Court File and Parties

Ontario Court of Justice

Date: 2016-11-18

Court File No.: Halton 14-2118

Between:

Her Majesty the Queen

— AND —

Amanda Fallis

Before: Justice Lesley M. Baldwin

Heard on: September 3, 2015; March 8, 2016; March 8, 2016 and May 16, 2016

Reasons for Judgment released on: November 18, 2016

Counsel:

• Lorna Muller, for the Crown
• Frank Genesee, for the defendant Amanda Fallis

BALDWIN J.:

Charge and Procedural History

[1] Amanda Marie Fallis is charged, on or about the 17th day of July, 2014, at the City of Burlington, with operating a motor vehicle while her ability to do so was impaired by drug, contrary to section 253(1)(a) of the Criminal Code.

[2] On March 10, 2016, the charge was amended on consent to include impairment by a drug and or alcohol. (pp. 58, 59)

[3] The Crown proceeded summarily.

[4] Date, jurisdiction, identity and the voluntariness of all utterances were admitted at the outset of trial.

[5] During the course of the trial, the Defence took no issue with the validity of the BAC readings obtained by the Qualified Intoxilyzer Technician; that Officer Borak was a certified DRE; the continuity of Amanda's urine sample; the qualifications of the Forensic Toxicologist.

[6] There were no Charter Applications.

[7] The Crown called the following witnesses at trial: Officer Daniel Kubas (the arresting officer at the scene); Officer Pam Douglas (present at the scene and the Qualified Intoxilyzer Technician at the station); Officer Borak (DRE Officer); Laura Gorczynski (Forensic Toxicologist – CFS)

[8] The Defence did not call any evidence.

[9] At the end of the trial, the Crown submitted that they had proven impairment to operate a motor vehicle by drug and or alcohol beyond a reasonable doubt.

[10] The Defence submitted that the case had not been proven beyond a reasonable doubt as there were alternative explanations for Ms. Fallis' condition that night including (a) a previous back injury, (b) that she was sleepy and tired, and (c) that she was depressed and in a suicidal state.

Summary of the Testimony of Officer Daniel Kubas

[11] Officer Kubas has been employed with the HRPS since August of 2013.

[12] He was on uniformed duty on July 17, 2014 and operating a fully marked police cruiser when he became involved in this matter at approximately 2:15 a.m.

[13] At that time he received a call from dispatch that there was a possible suicidal female that was driving in the northern portions of Burlington and the southern portions of Milton. The driver had sent a text message to a concerned friend that she was going to drive her car into a tree. The concerned friend had called police.

[14] The exact location of the vehicle was unknown. The car being driven was a black Ford Fusion with Ontario marker BPHZ 312, registered to Amanda Fallis.

[15] The registered owner lived in Burlington and Officer Kubas and Officer Douglas were dispatched to attend there in hopes of locating the vehicle or getting information as to where it might be. The address was 2180 Ferencich Court in Burlington.

[16] Officer Douglas was already on scene and speaking to the home owner at the front door when he arrived and parked his police cruiser near the end of the driveway. He arrived within a minute of the dispatch call.

[17] He was out of his cruiser standing at the end of the driveway when he saw the black Ford Fusion pull into the cul-de-sac and head toward the house. This was two to three minutes from when he had arrived on scene.

[18] He walked further out into the cul-de-sac towards Amanda's car. He asked if she was Amanda and told her to stop. She slowed down and stopped.

[19] As he approached the driver's side opened window, the vehicle began to roll slightly forward two to three feet.

[20] Officer Kubas testified that he had to move his feet out of the way to avoid being run over by the rear tires of the vehicle.

[21] He told Amanda again to stop the vehicle and to put it in park. She had difficulty doing this.

[22] Once she put the vehicle in park, Officer Kubas asked her to step out of the vehicle.

[23] Amanda had difficulty getting her seat belt off. Her hands were fumbling and she had difficulty pushing the release.

[24] Officer Kubas attempted to open the driver's door, but it was locked. He asked Amanda to unlock the door.

[25] Amanda appeared disoriented and could not locate the button to unlock the door, so Officer Kubas reached in and unlocked it.

[26] When Amanda first stepped out of the vehicle she was very unsteady on her feet and she leaned her back up against the car for support.

[27] Officer Kubas noticed that Amanda's eyes were very glossy and he asked her if she had been drinking any alcohol. She replied that she had consumed beer.

[28] Officer Kubas asked Amanda to walk to Officer Douglas who was approximately five feet away from her at that time. Officer Kubas wanted to see if Amanda could walk. The walk would have been on dry straight level asphalt. Amanda said that she could not do it.

[29] Officer Kubas also noted that Amanda's speech was slurred.

[30] At 2:20 a.m. he formed the opinion that Amanda's ability to operate a vehicle was impaired and he arrested her for that offence.

[31] Amanda needed to be physically supported during the handcuffing procedure and the Level One search.

[32] Amanda needed to be physically supported on the walk to the cruiser, the concern being that she would fall and hurt herself. Rights to Counsel were read and understood. She declined to speak to a lawyer. The cautions were read and understood.

[33] At 2:28 a.m., the Breath Demand was read and understood. She understood the Demand and added, "Yeah sure, might as well do it anyways. My life is over." (Transcript Sept. 3/15 p. 41)

[34] Officer Kubas noted that Amanda appeared very tired. Her eyes were shut for the most part while she acknowledged what he was saying to her. Her speech was slurred and she was mumbling a bit.

[35] At the scene Officer Kubas had taken a quick look at Amanda's car and noted fresh damage to the front end bumper area.

[36] He checked inside Amanda's car and found a rope noose on the front passenger seat. Suicide notes were also found in the vehicle.

[37] Officer Kubas left the scene at 2:40 a.m. and arrived at 30 Division at 2:45 a.m.

[38] Amanda continued to display poor motor skills at the Division and used her hand on the walls to support herself when required to walk.

[39] Amanda had trouble changing into a jumpsuit offered to her when she did not want to remove her clothing which contained various strings on them.

[40] Amanda decided to speak to Duty Counsel during the booking process and she did speak to Duty Counsel at the station.

[41] She was turned over to Officer Douglas for breath testing at 3:29 a.m.

[42] Two readings were recorded on the Certificate of a Qualified Technician reporting a BAC of 30 and 20. (Ex. #2)

[43] Officer Douglas and Officer Kubas formed the opinion that these low readings did not match the symptoms of impairment displayed by Amanda.

[44] They discussed the possibility that Amanda may be under the influence of drugs. Accordingly, Officer Kubas called Officer Borak, a Drug Recognition Expert, to attend.

[45] At 3:54 a.m. Amanda was read the DRE Demand and lodged in a cell to await Officer Borak.

[46] Officer Borak arrived at 4:33 a.m. and, after obtaining his grounds, he performed the DRE tests.

[47] Constable Kubas was informed at 5:55 a.m. that Amanda was impaired by drugs with alcohol in her system. (p. 89)

[48] Amanda was arrested for that offence and taken to hospital by day shift staff to address the suicidal risk issue.

Summary of the Testimony of Pam Douglas

[49] Officer Douglas has been employed with the HRPS since December of 2010.

[50] She was at the scene and also the Qualified Intoxilyzer Technician in this case.

[51] She heard the dispatch call about a potentially suicidal female at approximately 2:00 a.m.

[52] She arrived at 2180 Ferencich Court in Burlington at 2:03 a.m.

[53] The black Ford Fusion was not in the driveway or the court so she knocked on the door of the residence and spoke to Amanda's father who advised that Amanda was not at home.

[54] Officer Kubas arrived on scene. As Officer Douglas was walking away from the residence she saw the black Ford Fusion drive into the court. It was travelling very slowly driving toward the residence in the middle of the court.

[55] Officer Kubas approached the opened driver's side window and Officer Douglas was walking up the passenger side.

[56] Officer Kubas was speaking with Amanda. Officer Douglas noted that the car had stopped and then started to roll/lurch forward slightly. It appeared to her that Amanda was having trouble putting the vehicle in park.

[57] Officer Douglas observed Amanda to have trouble unlocking her car door.

[58] When Amanda exited the vehicle she leaned against the car with her arms crossed and appeared to be using the car to maintain her balance.

[59] Officer Douglas joined Officer Kubas at the driver's side of the vehicle.

[60] Officer Douglas observed Amanda's speech to be slurred and detected a slight odour of an alcoholic beverage emanating from her breath.

[61] Officer Douglas took three steps back and asked Amanda to walk towards her. Amanda took one step to her left and basically fell into Officer Kubas who was standing beside her to his left. He grabbed her arm to prevent her from falling over.

[62] At 2:20 a.m. Officer Kubas placed Amanda under arrest for impaired operation.

[63] Officer Douglas performed the Level One search and noted that Amanda was unsteady on her feet the entire time.

[64] Officer Douglas looked into the Ford Fusion and located Amanda's driver's licence, the operational rope noose and suicide notes. She also noted that there was damage to the front passenger's side of the vehicle including a cracked headlight and a dented front bumper.

[65] She followed Officer Kubas back to 30 Division. They left at 2:24 a.m. and arrived at 2:45 a.m.

[66] At the Division, Officer Douglas prepared the Intoxilyzer 8000C to obtain breath samples.

[67] She also performed the Level Two search of Amanda at the Division. Amanda did not want to take the strings out of her clothing so she was provided with a white jumpsuit. Amanda was very unsteady on her feet during this process. She was holding onto the wall for balance and almost fell backwards. She kept saying "I'm good." (p. 14)

[68] After receiving the two low BAC readings, Officer Douglas believed that something else was impairing Amanda. She believed some drugs were involved.

[69] As recorded on the Alcohol Influence Report (Ex. #4) and heard during the course of playing the breath room video, Amanda told Officer Douglas that she had last taken her prescription medications at 5:30 p.m.

[70] She took Ativan, Clonazepam and Valium. She also had 2 or 3 beers and stopped drinking at 5:30 p.m.

[71] In the breath room, Officer Douglas could no longer detect the odour of alcohol on Amanda's breath. Amanda's eyes were bloodshot and watery, her speech was slurred (for example, she said "the par in car" when she meant to say "the car in park"). When Amanda walked into the breath room she almost walked into the desk and then used it for support. She had trouble grabbing the cup for water.

[72] On the video Officer Douglas told Amanda, "You can barely walk. I've had to grab you four times or you'll fall and knock your head." This happened while Officer Douglas had been walking Amanda from the booking room to the Level Two search room. (p. 21)

[73] Officer Kubas arranged for the DRE Officer to attend and Amanda was re-lodged in the cell at 4:09 a.m. to await his arrival.

[74] Officer Douglas was part of obtaining the urine sample from Amanda as part of the DRE examination. After providing a sample into a cup at 5:50 a.m. Amanda dropped it into the toilet. She eventually did provide a second sample.

[75] In cross-examination Officer Douglas was asked if Amanda's "dazed" demeanour at the scene could be due to symptoms of depression, suicidal behaviour or a mental meltdown. Officer Douglas replied that it could be.

[76] Officer Douglas repeated that she believed at the scene that Amanda's symptoms were consistent with someone who was impaired by alcohol.

[77] Officer Douglas agreed that when she found the items in Amanda's car, she was aware that Amanda was a severely distressed person for some reason.

[78] Officer Douglas testified that Amanda told her that she had taken her prescription medications in the morning and again in the afternoon.

[79] Amanda told her that she had been doing quite a bit of driving 'Walkers to Derry to Bell School Lane to Tremaine to 2nd Side Road to Walkers'. (Ex. #4)

Summary of the Testimony of Chris Borak

[80] Officer Borak has been employed with HRPS since April of 2002.

[81] He has been a certified Drug Recognition Expert since 2014. He is also a qualified Breath Technician.

[82] Officer Borak testified that after speaking to Officer Kubas on the phone at 4:00 a.m. he headed to the Burlington station from Halton Hills arriving at 4:30 a.m.

[83] He interviewed Officer Kubas at the station as part of his Drug Recognition Evaluation. The information he obtained is detailed in the March 9, 2016 transcript from page 8 through to 10. It gave him grounds to demand that Amanda comply with his DRE evaluation.

[84] At 4:48 a.m. he met Amanda at the cell door.

[85] "So my first observations of her were she was in cell number 11 lying on the concrete bed. She was lying on her right side with her head raised off the bed. Her eyes appeared to be unfocused and droopy. As she got up and was removed from the cell, she had difficulty maintaining her balance. She bumped into the wall. She ran her hand along the wall to maintain balance. At five o'clock when we entered the evaluation room she bumped into her chair as she was going to sit down. She used her hands on the table to maintain balance while going to a seated position. She appeared tired and disoriented. Her face was flushed. She had rosy cheeks. Sitting face to face with her, her eyes were bloodshot, she had droopy eyelids." (Transcript March 9, 2016 p. 12)

[86] The 47-minute video of the drug evaluation testing was played in Court and Officer Borak's Drug Influence Evaluation Report was filed as Exhibit #7. Part of that Exhibit is the Drug Evaluation Narrative which is attached to this judgment as Appendix 'A'.

