ONTARIO COURT OF JUSTICE

CITATION: R. v. Avery-Quick, 2019 ONCJ 36

DATE: January 24, 2019

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRENDON AVERY-QUICK

Before Justice Wayne G. Rabley

Heard on October 4, 2018 and January 8, 2019

Reasons for Judgment released on January 24, 2019

J. Caskie .................................................................................... for the Crown

H. Mattson....................................................... for the defendant the accused

RABLEY J.:

1. Brendon Avery-Quick is charged with a number of offences arising out of an incident that took place on January 26th, 2018.

2. Counsel filed an Agreed Statement of Facts which formed the basis of the Crown’s case. Mr. Mattson called his client Mr. Avery-Quick and filed two exhibits.

CROWN’S CASE

3. It is acknowledged that on January 26th, 2018 Mr. Avery-Quick was operating his grey Mazda motor vehicle. His ability to operate that vehicle was impaired by a combination of alcohol and prescription drugs. At 5:45 p.m. the grey Mazda collided with a tree in the City of Waterloo leaving a trail of car parts and wood chips.

4. Mr. Avery-Quick failed to remain at the scene of the collision and drove in an unknown direction. The vehicle was seen by a witness as it drove northbound in the southbound lane of Lincoln Road. The witness noted that the headlights and taillights were not turned on even though the sun had set.

5. The Mazda continued to drive in an erratic manner and a second witness described the vehicle as “clearly not being in control.” It then turned into the driveway of 313 Bluevale Street North and collided with the garage door.

6. Mr. Avery-Quick’s roommate Trisha Boles heard the collision and immediately went downstairs to see what happened. She observed smoke and then saw the accused exit the motor vehicle. Ms. Boles observed that the car was still running and that Mr. Avery-Quick was unsuccessfully trying to turn it off. Instead of doing so, he turned on the windshield wipers.

7. Ms. Boles went upstairs and called the police at approximately 5:53. When she returned to the car, the accused was still trying to turn it off. Eventually he did so.

8. At 5:59 Constables Driedger and Collado of the Waterloo Regional Police arrived at the scene and were directed to Mr. Avery-Quick by Ms. Boles. He was asked about his alcohol consumption and replied that he had a “few shots earlier in the night.”

9. Constable Driedger observed that the accused’s eyes were glossy, he had a glazed over look and a straight ahead stare. The officer noted that the man was slurring his speech and there was an odour of alcohol emanating from his breath.

10. At. 6:01 the officer arrested Mr. Avery-Quick for Impaired Driving. He was given his Rights to Counsel, Caution and Breath Demand. He was then transported to North Division and arrived at 6:29 p.m. At Mr. Avery-Quick’s request, he was put in touch with Duty Counsel and he completed his call at 6:49.

11. Mr. Avery-Quick provided samples of breath into a breathalyzer which produced results of 55 and 51 milligrams of alcohol in 100 milliliters of blood at 7:10 and 7:33 respectively.

12. The police suspected that there were also other substances in Mr. Avery-Quick’s body. A Drug Recognition Expert (DRE) was requested because the police did not believe that the breathalyzer readings reflected the substantial impairment that they were witnessing.

13. After speaking with Duty Counsel once again, Mr. Avery-Quick was subjected to a DRE examination by Constable Preis. During the process, Mr. Avery-Quick told the evaluating officer that he had “taken a number of prescription drugs that day, including a prescription aid.”

14. Constable Preis concluded that the accused was impaired by a combination of drugs and marijuana. The officer made a further demand that Mr. Avery-Quick provide a sample of his urine. This was sent to the Centre of Forensic Sciences and the following substances were found to be present in the sample:

• Amphetamine (used in Adderall)

• Codeine

• Hydrocodone

• Morphine

• Zolpidem (commonly known as Ambien)

• Pregabalin (a prescription pain medication)

15. Mr. Avery-Quick was charged with the criminal offences of Impaired Driving, Dangerous Driving and the Highway Traffic offences of Leave the Scene of an Accident and Being the Holder of a G2 License with Alcohol in his System. All of the charges were tried together on consent.

16. There is no evidence that Mr. Avery-Quick was a G2 Driver at the time. I would therefore dismiss that charge.

17. Counsel both agree that the issue to be litigated is whether or not Mr. Avery-Quick had the mens rea to commit the offences before the Court. Mr. Mattson concedes that this is not a case where he can raise the defence of Automatism because he has no forensic evidence to advance on behalf of his client.

BRENDON AVERY-QUICK

18. Mr. Avery-Quick testified on his own behalf. He is a pleasant young man who is now 25 years of age with no criminal record. Around the age of 16 or 17 years he was diagnosed with depression and prescribed various medications. He graduated from high school and then attended at university where he was diagnosed with ADHD and prescribed anti-depressants by his doctors. He then worked full-time for Canada Post but suffered an anxiety attack and was off of work from October 2017 to March 2018. During that time, he saw a psychiatrist for an assessment.

19. As a result of his difficulties Mr. Avery-Quick was prescribed Adderall which contains amphetamine (a drug prescribed for attention deficit hyperactivity disorder) and Lirica or Pregablin (a drug prescribed for treatment of pain related to neuropathy and fibromyalgia) approximately 5 years ago. Since that time, he has taken the prescription medications twice a day and generally the two drugs were consumed in capsule form together.

20. In addition to Adderall and Lirica, Mr. Avery-Quick occasionally took Zolpidem, a drug generically known as Ambien to help him sleep and some ‘over the counter’ pain medication for a back issue.

21. No explanation was given by Mr. Avery-Quick about the other prescription drugs in his system including the Codeine (a drug prescribed for the treatment of mild to moderate pain), Hydrocodone (another drug prescribed for pain or the suppression of coughs) and Morphine (another drug prescribed for pain).

22. It should be noted that the Report from the Centre of Forensic Sciences that was filed specified that Codeine may cause “dizziness, drowsiness and stupor”. Hydrocodone may cause “euphoria, dizziness, drowsiness and sedation.” Morphine may cause “drowsiness, dizziness, lethargy, incoordination, weakness and confusion.”

23. Mr. Avery-Quick testified that he arrived home after doing some errands and watched his favourite TV program at 4 o’clock in the afternoon. He recalled that he had two shots of vodka in a mixed drink. He then decided to go to bed because he had had a fitful sleep the night before as he was worried about getting the funding for his education.

24. To help him sleep, Mr. Avery-Quick took a tablet of Ambien and went to bed. He claimed that his next recollection is ‘waking up’ or ‘coming to’ at the police station. He testified that he had no recollection of driving and would never have taken a sleeping pill before operating a motor vehicle.

25. Mr. Avery-Quick acknowledged that he had not read the Warning that was contained in the box with the sleeping medication. He testified that he had no idea of its potential impact at the time, but that he had read the Warning over carefully since then and realized that it clearly set out that he should not consume alcohol with the medication.

26. Mr. Avery-Quick further testified that no one had previously explained to him that there might be complications by the ingestion of Ambien and the other prescribed drugs or alcohol. He recalled that he had combined alcohol and the sleeping pill in the past and told the Court that he had never experienced similar circumstances to those experienced on January 26th, 2018.

POSITION OF THE PARTIES

27. The Defence submits that Mr. Avery-Quick was ‘sleep driving’ and that he did not have the necessary mens rea to commit the offences because:

(a) he did not purposely or voluntarily consume alcohol or drugs to become intoxicated; and

(b) he was not reckless when he decided to take the sleeping pill before going to bed after consuming a small amount of alcohol.

28. In a nutshell, Mr. Mattson argues that his client did not and could not have known that the combination of the sleeping pill, alcohol and other medications would have intoxicated him. Therefore, he has made out the defence of involuntary intoxication and his client should be found not guilty of the offences.

29. The Crown disagrees. Ms. Caskie submits that the Crown need not prove an intention to drive once it is established that the accused voluntarily consumed alcohol and operated a motor vehicle. Her position is that since Mr. Avery-Quick has acknowledged that he had consumed alcohol and the sleeping pill, that the Court should conclude that alcohol and drug contributed to his intoxication at the time of driving. Her submission is that Mr. Avery-Quick must be found guilty.

THE LAW OF INVOLUNTARY INTOXICATION

30. Justice Paciocco dealt with the issue of involuntary intoxication while sitting as a Justice in the OCJ. In the case of R. v. McGrath [2013] O.J. No. 3728, he adopted the definition offered by Vertes J in R. v. Brenton 1999 CanLII 4334 (NWT SC), [1999] N.W.T.J. No.113 at para 31 where he said:

“Involuntary intoxication is generally confined to cases where the accused did not know he or she was ingesting an intoxicating substance (such as the accused’s drink was spiked) or where the accused became intoxicated while taking prescription drugs and their effects were unknown to the accused.”

31. Mr. Avery-Quick has raised the issue of “involuntary intoxication” by testifying that:

(a) he had not read the Warning that accompanied the prescription for Ambien and therefore did not know the effects of combining it with other prescription drugs and alcohol;

(b) he had not been told by anyone including his Doctor and Pharmacist about the side effects of combining these substances together;

(c) he had consumed the prescription medication and alcohol together in the past with no remarkable consequences, thus he had no practical knowledge that he might end up sleep driving; and

(d) he would never knowingly take the Ambien or sleeping pill before driving a motor vehicle.

32. Mr. Mattson argues on behalf of his client that although Mr. Avery-Quick may have made a poor decision on the day in question, looked at objectively, this was not conduct that is deserving of criminal sanction because Mr. Avery-Quick’s voluntary ingestion of alcohol or drugs was not for the purpose of becoming intoxicated.

33. Justice Paciocco dealt specifically with this issue in McGrath and I would adopt his reasoning in paragraphs 11 and 12 of his decision:

[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 drink and 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 CanLII 1195 (BC CA), [1971] 5 W.W.R. 270 (B.C.C.A). In essence, the voluntariness of proved

intoxication is assumed, absent evidence to the contrary.

34. With respect to Dangerous Driving Justice Paciocco came to a similar conclusion in paragraph 16:

“Accordingly, as with the impaired driving charge, to achieve a defence to the charge Mr. McGrath must provide evidence that succeeds in raising a reasonable doubt about whether he was involuntary intoxicated.”

ANALYSIS

35. In this case, the defence has called evidence and Mr. Avery-Quick has testified on his own behalf. I must therefore apply the principles of R. v. W.(D). 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 to the evidence that I have heard. Mr. Mattson submits that Mr. Avery-Quick’s evidence about what happened that evening is unchallenged and therefore on the first branch of W.(D). I should accept his testimony and acquit him. In the alternative, he argues that his client’s evidence ought to at least leave me in a state of reasonable doubt whether or not he involuntarily became intoxicated and therefore on the second branch of the test I should find Mr. Avery-Quick not guilty.

36. Given this argument, an analysis of the accused’s evidence is important in making findings of credibility and reliability.

37. Mr. Avery-Quick’s testimony is that on the day of the offences he took his regular doses of Adderall and Lirica and some “over the counter pain medication.” He then consumed two shots of vodka, watched a television show, took his sleeping pill Ambien and then went to bed.

38. He was specifically asked by Mr. Mattson what else he had ingested that day:

Q. Is there any other prescription drugs that you were taking?

A. At the time it wasn’t a prescription medication but I had taken some over the counter pain medication for my back.

39. We know that there were other substances in his system because the urine sample given by Mr. Avery-Quick at the police station disclosed that Codeine, Hydrocodone and Morphine were also in his body.

40. All of these prescription medications significantly impact the central nervous system in the human body and one suspects that they contributed to the extreme intoxication that was seen by all of the witnesses involved.

41. Mr. Mattson asked further questions regarding this issue

Q. Was there a time period when you were taking the pain medication, the Adderall and the other drug and the sleeping pill

A. That generally wouldn’t have happened because I wouldn’t take the sleeping pill in my system

Q. Meaning the pain pill

A. Meaning the pain pill

Q. The pain medication. Is that something that you took prior to the date of the event. Had you ever had all those drugs in your system before.

A. It is possible. Yes

42. I find that Mr. Avery-Quick’s description of the pain medications as “over the counter” for his back is not accurate or truthful. Powerful drugs such as morphine would not be found in an over the counter pain medication. I also find that this is something that he would not have innocently forgotten or confused. Mr. Avery-Quick is an educated and intelligent young man who has been dealing with prescription medications since he was 17 years of age. He testified that he is careful to ingest his prescription drugs on a timely and structured basis.

43. I simply do not believe that he would forget or confuse the other powerful narcotics or prescription medications that were in his body with over the counter pain medications. As a result, I would make a positive finding that I do not believe Mr. Avery-Quick and his evidence does not leave me in a reasonable doubt.

44. In McGrath, Justice Paciocco concluded:

The pay-dirt question, though is whether his evidence raises a reasonable doubt about voluntary intoxication, in all the circumstances. I am convinced that it does not. While unknown involuntary intoxication scenarios are not impossible to imagine, it is impossible, in my view, to successfully rebut the presumption of voluntariness with testimony from a source who cannot recall what he did in the hours prior to the alleged offence. I appreciate that this may seem unfair. Someone “obliterated” as the result of involuntary intoxication may experience a black out and be left unable to rebut the presumption of voluntary consumption, even where it has happened. Yet this seems to be the state of the law.

45. The parallel between the McGrath and Avery-Quick decisions is striking. Like Mr. McGrath, Mr. Avery-Quick has no recollection of the events that led to his arrest and can call no evidence to support his position that somehow he became involuntarily intoxicated by the consumption of a sleeping tablet.

46. In R. v. Roy, Justice Cromwell of the Supreme Court said:

Given that no explanation was provided for the appellant’s conduct — due in great part to his loss of memory — there was no evidence that could raise a reasonable doubt that a reasonable person would not have been aware of the risks related to his behavior in the present case.

47. Mr. Mattson invites me to speculate that the sleeping pill or a combination of the medications and the alcohol caused Mr. Avery-Quick to drive while he was sleeping on the night of the offences. Were it not for the significant credibility finding I have made, it would be an inviting submission, although in this case, it is not based on fact, but on speculation.

48. Here I need not struggle with the dilemma. I have no evidence that the sleeping pill had any impact on Mr. Avery-Quick’s driving on the evening in question. Other possibilities explaining the circumstances include blackouts, a concussion as a result of the accident leading to memory loss or extreme intoxication as a result of the consumption of alcohol and drugs. These too are speculative theories but in my view, are equally consistent with the facts. In other cases where the argument of involuntary intoxication has been advanced, Courts have commented on the importance of expert evidence which in this case is absent: R. v. DeVingt, [2001] O.J. No. 521 (SCJ), R v. Gravelle, 2016 ONSC 809, R. v. Prescott, 2008 ONCJ 604 and R. v. Desrosiers, 2017 ONCJ 299.

49. The only evidence that I have about the effect of this cocktail upon Mr. Avery-Quick is his own evidence that he had consumed a sleeping pill and alcohol before and there had been no unusual consequences. It begs the question that if Codeine, Hydrocodone and Morphine were added to the mix, that the situation may have been much different. I am of the view that it would have as evidenced by Mr. Avery-Quick’s behavior on the evening in question.

50. Ultimately, even though I accept that one or more of the prescription drugs mixed with the alcohol caused the extreme intoxication witnessed by the police and others, the rebuttable presumption in this case must be met by evidence that creates a reasonable doubt rather than speculation. In this case, I find that there is no such evidence as I do not believe Mr. Avery-Quick for the reasons given.

51. In my view, that ends the matter, but I would add that I also accept the Crown submission that since Mr. Avery-Quick voluntarily consumed alcohol and then operated a motor vehicle, that this makes him guilty of the offence, since he has not rebutted the presumption of voluntary intoxication.

52. “Two shots” of alcohol could mean a lot of things although traditionally it would mean two ounces or two pours of alcohol into a mixed drink. In this case, there was no evidence as to how much alcohol was in each “shot” or the effects that the alcohol had upon the accused.

53. I note that Mr. Avery-Quick provided samples of his breath at 7:10 and 7:33 with truncated readings of over 50 milligrams in 100 milliliters of his blood. These readings were obtained approximately an hour and a half after the reported driving.

54. I rely upon the evidence because I am satisfied that alcohol was a contributing factor in Mr. Avery-Quick’s erratic driving. I would adopt the principles set out in the cases of R. v. Caldwell [2004] O.J. No. 4769 and R. v. Bartello [1996] O.J. No. 1000 affirmed by the Court of Appeal [1997] O.J. No. 226. In Bartello, the Court found:

The trial judge concluded that the consumption of alcohol was a contributing factor to the appellant’s impairment and there was evidence upon which he could come to that conclusion. Accordingly, the trial judge did not err in his application of R. v. Stellato (1993), 43 M.V.R. (2d) 10 (Ont. C.A.).

55. I too would find that alcohol was a contributing factor to Mr. Avery-Quick’s intoxication on the evening in question.

56. I would therefore summarize my findings as follows:

(1) I reject Mr. Avery-Quick’s evidence and find that I do not have a reasonable doubt as a result of it;

(2) the defence has not displaced the rebuttable presumption of

voluntary intoxication; and

(3) at the time of the driving alcohol was clearly a contributing factor to Mr. Avery-Quick’s impairment although I would find that his impairment was as result of a combination of both alcohol and prescription drugs.

57. For these reasons, I would find Mr. Avery-Quick guilty of the remaining three charges before the Court.

Released: January 24th, 2019

Justice W.G. Rabley