Court File and Parties

Ontario Court of Justice

Date: 2018-06-19

Court File No.: Niagara Region 998 16 N26226

Between:

Her Majesty the Queen

— and —

Francesco Scerbo

Before: Justice J. De Filippis

Heard on: May 28-29, 2018

Reasons for Judgment released on: June 19, 2018

Counsel:

• Mr. Eshuis, counsel for the Crown
• Mr. Evans, counsel for the defendant

Reasons for Judgment

De Filippis, J.:

The Charge

[1] The defendant was charged with operating a motor vehicle while his ability to do so was impaired by a drug. The offence is said to have occurred on June 19, 2016 at Niagara Falls.

The Facts

[2] On the day in question at 3:15 AM, a police officer on routine patrol in Niagara Falls heard an odd sound. He quickly discovered that a motor vehicle was being driven with a flat tire. He caused the vehicle to stop. The defendant was the driver and there was also a male passenger. In response to questions, the defendant said he had hit a curb. The officer immediately noticed that the defendant's speech was slurred and that his eyes were "droopy and glossy". The defendant stated that he had consumed marijuana earlier. He was arrested for the present offence and taken to a police station where he was subjected to tests by a drug recognition officer, PC Wells.

[3] There is no dispute that the defendant was properly subjected to a demand to submit to tests, cautioned and advised of his right to counsel. Moreover, the details of the 12 step testing process, including the urine sample, is of no concern in this case. It is conceded that the defendant's ability to operate a motor vehicle was impaired by the consumption of marijuana and alprazolam, a central nervous system depressant. The tests and the conversation between the defendant and PC Wells was captured on video and played in evidence as part of the Crown's case. I will return to that conversation momentarily. At this time, it will suffice to point out that the defendant reported that he had been at a friend's home and had, with others, inhaled marijuana from a bong.

Defendant's Testimony

[4] The defendant is now 22 years old. He was 20 years old at the time of these events. He is a college graduate and works with special needs students. He testified that on the evening before being arrested he went to the home of a friend. Several other persons also arrived. The defendant "planned to stay the night" but later left with a close friend, Joseph McLaughlin. He added that he does not recall leaving or hitting a curb. He testified he has a specific memory of seeing flashing cruiser lights on a roadway. He also remembers "the eye test" and "being asked to provide a urine sample" at the police station. The defendant claims to recall little else, including much of the conversation captured on video at the station.

[5] The defendant testified that he rarely drinks alcohol but has, for several years, regularly consumed marijuana. On the evening in question, "smoked pot in bongs…taking hits from the bong". A bong is a device that allows several people to inhale marijuana that is cooled by a liquid. The defendant said he "took three to five hits" and intended "to chill out and stay over".

[6] The defendant acknowledged in his video recorded statement that he was "pretty messed up" and added in trial testimony that while he understands that smoking marijuana is intoxicating, "pot has never affected me like this". He stated that he does not know what alprazolam is and did not voluntarily consume it. When pressed on this point, the defendant admitted that in smoking an illegal substance, there is a risk it could be laced with other drugs. In this regard, he confirmed that he did not bring the marijuana to the group and does not know who did or where it came from.

Legal Framework

[7] The Defence submits that the single issue is involuntary intoxication and that the defendant should be acquitted because he thought he was consuming marijuana only, did not intend to drive, and has no memory of doing so. The Crown challenges this and offers three routes to conviction. I need only deal with one as, in my view, it disposes of this case.

[8] In R. v. Imrie, [2017] O.J. No. 3014, my colleague, Justice MacLean, noted as follows (at paragraphs 341 and 342):

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

Based on the following cases, I accept the Crown's submission that the mens rea of drug-impaired driving consists of two elements: (1) the voluntary consumption of a drug; and (2) knowledge of, or reckless indifference to, the fact that the drug could impair one's ability to operate a motor vehicle. Proof of the actus reus creates a rebuttable presumption of the mens rea. In cases where the impairment results from the ingestion of prescription medication, this presumption can be rebutted. The presumption can be rebutted, for example, where there is evidence that the consumption of a drug was involuntary, there were unexpected side effects of a drug or where there were unexpected side effects as the result of combining drugs.

Application of Law to Facts

[9] It is common ground that the defendant voluntarily consumed marijuana that he knew would impair his ability to operate a motor vehicle. In this regard, the video record is noteworthy; he told PC Wells that, "I don't work tomorrow so I was like getting a little crazy". I accept that the defendant did not know the marijuana had been laced with another drug and that this resulted in a more severe level of intoxication than he expected or intended. However, there is reason to doubt the defendant's trial testimony that he has almost no recollection of driving his car or being tested at the station. For example, he initially testified that he did not remember hitting a curb. When it was pointed out that he told PC Wells that, "I honestly hit a curb, and I just hit it hard. Yeah it must have been one sharp turn ….." he stated that hitting the curb was "one bright spot" of which he "had a little bit of a recollection".

[10] In any event, notwithstanding the state of his present memory, I am confident that, at the time of these events, he was impaired by a drug and made the decision to operate a motor vehicle. This conclusion means there must be a finding of guilt. The reason for this is made clear by the ruling in R. v. McGrath, [2013] O.J. No. 3728 (at paragraph 10):

There are cases where "involuntary intoxication" will not undermine the mens rea for the offence. Even where "involuntary intoxication" occurs, if an accused person becomes aware that they have become intoxicated by alcohol or a drug, they cannot deny the mens rea if they subsequently choose to operate a motor vehicle while still impaired. This follows logically from usual mens rea principles. A person who intends to drive knowing they are intoxicated by the substance alleged in the charge against them has the mens rea for the offence while committing the actus reus, even though they did not initially choose to create the risk of impairment. This would not be unlike a person who innocently accepted an item from another believing it was their own, but who then decided to keep the item after learning that it was not their own. A theft would still occur even though the initial acquisition of the item was innocent. By the same token, impaired driving occurs where someone who innocently and involuntarily became impaired chooses to drive after appreciating what happened. Accordingly, in the leading case of R. v. King at para. 63, Justice Ritchie commented 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 becomes aware of his impaired condition before he started to drive his car ..."

[11] My conclusion that the defendant operated a motor vehicle at a time he knew his ability to do so was impaired by the consumption of drugs is based on the video recorded conversation at the police stations. That record establishes that the defendant was aware of what was happening at the time. He answered questions and followed instructions properly. On occasion, he asked for clarification. He recalled the day's events, including where he had eaten his dinner and confirmed he had spoken to a lawyer.

[12] The defendant was also aware of the impact of the drugs on him. He told PC Wells that he believed the marijuana could have been "laced or something" and that "it hit a lot harder than I usually get hit". He added that, "it was like an intense trip.... a pretty intense high".

[13] At the conclusion of the 12-step testing process, the following exchange occurred:

PC Wells: And you know that you are high I think.

Defendant: yes we both know

Q. And you probably shouldn't be driving right?

A. No, but it was getting late and I had to go home and my buddy had to work so like it would have been okay until I fucked up my tire

Q. So you shouldn't have been driving

A. …I didn't want to really drive but he needed a ride home

Conclusion

[14] The Crown has discharged its burden of proving guilt beyond a reasonable doubt.

Released: June 19, 2018

Signed: Justice J. De Filippis