Court Information
Ontario Court of Justice
Date: 2018-07-17
Location: Kapuskasing, Ontario
Parties
Between:
Her Majesty the Queen
— And —
Sylvie Blais
Judicial Officer and Counsel
Before: Justice M.R. Labelle
Heard on: June 19, 2018
Reasons for Judgment released on: July 17, 2018
Counsel:
- Ms. Lynn Ann Grzela — counsel for the Crown
- Mr. John Saftic — counsel for the defendant, Sylvie Blais
Judgment
LABELLE J.: (orally)
Overview
[1] On March 2nd, 2017 Sylvie Blais was operating her Dodge Avenger in the town of Kapuskasing when she struck another vehicle at the intersection of Government Road and Riverside Drive, resulting in minor damage to both vehicles. Police were called and after a brief investigation with certain observations being made by police and admissions made by Ms. Blais, she was charged with Impaired Driving by drug.
[2] The matter proceeded to trial before me on June 19th, 2018. In an effort to expedite the trial defence counsel made a number of admissions indicating that jurisdiction, date, time, identity and the fact that Ms. Blais was impaired by a drug or drugs on March 2nd, 2017 were not in issue.
[3] The only issue for this court to decide is whether or not the accused, Sylvie Blais had the requisite criminal intent or "mens rea" for the offence of Impaired Driving by Drug. Framed in another way, is this Court satisfied beyond a reasonable doubt that Sylvie Blais was aware or was reckless to the fact that taking her prescribed medications alone or in combination with over the counter medication could cause impairment and affect her ability to drive?
The Evidence
The Crown's Evidence
[4] The Crown called five (5) witnesses, namely Stacey Desbiens, the driver of the vehicle which was struck by Ms. Blais, Cst. Rumble and Cst. Gionet, the two investigating officers who attended at the scene. Also called were Cst. Simard, the Drug Recognition Evaluator and James Rajotte, a forensic Toxicologist at the Centre of Forensic Sciences.
[5] Given that the Crown's evidence is really not in dispute, I will very briefly summarize the witnesses' respective evidence. As indicated earlier, Ms. Blais acknowledged at the onset of her trial that she was driving while impaired by a drug or drugs on March 2nd, 2017.
[6] Stacey Desbiens testified that she was driving on Government Road in Kapuskasing on March 2nd, 2017 when her vehicle was struck to the back bumper by a Dodge Avenger operated by Sylvie Blais. She made observations that Ms. Blais was moving her feet and hands in a way that she did not find normal.
[7] In cross-examination she confirmed that this was a minor fender bender and that Ms. Blais also pulled over to the side of the road to await police arrival. She further indicated as this was wintertime, there was likely snow or ice on the road.
[8] Cst. Rumble was dispatched to the motor vehicle collision on Government Road and Riverside Drive on March 2nd, 2017 together with Cst. Gionet, attending in a separate vehicles. Upon arrival, he recognized Sylvie Blais and approached her. He observed her to be pacing back and forth in front of the Uptown Motors parking lot. He asked her if she had provided her driving information to Cst. Gionet to which she replied yes. In speaking with her he noticed that her speech was racing, there was twitching in her neck with involuntary movements of the hands and that her eyes were glossy. As a result of these observations, he indicated that he had concerns about Ms. Blais' ability to drive.
[9] In cross-examination he indicated that Ms. Blais appeared very truthful when he told him that she was taking a number of medications that were prescribed to her. He confirmed that the road was snow packed. He also acknowledged having recognized Ms. Blais as a result of dealing with her on a few traffic stops and a prior motor vehicle collision. Although her speech pattern had been fast during those prior encounters, according to him it was more so on March 2nd, 2017.
[10] Cst. Gionet was also dispatched to the scene. When he arrived on scene he observed the two vehicles involved in the minor collision. He observed a female exiting an orange Dodge Avenger, later identified as Sylvie Blais, walking fast towards the sidewalk and then pacing back and forth. In speaking with her, he noticed that she was difficult to understand, was talking fast and that her speech was slurred. She was constantly moving as he was speaking to her. She also seemed to be twitching and had involuntary movements around her mouth and eyes. There was also a white pasty substance around her mouth and her pupils appeared to be dilated. She was asked if she had consumed any alcohol or drugs and she indicated that she had taken her prescribed medication.
[11] Cst. Gionet requested that she provide him with her driver's licence and vehicle information and she appeared to lose her balance when handing the documentation to him. Based on his observations Cst. Gionet felt that he had reasonable and probable grounds to believe that Sylvie Blais was operating a motor vehicle while impaired by drug and arrested her accordingly.
[12] Cst. Simard is a certified Drug Recognition Evaluator and was called in to perform an evaluation on Sylvie Blais on March 2nd, 2017. After completing the 12 step drug recognition evaluation he formed the opinion that Ms. Blais was impaired as a result of a drug or drugs and made a formal demand for a urine sample, which was then provided to the Center of Forensic Science for analysis. He did not testify in great detail about the various tests, his observations and his opinion as defence counsel readily admitted that Ms. Blais was impaired by a drug or drugs on March 2nd, 2017.
[13] Mr. James Rajotte is a forensic toxicologist at the Centre of Forensic Sciences in Sault Ste Marie. He indicated that a urine sample of Ms. Blais was submitted to the Centre of Forensic Science and that he was assigned to oversee its analysis.
[14] He testified that there are certain limitations with a urine analysis as it is merely qualitative (substance detected or not detected) and not quantitative (it does not provide the amount or quantity of drug in the body).
[15] Mr. Rajotte authored a report which was filed as an exhibit in this trial. The report indicates that Ms. Blais' urine analysis taken on March 2nd, 2017 detected the presence of the following substances, namely:
a. 7-aminoclonazepam: a metabolite of clonazepam that has little pharmacological activity.
b. Bupropion (Wellbutrin): an antidepressant; Adverse effects of bupropion may include insomnia, dizziness, anxiety, nervousness, somnolence and agitation in some individuals. These side effects may decrease with chronic use.
c. Clonazepam: a drug prescribed in the treatment of seizure disorders and 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.
d. Dextromethorphan: a cough-suppressant medication found in many over-the-counter preparations. At higher than therapeutic doses, this drug has some hallucinogenic properties, including euphoria, sedation, lack of coordination and dizziness.
e. Norquetiapine: is a metabolite of quetiapine. The detection of norquetiapine was determined by a single analysis.
f. O-desmethylvenlafaxine: may be present as a metabolite of venlaflaxine.
g. Venlaflaxine: is a drug prescribed for the treatment of clinical depression. This drug would likely produce little, if any, impairment relative to the operation of a motor vehicle.
[16] Mr. Rajotte also included the following as a conclusion in his report and confirmed in cross-examination that he stood by it, namely:
The detection of a drug/metabolite in a urine sample is indicative of prior drug administration or exposure. Depending on the drug only its metabolite(s) may be detected in urine. Urine findings cannot be used to determine dose, route of administration, when the drug was administered, or whether the person was impaired. Therefore, only a general opinion regarding the effects of the drug(s) can be provided.
[17] In cross-examination he indicated that with the chronic or long term use of prescribed medications one would expect the side effects to be reduced. He was not aware of any type of specific warning to not take cough suppressant with any specific medications. He was of the view that best person who could answer this would be a pharmacist who would be aware of the medication prescribed to a patient.
The Defence Evidence
The Evidence of Vicky Ayotte
[18] Vicky Ayotte has been a nurse practitioner employed at the Health Centre since 2012. She worked as a nurse for 10 years in Hearst before completing her studies to become a nurse practitioner in 2011.
[19] Ms. Ayotte testified that she has known Sylvie Blais since August 2015 when she took over a colleagues' workload. She confirmed that Ms. Blais was her patient in March of 2017 and that her responsibilities included writing prescriptions, mostly refills and assisting Ms. Blais with her medication regimen.
[20] She was asked specifically about the substances detected in Ms. Blais' urine on March 2nd, 2017 and indicated the following with respect to each of the substances detected.
a. 7-aminoclonazapam and clonazepam: Ms. Blais had been taking clonazepam for a number of years and that this medication was increased to 4 times daily from 3 times daily in November 2016 and continued to be prescribed in that fashion in March of 2017.
b. Bupropion (Wellbutrin): which has been prescribed to Ms. Blais for many years. She was taking the same dosage on March 2nd, 2017 that she has been taking since January of 2016.
c. Dextromethorphan: She confirmed that this is a cough suppressant which had not been prescribed to Ms. Blais. This medication is usually an over the counter medication.
d. Norquetiapine (Seroquel): She confirmed that this prescription has been prescribed to Ms. Blais for a number of years and on March 2nd, 2017 she was taking the same dosage she had been taking since September of 2016.
e. O-desmethylafaxine and venaflaxine (Effexor): This medication had been prescribed to Ms. Blais for a number of years. Ms. Blais had been taking the same dosage in March of 2017 since September of 2016.
[21] She indicated that these medications can cause sleepiness and drowsiness but she did not specifically tell Ms. Blais that she should not be driving. According to her, there are no specific instructions given to patients to not drive while taking these medications. Ms. Ayotte testified that she did not have any concerns with respect to Ms. Blais abusing her medication. She indicated that Ms. Blais' prescription is dispensed in a bubble pack as opposed to individual pill bottles for each medication and there had never been any indication that Ms. Blais was taking more medication than prescribed. She further indicated that as a nurse practitioner she is able to send a letter to the ministry of transportation when she is concerned about the driving ability of a patient.
[22] Ms. Ayotte testified that she never herself advised Ms. Blais that she should not drive while taking her prescribed medication. She indicated that she had never dealt with Ms. Blais as a result of a cold and accordingly never told Ms. Blais that taking cough suppressant medication could interact with her prescribed medications.
[23] In cross-examination she confirmed that she was not Ms. Blais' original nurse practionner and that she was unaware of what had been said to her about driving while taking her prescribed medications. She was unaware if Ms. Blais had been warned about the effects of the medication and her ability to drive by her doctor, psychiatrist or her pharmacist.
[24] She did however confirm that various medical practitioners would normally caution patients about the effects of a prescribed medication. She indicated that she usually tells people when she first meets them about being cautious about taking certain medications. She had no specific recollection of speaking to Ms. Blais about this as she was not her original primary care worker. She further indicated that it would be a breach of the primary care's professional obligation not to disclose to a patient the effects of a certain medication.
[25] It was her belief that there are normally warnings on cough suppressant medication with respect to its possible effects. Although she had no concerns about prescribed medications being abused, she had no knowledge with respect to Ms. Blais' use of dextromethorphan. She did however caution her to speak to her pharmacist if she intended to take any other non-prescribed medication.
The Evidence of Sylvie Blais
[26] Sylvie Blais advised that following a very traumatic period in her life she suffered a mental breakdown in 2008 and has been prescribed medications since that time to assist her. She testified being under the care of a psychiatrist since 2008 and being prescribed medication, essentially the same medication she was taking on March 2nd, 2017. She maintained that she was never warned by her psychiatrist about driving while taking her medications. She also indicated that her medication is dispensed in a bubble pack and there are no warnings on the packaging.
[27] She indicated that she had been taking bupropion, venflaxin and seroquel since 2008/2009 and clonazepam since 2015 and had never had any issues driving a motor vehicle. She also indicated that at the time she was getting her prescriptions filled at Your Independent Grocer and was never told by the pharmacist that she should not be driving while taking her prescribed medications.
[28] With respect to the dextromethorphan found in her system, she recalls taking over the counter cough syrup in 2017 but was unsure as to the exact brand of the cough medication. She testified speaking to the pharmacist and seeking his assistance and maintained that she was never told that this medication could react with her prescribed medications and cause impairment.
[29] In cross-examination she indicated that she did look at the packaging of the cough medicine before she spoke to the pharmacist. She indicated that she specifically asked for the pharmacist's opinion about driving while taking the cough medication as she had concerns about the effects of the medication. Although she did not remember the brand of the cough syrup she was certain that she did speak to the pharmacist. She did not remember telling the pharmacist that she was driving a motor vehicle but maintains that he was fully aware that she was driving.
[30] Having testified earlier that she never had any problems operating a motor vehicle, she was asked if she had previously been involved in a motor vehicle accident. She reluctantly confirmed that she had been involved in another motor vehicle collision where she was charged with an improper turn.
[31] She continued to maintain that nobody ever told her not to drive while taking her medications but was unsure if someone had told her that she could become drowsy while taking her medications.
[32] She confirmed that when she picked up her prescriptions for the first time she did speak to a pharmacist and could have received a printout of the effects of taking the medications. She maintained that she was never concerned about adding another medication to the ones that had been prescribed to her. More specifically she was asked if she was concerned about adding a cough suppressant to her current prescribed medication. She denied being concerned or ever being dizzy or sleepy while taking a cough syrup.
[33] When she went to Your Independent Grocery in 2017 and grabbed the cough medication and spoke to the pharmacist, she was unsure if he had crossed reference the cough suppressant with her prescribed medication.
[34] She was steadfast that the pharmacist never cautioned her about the side effects of the prescribed medication interacting with the cough syrup. She however eventually conceded that she may have been told about the effects of her various medications at some point by her psychiatrist and Le centre medical de Kapuskasing.
[35] She denied having problems with her memory and acknowledged not writing down what doctors may have told her but remembered that the pharmacist never cautioned her about the effects of taking the cough medication with her prescribed medications.
The Position of the Parties
[36] The Crown argues that the court needs to consider all of the evidence heard during the trial, including the clear evidence of impairment. The Crown alleges that Ms. Blais was likely abusing her prescription medication given the very obvious indicia of impairment exhibited by her on March 2nd, 2017. Furthermore, she argues that Ms. Blais also took some over the counter medication which she knew or ought to have known could interact with her other medication and cause impairment.
[37] The defence argues that Sylvie Blais had been taking a number of medications for depression and anxiety since 2008 following a mental health breakdown as a result of a very stressful period in her life. The defence indicates that Ms. Blais continues to take medication for depression and anxiety and argues that she has always driven while taking her prescribed medication and that she has never been warned by anyone that this would cause her to be impaired. He argues that Ms. Blais did not have the criminal intent or "mens rea" to be convicted of impaired driving by drug. He refers the court to a number of cases including R v. Domb, 2011 ONCJ 756; R v. King, [1962] S.C.R. 746; R v. Bennett, [2018] N.J. No. 4 (Nfld Prov. Ct.); and R v. Kurgan, [1987] O.J. No. 2436 (Ont. Dist. Ct.).
The Law
The "Mens Rea" for Impaired Driving by Drug
[38] Justice Paciocco (then at the Ontario Court of Justice but now at the Ontario Court of Appeal) had occasion to provide a thorough review and detailed analysis of the mens rea required in a case of impaired driving by drug in R. v. McGrath, (2013) ONCJ 528.
[39] In that case, similar to the case before me, counsel had acknowledged that Mr. McGrath was impaired by clonazepam when he drove in a dangerous manner on the day in question. The evidence of impairment was overwhelming. Mr. McGrath testified that at no time did he knowingly consume clonazepam or any drug known by him to cause impairment. Justice Paciocco dealt with the issue of "mens rea" and involuntary intoxication and indicated from paragraph 9 to 13 of his decision the following:
[9] The received view is that in case of impaired driving, it is best to treat "involuntary intoxication" as undermining the mens rea or mental state required by the offence. That mens rea has been described in different ways but consists essentially in the "voluntary ingestion of alcohol or drugs, intentionally for the purpose of becoming intoxicated or recklessly aware that impairment could result but persisting in the risk.": Justice Joseph E. Kenkel, Impaired Driving in Canada (2012/2013 edition) (Toronto: Lexis-Nexis, 2013) at 28, citing R. v. Mavin, [1997] N.J. No. 206 at paras 30-39 (C.A.).
[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, [1962] S.C.R. 746 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] Even though "involuntary intoxication" undercuts one of the elements of an offence, it is appropriate to refer to the "defence of involuntary intoxication." This is because, in a typical impaired driving case, the Crown is not expected to prove voluntary intoxication, and a trial judge cannot speculate about the possibility if it is not supported by evidence. As it was put in R. v. King at para 63:
[W]hen 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, from being able to appreciate and know that he was or might become impaired."
[12] The accused must therefore raise a reasonable doubt about voluntary consumption before a "mens rea defence" of the kind offered by Mr. McGrath can succeed: See R. v. Pitre, [1971] 5 W.W.R. 270 (B.C.C.A). In essence, the voluntariness of proved intoxication is assumed, absent evidence to the contrary.
[13] Put contextually and in simple terms, Mr. McGrath is therefore innocent of the impaired driving by drug charge particularized against him if there is affirmative evidence that raises a reasonable doubt that his intoxication by drug was voluntary, and about whether he realised he was impaired before choosing to drive.
[40] After considering Mr. McGrath's evidence that he did not knowingly consume clonazepam, Justice Paciocco did not accept nor did Mr. McGrath's evidence raise any reasonable doubt that his intoxication was involuntary and as a result convicted the accused.
[41] Defence counsel has referred the court to R. v. Domb, [2011] O.J. No. 5946, a decision of Justice Pringle of the Ontario Court of Justice where she acquitted Mr. Domb, a Toronto Transit Driver at the time, of impaired driving by drug. Mr. Domb's impairment resulted from the pain killer fentanyl and other drugs that were found in his urine. These drugs had been prescribed to him by his doctor. Mr. Domb had argued that the Crown did not show that it was the drugs that caused the impairment but rather his impairment resulted from the many medical or emotional ailments and not from the drugs he was taking. Although, Mr. Domb was clearly impaired the Court was left with a reasonable doubt that the impairment was due to any fault attributable to Mr. Domb.
[42] Justice Pringle indicated at paragraph 5 of the decision:
I have concluded that Mr. Domb's ability to drive was impaired by the prescription drugs that he was taking on May 12, 2010. However, I find I am left with a reasonable doubt on the fault element of this offence. Mr. Domb was taking his medication under a doctor's care and there is no suggestion that he was abusing his medications or not following the prescriptions. Indeed, he testified that his doctor specifically prescribed fentanyl as a pain killer that would permit him to drive, since oxycontin and Percocet would not. He said that he is still permitted to drive by the Ministry of Transportation while taking fentanyl to this day, in fact at an even greater dosage than he was taking on the day he was arrested. He explained that there were never any contra-indications with the doctor or the pharmacist about the combination of his drugs, and he had no reason to be aware of a problem.
[43] In reviewing the case law on impaired driving by drug, Justice Pringle indicated at paragraph 46:
[46] There are not many cases dealing with the issue of fault where the defendant was taking drugs under the care of a doctor or a dentist. The Supreme Court of Canada's decision in King is the starting point for this discussion and I will refer also to R. v. Murray, [1985] O.J. No. 217 (C.A.), and R v. Consentino, [2008] O.J. No. 5263 (S.C.J., Durno J.).
[50] In the Murray case, Mr. Murray was a bus driver by profession. He took 2 sleeping pills about 9:30pm and debated whether he should drive his own car on an errand, since he usually became drowsy about 1 ¼ to 1 ½ hours after he took the pill. After giving it some consideration he decided he would drive, and thought he would assess his condition when he got to his destination. However, unbeknownst to him, the effects of the sleeping pills were more rapid and pronounced and on an empty stomach, he hadn't eaten since noon. Murray got into an accident on his way home. In retrospect, he admitted that he took a foolish risk. His doctor had warned against driving after taking the pills, and Murray said he would never have driven a bus after taking them.
[51] The Court of Appeal held that Mr. Murray had the necessary mens rea since he voluntarily consumed a sedative drug which he knew might impair his ability to drive a motor vehicle.
[52] Finally, in R. v. Cosentino, Mr. Cosentino was taking prednisone and sulpha, and had been warned by doctor not to drive if he used sulpha. The doctor told him "to use his judgment" about how long to wait before driving. On the night before he went out to a bar, he took two prednisone in the morning and two sulpha at night, and on the morning he went out he took one sulpha but no prednisone. That night he said he consumed alcohol, but the trial judge was left with a reasonable doubt on the amount, and acquitted on the over 80 charge. A scientist from the Centre of Addiction and Mental Health testified that the abrupt withdrawal from prednisone might have caused the symptoms of impairment of Mr. Consentino.
[53] The trial judge convicted Mr. Cosentino of impaired driving, [2007] O.J. No. 5248. On appeal, in relation to the issue of impairment by drug, Justice Durno found that the fault element was met. Mr. Cosentino had been given a caution about taking sulpha in combination with alcohol, and by his own admission he drank six ounces of alcohol on the same day he took that medication. Further, while his doctor may have given him deficient advice about prednisone, Mr. Cosentino appreciated that he was disoriented while driving, but instead of pulling over, he continued to drive on a less busy road.
