Court File and Parties
Court File No.: Peel 11-001730 Date: 2012-12-03 Ontario Court of Justice
Between: Her Majesty the Queen — and — Kuldeep Joshi
Before: Justice T. Wolder
Heard on: December 2, 2011, March 9, 2012, August 31, 2012
Reasons for Judgment released on: December 3, 2012
Counsel:
- Megan Ward for the Crown
- Brian Starkman for the accused Kuldeep Joshi
WOLDER J.:
Charge
[1] Kuldeep Joshi stands charged that he on or about the seventh day of February, 2011, at the City of Brampton while his ability to operate a motor vehicle was impaired by a drug, did have the care or control of a motor vehicle contrary to section 253(1)(a) of the Criminal Code.
Facts
[2] At about 4:55 p.m., during the busy rush hour on Monday, February 7, 2011, in the City of Brampton, the accused was observed to be asleep in the driver's seat of his vehicle that was stopped in the live centre lane of the three northbound lanes of traffic on Airport Road in the City of Brampton. As a result, northbound traffic started to back up around this impediment as northbound vehicles tried to move around the stopped vehicle. At the time the car's headlights were on, the engine was running, and the accused was sitting in the driver's seat of the vehicle, fast asleep.
[3] Harjit Aujla had to drive his transport truck and trailer around the stopped vehicle. While doing so, he observed the driver of the vehicle leaning slightly sideways in the driver's seat with his hand on his stomach. It appeared to Mr. Aujla that the driver of the stopped vehicle may have been ill or in pain.
[4] Constable Shaun Stanley received a radio call about the obstruction at 4:55 p.m. and immediately attended at the scene, arriving there at 4:58 p.m. He observed a black two-door Honda Civic stopped in the middle lane of the northbound lanes of traffic. The vehicle's engine was running and the headlights were on. The driver appeared to be passed out behind the wheel. The accused's feet were in the area of the gas and brake pedals. All doors to the vehicle were locked. Constable Stanley banged on the windows to try to wake the driver but the accused was non-responsive and appeared to be unconscious. After banging loudly on the windows, first on the passenger side and then on the driver's side for about two minutes, P.C. Stanley finally managed to get the attention of the accused, who then appeared extremely disorientated. When P.C. Stanley was finally able to get the accused to unlock the doors, P.C. Stanley then immediately reached into the vehicle and shut off the engine using the keys and then placed the keys in his pocket.
[5] Based upon all the evidence that I have heard, there is absolutely no doubt that at 4:58 p.m., when the accused was observed by P.C. Stanley, the accused's ability to operate a motor vehicle was at that time impaired.
The Issue
[6] The issue in this case is whether the Crown has proven beyond a reasonable doubt that when the accused was found to be in the care and control of his vehicle at 4:58 p.m., that his ability to operate his motor vehicle was at that time impaired by a drug, as alleged in the information before this court.
Defining the Issue in This Case
[7] The accused frankly admitted that at about 4:30 p.m. that day, while in the parking lot of the Walmart store, he had smoked 4 or 5 drags from a cigarette joint containing a substance provided to him by a friend that his friend told him was marijuana. The accused was advised by his friend that smoking the joint would help relax him. The accused and his friend voluntarily smoked the substance in the friend's motor vehicle before the accused moved to his own motor vehicle and then drove his motor vehicle on Airport Road. The accused testified, and I accept, that he had no previous experience with smoking marijuana. He had never smoked marijuana in the past. He did not know what marijuana looked like. He had never previously experienced the impact that smoking marijuana would have upon him. Based upon what he had been told by his friend, he honestly believed that he had been smoking marijuana. The accused admitted that immediately after he had smoked the joint, it had a negative effect upon him, in that he felt somewhat strange. Notwithstanding having experienced this negative effect upon his person, he nonetheless voluntarily got behind the wheel of his motor vehicle and then drove his motor vehicle from the Walmart store onto Airport Road to the location where he was found in a passed-out condition.
[8] It is the theory of the defence that the Crown has failed to prove beyond a reasonable doubt that the substance that the accused smoked was in fact marijuana and that therefore the Crown has failed to prove beyond a reasonable doubt that the accused's impairment was on account of his having smoked marijuana.
[9] The Crown does not agree that the case has to be framed this narrowly. It is the theory of the Crown that the offence with which the accused is charged is having the care or control of a motor vehicle while he was impaired by a drug.
[10] There is no doubt that smoking marijuana comes within the definition of a drug. However, the Crown submits that even if the substance smoked by the accused could not be proven to be marijuana beyond a reasonable doubt, there is no doubt that the substance smoked by the accused was a drug, in that he knew that smoking this substance would affect his physiological state. The Crown submits that therefore even if the court does not find that the substance smoked by the accused has been proven to be marijuana beyond a reasonable doubt, there is ample evidence to support a finding that the accused smoked a substance that he knew or reasonably should have known to be a drug, in that by smoking this substance, it would affect his physiological state and that in fact, it did affect his physiological state by causing him to pass out shortly after having smoked it. The Crown therefore submits that the charge before this court has been proven beyond a reasonable doubt.
Was There an Agreement Between the Crown and Defence That Has a Bearing Upon How This Court Should Interpret the Evidence?
[11] In Ms. Ward's opening statement she states, "And I can advise Your Honour we've narrowed this down to one issue…this is a one issue trial." [See transcript of December 2, 2011 at page 5]
[12] After the accused was arraigned, Ms. Ward went on to state [See page 8 of the December 2, 2011 transcript]:
The only issue in this case is whether or not the Crown can prove that at the relevant time the gentleman was impaired by a drug. Whether, whether the Crown can prove beyond a reasonable doubt that it was a drug causing his impairment.
Mr. Starkman, counsel for the accused took no issue with this statement.
[13] In his submissions made after the completion of the trial, Mr. Starkman submitted that the Crown had failed to prove beyond a reasonable doubt that the substance smoked by the accused was in fact marijuana. While the defence now acknowledges that the Crown is entitled to attempt to prove its case beyond a reasonable doubt based upon the substance being smoked by the accused being something that cannot be confirmed to be marijuana, the defence submits that in such case, the Crown has to prove both the actus reus and the mens rea of the offence. The defence submits that even if the Crown can satisfy this court beyond a reasonable doubt that the accused consumed a drug, the Crown has failed to prove beyond a reasonable doubt that the accused had the necessary mens rea to support a conviction in this case.
Was There an Agreement Between the Crown and Defence on the Nature of the Evidence?
[14] When this issue was raised during submissions the Crown argued that the only issue before this court was whether it could prove whether the substance consumed by the accused was a drug and that mens rea was not in issue, Mr. Starkman having agreed that this was a one issue trial. The Crown submits that if the court was going to allow the defence to vitiate that agreement after the trial had been completed, then the Crown would seek leave to reopen the trial to allow it to lead evidence on the issue of mens rea, which the Crown had specifically not addressed at trial based upon its understanding of the agreement it had with the defence. After the completion of this trial, the Crown did not bring a motion to allow it to reopen her case to cross-examine the accused further on the issue of mens rea. In the Crown's later written submissions, the issue of reopening the case was not raised and no formal motion to reopen this case was ever brought by the Crown.
Analysis
[15] There is no doubt that this case had been presented to me by both the Crown and defence as a one issue trial. Based upon the submission of Ms. Ward at pages five and eight of the December 2, 2011 transcript it is clear that the single issue was defined as whether the Crown could prove beyond a reasonable doubt that it was a drug that caused the accused's impairment.
[16] When reviewing Mr. Starkman's submissions at page 16 of the December 2nd transcript it becomes apparent that the agreement that the Crown understood to exist between defence and the Crown may not have been as clear as stated by Ms. Ward, when Mr. Starkman went on to state:
I disagree with my friend when she says that, that the – it's not really relevant whether or not he had marijuana…However, it would have – to me this is a huge issue in this trial, is whether he ever – whether he actually consumed marijuana. I mean I expect Your Honour will hear at some point that, I mean, he's told by somebody this is marijuana, and beyond that, beyond some hearsay statement there's not a wit of evidence that – objective evidence that that was what he smoked on this occasion.
The court went on to add at page 17:
What I'm hearing is that his defence is may very well be that …there is no evidence that the substance was in fact marijuana.
To which Mr. Starkman replied, "Right."
[17] With the benefit of 20/20 hindsight, it now becomes clear that the stated agreement between the Crown and defence may not have been as clearly defined as it should have been.
[18] The issue for this court is: 1) whether, based upon all of the evidence before this court the Crown has proven this charge beyond a reasonable doubt, and, 2) if the Crown has not proven this charge beyond a reasonable doubt on account of its failure to address the issue of mens rea, whether this court should allow the Crown to reopen its case for further evidence on the issue of mens rea related to the accused's consumption of a "drug". Since no formal motion to re-open this case was made by the Crown, issue #2 is therefore moot.
Preliminary Conclusion
[19] The charge before this court is framed upon the accused being impaired by a drug that is not defined. There is no doubt that the Crown believes the drug to be marijuana on account of the admissions made by the accused, and based on the expert evidence that it has adduced. The Crown however only needs to prove the charge as articulated beyond a reasonable doubt. In order to do so, the Crown has to prove both the actus reus and the mens rea of the offence.
[20] There is no doubt that the accused possessed the necessary mens rea to smoke marijuana. However, if the substance smoked cannot be proven to be marijuana, then the court must decide whether it has been proven beyond a reasonable doubt that the accused smoked a drug that he knew or should have known could impair his ability to operate a motor vehicle and that, as a result, the accused had the necessary mens rea to consume such a drug that caused him to become impaired.
[21] If this court should find that the Crown has proven beyond a reasonable doubt that the substance consumed by the accused was in fact marijuana, then, based upon the agreement of both counsel on the record, this charge will have been proven beyond a reasonable doubt, based upon the actus reus and mens rea having then both been proven.
[22] If however, this court should find that the accused's impairment was caused by a drug, whose identity cannot be proven beyond a reasonable doubt, then this court also has to be satisfied beyond a reasonable doubt that the accused had the requisite mens rea. The Crown therefore must prove that by voluntarily consuming this particular drug, the accused knew, or reasonably should have known that by doing so, it could detrimentally affect his ability to operate a motor vehicle and could cause him to become impaired.
Findings of Fact
[23] I find that the accused smoked a substance that he knew to be a drug. Although he may have believed that the substance was marijuana, he smoked it, believing it to be a substance that would have a physiological effect upon his body and that the physiological effect would be that it would relax him. He therefore possessed the mens rea to smoke marijuana, being a drug that could have a relaxing physiological effect upon him. I am satisfied that when the accused smoked the substance, he had not addressed his mind to whether smoking that particular substance could cause him to become impaired.
[24] P.C. Okposio is a drug recognition expert. After the accused's arrest, P.C. Okposio was called in to conduct numerous tests in order to determine whether the accused was impaired by a drug. He first met the accused in the breath room at 6:43 p.m., about one and three-quarter hours after the accused had first been observed asleep in the driver seat. He proceeded to conduct a battery of tests, which were concluded at 8:11 p.m. After completing these tests at 8:11 p.m., P.C. Okposio concluded that at that time, the accused was not impaired by a drug. All the tests performed by the accused starting at 6:43 p.m., resulted in a pass or finding that was within the generally acceptable or normal range. Therefore, while P.C. Okposio can only confirm that the accused was not impaired by a drug at 8:11 p.m., I am satisfied that, from observing the accused on the video, there was very little change in his demeanor between the time that the testing started at 6:43 p.m. and testing concluded at 8:11 p.m. Therefore, while P.C. Okposio, based on his limited expertise, can only verify that the accused was not impaired by a drug at 8:11 p.m., I am satisfied that the accused displayed no obvious signs of impairment even at 6:43 p.m., when the testing started.
