ONTARIO COURT OF JUSTICE

Between:

HER MAJESTY THE QUEEN

— AND —

FREDERICK WEENING

Before: Justice P. Harris

Reasons for Judgment released on: July 23, 2013

Counsel:

• Ms. Mareike Newhouse — Counsel for the Crown
• Mr. Stephen Price — Counsel for Frederick Weening

HARRIS, P. J.:

BACKGROUND

[1] Frederick Weening is charged with impaired operation of a motor vehicle. The impairment element of the offence has been conceded; the only issue before me is intent.

THE FACTS

[2] On December 2, 2011 at 12:43 a.m. Police Constables Michael Ferreira and Erik Corba were dispatched to the scene of a three-vehicle collision at Dundas Street West and Manning Avenue in Toronto. Upon investigation it was apparent that the defendant's vehicle (a 30' stake truck carrying office furniture) had rear-ended a van with a considerable impact, which in turn collided with a tractor trailer. The driver of the van suffered minor injuries resulting in shoulder and lower back pain.

[3] Before the defendant was involved in the aforementioned rear-end collision he was observed operating his truck north-bound on Spadina Avenue, at half the posted speed limit and weaving back and forth slowly across the lanes so much so that the driver of the above-noted tractor-trailer "could not get around him".

[4] Police officers at the scene of the collision noted that Mr. Weening seemed disoriented, he looked dazed and sleepy, seemed confused and spoke nonsensically at times. Police Constable Ferreira suspected the defendant had been consuming alcohol and following a demand, he administered an ASD roadside breath test and recorded a zero alcohol reading. Mr. Weening was then questioned about his condition – the officer wondering if he had a medical condition and needed to go to the hospital – and he claimed he was "okay", and promptly stepped away from the police vehicle, stumbled and nearly fell, at which time a pill bottle fell from his pocket.

[5] Police Constable Ferreira noted that the prescription was for 0.5 mg. Lorazepam – issued the day before on December 1, 2011. The pill bottle indicated that it contained 30 tablets and the officer observed that there were 18 pills left in the container. The warning on the label of the bottle stated that the medication could cause drowsiness and that caution should be exercised when operating a motor vehicle while using the medication. The officer then formed the opinion that Mr. Weening was impaired by drugs – he thought he has taken too many pills or they were too strong – and he arrested the defendant for impaired operation of a motor vehicle at 2:07 a.m. He then made a demand for a Drug Recognition Evaluation to determine whether his ability to drive was impaired by drugs.

[6] Police Constable Celeste Butt performed the drug evaluation and observed that Mr. Weening was unsteady on his feet, losing his balance continuously. He appeared confused and his statements were nonsensical at times. The defendant was unable to concentrate on the instructions and Police Constable Butt further notes that his speech was slurred, and he was unable to stay awake. The results of the drug evaluation were that Mr. Weening's ability to operate a motor vehicle was impaired by a drug. The testing of a urine sample detected Lorazepam in the defendant's urine.

[7] Ms. Inger Bugyra, the Crown toxicologist gave evidence that Lorazepam is taken under prescription as a central nervous system relaxant for anxiety and seizure disorders. She testified that central nervous system depressants such as the drug in question result in increasingly greater levels of coordination and psycho-motor skills impairment as dosage levels rise. Memory loss could be an additional cognitive effect of the consumption of Benzodiazepines like Lorazepam. She indicated a typical therapeutic dose of Lorazepam could be 1-2 mgs. a day taken at eight hour intervals; as well she stated that the body adapts to the drug and the patient "needs higher doses for the same effect, over time." Additionally, she testified that as the levels of sedation increased, "the ability to be aware of the sedation (effects) would be decreased." She gave evidence that generally, the time to peak effect of sublingually ingested Lorazepam would be about 2 hours, but she were unsure of how different dosages would affect that absorption ratio. While it was not possible to scientifically quantify the amount of drug consumed from its presence in the urine, she indicated that there were studies that established some effects on coordination 6-8 hours after ingestion.

[8] Ms. Bugyra was asked several hypothetical questions, the most relevant of which was: if a regular user of Lorzepam stopped taking the drug for three months and then began taking 1 mg. doses on the same day, what would be the effect? She indicated the person would have low tolerance because of the gap in usage, but as to the effect, she was not sure she could give a very good answer. She testified that it was possible there would be negative effects on the ability to drive and with a 1 mg. dose (twice the regular dose) and resulting higher blood concentration, there would be a corresponding greater effect. Without knowing the Lorzepam concentration in the defendant's blood at the time of driving or the defendant's tolerance level Ms. Bugyra was not able to say what his level of impairment would have been at the time of the collision.

