Pubdate: Fri, 25 Jun 2004
Source: Langley Times (CN BC)
Copyright: 2004 BC Newspaper Group and New Media Development
Contact:  http://www.langleytimes.com/
Details: http://www.mapinc.org/media/1230
Author: Al Irwin

THC IMPAIRMENT TRIAL FINALLY ENDS

A trial that began last October, involving the traffic accident deaths
of two Langley youths, concluded Tuesday. The judge has reserved a
decision.

The driver in the single-car crash was 16 at the time of the accident
on April 4, 2002, and cannot be named under provisions of the Youth
Criminal Justice Act.

His passengers, both 16, Dayton Unger, an Aldergrove Community
Secondary School student, and Simon Featherston, a student at D.W.
Poppy Secondary, died after the 2000 Ford Mustang went off the road in
the 6300-block of 264 Street. They were riding in the rear seat.
Another young passenger in the front survived, along with the driver.

The uncommon case involves two charges of impairment by marijuana,
causing death; two counts of dangerous driving causing death, and two
counts of causing bodily harm, by marijuana impairment and by
dangerous driving.

The trial also involved a Charter of Rights challenge, with defence
counsel Allan Hoem arguing unsuccessfully that the blood sample, taken
for medical purposes, then seized by an order of a B.C. Coroner,
should not have been admissable in a criminal proceeding.

Another unusual aspect came up in March, when the defence sought an
adjournment, to have a "black box", or event-data recorder from the
Mustang, examined by analysts.

A defence engineer and collision expert could not retrieve the black
box.

While Hoem had made his final argument in B.C. Provincial Court in
Surrey on May 19, he asked for and was granted leave to respond to the
Crown's summation of June 1.

Hoem told Judge William McDonald on Tuesday that prosecutor Winston
Sayson had been critical of some Crown witnesses, whose testimony was
not consistent with other testimony against the accused. In
particular, the test imony of Linda Cooke - a Langley Memorial
Hospital lab assistant who testified she forwarded one tube of a blood
sample to the Provincial Toxicology Centre (PTC) - was inconvenient
for the Crown.

A toxicology centre assistant, Diane Hill-Hinse, had testified that
two tubes of the accused's blood were received.

Hoem said the worksheet attached to the sample Cooke sent to the PTC
backed her testimony up, with a number 1, for the sample quantity.
Cooke had described a red-stoppered tube, Hill-Hinse received one
pink-topped, one gold-topped vial.

"Even if the court decides that Cooke was wrong, the court has to
determine how the order to seize, and these two samples, got to the
lab, and who did it," said Hoem.

"I suppose she (Cooke) could have," replied the judge.

Hoem also said that the Crown expected the court to accept that B.C.
bud, the highest potency marijuana, was used, to give such a high
THC/blood reading so long after the accident. THC is the active
ingredient in marijuana.

The Crown did not enter such evidence, and without it, the B.C. bud
theory is "speculation" Hoem said.

"The Crown did not lead any evidence (from three witnesses) about the
movement of (the accused) after the accident," said Hoem, who had
earlier raised the possibility that the driver had smoked marijuana
after the accident.

One expert witness had testified that such high level of THC in the
accused's blood indicated inhaling marijuana occurred within minutes
to one hour of the blood sample being taken. Yet the sample was taken
two hours after the accident.

The Crown's final argument was that: "because the patient was strapped
to the bed. . . to suggest the accused managed to sneak a marijuana
break while in the hospital is fanciful speculation."

On Tuesday Hoem also brought forward a precedent case involving "the
defence of necessity," where a driver took evasive action, made an
error in judgement, and was found not guilty of criminal negligence.

Witnesses testified that the accused pulled out to pass a Camaro, at
about 9:45-9:50 p.m., on a double-solid-yellow line, northbound,
uphill approaching a curve. A southbound car came over the hill crest.

Hoem implied the Camaro driver wouldn't let the accused complete the
pass.

"In this case, if it is true that there was speeding involved, (it
was) not only by the accused but also by Smith," Hoem told the court.

Timothy Smith, 20, the driver of a Camaro, had testified that he was
driving at 90 to 95 kmh when the Mustang passed, said Hoem.

"Why did he (Smith) feel he needed legal advice and why did he refuse
to talk to the police (further)?" asked Hoem."The question is, what
was he afraid of?"

"In this case, if the court finds that the vehicle of (the accused)
was kept out in that lane, then the action (cutting over to the proper
lane at high speed) and the error of judgement falls within the
defence of necessity," said Hoem.

The court has set a tentative date for Judge McDonald's decision at
Aug. 31. 
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MAP posted-by: Richard Lake