Court Information

Ontario Court of Justice

Date: October 2, 2019

Court File No.: Barrie 17-0638

Parties

Between:

Her Majesty the Queen

— And —

Cynthia Grove

Before the Court

Justice: E.A. Carlton

Heard on: May 11, 2018, June 25, 2018, September 25, 2018, February 15, 2019 and June 19, 2019

Reasons for Judgment released: October 2, 2019

Counsel

H. Azimi — counsel for the Crown

M. Miller — for the defendant Cynthia Grove

Endorsement

The Charge

[1] Cynthia Grove is charged with having care or control of a motor vehicle while impaired by alcohol or a drug arising from events from the early evening of December 27, 2016.

[2] The matter proceeded to trial and was heard over portions of five days from May of 2018 to June of 2019. I then received written submissions from both counsel and I want to express my appreciation of those submissions.

[3] It is clear that Ms. Grove was operating a motor vehicle shortly before 6 p.m. on December 27, 2016 in the south end of Barrie, Ontario. Her driving attracted the concern of a civilian witness who followed her on a number of streets until Ms. Grove stopped at a strip mall, left her car and entered into a restaurant.

[4] An officer responding to a call made by that civilian arrived a short time later. He met with Ms. Grove and formed grounds that her ability to operate the motor vehicle was impaired by the consumption of alcohol.

[5] As a result, Ms. Grove was arrested and taken to the Barrie police station. Although arrested for impaired operation by alcohol, subsequent breath testing disclosed that her blood alcohol concentration was zero. Ms. Grove was then read a drug recognition evaluation demand and such an evaluation was completed by the DRE officer. The Crown relies on that evaluation coupled with the evidence of a toxicologist and the driving evidence to submit that it has proven to the criminal standard of beyond a reasonable doubt that Ms. Grove's ability to have care or control of a motor vehicle was impaired by the consumption of drug, being a central nervous systems depressants, namely oxycodone and/or alprazolam.

[6] Ms. Grove testified that she did in fact consume oxycodone on the day of the offence but only in accordance with her prescription. She testified to a belief that a third party may have deliberately had her consume additional oxycodone which caused her confusion that day and her lack of memory of some details from the date of the offence.

[7] The Crown called four witnesses: a civilian Sean Fleming who witnessed Ms. Grove operate her motor vehicle, Constable Michael Rasmussens, who is both the arresting officer and the drug recognition evaluation officer, the breath technician Constable Osborne and a forensic toxicologist Dr. Karen Woodall. The Crown also tendered into evidence, ultimately without opposition, utterances made by Ms. Grove during the drug recognition evaluation.

[8] Ms. Grove testified in her own defence.

Legal Issues

[9] The only legal issue in this case is whether the Crown has proven to the criminal standard of beyond a reasonable doubt the act and mental element for the offence of care or control of a motor vehicle when impaired by the taking of a drug.

[10] The legal test for the offence does not change whether it is alleged impairment by alcohol versus a drug.

[11] The decision of our Court of Appeal, and affirmed by the Supreme Court of Canada, in R. v. Stellato, [1994] 2 S.C.R. 478, states that if the evidence establishes "any degree of impairment of the ability to operate a vehicle, ranging from slight to great, resulting from the consumption of alcohol, the offence is made out."

[12] This was discussed further in the Superior Court summary conviction appeal decision in R. v. Censoni, [2001] O.J. No. 5189 (S.C.) which involved an examination of the reasonableness of the grounds for an arrest for impaired driving. Justice Hill stated that "it must be remembered that slight impairment to drives relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road and the like".

[13] The mental element is the intent to have care or control of a motor vehicle after the voluntary consumption of the alcohol or drug (see R. v. Toews, [1985] S.C.J. No. 48 at para. 7).

The Driving and the Arrest

[14] Sean Fleming was driving south on Essa Road in Barrie just before 6 p.m. on December 27, 2016. He ended up following Ms. Grove's vehicle and called police to report his concerns that the driver of the vehicle was impaired. He followed Ms. Grove's vehicle, which he believed was a Pontiac, to where she stopped in a parking lot of a strip mall at the intersection of Marsellus and Mapleview Road in Barrie.

[15] Mr. Fleming testified to the following driving actions that caused him to be concerned about the condition of the driver:

• At two intersections on Essa Road, after proceeding on a green light the Pontiac drove over the centre median on the far side of the intersection.
• At one of the stop lights the vehicle waited 6-7 seconds after the light turned green before proceeding.
• The vehicle twice drove 1/3 to ½ of the vehicle over the centre line and partially into the oncoming lane.
• The Pontiac made a wide right turn onto Mapleton Avenue. This did not affect any oncoming traffic.
• On Marsellus the vehicle went over the centre line and then almost hit a snowbank.
• The Pontiac came close to a man walking on the road.
• The Pontiac went through a red light at a crosswalk.

[16] The vehicle then drove into the strip mall, drove behind the building and pulled up to the curb near the front corner of the building. The female driver got out of her vehicle, stumbled and then entered the restaurant. Mr. Fleming pointed out the driver to Constable Rasmussens.

[17] Mr. Fleming was cross-examined about whether his observations of Ms. Grove were intentional or whether they were spontaneous. I will address that later in the judgment.

[18] Constable Rasmussens arrived at the restaurant at 5:56 p.m. on December 27, 2016. He found the vehicle driven by Ms. Grove stopped beside the curb on the side of the restaurant. This is the driving lane for traffic travelling opposite from the front of the mall to the back of the mall. The vehicle was running and its headlights were on.

[19] Mr. Fleming pointed out Ms. Grove inside the restaurant. Constable Rasmussens entered. He described Ms. Grove standing behind the counter speaking to an employee of the restaurant. The officer described the employee as looking a bit scared or surprised.

[20] The officer engaged Ms. Grove in conversation. He was standing at the side of the counter. Ms. Grove did not turn to face him but remained facing the front of the restaurant. He had to twice ask a question of her about her vehicle in order to get a response from Ms. Grove. The officer detected an odour of alcohol on her breath. He described her as having a dazed look with a flaccid or relaxed expression.

[21] Ms. Grove was arrested at 5:59 p.m. for impaired care or control by alcohol. Constable Rasmussens describes her gait as "stagger fashion", "wobbly" and "swaying" as she walked to the cruiser. The officer describes her speech as slurred when she gave her name and address.

[22] Constable Rasmussens seized two prescription pill bottles from Ms. Grove's purse. These were prescriptions in her name for Oxycocet and Alprazolam. There were 4 ½ pills in the Oxycocet bottle. The Alprazolam bottle had a significant quantity of pills.

The Breath Testing

[23] Ms. Grove was presented to Constable Osborne who is a qualified breath technician. I viewed the video of that breath testing process.

[24] Ms. Grove provided two suitable samples into the Intoxilyzer. Both were analyzed at zero mg of alcohol. It was that result that caused Constable Rasmussens to issue a demand for a drug recognition evaluation.

[25] Constable Osborne testified that Ms. Grove "appeared impaired". He cited slurred speech, an awkward gait and difficulty following instructions as the basis for that belief. This last conclusion was based on Ms. Grove leaving the mouthpiece in her mouth after she had been told she could remove it. Constable Osborne agreed that he had not directed Ms. Grove to remove the mouthpiece but in his experience that is the standard response to his statement.

The Drug Recognition Evaluation Test

[26] Constable Rasmussens has also been qualified as a drug recognition evaluator and had been one for nine years at the time he testified. He issued the drug recognition evaluation demand to Ms. Grove at 7:30 p.m. on December 27th.

[27] The court listened to the testimony of Constable Rasmussens, watched the video of most of the testing, viewed the documents related to the evaluation and received a transcript of a short portion of the evaluation.

[28] Ultimately, it was the belief of Constable Rasmussens that Ms. Grove's ability to operate a motor vehicle was impaired by what he called a narcotic analgesic. This opinion was given without the need for a formal voir dire into the admissibility of that evidence (see R. v. Bingley, 2015 SCC 12). Forwarding to Dr. Woodall's evidence, a narcotic analgesic appears to be a subclass within drugs that are central nervous system depressants.

