Ontario Court of Justice

Citation: R. v. White, 2022 ONCJ 600

Date: 2022 04 06

Court File No.: London 20-10448

Between:

HER MAJESTY THE QUEEN

— AND —

THOMAS JOHN WHITE

Before: Justice M. B. Carnegie

Heard on: February 17, 2022

Reasons for Judgment released on: April 6, 2022

Counsel: Heron, C., counsel for the Crown DeMelo, C., counsel for the defendant Thomas White

Trial Judgment

CARNEGIE J: (orally)

[1] The defendant is charged that on or about November 10^th, 2020, in the City of London, he did operate a conveyance while his ability to operate it was impaired to any degree by alcohol, or a drug, or both, contrary to s. 320.14(1)(a) of the Criminal Code. Specifically, the evidence before the court outlined that the defendant was impaired by a drug.

[2] Unusually, the defendant conceded the actus reus of the offence alleged. He acknowledged that he was operating a conveyance on November 10, 2020 while his ability to do so was impaired by a drug. What is at issue is whether the Crown has proven the mens rea of this offence – that he was voluntarily impaired at the material time.

[3] The Crown’s case was admitted, globally, as an agreed statement of facts. It was filed as Exhibit 1 – namely, a case synopsis, four written police statements, three written civilian statements, a toxicology report from the Centre of Forensic Sciences (CFS) and a Drug Recognition Evaluator’s (DRE) report. Complementing his admission of the Crown’s filed materials, the defendant also admitted date, time, jurisdiction, identity as well as the filed toxicology and DRE reports.

[4] The defendant alone testified for the defence. His evidence included the filing of a Patient Medical Record from AIM Drug Mart, dated November 18, 2020 (Exhibit 2) and a Ministry of Transportation Medical Report from Dr. Jonathon Griffin, his family physician, dated February 3, 2021 (Exhibit 3). That is the sum total of the evidence before me.

[5] For the reasons that follow, I have not been left with a reasonable doubt respecting the mens rea for impaired operation of a conveyance. The defendant has not rebutted the presumption of voluntary impairment. Therefore, on this evidentiary record, I have been convinced beyond a reasonable doubt of the defendant’s guilt.

Factual Background

The first collision

[6] On Tuesday, November 10, 2020, at approximately 12:42pm, Zoey Dassios observed the defendant operating his blue Hyundai Elantra motor vehicle at the intersection of Western Road and Richmond Street in London, Ontario. He was the lone occupant of this conveyance. Ms. Dassios’ vehicle was positioned in the left turning lane of Western Road. In front of her, the defendant’s vehicle was also apparently intending to turn left onto Richmond Street, however his vehicle was stationed beyond the left turning lane on Western Road and, instead, was positioned within the single opposite lane of travel blocking oncoming vehicles. Ms. Dassios allowed the defendant to re-enter her turning lane in front of her and the defendant then started speeding and driving erratically. Now on Richmond Street proceeding north, she observed the defendant’s vehicle drift beyond its lane on both the right and left side and repeatedly hitting the brakes. She described the vehicle “speeding then hitting the breaks so it was constant[ly] jerking.” Ms. Dassios followed the defendant to the lights at Richmond Street and Fanshawe Park Road. She observed the defendant continue to jerk on and off his brakes until he collided with a pickup truck stopped at the light in front of him.

[7] Ms. Dassios exited her vehicle and passed on her contact information to the pickup truck driver. She was convinced by the exhibited driving that the defendant was drunk and told that to the pickup truck driver. She told him to call police. She then observed another male exit his vehicle asking for contact information because he had video recorded the event on his phone. He too expressed concern that the defendant was drunk. The defendant exited his vehicle and looked at the damage caused by the collision. She observed him pull out his wallet at one point but he did not retrieve his licence – he just was looking at this wallet. Eventually, the pickup truck driver left the intersection. The defendant did not immediately do so as well. Ms. Dassios, still behind the defendant, believed from her observations that the defendant could not now turn on his vehicle. Other cars began to honk at him. The defendant then was able to start the vehicle and the windshield wipers were turned on. Ms. Dassios noted that “it was like he didn’t know how to work the car”. The defendant then started speeding again now through the intersection northbound towards the town of Arva, a small municipality north of London. She continue to follow him observing continual drifting within the vehicle’s lane. Shortly thereafter, when she arrived home, she called police because “it wasn’t safe” and provided them with a picture she took of the defendant’s vehicle and a description of him. She was firm in her believe that the defendant was “totally out of it. He seemed completely out of it.”

The in-between interval

[8] Later on, Steven Cahill was operating his London Transit Commission bus when he called 911 to report erratic driving on the part of the defendant. He expressed concern that the driver may be impaired or going through medical distress. He first observed the defendant’s vehicle southbound on Jacksway where it appeared to have gone off the shoulder of the road. His first impression was that the driver had road rage and was attempting to pass a vehicle on the right-hand side. He then observed the defendant turn off Richmond Street onto Western Road southbound and proceed to swerve from lane to lane. When Mr. Cahill’s bus got closer, he observed the defendant’s vehicle’s windshield wipers activated at full speed (it was clear and not raining) and his right-hand turn signal continued to be on from the first time he was seen.

[9] Mr. Cahill’s bus stopped beside the defendant’s vehicle at the Lambton Drive intersection when he was then able to observed that the defendant was alone in the vehicle. He appeared to be either tired or intoxicated and was leaning over the steering wheel. When the light went green the bus proceeded but the defendant did not. Mr. Cahill then observed the defendant start late and then pass his bus “real[ly] fast”. They both met up again and stopped at the Sarnia Road intersection having now driven through the campus of Western University. He again observed the defendant and described him as “what I feel to be intoxicated”, still leaning over the steering wheel. Mr. Cahill noticed damage on the defendant’s vehicle. In particular, the front right wheel had damage as well as there being extensive damage to the front right corner of the vehicle. By this point the defendant had been twice within six inches of his bus but they had not collided. Once again, the defendant did not leave with traffic when the light changed but later “floored it” and again passed Mr. Cahill’s bus still southbound on Western Road. He continued to start from the intersection at a high rate of speed but then slowed down thereafter.

[10] Mr. Cahill continued to follow the defendant’s vehicle southbound as Western Road became Wharncliffe Road. He described that the defendant’s vehicle was “all over the road”. He continued to follow the defendant’s vehicle until the Wharncliffe Road and Riverside Drive intersection. They were again stopped beside each other. Mr. Cahill paid close attention to the defendant’s demeanor and believed that he observed signs of some kind of distress. Mr. Cahill was concerned that the defendant may cause an accident. Mr. Cahill picked up a passenger at this intersection and observed the defendant proceed southbound on Wharncliffe Road and then proceed through a construction zone grazing a pylon. He then lost sight of him and proceeded southbound until he later stopped at Byron Avenue. At that point, he observed the defendant’s vehicle in the Robert Q travel centre parking lot with another vehicle that appeared to have been in an accident.

[11] Mr. Cahill maintained his observations of the defendant, now outside his blue Hyundai Elantra motor vehicle. He noticed the defendant fumbling around trying to get information for an obviously frustrated driver of a Toyota Rav4, who had apparently been hit. He observed the defendant fall against his vehicle and use it to stabilize himself. At this point, Mr. Cahill passed by the defendant’s location. It was approximately 1:12pm.

The second collision

[12] At approximately 1:04pm, the defendant was involved in a second motor vehicle collision, this time involving Kyle McFadden’s grey Toyota Rav4 on Wharncliffe Road South in London, Ontario. Mr. McFadden was on Wharncliffe Road South in the outer of two lanes and was looking to enter the curbside lane and turn right onto Byron Avenue to allow entry into a Tim Horton’s restaurant. He was stopped at a red light and was waiting for the curbside lane to clear. He then got rear ended by the defendant. It was not a “hard impact”, but it was “a definite jolt”. Immediately afterwards, the defendant continued to rev his engine for at least 15 seconds. After that ended, Mr. McFadden waved the defendant over to the adjacent Robert Q parking lot off Wharncliffe Road South. While parked there, they both exited their vehicles and examined the damage. Mr. McFadden requested the defendant’s driving paperwork so that he could copy it. After they both returned to their respective vehicles, the defendant later returned empty handed. Asked for his paperwork again, the defendant said: “oh let me go get them”. The defendant came back a second time emptied handed. He was asked, again, and this was repeated 3 or 4 more times. Mr. McFadden had noted that the defendant was not walking straight. He appeared drowsy and he described his thought process as it “wasn’t there”. At this point, Mr. McFadden decided to call 911 at 1:23pm. Mr. McFadden described the defendant, whom he did not know, as seeming to be “out of it”. He was walking around and then returned to his vehicle and fell asleep. The Mr. McFadden called 911 again to report this change. Police officers eventually arrived.

[13] London police responded to the Robert Q parking lot at 3:04pm. The defendant was seated in the driver seat of his vehicle which was parked crooked in a parking spot. PC Campbell asked the defendant for his driver’s licence, ownership and proof of insurance. The defendant exited the driver’s seat but then stumbled back inside the car. He began to ask Mr. McFadden if he still had his driver’s licence. Mr. McFadden replied that he had never received it. He was asked again for the documentation and the defendant started looking through his wallet. He flipped by his driver’s licence, which was visible to the officer, multiple times. His pupils were noted to be very dilated, the size of a needle point. PC Campbell asked if the defendant was on any prescribed medication; he said: “yes, Zopiclone 5mg for chronic pain” and that he last took it at 1am that day.[^1]

[14] At 3:13pm, PC Campbell formed the opinion that the defendant was impaired by drug and arrested the defendant. A DRE demand was made. The defendant was secured inside the officer’s cruiser. A search of the defendant’s vehicle yielded multiple empty pill bottles in the centre console, three of which had labels for Teva-Oxycocet 5mg, Zopiclone 5mg, and PMS-Clonazepam R 0.5mg. Damage to the defendant’s vehicle was noted, including: extensive damage to the front right bumper, right front hub cap damage, fresh scratches to the driver side door and the driver’s side mirror was folded in and had a white mark on it. Mr. McFadden’s Toyota Rav4 had noted damage to the driver side rear bumper. At 3:38pm, the defendant was observed to be asleep in the back seat of PC Campbell’s cruiser. He was transported back to the London Police Service detachment where, at 4pm, a search of his person yielded 1 tablet of Hydromorph Contin 6 mg which was located in the small right-side pocket of his jeans. At the detachment the defendant was presented to PC Southwell, a qualified Drug Recognition Evaluator.

[15] At 4:09pm, PC Southwell commenced his observations and dealings with the defendant at the London Police Service detachment. He observed the defendant walking to cells in a slow deliberate but unsteady manner. His pupils were constricted, he had droopy eyelids, his eyes were noted as watery and bloodshot and his voice was low and ‘raspy’ and his hands and feet were restless while he was standing stationary. The defendant advised, upon inquiry, that he suffers from chronic arthritic pain and takes prescription medication, including: Zopiclone for sleeping; Hydromorphone 6 mg, and Oxycocet for pain. He advised that he takes his medications after dinner and before bedtime as prescribed by his physician, but had not taken any medications that day. His Drug Recognition Evaluation was conducted between 4:47 and 5:34pm yielding a variety of relevant findings including multiple balance concerns, a lack of coordination, confusion and unresponsive answers to queries, below average pupil dilation, an inability to stay on requested task, and he fell asleep intermittently at various points throughout the evaluation. As a result, PC Southwell formed the opinion that the defendant’s ability to operate a conveyance was impaired by drug, and in particular, the impairment was due to a “narcotic analgesic”.[^2] A demand for a bodily fluid sample was made and a urine sample was provided for subsequent toxicological analysis.

[16] Police received a Toxicology Report from the CFS on February 23, 2021. Toxicologist Inger Bugyra reported that the defendant’s urine sample detected Hydromorphone, Zopiclone and Clonaxepam, all acknowledged prescribed medications for the defendant. The report made plain that a urine sample cannot determine the dosage of detected drugs, how or when they were administered, or whether the subject was impaired at the material time. As a result, only a general opinion regarding the effects of the detected drugs could be provided:

(1) Hydromorphone was described as a prescribed drug for the treatment of moderate pain. Its effects include drowsiness, dizziness, lethargy, in-coordination, weakness, and confusion. Its effect depends on the concentration within the subject’s blood and their tolerance to the drug;

(2) Zopiclone is a drug prescribed for the treatment of insomnia. It is a central nervous system depressant. At therapeutic doses it causes sedation. If it is taken before driving it may adversely affect alertness, reaction time, tracking, and coordination. Other effects include dizziness and memory impairment. If in overdose, the sedation can be significant and result in prolonged sleep, confusion, and coma;

(3) Clonazepam is a drug in the benzodiazepine class of central nervous system depressants and is prescribed for the treatment of seizure disorders. Its effects, which depend on the dosage and tolerance of the subject, include varying degrees of sedation and impaired coordination.

The defendant’s evidence

[17] At the time of these events, Mr. White was 74 years old. He is a retired military officer who later managed catering firms for a period thereafter. He has been driving for 55 years. He was living in the north end of London, off Sarnia and Wonderland Roads. On the morning of November 20, 2020, he was preparing to pick up his daughter and grand-daughter to attend upon his late wife’s gravesite in celebration of her birthday. He was planning on leaving his home around 11am but could not specifically recall his time of departure other than to say it was before noon. On this date, he recalls being a bit anxious and had been suffering from cold symptoms since the day before. That morning, he elected to take an over-the-counter cold and flu suppressant, NeoCitran, which he mixed in a cup of tea with lemon, garlic and honey. He had never used this product before and did not read the packets description.[^3] Despite his anxiety, he did not take associated or other prescribed medication that morning before leaving his residence.

[18] For 14 years, Mr. White has been taking a variety of pain medications to address his chronic arthritic pain. According to his Medical Report (Exhibit 3), his doctor essentially verified an arthritis diagnosis. He identified a number of medications he was taking at the time with his recollection of when they had been last consumed, including (as evident on his Patient Medical Record, Exhibit 2):

(1) Teva-Oxycocet (5 mg) – for arthritic chronic pain, one tablet taken 5 times daily (but, he was not taking this medication that much and, generally, 3 times a day or as needed);

(2) Hydromorph Contin (6mg) – for arthritic chronic pain, one capsule taken every 6 hours;

(3) Docusate Sodium (100mg) – bowel disorder, two capsules one a day, last taken the night before;

(4) Teva-Tamsulosin CR (0.4mg) – prostrate problems, two tablets once a day at bedtime, taken the night before;

(5) Senokot (8.6mg) – bowl disorder, two tablets daily at bedtime;

(6) Apo-Zopiclone (5 mg) – to assist with sleeping, two tablets at bedtime, last taken the night before; and

(7) PMS-Clonazepam R (0.5mg) – anti-anxiety, one tablet twice daily, taken usually in the afternoon and last consumed the afternoon of November 9^th.

