Court File and Parties

Date: April 19, 2017 Court File No.: 15-17067 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Kristy Perry

Before: Justice Ronald A. Marion

Dates Heard: October 26, 27, 2016, January 13, 2017

Counsel:

• J. Lall for the Crown
• J. Santarossa for the Accused

Judgment

1: THE PROCEEDING

[1] On April 12, 2015, Ms. Perry was charged with impaired driving, refusing to comply with a demand for a sample of her breath, and resisting a peace officer in the execution of his or her duties.

[2] The defence admits the actus reus of all three offences.

[3] The only issue at trial is whether the Crown has established that Ms. Perry had the mens rea to commit the offences.

2: THE EVIDENCE

[4] At 2:41 a.m. on the 12th of April 2015 in the City of Windsor, Sergeant Steven Dixon observed a vehicle travelling in the wrong direction on E.C. Row Parkway (hereinafter referred to as "E.C. Row"). E.C. Row is a major thoroughfare stretching across the city in an east-west direction. At the busy intersection of Banwell and E.C. Row, where Ms. Perry was stopped by police, the posted speed is 80 kilometres per hour.

[5] The vehicle operated by the accused was westbound while occupying one of the eastbound lanes. Upon observation of the vehicle, Sergeant Dixon moved his marked cruiser into the middle of the intersection and turned on his emergency lights and siren. The vehicle slowed down, stopped and started to reverse. The officer turned off the siren and yelled out to the accused to stop the vehicle and she complied.

[6] As he approached the vehicle, he observed that the lone occupant had a blank stare and was staring straight ahead. He then said, "Put it in park" to which she replied "it is in fucking park". He then reached in, shut the vehicle off and took the keys. Ms. Perry responded, "What the fuck are you doing?" The vehicle was stopped in the laneway being the centre lane next to the median separating the eastbound and westbound lanes.

[7] The driver's side window was down. The officer noticed a strong odour of alcohol emanating from Ms. Perry's breath. Her speech was extremely slurred. He did not locate any alcohol in the vehicle. He formed the opinion that she could be arrested for the offence of impaired driving. As he advised her of her arrest, rights to counsel, caution and breath demand, she repeatedly responded "fuck you".

[8] Once he had her out of the vehicle, she was unsteady on her feet and he had to assist her to prevent her from falling down. The officer, being conscious that E.C. Row is a busy roadway, felt he needed to secure the accused. Due to her resistance, he had to put her to the ground on hard pavement in an attempt to handcuff her. The struggle lasted 30 to 60 seconds. Other officers arrived to assist him in this regard.

[9] When he advised Ms. Perry that she was being charged with resisting arrest, she said, "Fuck off". In the next breath she asked him if he could let her drive away. When he told her that she had been driving in the wrong direction on E.C. Row she acted as if he was "telling her a fib".

[10] She was verbally and physically aggressive and profane. Despite giving her his badge number she continued to ask for it and stated she would have his job.

[11] The accused was wearing flat-soled shoes and was standing on even and dry pavement yet she was unsteady on her feet.

[12] On a scale of impairment from 1 to 10, the officer estimated her inebriation level at an 8 or 9 and qualified her as "very drunk and belligerent".

[13] When asked if he had any concerns that she understood what was happening, he stated it was not clear to him. He gave as examples the following:

• a) she asked for his badge number over and over again, as if he had not given it;
• b) her responses were "yeah, I know, fuck off";
• c) he observed her blank stare while she was being told to stop the vehicle;
• d) she appeared to think he was lying to her when he was telling her of the reason for her arrest; and
• e) she was arrested, fully handcuffed and said "fuck off" immediately followed by a request to let her drive home.

[14] Officer Leah McFadden testified that she arrived at the scene accompanied by PC Kerekes. At that time, Sergeant Dixon was on the ground wrestling with Ms. Perry. Both officers helped to handcuff her. It required three officers about one minute to handcuff her. Sergeant Dixon then attended to traffic control while they took custody of Ms. Perry. The accused continually pulled away from her and attempted to donkey kick and head-butt her.

