Ontario Court of Justice
Date: March 20, 2025
Court File No.: 23-48120857
Region: Toronto
Between
His Majesty the King
— and —
Shagaran Senthilgumar
Before Justice H. Pringle
Heard on February 24, 2025
Reasons for Judgment released on March 20, 2025
Counsel:
L. Petryshen — counsel for the Crown
J. Vamadevan — counsel for the defendant
Reasons for Judgment
PRINGLE J.:
[1] Mr. Senthilgumar is charged with a single count of operating a conveyance while his ability to do so was impaired to any degree, by alcohol or a drug or both, contrary to section 320.14(1) of the Criminal Code.
[2] There was no evidence of any alcohol being present in the defendant’s blood or breath. The Crown’s case was premised on the theory that his ability to drive was impaired to some degree by drug and more specifically by cannabis.
[3] The defendant was not tried, and was apparently not charged, with the offence of having a blood drug concentration (BDC) over the legal limit within two hours of operating a motor vehicle.
[4] The entire trial proceeded by way of agreed fact. It was uncontested that on October 24, 2023, in the early morning hours, the defendant was operating a motor vehicle when he crossed a lane and hit a truck. This accident happened sometime between 7:30 and 8:00 AM.
[5] The collision caused damage to the truck. Its passengers, who were not seriously injured, came out of their truck to check on the defendant’s car. They called 911, discerning from the circumstances that the defendant was in some kind of medical distress. Specifically, they thought he was having a seizure.
[6] A police officer arrived and saw the defendant being treated by paramedics. He made observations of the defendant’s physical appearance. The defendant was awake but appeared confused, sweaty and drowsy.
[7] There was an agreed statement of fact about Mr. Senthilgumar’s appearance after the accident, which said:
It is agreed that Mr. Senthilgumar’s presentation after the collision is consistent with a person who has just experienced a seizure otherwise known as a ‘post ictal’ state.
[8] The officer found a vape pen and “marijuana products” in the passenger seat of the defendant’s vehicle. The agreed statement of fact does not make clear what kind of marijuana products were located. I understood the inclusion of this fact to explain why the officer took the next step he did. He arrested the defendant for impaired driving.
[9] The defendant was taken to hospital and, en route, had a seizure. At hospital, they took a sample of his blood “before or at 8:55 am”.
[10] This blood sample was analyzed by CFS forensic scientist Zacharie Currie. He found the concentration of THC in the defendant's blood to be 72 ng/ml with a variability of six nanograms per milliliter. His report was attached to the agreed statement of fact and was also accepted as fact.
[11] Both parties agreed that this THC measurement reflected the THC concentration in the defendant's blood at the time the blood was drawn. They also agreed the defendant consumed no THC between the time of the collision and the time his blood was taken.
[12] There was no direct evidence as to the THC concentration, in the defendant's blood, at the time he was operating the motor vehicle. There was no evidence before this court to assist with issues such as the absorption and elimination of THC, or if and how that may vary from person to person. There was no evidence as to when the cannabis was consumed by the defendant, or how he consumed cannabis, whether it be orally or inhalation. The vape pen suggested inhalation, but vape pens are commonly used to inhale other substances.
[13] The CFS report set out and explained the following conclusions. The detected blood concentration of THC indicated the defendant’s:
…prior use of a cannabis product. THC can impair an individual's ability to operate a motor vehicle. Blood concentrations of THC do not correlate well with effects; however, effects that can occur following recent use of THC include altered time perception, incoordination and decreased ability to concentrate. The effects of THC are dependent on factors including dose, the time and route of administration and experience of the user.
[14] To be clear, the author of this report proffered no opinion whatsoever relative to the question of impairment in this case, including whether or not the defendant was at the time he was operating the motor vehicle, impaired to any degree. Instead, the Crown sought to prove this circumstantially, inviting the drawing of inferences.
[15] The defence called no evidence.
[16] Both sides agreed that there could be no reasonable doubt about the defendant operating a conveyance that morning. In arguing impairment to any degree, from slight to great, was proved beyond reasonable doubt, the Crown relied on the level of THC located in the defendant's blood and how that level compared with the legislation and regulations Parliament enacted about legal limits of THC.