[87] Officer Borak observed that Amanda appeared tired and disinterested when he read the DRE Demand to her.

[88] Her speech was poor, slurred and she fumbled over words.

[89] She swayed when performing the Modified Romberg Balance Test.

[90] She could not keep her balance on the Walk and Turn Test. Significantly she used the wall to keep from falling.

[91] Amanda could not perform the One Leg Stand Test. She again used the wall to maintain balance. She did not complete the test and stated she could not continue as it was hurting her back.

[92] Amanda performed poorly on the Finger to Nose Test.

[93] The Clinical signs obtained from the Horizontal Gaze Nystagmus Test, Blood Pressure, Body Temperature and Pupil Size, were all outside the normal range.

[94] Amanda stated that she had taken Seroquil to aid her sleep, Naproxin, Valium, Concerta for ADHD, and Clonazepam as prescribed. Amanda stated that 2 to 3 weeks ago she had started taking new medication of Clonazepam and Diazepam. She stated she had consumed 2 to 3 bottles of beer by 5:30 p.m. the previous evening.

[95] Amanda stated that she suffered from back pain due to an old sports injury and found the psychophysical tests difficult to complete.

[96] Officer Borak formed the opinion that Amanda was impaired by a combination of Central Nervous System Depressant and Alcohol and was unable to operate a motor vehicle safely.

[97] Officer Borak testified that the DRE tests are designed to mimic the skills needed to safely operate a motor vehicle such as the ability to divide one's attention, the ability to follow tasks, short-term memory capacity, control of body movements and balance.

[98] Amanda performed very poorly in all categories. (pp. 26 to 28; 37 to 48; 59 to 60)

[99] In cross-examination, Officer Borak agreed with the suggestion that people who are suicidal can be very erratic in their behaviour. (p. 77)

[100] Officer Borak testified that he did not consider Amanda's depression to be a direct cause of her impairment. (p. 82)

[101] Officer Borak was firm in his opinion that Amanda's inability to perform the physical tests was not due to a back injury.

[102] Amanda told him that she had a historical back injury and had been medicating for it ever since. Since the injury, she has applied for the Fire Service five times. She works in a landscape and construction job. She showed no signs of grimacing or wincing in pain when performing the tests. "Not for a moment do I believe this is back pain… I would equate the use of saying a back injury as an excuse, not as a reason for performing poorly." (pp. 31, 32)

[103] Officer Borak maintained throughout his testimony that Amanda's signs of impairment were not explained by the fact she was tired, depressed and in a suicidal state or because of her previous back injury.

Summary of the Testimony of Laura Gorczynski

[104] Ms. Gorczynski was qualified on consent as an expert witness in the area of forensic toxicology, and without limiting the generality of that area, the evidence will include the following: the absorption, distribution and elimination of drugs, including alcohol and similar volatiles from the body, and the impairing effects of drugs, alcohol and similar volatiles on the body; and on the ability to operate a motor vehicle or vessel, and in the theory and operation of the approved instruments used for breath testing purposes. (pp. 61, 62)

[105] She examined Amanda's urine sample and her Toxicology Report recording the results was marked as Exhibit #10 and is attached as Appendix 'B' to these Reasons For Judgment.

[106] In Amanda's urine sample the CFS detected Clonazepam which belongs to the benzodiazepine class of central nervous system depressants. Effects that occur after use of this drug may include lack of muscle control, drowsiness, impaired judgment, impaired memory, confusion and dizziness.

[107] 7-aminoclonazepam is a metabolite of clonazepam that has little pharmacological activity.

[108] Lorazepam is a drug primarily prescribed for the treatment of anxiety disorders and also belongs to the benzodiazepine class of central nervous system depressants. Effects may include lack of muscle control, drowsiness, loss of consciousness, impaired judgment, impaired memory, confusion and dizziness. (Trade name Ativan)

[109] Diazepam is a drug prescribed for the treatment of anxiety and panic disorders and also belongs to the benzodiazepine class of central nervous system depressants. Effects may include lack of muscle control, drowsiness, loss of consciousness, impaired judgment, impaired memory, confusion and dizziness. (Trade name Valium)

[110] Nordiazepam is a pharmacologically active metabolite of Diazepam.

[111] Oxacepam is a prescription medication used to treat anxiety. It also belongs to the benzodiazepine class of central nervous system depressants. It can cause drowsiness, lethargy, slurred speech, tremor and headache. (May be present due to the breakdown/metabolite of Diazepam)

[112] Temazepine is a drug prescribed for the treatment of insomnia and also belongs to the benzodiazepine class of central nervous system depressants. It can cause drowsiness, confusion, fatigue, weakness, lethargy, ataxia and blurred vision. (May be present due to the breakdown/metabolite of Diazepam)

[113] Methylphenidate is a drug prescribed for the treatment of attention deficit disorder, depression and narcolepsy. Effects can include nervousness, dizziness, headache and dyskinesia. (Trade name is Concerta)

[114] Quetiapine is a drug prescribed for the treatment of psychotic disorders. Effects may include somnolence, dizziness and weakness. (Trade name is Seroquel)

[115] All seven drugs detected are central nervous system depressants. (Transcript March 10, 2016 p. 65)

[116] All seven drugs detected in the urine sample would produce the most significant effect with respect to impairment and the inability to operate a motor vehicle. Each one will slow down the functioning of the central nervous system and will slow information processing and the body and brain's ability to respond to cues in the environment. (pp. 70, 71)

[117] The detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration. Urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time, since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug, or drug effects.

[118] In Ms. Gorczyski's opinion, there are thousands of faculties required to operate a motor vehicle, the most common ones affected by drugs are information processing which results in an inability to focus attention on any given source of information; divided attention which results in an inability to divide attention between two or more sources of information; choice reaction time which results in an inability to choose an appropriate course of action for a given situation.

[119] With respect to Amanda's performance on the DRE tests as seen on the video, Ms. Gorczyski testified that her slurred speech, problems with balance, motor coordination and divided attention skills could be due to the Benzodiazepine drugs. (p. 85)

[120] Ms. Gorczyski projected Amanda's BAC to the time of driving as being in the range of 20 to 55 milligrams of alcohol in 100 millilitres of blood. In her opinion, an individual would be experiencing some significant impairment with respect to alcohol alone. It certainly is significant for individuals with a BAC in excess of 50. Some individuals can experience impairment with BAC as low as 15. (pp. 89, 90)

[121] Alcohol is also a central nervous system depressant.

[122] Ms. Gorczyski testified that the presence of drugs in the urine can be detected up to two days after the drug was ingested.

[123] She agreed with the defence suggestion that individuals react differently to benzodiazepine drugs depending on the level of tolerance they have developed to the drug.

[124] She agreed with the defence suggestion that a person's ability to operate a motor vehicle may not be impaired with a BAC of 20.

Findings of Fact

[125] Having applied the three-pronged test set out in R. v. WD, I am satisfied beyond a reasonable doubt that Amanda's ability to operate a motor vehicle was impaired primarily by drug and alcohol.

[126] The alternate explanations put to the witnesses by the defence does not leave me in a state of reasonable doubt on the issue. None of the witnesses agreed with them.

[127] Tiredness does not explain what is clearly visible on the DRE examination video.

[128] An old back injury does not explain what is clearly visible on the DRE examination video.

[129] Depression and a suicidal state does not explain what is clearly visible on the DRE examination video.

[130] On the video Amanda is so impaired that she was not able to walk without using the wall to support herself. Her speech was clearly mumbled and slurred. Her performance on all physical tests was extremely poor.

[131] The video examination supports the testimony of Officers Kubas and Douglas with respect to extreme indicia of impairment at the scene of driving and at the station during breath testing. Amanda had to be supported by the Officers or use a wall to keep from falling over many times over a prolonged time.

[132] Officer Borak's opinion that Amanda was impaired by central nervous system depressant drug and alcohol is supported by the analysis of the urine sample. This opinion is further supported by Amanda's statements that she was taking various central nervous system depressants and had ingested her prescribed medications that day along with alcohol.

[133] I disagree with the defence submission that the Officers' evidence was contradictory and unreliable. Minor differences such as where Officer Douglas was standing when Amanda drove into her court, or who asked Amanda to walk to Officer Douglas at the scene, does not affect the overall reliability and credibility of these witnesses.

[134] It is clear from the evidence that Amanda had been prescribed a powerful concoction of central nervous system depressants. It is clear from the evidence that these medications were not having their intended effect given the tragic circumstances that Amanda was in that night, driving all over the place with the thought of killing herself and with the means to do so.

[135] Thankfully, a friend phoned the police and they were able to prevent Amanda from further harming herself or others.

[136] For these reasons, a finding of guilt is registered.

Released: November 18, 2016

Signed: "Justice Lesley M. Baldwin"