[25] Laura Gorczynski was qualified as an expert with respect to ingestion, absorption, distribution and elimination of drugs in the human body and of the effects of drugs on the human body. She gave evidence of the effect of marijuana and its active ingredient THC upon the human body.
[26] Ms. Gorczynski testified as to the effects upon the body of a novice marijuana smoker who had consumed 4 or 5 drags of an approximately 3 inch long hand-rolled marijuana cigarette. She testified that the maximum effect would be reached within 20 to 30 minutes. She confirmed that the effects of the drug on a first-time user are more severe than on a chronic or repeat user. She stated that typically, individuals who smoke marijuana cigarettes demonstrate mild euphoria. They demonstrate difficulty with perception of time, slow motor coordination and that sort of effect. She confirmed that smoking marijuana could cause sleepiness and she couldn't rule out that it might possibly cause an individual to fall asleep or pass out. I interpret her evidence to mean that the symptom shown by the accused of having passed out behind the wheel is a possible, though not a probable consequence of having smoked marijuana.
[27] Ms. Gorczynski further testified that the impairing effects of marijuana would still have been noticeable upon a person who had consumed marijuana, 4 to 6 hours after that person started to smoke marijuana. In the case of the accused, some indicia of impairment should therefore still have been noticeable 4 to 6 hours after he started smoking, at 4:30 p.m. or until 8:30 to 10:30 p.m. The fact that P.C. Okposio found no evidence of impairment at 8:11 p.m., together with the severe impact that the smoking had upon the accused less than a half hour after he smoked the substance and the conflicting evidence of Ms. Gorczynski as to the symptoms that the accused should probably have displayed had the substance been marijuana, suggests that the drug consumed by the accused has not been proven to have been marijuana, beyond a reasonable doubt.
[28] I therefore find that the Crown has failed to prove beyond a reasonable doubt that the substance smoked by the accused was in fact marijuana.
[29] The Crown in this case has therefore proven beyond a reasonable doubt that the accused smoked an unidentified drug that he believed to be marijuana, but has not been proven beyond a reasonable doubt to have been marijuana.
Did the Accused Have the Required Mens Rea to Support a Conviction?
[30] While I am satisfied that the Crown has proven beyond a reasonable doubt that the accused consumed a substance that he knew was a drug, and that the drug that he believed that he was consuming would have a physiological effect upon his body, I am not satisfied that the Crown has proven beyond reasonable doubt that the accused knew or reasonably would have known that one of the effects of having smoked this unidentified substance was that it could cause him to pass out shortly after having consumed it. Thus, while the accused certainly knew or should have known that smoking a sufficient amount of marijuana could cause some degree of impairment, I find that the accused would not reasonably have known that by smoking a small amount of this unknown substance, it could cause him to become so impaired that he would pass out behind the wheel on a busy road during rush hour traffic shortly after he had consumed it.
[31] The mens rea required for impaired driving is not a high threshold. In R. v. King, [1962] S.C.R. 746, Ritchie J. stated the following regarding the mens rea in an impaired driving allegation:
The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are two different things, and I am of the opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might be, impaired.
If the driver's lack of appreciation when he undertook to drive was induced by a voluntary consumption of alcohol or other drug which he knew or had any reasonable grounds for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of 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 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.
[32] While it may seem on its face that any consumption of an intoxicant would be sufficient to meet the standard for mens rea, there seems to have been some flexibility in certain situations.
