Court Information
Ontario Court of Justice
Date: December 11, 2020
Court File No.: Region of Waterloo (at Kitchener) 17-9122
Parties
Between:
Her Majesty the Queen
— And —
Alicia Morris
Before the Court
Justice: C.A. Parry
Counsel:
- Jennifer Caskie, for the Crown
- Christopher Avery, for the defendant Alicia Morris
Hearing Dates: August 13, 2019; September 27, 2019; December 2 & 18, 2019; November 2, 2020; December 11, 2020
Reasons for Judgment Released: December 11, 2020
I. INTRODUCTION
[1] Ms. Morris stands charged with driving while her ability to do so was impaired by alcohol and while her blood alcohol content exceeded the legal limit. She concedes her impairment; she concedes that her blood alcohol content was over the legal limit; and she concedes she was driving. Through her counsel, she raises a single issue, which she characterizes as an issue of intent. In particular, she contends that she did not voluntarily consume the alcohol necessary to elevate her blood alcohol level over the legal limit. Indeed, she surmises that a companion spiked her drink with some kind of drug, thereby negating her ability to make conscious decisions about drinking and, later, driving.
[2] While defence counsel describes the issue as one of intent, upon reflection I have come to conclude that Ms. Morris' defence actually involves a claim that she did not commit the unlawful act. Specifically, I have concluded that she contends that her consumption of alcohol and subsequent driving were involuntary, involuntary in the sense that she was in a state of impaired consciousness, a state akin to automatism.
[3] The proper characterization of Ms. Morris' defence is important, because the nature of the burden of proof and the determination of the party that bears that burden depend upon how one characterizes Ms. Morris' factual claims.
[4] I have come to the conclusion that Ms. Morris bears a burden to establish on a balance of probabilities that her actions were involuntary at the time she consumed the alcohol that caused her to be over the legal limit and at the time she subsequently drove. I have also come to the conclusion that she has failed to meet this burden. Consequently, I have concluded that the Crown has proven the charges against Ms. Morris beyond a reasonable doubt.
[5] Before reviewing the evidence and my findings of fact, I will first embark upon a discussion of the burden and standard of proof that ought to apply to Ms. Morris' claim of involuntary intoxication and her corresponding claim of involuntary driving.
II. LEGAL ANALYSIS
A. Is This a Mens Rea Issue or an Actus Reus Issue?
[6] At the outset of the trial, defence counsel identified the primary issue as being "whether or not my client had voluntarily consumed the alcohol in question." According to the defence theory, Ms. Morris was drugged at some point prior to the completion of her third beer. According to this theory, Ms. Morris consumed the rest of the alcohol necessary to put her over the legal limit while she was in a state of "blackout". Furthermore, the defence posits that Ms. Morris was incapable of appreciating her state of impairment while in this drug induced blackout. As a necessary corollary to this theory, the defence at least tacitly posits that Ms. Morris was likewise incapable of appreciating that she was engaged in the act of driving during her blackout period. In submissions, it became clear that counsel framed the issue as a mens rea issue.
[7] In framing the matter as a mens rea issue, defence counsel relied upon the summary conviction appeal case of R. v. Sitarz, [2013] O.J. No. 5185, which in turn relied upon the Supreme Court of Canada decision, R. v. King, [1962] S.C.J. No. 60. Defence counsel argues that I am bound by the Sitarz decision and must follow it. The defence further argues that, so long as there is an air of reality to this "blackout" theory, the Crown bears the burden of disproving this blackout theory beyond a reasonable doubt. Consequently, if I am left in a state of reasonable doubt about whether Ms. Morris was unwittingly in a state of drug induced "blackout" when she consumed the alcohol necessary to become impaired and over the legal limit, I must acquit.
[8] The Crown argues that Sitarz was wrongly decided and misapplies the King case. The Crown further argues that the issue raised by Ms. Morris is not a mens rea issue but rather an actus reus issue. The Crown argues that Ms. Morris claims to have been in a state akin to automatism at the time she consumed the alcohol necessary to obtain a BAC above the legal limit. In other words, says the Crown, Ms. Morris claims to have acted intentionally, but without conscious awareness of her otherwise intentional actions. The Crown further argues that the decision of R. v. Stone, [1999] 2 S.C.J. No. 27, confirms that any accused claiming to have acted in a state of automatism bears the burden of proving that claim. The standard of proof applicable to that burden is proof on a balance of probabilities.
[9] I agree with the Crown. I agree that Ms. Morris is not actually claiming unintentional conduct but rather involuntary conduct – involuntary in the sense that she lacked the capacity to be conscious of her otherwise intentional actions. And I agree that voluntariness, in this strictly legal sense of the term, is a component of the actus reus of the offence, not the mens rea. I will attempt now to explain these conclusions.
[10] I begin with a deeper exploration of the King decision. The King case confirmed that impaired driving offences are criminal rather than regulatory offences. In doing so, the King decision articulated the mens rea for impaired driving offences. Accepting as a "matter of common experience" that people are aware that the consumption of alcohol "may produce intoxication" and relying upon the premise that people intend the natural consequences of their actions, a majority of the court ruled that a rebuttable presumption arises that an impaired driver's state of intoxication was the product of a voluntary consumption of alcohol. If the evidence casts doubt upon this presumption, then the accused must be acquitted. Ritchie J. A., whose reasons were concurred with by two other members (one in a separate concurring decision) of a panel of five explained as follows, at paras. 63 and 64:
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. [emphasis mine]
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, of 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. [emphasis mine]
Portions of the above quoted passage were quoted by both the trial judge and summary conviction appeal judge in Sitarz, making clear that the outcome of the Sitarz case turned on an assessment of the accused's mens rea.
[11] The King majority's use of the term "voluntary" in the exploration of the mens rea is perhaps unfortunate, but, when read in the context of the entire case, it is clear that the majority is using the term to connote "informed and intentional", as opposed to the intentional product of a mind that was unconscious or in an impaired state of consciousness. By the date of its release of the King decision, the Supreme Court had yet to thoroughly explore the relationship between consciousness and voluntariness. The Supreme Court more thoroughly examined this relationship in the decades following the one in which it released the King decision: see Parnekar v. The Queen, [1974] S.C.R. 449; Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Daviault, [1994] 3 S.C.R. 63; and R. v. Stone, [1999] S.C.J. No. 27.
[12] To get a sense of the way in which the court in King used the term "voluntary" when discussing the mens rea for impaired driving, a better understanding of the facts is necessary. In King, the accused had received an anesthetic injection from a dentist. He claimed that the dentist did not inform him of the intoxicating effects of the anesthetic and did not warn him against driving. He got in his car and began to drive without subjectively experiencing the impairing effects of the anesthetic. While driving, he became unconscious and rear-ended a parked car. Medical evidence indicated that the drug may induce a state of amnesia accompanied by a period during which the subject may feel competent to drive a car and in the next second be in a condition in which he would not know what was happening. To sum up, the accused produced evidence to establish that he did not knowingly consume an intoxicating substance, he did not subjectively experience the intoxicating effects of that substance at the time of driving, and so he intentionally drove his car unaware that he was in fact impaired. His defence was a pure mens rea defence: a claim of honest but mistaken belief in a set of facts.
[13] With the above-noted factual context in mind, it is clear that the majority of the court used the term "voluntary consumption of alcohol" to connote the intentional and informed consumption of alcohol. The majority ruled that if the trial court accepted [or could not reject] that the accused was unaware of the possible intoxicating effects of the medication which he knowingly received and was subsequently unaware of his state of impairment at the time of driving, then the accused's evidence ought to rebut the presumption that he intended the natural consequences of his actions. In other words, this evidence, which was evidently accepted, rebutted the presumption that the accused knowingly consumed a substance he knew could cause impairment – and further rebutted the presumption that he knew he was impaired. In such circumstances, the Crown failed to prove the mens rea beyond a reasonable doubt. The term "voluntary consumption" was thus used to connote "informed and intentional".
[14] To succeed in a claim of so called "involuntary intoxication" an accused must show the existence of affirmative evidence that raises a reasonable doubt that her intoxication by alcohol was intentional or the product of recklessness as to the possibility of impairment and a reasonable doubt about whether the accused realized she was impaired before intentionally choosing to assume care and control of a motor vehicle: see R. v. King, supra; R. v. McGrath, 2013 ONSC 4630, [2013] O.J. No. 3278.
[15] While it may be tempting to treat a claim of unconsciousness as a disavowal of intention, the law views the matter differently. The law firmly establishes that the commission of actus reus of the offence requires that any intentional act be voluntary. To be voluntary, the actor must be consciously aware of the action being performed. An automaton acts intentionally on a certain level, just without the necessary conscious awareness: see R. v. Stone; R. v. Parks; and R. v. Daviault, supra. A majority of the Supreme Court held that a person who purports to have acted in a state akin to automatism bears the burden of proving that assertion on a balance of probabilities: see R. v. Stone, supra; Daviault, supra. Ordinarily, to satisfy that burden, the defence will need to marshal expert evidence: Stone, supra, at para 192.
[16] A claim of extreme intoxication is akin to a claim of automatism and can be advanced by an accused to challenge the Crown's effort to prove the voluntariness of the accused's conduct. As with other claims of automatism, a claim of extreme intoxication requires proof of a degree of impairment that renders the accused in a state akin to automatism. This defence is available whether the intoxication is the by-product of intentional or unintentional consumption [what is often and regrettably referred to as involuntary consumption] of alcohol. As with other automatism defences, the burden rests on the accused to prove this state of impairment on a balance of probabilities: see R. v. Daviault, supra; R. v. McGrath, supra.
[17] I have thus far reviewed the mens rea for impaired driving, reviewed the reasoning of the King decision, considered how voluntariness is a component of the actus reus, and considered how a state of automatism negates the voluntariness of an otherwise unlawful act. I will now turn to the Crown's assertion that Sitarz was wrongly decided.
[18] As with Ms. Morris' case, Mr. Sitarz claimed to have intended to consume only a small amount of alcohol. He got up from his seat at the bar and briefly left his drink unattended. Though recalling the consumption of a limited number of drinks, he lost memory of the remainder of the evening. Ultimately, he drove his car, was arrested, and provided breath samples that established his BAC was over the legal limit. He claimed to not have voluntarily consumed the alcohol necessary to put him over the legal limit. He relied upon R. v. King, supra, in his defence. He was acquitted at trial. The trial judge found that it was plausible that Mr. Sitarz unwittingly ingested a drug and thereby became cognitively unaware of his alcohol consumption. The trial judge did not require the defence to establish this plausibility on a balance of probabilities, but instead acquitted the accused because the Crown had failed to disprove this supposed plausibility beyond a reasonable doubt. The Crown appealed. The summary conviction appeal court rejected the Crown's contention that the defence had raised a defence of non-insane automatism. The appeal court noted that the defence labeled the issue as one of "involuntary intoxication" and relied upon R. v. King, supra, as did the Crown. Accordingly, the appeal court did not find that the trial judge applied the wrong burden of proof, nor did the court conclude that the trial judge engaged in impermissible speculation.
[19] In my view, the Sitarz decision was wrongly decided. In coming to this conclusion, it bears emphasis that the trial judge in Sitarz found it plausible that Mr. Sitarz consumed alcohol while "cognitively unaware" that he was doing so. In short, the trial judge considered it plausible that Mr. Sitarz acted within a state of impaired consciousness. The trial judge found it plausible that this state of impaired consciousness was the by-product of the unwitting consumption of a drug. The Supreme Court has definitively declared that claims such as this, where the accused claims to have committed the unlawful acts [in this case the consumption of alcohol and the subsequent driving while under the influence of that alcohol] while in a state of impaired consciousness, amount to claims that disavow the voluntariness of the conduct in question. The Supreme Court has further declared that the accused must point to affirmative evidence that establishes such claims on a balance of probabilities. With the greatest respect to the learned trial and appellate judges in Sitarz, it would appear that those courts conflated the actus reus and the mens rea of impaired driving, treating a claim of unconscious action as a claim of an absence of intention. Both levels of court seem to have failed to appreciate that King involves an accused with a lack of knowledge when performing intentional actions in a conscious state, whereas Sitarz involved an accused who performed intentional actions [drinking to excess] that occurred in an unconscious state. While the principle of stare decisis requires me to follow the legal decisions of appellate courts, where different appellate courts conflict with each other, I am required to follow the highest court that rules on the issue. With regard to the issue at hand, the Supreme Court of Canada's rulings on the issue clearly supersede those of any summary conviction appeal court. In my view, the court in Sitarz ought to have placed the burden on the accused to establish his involuntary conduct on a balance of probabilities. Sitarz, in my view, is therefore clearly wrong, misapplies King, and is in conflict with binding Supreme Court jurisprudence.
[20] Ms. Morris has acknowledged the accuracy of the breath readings. She asserts that the alcohol consumed while her consciousness was not impaired could not have given rise to her ultimate blood alcohol content. She surmises that she must have been drugged. Either explicitly or implicitly, she surmises that while in an unintentional state of impaired consciousness, she must have intentionally consumed more alcohol without being conscious of this consumption. She in effect asserts that she consumed alcohol while in a state of automatism that was brought on by her unwitting consumption of some unknown drug. She therefore bears the burden of establishing on a balance of probabilities that she was in a state akin to automatism when consuming the alcohol necessary to put her over the legal limit.
III. A REVIEW OF THE EVIDENCE AND FINDINGS OF FACT
A. THE FACTS REVEALED BY POLICE INVESTIGATION
[21] The Crown called two witnesses, Constable Jeremy Snyder and Constable Blane Arsenault. The defence has effectively conceded the evidence of these two officers. Having listened to their evidence, I find that the officers were credible and reliable, and I accept their evidence.
[22] Snyder was the arresting officer, who witnessed Ms. Morris driving, witnessed her obvious signs of impairment, and consequently arrested her and compelled her to provide breath samples at the detachment.
[23] Snyder initially came across Ms. Morris when investigating activities at the Super 8 Motel on Highway 24 in Cambridge. The hotel has a somewhat notorious reputation of attracting patrons involved in criminal activity, such as drugs, prostitution, and human trafficking. Ms. Morris' car caught Snyder's attention when it entered the parking lot via an improper route. The car entered the lot slowly, then mounted a substantial curb, then proceeded further into the lot along the south side of the motel. Snyder then decided to follow it. The car made a right turn at the back of the lot, accelerated quickly, and drove northwards along the backside of the motel. Snyder decided against following, deciding instead to drive around to the front side of the motel and cut it off as it came back toward the front of the lot on the north side of the motel. By the time Snyder got to the northeast corner of the lot (i.e. front corner), he could see Ms. Morris' car at the northwest corner of the lot (i.e. back corner). Just as he began to inch towards her car, she began to drive towards him. Ms. Morris tried to drive her car between a light pole and a bus shelter, in an apparent effort to exit onto Highway 24. Her car could not fit, though, so she backed up. Before she could get anywhere, Snyder blocked her car in and activated his emergency lights.
[24] When he approached her car, Snyder could see Ms. Morris behind the wheel and two male passengers in the car. Her window was partially opened when he approached. He asked her what she was doing. She appeared "out of it" – "spaced." She asked Snyder, "Is there a problem?". Snyder detected an obvious odour of alcohol the moment she started speaking. She enunciated each and every word slowly and with a slur. Also, her body tilted in whatever direction her head tilted.
[25] He asked her to get out of the car. As she exited, she stumbled. Snyder reached out to grab her so that she would not fall over. As she got out of the car, the car stalled. Snyder inferred that the car had a standard transmission and that she left it in gear as she exited.
[26] Snyder had extensive experience in dealing with people intoxicated by alcohol. He had done about 125-130 impaired driving arrests, some of which involved impairment by drugs. Having observed Ms. Morris, he formed the opinion that her ability to operate a motor vehicle was impaired by the effects of alcohol consumption. He saw nothing to indicate drug impairment. He arrested Ms. Morris for impaired driving at 1:43 a.m. and soon thereafter read to her a breath demand.
[27] Snyder arrived with Ms. Morris at the nearby South Division at 2:06 a.m. After booking and a consultation with duty counsel, Snyder turned Ms. Morris over to the breath technician, Cst. Arseneault. Ms. Morris provided her breath samples at 2:53 a.m. and 3:17 a.m. Her readings disclosed blood alcohol concentrations of 177 mg of alcohol in 100 ml of blood and 175 mg of alcohol in 100 ml of blood. The defence conceded the accuracy and admissibility of these breath readings.
