DATE: 2024-04-12 Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
NADIM KHAN
Before Justice Mara Greene
Reasons for Judgment released April 12, 2024
Counsel: E. Vandersanden…………………………………………………………………… for the Crown A. Zaitsev……………………………………………………………………………....for Nadim Khan
[1] Mr. Khan is charged with operating a conveyance while having a blood alcohol concentration of over 80 mg of alcohol in 100ml of blood (over 80) and with impaired operation of a conveyance. At trial it was conceded that Mr. Khan was impaired by alcohol while operating a motor vehicle. He also conceded that his blood alcohol concentration was over 80. The time of driving was 9:30 pm on April 30, 2022. Mr. Khan’s BAC at 1:15 am on May 1, 2022 was 280 mg of alcohol in 100ml of blood and was 270 mg of alcohol in 100 ml of blood at 1:38 am on May 1. The only issue at trial related to the circumstances under which Mr. Khan became intoxicated. Mr. Khan argued that he involuntarily consumed alcohol and as such did not have the mens rea to commit the offence. Crown counsel argued that Mr. Khan’s evidence should be disbelieved. She further argued that even if I believe his evidence, the defence put forward is really one of automatism and that this defence has not been made out.
Summary of the evidence
[2] Given the narrow issue raised at trial, I will only briefly summarize the evidence. Mr. Donascimento was working as an uber drive on April 30, 2022, when he was rear ended by a vehicle driven by Mr. Khan. Mr. Donascimento testified that the accident was not significant and that there was no damage to his vehicle. He nonetheless wanted to exchange information with Mr. Khan in case he noticed damaged later when it was light outside.
[3] Mr. Donascimento attempted to speak to Mr. Khan, but Mr. Khan did not respond. Instead, he exited his vehicle, made a phone call and then returned to his vehicle and tried to leave. Mr. Khan could not leave, however, because there was not enough space to pull out. Mr. Donascimento then telephoned 911.
[4] Mr. Donascimento further testified that he thought the BMW must have been in an earlier accident because there was substantial damage to Mr. Khan’s vehicle that could not have been caused by the accident with Mr. Donascimento.
[5] Officer Cassidy testified that he was called to the scene on April 30 at 9:35 pm for a minor car accident with no injuries. Officer Cassidy noticed that Mr. Khan’s vehicle, a BMW, had significant damage to its front side but there was no damage at all to Mr. Donascimento’s vehicle. After speaking to Mr. Khan, he formed the grounds to arrest him for impaired operation of a conveyance.
[6] Officer Reindeers transported Mr. Khan to traffic services. They arrived shorty after 10 pm. The breath tests were not conducted there, however, because in Officer Reindeer’s opinion, Mr. Khan started to have a panic attack and required medical attention. Mr. Khan was taken to the hospital which is where the breath tests were taken.
[7] Mr. Khan testified at trial. Mr. Kahn testified that it is his belief that he was drugged, date raped and “perhaps” fed alcohol. Mr. Khan testified that he had no intention of consuming alcohol that night, has no memory of what occurred that night and as such could not have voluntarily consumed alcohol.
[8] Mr. Khan testified that he lives with his parents in Milton. His parents are strict Muslims and he is a gay man. Due to his parents’ religious beliefs, Mr. Khan has not told anyone is his family about his sexual orientation. Mr. Khan descried himself as “closeted” and that even most of his friends do not know that he is gay.
[9] Mr. Khan seeks out sexual partners on an app called Grinder. According to Mr. Khan, on April 30 he made plans with a person on Grinder for a “hookup”. This person did not live in Canada and was only in town for the weekend. Mr. Khan did not know this man’s phone number or how to reach him. Their only method of communication was on the Grinder app.
[10] According to Mr. Khan, he received a message from this person at approximately 3pm. On April 30. Mr. Khan had just returned to Milton after having brunch with his friends in Toronto. The person indicated that he was free for a hookup any time that afternoon/evening. Mr. Khan testified that he turned around and drove back to Toronto. Upon arriving at the Adelaide and Bathurst/Spadina area, Mr. Khan pulled into a parking lot to message the person on Grinder and obtain his address. This person was staying at an Airbnb in the area. After receiving the address, Mr. Khan pulled out of the lot. In doing so, he hit a construction barrier and damaged the front end of his new BMW. His front left bumper, the front head light and the front fender were all damaged. Moreover, the radiator appeared to be leaking. After assessing the damage, Mr. Khan returned to his vehicle to see if it was still operable. It was.
[11] Mr. Khan then messaged the person on Grinder to cancel his plans. He told this person what occurred and explained that he was no longer in the mood. The person asked Mr. Khan if he could still drive his car and then asked Mr. Khan to come over. This person suggested they could just talk. Mr. Khan decided to go through with his plans and meet this person that he had been texting on Grinder. Mr. Khan testified that he had already travelled all this way and it was possible that once he met up with this person he would get back in the mood to have sex.
[12] Mr. Kahn drove to the Airbnb which was in the Brant and Adelaide area. He went to the unit and knocked on the door. The unit was messy, and the person was smoking. This was a turn off for Mr. Khan. Nonetheless he stayed and had some lemonade with this person. Mr. Khan told the person that he was only going to stay for 15 minutes and that he only wanted to talk. According to Mr. Khan, he remembers taking three sips of the lemonade but after that his mind is blank.
[13] The next thing Mr. Khan remembers was being in the hospital.
[14] Mr. Khan believes that he was drugged since the lemonade did not taste like alcohol. He also thought that he was sexually assaulted because the next day, when he went to the washroom, he bled.
[15] Mr. Khan did not seek any medical attention, nor did he report the event to the police. Mr. Kahn testified that in his mind nothing could be done by the police because he had no evidence to provide them. Moreover, he did not seek medical attention because he was worried that if he spoke to his health care provider his parents might discover what took place.
[16] Mr. Khan further testified that there is no record on Grinder or his phone of the communications with the person he met that night. Mr. Khan testified that the person must have deleted all their communications on Grinder which removed the communications from his phone as well.
[17] The essence of defence argument is that Mr. Khan had no intention of consuming alcohol on April 30. He was given a drink that Mr. Khan assumes was spiked. Mr. Khan has no memory of what occurred that night but assumes he was either forced fed alcohol or drank alcohol without knowing he was consuming alcohol.
[18] There is no doubt that Mr. Khan consumed alcohol on April 30. In fact, he must have consumed a significant amount of alcohol because his readings were 270 and 280. This is three times the legal limit. Crown counsel argued that just because Mr. Khan has no memory of drinking, it does not mean that he was involuntarily intoxicated.
Findings of fact
[19] In the case at bar, the only credibility issue relate to Mr. Khan’s evidence about what took place on April 30. I do not believe Mr. Khan’s version of events. While there is no direct evidence to the contrary, there are some portions of his evidence that seem so contrary to common sense that it cannot be believed. First of all, it is inconceivable that Mr. