Court File and Parties

Date: May 6, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Zakariya Abdi

Before: Justice Neil L. Kozloff

Heard: December 18, 2014; October 16, 2015; March 2, 2016

Reasons for Judgment delivered on: May 6, 2016

Counsel:

• B. Cohen, for the Crown
• D. Genis, for the Defendant Zakariya Abdi

Overview

[1] Zakariya Abdi (hereinafter "Abdi" or "the defendant") is being tried before me on charges of impaired operation and operate over 80, which offences were allegedly committed shortly after four o'clock on the morning of the 3rd of November, 2013.

[2] During the course of the trial, Mr. Genis on behalf of Abdi contested the issue of impairment and mounted an attack on the accuracy of the Intoxilyzer readings. For that purpose, reliance was placed upon (a) the testimony of the defendant regarding his consumption of alcohol on the evening in question, and (b) the evidence of Ben Joseph, a forensic toxicologist and pharmacologist called by the defence. However, at the end of the day Mr. Genis effectively admitted that his client's ability to operate a motor vehicle at the material time was impaired (by alcohol or by the combination of alcohol and a drug) and, as well, admitted the accuracy of the Intoxilyzer readings.

[3] It was ultimately the position of the defence that Abdi lacked the necessary mens rea ingredient of both offences, in that "through no fault of his own" he was disabled - when he undertook to drive and drove - from being able to appreciate and know (1) that he was or might be impaired and (2) that his blood alcohol concentration (hereinafter "BAC") was above the legal limit. Put another way, the defence submits that Abdi's impairment and BAC were brought about without any act of his own will.

The Relevant Evidence

[4] Shortly after four o'clock on the morning of November 3rd, 2013 Peter Mills, a freelance cameraman with CTV and CP24 News, was driving northbound on Avenue Road just north of St. Germain Avenue in the City of Toronto looking for news stories when he heard the loud squealing of tires. He lowered his window and noticed the black Honda being driven by the defendant coming southbound. Abdi's car then came to a complete stop mid-block as Mills passed it. Mills noted there was damage to the driver's side of Abdi's car.

[5] Mills made a u-turn and parked his truck in the curb lane beside the passenger side of the Honda. He noticed that the defendant was seated in the driver's seat with his head tilted off to the side. Mills honked once and got no response. Abdi appeared to be sleeping. Mills then called 911.

[6] The paramedics – Rob Stinson and Robert Bagley – arrived first at 4:07 a.m. They approached the Honda. Abdi appeared to be asleep in the driver's seat. Stinson began to knock on the driver's side window. Initially there was no response from Abdi. As Stinson continued to knock, Abdi moved his head slightly to the left. The doors of the Honda were locked. Bagley noticed that the rear passenger window was open. He reached in, unlocked the door and gained access to the rear seat. Bagley tapped and shook Abdi's shoulder until he began to wake up. When Abdi opened his eyes, Bagley told him to wake up, introduced himself, explained that he was a paramedic, and asked him if he was okay. Bagley had to tell Abdi several times to lower his window before he did so.

[7] In order to assess Abdi, Stinson then began to question him. Bagley remained in the rear seat and raised the rear window because it was cold. When Stinson told Abdi they were going to ask for the police to come, this seemed to upset the defendant. He moved quickly to put his car in gear. The Honda began to roll forward. Bagley then reached in between the two front seats, grabbed the emergency brake, put the Honda in "Park", and removed the keys from the ignition. Mills, who was watching the events unfold, estimated that the Honda moved some fifteen to twenty feet.

[8] Constable Andrade arrived on scene at 4:20 a.m. He observed that the side mirror on the driver's side of the Honda was damaged and hanging down. He observed Abdi seated in the driver's seat, fumbling with a set of keys. (Apparently when he took the keys from the ignition of the Honda, Bagley had removed the car key, kept it in his possession, and returned the others to Abdi.) Andrade asked Abdi if he was injured. He did not respond. Andrade observed that Abdi was licking his lips, blinking his eyes heavily, and appearing to fall asleep as he spoke to him. Then, without being asked, Abdi handed the keys to Andrade and greeted him with a "Hi." As Andrade leaned into the vehicle, he smelled a strong smell of an alcoholic beverage coming from Abdi's breath. The defendant and the car smelled of vomit. Andrade said the defendant's conversation with him was not making much sense, and that it seemed his thought pattern was broken. When he spoke his speech was slurred. He was somewhat dishevelled.

[9] At 4:26 a.m. Andrade placed Abdi under arrest for "impaired care and control". He then went to ask his escort Constable Corsetti to assist him in bringing Abdi back to their scout car. At 4:28 a.m. they removed Abdi from the driver's seat of the Honda. As they began walking him back to their scout car, Abdi's pants, which were undone, fell down to his ankles. There was also a noticeable tear in them at the hip.

[10] Mills videotaped the proceedings beginning when the police arrived and began to engage the defendant, including the removal of Abdi from his vehicle and the walk to the scout car. Based on his observations of Abdi including his "state of undress while he was in the car, trying to put his pants back together, the steadiness (sic) on his feet, that sort of stuff", Mills opined that Abdi's demeanour was "that of a person that I would consider to be impaired or had been drinking. Excessively." The video made by Mills was played in court.

[11] After Abdi had been placed in the scout car, Corsetti went to speak to Mills. Corsetti then advised Andrade that Mills had seen the defendant driving the Honda when he first observed the vehicle, so at 4:31 a.m. Andrade arrested Abdi for "impaired operation". Andrade advised Abdi of his right to counsel, to which Abdi responded that he understood and wished to speak to a lawyer. Andrade then made the breath demand for the approved instrument, to which Abdi replied that he was refusing to supply the sample. Portions of the in-car camera video, from when Andrade and Corsetti arrived on scene at 4:23:44 until 4:37:56, were played in court. We see the defendant removed from the Honda, escorted to and placed in the scout car, and engaging with the officers. As they walk him to their scout car, one of the officers asked Abdi if he had any medical condition, to which he replied "No.".

[12] After other units had arrived, at 4:44 a.m. Andrade and Corsetti left the scene with Abdi and took him to 41 Division, arriving at 5:02 a.m. There was a delay while another prisoner was being printed for release. Abdi continued to attempt to talk to the officers. Andrade said he couldn't quite put together what Abdi was trying to say – he thought Abdi was trying to explain that he worked at Pearson Airport – because his speech was very slurred and he wasn't making much sense.

[13] After being paraded, at 5:23 a.m. the defendant was placed in the report room, where Andrade observed Abdi falling asleep while sitting up. At 5:40 a.m., a call was made to duty counsel. Duty counsel returned the call at 5:43 a.m. After Abdi had spoken to duty counsel, Corsetti took Abdi into the breath room. Corsetti came out and told Andrade that duty counsel needed to be called again. Duty counsel called back at 6:06 a.m. and the accused spoke to duty counsel a second time.

[14] Constable Norman is a qualified breath technician. He testified that he attended 41 Division on the morning of November 3, 2013 for the purpose of receiving breath samples from the defendant, and that he received two suitable samples into the Intoxilyzer 8000C instrument from Abdi: the first sample, at 6:27 a.m., registered a BAC reading of 145 milligrams of alcohol in 100 millilitres of blood; the second sample, at 6:50 a.m., registered a BAC reading of 137 milligrams of alcohol in 100 millilitres of blood.

[15] Portions of the breath room video were played during Norman's testimony. Abdi was brought into the breath room initially at 5:46 a.m. and taken back to the report room at 5:51 a.m. to speak to duty counsel a second time. He was returned to breath room at 6:15 a.m. Norman described how the defendant fell asleep at least twice during that second portion of the interview, and a third time when he was returned to the breath room for the second sample.

[16] Following the taking of the second sample, Norman asked Abdi how much alcohol he had consumed. Abdi said he had no idea. He asked Abdi whether he had been drinking at a bar or a private residence. Again, Abdi responded that he had no idea. Abdi told Norman he had taken Tylenol 3 and anti-inflammatory medication at 8:00 p.m.

[17] With regard to the issue of Abdi's impairment, Norman testified that "it was almost as if he was under water…His motions were slower…his speaking was slower…His comprehension appeared to be slower…There was an odour of alcohol on his breath…His eyes were terrible…bloodshot…drooping, his pupils were big and dilated…the overwhelming sense was that the presence of alcohol in his body had impaired him by slowing down everything in his, in his world."

[18] The report of C.F.S. Toxicologist Laura Gorczynski dated 28 January, 2014 was filed as Exhibit 4 in these proceedings. Based upon the information she was provided (by the Crown) – (a) the driving occurred between 3:55 a.m. and 4:05 a.m., and (b) the Intoxilyzer results were 145 and 137 milligrams of alcohol in 100 millilitres of blood at 6:27 a.m. and 6:50 a.m. respectively – she calculated that the projected BAC at the time of driving was 135 to 185 milligrams of alcohol in 100 millilitres of blood. Gorczynski opined that an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.

[19] The defendant testified in his own defence. In answer to when and where he started consuming alcohol the night of his arrest, he said it was between 11:00 p.m. to 1:00 a.m. at a sports bar, the Corner Pocket, where he had plans to watch the UFC fights. He said he was drinking shots of Jack Daniels (which it was agreed by counsel is 80 proof or 40 per cent alcohol by volume).

[20] Abdi brought a shot glass which he said came from that establishment. It was agreed that each shot was the equivalent of approximately 40 millilitres, or between an ounce and a quarter to an ounce and a half. Asked if he remembered how many shots he consumed, he said it was between six to eight shots.

[21] Abdi testified that he had been suffering from swelling and inflammation to one of his legs (which he then clarified was to both feet) for about a month or so leading up to these events. He had attended at the Sunnybrook Hospital emergency department on October 6, 2013 where he was prescribed Ratio-Lenoltec No. 3 (Tylenol 3) 30 mg. for the pain as well as an anti-inflammatory (Apo-Naproxen 500 mg.) Copies of the prescription and Abdi's Patient Medical History Report from Walmart Pharmacy Limited documenting the above were filed as exhibits.

[22] Abdi testified that he had never taken the medications and consumed alcohol at the same time during the period after they were dispensed to him and up to this evening. Asked if he had ever received "any warnings with how to take these medication" when he was "prescribed this medication or receiving this medication", Abdi said, "Not to my knowledge and so forth. I'm not aware of that." Asked to repeat his answer he said, "Not to my knowledge. I do not recall." I asked counsel to be more specific with respect to alcohol. The following exchange then took place:

Mr Genis: Now sir, to be more specific, have you ever been told anything about combining these medications with alcohol?

Mr. Abdi: I do not recall.

[23] Abdi testified that he stopped drinking alcohol at 1:00 a.m. and that he "waited off the alcohol I consumed to see how I am able – if I'm able to leave, or if I am so forth (sic)." He said he consumed water after 1:00 a.m. For clarification, I asked him if his purpose was to see how he felt. Abdi responded, "If I'm competent, or if I am able to be able to drive myself, or if I'm able to … need a taxi, depends on ...".

[24] Asked by Mr. Genis how the alcohol made him feel, Abdi said:

At – when I stop – stopped drinking – and I didn't feel as – basically I felt intoxicated, but not to the – like, by 1:00 a.m. when I stopped drinking, I felt, how do you put it, happy. Not to the – that's when I started drinking water and so forth. The same effect alcohol does to the body. I don't know what the term for it is, but like …

[25] Mr. Genis asked the defendant what his plan was to go home. He replied that the bar was closing at around 3:00 a.m. "So within that two hours, just to wait it off and see how am I able to drive myself, or do I need a taxi for me to leave my car, and for me to take a taxi home."

[26] Abdi then provided a detailed and precise reckoning of the amount of alcohol he had (or could have) consumed that night, as set out in the following exchange between Mr. Genis and the defendant:

Q: Did you have money for the taxi?

A: Yes

Q: How much money did you have with you when you went to the bar?

A: That night I came with about $130.00.

Q: How much money did you have when you get out of the police station?

A: I have $50.00 remaining with…

Q: How much is one shot?

A: $7.00.

Q: Were you with friends there?

A: Yes. I was with colleagues at work, and so forth.

Q: Okay. Did you pay for each other's drinks?

A: No. Everybody was on my (sic) own.

Q: Did you give tips on these shots?

A: Yes

Q: How much would you give as a tip?

A: If it was $7.00, I would give the person $10.00. A $3:00 tip.

Q: Okay. How much money would be a cab home from that bar?

A: It varies on the cab driver, but I had $50.00 reserved for me to take the cab in case, and so forth.

[27] Abdi was then asked to "connect the dots" between him being at the bar and being arrested. He responded, "I basically – I do not recall that. Like, I woke up with the police officer. At – and then from that – what – the video transpired, I was in and out, and so forth. When I asked him what his last recollection was before he noticed the police, he said "being at the bar."

[28] Abdi testified that he took the prescribed medication in the evening at home some time prior to leaving for the bar. He said he left for the bar a little bit before 11:00 p.m. on the 2nd and then clarified that he left for the bar at around 10:30 p.m. He said he took one anti-inflammation (pill) and one Tylenol (3 tablet).

[29] At the end of his examination-in-chief, in response to my questions, Abdi claimed to have no recollection of getting into his car, and no memory of the paramedics. He said the last thing he recalled was being at the bar with his friends, feeling intoxicated.

[30] Under cross-examination, Abdi explained that he would only take the medication "just when I needed it when I was in severe pain…" which he then clarified was every day. Asked how taking the Tylenol 3 made him feel, he said it made the pain go away, and that it did not have any effect on "my motor – not my senses, or nothing like that…" (Emphasis added)

[31] He said that he had no recollection of being given a warning at the Walmart about taking this medication and driving with it. He explained that he was aware at the time that some prescription medications are accompanied by cautions regarding driving "but I do not recall exactly some - something that happened in 2013." He also agreed that he was aware that there are some medications that require caution when mixing with alcohol, but denied being aware at that time that "Tylenol 3 had the potential to go badly when mixed with alcohol", explaining that this was the first time he had ever been prescribed Tylenol 3 and that he "did not know the combination will – will have that effect." When asked if there was a warning on the container in which the Tylenol 3 was dispensed, he said he did not recall, nor did he recall the pharmacist giving him some explanation when the medication was dispensed.

[32] Asked if he often consumes that many shots of alcohol in that short a space of time (i.e. two hours), Abdi said that he has a high tolerance due to his size - apparently 325 pounds at the time - that he drinks to his limit and not beyond it, and that when he goes out drinking he always has a budget set in case, if he is not feeling comfortable to drive home, he will leave his vehicle there and take a taxi home.

[33] Abdi said he did not recall how long he drank water for, or what time his friends left the bar, or when he himself left. He said he was playing pool and socializing with other people until he "blacked out." He said he had no memory of how the damage was caused to his vehicle, or why his pants were down or torn.

[34] Abdi testified that he ate nothing at the bar, and that he had his last meal (before leaving for the bar) at around 7:00 p.m. I then had the following exchange with him regarding what time he took the medication:

Q: And do you remember what time you took the medication?

A: Not that part. Probably because I had to take it with food, so it was probably after that.

Q: After?

A: Yeah, because I have to have food.

Q: I understand that.

A: Yeah

Q: So did you take it around 7:00 or 7:30?

A: Probably, yes, your Honour.

Q: Did you take any medication between 7:30 and eleven o'clock?

A: Not to my knowledge, no, Your Honour.

Q: Did you say "Not that I remember" or that you did not.

A: Not that I remember.

[35] While Abdi testified that he had "gone out to a bar and drunk like this" at least once between October 6th and November 3rd, he was unable to recall any other occasion when he went out drinking after taking the prescribed medication.

[36] Abdi said he had spoken to his friends after his arrest when they gave him a lift to get his car out of impound. He said he asked them a lot of questions trying to figure out what happened. Asked what they said had happened, he responded, "They do not remember. Same as me. I do not remember. They do not recall." He clarified that by saying that he played a game of pool with them, but they were unable to remember what occurred from that point on.

[37] With regard to his recollection of the dealings he had with the police, Abdi said he remembered being escorted by the police to their vehicle, "but then I went off again, like I blacked out and so forth". He explained that he was "blacking in and out" throughout the period of time at the police station until his release when he was sent home in a cab.

[38] Ben Joseph was tendered as an expert witness by the defence. I had been provided in advance – and reviewed – his report dated 16 April, 2015 together with a curriculum vitae. I was advised that his qualifications as an expert in the relevant areas of forensic toxicology and pharmacology were not in issue. His vive voce testimony was largely directed to the alleged inaccuracy and/or unreliability of the Intoxilyzer results owing to the instrument not being properly operated and calibrated and hence not being in proper working condition. As noted above, that position was ultimately abandoned by the defence. His report was filed as Exhibit 10 in these proceedings.

[39] Joseph was also asked about, and agreed with the projected BAC calculations contained in the report of Laura Gorczynski dated 28 January, 2014, referred to above. Based upon the information provided to him (by the defence) – (a) the defendant weighed 325 pounds at the material time, (b) he consumed 8 drinks (40% alc. v/v, 1.2 to 1.5 fl. oz. each drink) during the period from 11:00 p.m. to 1:00 a.m., and (c) the time of incident/arrest was 4:27 a.m., Joseph calculated that the projected BAC at 4:27 a.m. was between approximately 3 to 24 milligrams of alcohol in 100 millilitres of blood. Based upon the same information, Gorczynski – in a second report dated 15 June 2015 filed as Exhibit 8 in these proceedings – calculated that the projected BAC at approximately 4:27 a.m. was 0 to 45 milligrams of alcohol in 100 millilitres of blood.

[40] In the following exchange with Mr. Genis, Joseph was asked about the contents of Gorczynski's 15 June 2015 report concerning Drug Effects:

Q: Okay. Now, with respect to the drug effects, Ms. Gorczynski … says that codeine is a drug used for treatment of mild to moderate pain. Effects that occur after use of this drug may include dizziness, drowsiness and stupor. And the effects of codeine may be exacerbated when used in combination with other central nervous system depressants such as alcohol. Would you agree or disagree with that?

A: I would agree with that statement, yes.

[41] In his report (Exhibit 10), Joseph included a section entitled "4. Drug action and related behavioural sequelae involving Mr. Zakariya Abdi's medication regimen".

Under 'Submitted facts', he notes:

• Time of incident: November 3, 2013 at 4:27 a.m.
• Medications Mr. Abdi was prescribed and compliant with prior to November 3, 2013:
  • Ratio-Lenoltec (Acetaminophen + Codeine phosphate + Caffeine) – last taken on the night of November 3, 2013 (sic)
  • Naproxyn (500 mg) – last taken on the night of November 3, 2013 (sic)
• Between 11:00 p.m. on November 2, 2013 and 1:00 a.m. on November 3, 2013, Mr. Abdi consumed an amount of alcohol (8 drinks of 40%alc. v/v, 1.2 to 1.5 fl. oz. each drink). He consumed no other alcohol that day.
• Police booking video and breath test video showed that Mr. Abdi's speech was normal (no slurring). His balance appeared normal. He exercised normal fine motor control and occasionally exhibited drowsiness in the breath room.

[42] Joseph's report goes on, under the heading "Scientific facts on drug/alcohol in the body", to say that the half-life of codeine (i.e. the time taken for the drug concentration to fall to one-half its original concentration) is 1.5 to 3 hours, and, that generally a drug will be eliminated after 5 to 6 half-lives and begin to no longer have a pharmacological effect after 4 half-lives. He writes that it is important to note that "a new drug in the system has greater possibility of adverse effects than drugs that have been taken for some time," and that "in general adverse effects occur when the drug is reaching steady state, and decrease when the drug is being eliminated."

[43] Neither in his report nor during his testimony does Joseph clarify what constitutes "a new drug" or what is meant by "the drug is reaching steady state." What is known – or at least in evidence – is that:

1. Abdi had been prescribed the Tylenol 3 on October 6, 2013,
2. he took Tylenol 3 every day, and it did not have any effect on his "motor… senses … nothing like that…", and
3. he last took (one tablet of) Tylenol 3 (30 mg) between 7:00 p.m. and 8:00 p.m. on November 2, 2013.

[44] Joseph's report also notes that a wide variation in the metabolism of ethyl alcohol exists, and that the elimination of ethyl alcohol from the blood stream varies from approximately 15 to 17 mg/100mL per hour (social drinkers) to 25 to 35 mg/100mL per hour and more (experienced drinkers or patients with chronic alcohol abuse). It is not indicated which of these categories the defendant falls into, albeit there is no evidence before me to suggest that he is other than a social drinker.

[45] Under "Assessment of drug action" Joseph writes:

Based on the drugs present or absent (above information, corresponding half-lives, drug disposition and withdrawal) in the system at the time of the incident … the following assessment of Mr. Abdi's impairment, intoxication, and related behavioural sequelae has been prepared as below:

I. Direct pharmalogical effects of each drug

II. Drug interactions

He then addresses the "Direct pharmacological effects of each drug".

With respect to codeine, he lists "Significant Adverse Reactions of the Central nervous system: Abnormal dreams, agitation, anxiety, apprehension, ataxia (which I understand to mean the loss of full control of body movements), chills, depression, disorientation, dizziness, drowsiness, dysphoria, euphoria, fatigue, hallucination, headache, increased intracranial pressure, insomnia, nervousness, paresthesia (which I understand to mean the sensation of tingling, tickling, pricking or burning of a person's skin with no apparent cause), sedation, shakiness, taste disorder, and vertigo." He adds that codeine may cause CNS depression, which may impair physical or mental abilities.

With respect to ethyl alcohol, he states that with a BAC between 10 and 100 mg/100 ml in blood, euphoria and mild deficits in coordination, attention, and cognition may be observed.

He goes on to say that

(a) signs and symptoms of inebriation vary widely depending upon: the patient's genetics; the type, amount, and rate of alcohol intake; and, the frequency and pattern of alcohol use,

(b) the clinical effects of intoxication are relatively more predictable in individuals who do not abuse alcohol, and conversely, unpredictable in individuals with a history of chronic alcohol abuse who may demonstrate little clinical evidence of intoxication even with BAC over 400 mg/100 ml., and

(c) the clinical signs and symptoms of alcohol intoxication may not correlate with the BAC depending upon the factors described above and whether the concentration is increasing or decreasing; effects may be more prominent when levels are rising.

Under "Drug interactions", Joseph opines as follows:

Based on the above information, corresponding half-lives and drug disposition, it is possible that the following drugs (codeine and ethyl alcohol) were having an effect in Mr. Abdi's system at time of incident, i.e. November 3, 2013 – 4:27 a.m. (Emphasis added)

Ethanol and codeine are capable of depressing the function of the central nervous system (CNS) individually.

The concomitant use of two or more drugs has the potential to depress central nervous system function (either as a therapeutic intention or a side effect) further or potentiate such effects. Such effects may include, but are not limited to, ataxia, confusion, drowsiness, respiratory depression, and weakness in addition to effects seen for individual drugs above. (Emphasis added)

[46] Aside from the obvious error(s) concerning the date the medications were last taken (i.e. November 3, 2013 rather than November 2, 2013), there is no information included in Joseph's 'submitted facts' about (a) the strength of the Ratio-Lenoltec medication Abdi was taking (i.e. 30 mg), (b) the number of Ratio-Lenoltec tablets he took that evening (i.e. one), or (c) the time that the medication was taken (i.e. between 7:00 p.m. and 8:00 p.m.). In response to my question on that last point, Joseph said he did not have a time, that he was just told that it was taken at night. He agreed that if the Tylenol 3 medication was taken at 8:00 p.m. and if the defendant took no further medication, (at a minimum) one half-life of the tablet he took would be gone by 11:00 p.m., two half-lives would be gone by 1:00 a.m., and almost three half-lives would be gone by 4:00 a.m.

[47] In the section on Drug Effects in her 15 June 2015 report, Gorczynski qualifies her comments by stating at the outset, "Given that no drug concentrations were determined in this case, I am only able to offer a general opinion regarding the effects of the drugs under consideration." Gorczynski's report also goes on to say that the effects of codeine "depend on the concentration within the blood and the tolerance of the individual to the drug." Neither of these qualifications are included in Joseph's report.

[48] It is both curious and concerning that Joseph chose to offer his "comments" regarding the booking video and breath test video – which comments are arguably at odds with what the civilian and police witnesses testified to and with what I saw on those videos – and that he omitted any reference to the Mills video and the in-car video, given the myriad of signs of impairment observable in them and attested to by Mills, Bagley, and Andrade in their evidence.

[49] Gorczynski was called by the Crown in reply. Mr. Genis indicated there was no issue with her qualifications as an expert witness in forensic toxicology. She was asked about the concluding paragraph under the heading "Drug Effects" in her 15 June 2015 report, which reads: "The submitted information with respect to the hypothetical drug dosing scenario in this case provides no probative value in commenting on the relative level of possible impairment related to the drugs taken, given that the reported drug use in this case occurred after (sic) the time of the incident." I am given to understand that this misapprehension of the facts was occasioned by the erroneous information she had at the time of the preparation of the report, which came from the "submitted facts" at page 5 of Joseph's report.

[50] On the assumption that Abdi took one Tylenol 3 tablet at around 7:00 to 7:30 p.m. on the evening of November 2nd, Gorczynski opined that:

1. 30 milligrams of codeine is a therapeutic dose of codeine for an individual;
2. the effects of codeine depend very much on the tolerance of the individual to the drug;
3. if the individual is completely naive to codeine and has never taken it before, there is a possibility that such a dose could cause some drowsiness or sedation in the individual immediately – i.e. within 30 minutes - after taking the dose, and the effects would last anywhere from 4 to 6 hours after the drug has been taken, as it "does disappear relatively quickly from the body";
4. if the individual is accustomed to taking the drug – whether routinely every 4 hours or daily or every other day – they may or may not suffer the same sort of effects i.e. mild drowsiness and/or mild sedation: it is difficult to predict for a specific individual;
5. assuming no additional codeine - and no other drugs that would potentially interact with or combine with codeine to produce an additive effect - have been taken, the effects would be expected to wear off during the course of the evening, such that by 4 to 6 hours after the drug has been taken the effects would predominantly be gone (i.e. by 1:30 a.m. at the latest, assuming he took the medication at 7:30 p.m., albeit traces of the dose of codeine would remain in the body for up to 12 hours);
6. both codeine and alcohol are central nervous system depressants and, when take together, there is the potential for additive central nervous system depression;
7. the potential for, and degree of, additive CNS depression/producing combination effects depend on a lot of factors, particularly the tolerance of the individual to both drugs;
8. it is possible that an individual could have some tolerance to the effect of codeine or alcohol and then, when taking them in combination, there could be additive effects even though those effects would not be observable in the individual absent the addition of the other drug;
9. the time when the two drugs (codeine and alcohol) are initially in the system is (the time) when it is expected you would have the predominant effect/additive CNS depression – i.e. additive sleepiness, drowsiness, possible motor and coordination (sic), things of that nature;
10. as time wears on, assuming no additional drug (either alcohol or codeine) has been taken, the effects would be expected to wear off;
11. however, if alcohol or codeine is being consumed repeatedly throughout that period of time, the effects can either increase if the concentration of either of the drugs is increasing in the blood, or stay the same if the concentration is staying the same.

[51] I asked Gorczynski about the hypothetical and her BAC calculation based upon the information and testimony Abdi had provided, and more specifically, what the significance is of the fact that the defendant consumed the alcohol between 3½ and 5½ hours after the codeine. She opined that:

1. the majority of the effect of codeine she would expect from a single dose would be gone or almost gone by the time the alcohol is consumed, and that certainly towards the end of the alcohol consumption the main effect of the codeine is by that point gone;
2. an oral dose of codeine tends to take effect within about 30 minutes after the drug is administered, and that the effects can last for up to 4 to 6 hours, but those effects are decreasing even over that period of time…so the predominant sleepiness or drowsiness that may occur, (a) tends to occur after the drug has been taken and starts to take effect and dissipates within the first few hours after drug use and (b) would only occur in an individual that doesn't have significant tolerance to the drug
3. at the three hour mark (i.e. 10:30 p.m. to 11:00 p.m.) there is a possibility that there may be some residual sleepiness or drowsiness when the individual first starts consuming the alcohol, but by the five hour mark (i.e. 12:30 a.m. to 1:00 a.m.) you are approaching the outward limits of when any of those effects would be present in the individual from the codeine.

[52] Under cross-examination, Gorczynski explained that:

1. if Abdi started drinking at 11:00 p.m. the effects of alcohol would increase until he stopped drinking and/or stopped absorbing (the predominant amount of) alcohol, at which point the effects would plateau and begin to dissipate;
2. if he was consuming alcohol between 11:00 p.m. and 1:00 a.m. at the rate of one to two drinks every 20 to 30 minutes – given that in social drinking situations the effects of consumption tend to plateau in conjunction with the highest BAC – he would reach his highest BAC within about 15 to 30 minutes after he stopped drinking (i.e. 1:15 a.m. to 1:30 a.m.);
3. depending upon how much he had to drink, at that point the effects could either stay at that level or begin to decrease until his BAC reached a level where there were minimal or no effects (i.e. at a BAC of perhaps 30 milligrams of alcohol in 100 millilitres of blood or less);
4. an individual has significant impairment with respect to operation of a motor vehicle at a BAC in excess of 50 milligrams of alcohol in 100 millilitres of blood, and impairment can occur at BACs as low as 15 milligrams of alcohol in 100 millilitres of blood;
5. those effects (e.g. choice reaction time) are impenetrable to tolerance i.e. tolerance cannot affect those impairing effects on one's ability to operate a motor vehicle;
6. the number of faculties that are impaired rise as the BAC increases (beyond 50);
7. if the Tylenol was taken between 7:30 p.m. and 8:00 p.m. it is possible that it would still be detectable in Abdi's blood at 1:30 a.m. but the effects would be diminishing – particularly if he has routinely consumed or has some tolerance to the effects – because at that point you are approaching the outer limits of when the drug produces its effect (which tends to be gone within 4 to 6 hours); and
8. while the effects of the codeine would be diminishing – 1:00 a.m. to 1:30 a.m. being the outward limit of when the effects would be present, the effect of the alcohol would likely be reaching its peak, and, if the two depressants were working simultaneously, their combined effect could potentially be greater than their individual effect.

Applicable Legal Authorities

[53] The predominant legal issue in this case – mens rea in impaired operation and related offences – was addressed by Ritchie, J. in the seminal decision of the Supreme Court of Canada in R. v. King, [1962] S.C.R. 746:

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 (now s. 253 (a) of the Criminal Code) 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 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 reasonably be expected to foresee under the circumstances.

In the course of the lecture on "The Criminal Law" which is contained in the well-known work by O.W. Holmes Jr. on the "Common Law", that learned author says:

As the purpose is to compel men to abstain from dangerous conduct, and not merely to restrain them from evil inclinations, the law requires them at their peril to know the teachings of common experience, just as it requires them to know the law.

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 of 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 the opinion that the element need not necessarily be present in relation to 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.

[54] Although King was decided seven years before Parliament created the offence of operate over 80, it is apparent - based upon the reasoning of Justice Ritchie – that if a BAC above the legal limit has been brought about without any act of a driver's own will, then the offence created by s.253 (b) cannot be said to have been committed.

[55] An accused may rebut a legal presumption by raising a reasonable doubt based on the totality of the evidence.

Austin v. R., [1969] 1 C.C.C. 97; R. v. Bernard, 90 N.S.R. (2d) 10; R. v. Sitarz, 2013 ONSC 7034

[56] Where a presumption merely establishes a prima facie case the burden of proof does not shift. The accused need only raise a reasonable doubt by giving an explanation that may reasonably be true.

R. v. Proudlock, (1978) 43 C.C.C. (2d) 321; R. v. Sitarz, supra

[57] The rebuttable presumption referred to in King does not require the defence to prove that his condition was not voluntarily induced. A conviction will follow unless other evidence is adduced that raises a reasonable doubt on that essential element.

R. v. Sitarz, supra

[58] The accused having testified, the formula set out in W(D) applies: First, if I believe the evidence of the accused, I must acquit. Second, if I do not believe the evidence of the accused but I am left in a reasonable doubt by it, I must acquit. Finally, even if I am not left in doubt by the evidence of the accused, I must ask myself whether on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

R. v. W(D), [1991] S.C.R. 742

Analysis

[59] Based upon all of the evidence, in particular the testimony of the Crown witnesses including Mills, Bagley, and the police officers and my review of the video evidence, there is absolutely no doubt in my mind that Abdi's ability to operate a motor vehicle at the material time – shortly after 4 a.m. on November 3, 2013 – was impaired by alcohol. Indeed, his state of impairment was obvious to extreme.

[60] I am also satisfied beyond a reasonable doubt that the defendant's blood alcohol level at the material time was substantially in excess of the legal limit of 80 milligrams of alcohol per 100 millilitres of blood.

[61] In any event, at the end of the day I do not take the defence to disagree with either of those conclusions.

[62] Rather, it is the position of the defence that, as a result of the alcohol Abdi had consumed between 11:00 p.m. and 1:00 a.m. interacting with the Tylenol 3 medication he had taken earlier in the evening, he was thereafter incapable of appreciating and knowing that he was consuming and did consume a great deal more alcohol in the period after 1:00 a.m. and prior to the operation of his motor vehicle, as a result of which "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".

[63] Likewise, it is the position of the defence that the defendant would have been incapable of appreciating and knowing that he was consuming and did consume alcohol in such a quantity that, when he thereafter operated a motor vehicle, his blood alcohol level would and did exceed 80 milligrams of alcohol per 100 millilitres of blood.

[64] There are a number of factors in this case which, individually and collectively, militate against a finding that Abdi, "through no fault of his own", was disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might be impaired and/or that he had consumed alcohol in such a quantity that his blood alcohol level would and did exceed 80 milligrams of alcohol per 100 millilitres of blood:

1. The Tylenol 3 tablets that Abdi had been prescribed were 30 mg. to be taken 1-2 tablets every 4 hours as needed. (Emphasis added). According to the defendant, he took one 30 mg. Tylenol 3 tablet on the evening of November 2nd. At various times it was his position that he took the medication (a) some time prior to when he left his home for the bar at 10:30 p.m. (Examination-in-chief), (b) following his dinner (which he says he ate at 7:00 p.m.) at around 7:30 p.m. (Cross-examination), and (c) at 8:00 p.m. (Breath Room Video). On the evidence, I find that – if in fact he took this medication on the evening in question - he took no more than one 30 mg. tablet at or prior to 8:00 p.m. on November 2.

2. The letter of opinion of Laura Gorczynski dated 28 January, 2014 was filed as Exhibit 4 in these proceedings. Based upon the information she was provided – that (a) the driving occurred between 3:55 a.m. and 4:05 a.m. and (b) the Intoxilyzer results were 145 and 137 milligrams of alcohol in 100 millilitres of blood at 6:27 a.m. and 6:50 a.m. respectively – she opined that the projected BAC at the time of driving was 135 to 185 milligrams of alcohol in 100 millilitres of blood.

3. Abdi testified that he consumed 6 to 8 shots of Jack Daniels (40 % alc. v/v, 1.25 to 1.5 fl. oz. each) between 11:00 p.m. on November 2, 2013 and 1:00 a.m. on November 3, 2013.

4. The Letter of Opinion of Ms. Gorczynski dated June 15, 2015 was filed as Exhibit 8 in these proceedings. Based upon the information provided (by the defence) with respect to a specific drinking scenario – (a) the defendant weighed 325 pounds at the material time, (b) he consumed 8 drinks (40% alc. v/v, 1.2 to 1.5 fl. oz. each drink) during the period from 11:00 p.m. to 1:00 a.m., and (c) the time of incident/arrest was 4:27 a.m., she opined that the BAC at 4:27 p.m. was 0 to 45 milligrams of alcohol in 100 millilitres of blood.

5. The report of Ben Joseph dated April 15, 2015 was filed as Exhibit 10 in these proceedings. Based upon the information provided to him (by the defence) – (a) the defendant weighed 325 pounds at the material time, (b) he consumed 8 drinks (40% alc. v/v, 1.2 to 1.5 fl. oz. each drink) during the period from 11:00 p.m to 1:00 a.m., and (c) the time of incident/arrest was 4:27 a.m., he opined that the projected BAC at the time of driving was 3 to 24 milligrams of alcohol in 100 millilitres of blood.

   NOTE: I attach no significance to the apparent variations in the BAC calculations of Gorczynski and Joseph based upon the information provided to them by the defence.

6. It will be recalled that the defendant provided a detailed explanation for why he could not have consumed in excess of the 8 shots that night, which explanation was based upon the amount of money he had brought with him to the bar, the cost of each shot before and after tip, and the amount of money he had retained in reserve in case a taxi was required.

7. The defendant testified that he was unaware when he took the tablet that evening of the potential consequences of mixing Tylenol 3 medication with alcohol, and, that he could not remember if he was told by the pharmacist (when he was dispensed the Tylenol 3 and Naproxen on October 6th) that the pain medication should not be mixed with alcohol, and, that he could not remember if there was a warning label concerning the potential consequences of mixing Tylenol 3 medication with alcohol on the container in which the Tylenol 3 pills were dispensed.

8. Abdi also testified that he had "gone out to a bar and drunk like this" at least once between October 6th and November 3rd. While he was unable to specifically recall any other occasion when he went out drinking after taking the prescribed medication, he did testify that he took this medication every day.

9. Moreover, when asked how taking the Tylenol 3 made him feel, Abdi said it made the pain go away, and that it did not have any effect on "my motor – not my senses, or nothing like that…" From that response, I take him to be saying that he never experienced any of the potential side effects referred to in the reports and testimony of Joseph and Gorczynski, namely dizziness, drowsiness and stupor.

10. It will be recalled that Gorczynski qualified her opinion regarding drug effects with the statement: "Given that no drug concentrations were determined in this case, I am only able to offer a general opinion regarding the effects of the drugs under consideration." Gorczynski's report also goes on to say that the effects of codeine "depend on the concentration within the blood and the tolerance of the individual to the drug."

11. It was the defendant's testimony that by 1:00 a.m. when he says he stopped drinking, "basically I felt intoxicated … I felt, how do you put it, happy. Not to the – that's when I started drinking water and so forth. The same effect alcohol does to the body. I don't know what the term for it is, but like."

[65] I do not believe the defendant's testimony to the effect that he was unaware (when he took the Tylenol 3 tablet that evening) of the potential consequences of mixing Tylenol 3 medication with alcohol. However, regardless of whether or not I believe him (or for that matter whether his evidence is capable of raising a reasonable doubt) on that point, there is nothing in the evidence which explicitly or by implication attributes his intoxicated state at 1:00 a.m. (or for that matter at any point from the time when he took the medication until the time of his arrest) to anything other than the effects of the alcohol he had consumed in the previous two hours.

[66] Abdi's own testimony was to the effect that at 1:00 a.m. he was intoxicated by the alcohol he had consumed between 11:00 p.m. and 1:00 a.m. As he put it:

At – when I stop – stopped drinking – and I didn't feel as – basically I felt intoxicated, but not to the – like, by 1:00 a.m. when I stopped drinking, I felt, how do you put it, happy. Not to the – that's when I started drinking water and so forth. The same effect alcohol does to the body. I don't know what the term for it is, but like … (Emphasis added)

[67] It is apparent that the information provided by the defendant regarding the amount of alcohol he consumed that night was incomplete. Moreover, it is apparent that the explanation provided by the defendant for why he could not have consumed in excess of 8 shots that night was inaccurate. That this explanation was offered at a point in time during the trial when the accuracy and reliability of the Intoxilyzer and the defendant's BAC at the time of driving were still live issues is of considerable significance when I come to assess the defendant's credibility and reliability as a witness.

[68] Justice Ritchie cautions 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 drugs:

R v. King, supra

[69] Even if I was left with a reasonable doubt on the question whether the defendant became or perhaps more accurately remained unaware of the effects of combining Tylenol 3 and alcohol before he started to drive, is there any basis for this Court to have a reasonable doubt to rebut the common law presumption of voluntary consumption on the facts? Put another way, is there any evidence that is capable of raising a reasonable doubt that Abdi'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?

[70] Joseph's evidence is of limited assistance to me, given the omissions in the 'submitted facts' to which I have already alluded.

[71] I have read and re-read Gorczynski's evidence – which I do accept – and I have carefully considered it in the context of the testimony given by the defendant. In the result, I find there is no factual basis that allows for the possibility that – at some point between 1:00 a.m. when Abdi claims that he stopped drinking and shortly after 4:07 a.m. when Abdi last set his vehicle in motion – the Tylenol 3 medication was or could have been interacting with the alcohol he says he had consumed between 11:00 p.m. and 1:00 a.m. to such an extent that he would not have been aware and/or would have "lacked an appreciation" that he was consuming additional quantities of alcohol which would result in (a) the impairment of his ability to operate a motor vehicle, and (b) a BAC in the range of 135 to 185 milligrams of alcohol in 100 millilitres of blood. (Emphasis added)

[72] That being said, there is no evidence that raises a reasonable doubt on the essential element of mens rea. Accordingly, I am left to conclude that Abdi's lack of appreciation when he undertook to drive was induced by the voluntary consumption of alcohol which he knew would cause him to be impaired, and he cannot then avoid the consequences of the impairment, and a BAC above the legal limit, which resulted.

[73] There will be findings of guilt on both counts. The Crown will indicate the count on which it wishes the conviction registered.

Date: May 6, 2016

Signed: Justice Neil L. Kozloff