[28] When not providing breath samples, Ms. Morris sat in an interview room. The Crown tendered video recordings of Ms. Morris' stay in that interview room. I have watched that video and conclude that Ms. Morris displayed rather obvious signs of impairment. At times, she moaned, giggled, and/or laughed for no apparent reason. She also burped intermittently. She also stumbled and appeared to lose her balance at times. When speaking with Snyder, her speech and facial expressions seemed inordinately deliberate, at times squinting, as if speaking was painful. Also, when Snyder spoke with her about the results of her breath readings, she stared at him with a fixed gaze, giving the impression of engaging in a concerted effort to remain focussed. When explaining her travels, she sometimes became muddled and confused; for example, by conflating the Travelodge with the Super8 Motel, before ultimately affirming that they were staying at the Super 8 Motel. At other points in her conversation with the police officer, she had trouble completing her thoughts when attempting to explain what she was doing that evening. She also squinted frequently, as if speaking itself caused discomfort. Even though she was able to provide her street name to the officer, she subsequently told him that she would need to look at her phone to provide him the name of her street. Suffice to say, given the odour of alcohol and given the breath readings, given the observations of Cst. Snyder, given Ms. Morris' own admission of alcohol consumption, and given my own observations of Ms. Morris on the interview room video, I conclude that the evidence easily established beyond a reasonable doubt that Ms. Morris' ability to operate her car was fairly significantly impaired by the consumption of alcohol.
[29] The detachment video footage also provides insight into Ms. Morris' subjective awareness of her drinking patterns and her own state of impairment. Ms. Morris reported to Cst. Snyder that she had been drinking beer at the Temple Bar, the $5 cheap ones. She also reported to the breath technician that she had been consuming rum that night but claimed that it was only two drinks. In addition, when Cst. Snyder observed to Ms. Morris that she seemed too drunk to even tell him her own name, she smiled in apparent acknowledgement. Moreover, when the breath technician asked her if she knew why she was under arrest, she told him, "Cause I consumed too much." In my view, Ms. Morris betrayed an awareness of her own impairment and an awareness that her impairment was the product of the consumption of alcohol.
[30] In addition to disclosing a subjective awareness of her alcohol consumption, the detachment videos disclose an awareness of some of her activities that evening and an awareness of other aspects of her life. She told police that she was coming from work at the Temple Bar. She also informed the police about her shift at a different place of employment prior to her shift at the Temple Bar and she told the breath technician that she had been waitressing for a about two years. In addition, she discussed where her parents resided. She also told the breath technician that she had been driving two regulars home at the time of her arrest. Also, when asked what she wanted to do with her life, Ms. Morris told the breath technician that she aspired to become a certified automotive technician. She also was able to relay her body weight, height, eye colour, and hair colour to the breath technician. While I could provide many additional examples, I conclude that Ms. Morris was oriented in time and place and demonstrated an awareness of what she had been doing that evening and what she was doing with her life in general.
[31] The evidence of the police and the detachment videos also revealed that Ms. Morris was able to make rational decisions and act on them. She was responsive to police direction. She went where she was told to go and provided answers that were most often responsive to police inquiries. She also indicated her understanding after the breath technician read to her the secondary police caution. Likewise, she indicated to the breath technician an understanding of the breath demand. She also demonstrated to the breath technician an understanding of the reason for her arrest. Soon thereafter, she reversed her original waiver of her right to consult counsel and asked to speak to a lawyer. Following the consultation with duty counsel, Ms. Morris confirmed that she had spoken with duty counsel and was satisfied with the advice given by that duty counsel. In addition, she easily complied with the breath technician's breath demands and provided two samples with relative ease.
[32] To sum up, while at the police detachment, Ms. Morris was aware of her surroundings, aware of the situation in which she found herself, and aware of the reason she found herself in that situation. She also followed directions, made rational decisions, and acted on those rational decisions, thus revealing herself to be capable of rational self-determination.
[33] While the police investigation revealed Ms. Morris to be impaired by the consumption of alcohol, it did not reveal any meaningful impairment of Ms. Morris' consciousness.
IV. THE EVIDENCE OF MS. MORRIS
[34] Ms. Morris testified that she had been working at Temple Bar prior to her arrest. She testified that she consumed two draft beers with two of her regular customers at the conclusion of her shift. She testified that she also bought a beer for each of those customers. These beers were on special, five dollars a piece for 14-ounce pints. She tendered a receipt for the purchase of those four beers.
