Court File and Parties

Court File No.: Toronto 12000564 Date: 2012-09-05 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christopher Sitarz

Before: Justice K. Caldwell

Heard on: November 17, 2011; April 2 and 23, 2012; May 24, 2012; June 14 and 18, 2012

Reasons for Judgment released: September 5, 2012

Counsel:

• Ms. Rebecca Edward for the Crown
• Mr. Phillip Patterson for the accused Mr. Christopher Sitarz

K. Caldwell J.:

[1] Mr. Sitarz is charged with impaired driving. The only issue is intent.

The Facts

[2] The Crown's case is not disputed. It is conceded that Mr. Sitarz had extremely high blood alcohol readings when stopped by the police, 230 and 232 mg of alcohol per 100 ml of blood.

[3] PC Ong testified that he saw Mr. Sitarz driving the wrong way on Adelaide Street West in downtown Toronto just after midnight on February 12, 2011. There is no question that Mr. Sitarz' actions were very dangerous. This street cuts through the heart of Toronto's entertainment district and thus the traffic is very heavy at that hour on a weekend night. Drivers were honking and yelling at Mr. Sitarz, attempting to drive around him.

[4] Mr. Sitarz stopped his car in the middle of the street so the officers directed traffic around it and then PC Ong went up to the car. Mr. Sitarz began inching his car away slowly while looking at the officer with "a dead stare".

[5] The officer tried to get Mr. Sitarz to stop; finally he did just that after switching lanes. Once he rolled his window down, the officer could smell the strong odour of an alcoholic beverage coming from his breath and noted that his eyes were bloodshot, red and glossy. He was either non responsive or very slow to respond to the officer's subsequent demands. He was unsteady on his feet and had to be held up by the officer at one point. Ultimately he was taken to Traffic Services and breath samples were taken.

[6] PC Gerrits also testified. As the police testimony is not in dispute, I will not outline his testimony but note that he corroborated PC Ong's testimony.

[7] PC Wiggerman was the final Crown witness. He is a qualified breathalyser technician. He, too, noted that Mr. Sitarz was unsteady on his feet, had bloodshot and watery eyes, and displayed obvious signs of alcohol consumption.

[8] He administered the breath test twice, taking samples of 232 mg alcohol per 100 ml of blood at 1:29 am and then 230 mg alcohol per 100 ml of blood at 1:55 am.

[9] Mr. Sitarz testified that he drove on his own from Schomberg, Ontario to Toronto to go to a "Fast Life" speed dating event at a bar in the entertainment district. The concept is that men and women have five minutes to sit and chat with one another one on one at tables before the couples mix up and move on. This allows everyone the chance to talk briefly with a number of people of the opposite sex to see if they like one another and might like to go out on another occasion.

[10] Mr. Sitarz arrived around 7:00 or 7:30 pm, and ordered a vodka Red Bull. He was fairly sure that he also ordered a second drink at some point. He is also a smoker and left on more than one occasion to go outside for a cigarette. He would leave his drink unattended inside when he left for the cigarette.

[11] His intention that night was to order three to four drinks, following the "one drink per hour" rule. At one point towards the end of his testimony he said in response to a clarification question I asked that he remembered having three or four drinks but not more. Despite this answer, I inferred from his overall testimony that he could not recall ordering more than two drinks that night.

[12] It was clear that his memory of the latter part of the evening, including the latter part of his time at the bar, was very vague. He remembered talking to a woman at the end of the evening but also feeling at the time as if he had just woken up. He remembered virtually nothing after that point. He acknowledged that he doesn't know how much he drank that night.

[13] He works as a petroleum contractor, and does gas installations at gas stations. He was set to begin work the next morning at 6 am which was one of the reasons why he intended to keep his alcohol consumption minimal and return home at a reasonable hour.

[14] He did not work the following day given what occurred the night prior. He was, however, sufficiently concerned about what had gone on that night that he went to his local hospital's emergency room the following evening to discuss what had happened and to ask if he could have been drugged.

[15] In the past he has drunk to excess, to the point of intoxication, but he has never been severely intoxicated nor has he ever drunk to the point of not remembering anything.

[16] Both the Crown and the defense submitted toxicological evidence in the form of reports. Two reports were entered by the defense and one by the Crown.

[17] Ms. Inger Bugyra, the Crown toxicologist, described in her report the various mental and physical functions required to drive with skill and care, plus the effect of various blood alcohol (BAC) levels on those functions. In her opinion impairment becomes significant at a BAC of 50 mg alcohol per 100 ml of blood.

[18] Dr. Mayer who authored the first defense report wrote that his review of the Crown disclosure materials indicated that the Intoxilyzer machine was operating properly. He noted, however, that the machine is not equipped to detect the presence of drugs in the blood.

[19] Dr. Krishnan, the author of the second defense report, wrote of the level of alcohol that would have been in Mr. Sitarz's system at the time he took the Intoxilyzer tests and at the time he was stopped by the police if he had consumed three to four drinks between 7 pm and 10:00 or 10:30 pm. The levels would have ranged from 0 mg alcohol per 100 ml of blood to 22 mg alcohol per 100 ml of blood depending upon Mr. Sitarz's rate of elimination.

[20] He added that in his opinion driving impairment begins once the BAC is 40 mg of alcohol per 100 ml of blood.

[21] I accept as fact all of the evidence from all of the witnesses as outlined above.

The Issue

[22] The only issue is whether Mr. Sitarz had the requisite mens rea. Mr. Sitarz argues that his voluntary consumption of alcohol was minimal – that would be two drinks prior to 10 pm given my factual finding outlined above. He contends that an intervening act, albeit unproven, unknown and not volitional on his part, intervened to place him in a state that left him cognitively unaware of his subsequent alcohol consumption. Clearly, he suspects that his unattended drink or drinks in the bar were drugged. He does not dispute that he drank sufficient alcohol to result in the exceedingly high Intoxilyzer readings that were taken at the station. He simply argues that the consumption that led to these readings was not voluntary.

[23] The Crown contends that no intervening act occurred and that Mr. Sitarz simply overindulged. Alternatively, even if an intervening act did occur, the Crown points out that any degree of impairment, whether slight or extreme, is sufficient for a guilty verdict and given that Mr. Sitarz did by his own admission voluntarily consume two drinks then the Crown's case is established.

The Law

(i) The Necessary Intent

[24] Justice Leslie Pringle of this Court thoroughly and concisely outlined the mens rea impairment law in her recent decision R. v Domb, [2011] O.J. No. 5946. She noted that any degree of impairment ranging from slight to great is sufficient for impaired operation according to the Ontario Court of Appeal decision R. v. Stellato (1993), 78 C.C.C. 380, aff'd, 90 C.C.C. (3d) 160 (S.C.C.) (see para. 41 Domb).

[25] In R. v. Toews, [1985] S.C.J. No. 48 the Supreme Court of Canada held that the mens rea is established if it is proven that there was intent to drive a motor vehicle after voluntarily consuming alcohol or a drug. The actus reus is established once the person drives after the voluntary consumption of alcohol or drugs has impaired one's ability to drive (see para. 42 Domb).

[26] Further, in R.v. King, [1962] S.C.J. No. 60 the Supreme Court of Canada held that a rebuttable presumption arises that the impaired condition was voluntarily induced once it is established that the person drove while impaired. If other evidence is put forth which raises a reasonable doubt as to whether the person was able to appreciate that he would or might become impaired as a result of a certain act and thus through no fault of his own he drove while disabled, then the presumption is rebutted (see para. 45 Domb).

[27] Justice Ritchie stated:

If the driver's lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment which results by saying that he did not intend to get into such a condition, but if the impairment has been brought about without any act of his own will, then, in my view, the offence created by s. 223 cannot be said to have been committed.

The existence of a rebuttable presumption that a man intends the natural consequences of his own conduct is a part of our law, but its application to any particular situation involves a consideration of what consequences a man might be reasonably expected to foresee under the circumstances (King, supra)

[28] Justice Ritchie used as an example a drug used on doctor's orders with no warning concerning a possible impaired effect. In such a case, the presumption would be rebutted (see para. 45 Domb).

Application of the Law to the Facts in This Case

[29] I find that in the very unique circumstances of this case the mens rea has not been established.

[30] The rebuttable presumption has been raised as Mr. Sitarz was clearly impaired by alcohol when he drove. I find, however, that his evidence raises a reasonable doubt that the impairment flowed from a voluntary act on his part and instead find that it is reasonably plausible that a substance was slipped into his drink which so affected his cognitive abilities that his subsequent alcohol consumption was no longer voluntary.

[31] Ms. Edward argued that there is no proof before me that a substance was ever administered, what the nature of that substance was, or by whom it was administered. She is right. I do not find, however, that Mr. Sitarz is required to provide such proof as that would effectively shift the onus to Mr. Sitarz.

[32] All that is required is that the evidence leaves me with a reasonable doubt in order to rebut the presumption. I find I am left with such a doubt and further I find that it is a reasonable one and not merely a matter of frivolous speculation. I conclude that it is reasonable on the following bases:

• I had the benefit of hearing and observing Mr. Sitarz testify and I find that he genuinely believes that an intervening act such as the drugging of his drink took place;

• His credibility on this point is further supported by his visit to his local hospital the following evening;

• The opportunity to slip something into the drink was present given his testimony that he left his drink unattended when he went out to smoke;

• I take notice that in this day and age it is unfortunately within the realm of possibility for an unattended drink to be tampered with in a bar. The motivations of others to do such an act can defy rational explanation thus I find it plausible that this would have occurred despite the lack of an obvious motive to commit such an act;

• Mr. Sitarz is not a neophyte concerning alcohol consumption. He admits he has been intoxicated before. Clearly there was something that occurred on this occasion that was highly out of the ordinary when compared to his prior experiences;

• To a lesser extent, I factor in his need to remain sober in order to work the next morning and get home at a reasonable hour.

[33] I have also considered the Crown's submission that any degree of impairment is sufficient for a finding of guilt and thus Mr. Sitarz is guilty as by his own admission he voluntarily consumed a couple of drinks. I find, however, that this scenario is not what was contemplated in Stellato. Both the crown and defense experts indicate that impairment begins at a level beyond that which would flow from consuming two drinks three or four hours prior to driving. I find in this instance that the impairment did not result from the voluntary consumption of a couple of drinks earlier in the evening but find instead that a reasonable doubt flows from Mr. Sitarz's evidence regarding a possible intervening act, unknown at the time to him, that caused him to lose his awareness of his subsequent consumption.

[34] I therefore find Mr. Sitarz not guilty of the charge.

Released: September 5, 2012

Signed: "Justice K. Caldwell"