ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 811
DATE: 20140710
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CHRISTOPHER HENRY
Appellant
Michael E. Thompson, for the Crown
Donald H. Crawford, Q.C., for the Appellant
HEARD: June 23, 2014
On Appeal from the decision of Justice G. A. Pockele, dated July 17, 2013.
RADY J.
Introduction
[1] Mr. Henry appeals from the decision of Justice G. A. Pockele of the Ontario Court of Justice on July 17, 2013 convicting him of impaired operation of a motor vehicle. Pockele J. was satisfied beyond a reasonable doubt that Mr. Henry was impaired by a drug and convicted him of an offence under s. 253(1)(a) of the Criminal Code. The appellant seeks an order for an acquittal or a new trial in the alternative.
Summary of Facts
[2] On July 13, 2011, police officers Klassen and Younan of the London Police Service were on duty. At 9:40 p.m. they observed a vehicle being operated by the appellant. It was dark outside but the vehicle was being driven with no headlights on and at a high rate of speed southbound on Clarke Road. The speed limit on Clarke Road is 60 kilometers per hour. The officers estimated that the car was being driven at 80 kilometers per hour.
[3] The police followed the vehicle and made various observations about the manner in which it was being driven. It turned east on Oxford Street at a high rate of speed and then weaved within its own lane twice. It crossed the centre line into the oncoming lane and continued to travel in that lane. An oncoming black vehicle was obliged to take evasive action in order to avoid a collision, by moving to the shoulder of the road. The appellant’s vehicle nearly struck the black vehicle.
[4] The appellant’s vehicle then swerved back into its own lane and the police initiated a traffic stop. The appellant took a few seconds, then slowed down, proceeded forward, slowed down again and stopped in the middle of a T-intersection. The stop was concluded at 9:42 p.m.
[5] Officer Klassen approached the vehicle and spoke to the appellant who was the driver. He was described as having bloodshot, glossy eyes and the smell of marijuana was coming from the vehicle. The appellant’s pupils were dilated. Officer Klassen asked him if he had consumed any alcohol or drugs that day. The appellant said that he had smoked a “J” at approximately 7:00 p.m. that evening. He was asked whether he was aware that he had stopped in the middle of an intersection to which he responded that he was not.
[6] Office Klassen formed the opinion that the appellant’s ability to operate the vehicle was impaired by consumption of a drug and arrested him at 9:48 p.m. He read the appellant a demand that he submit to an evaluation by a drug evaluating officer. He was transported to the London Police station and turned over to police constable Murchland, a drug recognition evaluator with the London Police Service. After his arrest, the appellant was observed to be a little uncoordinated, not very coherent in his speech and skipping from topic to topic. He was seen to be slow moving and slow to answer questions. He appeared to be laughing and not taking the matter very seriously.
[7] The video of the book-in process was played during the trial and made an exhibit. The appellant was seen to demonstrate a laughing attitude and it appeared that he had no appreciation for the serious trouble in which he found himself.
[8] Officer Murchland testified on a voir dire at the trial in order to qualify him as an expert witness. He testified with respect to this training and qualifications and his curriculum vitae was made an exhibit. He had been certified as a drug recognition expert in early 2009. At the conclusion of the voir dire, he was allowed to give expert opinion evidence. Officer Murchland outlined the twelve step process that he undertakes in order to conduct a drug evaluation. This consists of several physical tests, observations of the subject, information gathered from other sources and from the subject himself.
[9] He testified that his first step was to receive information from the investigating officers with respect to their observations. This was essentially the same as outlined above.
[10] Officer Murchland had also had the opportunity to observe the appellant throughout the book-in process. His pupils were heavily dilated and his eyelids were droopy (“ptosis”). He had reddening of the conjunctiva. When a marijuana user uses eye drops, his eyes may no longer be bloodshot but the area of the conjunctiva remains red. The appellant was described as having a very carefree and cooperative attitude. He had difficulty focusing on the questions being asked. Officer Murchland considered the fact that the appellant was smiling throughout to be an indicator of an attitude brought on by marijuana use.
[11] Officer Murchland’s next step was to make note of psychophysical signs. He checked for nystagmus (involuntary jerking of the eyes). This symptom is not expected in cannabis users and was not observed. Next were balance tests. The appellant had significant eyelid and leg tremors, which are both indicative of and almost exclusive to cannabis use. He was asked to estimate by counting how long 30 seconds lasted. His response lasted 55 seconds. This also is considered significant and can be indicative of cannabis use.
[12] The appellant next performed a walk and turn task, which he performed poorly. He had difficulty following instructions, missed steps and lost his balance. The results were considered to be indicative of drug influence. He was asked to stand on one leg. He waved his arms around and laughed, saying that he could not do so. He performed the finger to nose test poorly.