[35] Ms. Morris further testified that she and her two customers made their way over to Beertown after they finished their drinks at the Temple bar. She testified that she ordered herself a pint of beer and asked for her bill. Ms. Morris further testified that she did not feel impaired by the beer she ordered and consumed. Indeed, she is not even sure if she finished her Creemore. According to Ms. Morris, she does not recall what transpired after she ordered the Creemore. On her evidence, she possesses no further memory of her activities until awaking the next day at 9:40 a.m. with her coat still on. She further testified that she discovered her keys still in the outer door lock while rushing out the door for a 10 a.m. shift at her other job. Her car was missing and documents from her arrest lay in her purse.
[36] Ms. Morris' counsel procured a receipt from Beertown. The parties stipulated that this receipt was Ms. Morris' bill from Beertown. The bill disclosed the purchase of one Creemore draught [the drink Ms. Morris purports to have ordered], one Rolling Rock beer, 4 Gin-well, and 1 dbl Gin-well. Ms. Morris further testified that one of her companions often drank gin when consuming drinks at the Temple Bar. For her part, she indicated that she kept away from gin and tequila, having had bad experiences with both gin and tequila when in high school. Ms. Morris further testified that she consumed alcohol about four to five days per week around the time of her arrest. While she had been drunk before and suffered some minor memory lapses, she never experienced any bouts of amnesia as significant as the one that darkened the night of her arrest. She deduces from her amnesia, that she must have been drugged.
[37] Still photos from Beertown video surveillance show Ms. Morris with her head down on the bar countertop at one point. At another point, she appears to have stumbled and fallen to the floor. Ultimately, a snapshot shows Ms. Morris departing the bar under her own power.
[38] Ms. Morris asserted that she did not voluntarily drink the other drinks on her bill. Given her purported amnesia, I do not think she is in a position to make such an assertion. Instead, I infer from her declaration that she intended to convey that she had no prior intention of consuming those other drinks on her bill – particularly the gin, a beverage to which she had an aversion. I further infer that she was attempting to convey a propensity, namely a disinclination, to consume gin. I also conclude that Ms. Morris is, at best, deducing a lack of capacity to act with volition – that is, an impaired state of consciousness that rendered her capable of committing intentional acts but without consciousness of the commission of those acts. Furthermore, I conclude that Ms. Morris is conflating amnesia with impaired consciousness. Her absence of a memory does not necessarily establish that she lacked full contemporaneous consciousness of events she now forgets. Lastly, I conclude that, assuming her claim of amnesia to be credible, Ms. Morris must necessarily be speculating about her lack of capacity. If she truly has amnesia, she has no way of knowing whether, for one reason or another, she changed her prior intentions and consumed gin beverages to which she previously had an aversion. Moreover, she has no way of knowing whether she changed her prior intentions to leave after her third beer and instead consumed two rum drinks. She only knows what she previously intended.
[39] With regard to Ms. Morris' claim to amnesia, I do not find it credible. True, Ms. Morris was clearly impaired; about that there can be no rational dispute. However, I saw nothing in her presentation that would cause me to infer she was in a state of extreme intoxication. Admittedly, this was not a case of mere impairment to a slight degree. However, this was not a case in which Ms. Morris revealed herself to be drifting in and out of consciousness, to be experiencing a contemporaneous lack of awareness of her recent activities, current circumstances or current surroundings, to be incapable of engaging in rational communication with the police, to be incapable of following police directions, or to be incapable of making rational choices in her own self interest. Indeed, in the breath room, Ms. Morris engaged in respectful, responsive, and coherent interaction with the breath technician. I simply find it hard to believe that the woman I saw on video at the detachment was later unable to recall what transpired at the detachment. I therefore reject her claim of amnesia.