Particularly, the defendant claimed he was feeling good on the morning of November 10^th and, as a result, had not taken his pain medication that morning. This, he suggested, meant that he had not taken his pain medication on November 10^th.

[19] He left his home to pick up his daughter and grand-daughter in the south end of London, near Bryon village, but never got there. He recalls feeling “pretty good and comfortable” as he left his home and then recalls very little afterwards until he collided with Mr. McFadden’s vehicle on Wharncliffe Road South. He described the collision as having “tapped” the vehicle in front of him as he attempted to pass the vehicle which then entered his lane in front of him. He applied his brakes but still “tapped” the other vehicle. He caused no damage, “not even a scratch”, he professed. But, Mr. McFadden wanted to stop, examine and report the incident to police despite Mr. White’s awareness that you need not report a collision if there is less than $2500 damage. The defendant went along with Mr. McFadden’s wish and awaited the arrival of police – which seemed to him to have taken “like an hour”. He again recalls looking over Mr. McFadden’s vehicle and they agreed that there was nothing there by way of damage. When police arrived, the male officer spoke with Mr. McFadden and he recalls them “giggling and talking” while he waited at his vehicle. After 10 minutes of there discussions, Mr. White recalled being asked for his driver’s licence. He searched for it 2 or 3 times, it was usually in a small plastic pouch at the front of his wallet, but it was not there. After that he recalled being arrested for impaired driving.

[20] After the defendant was processed and released, he attended upon his doctor’s office and his pharmacy to collect Exhibits 2 and 3. He advises that had never been cautioned by either his doctor or pharmacist not to operate a motor vehicle will taking his medication, nor had his prescription bottles contained any warnings.[^4] He had been with this doctor for 3 years and the pharmacy since 2008.

[21] To be clear, Mr. White recalled nothing of the Richmond Street and Fanshawe Park Road collision. The location of this collision was northeast of his home, in the opposite direction of his intended travel to pick up his daughter. He also provided no evidence on the intervening observed erratic driving from bus driver Cahill.

[22] In cross-examination, the defendant clarified that he woke up on November 10^th around 8-9am. While he was not certain when he went to bed the evening prior, he was prepared to adopt his statement to police from November 10^th that he took his sleeping medication at 1am on November 10^th before bed. He conceded that he should not be taking sleeping medication before operating a motor vehicle. While not mentioned in-chief, he explained that the empty pill bottles found in his vehicle were not unusual. They were just left there. He would make sure he had his day’s supply of pain medication with him if he was leaving his home and used empty pill bottles for that purpose. Specifically, he had no recollection of having the one tablet of Hydromorph Contin on him (in his pants pocket, not in a pill bottle) upon arrest. When the defendant decided to take the NeoCitran for his cold symptoms, he acknowledged not reading the label nor considering what effect it would have vis-à-vis his other medications. It was an over-the-counter product so he never thought it would have any adverse or impairing effect, alone or in combination with his pharmaceutical regime.

[23] Mr. White’s last recollection of driving before the Wharncliffe Road collision was pulling from his home onto Sarnia Road, then onto Wharncliffe Road towards Commissioners Road – all in the intended southerly direction. How he reversed direction northbound is unknown to him. He was not feeling drowsy when he left his home, but does recall feeling the effects of his head cold. Finally, he confirmed that Mr. McFadden’s vehicle was not stationary when it was struck – it had moved into his lane while he was attempting to pass it. That is his recollection, but he acknowledged that he could be wrong about that based upon the other statements read in at trial.

Legal Framework

[24] In assessing the evidence, I instruct myself on several key elements of our criminal law. Mr. White is presumed innocent. The Crown bears the burden of displacing that presumption, and can only do so where the level of proof satisfies me that it is beyond a reasonable doubt that he committed the offence he is charged with. The burden of proof never shifts. It remains with the Crown. Proof beyond a reasonable doubt is inextricably linked with the presumption of innocence that is expressly enumerated in the Canadian Charter of Rights and Freedoms in section 11(d). A reasonable doubt is one based on reason and common sense. A reasonable doubt can be logically derived from the evidence or the absence of evidence. A reasonable doubt is not an imaginary or frivolous doubt and the Crown does not need to prove the offence to an absolute certainty since that would be an unrealistically high standard. Finally, the beyond a reasonable doubt standard does not apply to individual pieces of evidence, but instead is considered once the evidence is viewed as a whole.[^5] See:

[25] Central to my determination is an assessment of credibility and reliability respecting the presented witness’ evidence. Given the admitted Crown case, naturally assessing the evidence of Mr. White is central. How do I assess credibility and reliability? Our Supreme Court highlighted the difficulty of this task in R v Gagnon:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.[^6]

[26] Whether difficult or not, articulating the Court’s reasoning process, particularly in the assessment of credibility and reliability is vital. As has been oft stated, I can believe all, some or none of a witness’ evidence. When looking at credibility, assessing a witness’ trustworthiness becomes a very case specific task. Can I be satisfied that Mr. White was genuinely being honest? I must also turn my attention to the important issue of reliability. When assessing reliability, I must assess the witness’ ability to accurately observe, recall and recount events. As a general rule, a witness who lacks credibility cannot give reliable evidence. An unreliable witness, however, may still be credible.

[27] Since Mr. White testified, I must apply the principles of R v W.(D.) when determining whether his guilt has been established beyond a reasonable doubt. By doing so, if I affirmatively believe Mr. White’s evidence raising involuntary intoxication, I must acquit him. Even if I do not believe him entirely, I must nonetheless ask myself whether his evidence leaves me with a reasonable doubt about voluntary intoxication. If so, I must acquit him. I need not entertain the third prong of W.(D.) as the Crown’s case, and by implication the remaining elements of impaired operation, have been admitted. If the presumption of voluntary intoxication has not been rebutted, Mr. White must be convicted.

[28] The actus reus for impaired operation is the act of operating a conveyance when the voluntary consumption of alcohol or a drug has impaired the driver’s ability to operate the conveyance. The mens rea is the intent to operate a conveyance after voluntarily consuming alcohol or a drug.[^7] Impaired operation is a general intent offence.[^8] A presumption of impairment arises when the impairment was voluntarily caused (i.e. he voluntarily ingested medication which caused impairment prior to operating a conveyance). This presumption can be rebutted where an accused can show that the impairment resulted from an unknown or unforeseeable consequence of his voluntary act of consuming the substance.

[29] Section 320.31(6) of the Code provides that where a urine sample from the defendant demonstrates that he has a drug in his body of a type identified by the Drug Recognition Evaluator as responsible for impairing his ability to operate a conveyance, as here, in the absence of evidence to the contrary, it is presumed that this drug was not only present in the defendant’s body at the time of operation but, on proof of his impairment, was the cause of that impairment. As noted, the CFS findings from Mr. White’s urine sample noted Hydromorphone, Zopiclone and Clonaxepam. Absent evidence to the contrary, these drugs are classified within s. 320.28(5) as a “narcotic analgesic” and, by operation of s. 320.31(6), are deemed the cause of his impairment on the subject date, November 10, 2020.

Involuntary intoxication

[30] Any degree of impairment ranging from slight to great is sufficient to constitute impaired operation. As the defendant has conceded the actus reus of impaired operation of a conveyance, I will focus my assessment on the mental element for impaired operation. Was the resulting impairment induced by voluntary, or self-induced, intoxication which resulted in an impairment, however slight, of the accused’s ability to operate a conveyance? Self-induced intoxication requires a voluntary ingestion of alcohol or a drug for the purpose of becoming intoxicated or, recklessly doing so where impairment could result and nevertheless proceeding. As outlined by our Supreme Court in R v King, where, as here, the Crown has proven that an accused’s ability to operate a motor vehicle has been impaired by alcohol or a drug, the defence may rebut the presumption that the accused’s condition was voluntarily induced.[^9] Ritchie J., in concurring reasons commented succinctly:

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 [now s. 320.14] 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.

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.

The existence of a rebuttable presumption that a man intends the natural consequences of his own conduct is a part of our law, but its application to any particular situation involves a consideration of what consequences a man might be reasonably expected to foresee under the circumstances.[^10]

[31] Raising involuntary intoxication is not a defence per se. The evidentiary burden does not shift. Here, the defendant has claimed involuntary intoxication in order to raise a doubt. The burden remains on the Crown to prove, beyond a reasonable doubt, that the defendant’s act was voluntary.

[32] The Supreme Court in King observed the following respecting rebutting the presumption of voluntary consumption in the context of impairment by prescribed medication:

It seems to me that it can be taken as a mater of “common experience” that the consumption of alcohol may produce intoxication and, therefore, “impairment” in the sense in which that word is used in s. 223 [now s. 320.14], and I think it is also to be similarly taken to be known that the use of narcotics may have the same effect, but if it appears that the impairment was produced as a result of using a drug in the form of medicine on a doctor’s order or recommendation and that its effect was unknown to the patient, then the presumption is, in my view, rebutted.

… a man who becomes impaired as the result of taking a drug on medical advice without knowing its effect cannot escape liability if he became aware of his impaired condition before he started to drive his car just as a man who did not appreciate his impaired condition when he started to drive cannot escape liability on the ground that his lack of appreciation was brought about by voluntary consumption of liquor or drug. The defence in the present case was that the respondent became impaired through no act of his own will and could not reasonably be expected to have known that his ability was impaired or might thereafter become impaired when he undertook to drive and drove his motor vehicle.[^11]

[33] Our Court of Appeal in R v McDowell considered the reasoning in King and commented: “The necessary fault is to be found in the consumption of alcohol and drugs under circumstances in which he knew or ought to have known that his ability might thereby be impaired.”[^12] There, a police officer before his shift mixed pain medication with alcohol; not inconsistent with prior experience. However, on this occasion he attended work and, during his shift, entered into what the defence expert called a “toxic confusional state” resulting in additional on duty drinking and, ultimately, in a high-speed chase and collision in his cruiser with other police officers. While the trial judge relied upon whether the accused had acted recklessly, finding that he had not, the Court of Appeal framed the appropriate analysis differently: did the accused foresee or should he have foreseen that his pre-work consumption of medication and alcohol might impair his ability to drive a motor vehicle. They concluded that reckless conduct was not necessary. The accused should have foreseen that impairment might occur. His acquittal was substituted for a conviction.

[34] Paciocco J (as he then was) discussed involuntary intoxication and its mens rea implications in R v McGrath.[^13] Citing Kenkel J’s Impaired Driving in Canada (2012-13 Edition), he agreed that involuntary intoxication undermined the mental state required for impaired driving offences. The mens rea for impaired driving requires 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.”[^14] Paciocco J went on to observe that 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.”[^15] The court should expect “affirmative evidence that raises a reasonable doubt that [the defendant’s] intoxication by drug was voluntary, and about whether he realised he was impaired before choosing to drive.”[^16]

[35] In his text, Justice Kenkel further commented about the nature of the evidence often elicited to raise a reasonable doubt on voluntary impairment:

One common issue is these cases is the need for expert evidence. For example, in most cases it would not be sufficient to simply point to the accused’s evidence that he or she was exposed to fumes at work, or combined a cold medication with a small amount of alcohol and then submit to the court that the impaired driving observed must have resulted from some unexpected effect of the other substance. Without expert evidence to explain what effect, if any, the other substance would have on the ability of the accused to operate a motor vehicle, many of these defences are rejected as being mere speculation.[^17]

Clearly, as the common law demonstrates, an accused’s evidence alone can raise a reasonable doubt respecting voluntary impairment. The line between necessary affirmative evidence and speculation is central to my assessment of this narrative and whether it rises to rebut the presumption of voluntary impairment.

[36] When faced with a defendant impaired by prescribed medication, it is also important to acknowledge the limited circumstances allowing for an involuntary intoxication defence. Kenkel J in R v Abbasi-Rad made a plain and obvious point: “Even where a person follows a prescription precisely, if their ability to operate a motor vehicle is thereby impaired they must not drive during that time. There is no prescription or medicinal license exception to s. 253 [now s. 320.14] of the Criminal Code.”[^18] Citing this reasoning, MacLean J in R v Imrie extended it to long term medication users who have variously tolerated their medications:

…even where patients have come to tolerate their medications, they cannot ignore a situation when, due to a variety of factors, they become impaired by the drugs they are taking on a regular basis. Those who take medications must be vigilant in recognizing when their prescribed medications are impairing them. They cannot put other users of the road at risk, just because they believe that since their doctor prescribed them, they have been taking the medications for a long time and have felt fine before, that they can continue to drive and ignore the symptoms when their medications are impairing them on a particular day.[^19]

[37] Incorporating recklessness about a substances’ impairing effects on the ability to operate a conveyance is sufficient to establish mens rea. The Newfoundland Court of Appeal in R v Mavin made this clear:

By defining the mens rea as intent to become voluntarily intoxicated to include recklessness, the law is addressing situations where, although the intoxication may not have been intentional, a person persists in his or her consumption despite his or her awareness of the risk. In doing so the law is also casting the net of individual responsibility more tightly in impaired driving cases.[^20]

Citing Mavin, Romilly J in R v Pomeroy commented that this mens rea test, therefore, is “understood to cast a heavy responsibility upon individuals to be responsible for their drug and alcohol consumption, and avoid driving while impaired. By doing so, ‘the Code reflects the pressing social concern of the danger to the safety and security to innocent lives from the carnage and havoc on public roadways that impaired drivers present’.”[^21]

Other relevant involuntary impairment authorities

[38] In R v Rushton,[^22] Ilsley CJ, for the majority, assessed an appeal respecting a taxi driver’s impaired operation conviction. There, the accused was suffering from a cold or influenza and over the weekend consumed some hot rum and cold medicines purchased ‘over-the-counter’ at a drug store. His symptoms persisted into Monday when he ultimately was involved in a vehicle collision while operating his cab. On that day, he had consumed about a half bottle of Benylin in the forenoon along with a tablet of Emprazil.[^23] Expert evidence established that this quantity of Benylin, alongside the Emprazil tablet, consumed in a short period of time could have the effect of muscular incoordination and drowsiness – found to be the cause of his impairment. In affirming the accused’s conviction, and noting the availability of warnings on the product’s labels, the court commented:

I think the common experiences of life should have taught him not to drink the quantities of the mixture he did within the time he did without reading the instructions on the bottle or take the combination of drugs he did in such a short space of time. … I think he had reasonable grounds for believing he would or might become impaired and cannot be heard to say he did not intend to get in such a condition and so failed to discharge the burden of proof which lay upon him. Therefore, mens rea was present, the fault of his mind being that he drove a motor vehicle after he had voluntarily consumed a drug or drugs which he knew or at least had reasonable grounds for believing would or might cause him to become impaired.[^24]

[39] The defendant referenced a number of decisions supporting the simple necessity of a reasonable doubt which can be grounded exclusively on the accused’s evidence. In R v Domb,[^25] Pringle J faced an involuntary impairment claim from a transit driver observed to be operating his bus erratically and who had consumed a narcotic analgesic (fentanyl) as well as other prescribed medications (including clonazepam, for anxiety, a sleeping medication and a decongestant) for a variety of ailments. There, as generally here, the defendant testified that he had been taking medications under a doctor’s care for pain, insomnia, anxiety and depression with a mind to his capacity to drive while medicated. There was no indication that he had been abusing his medication or not following his prescriptions. He claimed to be still permitted to drive by the Ministry of Transportation and that there were never any “contra-indications” with the doctor or the pharmacist about the combination of his drugs. Hence, he had no reason to be aware that any problem would result.

[40] There, as here, a sample of his urine was analyzed by the CFS which identified only prescribed medications in his system – based upon the limitations of this testing procedure, these medications were merely “detected” without further information respecting their quantum or timing of ingestion. As noted in our CFS report, there a forensic toxicologist testified that a urine sample analysis could not relay the specific effects of impairment on the body, those effects being dependent upon personal tolerance. Unlike here, the medication packaging for the fentanyl and other medications used by the defendant was filed before the court – there were no caution labels respecting expected nervous system depressant effects such as drowsiness, lack of coordination, etc. Despite the defendant’s denial that he was impaired by drugs, offering a variety of physical and emotional explanations for his condition and the results of his DRE evaluation, the court found that he was impaired by the consumption of a drug, his medications, making out the actus reus. However, the court could not reject Mr. Domb’s evidence that he was taking his medications per his doctor’s orders, unaware that any ill effects may result respecting his driving. The court was left with a reasonable doubt respecting the mens rea, based upon involuntary impairment.

[41] In Domb, the absence of evidence respecting the cause of impairment led Pringle J to make the following observation which mirrors a concern present before me:

The evidence does not reveal why Mr. Domb’s ability to drive was impaired by his medications on that day as opposed to other days. On that day, it is unknown whether he took more than the prescribed dose or did something out of the ordinary to cause the drugs to react differently than they usually did. While it is possible to speculate about that, there is nothing grounded in the evidence that I have heard.[^26]

Having found that the Crown had proven the actus reus, the absence of evidence as to the cause of this impairment, running contrary to accepted years of inconsistent reaction on the defendant, was not material to that court’s assessment of the defendant’s mens rea. Simply put, the court could not reject the evidence of the defendant that his medical regime was consistently administered on that date leading the court to find that his resulting impairment was involuntary. In other decisions, a defendant’s reckless administration of his medication, or ill-informed mixing of medications, has been deemed relevant to the availability of an involuntary impairment defence.

[42] The defendant also points me to Wakefield J’s decision, R v Blayone,[^27] where the accused, after attending his physician’s office, was referred for blood work. He disclosed a ‘needle phobia’ and was prescribed an anti-anxiety drug. Shortly thereafter, he consumed the entire prescription (5 pills) before having his blood work done. He felt “iffy” afterwards and then blacked out until he was being arrested by police. In the intervening time, he operated his motor vehicle and managed to “smash into other cars, over pylons” and was eventually forced into a rolling stop by police. He was charged with impaired and dangerous driving. The court rejected the evidence of the physician respecting the dosage of the prescribed anti-anxiety medication (prescribed for 1 pill at a time, not 5) and the issuance of a driving warning and, instead, accepted the defendant’s evidence that he was provided with no caution by the doctor, the pharmacist, nor any warning label on the pill container. Wakefield J stated: “I have no legal reason on the evidence before me to disbelieve [Mr. Blayone] once I find the testimony of the doctor unreliable. The evidence respecting the defendant feeling “iffy” when leaving the lab did not, there, amount to recklessness respecting his decision to drive home.

[43] The defence also brought to my attention the decision of Verner J sitting as a summary conviction appeal court in R v Johnston.[^28] This is one of the many ‘spiked drink’ cases which have raised involuntary intoxication. Both the Crown and the defence called expert evidence to ground witness observations as relevant to involuntary intoxication. However, the trial court relied upon the wrong legal standard, necessitating proof of a likelihood of involuntary intoxication or unintentional ingestion of a drug. Hence, the court necessitated the defence to meet a balance of probabilities standard before the court could ultimately consider this ‘defence’. A new trial was ordered.

[44] Beyond these authorities, there is a growing volume of decisions which have grappled with this form of mens rea defence in impaired operation cases. In R v Plumb,[^29] Stone J faced an acknowledged actus reus impaired by drug care and control scenario. That accused was found sitting in the driver’s seat, his head slouched onto his chest with the vehicle running while parked at a mall. His indicia of impairment were obvious to witnesses and responding officers. The court found that his impairment was “wholly or partially” related to a drug he was taking to treat his prostate problems. The accused testified that he had been on mediation for his condition for 20 years. Reviewing his evidence, the court wrestled with both willfulness and recklessness. It concluded that the Crown had not proven wilful consumption of the medication expecting impairment. But, was Mr. Plumb’s decision to drive to get some dinner reckless or merely negligent, or an innocent accident? Appreciating that on the accused’s pill bottle was a warning about drowsiness, that he recently experienced memory gaps after medication consumption, and was here exhibiting “extreme impairment of his ability to operate a motor vehicle,” the court was satisfied that the accused had taken close to if not over the maximum dosage prescribed. Adopting the language of our Court of Appeal in Murray, “the necessary mens rea was established once it was shown that the respondent had voluntarily consumed a sedative drug which he knew might impair his ability to drive a motor vehicle.”[^30] The accused was found reckless in his drug usage and convicted accordingly.

[45] In an unrelated R v Johnston, the accused rebutted the presumption of voluntary impairment when both he and his doctor testified respecting the instructions he received about “being careful” about mixing alcohol with his prescribed Effexor. Acquitting the accused, DeFilippis J commented about the mens rea defence threshold:

The mens rea of the offence is the intention to assume care or control of a motor vehicle after the voluntary consumption of alcohol or a drug. In the case of drugs, intention is established once it is shown that the defendant consumed a drug he knew might cause impairment. Intention is not established if the impairment has been brought about without any act of will by the defendant. This will be the case if evidence is adduced which raises a reasonable doubt as to whether the defendant was able to appreciate he might become impaired. To determine this it may be necessary to consider consequences the defendant might reasonably be expected to have foreseen in the circumstances. (Citing King, supra, and Regina v. Murray (1985), 1985 CanLII 3603 (ON CA), 22 C.C.C. (3d) 502 (Ont. C.A.). I cannot conclude that Mr. Johnston could reasonably have foreseen that the consumption of the prescribed dosage of Effexor would cause him to be impaired. This was a new drug for the defendant.[^31]

[46] Our Court of Appeal in R v Murray[^32] faced an accused with years of medication experience taking a risk. There, the accused took prescribed sleeping pills before driving believing, based upon his years of experience and pattern of usage, that he had sufficient to time before they took effect. Instead, he became drowsy during driving and collided with a parked bus. The trial judge held that the accused’s genuine believe rebutted the presumption of voluntary impairment at trial, however the Court of Appeal disagreed:

The present case was not one of involuntary ingestion of a drug where the patient is unaware of its possible effect on his ability to drive and where he would obviously not have the requisite mens rea. The subjective over-estimation of the time-period in which the drug would begin to take effect cannot negative the necessary mental ingredient of the offence. To paraphrase what was stated by this Court in Regina v. MacCannell, supra, at p. 195, in reference to a prosecution under s. 236, we are all of the view that proof of the respondent's voluntary consumption of the drug supplied the necessary mens rea and that it was unnecessary for the Crown to prove, in addition, that the respondent knew that he would be impaired at the relevant time.[^33]

Citing King, the Court of Appeal concluded that the accused voluntarily consumed a sedative drug which he knew might impair his ability to drive a motor vehicle. That was enough.

[47] A similar evidentiary record as presented here was before Rabley J in R v Avery-Quick.[^34] There, an Agreed Statement of Facts formed the basis of the Crown’s case. The defence called the defendant and filed two exhibits substantiating his prescribed medication regime. While impaired by a combination of alcohol and prescription drugs, this accused operated a motor vehicle and collided with a tree. He failed to remain at the scene, driving the wrong way on a one-way street. He was then observed driving erratically until he turned into a residential driveway and collided with his home’s garage door. He turned on his windshield wipers when attempting to turn the car off. Police were called and the accused was arrested.

[48] Mr. Avery-Quick advised the DRE officer that he had taken a number of prescription drugs that day. The DRE officer concluded that he was impaired by a combination of drugs and marijuana. A sample of the defendant’s urine was analyzed by the CFS resulting in the following found substances: amphetamine, codeine, hydrocodone, morphine, zolpidem and pregabalin – a variety of pain management, ADHD, anti-depression and sleeping medications. The accused testified that he had taken his medications that day, as prescribed over the past five years, along with “some over the counter pain medication for his back”. The filed CFS report noted that many of the found substances could cause “dizziness, drowsiness, sedation” etc. In the evening, the defendant had two shots of vodka in a mixed drink. He took a sleeping pill to assist with his restlessness and his next recollection was waking up at the police station. The defendant had not read the medication warnings at the time, but acknowledged that afterwards he did so and noted that many should not be used when consuming alcohol. However, having done this in the past, he had never experienced a similar result. Like here, the accused testified that he not been warned by his doctor or pharmacist of the potential side effects of combining these substances, and had done so before without complication. Further, he would never knowingly take a sleeping pill before driving. Rabley J adopted the reasoning of Paciocco J (as he then was) in R v McGrath respecting the standard for involuntary intoxication:

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.

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.[^35]

[49] Rabley J was left to struggle with the cause of Mr. Avery-Quick’s intoxication, having no evidence that the sleeping pill had any impact upon his driving that evening. The defence theory was found to be speculative without more evidence and Mr. Avery-Quick’s credibility was successfully challenged. The court concluded:

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.[^36]

[50] Finally, in R v Derakhshandeh,[^37] Blouin J faced an involuntary intoxication claim involving an accused who professed to have taken the wrong pill from a friend’s dispensary – he took Xanax instead of Citalopram during an anxiety attack. He later drove erratically and got into a rear end collision with another vehicle. The accused had been taking prescription medication (Citalopram) for anxiety in the past and had never experienced memory loss nor had he been advised not to drive when using the medication. The CFS report verified the presence of both Xanax (alprazolam, a central nervous system depressant) as well as THC from marijuana in the accused’s body. Faced with the accused’s evidence alone, the court found that it did not rebut the presumption of impairment. Internal inconsistencies in his evidence adversely affected his credibility and, further, the court found that, after consumption, he became aware that his ability to operate his vehicle was impaired by the drug he consumed and yet he persisted with driving (per King) resulting in his inability to raise a reasonable doubt respecting voluntary intoxication.

Analysis

[51] To rebut the presumption of voluntary impairment, the defendant need only raise a reasonable doubt.[^38] He can do so by his evidence alone. However, before I scrutinize his evidence from a credibility and reliability perspective, it is important to address what can or cannot be reasonably be inferred on this evidentiary record.

[52] The specific cause of Mr. White’s impairment on November 10, 2020, is unclear. That his ability to operate a conveyance was impaired by a drug on this date is uncontested, and rightly so. The defendant’s driving was unquestionably erratic and dangerous. The findings of the DRE evaluator, after examination of the defendant, make plain that his ability to operate a conveyance was impaired in a variety of ways by a “narcotic analgesic” which is supported by the CFS toxicology report outlining the substances found in his body. By operation of s. 320.31(6) of the Code, he is deemed to have been impaired by Hydromorphone, Zoplicone and Clonaxepam, absent evidence to the contrary.

[53] Affirmative evidence to the contrary must rise beyond mere speculation. The suggestion that the defendant’s consumption of an over-the-counter cold medication amounts to an intervening act which, in a reasonably unforeseen fashion, caused his impairment rests solely upon his evidence alone. No expert evidence was called. Indeed, no evidence whatsoever respecting the properties of, side-effects or potential interactions of NeoCitran with the defendant’s prescribed medication regime was presented. Based upon the paucity of evidentiary record, it would be utter speculation to conclude that the consumption of NeoCitran played any role in his impairment. Speculation cannot form the basis of evidence to the contrary and cannot, thereby, ultimately form part of a reasonable doubt assessment for mens rea consideration. Without more, I am forced to conclude that the introduction of the NeoCitran evidence, as an apparent intervening cause for unforeseeable impairment, is of no meaningful or probative value. No adequate nexus between this cold medication and the defendant’s resulting impairment, let alone its intersection with his pharmaceutical regime, has been established.

[54] The demeanor of a witness is a relevant factor when assessing their credibility. Throughout his evidence, Mr. White impressed me as not only responsive but intent upon making a sincere effort to recount an accurate narrative. This was reflected in his tone and his cooperative disposition. On its face, these efforts inure to the benefit of the defendant’s credibility. At this point I will say that while my decision with respect to the credibility of this witness is based, in part, on his demeanor while testifying, I am well aware that a finding of credibility should never be based on demeanor alone, especially where, as here, there are significant inconsistencies and conflicting evidence on the record.[^39] The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".[^40] I also stress that while I am satisfied that I may rely on the demeanor of a witness as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.

The defendant’s credibility and reliability

[55] Outwardly, the defendant’s evidence was characterized by apparently genuine efforts to narrate the circumstances of November 10^th accurately. He certainly had gaps in his recollection, and what he did recall after his home departure was subject to the repeated caveats that others’ observations, where they were inconsistent with his own, may be correct. This demonstrated candour inured to the defendant’s benefit. Where discrepancies between the factual record in Exhibit 1 (the Agreed Statement of Facts) and the defendant’s evidence manifested, I must naturally reject the evidence of the defendant. Those discrepancies, and there are many, may reflect upon either the credibility or the reliability of the defendant’s evidence and will be assessed and categorized accordingly.

[56] First, there were significant external and internal inconsistencies with Mr. White’s evidence. A few principal examples of these, and their relative import, include:

(1) That the defendant merely “tapped” Mr. McFadden’s motor vehicle. The defendant repetitively characterized this second motor vehicle collision as a “tap” to plainly emphasize his impression that it was a minor incident. Mr. White was an articulate witness and I am satisfied that this choice of wording was intentional. It was not, as counsel suggests, merely an inadvertent descriptor for an ‘accident’ or ‘collision’. However, his chosen descriptor was patently at odds with the evidence of Mr. McFadden and, by implication, with the observations made of the damage caused to the vehicles – evidence for which I must, by agreement of counsel, accept. While not a “hard impact”, Mr. McFadden did describe it as “a definite jolt” which was followed by 15 seconds of engine revving as the defendant continued to attempt to advance his vehicle. The rear bumper of his Rav4 motor vehicle was damaged. Beyond pre-existing hub cap damage that he noted, the defendant’s vehicle had extensive damage to the front right bumper alongside fresh scratches to the driver side door and the driver’s side mirror was folded in and had a white mark on it.[^41] This damage was certainly well beyond the “not even a scratch” description of the collision offered by the defendant, for which I must also reject.

Further, the defendant’s description of the incident was inconsistent. He distinctly recalled being in motion and attempting to pass Mr. McFadden in another lane when he was joined in that lane by Mr. McFadden’s vehicle, directly in front of him, resulting in the collision. This was in stark contrast to Mr. McFadden’s narrative that he was stopped at a red light, not changing lanes at all, and was simply rear-ended by the defendant.

What both these discrepancies demonstrate is an obvious attempt by the defendant to minimize the nature of the collision on Wharncliffe Road South. Mr. White did not relay his evidence on these points as some form of vague perception of the events through the haze of obvious impairment. He was clear about them. That clarity emphasized the insincerity of his collision narrative and, I find, goes beyond a mere reliability (or false memory) concern and manifests adversely upon his credibility.

(2) The defendant’s dealings with Mr. McFadden and the police. Again, the defendant described his Robert Q parking lot interactions as benignly as possible. Instead of acknowledging that he could not locate a driver’s license in his wallet that was visible and obvious to the officer beside him, he professed that it simply was not there (and later, oddly, suggested that the police never returned it to him). This obvious discrepancy was preceded by 3 to 4 unsuccessful efforts by the defendant to return with his driver’s license at the request of Mr. McFadden – for which the defendant does not recall. Finally, and disputed by the defendant, he literally fell asleep in his own vehicle while awaiting the arrival of police and, thereafter, inside the police cruiser after his arrest. While these discrepancies definitely reflect an obvious reliability concern (fed presumably by his level of impairment), they also feed the minimization narrative already referenced causing some credibility concern.

(3) The defendant’s inability to recall specifically when he last took his medications. In his trial evidence, the defendant generalized his medication consumption to before bedtime references or prior. However, in cross-examination he was directed to his police statement from November 10^th wherein he asserted that his bedtime medications were taken around 1am that same day. While that may not appear, on its face, as a noteworthy inconsistency, it is, at best, some further evidence respecting the defendant’s incapacity to accurately relay the chronology of his medication administration pre-home departure on November 10, 2020. At worse, which may be a stretch, it demonstrated an effort to, where possible, distance himself in time from his last pharmaceutical dose – inclusive of any usage on the morning of or anytime during November 10^th. The further distant his doses from the time of his November 10^th home departure, the more innocent and intervening act like NeoCitran usage may seem. Either way, it adversely impacts upon the defendant’s reliability on an important evidentiary piece even if it does not definitively adversely impact credibility.

(4) The absence of any reference to the presence of Hydromorphone in his pant pocket, or that he took medication with him on this trip, in his examination in-chief. An open ended and thorough examination in-chief did not yield this important detail. How did the Hydromophone tablet get into his pant pocket? Without this detail addressed, the defendant had asserted simply that he had not consumed any pain medication that day because, importantly, he was feeling good – i.e. pain free. However, once raised by the Crown, the defendant had to acknowledge its presence and then postulated that its presence on his person was precautionary, in the event that he required pain medication later that day. But, even this was inconsistent with his earlier evidence in cross-examination explaining away the presence of empty pill bottles found inside his vehicle. They were used routinely to innocently house his medication when he traveled. Except, apparently, on this day. In its totality, this area of evidence inspired little confidence in both the defendant’s credibility and reliability. At best, his recollection is simply clouded by his impairment on that occasion which manifested in the Hydromorphone’s storage inside his pants, instead of inside an empty used pill bottle. More particularly, his incapacity to summon this detail speaks directly to the reliability of his pre-home departure evidence in general. At worst, the presence of this medication inside his pants calls into question the defendant’s pain free morning narrative and that it was, instead, necessary for him to be medicating for pain and anticipating a further need. Worst still, that the empty pill bottles were not empty before he departed his home that morning is a further resulting and available inference. All of these scenarios are available inferences on this evidentiary record. I do not have to make a strict finding respecting which inference to draw. None of them buttress the defendant’s credibility or reliability in general.

[57] Of note, however, I have no evidence which contradicts the defendant’s assertion that he lacks memory from shortly after his home departure to the second collision near on Wharncliffe Road South. The Crown emphasized a 3 to 4 hour gap between his departure from home and this second collision as evidence incongruous with the defendant’s claim of a lack of recollection. However, I find that this was based upon a misperception of the totality of the evidence in Exhibit 1. The first collision occurred at 12:42pm. The second at 1:04pm. The time interval between the two incidents based upon their relative locations in London is unremarkable. That the London Police Service did not respond to the Robert Q parking lot off Wharncliffe Road South until just after 3pm to investigate, and some associated time recording inconsistencies littered in Exhibit 1, likely lead to the Crown’s, and, as a result, the defendant’s confusion. This is not an issue that raises to a legitimate credibility challenge.

[58] The Crown would also have me conclude that a lack of recollection of the first collision and intervening drive, based upon its presenting circumstances, must be feigned. That the defendant exiting his vehicle and examining whether damage occurred respecting this first collision with the pickup truck on Fanshawe Park Road is, somehow, inconsistent with mere memory loss. Surely, it is argued, the defendant would have then reasonably realized his impairment vis-à-vis the operation of his conveyance. As noted in King, “a man who becomes impaired as the result of taking a drug on medical advice without knowing its effect cannot escape liability if he became aware of his impaired condition before he started to drive [or, as here, continued to drive] his car just as a man who did not appreciate his impaired condition when he started to drive cannot escape liability on the ground that his lack of appreciation was brought about by voluntary consumption of liquor or drug.”[^42] I appreciate this argument on its face. However, I must reject it. Every party who came into contact with the defendant from the first collision through to the last, variously described the defendant as looking disengaged with reality, or “out of it”. This is over and above the usual indicia of impairment that was consistently observed respecting his coordination, comprehension, and obvious drowsiness. That evidentiary foundation alone supports a reasonable inference that he was impaired to such an extent that memory loss was entirely possible. Regardless, this route to mens rea proof, as outlined by King, is not the only option for the Crown to make its case when faced with the reliability and credibility issues that I have already noted.