[9] Under cross examination, the toxicologist agreed that a person could be tolerant to the effects of Lorazepam at 0.5 mg levels and not 1 mg. levels. She was asked to what extent a person would be aware of his or her state of impairment by a drug where some of the side effects are "cognitive" and she stated: "I don't know if everybody would be aware of an effect; it would depend on the degree of the effect." She agreed that a person taking higher dose of Lorazepam than they are used to may not remember how many pills they took. Ms. Bugyra agreed that the half-life of Lorazepam in the human body is 9-16 hours and that if 3 pills were still in the half life" (i.e. if 3 pills were taken within 16 hours) the (impairment) effect could increase and if the dosage was increased the effects could last longer.

[10] Frederick Weening testified he was a vegetable grower in the Holland Marsh area of Ontario and he grew and retailed produce under the name Karrot King. He gave evidence he had been seen taking Lorazepam under the brand name Ativan since 2002, for anxiety. He stated he was aware of the cautionary label on the pill bottle but he had regularly driven motor vehicles and farm machinery while taking up to three 0.5 mg doses of Lorazepam over the course of a day without ever experiencing any of the specified side effects – drowsiness, confusion or tiredness. In addition he said there was no noticeable effect if he went off the drug for a period of time and then resumed. He stated that his doctor had never advised him against driving a motor vehicle while taking this drug. On December 1st, 2011 Mr. Weening had "chest issues" he thought were related to anxiety and as a result, he went to his doctor's office and obtained a prescription for 30 pills of 0.5 mg. of Lorazepam, which was his usual dose of the medication. He stated he had not taken the drug for some time before December 1, 2011 and on that day he recalls taking 2 pills, one at 10:30 a.m. and one at 3:00 p.m. for anxiety. It is common ground that the pharmacy that filled the prescription gave him drugs that were twice the dose prescribed – instead of 0.5 mg. pills he received 1 mg. pills.

[11] Mr. Weening gave evidence that he drove his produce truck to Toronto on December 1st, 2011 to pick up some furniture at the offices of a Toronto banking firm that was to be used by the Growers Association where his farm was located. He testified that he has virtually no recollection of what happened after 1:00 p.m. on December 1st except that he remembered taking a second pill at 3:00 p.m. while at an appointment for an x-ray and then later he remembered brake lights coming on and reacting: "I slammed on my brakes." He stated he had no idea the drug would have a different effect on December 1, 2011 and had no recollection of any problems while driving prior to the collision such as drowsiness, tiredness or confusion. His next memory was – leaving the police division at 1:00 p.m. December 2, following his release. He said he had no idea what became of the missing 9 or so pills from the bottle except that he could recall taking 2 of them December 1st and he found a third pill on the floor of his vehicle days later. He had no recollection telling a police officer that he had taken "about three" pills prior to the collision.

The Law

[12] The mens rea of impaired operation that the prosecution must prove in this case is the voluntary consumption of a sedative drug which the defendant knew might impair his ability to drive a motor vehicle: R. v. Murray (1985) 22 C.C.C. (3rd) 502 (Ont. C.A.); R. v. King [1962] S.C.R. 746 (S.C.C.)

[13] In R. v. King (supra) Ritchie J concluded:

(63)...I am of the opinion that when it has been proven 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...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 become impaired.

(64)....If the drivers lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or a drug which he knew or has any reasonable ground for believing might cause him to be impaired, then he cannot 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....cannot be said to have been committed.

[14] Essentially then, Ritchie J drew a distinction between the "common experience" that the consumption of alcohol and narcotic drugs may produce intoxication, on the one hand, and a case where impairment was produced as a result of using a drug in the form of medicine on a doctor's order or recommendation and in respect to which, its effect was unknown to the patient, on the other hand. In the latter case the presumption of voluntary intent is rebutted.

[15] The issue then in the instant case is whether Mr. Weening became impaired through no act of his own will and if so, whether he could have reasonably been expected to have been aware or to have known that his ability had become or could become impaired when he undertook to drive and drove a motor vehicle.

[16] Thus, on the basis of R. v. King, Mr. Weening must be convicted unless other evidence is adduced which raises a reasonable doubt to whether he was, through no fault of his own, as a result of ingesting a drug, unable to know or appreciate that he might become impaired or that he had become impaired prior to or while driving a motor vehicle.

ANALYSIS

[17] I have utilized the recommended formula in R. v. W(D) [1991] 1 S.C.R. 742, the leading decision on assessing guilt based on the credibility of witnesses in a criminal trial. On the basis of the very unique facts of this case, I have determined that the mens rea element of the offence of impaired operation has not been proven beyond a reasonable doubt. While I do not entirely believe the defendant, particularly in respect to whether he could recollect what transpired after 1:00 pm on December 1st, ― after considering the defendant's evidence in the context of the evidence as a whole, I still have reasonable doubt as to his guilt.

[18] First, the fact of an accidental doubling of his regular Lorazepam prescription raises an inference that he was unknowingly taking more of the sedative than his regular maximum dose of 1.5 mg. (0.5 mg pills, 3 times a day). Effectively he was unknowingly in uncharted waters as to the foreseeable effects. I accept his evidence that he was well aware of the effects of his usual drug dose, even when he had discontinued and resumed its use from time to time. At no time did he ever experience any of the potential side effects described as drowsiness, confusion or fatigue, while driving. Mr. Weening was never advised by his doctor or pharmacist to abstain from driving while taking this medication but he was well aware of the caution on the pill bottle. I believe he simply had never experienced any such adverse effects to warrant self-imposed restrictions on driving. I am satisfied he suffered some degree of amnesiac reaction to the drug he ingested on December 1st, 2011, because such an effect is consistent with known cognitive repercussions according to Ms. Bugyra. I am less confident that the memory loss was as extensive as claimed by Mr. Weening. In any event, his inability to recall cannot be taken to represent a lack of voluntary consumption of a substance that he knew or should have known ― as a result of the warning on the pill bottle ― could impair his ability to drive.

[19] The questions to be determined are: (a) how many pills did Mr. Weening take before the collision? (b) what was his level of awareness about his condition, prior to and while driving? and: (c) was Mr. Weening a credible witness and, even if not entirely believable, did his evidence raise a reasonable doubt?

[20] I begin with the finding of the following facts: Mr. Weening was well aware of the effects of his usual dose of Lorazepam (1.5 mgs. over the course of a day) even if he had resumed taking the drug after a period of abstinence. It necessarily follows, in my view, that he would not know or appreciate the potential side effects of ingesting the same drug in quantities that were twice his regular dosage. The central question for determination then becomes: how much drug did he consume and what would he reasonably be expected to have been aware of in terms of his level of impairment just prior to and while operating a motor vehicle?

[21] As to the number of pills Mr. Weening consumed, I find that the most logical inference flowing from the evidence would suggest that he ingested 3 or so pills prior to the collision for the following reasons:

(a) According to Ms. Bugyra, toxicologist, the typical therapeutic intake of Lorazepam would be 1-2 mgs of drug per day. Given Mr. Weening's evidence that he was able to tolerate 1.5 mgs of Ativan (3 pills at 0.5 mg. strength) per day without any side effects, it is highly unlikely that the 2 pills he can recall taking (which would be 2 mgs. in total) would produce such a startling level of drowsiness and motor coordination failure;

(b) In his testimony, he said he remembered taking 2 pills at 10:30 a.m. and 3:00 p.m. Along with other statements that were mostly nonsensical, he did advise Police Constable Butt that he took another pill at 7:00 p.m. in the truck. Even though, at trial he gave evidence that he had no present recollection of most events after 1:00 p.m. December 1st, the fact that he referred to a specific time he took an additional pill on December 1st is fairly compelling evidence;

(c) Even though twelve pills were missing from the quantity received on December 1st, it would be highly improbable that he consumed the balance of the pills the same day; it is just as likely he lost a number of pills, based on the number of times he dropped the bottle as well as the fact that a pill was later found on the floor of his truck. Moreover, the evidence of the toxicologist would suggest that the consumption of a small handful of this drug (10 to 11 pills in one day) could well represent a toxic dose of this medication and while seriously impaired, there was no evidence his health was at risk.

[22] In all the circumstances, I find that Mr. Weening ingested 3 (or so) pills of 1 mg. Lorazepam prior to the collision. This would represent twice his usual dose, twice his regular tolerance level and because it would constitute a higher dosage than the typical therapeutic quantity, it could well be consistent with the physical evidence of gross impairment.

[23] The question of his impairment awareness level is perplexing. As noted above, I accept that Mr. Weening would not have known the effects of twice his regular well-tolerated dosage of Lorazepam. But I have to agree with Crown counsel that in terms of human experience, it is counter-intuitive to think that he would not have realized he was lost and weaving all over the road on Spadina Avenue, as observed by Peter Pyrczak, or that he was approaching cars on Dundas Street West too fast to stop. And I, of course, instruct myself to be cautious about accepting individual subjective representations about impairment awareness levels, which are typically, unsurprisingly unreliable in this area of the law.

[24] However, the point to be understood is that I cannot base my assessment of the defendant's level of awareness on my personal judgment about how the human mind works. Once the prosecution proves that a driver was driving a motor vehicle while his ability to do so was impaired by a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence. In order to rebut the presumption all there has to be is evidence that raises a reasonable doubt about his knowledge or appreciation of the effects of the drugs consumed and his awareness about his condition while driving. To require proof of a state of non-insane automatism while driving, would be to effectively shift the onus to Mr. Weening. And a decision about the defendant's awareness should be entirely based on the evidence rather than my personal opinion about what he may or may not have been cognizant.

[25] Leaving aside the question of whether I accept the testimony of the defendant as to his impairment awareness level, the only other evidence in this case about impairment awareness was provided by Ms. Bugyra who gave expert evidence in outlining the physical effects of a mind-altering chemical. The effects of a sedative on the mental processes of an individual, in my view, were generally beyond the scope of this witness' expertise. Nevertheless, Ms. Bugyra testified that: (a)."as the levels of sedation increased, "the ability to be aware of the sedation (effects) would be decreased.", and (b) when asked what extent a person would be aware of his or her state of impairment by a drug where some of the side effects are "cognitive", she stated: "I don't know if everybody would be aware of an effect; it would depend on the degree of the effect.". In my view, a reasonable doubt flows from the evidence of Ms. Bugyra regarding Mr. Weening's awareness of his level of impairment after consuming the drug and prior to or while operating his motor vehicle.

[26] On the basis of the toxicology evidence, I would have to agree with Pringle J.'s analysis of an individual's consciousness of a drug-induced effect on the ability to drive. As she pointed out in R. v. Zvi Domb 2011 ONCJ 756:

[86] The crown also argues that the effects of impairment on May 12, 2010 were observable and obvious, but since Mr. Domb didn't do anything about it, he was at fault. I agree with the Crown that that the effects of impairment were readily discerned by Ms. Papadolias and Inspector Hamilton, as well as Det. Butt and Cst. Guay. However, it's hard to assess Mr. Domb's own awareness of his bad driving and symptoms of impairment, because he himself thought everything was fine. This aspect of his lack of awareness can be compared to the facts in King, when he was warned after taking sodium pentothal not to drive. In those circumstances the Court of Appeal found that he couldn't be expected to understand that warning when he was in a state of "undetected mental impairment". Similarly here, where I find Mr. Domb was impaired by a drug, his ability to assess his own behaviour was minimal.

[27] For the most part, the judgment in this case turns on Mr. Weening's credibility. I had difficulty believing Mr. Weening was not able to recall any event after 1:00 pm on December 1st, save and except the taking of a pill at 3:00 pm and seeing brake lights and slamming on the brakes. For example, as noted above, he did recall taking Lorazepam at 7:00 pm in his conversation with P.C. Butt and it would be remarkable that he would not be able to recall the same event later that day when he was released….or the next day. I can accept that his memory of December 1st and 2nd could fade over time but it just seemed altogether too convenient that he drew a blank about virtually everything that transpired including the furniture loading, the telephone call to his wife and the drug evaluation testing. Consequently, I have carefully considered whether I can accept any of Mr. Weening's evidence.

[28] Nevertheless, on the issue of the pattern of consuming the Lorazepam medication and the lack of any prior side effects, or any awareness of side effects on December 1st, I have concluded that I cannot reject his evidence for the following reasons:

(a) On the basis of his lack of criminal record, the corroboration of his evidence by his wife, Brenda Weening as to his use of Lorazepam and his lack of any prior side effects, and his reputation for honesty in his community according to his character witnesses, Brian Visser and P.C. Philip Van Andel, there is much support for his credibility having regard to his antecedents and the direct evidence that was called on his behalf;

(b) For the most part, Mr. Weening testified with candor, sincerity and consistency; he was not shaken on cross-examination and he was cooperative and helpful to the extent he was able to be, with the police investigators;

(c) There was no evidence to suggest Mr. Weening was a drug abuser. His wife, Brenda Weening testified that she was aware that he was taking medication for anxiety and he would never take one pill right after the other and the most he would take in a day was "probably 3". She said he regularly drove vehicles while taking the medication and she had never noticed side effects such as drowsiness, dizziness, confusion, slurred speech, poor balance or difficulty walking. On the other hand, when he called from the police division on December 1st, she stated his speech was slurred and he did not sound like himself. Having accepted her evidence that she had never known him to sound like he did that night, I conclude that this reaction to the medication was entirely without precedent and that the defence evidence that there was no history of such side effects in the past or any form of drug abuse is entirely credible;

[29] Accordingly, I find there is no evidence that casts doubt on Mr. Weening's testimony that he had never experienced side effects while taking Lorazepam and that on December 1st, he was not aware of any problems while driving nor did he at any time think that he should pull over or stop driving as a result of any unusual sensations he was experiencing. The evidence is that he had tolerated the medication well for years while driving and even after periods of discontinuance. On the question of fault, there is no reason to disbelieve Mr. Weening's evidence and I have concluded I cannot reject it.

[30] In conclusion, the evidence leaves me with a reasonable doubt that Mr. Weening was impaired by alcohol or drugs due to any fault on his part. In all the circumstances, I find that there was no forewarning of a condition of impairment or ability to assess his level of impairment on the date in question as a result of having been unexpectedly, over-medicated as a result of a drug dispensing accident on the date in question.

P. Harris J.

July 23, 2013