[15] The officer had to take Ms. Perry down to the pavement again to secure her. Ms. Perry repeatedly asked for their badge numbers. She was saying, "I'm going to sue you. I've got your jobs. I've got family in the system." She was totally non-compliant. She was yelling and swearing.

[16] Other indicia of impairment observed by PC McFadden were slurred speech and a moderate odour of alcohol emanating from her breath. The officer said that she could not understand what the accused was saying and that the accused was not making any sense.

[17] Ms. Perry was transported to the Windsor Police Station in the prisoner wagon.

[18] Officers McFadden and Kerekes followed the transportation vehicle to the police station. Upon arrival, P.C. McFadden could hear Ms. Perry kicking the interior of the vehicle. Ms. Perry refused to get out of the vehicle, and as a result, officers were required to carry her into the police station.

[19] P.C. Michael Jurilj was the designated breath technician. He was introduced to Ms. Perry at 3:48 a.m. He noticed that Ms. Perry was standing at the platform near the breath technician's room and could not stand still. She leaned against the platform and almost fell. On another occasion she almost fell when she tripped over her own feet. He detected a strong odour of alcohol as he spoke to her.

[20] Once he brought Ms. Perry into the breath test room she relocated her chair for no apparent reason. He described her behaviour as confrontational. Her speech was heavily slurred and she appeared not to be comprehending. He described her as incoherent.

[21] When Officer Jurilj read Ms. Perry her secondary caution she responded "sure". When he read the breath demand she replied "I deny that". Ms. Perry was talking in circles. She asked the same questions even though she was provided with answers several times. Officer Jurilj told Ms. Perry that she would get the badge number when she received the disclosure of the case and she said that she understood this but moments later began demanding his badge number. She repeatedly asked where her vehicle had been towed despite receiving that information.

[22] During his exchanges with Ms. Perry she talked over him and swore at him and there were many words that he could not understand.

[23] Ms. Perry asked him on several occasions if she could go home. In response to the breath test demand she stated at one point "not seek your breath test" and "it's not your rights to do that as an officer." She insisted that she "had blown over three hours ago" and she said she did not accept that the officer could read her rights to counsel since she had blown over three hours ago. None of this made sense to the officer considering that Ms. Perry never provided a sample of her breath.

[24] Ms. Perry testified. She was born on March 16, 1979. She was five foot three inches tall and weighed 160 pounds at the time of the incident. She is employed as a personal support worker and has no criminal record. In October 2014 she was prescribed Champix by her doctor in order to assist her to quit smoking.

[25] She stated that she was never informed by her doctor or pharmacist of the potential side effects that could occur when consuming Champix and alcohol together, such as increased drunkenness, aggression and memory loss. She never read the product label monograph.

[26] She started to take Champix and did so for a short period of time and stopped taking it in December of 2014 because she was not fully committed to quitting smoking. During this period of time she did not consume alcohol in combination with Champix. She resumed taking Champix shortly before the incident.

[27] Ms. Perry did not research any of the adverse effects that might be associated with Champix. She said that she did not do so because she trusted her doctor and pharmacist to provide her with the relevant information.

[28] On April 14, 2015, Ms. Perry went to dinner at Red Lobster with her boyfriend. They arrived at 9:00 p.m. She did not have any alcohol prior to attending at the restaurant. She and her boyfriend drove there in her car but he drove her vehicle. At about 9:30 p.m. they ordered an appetizer and she ordered her first drink which was a six ounce glass of wine. After that she had another six ounce glass of wine at 10 p.m. which she believed to be closing time.

[29] They returned to her boyfriend's residence. At his residence she consumed another six ounce glass of wine – that was at approximately midnight. At 12:30 a.m. she took a Champix pill. She said she left her boyfriend's apartment at 12:45 a.m., but she was uncertain as to the time. They got into an argument that evening and she left in order to return to her own residence.

[30] When she left the residence she said that she was functioning normally. She did not experience any indicia of impairment prior to driving. She described her level of sobriety as sober, level-headed and focused. She said she was driving in a proper manner and according to the speed limit. When asked to describe her level of control of the vehicle, she said it was one hundred percent in terms of sobriety.