[33] In R. v. Fletcher, 2005 BCPC 67, [2005] B.C.J. No. 491, the defendant had consumed a modest quantity of alcohol. After consuming this alcohol, he involuntarily ingested the drug ecstasy. Although the defendant admitted to consuming a quantity of alcohol, the court did not find that this was sufficient to meet the threshold for mens rea when impairment was clearly caused by the ecstasy and not the alcohol. At paragraph 34 of the decision, the justice stated:
I find, based on the possible combination of a street drug believed to have been ecstasy that was involuntarily ingested, combined with the voluntary consumption of a modest amount of beer consumed just prior, and with the alleged ecstasy, that the accused was unable to appreciate or know that he was or might become impaired. I find on the evidence that this was his possible state at the time he undertook to drive and did drive. I find, therefore, that I have a reasonable doubt as to the issue of voluntarily intoxication.
[34] Similarly, in the case of R. v. Lefebvre, 2010 ABPC 108, [2010] A.J. No. 359, the defendant consumed a quantity of alcohol. She testified she found the last drink she consumed to taste unusual. After consuming the last drink, she lost all recollection of what occurred and the evidence disclosed that she was grossly intoxicated. At paragraphs 97, 98 and 99 of the decision, the court stated as follows:
Here, I have a significant doubt that the intoxication exhibited by the accused was a result of a voluntary consumption. Further I do not find that she was reckless, or otherwise put herself into a situation in which she knew or ought to have known that she would become intoxicated. The Crown criticizes her for taking a drink that was being handed out at a bar. While that may be foolish, I do not believe it consists of the kind of recklessness, which gives rise to criminal liability.
The Accused has not proven positively that she was drugged. She took some steps to determine whether that was what had happened to her and those steps were not successful. It would be an intolerable burden to place on an individual in such circumstances to approve an affirmative defence. This remains a criminal prosecution.
In the end, I must take into account all of the circumstances to determine whether the Crown has proven the case beyond a reasonable doubt and whether, in this case, evidence has been produced to rebut the presumption that the Accused intended the natural consequences of her actions.
[35] I have no doubt that if the respective courts had found that it was the alcohol that caused their impairment or even contributed to their impairment, the accused in both cases would invariably have been found guilty.
[36] In this case, another factor that must be taken into consideration is that the accused had no prior experience in smoking marijuana. Therefore, he knew that marijuana was a drug and was an intoxicant. As a first-time smoker of marijuana, there is no evidence that he was aware of the degree of the intoxicating effect of marijuana upon a person. He therefore knew that smoking marijuana could create some degree of impairment since he took it knowing that it would have a relaxing effect upon him. As a first-time user he would not have known the degree of impairment that would be caused to him by the amount of marijuana smoked by him since he had not experienced smoking marijuana before. Notwithstanding this lack of understanding, and having already experienced some actual negative physiological effect from smoking the drug, in that he admitted that he felt strange immediately after having smoked this substance, he nonetheless voluntarily got into his car and decided to drive during rush hour after having voluntarily ingested that drug. I find that doing so under these circumstances constitutes reckless conduct on his part.
[37] In this case, the Crown was unable to prove beyond a reasonable doubt that the substance smoked by the accused was in fact marijuana.
[38] The Crown has proven beyond a reasonable doubt that the accused smoked a substance that was a drug. I further find that the consumption of this unknown drug in fact caused the accused to have passed out on Airport Road while driving his car during rush hour.
[39] The Crown has also proven beyond a reasonable doubt that the accused smoked a substance that he believed to be a drug for the specific purpose of altering his physiological state, namely inducing relaxation. His knowledge that it was in fact a drug that he had just consumed was confirmed by his own evidence that the consumption had an immediate negative physiological impact upon him, namely, that it made him feel strange. Armed with this knowledge and his further knowledge that he had absolutely no experience with or understanding of the extent of the physiological impact upon his body from this drug, whether it was marijuana or any other drug, he nonetheless made a conscious decision to drive his motor vehicle during rush hour into rush-hour traffic. I find that such conduct therefore, constitutes recklessness, whether the drug that he smoked was in fact marijuana or was in fact something other than marijuana. Such conduct demonstrates a total disregard for the safety of others on the road.
