Court Information

Ontario Court of Justice

Date: 2014-12-02

Court File No.: Regional Municipality of Durham 998 13 29018

Parties

Between:

Her Majesty the Queen

— And —

Sean Edmunds

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: September 30 & October 3, 2014

Reasons for Judgment released on: December 2, 2014

Counsel:

• Ms. L. Bandini — counsel for the Crown
• Mr. H. Mattson — counsel for the defendant

Judgment

De Filippis, J.:

[1] The defendant was charged with operating a motor vehicle while his ability to do so was impaired by a drug, contrary to section 253 of the Criminal Code. There is no dispute that he drove a car erratically and put the public at risk of harm. At issue is whether he did so intentionally. I heard from four witnesses, including an expert and the defendant. These reasons explain why I find the defendant guilty.

[2] On the evening of 7 November 2013, Syed Rizvi was driving a motor vehicle, with his wife and daughter as passengers, on Taunton Road, near Baldwin Street in the Town of Whitby. Behind him, in an adjacent lane, was a car operated by the defendant. Both vehicles were travelling in the same direction. Mr. Rizvi testified that the defendant's car swerved from the left lane into the right lane and struck his vehicle on the rear corner on the driver's side. This collision was described as "minimal". The defendant swerved back to the left lane and accelerated past Mr. Rizvi at a speed estimated to be 90 km per hour, in a posted zone of 60 km per hour. Mr. Rizvi followed the defendant and contacted the police. He observed the defendant's car hit the curb three times as it turned right at the next two streets. While on Rossland Road, the vehicle swerved continuously from one lane to another. The defendant was eventually stopped by the police after turning left onto Thickson Road.

[3] P.C. Rayner was dispatched to respond to the report made by Mr. Rizvi. He encountered the defendant's motor vehicle on Thickson Road. He saw the vehicle make an abrupt right turn, swerve into the lane of oncoming traffic, and hit a curb before correcting itself. The officer activated his emergency lights and followed the defendant as his car "ran a stop sign" and came to a stop on a residential property. P.C. Rayner described the defendant as "being in a daze". His shirt was not buttoned properly and his shoes did not match. The defendant's speech was muffled and slurred. He could not walk without assistance. He denied consumption of alcohol and the officer could not detect such an odour. The defendant was arrested for operating a motor vehicle while impaired by a drug.

[4] P.C. Medeiros arrived on the scene at 10:47 PM, just before the defendant was arrested. He also observed the aforementioned signs of impairment. He noted that the defendant appeared to understand instructions but could not carry them out. He accompanied the defendant to 18 Division and made a Drug Recognition Evaluation Demand.

[5] P.C. Gaisson is a Drug Recognition Evaluator. He received custody of the defendant at midnight. Having regard to the issues in this case, it is not necessary to set out his evidence in detail. It will suffice to note that he described the 12 part evaluation process and explained why he concluded the defendant was impaired by one or more drugs. The final step in the process was the demand and seizure of a urine sample from the defendant. This occurred sometime before, or near, 2:30 AM, when the defendant was released from police custody. P.C. Gaisson confirmed that there was no odour of alcohol or marihuana emanating from the defendant's breath.

[6] Betty Chow is a Forensic Scientist (Toxicology) at the Centre of Forensic Sciences. On consent, she was qualified to give an expert opinion in two areas; (1) the absorption, distribution, and elimination of drugs in the body and (2) the effect of such drugs on the body. Ms. Chow analysed the urine sample taken from the defendant on the night of his arrest and detected the presence of four drugs: Alprazolam, Oxazepam, Carboxytetrahydrocannabinol, and Sertraline. She testified that the first two drugs are prescribed for the treatment of anxiety and panic disorders. They depress the central nervous system and can cause lack of muscle control, drowsiness, impaired judgement, confusion, dizziness, and slurred speech. The third drug is the major psychoactive compound in marihuana and hashish. This produces mild euphoria, altered time perception and motor incoordination. The final drug, Sertraline, is prescribed for the treatment of depression. Ms. Chow stated that this substance would produce little, if any, impairment with respect to the operation of a motor vehicle. She confirmed that the drug, Clonazepam, was not found in the urine sample and agreed that if it had been taken earlier in the day, it should have been evident.

[7] Ms. Chow testified that Alprazolam and Oxazepam, the two drugs prescribed for anxiety and panic attacks, are the ones that most affect motor skills. She added that the noted side effects would appear within 30 minutes of consumption, peak within two hours, and last up to eight hours. With both drugs in the system, the impact would be "additive". Ms. Chow also testified that urine tests are not a reliable measure of what side effects might be evident in the body at the time the sample was seized. I understand her evidence to mean that urine tests do not relate to the time of an offence in the same way as, for example, breath and blood tests do in the case of alcohol consumption. This is because the presence of drugs can be found in urine up to 48 hours after consumption, long after the impact of the drugs has dissipated.

[8] Ms. Chow stated that dosage and tolerance are the important considerations in assessing the impact of the drugs on a person. She also observed that past experience predicts future impact. Accordingly, if certain side effects suddenly appear, the likely reason is a change in dosage or tolerance level. The latter can occur when a person takes a drug for the first time or resumes consumption after a period of abstinence.

[9] The defendant is 22 years old, employed, and lives at home with his parents. He testified that three to four years ago, he was diagnosed as suffering from depression and anxiety. He was prescribed Sertraline for the former and Clonazepam for the latter. He said his doctor cautioned him "not to mix the medication with alcohol and to be careful because he knew I worked in a mechanics shop". He added that in the first few weeks the drugs "knocked me out" but this effect went away as he became tolerant to the substances. He continued to take these drugs at the prescribed dosage up until the day of his arrest. What changed, however, is that two days before he consumed "Xanax" – another name for Alprazolam. It was given to him by a friend. The defendant received the drug in pill form. The defendant crushed it into powder form and snorted it. This effect was immediate and dramatic; he was "knocked out" for two days. On the first day, he was awakened once by his mother but went back to sleep. On the second day, he awoke at "9 or 10 PM", and took his prescribed medication. Soon after, in response to a telephone call from his sister, he left the home in his car to pick her up. The defendant testified he did not realize his shirt was improperly buttoned and that he was wearing mismatched shoes. He has no memory of the erratic driving attributed to him; in particular, he does not recall striking another car or hitting the curb. Moreover, he does not remember participating in the 12 part drug evaluation process at the police station, several hours later.

[10] The defendant assumes he snorted Xanax because this is what his friend told him it was. The friend also advised that the drug was effective in treating anxiety. This friend is not a doctor. The defendant conceded he was not properly prescribed this drug and testified he "did not think it would hurt me". However, based on his initial experience with Clonazepam he knew that such drugs could make him "drowsy" and that he should be careful driving a car until he developed a tolerance to them.

Legal Framework

[11] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v. W.D., 63 C.C.C. (3d) 397. To support a finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence, that standard is not met if the evidence (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case: F v. R.D., [2004] O.J. 2086 (O.C.A).

[12] As already noted, there is no dispute that the defendant operated a motor vehicle while impaired by a drug. The issue is whether he had the requisite mens rea. In this regard, this is not a credibility case: the Defence did not challenge the Crown witnesses and I accept that the defendant testified truthfully and, for the most part, accurately.

[13] The Crown points out that the defendant altered the form of another person's prescription drug and snorted it, with severe effects, consumed his own medication, as prescribed, and operated a car in an erratic manner. It is argued that since the defendant had been on his own medication for several years without incident, the consumption of his friend's medicine, or the combination of drugs, had to be the cause of the impairment. Counsel submits this voluntary self medication means the defendant is guilty.