[59] Responding to any perceived reliability concerns the court may have respecting his Wharncliffe Road related activities, the defendant asserts that I can nevertheless have confidence in his pre-blackout, or pre-home departure evidence. This submission implies that his memory gap presents as the only window whereby I should have reason to be concerned about his reliability. I do not see the logic in that assertion and it is inconsistent with the evidence before me. If the defendant’s post-memory gap narrative is admittedly plagued by reliability concerns, how is it that his pre-memory gap evidence is not? I have no evidence substantiating why the defendant has a memory gap to begin with beyond a speculative assertion that it manifested as part of the intersection between his pharmaceutic regime and his ingestion of cold medication. While not required, expert evidence may have assisted in this regard. Its absence, however, does not open the door to speculation which grounds confidence in his pre-departure narrative. When and to what extent were his perceptions of reality diminished? I cannot say on this evidentiary record and the defendant’s subjective belief, in the context of drug-induced impairment, that this evidentiary gap has been filled. The defendant’s attribution that his use of NeoCitran was the intervening event which tipped him towards unforeseen and involuntary impairment is unsupported and speculative. All I am reasonably left with is his prescribed medications as the impairment culprit. And, when that impairment manifested, and to what degree, is an open question. Given his global reliability issues, and in particular his spotty memory about his when he last took his medication and how he was found in possession of a Hydromorphone tablet, I do not have any confidence respecting his morning or medication consumption narrative. His evidence lacks reliability throughout November 10^th.

[60] Having considered these issues, I must conclude that I cannot rely upon the defendant’s evidence alone to support a rebuttal of the presumption of voluntary intoxication. Unlike in Domb and Blayone, the defendant’s evidence is suspect on a number of credibility fronts and is, overwhelmingly unreliable throughout November 10^th, 2020. It cannot, therefore, ground a mens rea reasonable doubt on either of the first two prongs of a W.(D.) analysis.

Conclusion

[61] The extreme nature of the defendant’s impairment on November 10, 2020, its nexus to his pharmaceutical regime which has the reported capacity for impairing effect, and coupled with the noted credibility and reliability issues presented simply prohibit the establishment of a defence of involuntary intoxication.

[62] Based upon the above findings, the actus reus for impaired operation of a conveyance has been established. Further, the defendant has failed to rebut the presumption of voluntary intoxication and, therefore, has not raised a reasonable doubt respecting the mens rea. As a result, Mr. White is found guilty of impaired operation of a conveyance from the midday events of November 10, 2020.

Released: April 6, 2022

Signed: Justice M. B. Carnegie

[^1]: It is noteworthy that of the number of medications the defendant was then taking, Apo-Zopiclone was not his pain medication (that was Teva-Oxycocet and Hydromorph Contin). Instead, Zopiclone was his sleeping medication. [^2]: See section 320.28(5)(g), defining a “narcotic analgesic” as a type of impairing drug which permits a s. 320.28(4) bodily substance demand for toxicological analysis [^3]: Nothing confirming the NeoCitran packet or this product’s properties and/or side-effects was filed in evidence at trial. [^4]: No confirmatory evidence was called on either point. [^5]: R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 36, R v Sanichar, 2012 ONCA 117 at para 46 and R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345 [^6]: R v Gagnon, 2006 SCC 17 at para 20 [^7]: R v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119 [^8]: R v Penno, 1990 CanLII 88 (SCC), [1990] 2 SCR 865 at para 18 [^9]: R v King, 1962 CanLII 16 (SCC), [1962] SCR 746 (QL) at p 14 [^10]: King, supra, at p 14 [^11]: King, supra, at p 15. In R v Toth, [1987] OJ No 1483 at para 13 (Dist Ct, acting as appellate court), Salhany J further interpreted Ritchie J’s comments in King: “…an accused who drives, after receiving a drug from a medical practitioner, can only escape liability for impairment if that condition was something that suddenly comes upon him while he is driving and was something that he could not have reasonably anticipated when he got into the vehicle.” [^12]: R v McDowell, [1980] OJ No 488 at para 14 [emphasis added]; See also R v Mack, [^13]: R v McGrath, [2013] OJ No 3728 [^14]: Ibid at para 9 [^15]: Ibid at para 11 [^16]: Ibid at para 13 [^17]: Justice Joseph F. Kenkel, Impaired Driving in Canada (Sixth Edition) (Toronto: LexisNexis, 2021) at p 33 [^18]: R v Abbasi-Rad, [2016] OJ No 4601 (OCJ) at para 17 [^19]: R v Imrie, [2017] OJ No 3014 (OCJ) at para 361 [^20]: R v Mavin, 1997 CanLII 14625 (NL CA), [1997] NJ No 206 at para 38 [^21]: R v Pomeroy, 2006 BCSC 142 (BCSC, sitting as summary conviction appeal court) at para 48, citing within Mavin, supra at para 38 [^22]: R v Ruston, [1963] NSJ No 3 (NSSC) [^23]: ‘Emprazil’ is an antihistamine used to relieve symptoms of allergy, hay fever, and the common cold. [^24]: Rushton, supra at para 36 [^25]: R v Domb, 2011 ONCJ 756 at paras 5-6 [^26]: Domb, supra, at para 87 [^27]: R v Blayone, [2012] OJ No 2191 [^28]: R v Johnston, [2021] OJ No 4086 (SCJ) [^29]: R v Plumb, [2002] OJ No 1171 [^30]: Plumb, supra, para 36 [^31]: R v Johnston, [2001] OJ No 2466 at para 11 [^32]: R v Murray, [1985] OJ No 217(CA) [^33]: Murray, supra, p 2 (QL) [^34]: R v Avery-Quick, [2019] OJ No 337 (OCJ), affirmed [2019] OJ No 6232 (SCJ) [^35]: R v McGrath, [2013] OJ No 3728 (OCJ) at para 12. In McGrath, the accused was found guilty of impaired and dangerous driving due to impairment by a combination of his prescribed clonazepam and alcohol. Paciocco J helpfully noted at para 33:

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.

See also Avery Quick, supra, at para 33 [^36]: R v Avery-Quick, supra, at para 50 [^37]: R v Derakhshanedeh, [2019] OJ No 3747 (OCJ) [^38]: When I consider whether the defendant has raised a reasonable doubt, I must always be mindful that the Crown cannot be required “to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.” A finding of reasonable doubt may not be based on non-existent evidence. See R v Torrie, 1967 CanLII 285 (ON CA), [1967] 2 OR 8 (CA) [^39]: R. v. Norman, 1993 CanLII 3387 (ON CA), [1993] O.J. No. 2802 (Ont. C.A.) per Finlayson J.A.; R. v. Stewart, supra at para. 19; R. v. G.G., 1997 CanLII 1976 (ON CA), [1997] O.J. No. 1501 (Ont. C.A.) per Finlayson J.A. at paras. 14 to 19; R. v. Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 (Ont.C.A.) per Finlayson J.A. at paras. 15 to 17. Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.) per Doherty J.A. at para 66. [^40]: R. v. Stewart, supra at para. 27 ; R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (Ont. C.A.) per Galligan J.A. at para. 23; R. v. Gostick, supra at para. 14. [^41]: Of course, what damage was attributable to the first collision is uncertain and acknowledged. [^42]: King, supra, at p 15