[17] Specifically, in revising the impaired driving related offence provisions, Parliament enacted prescribed blood drug concentrations of between 2 and 5 nanograms of THC per milliliter of blood. That range applies to offences committed by operating a motor vehicle while over those various limits. There is no prescribed blood drug concentration level with respect to the specific offence of impaired operation by drug, which is the charge before this court.
[18] The Crown emphasized that the BDC in the case at bar was approximately 33 times greater than the bottom range of the prescribed legal limits. She also relied upon the decision of R. v. Robertson, 2022 ONCJ 160, where my colleague Caponecchia J. upheld the constitutionality of the prescribed limits and related offence provisions.
[19] At paragraphs 107 through 111, Caponecchia J. in the context of upholding the constitutionality of the legislation and regulations, found a rational connection established between the limit of five nanograms per milliliter of THC and the objective of the legislation which is to detect drivers impaired by THC. She relied upon, in drawing that conclusion, expert testimony about the effects of 5 nanograms per milliliter on recreational or naive consumers, and that the reading can suggest recent consumption, which in turn can permit a court to infer that an individual is impaired by THC while driving.
[20] In my opinion, it is a stretch to draw, from this aspect of the constitutional decision, a conclusion that a reading over 5 nanograms of THC per milliliter of blood necessarily equates to proof beyond reasonable doubt of impairment. I appreciate that only slight impairment by drug need be proven by the Crown. However, even slight impairment by drug must be proven beyond reasonable doubt.
[21] The Robertson case was decided in two separate judgments, the second which reinforced this conclusion. In R. v. Robertson, 2021 O.J. No. 7559, the same defendant was acquitted of the charge of impaired driving. The defendant had readings of 40 nanograms of THC in one milliliter of blood. He also had a lower reading, subsequently taken, of 15 nanograms per milliliter.
[22] The defendant was proven to have THC in his blood, but the court was not satisfied beyond a reasonable doubt that he was impaired to any degree by drug while driving because there were other available, reasonable inferences that could be drawn.
[23] In that case, expert evidence was called by the Crown. A forensic toxicologist testified that the BDC level of 40 nanograms was detected 45 minutes after a collision, and that it could not be correlated to any degree of impairment at the time of the collision.
[24] The test result did not assist with the question of whether the defendant was a frequent or infrequent user. It did not prove that the defendant consumed it in the morning before the accident. Factors such as timing, quantity consumed, and tolerance level can all bear weight on the question of impairment, and there was no proof beyond reasonable doubt that the defendant was experiencing the impairing effects of THC at the time he was driving.
[25] The danger of concluding that proof of impairment beyond reasonable doubt is made out solely by comparing BDC readings to the legal limit, was exemplified, at least for me, by paragraph 41 of the trial decision in Robertson:
Ms. Chow [C.F.S. expert] explained that the 40ng/ml of THC detected in Mr. Robertson's blood 45 minutes after the collision cannot be correlated to any degree of impairment at 1:00 p.m. or earlier. Nor does it reveal if Mr. Robertson was a naïve user or frequent user. The toxicology evidence proves that Mr. Robertson consumed an unknown amount of cannabis between 7:00 a.m. -- 9:00 a.m. the morning of June 18, 2020. Depending on the timing, quantity consumed and his tolerance level he may or may not have been experiencing the impairing effects of THC when he caused the collision at approximately 12:15 p.m.
[26] The trial judge then looked to other evidence, outside those readings, to assess whether it was proven beyond reasonable doubt that the defendant was experiencing the impairing effects of THC while driving. She concluded it was not. For example, evidence about the physical appearance of the defendant at the scene led to more than one reasonable inference. He had suffered significant physical injuries in the crash, and accordingly, his speech and balance and walk could not be meaningfully assessed.
[27] The trial judge observed, at para. 43, that "there is no evidence to support an inference that the accused consumed the cannabis close in time to the accident and was operating under the impairing effects" because first responders had covid masks on and were unable to detect smells like freshly smoked cannabis.
[28] The trial outcome in Robertson is not binding on me, and the evidence in that case cannot be used as evidence in this case. I appreciate that. However, the conclusion in that case reinforced the defence submission in the case at bar, which was that proof of impaired driving by drug, could not be made out beyond a reasonable doubt, solely by the BDC reading of 72 nanograms of THC in 1 ml of blood compared to the Regulations.