[31] Ms. Perry's residence was in South Windsor, a mere 12 to 14 minute drive away from her boyfriend's residence. She was familiar with the route that she was taking to return home. She was apprehended approximately two hours after her departure from her boyfriend's apartment.

[32] She testified that she had not consumed any illicit drugs or any other prescribed medication on the evening of the incident.

[33] She recalls nothing after driving down Dougall Avenue shortly after leaving her boyfriend's apartment. She has no other memory of driving. Her next recollection extended to a vague recollection of a police officer being near her vehicle or next to the driver's side of her vehicle. Ms. Perry does not remember her arrest, being transported to the police station, being at the police station, or being in the breathalyzer room and refusing to provide a sample of her breath. She recalls being approached by officers while in her cell and being advised that she had to appear in court.

[34] Ms. Perry stopped taking Champix on April 15, 2015. Ms. Perry's medical records were provided as an exhibit. The medical records indicate that Ms. Perry was prescribed Champix and there is nothing in the records to indicate that the doctor would have warned Ms. Perry not to consume Champix and alcohol due to any adverse effects. Also contained in the medical records were the following:

"Documentation Date: 03-Mar-2015

[030Mar-2015 .:f/u] 1-130

…90 days has not drank, stopped cold turkey, since then negatative [Sp.] thoughts, Sleeps 4 hours [Sp.] always tired, works midnights [Sp.] has hard time sleeping because mind races

Feels irritable on edge all time

Workaholic only, never any manic symptoms no through disorder etc.

Mood is low negative thinking, past issues keeps coming up, neg thoughts

No SI (that is cowardly), no dellsuions [Sp.], no hallucinations, depression in past-read exercise, never took meds,

Mood is depressed daily, not hopeless, guilty-no, anhedonia

Drank to kill void, smoking dec 11 lbs lost with no ethanol

Still lot issues since relocation form to, Issues with mother from past-she didn't want her /would have had abortion etc, no hx sex abuse

Does not want meds

Last had counselling and ethanol counselling 4 yrs ago [sic]"

Her Mental Health Outpatient Department Community Mental Health Consultation Clinic Referral Form, prepared by Dr. Lisa McCaffrey, read as follows:

"Previous Psychiatric Consultation/Treatment (date of most recent): -4 yrs ago attended counseling for alcoholism/past issues"

[35] Dr. David Rosenbloom was the second witness called by the defence. He was qualified as an expert in pharmacology and toxicology and gave opinion evidence on the effects of alcohol and Champix and similar drugs on brain function and in particular, the potential effects of combining alcohol and Champix.

[36] Varenicline is the psychoactive drug commercially known as Champix. He stated that there are a number of psychoactive medications such as anti-depressants that cause a similar profile of adverse effects when combined with alcohol. According to Dr. Rosenbloom, Champix acts on the nicotine receptors in a person's brain to help avoid craving of nicotine. Champix is similar to selective serotonin re-uptake inhibitors (SSRI's) like Prozac and Paxyl. The product monograph for Champix was filed as an exhibit. It describes psychiatric side effects, such as thoughts of suicide, suicidal behaviour, erratic behaviour, drowsiness, hostility, aggression and agitation. The monograph is a lengthy leaflet inside the packaging. It is a summary of information about Champix when it was approved for sale in Canada. It also warned about interaction with alcohol as follows:

"Drinking alcohol during treatment with Champix may increase the risk of psychiatric symptoms."

[37] Dr. Rosenbloom referred to the announcement and published documentation by the Food and Drug Administration in the United States which required the producer of Champix to note on the product monograph the potential adverse effects of the combination of Champix and alcohol. The product is marketed in the United States as "Chantix". The announcement was filed as an exhibit. The FDA warning from March 9, 2015 as referenced in Dr. Rosenbloom's report states as follows:

FDA Safety Announcement

The U.S. Food and Drug Administration (FDA) is warning that the prescription smoking cessation medicine Chantix (varenicline) can change the way people react to alcohol. In addition, rare accounts of seizures in patients treated with Chantix have been reported. We have approved changes to the Chantix label to warn about these risks. Until patients know how Chantix affects their ability to tolerate alcohol, they should decrease the amount of alcohol they drink. Patients who have a seizure while taking Chantix should stop the medicine and seek medical attention immediately.