[40] Although the Crown was unable to prove beyond a reasonable doubt that the material smoked was in fact marijuana, I am satisfied that the accused honestly believed that he was consuming a known intoxicant, namely marijuana. I find that the accused in fact smoked an unknown substance. While there is no evidence that the accused intended to consume a sufficient amount of marijuana that would cause his ability to operate a motor vehicle to be impaired, and while his impairment came about from the involuntary consumption of a drug that was different from the one he was led to believe that he was consuming, for the reasons previously stated, I find the accused's conduct in operating his motor vehicle under these circumstances to constitute recklessness.
[41] Since this is a case where the accused had voluntarily ingested a drug that he knew could and did have an intoxicating effect upon him, this case is distinguished from Lefebvre and Fletcher, which is limited to cases of involuntary ingestion of a drug, which is clearly not the case here.
[42] In R. v. Brenton, [1999] N.W.T.J. No. 113, the court found that the accused had in fact consumed marijuana and held that the accused could not rebut mens rea by simply maintaining that he became far more impaired than he expected he would.
[43] At paragraph 31 of its decision, the court stated:
I cannot agree with the appellant's submission. Generally speaking, if the ingestion of a drug (or alcohol) is voluntary and the risk of becoming intoxicated is within the contemplation or should be within the contemplation of the individual, then any resulting intoxication is self-induced. Involuntary intoxication is generally confined to cases where the accused did not know he or she was ingesting an intoxicating substance (such as where the accused's drink is spiked) or where the accused becomes intoxicated while taking prescription drugs and their effects were unknown to the accused. This is fairly basic law.
At paragraph 34, the Court went on to state:
In this case, the appellant knew that the substance he was ingesting was marijuana. He voluntarily smoked it. He knew that it could have an intoxicating effect. Indeed it is reasonable to conclude that he intended it to have an intoxicating effect to some degree (he wanted to relax so he could sleep). He expected it to have an effect on him. What he did not expect, or intend, was the extent of that intoxicating effect. In my opinion, this was a situation of self-induced intoxication and the trial judge came to the correct conclusion.
[44] Here, the accused knew that he was ingesting an intoxicating substance. Whether this intoxicating substance was marijuana or was something else, as a neophyte user, the accused had no real understanding of the extent of the intoxicating effect of either substance. All he really knew was that it would have some intoxicating effect upon him and that intoxicating effect would be in the nature of relaxing him.
[45] In the case before me, the accused believed that the substance he was ingesting was a drug, although I am not satisfied beyond a reasonable doubt that the substance was the specific drug that the accused believed that he was smoking, namely marijuana. While the accused knew that marijuana could have an intoxicating effect upon him and took it for the purpose of relaxing him, and further, while the accused had no knowledge of what impact the unknown substance that he in fact smoked would have upon him, I do not believe that this provides the accused with a defence.
[46] In the context of the evidence in this case, paragraph 34 of the Brenton decision can be paraphrased as follows: In this case, the accused knew that the substance he was ingesting was a drug. He voluntarily smoked it. He knew that it could have an intoxicating effect. Indeed, it is reasonable to conclude that he intended it to have an intoxicating effect to some degree (he wanted to relax). He expected it to have an effect on him. What he did not expect, or intend, was the extent of that intoxicating effect. In my opinion, this was a situation of self-induced intoxication.
[47] Combining the aforesaid conclusion with the fact that the conduct of the accused in driving his car under these circumstances, constitutes recklessness and complete indifference to the harm that his driving under the circumstances could cause, I find that the charge as framed has been proven beyond a reasonable doubt.
[48] I therefore find the accused guilty as charged.
Released: December 3, 2012
Signed: Justice T. Wolder