[13] The appellant’s blood pressure and pulse rate were checked and were both elevated. His pupils were dilated and slow to respond. His muscle tone was described as flaccid. All of these observations are consistent with cannabis use. Next, Officer Murchland spoke with the appellant, who was asked what he had smoked. He responded that it was a “pretty big one” and that it was “kush stuff” that was pretty potent. He said that he had smoked it while at the movies earlier.
[14] Based on the foregoing information and observations, Officer Murchland formed the opinion that the appellant’s ability to operate a motor vehicle was impaired by the consumption of the drug and in particular, cannabis marijuana.
[15] Officer Murchland read a demand that the appellant provide a urine sample for analysis. He testified that in his opinion, there are limitations with respect to the usefulness of urine analysis. He considered that a blood sample would be the “gold standard” for analysis. However, there was no qualified medical practitioner on site and therefore, a blood sample could not be taken. He testified that the effects of cannabis would cause peak impairment within 10 to 15 minutes of smoking but they might endure for three to four hours after smoking.
[16] The urine sample was analyzed by the Centre of Forensic Science. A report showed that carboxytetrahydrocannabinol was detected but tetrahydrocannabinol was not. The report’s conclusions were stated as follows:
The detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration. Urine findings cannot be used to determine the effects, including impairment of a drug on an individual at a given time, since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug, or drug effects.
Carboxytetrahydrocannabinol is an inactive metabolite of tetrahydrocannabinol (THC), the major psychoactive compound in cannabis products such as marijuana and hashish. The presence of carboxytetrahydrocannabinol (THC-COOH) indicates prior use of or exposure to a cannabis product. Effects that occur after use of this drug may include mild euphoria, relaxation, altered time perception, motor incoordination and decreased ability to concentrate.
[17] In cross-examination, Officer Murchland acknowledged that he was unaware of the appellant’s normal pulse and blood pressure. He acknowledged that at the time, the appellant had just turned 18 years old. He accepted that a person in the appellant’s situation would experience nervousness or anxiety going to a police station.
[18] He testified that part of the twelve step process is the collection of a bodily sample for a toxicology report. However, he does not await confirmation of the toxicology result before a charge is laid.
[19] Dr. Maurice Hirst was qualified to give expert evidence on behalf of the defence with respect to pharmacology, toxicology, the effect of alcohol and drugs on the human body and tests and protocols that should be used in determining the presence of alcohol and drugs. His evidence at the voir dire was applied at trial.
[20] Dr. Hirst testified that there are two indicators in a toxicology test for the marijuana ingestion. They are tetrahydrocannabinol (THC) which is the psychoactive ingredient in marijuana that causes physical impairment. The other is carboxytetrahydrocannabinol (CO-THC) which is the non-active ingredient and is a reflection of body metabolising THC. THC is the psychoactive ingredient and causes impairment. CO-THC is non-psychoactive and its effect does not cause impairment. It is an indicator that marijuana was ingested at some point.
[21] During cross-examination at the voir dire, Dr. Hirst gave evidence that a urine test sample for the toxicology report is like a blood test to measure THC in a subject’s system. He testified to the effect that a urine sample should yield the same result as a blood sample because urine is made of materials that are present in blood.
[22] He testified as follows:
The amount that’s in blood will increase as smoking occurs and then as it becomes metabolized, that concentration will decline. But it’s also been present in urine during that time, too. And there’s more metabolite going to be in urine, as there is less THC. But over a period of several hours after smoking, it should be detectable in urine. Now, do I know if that urinalysis was done properly? Clearly not.
[23] He said that once marijuana is smoked, it is in the blood stream within minutes with maximal effects about 30 minutes to one hour after exposure.
[24] He also testified that a “high” from marijuana lasts three hours at most and it takes approximately six hours for THC to be eliminated from the system. As a result, THC will still be detectable on a toxicology report even after three hours following marijuana ingestion.
[25] In Dr. Hirst’s view, a negative reading for of THC in a toxicological report meant that the subject was not impaired by THC at the time the sample was provided. This is because the psychoactive ingredient is no longer in the subject’s system. Dr. Hirst considered that because THC had not been detected in the appellant’s urine, he was not impaired by THC at the time that the sample was taken. In essence, Dr. Hirst concluded that a negative result for THC in the toxicology report excluded the possibility that the appellant was impaired by THC at the time of the test.
The Parties’ Positions
[26] The appellant’s notice of appeal identifies eleven grounds for appeal. The first ground of appeal is that the trial judge erred when he qualified Officer Murchland as a drug recognition expert. This ground of appeal was not pursued during oral argument.
[27] Another ground of appeal is that the trial judge erred in concluding that the appellant’s blood pressure and pulse rate were above normal range. This ground was not stressed during oral argument.
[28] The essence of the appellant’s position during oral argument was that the trial judge failed to properly consider the results of the urine analysis and that this evidence proved that the appellant could not have been impaired by marijuana at the time that the sample was taken or at the time that he was operating the motor vehicle.