Analysis and Application of Law to the Present Case
[44] There can be no doubt that Sylvie Blais was impaired on March 2nd, 2017 as evidenced by the clear indicia of impairment from a number of witnesses. As indicated previously, the only issue for this court to decide is whether or not I am satisfied beyond a reasonable doubt that Sylvie Blais knew or ought to have known that by taking her prescribed medications alone or in combination with a cough suppressant could cause impairment and affect her ability to drive.
[45] As indicated by the Supreme Court of Canada in King once impairment has been proven, a rebuttable presumption is created that the driver was aware of the effects of the alcohol or drug ingested. In the case before me, Ms. Blais presented a defence and has attempted to rebut this presumption. Accordingly, I must turn my mind to the Supreme Court of Canada decision of Regina v. W.(D.).
The test to be applied is as follows:
a. Firstly, if I believe the evidence of the accused that she was not aware that taking her prescribed medication alone or in combination with over the counter medication could cause impairment, obviously I must acquit;
b. Secondly, if I do not believe the evidence of the accused but am left with a reasonable doubt by it, I must also acquit;
c. Thirdly, even if I am not left in a reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt, by the evidence of the guilt of the accused.
[46] With respect to the evidence of the defence, I found Ms. Ayotte to be a very credible witness. She testified in a straightforward manner and was not afraid to give evidence that would not be helpful to Ms. Blais. Although she never personally cautioned Ms. Blais about the possible effects of her prescription medication, she did indicate that one can expect a primary care worker to inform a patient of such effects when the medication is initially prescribed. It was also her evidence that there had been no indication that Ms. Blais was abusing her prescribed medications. She readily acknowledged that she did not discuss the effects of a cough suppressant with Ms. Blais since she had never dealt with her for a cold.
[47] In giving her evidence Sylvie Blais appeared nervous and confused at times, which is understandable given her current situation. She appeared reluctant in cross-examination to admit that she would have been warned by a medical practitioner at some point as to the effects of her medication. Although she was adamant that she spoke to a pharmacist about the effects of a cough suppressant, she could not recall the cough suppressant used.
[48] When I assess Ms. Blais' evidence, I am unable to completely believe all of her evidence. I find it difficult to accept that not one medical practitioner would have ever mentioned that the number of medications she was taking could cause impairment. She did however reluctantly acknowledged having spoken to a pharmacist when she was originally prescribed these medications and possibly receiving some documentation about the side effects of these medications.
[49] It appears quite clear that Ms. Blais has been taking the same prescribed medication for quite some time. As indicated by the toxicologist, the side effects of the medication will usually decrease with chronic or long term use. This is difficult to reconcile with the clear and convincing indicia of impairment exhibited by Ms. Blais on March 2nd, 2017.
[50] Such clear indicia of impairment could only be the result of taking more than her prescribed medications, which does not appear to be the case or as a result of the effects of taking a cough suppressant together with her prescribed medications. In my view, given the very obvious indicia of impairment, one would have expected Ms. Blais to realize that she was impaired and should not be driving.
[51] Furthermore, I find it odd that Ms. Blais was concerned enough about the effects of taking a cough suppressant with her prescribed medications that she felt the need to speak to the pharmacist to obtain his blessing. Surely if Ms. Blais had concerns, one would expect the pharmacist to confirm Ms. Blais' concerns that cough suppressant medication in combination with her prescribed medications could cause impairment.
[52] Accordingly for those reasons, I am unable to completely accept Ms. Blais' evidence that she was not aware that taking a cough suppressant with her prescribed medication could cause impairment.
[53] However, when I do consider all of the evidence heard, including the evidence of Ms. Ayotte together with Ms. Blais' evidence and the fact that she had been taking her prescribed medication for almost 10 years, that she had no concerns about her driving ability during this time and her evidence that she did speak to a pharmacist about the effects of a cough suppressant with her prescribed medications, although close to the line, I am left with a doubt as to whether or not Ms. Blais was aware or was reckless to the fact, that taking her prescribed medications alone or in combination with a cough suppressant could cause impairment.
[54] Accordingly I am left with a reasonable doubt as to whether or not Ms. Blais had the requisite fault element or mens rea required to be convicted of impaired driving by drug. She will therefore be found NOT GUILTY of this charge.
Released: July 17, 2018
Signed: "Justice Michel R. Labelle"