Court Information

Ontario Court of Justice

Date: 2019-06-26

Court File No.: Toronto 4817 998 17-75005307

Between:

Her Majesty the Queen

— and —

Ayedin Derakhshandeh

Before: Justice Richard Blouin

Heard on: March 18, 19, 20, April 18, 26, and May 9, 2019

Reasons for Judgment released on: June 26, 2019

Counsel

Mr. Matthew Giovinazzo — counsel for the Crown

Ms. Vivian Gallegos — counsel for the Crown

Mr. Franklin Lyons — Counsel for the defendant Ayedin Derakhshandeh

BLOUIN, J.:

Facts

[1] Alexander Pitskov stopped his van at a red light on Mount Pleasant Avenue at Elm Avenue, in Toronto, between 10:30 pm and 11:30 pm on November 6, 2017. Within 10-20 seconds he heard a "big boom" as the back of his vehicle was struck. The driver of the vehicle that struck Mr. Pitskov was admitted to be the defendant. The defendant requested the police not be called and suggested that he would pay for any damage to Pitskov's van.

[2] Momar Drane was driving Uber that night. Drane observed the defendant rear-end the van at Elm Avenue. He also observed earlier "erratic" driving by the defendant, travelling southbound on Mount Pleasant from St. Clair. The defendant's car swerved into the opposite lane of traffic and almost hit another car head-on. The defendant almost hit a pole. After the accident Drane removed the key from the defendant's ignition. The defendant then attempted to negotiate the return of that key.

Mens Rea

[3] Ultimately, the defendant was arrested for operating a motor vehicle while impaired by a drug and was arraigned on that count. Counsel essentially admitted the actus reus of the offence in that he conceded his client was operating a motor vehicle and was impaired at the time of driving.

[4] The central issue became whether the Crown had proven the mens rea of this offence. The defendant testified that he did not voluntarily consume the drug found in his urine (and called by the drug recognition expert – DRE).

Rolling Logs

[5] A disclosure application was brought to have this Court release what are now referred to as DRE logs (essentially the brief history of each evaluation done in the past by the particular DRE). Mr. Lyons also argued that the DRE's opinion (contained in Exhibit 3) as to the category of drug that impaired the defendant's ability to drive was not fully in alignment with the toxicology results. Since the rolling logs essentially chronicle the cumulative examinations done by a DRE and whether the call made by the DRE in each case is in alignment with the toxicological evidence, the "track record" of the DRE is relevant to reliability of that evidence. During the trial, I concluded that the legislation (s. 320.36) prohibited disclosure of the logs.

Relevant Legislation

[6] Unauthorized use of bodily substance

[Criminal Code s. 320.36(1)] No person shall use a bodily substance obtained under this Part for any purpose other than for an analysis under this Part.

Unauthorized use of disclosure of results

[Criminal Code s. 320.36(2)] No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.

Exception

[Criminal Code s. 320.36(3)] The results of an evaluation, test or analysis referred to in subsection (2) may be disclosed to the person to whom they relate and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or research purposes.

Offence

[Criminal Code s. 320.36(4)] Everyone who contravenes subsection (1) or (2) commits an offence punishable on summary conviction.

[7] Presumption – drug

[Criminal Code s. 320.31(6)] If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person's ability to operate a conveyance, that drug – or, if the person has also consumed alcohol, the combination of alcohol and that drug – is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person's body at the time when the person operated the conveyance and, on proof of the person's impairment, to have been the cause of that impairment.

Findings on Presumption of Impairment

[8] Section 320.31(6) allows that when a urine sample from the defendant demonstrates that this person has a drug in his or her body of a type that the evaluating officer has identified as impairing the person's ability to operate a vehicle, that "alignment" creates a presumption that the drug was present in the person's body at the time of operation and that, on proof of the person's impairment, the drug caused that impairment. The above is subject to any evidence to the contrary.

[9] Here, the DRE PC McConnell, after conducting the drug influence evaluation on the defendant at the police station, concluded that the defendant "was impaired with cannabis and a central nervous system depressant". Galiera Tse, a forensic toxicologist at the Centre of Forensic Sciences, produced a report (Exhibit 4) and testified that the urine sample contained alprazolam (Xanax), a central nervous system depressant. Also detected was carboxy THC, which is a metabolite of THC. Typically, THC itself is not found in the urine, only the metabolite. This metabolite can only establish that the individual had previously consumed or had been exposed to a marijuana product.

[10] In my view, the DRE call aligns with the toxicology results and the Crown is entitled to the presumption in s. 320.31(6). No evidence to the contrary exists. Even the defendant's evidence that he mistakenly took a Xanax pill, instead of a similar looking pill, Citalopram, is evidence supporting the presumption. I find the defendant's ability to operate his vehicle was impaired by a central nervous system depressant at the time of operation. In addition, since I conclude alignment regarding cannabis, the presumption allows a conclusion that he was additionally impaired by cannabis.

