of the effects a particular drug may have on a particular individual. A particular individual may experience some or all of the typical effects of a particular drug. Further, Ms Gorczynski testified that urine sample results cannot show a person's level of impairment.
[36] Ms Gorczynski testified that the tolerance that a regular drug user can develop to a drug, including heroin, can affect the extent to which a particular individual will become impaired by ingesting the drug. Ms Gorczynski also testified that tolerance for heroin would not allow a person to do complex tasks like driving while under the effects of heroin; however, she appeared to base this conclusion on the assumption that a person would not practice doing complex tasks like driving while on heroin – an assumption which, unfortunately, may not be well-founded in all cases.
[37] Ms Gorczynski was very fair in her evidence in that while she testified that the various signs observed by Constable Bell of Mr. Kler could be signs of impairment, they could also be the result of other things. She further testified that if a person had all the drugs actively in their body (i.e., in their bloodstream) at one time that Mr. Kler's urine showed metabolites for, then the person would be impaired. But, she testified that the toxicology results done on Mr. Kler's urine were incapable of showing that all of the drugs for which metabolites were found in the urine were active in his bloodstream at the time he was driving, because a urine sample effectively shows what has left the body. Blood test results would be needed to show what, if any, drugs were in Mr. Kler's bloodstream and thus had the potential to currently affect his driving at the time he was driving. Ms Gorczynski also testified that urine sample findings cannot be used to determine effects of drugs on a particular individual at a given time, including impairment, since they do not necessarily mean that there was a blood concentration of a drug at that time or drug effects at that time. Thus, urine findings cannot show level of impairment.
[38] In the context of all of the evidence, I draw the conclusion from the toxicology evidence that Mr. Kler appears to be a drug user. But apart from the evidence with respect to 6-MAM as it relates to heroin, the toxicology evidence is not capable of showing that he consumed drugs relatively recently prior to the driving.
[39] The toxicology evidence also supports the inference that Mr. Kler consumed heroin some time prior to driving. Mr. Kler's urine test was done at 11:20 p.m. The time of the RIDE stop of Mr. Kler (and therefore of the driving) was 9:07 p.m. Based on Ms Gorczynski's evidence that the 6-MAM could be present in urine from between 30 minutes to up to 6 hours after heroin was taken, Mr. Kler may have taken heroin as early as 5:20 p.m. (or theoretically as late as 10:50 pm., although there is no suggestion he could have taken it one he began interacting with Constable Bell at 9:07 p.m. and thereafter). Ms Gorczynski testified that for a tolerant user the effects of heroin could be gone within 4 hours. I do not know if Mr. Kler was a tolerant user or not. But I have no evidence that he was not. Thus, one possible inference from the toxicology evidence is that Mr. Kler consumed heroin that day, but as early as 5:20 p.m., and when he was stopped at the RIDE check at 9:07 p.m., almost four hours after 5:20 p.m., the effects of the heroin by that point had tapered off or almost tapered off. This is not the only possible inference, but it is one that I must consider in the context of all of the evidence in this case in assessing whether the Crown has proven beyond a reasonable doubt that Mr. Kler's ability to operate a motor vehicle was impaired by a drug.
Conclusion
[40] In order to assess whether the Crown has proven beyond a reasonable doubt that Mr. Kler's ability to operate a motor vehicle was impaired by drugs, I must consider all of the evidence together. Thus, I must consider the evidence or lack of evidence with respect to manner of driving, the observations of Mr. Kler by Constable Bell (i.e., of the inattentiveness to Constable Bell during the initial conversation, and the rapid speech, agitation, and talking about things that did not seem to make sense to Constable Bell), the DRE examination results – which were mixed, and the presence of drug metabolites in Mr. Kler's urine (in particular the 6-MAM). But equally, I must consider that in this case there were no observations of problems with Mr. Kler's driving, and that he did many of the physical tests on the DRE normally based on my observations of the video.
[41] Taking all of this evidence together, certainly there were reasonable and probable grounds to believe that Mr. Kler's ability to operate a motor vehicle was impaired by a drug. Indeed, this conclusion may well rise to the level of a probability. But in all of the circumstances, in the absence of any evidence of problems with the defendant's driving, and given the limits of what urine testing can prove outlined above, I find that the Crown has not proven beyond a reasonable doubt that Mr. Kler's ability to operate a motor vehicle was impaired by a drug.
[42] I acknowledge that these cases are difficult for the Crown, given the limits of urine testing with respect to the ability to test for specific levels of a drug that one would expect to cause impairment. There is no analog in the drug impairment context to the offence of operation of a motor vehicle with excess blood alcohol. But these realities do not lower the Crown's burden of proof.
[43] I find Mr. Kler not guilty. The charge is dismissed.
Released: October 3, 2016
Signed: Justice J.M. Copeland
Footnote
[1] I refer to the DRE examination evidence at this point only in relation to Constable Bell's credibility. The DRE examination is not relevant to the reasonable suspicion assessment, since it was not information available to Constable Bell at the time he made the demand that Mr. Kler participate in SFSTs.