[29] This view was supported by the following observations:

• Ms. Grove had neither horizontal nor vertical gaze nystagmus. This refers to an inability to track objects. This is not inconsistent with impairment by a central nervous system depressant and inconsistent with impairment by some other classes of drugs. Ms. Grove's eyes did not converge. That alone is inconsistent with impairment by a narcotic analgesic.
• Ms. Grove's pupils were constricted and not reactive to light.
• Ms. Grove's blood pressure was low, although only just below what he believed to be the normal range. Ms. Grove's temperature was also slightly below normal.
• Ms. Grove's skin tone was flaccid.
• In an exercise where she was asked to estimate time, while standing with her eyes closed and head tilted back Ms. Grove moved front to back 3". A second officer observing the test moved closer to assist in the event that Ms. Grove would fall.
• Ms. Grove was able to perform two of the three physical tests. She was not able to stand on one leg without repeatedly putting a foot down. In doing a finger to nose test she was able to touch the pad of the end of her index finger to her nose but on some of the requests did not touch her nose with the tip of her finger as she had been instructed. She used the wrong hand on one of the requests.

[30] Ms. Grove's explanation for her performance on these tests will be addressed in the next section.

[31] Constable Rasmussens formed the opinion as to impairment by drug at approximately 8:23 p.m. and made a demand that Ms. Grove supply a urine sample to him.

The Toxicology Evidence

[32] Dr. Karen Woodall is a forensic toxicologist. Her expertise was admitted and her evidence is not in dispute.

[33] Dr. Woodall testified to the results of the testing of the urine sample taken from Ms. Grove shortly after 8:30 p.m., or close to three hours after the time of care or control.

[34] The testing showed the presence of the following drugs:

• Oxycodone and Oxymorphone: Oxycodone is a drug for the treatment of pain. Oxymorphone is a drug prescribed for pain but is also a metabolite of oxycodone. Dr. Woodall assumed that the positive finding for oxymorphone was more likely as a metabolite. Oxycodone is a central nervous system depressant.
• Alprazolam: Alprazolam is a drug used for the treatment of anxiety. It is also a central nervous system depressant.
• Sertraline: Sertraline is a drug used for depression. Ms. Grove testified she took this drug to deal with panic attacks. It is not likely to cause impairment.
• Hydroxychloroquine: Hydroxychloroquine is a drug used for the treatment of lupus. It is not likely to cause impairment.

[35] Ms. Grove testified to the use of each of these four drugs. I note she referred to her lupus medication as Plaquenil. I infer that this is also known as Hydroxychloroquine.

[36] Given the analysis of Dr. Woodall it is the taking of Oxycodone and Alprazolam that are relevant to the issue of impairment of the ability to have care or control of a motor vehicle.

[37] Dr. Woodall was clear on the limitations of her findings. Given that there was no blood testing there is no positive finding that these drugs were in Ms. Grove's system at the time of driving or the time the urine sample was given. The drug can stay in the urine for several days after taking the drug. For this reason, Dr. Woodall can give no opinion as to actual impairment by the two drugs based on the results of the urinalysis.

[38] Dr. Woodall was able to testify more generally to the potential effects of ingestion of the two central nervous system depressants, the oxycodone and the alprazolam.

[39] Both drugs effectively slow down the brain and cause general sedative effects. The effect of this sedation in any particular case depends on the amount taken and the tolerance by the individual to the drug.

[40] The sedative effect of these drugs can cause impairment of the ability to operate or have care or control of a motor vehicle by reducing the performance of a driver in the following functional attributes required to operate a motor vehicle:

• Divided Attention: driving requires the ability to focus on two or more matters at the same time. Impairment arising from a central nervous system depressant reduces the ability of the driver to focus on more than one issue at a time and slows reaction times.
• Choice Reaction Time: the act of driving requires drivers to make decisions as to how to respond to events occurring on the roadway. Impairment arising from a central nervous system depressant slows the time to make decisions among competing choices.
• Time and Distance: Impairment arising from a central nervous system depressant reduce the ability to make accurate judgments of speed and distance.

[41] Impairment by a central nervous system depressant may appear externally to an observer as appearing sedated, being drowsy, an inability to maintain attention and being slow to respond to events. If external signs are visible than it is highly likely that there is actual internal impairment. If external signs are not visible there may still be an impairment of the functional skills required to operate a motor vehicle.

[42] The presence of pinpoint pupils is consistent with the taking of an opioid. Oxycodone does fall within the class of drugs known as opioids but alprazolam does not.

