Court File and Parties

Court File No.: Date: 2017/06/23 Ontario Superior Court of Justice

B E T W E E N:

HER MAJESTY THE QUEEN, Respondent Russell Wood, counsel for the Crown

- and -

DEAN JACKSON, Appellant G Laplante, counsel for the appellant

Heard: June 8, 2017

Karam J.

Reasons for Decision

[1] This is an appeal from a conviction for operating a motor vehicle while impaired by a drug, contrary to s. 253 (a) of the Criminal Code of Canada.

[2] The appellant was found by police, asleep at the wheel of his vehicle, which was running and locked, with its headlights and brake lights on, alongside a public highway. The vehicle was set in drive and he had his foot on the brake. The police, upon their arrival, were unable to arouse him for about two minutes and then only succeeded in doing so after knocking continuously on the doors and windows of the vehicle, yelling at him and shining strobe lights on him. Once awakened, he apparently could not understand their instructions to put the vehicle into park, and it rolled forward and collided with a police car parked about eight feet in front of it. Once he alighted from the vehicle, his movements were described as slow, his speech was slurred, and he was found to be very unsteady on his feet. He did not smell of alcohol and he did not appear to be injured.

[3] Constable Geoff Whittle who leaned into the vehicle to turn off the ignition observed a leather bag in the vehicle, which upon examination was found to contain several pill bottles with a pill in each, and with the name of the accused on the bottles. Constable Mike Primrose stated that the labels on the bottles, purportedly describing their contents stated; clonazepam, diazepam, clonidine, lorazepam and baclofen, each of which the constable understood to be a central nervous system depressant. After the accused exited the vehicle, Constable Primrose confirmed his state of impairment as follows: “I observed the accused’s actions, they were slow and deliberate. He appeared tired and had a slow slurred speech. I found he was unbalanced on his feet. He was trying to hold up his pants with one hand and he was stumbling around while walking. At one point he asked me for assistance to walk from the cruiser to my cruise. I lent him an arm so that he could balance himself walking to my car”.

[4] There appears to be overwhelming evidence upon which to find that the ability of the appellant to operate a motor vehicle was impaired, and that he was not impaired by alcohol, nor did it appear that he was affected by an injury. The evidence of constable Kim Bowes, a drug recognition expert, as to urine tests that were conducted and statements made by the appellant, was excluded for various reasons which are not relevant on this appeal.

[5] The trial court relied upon the report of a forensic toxicologist, James Rajotte, that the effects of the various drugs referred to by constable Whittle and printed on the labels on the pill bottles found in the vehicle, were similar to the behaviour exhibited by the appellant at the scene. Without dealing with each drug separately the Court concluded that “Mr. Rajotte’s description of the effect of lorazepam, clonazepam and clonidine almost mirror the officers’ description of the accused at the scene.” The trial judge then went on to find the accused guilty of driving while impaired by a drug.

[6] Counsel for the appellant argued that in reaching his conclusion, the trial judge failed to apply the test in W (D) in considering the testimony of the appellant at trial. While there is no question that there was no W (D) analysis, I find no merit in this argument. The appellant testified on a voir dire concerning the admissibility of certain evidence that was subsequently excluded, although the testimony itself of the appellant was admitted to be applied to the evidence as a whole on the substantive offence.

[7] An examination of the evidence of the appellant discloses no reasonable explanation as to his state of impairment that might create a reasonable doubt. His evidence was essentially worthless for that purpose. He simply testified that he had not been sleeping well and was therefore extremely sleepy when arrested. There was no alternative explanation provided as to why he was so sleepy.

[8] However, after reviewing the transcript with respect to the remaining evidence which was not excluded, and upon which the conviction was based, I am satisfied that the Crown failed to establish beyond a reasonable doubt that the appellant’s impairment was caused by a drug. Although it was established by the forensic report that the appellant’s behaviour was extremely similar to the effects of the various drugs recited by Constable Primrose, there was no evidence other than the names on the various labels on the pill bottles that the bottles actually contained those drugs, nor was there any evidence that those drugs were in his system. Accordingly, I am allowing the appeal and entering a dismissal on the charge against the appellant.

Karam J. Released: 2017/06/23