[29] I have not lost sight of the fact of the accident in this case. The Crown, fairly, did not rely on it as evidence of impairment. She referred to it as a bit of a red herring and acknowledged the accident could have been rooted in medical causes. But I am still required to assess all the evidence, as a whole and including this accident. Thus, I will subsequently return to the topic.
[30] Defence counsel drew analogies between the circumstances in this case and precedent about impaired driving and the legal limit for blood alcohol levels while operating a motor vehicle. For example, R. v. Kumar, 2022 O.J. No. 1060 observed that without expert testimony, a court was not permitted to take judicial notice that a person who consumed a specific certain amount of alcohol before driving was impaired.
[31] In R. v. Letford, [2000] O.J. No. 4841 at para. 22, the Court of Appeal held the trial judge was in error to rely on BAC results without expert evidence to infer the appellant was impaired by alcohol. In R. v. Hoffner, [2005] O.J. No. 3862, the appellants’ conviction for impaired driving was overturned. The trial judge had improperly used high BAC results, without expert testimony, to conclude the appellants memory must have been unreliable. The appellate court relied upon cases, such as Letford, by way of analogy. The test results which those cases said could not be used to infer impairment, could also not be used to support conclusion that a person's memory of events was unreliable and impaired by alcohol: see paras. 66-68.
[32] In R. v. Cabral, [1988] O.J. No. 2170, a conviction for impaired driving was overturned because of a similar error committed at trial. The trial judge had improperly taken judicial notice in relation to the amount of alcohol consumed, and inferred that amount was enough to impair a person while driving. Without expert testimony, Hill J. sitting as a summary conviction appeal court concluded, the trial court should not have used the amount of alcohol consumed to conclude that amount was sufficient to impair a person. See also R. v. Kumric, [2006] O.J. No. 4886 (S.C.A.D.).
[33] In considering these authorities, in application to the case at bar, I agree with defence counsel that I cannot take judicial notice in the manner the Crown invites. More specifically, I cannot take judicial notice that when compared to the legal limits prescribed by statute, the BDC present in the defendant’s blood proves impairment, be it slight or great, beyond reasonable doubt.
[34] This conclusion does not end the analysis. All of the evidence must be considered, in determining whether the count before the court was proven to the requisite standard. The test for proof of impairment beyond reasonable doubt, and the application of the often-cited Stellato standard, was well explained in R. v. Andrews, 1996 ABCA 21 at paras. 19, 20, and 26:
… [I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient...
The ratio of judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability if proved beyond a reasonable doubt, will sustain a conviction.
...[Stellato] speaks to degree of proof. In other words, as framed in Stellato the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.
[35] Stellato’s use of the word “slight” should not be understood as lessening the Crown’s burden of proof in any way. The impairment proven can be slight. The proof of impairment remains to the standard of beyond reasonable doubt.
[36] In considering the evidence as a whole I am not satisfied the Crown proved its burden beyond reasonable doubt. More specifically, the Crown has not proven beyond reasonable doubt that the defendant’s ability to drive was impaired to any degree by drug.
[37] As stated, after reviewing the trial result in Robertson, as well as the constitutional decision and the alcohol-related cases submitted by defendant, I found myself unable to take judicial notice of any degree of impairment being proven by comparing the BDC level to the legal limits set by Parliament.
[38] The Crown characterized this as the drawing of a reasonable inference, as opposed to taking judicial notice. If that characterization is a correct one, as opposed to taking judicial notice, I find the inference the Crown sought drawn to be speculative and insufficiently supported by evidence.
[39] Further, I found the accident and the defendant’s physical appearance both to be easily explicable – indeed, probably explicable – by a medical crisis and more specifically by the defendant’s seizures. The Crown fairly acknowledged in her submissions that a medical crisis was a reasonable, alternate inference that could be drawn on this evidence about the accident and I agree with that position.
[40] The evidence when considered as a whole fell short of the standard of proof beyond reasonable doubt and as a result, the defendant must be acquitted of the single count before the court.
Released: March 20, 2025
Signed: Justice H. Pringle