Court File and Parties

COURT FILE NO.: 20- 10977AP DATE: 2023/01/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Ali Mankal Appellant

Counsel: Miriam Fahim, for the Respondent Brandon Crawford, for the Appellant

HEARD: January 18, 2023 and oral reasons given January 18, 2023

Reasons for Decision on Summary Conviction Appeal

CARTER J.

Introduction

[1] The Appellant was charged with one count of operating a motor vehicle while impaired by drug, contrary to section 320.14 of the Criminal Code. His trial proceeded before Wright, J. in the Ontario Court of Justice. The evidence was presented over four days. At the conclusion of the trial, he was convicted.

[2] The Appellant submits that the trial judge erred in law in the following ways:

a. He failed to meaningfully analyze whether the consistencies between Ms. Chamberlain’s evidence and the Appellant’s evidence gave rise to a reasonable doubt;

b. He relied on opinion evidence that was outside the scope of the Drug Recognition Expert’s (DRE) expertise; and

c. He materially misapprehended the DRE’s opinion evidence.

[3] At the end of the hearing, I allowed the appeal with an indication that written reasons would follow. Given my conclusion that the trial judge misapprehended the evidence of the DRE and that a new trial is warranted, I need not address the first two grounds of appeal.

Evidence

[4] At 5:07 am on Saturday, July 25, 2020, the Appellant’s ex-fiancé, Katarina Chamberlain, called 911 to report that the Appellant left their residence in a white Audi A5. She stated that she reported it because she did not believe he was being safe. She attributed this both due to her opinion that he may have suffered a concussion and because he had been drinking the day before and may have been suffering from a bad hangover.

[5] Ms. Chamberlain was concerned that the Appellant had a concussion because she witnessed him fall at least twice, within the hours prior to him driving. She surmised that he must have had a concussion due to the extent of the trauma and because he was not acting like himself.

[6] Sarah Rashid, a paramedic, arrived at the scene of a motor vehicle accident at Eagleson Road and Cope Drive at approximately 5:32 am. She observed a white Audi in the median, with significant front-end damage and a light post on the ground. She saw the Appellant eating beef jerky. She described his behaviour as very non-chalant. Her evidence was that he had trouble following conversation and would blurt out irrelevant things. She noted that he had an unsteady gait and an inability to recall what happened. He dozed off during the ride to the Queensway Carleton hospital.

[7] Ms. Rashid stated that, based on her visual assessment, the Appellant appeared to be intoxicated due to his unsteady gait, difficulty following conversation, and inability to recall what happened.

[8] In cross-examination, Ms. Rashid admitted that when questioning the Appellant, he described that he had suffered a loss of consciousness days prior to the accident.

[9] Constable Steven Nielsen testified that he arrived at the scene of the accident at approximately 5:22 am. Sergeant Convey was already at the scene speaking to the Appellant. Constable Nielsen noted that the Appellant was holding his head, stumbled as he walked and had difficulty maintaining balance. The officer noted no signs of impairment other than the balance issue while he was attempting to get to the ambulance. When asked if the Appellant could have been in shock, the officer agreed.

[10] Constable McDade testified that she arrived at the scene around 5:30 am. The Appellant was sitting down, eating beef jerky. He was slurring his words, had bloodshot eyes and pinpoint pupils. He was not making much sense. She noted the injuries to his chin and arm. She stated that he was so unsteady on his feet that he almost fell over as he walked towards the ambulance. At 5:51 am, she formed grounds that the Appellant was impaired by drugs and arrested him.

[11] Constable Tierney recalled being dispatched to the area of Cope and Eagleson where he ultimately arrived at 6:10 am. He thereafter transported Constable McDade’s cruiser to Queensway Carleton Hospital, where he arrived at 6:23 am. He then searched the Appellant incident to arrest at the hospital. The only observations made of the Appellant’s behaviour were that he was completely compliant the entire time. While he noted that the Appellant seemed unsteady on his feet, he did not note any displays of mental impairment.

[12] Constable Brayden Moore was the Drug Recognition Expert who evaluated the Appellant. He began the evaluation at 7:19 am at the hospital. He conducted the 12-step DRE evaluation and testified in detail about how the Appellant presented at each step of the testing. After completing the evaluation, Constable Moore concluded, based on the totality of all of the circumstances, that the Appellant was impaired by three drug classes which were: narcotic analgesic, cannabis and a hallucinogen. He made a demand for a sample of the Appellant’s urine and sent it to Centre of Forensic Sciences (CFS) for testing.