[40] With regard to Ms. Morris' claim that she had been drugged thereby rendering her conduct involuntary, I find this claim to be a disingenuous explanation dressed up as an act of speculation. Other than Ms. Morris' purported amnesia, there is no evidentiary foundation for this claim. The arresting officer, who has experience in dealing with drug impaired arrests, saw no indication of drug impairment. Nothing in Ms. Morris' presentation on the video allows me, a lay person, to conclude her presentation was the product of anything other than alcohol consumption. I do not have evidence of a forensic psychiatrist, forensic neuro-psychiatrist, or forensic toxicologist that would suggest that, what to my eyes is the behaviour of a drunk person, is in fact behaviour consistent with the behaviour of a person under the influence of a consciousness-suppressing drug. On the evidence that the parties chose to put before me, I conclude I would have to speculate as to whether or not Ms. Morris was under the influence of a consciousness-suppressing drug. On the evidence placed before me, there exists only one available reasonable inference: Ms. Morris was drunk, but not suffering from extreme intoxication sufficient to place her in an impaired state of consciousness akin to automatism. Not only is there insufficient evidence to support a claim of a drug or alcohol induced incapacity, there is ample evidence capable of supporting the conclusion that Ms. Morris' conscious awareness was intact at all material times. Having watched video of Ms. Morris at the detachment, I conclude beyond a reasonable doubt that she demonstrated a contemporaneous awareness of virtually all of her activities that evening, including her driving activities. I also find that she purported to demonstrate on video a contemporaneous awareness of her drinking activities, which included admissions of drinking beer and rum – albeit inconsistent admissions. I also find that she explicitly expressed a subjective awareness that she had consumed too much alcohol. She also smiled in a tacit acknowledgement of the arresting officer's description of her state of intoxication. Having considered this evidence, plus the lack of an evidentiary foundation for Ms. Morris' claims of involuntary conduct, and the lack of credibility of such claims, I conclude beyond a reasonable doubt that Ms. Morris subjectively knew that she consumed the alcohol that lead to her unlawful BAC, that she knew her consumption made her impaired, and that she knew she was driving when she drove.
V. CONCLUSION
[41] In conclusion, Ms. Morris has failed to satisfy me on a balance of probabilities that she was unwittingly drugged, that she was thereby rendered into a state of impaired consciousness, during which she consumed alcohol without conscious awareness and then subsequently drove her car while in that drug-induced state of impaired consciousness. I do not find her assertions credible. I also find that in making her uncredible assertions, she invites the court to engage in conjecture and come to conclusions that run counter to the overwhelming weight of the evidence.
[42] On the whole of the evidence, I conclude that Ms. Morris has failed to rebut the presumption that she intended the natural consequences of her actions. Instead, the evidence leads me to infer beyond a reasonable doubt that Ms. Morris intentionally consumed the alcohol necessary to give rise to her unlawful BAC. I also infer beyond a reasonable doubt that she knew her consumption of alcohol had in fact resulted in her impairment. I likewise infer that her operation of the motor vehicle was intentional. Therefore, I conclude beyond a reasonable doubt that the Crown has established the mens rea of the offences. With regard to the actus reus, I infer beyond a reasonable doubt that Ms. Morris' unlawful actions [the consumption of alcohol necessary to reach impairment and the unlawful BAC, and the subsequent operation of her car] were voluntary, in the sense that they were the product of an operating mind. In light of the uncontested evidence of her impairment and unlawful BAC, and in light of the defence concession that the Crown has proven all other aspects of the actus reus of the offence, I also conclude beyond a reasonable doubt that Ms. Morris' BAC was over the legal limit and her ability to operate a motor vehicle was impaired by the consumption of alcohol. I therefore conclude that Ms. Morris is guilty of the offences before the court. I will accordingly register a conviction on a count of the Crown's choosing and register a conditional stay on the other count.
Released: December 11, 2020
Signed: Justice C. A. Parry
Footnotes
[1] In justifying this burden of proof, the majority decision noted that only the accused could provide direct evidence about their absence of consciousness and that only through the additional assistance of expert opinion evidence about the accused's impaired consciousness (evidence likely only available with the accused's participation and cooperation) could a trier of fact be equipped to make any inferences about the existence of an impaired state of consciousness.
[2] I would add that the summary conviction appeal case of R. v. Sutton, [2013] O.J. No. 6166 (SCJ) dealt with essentially the same issue and a very similar fact scenario. Like Sitarz, I conclude Sutton was wrongly decided. Neither Sutton nor Sitarz have received much reported judicial consideration in the seven years since their release. Neither were appealed. Sitarz was followed in one OJC trial decision. Sutton has not been followed in any reported decision.