[29] In the appellant’s factum, he suggests that the proper procedure is to await confirmation of the toxicological report before laying the charge. However, that argument was not pressed on appeal. Mr. Crawford’s point is that when the toxicological report is received, which is negative for THC, the Crown should withdraw the charge because no reasonable prospect of a conviction exists.
The Law
[30] The relevant provisions of the Criminal Code are found in s. 254. It provides as follows:
(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose…
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,
(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body. (emphasis added)
[31] The tests to be administered under s. 254(3.1) and the procedure to be followed are enumerated in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, S.O.R./2008-196:
Evaluation Tests and Procedures
- The tests to be conducted and the procedures to be followed during an evaluation under subsection 254(3.1) of the Criminal Code are
(a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally;
(b) eye examinations, which consist of
(i) the horizontal gaze nystagmus test,
(ii) the vertical gaze nystagmus test, and
(iii) the lack-of-convergence test;
(c) divided-attention tests, which consist of
(i) the Romberg balance test,
(ii) the walk-and-turn test referred to in paragraph 2 (b), and
(iii) the one-leg stand test referred to in paragraph 2 (c), and
(iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed;
(d) an examination, which consists of measuring the blood pressure, temperature and pulse;
(e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;
(f) an examination, which consists of checking the muscle tone and pulse; and
(g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.
The Trial Judge’s Reasons for Judgment
[32] The trial judge began his analysis by reviewing the evidence of the arresting police officers and their observations. He observed that “this driving behaviour without any explanation – and I should indicate at trial no defence was called – demonstrated a marked departure from the norm on a prima facie basis. It certainly meets the test for impairment outlined in the Ontario Court of Appeal decision of Stellato.”
[33] The trial judge went on to outline the statutory regime pursuant to which determination of impairment is made.
[34] He continued as follows:
In an interesting turn of events, it would appear that the analysis revealed that Christopher Henry did not have any psychoactive elements of marijuana, no tetrahydrocannabinol in his system, but rather only had metabolites called CO-DH, an indicator that at some point earlier in time, he had THC in his system, which had now broken down into non-psychoactive metabolites. On the other hand, Dr. Hirst indicated many of the physical observations made by Officer Murchland and exhibited in the booking-in process were certainly a cause for concern, as they were indicative of an extremely unusual physical condition.
At the end of the day, the urine sample did not provide any confirmatory evidence that Christopher Henry had any psychoactive substance in his system at the time the sample was taken, as a result of smoking marijuana. On the other hand, this test is not deemed to be the gold standard of drug testing. More accurate and thorough results are obtained when blood samples are taken but this is rarely done, since it requires the supervision of a qualified medical professional. There are issues regarding the actual urine-taking process, which make it less effective as an exclusionary test. In the end, while this test was not confirmatory of impairment by marijuana, it was not necessarily exclusionary.
[35] Later in his reasons, he noted that “there are inherent problems with urine analysis and a report cannot be deemed to be proof that there were no psychoactive elements of cannabis in his system”.
[36] In conclusion, the trial judge stated as follows:
Having regard to the erratic driving behavior, again, the evidence of the investigating officer who observed the erratic driving behavior, the evidence of the drug recognition expert and the intensive tests undertaken under the twelve step protocol, the manifest systems of impairment by marijuana, the admission of the accused that he had consumed marijuana, and even considering that the toxicology report, while not supporting the prosecution’s case, does not negate it, I find the Crown has proved the impaired charge on the criminal standard of proof beyond a reasonable doubt.
Analysis
[37] There is a small body of case law dealing with the issues raised in this case.
[38] In R. v. McCarthy, a decision of the Ontario Court of Justice dated January 6, 2014, Justice LeDressay was called upon to rule on the admissibility of the evidence of a properly qualified evaluating officer. The following passage of his reasons for decision is noteworthy:
…Parliament envisioned a procedure whereby, when the appropriate reasonable and probable grounds have been established, a person must submit to an evaluation by an evaluating officer. The clear purpose of the person being required to do this was for the evaluating officer “to determine” whether the person’s ability to operate a motor vehicle was impaired by a drug or by a combination of alcohol or a drug. The evaluating officer, if he/she has the necessary reasonable grounds to believe, may require the person to provide a sample of oral fluid, urine or blood. This latter evidence is of value only as being some corroborative evidence of the evaluating officer’s opinion regarding the person being impaired by a drug or by a combination of alcohol or a drug. The legislation would be rendered impotent if the only objective achieved by the evaluation process conducted by a qualified evaluating officer was the evaluating officer’s ability to demand a sample of oral fluid, urine or blood. Parliament’s clear intention with this legislative amendment was to put in place an appropriate, fair, definitive and efficient procedure to detect drug impaired drivers. Parliament was clearly satisfied that this was accomplished by having a properly certified drug recognition expert evaluate a suspected drug impaired driver by administering a prescribed set of tests and procedures as specified in the Regulations. Although not specifically stated the clear inference is that the evaluating officer was expected to provide the court with his/her expert opinion regarding whether the suspected drug impaired driver was in the opinion of the evaluating officer, based on the prescribed tests, impaired by drug or by a combination of alcohol and a drug.
