Pubdate: Fri, 18 Dec 2015
Source: Winnipeg Free Press (CN MB)
Copyright: 2015 Winnipeg Free Press
Contact: http://www.winnipegfreepress.com/opinion/send_a_letter
Website: http://www.winnipegfreepress.com/
Details: http://www.mapinc.org/media/502
Author: Mike McIntyre
Page: A8
Bookmark: http://www.mapinc.org/find?224 (Cannabis and Driving)

DRIVING HIGH NOT ENOUGH FOR CONVICTION

Impairment Not Proven, Says Judge

HE admits smoking up before getting behind the wheel and feeling a 
bit "tipsy" as a result. But one of the first "driving while impaired 
by drug" cases in Manitoba has ended with the accused going free 
because a judge says it's not clear whether the accused's marijuana 
use had any significant impact on his motor skills.

"The indicia of impairment by alcohol are fairly well-known and 
accepted in the case law: improper driving, bloodshot or watery eyes, 
flushed face, odour of alcohol, slurred speech, lack of co-ordination 
and inability to perform physical tests, a lack of comprehension and 
inappropriate behaviour," provincial court Judge Cynthia Devine said 
in her written decision.

"The same cannot be said for the indicia of impairment by drugs."

The Criminal Code was amended in 2008 to make drug-impaired driving 
its own unique offence. But there have been a "relatively small" 
number of arrests and convictions in Manitoba, said Devine.

In this case, Tyler Manaigre was spot-checked by RCMP in November 
2013 while driving near Steinbach. Cpl. Terry Sundell told court he 
pulled Manaigre over because he was only doing about 80 km/h, which 
was 20 km/h below the posted limit. There were no other issues with 
his driving.

Sundell had been specifically trained in drug recognition, finishing 
a course in Florida weeks earlier. He said his suspicions were raised 
by the slower driving, even though it was a dark winter's night.

"He noticed that the accused appeared to have larger than normal 
pupils and that the white part of his eyes had pink lines, known as 
reddened conjunctiva, which is, among other things, an indication of 
having consumed marijuana," Devine said in her judgment.

Manaigre admitted he had smoked about half a gram of pot that night 
but that he felt like he was OK to drive.

Sundell put him through the standard field sobriety protocol, which 
involves a number of physical co-ordination tests such as balancing 
on one leg and touching your nose. Sundell testified Manaigre "did 
not perform (some of) them well."

"He testified however that the accused's movements were slower and 
more deliberate and his manner of speaking seemed more deliberate, 
'It seemed that he wasn't doing everything right off the bat. He was 
processing it and then responding,' " Devine said in summarizing the 
officer's evidence.

Once at the RCMP detachment, Sundell put Manaigre through a specific 
drug evaluation as required by law. Again, he performed well in some 
tests, not so well in others. But Sundell said there was no doubt in 
his mind Manaigre was impaired.

"People that are sober and have no disabilities do not perform poorly 
on these examinations," he told court

Devine wasn't as confident. She said there was nothing about 
Manaigre's driving that night that speaks to possible impairment and 
the mixed results on his various tests don't provide a clear picture 
of his status.

"The accused in this case did well on several aspects of the tests 
and not as well on others. It is also difficult to know how a 
completely sober person would perform on several of these tests. The 
presumptive statement of the officer that sober people do not have 
difficulty with these tests is not helpful," said Devine.

She said the law requires her to find there was more than just 
"marijuana use" but actual impairment in order to convict.

"The evidence is therefore at best, equivocal," said Devine. "It is 
difficult to know precisely how performance on the tests is 
correlative to impairment."

Devine's lengthy decision breaks down every single test Manaigre was 
put through and assesses the results.

"I am satisfied he consumed marijuana. I am even satisfied that he 
felt the effects of the marijuana at some point. But I am not 
satisfied beyond a reasonable doubt that his ability to drive was 
impaired, even to a slight degree, which is what is required in a 
driving-impaired case," said Devine.

The Crown will have 30 days to decide whether they wish to appeal 
Devine's decision.
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MAP posted-by: Jay Bergstrom