We reviewed the case series submitted by Pfizer, the manufacturer of Chantix, as well as the cases in the FDA Adverse Event Reporting System (FAERS) database describing patients who drank alcohol during treatment with Chantix and experienced adverse reactions. Some patients experienced decreased tolerance to alcohol, including increased drunkenness, unusual or aggressive behavior, or they had no memory of things that happened (see Data Summary).

More Info for Patients

• Chantix (varenicline) may change the way people react to alcohol.

• Decrease the amount of alcoholic beverages you drink during treatment with Chantix until you know how it affects your ability to tolerate alcohol.

• Before you take Chantix, tell your health care professional if you drink alcohol, have a history of seizures, or have ever had depression or other mental health problems.

• If you develop nervousness or agitation, hostility, aggressive behavior, depression, thoughts of suicide, or have other changes in your behavior or thinking that are not typical for you, stop taking Chantix and contact your health care professional right away.

More Info for Health Care Professionals

• Interactions between alcohol and Chantix (varenicline) have resulted in some patients experiencing increased intoxicating effects of alcohol, sometimes associated with aggressive behavior and/or amnesia.

• Advise patients to reduce the amount of alcohol they consume while taking Chantix until they know whether the drug affects their tolerance for alcohol.

• Advise patients to immediately stop taking Chantix if they develop agitation, hostility, aggressive behavior, depressed mood, or changes in behavior or thinking that are not typical for them, or if they develop suicidal ideation or behavior.

[38] Dr. Rosenbloom described Ms. Perry's condition as a result of combining Champix and alcohol as "pathological intoxication". He stated that there are well-documented cases of this but they are rare. Pathological intoxication is descriptive terminology of an exaggerated response to low amounts of alcohol, as if an individual had consumed a large quantity of alcohol. This response would include increased intoxication, aggression and memory loss, all of which Ms. Perry experienced the evening of the incident.

[39] Dr. Rosenbloom testified that it could actually just be small amounts of alcohol that are necessary to cause pathological intoxication. Ms. Perry took one Champix pill at 3 p.m. and consumed three glasses of wine and then took a second pill at 12:45 a.m. When asked if her reaction to Champix should have been expected at around 9 p.m. rather than 2 or 3 a.m. the next day he stated as follows:

"I think that's logical. I don't know that it's correct and you know she'd just begun taking the pill at you know midnight or whenever it was and those 15 minutes for it to begin to be absorbed, so I don't know if that's a factor or not. It's also not clear in the reports how long it takes for this reaction to take place. It's not described, so."

[40] Due to the fact that the potential of pathological intoxication is not well-known in the scientific and medical community, he was not surprised that the doctor or pharmacist did not warn Ms. Perry as to the possibility of this outcome.

[41] Ms. Perry testified that she did not have the benefit of the knowledge of this type of interaction between alcohol and Champix at the time she was prescribed Champix and prior to the incident.

[42] Dr. Rosenbloom testified that Ms. Perry's alcohol consumption of 3 six ounce glasses of wine and her consumption of Champix at 12:30 a.m. could have resulted in pathological intoxication, including drunkenness, aggression and memory loss. He stated that Ms. Perry's behaviour as observed by police officers was consistent with pathological intoxication. Based on Ms. Perry's reported alcohol consumption on the evening of the incident, he estimated her blood alcohol concentration (BAC) at 60 milligrams per 100 millilitres of blood at the time she was stopped by Sergeant Dixon.

[43] He was of the opinion that her behaviour of increased intoxication, aggression and memory loss were more likely the result of the combination of Champix and alcohol and inconsistent with having a BAC of 60 milligrams per 100 millilitres of blood. Dr. Rosenbloom concluded that Ms. Perry was suffering from pathological intoxication at the time of the incident and throughout her period of incarceration at the police station.

3: THE LAW – The Defence of Involuntary Intoxication

[44] The Supreme Court of Canada in R v. King established the mens rea requirement for impaired driving and the defence of involuntary intoxication as related to that charge. In that case the accused was given an anesthetic by his dentist and drove immediately afterwards. He got into an accident and said that he did not realize that impairment could have been caused by the anesthetic. He was found not guilty because of his lack of awareness of the impact of the anesthetic on his impairment while operating a motor vehicle. The Court found as follows:

"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, or 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 be reasonably expected to foresee under the circumstances...

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".

[45] Where impairment occurs without the accused's knowledge then he/she cannot be convicted. However, where an accused knew or ought to have known of the impairing effects of a drug he/she voluntarily consumes, then he/she may be convicted for operating or having care and control of a motor vehicle while under its effects.

[46] In R. v. Jensen, Del Frate, J. sets out examples of situations where involuntary intoxication would apply to the charge of impaired driving.

"Once the Crown establishes the impaired operation, then the accused must establish on the balance of probabilities that he or she consumed the intoxicants either unintentionally or unknowingly. Examples of this situation include the following:

• The unexpected effect of mixing a prescription drug and alcohol (R. v. Fiorante, [1990] S.J. No. 93 (Q.B.));

• The unexpected effect of a dental anaesthetic (R. v. King);

• The unexpected effect of a prescription drug (R. v. Kurgan, [1987] O.J. No. 2436 (Dist. Ct.));

• A situation where, unbeknownst to the accused, a psychotropic drug is put in the accused's drink (R. v. Fletcher, 2005 BCPC 67, [2005] B.C.J. No. 491 (Prov. Ct.)); and

• An inadvertent exposure to hazardous chemicals at a work site (R. v. Armstrong, [1993] B.C.J. No. 2684 (Prov. Ct.))."

[47] In R. v. Cobban, the accused took several painkillers and drank alcohol. On appeal the Court in reference to the presumption of voluntary intoxication and the evidence necessary to rebut the presumption stated as follows:

"In my view, the learned trial judge failed to consider the evidence which the appellant had called which, if accepted, would have rebutted the presumption. This evidence included testimony by the appellant that he did not know that hydromorphone would cause impairment. He testified that the only effect he ever felt from hydromorphone was pain relief. He testified that he had never before used it at the same time as alcohol, that his doctor had not warned him to not combine the two, and that he was unaware of the effect that joint use might have.

This evidence was uncontradicted. This does not mean, of course, that it was not open to the learned trial judge to reject that evidence. She may very well have done so. However, we are not in a position to know how she assessed that evidence because it is not mentioned in her judgment. The learned trial judge has not provided a reason for arriving at a conclusion that, as counsel for the appellant put it "would have required her not only to disbelieve the appellant's evidence, but also to find that it did not even raise a reasonable doubt as to the voluntariness of his intoxication".

As a consequence the appeal was allowed and a new trial was ordered.

[48] In R. v. Gallant the combination of Champix and alcohol is discussed. The accused pled guilty to assault and careless use of a firearm, however the Crown being satisfied that Mr. Gallant could not have formed the specific intent to commit the offences, entered a stay of proceedings on all the charges. Sentencing materials submitted jointly by the Crown and defence included a toxicologist's report stating the adverse effects of Champix. The accused had no recollection of the incident.

4: THE LAW – The Burden of Proof

[49] The Crown submits that Ms. Perry must rebut the presumption of voluntary intoxication by adducing evidence of involuntary intoxication on the standard of the balance of probabilities.

[50] In R. v. Lefebvre, the accused was found not to have the necessary mens rea to establish her guilt. She alleged that someone must have slipped something in her drink. The court stated that the burden is not on an accused to prove beyond a reasonable doubt that he or she was involuntarily intoxicated but the court must be satisfied from the evidence presented that there is likelihood that an intoxicant was unintentionally or unknowingly ingested.

[51] In order to rebut the presumption the defence must establish on the balance of probabilities the following:

• a) that the combination of alcohol and Champix may have caused Ms. Perry's intoxication; and
• b) that the defendant was unaware of this interaction; and
• c) that the defendant could not reasonably have known that impairment could result from the combination of the substances.

[52] Effectively, once the presumption has been rebutted, the Crown would have to prove beyond a reasonable doubt that Ms. Perry became aware of her impaired condition before she started to drive her car, and intended to operate her vehicle while impaired or that she was impaired solely by the consumption of alcohol at the time of her arrest.

5: INVOLUNTARY INTOXICATION AS A DEFENCE TO GENERAL INTENT OFFENCES

[53] Refusing to provide a breath sample and resisting arrest are general intent offences.

[54] Involuntary intoxication as a defence is capable of negating the mens rea of general intent offences.

[55] In R. v. Cobban, the court rejected the appeal and ordered a new trial when a trial judge failed to give reasons for rejecting the defence of involuntary intoxication where the evidence was uncontradicted. The court stated that the defence of involuntary intoxication, applied to all three charges of impaired driving, refusal to provide a breath sample and dangerous driving, and a new trial was ordered on all three charges.

6: ANALYSIS

[56] At the time of the incident Ms. Perry was employed as a personal support worker in a long-term care facility for the elderly. The residents she cares for suffer from severe mental health issues. She was employed in that capacity for the past five years.

[57] In order to perform this work, she stated that "you have to have patience, you have to have kindness, you have to have love. You just have to be very gentle with them and understanding." She described herself as "very social, very happy, bubbly, gentle, respectful. I don't, I'm never aggressive." When asked if her character or personality changes when she consumes alcohol she said it does not.

[58] Ms. Perry stated that she does not habitually drink alcohol. Her work schedule is very demanding. At the time of the incident, she was working 12 to 16 hour shifts for usually nine consecutive days. When she does drink she said that she drinks wine and has never suffered memory loss as a result of alcohol consumption. She was cross-examined at length as to the references made by her doctor as to alcoholism. She denied being a recovering alcoholic or attending counselling for alcoholism. She responded that her doctor was referring to her need for help due to her childhood experiences. She stated that her father is an alcoholic and she was talking to a counsellor about her childhood and everything that had happened to her during childhood.

[59] As to her drinking habits she said: "I don't drink on a regular basis. I don't drink every week. It's usually every three months I'll have a drink, a couple of drinks".

[60] Ms. Perry gave her evidence in a forthright manner. She was not evasive or challenging when cross-examined. She made concessions when appropriate. She remained steadfast in her testimony. She gave her evidence on October 27th 2016 and the trial resumed on January 13th, 2017.

[61] The only reply-evidence called by the Crown was from the manager of the Red Lobster as to the time of closing being 11:00 p.m. Apparently, Ms. Perry believed that the closing time of the restaurant was 10:00 p.m. but the manager admitted that a customer could by virtue of activity in the restaurant conclude that the closing of the restaurant was imminent due to the late hour. In my opinion, this evidence is of insignificant value.

[62] Both the evidence of Ms. Perry as to her character and her explanation of Dr. McCaffrey's clinical notes were uncontradicted at trial.

[63] The Crown relies on the medical records to undermine Ms. Perry's credibility. It is also argued that the doctor's reference to her as a recovering alcoholic is suggestive of her consumption of more than three glasses of wine during the evening of the incident.

[64] It is in the usual course of a doctor's duties to make clinical notes and thus they are admissible but it is up to the trial judge to decide how much weight to attach to them.

[65] The basis ordinarily of clinical notes and records are the patient's statements. In this case the basis for the doctor's notes is unclear. There are no references in the clinical notes to identify that disclosures made by her patient permitted Dr. McCaffrey to be of the opinion that she was a recovering alcoholic. The clinical notes do not indicate that Ms. Perry's statements were the basis for such an opinion. At trial, Ms. Perry categorically took issue with such a suggestion.

[66] Dr. McCaffrey's notes arouse suspicion. The note "35 year old recovering alcoholic for 9 months (quit cold turkey)" would seem reasonably to be referring to Ms. Perry. Dr. McCaffrey may have formed an opinion that Ms. Perry was a recovering alcoholic. Ms. Perry may have been unaware of her doctor's opinion or Ms. Perry may have been struggling with childhood issues as the offspring of an alcoholic father and Dr. McCaffrey's notes may be incorrect or misleading.

[67] Ms. Perry's testimony is the only evidence which qualifies Dr. McCaffrey's medical notes. Dr. McCaffrey was not called to clarify her notes, comment on Ms. Perry's testimony and be cross-examined on this point. Under the circumstances, I am unable to rely on Dr. McCaffrey's reference to Ms. Perry as being an alcoholic. In addition, the clinical notes were admitted in evidence on consent based on the Crown's submission that they were not admitted as proof of the truth of their contents.

[68] I have no basis to reject Ms. Perry's evidence as to the amount of alcohol she consumed. She was unwavering in that regard. Even if she is a recovering alcoholic, I am required to assess the truth of her assertions and the evidence with respect to consumption of alcohol. I am also urged by the Crown to find that she consumed more alcohol than purported as she has little to no memory of the events after leaving her boyfriend's residence.

[69] I am urged to treat the evidence of Officers Dixon and Jurilj that a strong odour of alcohol was detected by them as proof of impairment by alcohol. PC McFadden, on the other hand, detected a moderate odour of alcohol. Dr. Rosenbloom stated that you can't rely on the smell of alcohol on somebody's breath whether strong or not as indicative of how much they drank.

[70] "Nevertheless, the intensity or degree of an alcohol odour is not one of the factors ordinarily, notoriously, or as a matter of common sense capable of being considered as establishing the relative amount of degree of alcohol intake or impairment to drive or have lawful care of control of a motor vehicle."

[71] Ms. Perry does not have the burden of proving the amount of alcohol she consumed. She stated it was three glasses of wine. The Crown bears the burden of proving the defendant's impairment by alcohol.

[72] The Crown also advances that Ms. Perry can't avail herself of the defence of involuntary intoxication because she showed signs of impairment before she got behind the wheel. Ms. Perry admits that after having consumed the two glasses of wine at the restaurant she had a light buzz which she described as being a "little dozy, lightheaded".

[73] At the time she left her boyfriend's residence however, she denied feeling any "buzz". She described herself as "fine, sober, level headed, focused. I wasn't slurring or stumbling. I had control of my vehicle…I was doing the speed limit. I was in-between the lines. I didn't feel that I didn't have control of my vehicle. I felt a hundred percent that I had control of my vehicle at all times."

[74] She later added, I was "alert and attentive." In my opinion, there is no evidence before the Court that Ms. Perry was impaired and ignored signs of impairment before starting to operate her vehicle for the purpose of returning to her residence.

[75] Dr. Rosenbloom's evidence is also uncontradicted. The Crown has not called any expert evidence to challenge Dr. Rosenbloom's testimony pertaining to Ms. Perry's impairment by virtue of the combination of Champix and alcohol and his conclusions as to her BAC level when stopped by police.

[76] Ms. Perry was prescribed Champix by her family doctor. She was not warned by her doctor or pharmacist of the potential adverse effects when Champix was consumed in combination with alcohol. She was unaware that the alcohol-drug interaction could have resulted in impairment and I am satisfied that she could not reasonably have known of this possibility.

[77] In my opinion, the presumption of voluntary intoxication is rebutted. As a result, the Crown bears the burden of proving voluntary intoxication beyond a reasonable doubt.

[78] Dr. Rosenbloom has given evidence as to her BAC level at the time of her arrest being 60 mg/100 ml and that this level would not be associated with the observations made by officers at the time of her arrest and during her period of incarceration. I accept his evidence in that regard.

[79] Ms. Perry's agitation, confusion, aggressiveness and amnesia appear to be more suggestive of an alcohol-drug interaction than consumption of alcohol. Her behaviour as described by officers is inconsistent with the evidence adduced as to her character.

[80] The Crown has not established beyond a reasonable doubt that Ms. Perry was impaired by alcohol alone or that she became aware of her impaired condition before assuming care and control of her motor vehicle.

[81] I am not satisfied beyond a reasonable doubt that the Crown has established that Ms. Perry was wilfully intoxicated.

[82] The defence of involuntary intoxication applies to all offences charged.

[83] Consequently, I find her not guilty of all charges.

Released: April 19, 2017

Ronald A. Marion Justice