[14] The Defence submits that the Crown argument is undermined by her expert witness. Ms. Chow testified that medication can be detected in urine for up to 48 hours but the effects would not last beyond 8 hours. This means the consumption of Xanax could not be a factor in this case. Accordingly, the only basis for conviction is that the defendant "took a chance" in driving in light of fact his Doctor warned him to be cautious using mechanical devices while being treated with his prescribed medication. The Defence submits that since the defendant had become tolerant to these drugs for several years and operated a motor vehicle without incident, he cannot be said to have intended to drive while impaired on this occasion.

[15] The mens rea for this offence was considered long ago by the Supreme Court of Canada in R v. King, [1962] S.C.R. 746, at pages 15–16:

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 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 become impaired.

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.

….It seems to me that it can be taken as a matter of "common experience" that the consumption of alcohol may produce intoxication and, therefore, "impairment" in the sense in which that word is used in s. 223, and I think it is also to be similarly taken to be known that the use of narcotics may have the same effect, but 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.

For all the above reasons, I do not think that the Court of Appeal erred in holding that mens rea was an essential element of the offence of driving while impaired contrary to s. 223 of the Criminal Code, but I am of opinion that that element need not necessarily be present in relation both to the act of driving and to the state of being impaired in order to make the offence complete. That is to say, that a man who becomes impaired as the result of taking a drug on medical advice without knowing its effect cannot escape liability if he became aware of his impaired condition before he started to drive his car just as a man who did not appreciate his impaired condition when he started to drive cannot escape liability on the ground that his lack of appreciation was brought about by voluntary consumption of liquor or drug. The defence in the present case was that the respondent became impaired through no act of his own will and could not reasonably be expected to have known that his ability was impaired or might thereafter become impaired when he undertook to drive and drove his motor vehicle.

Analysis

[16] The defendant testified that he awoke after two days of almost continuous sleep, took his prescribed dose of Clonazepam and left home to pick up his sister. There is some confusion about the Clonazepam. It was not detected in his urine sample. Ms. Chow testified that such drugs may remain detectable in urine for up to 48 hours, but this is not necessarily the case. In any event, the defendant must be mistaken about "feeling fine" when he departed in the car. This is understandable. It is obvious he was still subject to the effects of anti-anxiety medication. He candidly testified that he remembers little about getting dressed, driving the car, and undergoing the drug evaluation process (several hours later at the police station). In these circumstances, I cannot rely on the defendant's observations about how he felt or, indeed, what drug he consumed, and at what dosage. In this regard, I note that other non-prescribed drugs were detected in his urine sample.

[17] What I know with certainty is this: The defendant was prescribed Clonazepam for anxiety. He knew about its ability to impair judgment and motor skills because for an initial period of two weeks, he was "knocked out" by it. He was warned not to mix his prescribed medication with another drug – alcohol. Afterwards, for several years he became tolerant and was able to operate machinery and drive a car. Two days before his arrest in this matter, he deliberately consumed a substance, in altered form, that he was told was an anti-anxiety drug. Two such non-prescribed drugs were found in his body, including the one identified by his friend - Alprazolam, otherwise known as Xanax. He suffered the same severe side effects that he initially experienced with Clonazepam. On awaking, from almost 48 hours of sleep, he may have taken the latter drug. He has little memory of what happened up to the point he was later arrested.

[18] I have no doubt that there is a direct link between the defendant's driving and his self medication with Xanax, possibly in combination with his prescribed drug, Clonazepam, or other drugs. The Crown is correct to this as the only new factor in the analysis. I do not accept the Defence submission that this analysis is undermined by the expert evidence. Indeed, Ms. Chow alluded to the limitations inherent in urinalysis.

[19] The defendant voluntarily ingested Xanax, having been warned not to mix drugs, knowing it was another anti-anxiety drug, and having experienced a serious reaction to such a drug in the past. This impaired his ability to operate a motor vehicle. Mens rea is established. The defendant is guilty as charged.

Released: December 2, 2014

Signed: "Justice J. De Filippis"