[13] For the purposes of this appeal, the critical evidence relates to the observations of the DRE at the commencement of the test. He noted the Appellant to have watery eyes with “pinpoint” or “constricted pupils.” The following exchange took place when the DRE was being cross-examined:

Which other observations would you say are specifically consistent with a use of a narcotic?

A. That I observed?

Q. Yes.

A. The pinpoint pupils.

Q. Right, and is that....

A. The - the....

Q. Is that different to when someone has not slept?

A. It is.

Q. And is it inconsistent with his concussion?

A. It is.

Q. And is it inconsistent with his medical condition for his ptosis?

A. It is. The ptosis won’t affect his – his pupils. The ptosis is the droopy eyelids.

Q. So, you can say that his head injury would not cause the – the pinpoint pupils?

A. So, through my training experience, what we’re looking for in signs of a head injury or any sort of medical condition, is we’re looking at the difference in pupils – unequal pupils unable to track the stimulus, and we’re also looking for nystagmus. Nystagmus can be a sign of a head injury, brain tumor.

Q. So, these are things that you’re taught to look for, but you agree with me that you are not a doctor?

A. I am not, no.

Q. And you cannot say for certainty that – that pinpoint pupils or small pupils would be consistent with a – a head injury?

A. I – I cannot say as a doctor that.

[14] Christina Watts, a forensic toxicologist from the CFS, testified as an expert witness. She stated that the urine sample obtained from the Appellant included: cocaine, MDMA, MDA, methylene, hydromorphone, etizolam, diphenhydramine and carboxy, a compound related to THC. She testified that while CFS can test for the presence of drugs in a person, she cannot give evidence about the quantity or time of consumption. She testified about the various effects these drugs have on the human body and how they can impact a person’s ability to operate a motor vehicle.

[15] Ms. Watts testified that the three drug classes identified by the DRE were represented by the list of drugs detected in the Appellant’s urine.

[16] With respect to pinpoint pupils, Ms. Watts gave evidence that they are consistent with drug use but there could be other causes. This fell outside her area of expertise.

[17] The Appellant testified in his own defence. He stated that he is prone to concussions due to an old injury. He also testified that he has ptosis, a condition that causes his eyelids to sag.

[18] He testified that on Wednesday, July 22, 2020, he took MDMA. On Thursday, he fell backwards while urinating and hit the back of his head. He stated that he did not think much of it and felt as if nothing had happened. On the same day, the Appellant used his vape pen which contains THC. On Friday, the Appellant fell while urinating, and cut his chin on the bathtub. His ex-fiancé glued his chin to stop the bleeding. At approximately 10:00 pm that night, he took a Percocet to address the pain. He stated that he felt “very foggy.” He had an extreme headache, blurry vision and felt disoriented. He did not sleep that night in fear he could suffer a concussion.

[19] The Appellant testified that around 5:00 - 5:15 am (on Saturday, July 25, 2020), his vision returned, and his headache was subsiding. As such, he believed that he was able to drive himself to the hospital. He got into a car accident and his air bags deployed. He could not recall the details of what happened. He had no memories of being inside the ambulance. He recalled being assessed by a police officer. He could not recall if he received any medication at the hospital but remembered being discharged from the hospital, where his brother picked him up.

[20] When asked about feeling dazed at the time of the accident, the Appellant said that it was as a result of the concussion. He denied that he was impaired by drugs.

Reasons for Judgment

[21] In his oral reasons, the trial judge summarized the evidence of each of the Crown witnesses followed by a brief review of the Appellant’s testimony.

[22] Three issues to decide were identified.

[23] The trial judge first asked himself whether the Crown had proven, beyond a reasonable doubt, that the Appellant was operating a motor vehicle. Based on the Appellant’s own testimony as well as his admission to the paramedic, the trial judge found that he was.

[24] Next, an assessment was undertaken as to whether the Appellant was impaired in his abilities to operate a motor vehicle. In this regard, the trial judge found that the evidence was “simply overwhelming” (referring to 12 factors). The trial judge further noted that the Appellant did not challenge the fact that he was impaired, but rather suggested that it was a concussion that may have caused the impairment.

[25] The final inquiry was whether the Crown established beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle was, at least in part, impaired by a drug. After a review of the jurisprudence, the trial judge referred to the defence argument that a W.(D.) analysis must be employed to reject the possibility of impairment caused by concussion. In response, it was noted that some of the DRE tests are designed to rule out causation by other means. As an example, the trial judge specifically referred to the evidence of Constable Moore that pinpoint eyes could not be the result of a concussion, which suggests they were caused by something else.

[26] In assessing the Appellant’s evidence, the trial judge again referred to the evidence of the pinpoint eyes. It was held that while the Appellant diagnosed himself with a concussion, the only evidence before him was that the pinpoint eyes could not have been the result of a head injury. The trial judge went on to conclude that the credible evidence of the DRE runs counter to that of the Appellant. It was in that context, that the evidence of the Appellant was rejected and was found incapable of raising a reasonable doubt.

[27] The trial judge then went on to consider whether the Crown had proven impairment by drug beyond a reasonable doubt. In looking at the totality of the evidence, including the expert opinion, he held that it had.

Misapprehension of Evidence

[28] The Appellant argues, and the Respondent concedes, that the trial judge misstated the evidence with respect to the pinpoint pupils. The misstatement of the evidence occurred twice during the reasons for judgment. Both instances occurred in the following passage:

The D. R. E. tests are designed to identify, one, impairment and two, causation. So some of the tests are, in fact, intended to rule out causation by other means including physical causes. For example, the eye test, are the pupils the same size? D. R. E. Moore was specifically asked, for example, could pinpoint eyes be as a result of confession – con [sic] – sorry, concussion and he replied that they could not. This is the only evidence before me with respect to the cause of pinpoint . Which would suggest that the presence of pinpoint eyes would suggest they are caused by something else all together

D. W. tells us if the accused is believed he is entitled to an acquittal, if his evidence is not believed but is capable of raising a reasonable doubt then again, an acquittal must follow. And that if the accused is not believed and his evidence is not capable of raising the reasonable doubt then the Court must still acquit if there is a reasonable doubt based on the totality of the evidence. It is Mr. Mankal’s evidence that there was historical consumption, that of all of the categories as set out by the D. R. E., his testimony is that he had some memory loss that morning so there is a reliability factor. All witnesses described his behaviour to varying degrees including confusion. Mr. Mankal diagnoses himself with a concussion. The evidence is that he had pinpoint eyes the only evidence led is that this could not be as a result of a head injury . [emphasis added].

[29] While the DRE first stated “it is” when asked if pinpoint pupils are inconsistent with a concussion, he later stated that he could not say for certainty that pinpoint pupils would be consistent with a head injury as he is not a doctor. This was a critical qualification. In light of that qualification, the trial judge’s statement that pinpoint eyes “could not” be as a result of a head injury was wrong.

[30] When a trial judge is mistaken as the substance of the material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, an accused’s conviction is not base exclusively on the evidence and is not a true verdict. In such cases, it follows that a miscarriage of justice has occurred, and the accused is not bound to show that the verdict cannot be supported by the evidence. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction". R. v. Lohrer, 2004 SCC 80 at paras. 1 – 4.

[31] The misapprehended evidence was material to the trial judge’s reasoning process in light of the following:

a. The Appellant conceded impairment; the only issue was the cause of the impairment. The Crown argued it was the result of drugs, the Appellant that it was caused by a head injury. The evidence of the pinpoint pupils was relevant to that central issue at trial;

b. The determination of the DRE is not conclusive of the ultimate question of whether the accused was driving while impaired by a drug. The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge to consider R. v. Bingley, 2017 SCC 12 at para. 31. In other words, the Appellant’s evidence had the potential to raise a reasonable doubt with respect to the cause of impairment;

c. The trial judge’s first reference to the pinpoint pupils in his analysis is in the context of a discussion of the Appellant’s evidence and the application of W.D. Although the trial judge refers to the pinpoint pupils being an example of a test intended to rule out causation by other means, it is the only example provided. The fact that it is on the only example mentioned by the trial judge speaks to the importance of the evidence in his reasoning process; and

d. In the next reference, the trial judge notes that the pinpoint pupils could not have been the result of a head injury directly after noting that the Appellant had diagnosed himself with a concussion. In other words, the trial judge used the misapprehended evidence of the DRE on the pinpoint pupils as a basis to the reject the evidence of the Appellant on the central issue at trial.

[32] In light of the above, the misapprehension of the evidence played an essential part in the reasoning process resulting in a conviction. The Appellant did not receive a fair trial and a miscarriage of justice has resulted. It matters not whether the evidence adduced at trial was otherwise capable of supporting a conviction.

[33] The appeal is allowed, and a new trial is ordered.

Carter J.

COURT FILE NO.: 20-10977- AP DATE: 2023/01/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King, Respondent AND: Ali Mankal, Appellant

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL Carter J. Released: January 19, 2023