Court File and Parties

Court File No.: St. Catharines - 2111-998-11-F4898-00

Date: 2013-03-01

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jamie Lynn Sutton

Before: Justice D.A. Harris

Heard on: January 7, 2013

Reasons for Judgment on: March 1, 2013

Counsel:

T. Shuster, for the Crown

R. Charlebois, for the accused, Jamie Lynn Sutton

Reasons for Judgment

HARRIS J.:

Charges

[1] Jamie Lynn Sutton was charged with operating a motor vehicle:

(1) While her ability to do so was impaired by alcohol, and

(2) While her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] Crown counsel elected to proceed summarily and the matter proceeded to trial. Ms. Sutton is before me today for judgment.

[3] I note right off that the issue here is a narrow one.

[4] With the consent of Ms. Sutton, through her counsel, Crown counsel read in his case as an agreed statement of facts.

[5] So there is no issue that on December 5, 2011, Ms. Sutton operated her motor vehicle in Fort Erie, Ontario. At the time, her ability to operate a motor vehicle was impaired by alcohol and her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. More specifically her blood alcohol concentration was somewhere between 150 and 195 milligrams of alcohol in 100 millilitres of blood.

[6] The only issue before me is whether Ms. Sutton had the necessary mens rea to commit the offences. More specifically, did she knowingly and voluntarily consume alcohol to the point that her ability to operate a motor vehicle was impaired by alcohol and her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood?

The Defence Evidence

[7] Ms. Sutton testified that she had been a volunteer at a fundraising event in Buffalo, New York the previous evening. She did not drink anything until approximately 10:30 p.m. when she drank a glass of wine. At 11:00 p.m. she drove to the Snooty Fox, a restaurant, that was approximately five minutes away. She ordered a drink there. The drink arrived. She left the drink for a few minutes in order to speak to some friends. She returned to her table and started to consume her drink. She did not remember anything from that point until the time when she woke up in a Niagara Regional Police cell.

[8] She was concerned because, although she had previously consumed alcohol to excess, she had never experienced anything like this. Her "symptoms were not consistent with drinking". She "felt 100% different". She could not remember anything that occurred over a significant portion of the previous night. She felt neither drunk nor hung-over. She could not urinate. She felt that something was wrong and that someone must have given her a drug.

[9] Accordingly, once she was released from the courthouse in St. Catharines and had returned to her home outside Buffalo, she contacted her doctor. Later, her father took her to the nearest detachment of the New York State Police where she requested a drug test. The police declined, indicating their belief that too much time had elapsed and that it would be impossible to determine if she had in fact been drugged.

[10] Dr. Maureen Montgomery also testified. She is Ms. Sutton's family doctor but she has had extensive experience in the emergency room of a busy hospital. She has also had experience with individuals consuming excessive amounts of alcohol or drugs, including "date-rape drugs".

[11] Dr. Montgomery indicated that she had known Ms. Sutton since Ms. Sutton had been a child. Ms. Sutton did call her that day and related a story similar to that which she told in court.

[12] She stated that the clinical picture presented by Ms. Sutton was consistent with her having taken a drug. She candidly agreed however that it was also consistent with consuming too much alcohol.

[13] Both would disinhibit a person possibly leading them to drink more. Both could lead to the person feeling dizzy, and becoming incoherent and unaware of what was going on around them.

[14] She stated quite clearly that if a patient presented these symptoms in an emergency ward she would order a tox screen. In the case of Ms. Sutton, Dr. Montgomery believed that too much time had already elapsed for this to be of any use here.

[15] Dr. Montgomery did point out one difference between alcohol and drugs, that being that the "date-rape drugs" work fast and hard, unlike alcohol.

[16] Jean-Paul Palmentier is a forensic scientist with expertise in the field of toxicology. His report was introduced into evidence as Exhibit 1 as part of the agreed statement of facts read by Crown counsel. Mr. Palmentier also testified in reply.

[17] He stated that either of the "date-rape drugs" or excessive consumption of alcohol could cause temporary blackouts or amnesia. It is impossible to predict if someone will experience a blackout. When caused by excessive consumption of alcohol, blackouts typically occur when a person's blood alcohol concentration is rising rapidly and when it is at its highest.

[18] Mr. Palmentier could not say for certain whether her symptoms were caused by a combination of alcohol and drugs together or by alcohol alone. He could not even say which was more likely.

[19] I note also one other thing that Mr. Palmentier could not say.

[20] Ms. Sutton did not remember drinking anything other than the one glass of wine and part of her drink at the Snooty Fox. It is clear that she drank more than that but I do not know how much more. Mr. Palmentier could have calculated how much she must have consumed had he been provided with Ms. Sutton's height and weight. However, neither counsel asked Ms. Sutton for that information. Without it, Mr. Palmentier was unable to provide any assistance to the court on that score.

[21] The other people who were with Ms. Sutton in the Snooty Fox might also have been able to provide some information as to her alcohol consumption but I did not hear from any of them either.

[22] So all I know is that Ms. Sutton did consume more alcohol than she was able to account for.

The Law

[23] Counsel for Ms. Sutton relied heavily on R. v. Sitarz, [2012] O.J. No. 4186 (Ont. C.J.) and I well understand why he chose to do so. The case is very similar to the one before me.

[24] In Sitarz, Caldwell J. relied upon Justice Pringle's thorough and concise outline of the law regarding mens rea in an impaired driving case in R. v. Domb, [2011] O.J. No. 5946 (Ont. C.J.). I intend to do the same.

[25] The Ontario Court of Appeal stated in R. v. Stellato, [1993] O.J. No. 18 (Ont. C.A.), aff'd, [1994] S.C.J. No. 51 (S.C.C.), that there is no special test for determining impairment, such as a "marked departure" from normal behaviour. The offence of impaired operation of a motor vehicle by reason of alcohol or a drug is made out by proof of any degree of impairment ranging from slight to great.

[26] In R. v. Toews, [1985] S.C.J. No. 48, the Supreme Court of Canada held that the mens rea for driving while impaired is the intent to drive a motor vehicle after the voluntary consumption of alcohol or a drug.

[27] 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.

[28] Ritchie J. wrote in King 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 ... 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.

... if it appears that the impairment was produced as a result of using a drug in the form of medicine on a doctor's order or recommendation and that its effect was unknown to the patient, then the presumption is, in my view, rebutted.

[29] In Sitarz, supra, Caldwell J. found, at para. 29 that "in the very unique circumstances of this case the mens rea has not been established".

[30] She went on to state in paras. 30 through 32 that:

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 on this occasion that was highly out of the ordinary when compared to his prior experiences;
• 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.

Analysis

[31] I have noted significant similarities between Sitarz and this case.

[32] I had the benefit of hearing and observing Ms. Sutton testify and I find that she genuinely believed and still believes that she was drugged. The fact that she believed this right from the start is further supported by her telephone call to her doctor and her visit to the state police detachment. I note further that Crown counsel did not challenge her credibility during his submissions.

[33] Someone could have slipped something into Ms. Sutton's drink when she left that drink unattended while speaking with her friends.

[34] I note and agree with the comments of Caldwell J. at para. 32 in Sitarz 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.

[35] I note also one obvious difference between Mr. Sitarz and Ms. Sutton. She is an attractive young female. That does not entitle her to any special treatment by the court. I simply make the observation while going on to note that common sense tells us that an attractive young female might be an even more likely target for someone wanting to use a "date-rape drug".

[36] Ms. Sutton is not a neophyte concerning alcohol consumption or even excessive alcohol consumption but as she said, she had never experienced anything like this before.

[37] Having noted all that, I am still having difficulty accepting her counsel's submission.

[38] There is no evidence that anyone did put a drug in Ms. Sutton's drink. There is merely the possibility.

[39] I know for a fact, however, that she drank alcohol and that she did so to excess.

[40] I do not know who or why someone would put a drug in her drink on this particular occasion.

[41] Common sense tells me that it would be a male person who would slip her a "date-rape drug" in order to incapacitate her and take advantage of her sexually.

[42] The male person in her car however was also intoxicated. He was apparently intoxicated to the point where he failed to inform Ms. Sutton that she had missed the turn-off for his street and that she was about to enter onto the Peace Bridge en route to Canada. No one ever even suggested that he was a possible culprit.

[43] We did not hear from him however. Neither did we hear from anyone else who had an opportunity to observe Ms. Sutton before she embarked on this ill-fated drive.

[44] Nor was there anything in the observations of the Canada Border Services officers or the Niagara Regional Police officers as set out in the agreed statement of facts that supported one theory over the other.

[45] No one remarked on anything terribly wrong with Ms. Sutton's driving.

[46] Some people might conclude that Ms. Sutton must have been highly intoxicated if she missed her turn and entered onto the Peace Bridge. The same might be said about the fact that she drove up to a Canada Border Services inspection station that was "clearly marked" as being for commercial trucks.

[47] Anyone who has made that crossing on a number of occasions however will be aware that either mistake could occur easily. Such mistakes would not necessarily indicate that the person making them must be intoxicated, although they might do so.

[48] I note that the Canada Border Services officer who dealt with Ms. Sutton at the primary inspection station did not draw this conclusion initially. She first made a demand for Ms. Sutton to provide a sample of her breath into an approved screening device, indicating that she suspected that Ms. Sutton had alcohol in her body but that the officer did not believe on reasonable and probable grounds that Ms. Sutton's ability to operate a motor vehicle was impaired by that alcohol. That belief only came after Ms. Sutton displayed some difficulty in walking to the secondary inspection point.

[49] In the end, as I stated above, nothing in the evidence of any Canada Border Services officer or any police officer supports one theory over the other. Everything is consistent with the possibility that Ms. Sutton's condition could have been the result of consuming too much alcohol alone, or of consuming too much alcohol together with some drug.

[50] I do note the evidence of Dr. Montgomery that the "date-rape drugs" work fast and hard, unlike alcohol.

[51] I also note the evidence of Mr. Palmentier that either of the "date-rape drugs" or excessive consumption of alcohol could cause temporary blackouts or amnesia. It is impossible to predict if someone will experience a blackout. When caused by excessive consumption of alcohol, blackouts typically occur when a person's blood alcohol concentration is rising rapidly and when it is at its highest.

Decision

[52] However, in the end I am left with a suggestion of a possibility and no hard facts.

[53] Unlike Justice Caldwell in Sitarz, I do not find that Ms. Sutton's belief, strong as it may be, leaves me with a reasonable doubt as to her guilt.

[54] Rather, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Sutton did commit the offences with which she has been charged and I find her guilty of both offences.

[55] I will therefore hear from Crown counsel with regard to which charge he wishes a conviction entered and which charge he wishes stayed.

Released: March 1, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris