July 16, 2018

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Driving while high not enough for conviction, judge rules

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. In this case, the driver was going 80 km/h, about 20 under the speed limit.

JOHN WOODS / WINNIPEG FREE PRESS FILES

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. In this case, the driver was going 80 km/h, about 20 under the speed limit.

Hey there, time traveller!
This article was published 17/12/2015 (941 days ago), so information in it may no longer be current.

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.”

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Hey there, time traveller!
This article was published 17/12/2015 (941 days ago), so information in it may no longer be current.

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 just 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 then 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 that 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.

www.mikeoncrime.com

Mike McIntyre

Mike McIntyre
Reporter

Mike McIntyre grew up wanting to be a professional wrestler. But when that dream fizzled, he put all his brawn into becoming a professional writer.

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