The Evidence of Cynthia Grove

[43] Ms. Grove was 51 at the date of the offence. She detailed a number of medical conditions that are chronic and require medication including:

• Systemic Lupus: Ms. Grove has had this condition for 15 years. It can cause severe pain. At the time of the offence it was causing pain in her back and shoulder. She was taking Plaquenil for this condition.
• Osteoporosis: Ms. Grove has had this condition for 14 years. It includes degeneration of a number of discs. This causes sciatica and pain in her legs. At the time of the offence she was taking Oxycocet for pain relief.
• Restless Leg Syndrome: Ms. Grove had this condition at the time of the offence which caused cramping in her legs.
• Torn Rotator Cuff: At the time of the offence Ms. Grove had this condition in her right shoulder limiting her mobility.
• Anxiety and Panic Attacks: Ms. Grove has been on medication for these conditions for twenty years. On the day of the incident she was taking Alprazolam for anxiety and to help her sleep. She was taking Sertraline for panic attacks as needed.

[44] Given the evidence of Dr. Woodall it is the medications for pain and for anxiety, the Oxycocet and the Alprazolam that are at issue in this case. When arrested Ms. Grove had both medications in her purse in prescription bottles.

[45] Ms. Grove had a prescription dated December 19, 2016 for "Ratio-Oxycocet". Ms. Grove also referred to this medication as Percocet. Dr. Woodall testified that it consists of 5 mg of oxycodone and 325 mg of acetaminophen. There were 4 ½ pills in the bottle. The label on the prescription bottle, which became an exhibit, directs "Take 1-2 Tablet Every 4-6 Hours When Necessary (Dispense 40 Tablet Every 10 Days)".

[46] There was a second prescription bottle of Alprazolam, 0.5 mg, with the same date of December 16, 2016. Constable Rasmussens testified that there were a large number of pills in this bottle. The label on the bottle directs "Take 2 Tablets By Mouth Twice Daily (Dispense 80 Tablets Every 20 Days)".

[47] Ms. Grove testified that she takes each in accordance with the directions on the label. Constable Rasmussens was cross-examined to the effect that the Oxycocet label allows for 12 tablets to be taken daily if 2 tablets are taken every 4 hours. I also note that the label itself appears to limit the prescription to an average of four per day over a ten-day period.

[48] Separate and apart from the effect of any medications, Ms. Grove's underlying conditions affect her gait and her balance.

[49] Ms. Grove gave evidence about her activities for the 72 hours leading up to her arrest. She was working on Christmas Eve doing deliveries for the restaurant where her arrest was made. She testified that while out that evening she fell backwards and hit her head and then fell forward and struck her head. She continued her deliveries and finished around 8:30 p.m. that evening. She was experiencing pain from these two falls but decided against going to the hospital.

[50] Ms. Grove testified that she was up all night preparing for the arrival of family in the early afternoon of Christmas Day. She was taking her Oxycocet to manage her pain. Her family left about 4 p.m. on Christmas Day. Ms. Grove testified that she took the Alprazolam and went to bed.

[51] Ms. Grove has very little recollection of December 26th and 27th. She repeatedly stated that the 26th was "very blurry" to her. She recalls taking two Oxycocet on the 26th. She testified that she "could have taken the anxiety" pills on the 26th as well. She has little recollection of the 27th up to the point she was driving to the restaurant. She testified that she was "pretty much unconscious" on the 26th and 27th. Ms. Grove agreed that she kept taking her Oxycocet. She could not say how much she took except that it would not be more than she was allowed to take as per the prescription.

[52] Ms. Grove testified that it was possible or likely she took 1 ½ Oxycocet on the 27th as there were 4 ½ Oxycocet tablets found in her pill bottle and she usually puts 6 in a bottle at one time.

[53] At the time of the incident Ms. Grove was listed on what she describes as a "restraining order" for her prior partner Wayne Raymond. She testified to having a feeling that Mr. Raymond was at her home on the 26th although she doesn't know "if she was dreaming". She believed she took pictures of him at the back door that day although none were entered as evidence.

[54] After her release Ms. Grove noticed a plate of food and four to six beer in the back seat of her car. She believes that Mr. Raymond put it there. When she got home there was a glass of juice on her kitchen counter. She later received a text from Mr. Raymond that he called "Flem" because of she being a bad person. No texts or emails were entered as evidence. She has no memory of eating with Wayne Raymond on the 26th or 27th.