Finding on Disclosure of DRE Rolling Logs

[11] After the finding by the Ontario Court of Appeal in R. v. Stipo, 2019 ONCA 3, that rolling logs were "obviously relevant" to challenging the reliability of a DRE. That ruling dealt with the preceding legislation. The law changed as of December 18, 2018 and a whole new body of jurisprudence is developing that involves conflicting rulings on the disclosure issue. In my view, the reasons of my colleague Justice McKay in Sukhdeo, 2019 ONCJ 150 at paragraphs 43 and 44 are persuasive:

[43] That is to be contrasted with section 320.36, which prohibits disclosure of any evaluation or analysis of bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or the operation of a conveyance. I am of the view that an accused who is defending an impaired driving charge is not doing so for the purpose of the administration or enforcement of the federal or provincial Act. Administration or enforcement relates to the actions of government pursuant to the administration or enforcement of the laws of that jurisdiction.

[44] Section 320.36(3) creates exceptions to the prohibition on disclosure. The exception related to disclosure of anonymous results for statistical or research purposes clearly does not apply to an accused who is defending an impaired driving charge. The second aspect of the exception allows disclosure of the results related to an accused to that accused for purposes of preparing and maintain a defence to a criminal charge. However, I interpret the section as prohibiting disclosure to an accused of the results related to the testing of other individuals. Disclosure of the rolling log would violate that prohibition.

[12] In addition, a few days after I ruled orally that disclosure of the rolling logs was prohibited by statute, R. v. Amarelo-Gemus, 2019 ONSC 2675, was released. The Summary Conviction Appeal Judge concluded that the rolling log is still relevant in the absence of the presumption in s. 320.31(6). In this case, I found that the presumption existed, and I also found no evidence to the contrary. Parliament couldn't be more clear as to the persons exempted from the general rule that bodily substance analysis results not be disclosed. A criminal penalty exists for anyone who contravenes the disclosure provisions.

Involuntary Intoxication

[13] As indicated above, the central issue in this case was the defendant's evidence that he mistakenly consumed Xanax thinking it was a drug he had familiarity with, and thereby lacked the intent to consume an intoxicant.

[14] The law in this area is well laid out in R. v. McGrath, 2013 ONCJ 528, where Paciocco J. (as he then was) refers to the seminal SCC case on this issue in paragraphs 10-12:

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 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 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] 5 W.W.R. 270 (B.C.C.A.). In essence, the voluntariness of proved intoxication is assumed, absent evidence to the contrary.

[15] Mr. Derakhshandeh gave evidence regarding not only of the events of the day he was arrested but also of the events of the night before. The lead up to the defendant's attendance at the apartment of an acquaintance (named Chang) on the afternoon before the arrest is, to say the least, an unusual story. However, since it did not factor into my reasons for not believing the defendant on his state of mind preceding the accident, I need not describe the incongruities contained within that story.

[16] The defendant testified that he had been prescribed medication for anxiety in the past (and produced evidence of those prescriptions). He testified that he had an anxiety attack in Chang's bathroom sometime on the afternoon of November 6. Because he was in the bathroom for 20 to 30 minutes, Chang inquired as to what was going on. When Chang was told of the anxiety issue, he told Derakhshandeh that he had pills in the cabinet and that he should open it. When Derakhshandeh did that, he saw a pill dispensary with "two capsules". Derakhshandeh took one of those pills that he thought was Citalopram.

[17] The defendant felt better, and he and Chang left the apartment to meet friends to attend a movie. Derakhshandeh got a coffee and told his friends he would meet them "upstairs" where the movies were playing. The next thing Derakhshandeh remembered was dropping the coffee and getting into the car accident. When taking Citalopram in the past, he never experienced memory loss and was never advised that he should not drive. He testified that Citalopram did not affect his ability to drive in the past (this absence of affect was confirmed by Ms. Tse). He produced two photos from WebMD illustrating the visual similarities between Xanax and Citalopram (Exhibits 5(a) and 5(b)).

[18] In cross-examination, Derakhshandeh admitted that Chang did not tell him which pill to take and Derakhshandeh did not ask since he was "pretty sure" it was Citalopram. He also remembered more about the time period before the accident than he initially revealed. He remembered that he did not return home. He remembered driving on Mount Pleasant Avenue, toward downtown. Minutes after the accident he remembered that someone took the key out of his ignition and being worried that the police were coming to investigate. He agrees he tried to negotiate for the return of the keys.

Conclusion

[19] I find the defendant was very much aware that his ability to operate his vehicle was impaired by the drug he consumed, even if he mistakenly took it. I disbelieve his evidence in-chief that he did not remember anything after the drug took effect until the accident. His evidence does not raise a reasonable doubt. He clearly did remember driving southbound on Mount Pleasant before the accident. Immediately after the accident he attempted to retrieve his keys so he could evade detection by police. I conclude his awareness immediately before the accident was similar to his awareness immediately after the accident. He chose to continue operating his vehicle knowing his impairment made it dangerous to do so.

[20] I find the defendant guilty.

Released: June 26, 2019

Signed: "Justice Blouin"