[39] A similar conclusion was reached in R. v. Lecomte, another decision of the Ontario Court of Justice on a voir dire, dated March 21, 2014.
[40] Most recently, the issue came before the Superior Court on a summary conviction appeal in R. v. Bingley, 2014 ONSC 2432. The history of the case was summarized by the summary conviction appeal judge:
[2] The matter went to trial and the initial trial judge found that the opinion of the officer was to be received without any Mohan voir dire. Notwithstanding that, the judge acquitted the accused. The Crown then appealed. The matter was heard by this Court and remitted for a further trial on the basis that the trial judge failed to consider the cumulative effect of the evidence. A new trial was held. The Crown sought to once again called the DRE to give evidence regarding the accused’s impairment without a voir dire; the Respondent took issue with this approach. The trial judge found that a voir dire was necessary on the basis of R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. This was conducted. At the end of the voir dire, the trial judge refused to qualify the DRE as an expert and, thus, refused to allow his opinion.
[41] A new trial was ordered. In coming to its conclusion, the summary conviction appeal court made the following observations:
[18]…The tests themselves are prescribed by regulation. The science upon which those tests were conceived was clearly considered by Parliament when it was concerned with the issue of being able to test for drug impairment when no instrument was available. (See Parliamentary Committee Materials at paras. 136-138 of the Appellant’s Factum) Clearly, those particular matters were considered by Parliament. Indeed, the regulation itself seems to be based on generally accepted scientific data and is subject to review by a panel of experts. Thus, there appears to have been a scientific basis for the formulation of the tests themselves (para. 6), as determined by Parliament.
[19] It is, therefore, this Court’s view that the science has already been established. In addition to this, when we consider Parliament’s intention with respect to s. 254(3.1), as it has been seen, the purpose of these tests is to determine impairment. From the definition of “to determine”, set forth above, it becomes evidence that this section calls for a conclusion, and thus an opinion. It is this Court’s view that the opinion, therefore, may be given in Court without the requirement of a Mohan ruling. Of course, this in no way affects the weight to be given by the trial court to that opinion. It is merely a situation where opinion can be given by a qualified expert who has applied the regulations to this end.
[20] The Respondent’s argument, based on subsection (3.4) of s. 254, is that subsection (3.1) is a mere step in the chain which would require further analysis. This is not consistent with the overall statutory approach. The use of the word “may” in subsection (3.4) demonstrates that this subsection is permissive, and does not impose a mandatory step. It provides for a more intrusive process which may not be necessary in all cases. Therefore, it seems on a plain reading of that section that it proscribes something that may, but need not, occur. It provides an investigative tool that may be used in appropriate circumstances, but choosing not to use it is not fatal to giving opinion evidence under subsection (3.1). Therefore, if the statutory requirements are fulfilled, an opinion may be given with respect to impairment without holding a Mohan voir dire.
[42] The summary conviction appeal court concluded its analysis by reviewing the admissibility of lay opinion. A non-expert witness may give evidence that a person is intoxicated or impaired. This is consistent with a “long accepted practice that a trial judge is entitled to rely on the evidence of lay people in deciding this issue”: R. v. Henry, [2013] O.J. No. 1079 (S.C.J.).
Conclusion
[43] The appeal must be dismissed. The trial judge reviewed the evidence and he concluded that the observations of the arresting officers and those of Officer Murchland, as well as the appellant’s admission that he had smoked marijuana were proof of the appellant’s guilt beyond a reasonable doubt. He recognized that the urine analysis did not support the Crown’s case but it did not raise a reasonable doubt about the appellant’s guilt.
[44] The trial judge’s decision is consistent with the analysis contained in R. v. Bingley (supra). A conviction may result from the drug recognition expert’s evaluation, the observations of investigating officers, lay witnesses or a combination thereof. The urine analysis may or may not provide corroboration. Although the appellant may not have had THC in his urine, this did not preclude the conclusion that it was in his system at the time he was driving.
[45] There is no reason to interfere with the trial judge’s factual findings and the inferences that he drew from them. He considered and applied the relevant legal principles.
[46] The appeal is therefore dismissed.
“Justice H. A. Rady”
Justice H. A. Rady
Released: July 10, 2014
COURT FILE NO.: 811
DATE: 20140710
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER HENRY
REASONS FOR JUDGMENT
On appeal from the decision of Pockele J., dated July 17, 2013
RADY J.
Released: July 10, 2014