[55] Ms. Grove believes that "Flem" may be a reference to Sean Fleming, the first Crown witness who seemingly testified as a disinterested observer who called police because of his concern over the driving he was witnessing. Ms. Grove believes she was "drugged" or had a concussion prior to leaving her home on December 27, 2016. She testified that she was "unaware how I was feeling on that day because I don't remember".

[56] Ms. Grove does recall driving to the restaurant. She testified that she was not working but decided to go to see how everyone's Christmas had gone. It is not clear when she made this decision as she has no recollection of events prior to leaving her home. Ms. Grove did recall some of the driving incidents observed by Mr. Fleming:

• She recalled going over the centre line on two occasions. She did so to fix the car mat that was interfering with her use of the pedals.
• She did go to left side of road to avoid a collision and in moving to the right the back end of her car slipped and almost hit the snowbank.
• She did stop to avoid a collision with a pedestrian. She stopped as soon as she saw the pedestrian and stopped 2 ½' away from the person.
• She did leave her car running when she went into the restaurant. She did not plan on staying a long time.

[57] Ms. Grove did not recall striking the centre median or not moving for several seconds after a light turned green. She was not asked about going through a red on a crosswalk.

[58] Ms. Grove does recall the drug recognition evaluation. She testified that she was tired and in pain for the test. This affected her ability to complete the required tests. She testified that the test was a "blur" and that this was the first time she had experienced that level of confusion.

[59] Ms. Grove testified that she told Constable Rasmussens that she had taken four Oxycocet before driving but that she was confused and was referring to Christmas Eve.

Analysis

i) Were the Drugs Found in the Urine Voluntarily Consumed

[60] Ms. Grove testified that she believes she may have been drugged. She has very little recollection of the 48 hours prior to her driving. She gave effectively no evidence of her activities on December 27th prior to driving other than she wanted to go to the restaurant for a social call and that by examining her prescription bottle she believes it likely that she took 1 ½ tablets of Oxycocet on December 27th prior to driving.

[61] There is no positive evidence of Ms. Grove being drugged. Ms. Grove does have a hazy recollection of possibly seeing Mr. Raymond on December 26th at her back door. She also infers his presence by the existence of dirty dishes in the back seat of her car and a glass of juice sitting on her counter.

[62] Ms. Grove testified that Wayne Raymond sent her a message that said that "he called Flem" because she was a bad person. Ms. Grove did not know the date of the text except that she believes it was after she was charged. No text message was filed. The reference to "he called Flem" was a reference to a call made by Mr. Raymond's boss, an Albert Ghesari, of having called police.

[63] It is clear that Mr. Fleming, the purported "Flem", does not know Ms. Grove. Mr. Fleming denied knowing Wayne Raymond or Albert Ghesari. There is no positive evidence of any connection to these two men.

[64] That said, when Mr. Fleming was asked whether just prior to seeing Ms. Grove's vehicle he had received a phone call from either Wayne Raymond or Albert Ghesari with a request to locate Ms. Grove's vehicle he merely responded that he did not recall. When asked whether that was possible, he answered only that he did not recall. When asked whether there was a reference to someone being drugged, he was more emphatic in testifying that "I do not recall that at all".

[65] Mr. Fleming's answer of "do not recall" as to the possibility of being asked by one or another of two individuals he just denied knowing at all asking him to follow Ms. Grove's vehicle merits scrutiny. It is possible that Mr. Fleming was simply being very careful about not denying the possibility of the existence of any event or conversation that he could not remember. Such a conversation, however, would be noteworthy and one would normally be expected to say categorically whether such an event or conversation did or did not occur.

[66] There were other elements of Mr. Fleming's evidence that raised concerns. He had a very clear recollection of where he was driving but had no recollection of where he was coming from prior to seeing the driving. After following the vehicle to the restaurant and pointing out Ms. Grove to Constable Rasmussens he testified he never saw what happened to her despite sitting in his vehicle a few feet from the scene of the arrest while he waited to give his statement. In my view this is inconsistent with common experience for someone who had intentionally called police to have another driver investigated.

[67] These issues cause me to examine Mr. Fleming's evidence with caution and to place little weight on his evidence when not confirmed by other evidence.

[68] Nonetheless, I do not conclude from this evidence and the suspicions of Ms. Grove that Ms. Grove was drugged or that any impairment was a result of the involuntary consumption of a drug. Exercising caution in assigning weight to the evidence of Mr. Fleming does not of itself lead to accepting or having a doubt about Ms. Grove being involuntarily drugged.

[69] I do not accept the evidence or belief of Ms. Grove, as tenuous as it is, that she was drugged, and nor do I find that her evidence raises a reasonable doubt that some drugs were involuntarily consumed by her. This evidence is unsupported by any objective evidence and is entirely speculative, even on her own evidence. The only drugs found in her urine were drugs that she has acknowledged both in her own evidence and in her utterances to Constable Rasmussens to be taking at the material time and that were in her possession when she was arrested. There is nothing about the purported text by Wayne Raymond, not entered into evidence, that on its own supports a finding that Ms. Grove was involuntarily drugged. There is nothing about her evidence that logically supports a finding that she was drugged; none of the sighting at the back door, the dishes, the juice on the counter leads logically to such a finding. Her absence of memory begins at approximately 4 p.m. on December 24th, a time well before any suggested involvement of Mr. Raymond.

[70] On the evidence heard at this trial that I do accept I find beyond a reasonable doubt that Ms. Grove voluntarily ingested oxycocet and/or alprazolam between December 24th and 27th. She did so to deal with pain, anxiety and to help her sleep. Ms. Grove testified that she injured herself on the evening of December 24th. She took Oxycocet regularly until her family left later on the afternoon on December 25th. Ms. Grove's account of the next 48 hours is entirely unreliable on the issue of the amount of drugs taken. She describes the entire time as a blur. She admits that she was taking some Oxycocet and Alprazolam. Her account of how she divides up her pain medication was confusing and provided no clear objective support for her stated consumption.

[71] The mental element required for the offence of impairment by drugs is not negatived by a belief that the drugs were taken in accordance with the prescription or by an absence of a warning not to drive after consumption. The mental element is satisfied by the voluntary consumption of the drug. There is no evidence that the effects of the ingestion of the drug were unknown to Ms. Grove and only took hold once she had started driving.

ii) Other Causes for the Observations of Impairment

[72] I accept Ms. Grove's evidence that on the evening of December 27th she was tired and in pain. I accept her detailing of her medical conditions. Ms. Grove testified to her gait being significantly impacted by her Lupus and her back pain. On the video she walks with a very distinctive and slow gait with her feet wide apart and pointing outwards.

[73] To some degree Constable Rasmussens adapted the drug recognition evaluation to accommodate Ms. Grove in that he did not require her to complete the heel to toe test. Ms. Grove did not express any concern to Constable Rasmussens about simply standing in one position. I therefore place some weight on those tests where she is stationary but less weight on tests in which she is asked to move her legs. For that reason, I do consider the finger to nose test and the test in which she is asked to estimate the passage of time. I place little weight on the one leg stand test.

[74] I accept that Ms. Grove's pain and fatigue may have also contributed to her performance on some of the physical tests in the evaluation. I accept as well that her pain and fatigue may have contributed to some degree to an impairment of her ability to have care or control of her motor vehicle independent of any impairment by a drug. Impairment of the ability to operate or have care or control of a motor vehicle by pain or fatigue or a general physical deficit or any combination of these factors alone does not make out any offence under section 253(1)(a) of the Criminal Code.

iii) The Statements of Ms. Grove

[75] Statements made by Ms. Grove during the evaluation were ultimately admitted as voluntary and relied on by the Crown as proof of guilt.

[76] At the outset of the drug recognition evaluation Ms. Grove tells Constable Rasmussens that she had only eaten some chocolate at around 4 p.m. when she was wrapping presents. Later, when the two are in an interview room to conduct an eye exam she tells the officer that she took four Oxycocets shortly before she saw him, referring to meeting Constable Rasmussens in the restaurant and that she had been in a lot of pain that day. At the end of the evaluation, back in the breath room, Ms. Grove she repeats to the officer that she had taken four Oxycocet but is not sure when that occurred. As set out earlier, Ms. Grove testified that she was confused and was referring to her taking Oxycocet on Christmas Eve.

[77] In assessing these utterances, I do not find that Ms. Grove is confused as to what day is under discussion. I accept that she makes a reference to wrapping presents and this is also her evidence as to her activity on Christmas Eve. The reference to wrapping presents during the evaluation, however, is first directed towards the time she is eating some chocolate at around 4 p.m. on December 27th. At the end of the evaluation she is asked "where were the drugs used" and Ms. Grove replies that "I was at home wrapping presents". I find it clear on both references to wrapping presents relating to eating chocolate and taking the Oxycocet she is referring to December 27th. The only reasonable inference is that she was again wrapping presents the afternoon of December 27th.

[78] It is never clarified in detail when Ms. Grove took the four Oxycocet on December 27th. During the eye exam Ms. Grove does say she took the Oxycocet a short time before she saw the officer. A few minutes later in the breath room she again admits to taking the Oxycocet that day but is not sure when she took the drug. I am satisfied that Ms. Grove did admit to Constable Rasmussens taking four Oxycocet during the day of December 27th with at least some taken shortly before setting out to drive.

iv) Was there Impairment by the Voluntary Consumption of a Drug?

[79] I have found that Ms. Grove voluntarily consumed Oxycocet and/or Alprazolam prior to driving her vehicle. The remaining issue is whether, at that time, her ability to have care or control was impaired by the consumption of the drug.

[80] Again, I note that Ms. Grove's ability to have care or control may have been impacted or impaired by her pain, her fatigue, her mobility and/or the combination of those factors. Impairment of this kind does not make out the offence.

[81] The test is whether the voluntary consumption of these drugs was a contributing factor to Ms. Grove's impairment of her ability to have care or control of the motor vehicle to the level set out in Stellato (see R. v. Bartello, [1997] O.J. No. 2226 (C.A.)).

[82] I do find that the Crown has proven the existence of impairment of her ability to have care or control of a motor vehicle by a drug beyond a reasonable doubt. I find that the taking of the drugs was in fact a significant contributing factor causing an impairment of Ms. Grove's ability to have care or control of a motor vehicle.

[83] I have set out the issues on which I place little weight. I do place reliance on the following in making the following findings of fact:

• The urine of Ms. Grove contained Oxycodone and Alprazolam. While neither proves the existence of either drug in Ms. Grove's system at the time of the care or control they do show past ingestion of the drug.
• Ms. Grove testified to and admitted to Constables Rasmussens to the taking of Oxycocet on the day of the offence. Ms. Grove admitted taking the Alprazolam on December 26th. She gave no specific evidence on taking Alprazolam on December 27th. There is a 48-hour period in which she can say very little about her intake of these two drugs. She had both of these drugs in her possession for what she describes as a short social outing to her workplace.
• Both Oxycodone and Alprazolam are central nervous system depressants. Both are capable of impairing the ability to operate or have care or control of a motor vehicle depending on the quantity taken and the tolerance of the user.
• Central nervous system depressants slow down the brain and have sedative effects and can cause confusion. These effects impair the functional skills required in operating or having care or control of a motor vehicle including the ability to focus on more than one task, the time required to react and the judgment of speed and distance.
• The evidence of Ms. Grove and Sean Fleming agree that she crossed the centre lane on two occasions. Mr. Fleming testified that the vehicle went 1/3 to ½ into the oncoming lane. Without explanation, crossing the centre line is consistent with an inability to focus on more than one driving task. I have some difficulty accepting Ms. Grove's lengthy explanation that she was fixing a floor mat given that she has virtually no recollection of any event prior to this on December 27th. Standing on its own, her account shows an inability to focus on two tasks and/or impaired judgment in attempting such a task on a busy street.
• The evidence of Ms. Grove and Sean Fleming agree that her vehicle almost hit a snowbank. Ms. Grove testified that she had to go wide to avoid a car turning left and that the back end of her car slipped and almost hit a snowbank. I place little weight on this evidence.
• The evidence of Ms. Grove and Sean Fleming agree that she drove very close to a pedestrian walking on the road between her vehicle and the snowbank. Mr. Fleming describes that she narrowly missed the pedestrian and that the pedestrian had to turn himself sideways. Ms. Grove describes the person "just came out from the snowbank I couldn't see" but that she stopped right away, and her vehicle was 2 ½ -3 feet from the pedestrian. I find this event is consistent with a delayed reaction time to events occurring on the roadway that were visible and anticipated by Mr. Fleming.
• Ms. Grove parked her vehicle at the restaurant on the wrong side of the laneway for traffic travelling behind the plaza and left her vehicle running. She did not park in a regular parking spot and created a hazard for other drivers. She left her vehicle running even though she was entering for a social visit of some undefined length.
• When Constable Rasmussens tried to speak to her she remained facing 90 degrees away from him. She appeared dazed and her speech was slurred. I accept that evidence.
• I do find that her reaction to directions in the breath room to be delayed. While I accept that the comment that she could take the mouthpiece out of her mouth between tests was not a formal demand she appears to have real difficulty in comprehending what was said to her and responding to that information in a timely fashion. She had some difficulty understanding that she had to blow into the mouthpiece. This is again consistent with the sedative effect of the drugs she consumed. I accept Constable Osborne's description of her speech in the breath room as slurred as an accurate description of her speech.
• Ms. Grove admitted to taking four Oxycocet on the day of December 27, 2016. It is not necessary for the court to determine the precise timing of the ingestion of each tablet.
• The drug evaluation showed Ms. Grove to have pinpoint pupils that were not responsive to light. This is consistent with the taking of an opioid like Oxycodone.
• Ms. Grove told Constable Rasmussens that she had no difficult standing. When performing the test of estimating the passage of time with her eyes closed, she swayed front to back.
• Ms. Grove was not able to perform the finger to nose test properly. On one occasion she used the wrong hand and on three of the six occasions she touched the pad of her index finger rather than the tip of her index finger to her nose. She had to be instructed on each occasion to bring her hand back to her side.
• The drug recognition evaluator, Constable Rasmussens, gave his opinion that Ms. Grove's ability to have care or control of a motor vehicle was impaired by a drug. I have placed less reliance on the physical tests of Ms. Grove as compared to Constable Rasmussens. I consider this in assigning any weight to his assessment. I do not find Constable Rasmussen's opinion to be determinative although I place some weight on his conclusion.
• Ms. Grove's own evidence that she was "drugged" supports a finding that Ms. Grove herself considered that her ability to have care or control of a motor vehicle was impaired by a drug. I have rejected her evidence that she was involuntarily drugged and found to the criminal standard that any taking of a drug was voluntary. Ms. Grove's self-characterization supports that she herself knew that the drugs were having a greater than normal effect at the time she chose to have care or control of the motor vehicle.

[84] I am satisfied that Ms. Grove voluntarily took Oxycocet and/or Alprazolam in sufficient quantities to cause the impairment of her ability to have care or control of a motor vehicle.

[85] I return to the larger discussion of impairment given by Justice Code in R. v. Censoni where he stated that "it must be remembered that slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road and the like". I find that there were external signs of impairment by a central nervous system depressant of sedation and slowed reaction time. I accept the evidence of Dr. Woodall that when there is external evidence of impairment that it is then highly likely that there is an actual impairment of the internal functional skills required to have care or control of a motor vehicle set out by Justice Code.

[86] I also find that there was the taking of Oxycocet close to the time of driving. Ms. Grove's was arrested shortly before 6 p.m. and her presentation on video begins at around 6:30 p.m. and ends at 8:30 p.m. While the observations of Ms. Grove by police occurred over a 2 ½ hour period I do not find there to be any appreciable change in Ms. Grove's condition during this period. Her condition throughout is consistent with the evidence given of her condition at the time of the arrest. There is no basis for finding, and I do not find, that her condition during the evaluation was a result of the effects of the drug not being experienced at the time of the care or control. I do rely on all of the evidence up to approximately 8:30 p.m. on December 27th to conclude that Ms. Grove's ability to have care or control of a motor vehicle was impaired by a drug at the time of the care and control shortly before 6 p.m. that day.

[87] I find to the criminal standard that there was an impairment, ranging from slight to great, of the functions related to having care or control of a motor vehicle, independently caused by the ingestion of Oxycocet and/or Alprazolam, that significantly contributed to the impairment of Ms. Grove's ability to have care or control of a motor vehicle.

[88] I find Ms. Grove guilty of the offence of impaired care or control in section 253(1)(a) of the Criminal Code.

Released: October 2, 2019

Signed: Justice E. A. Carlton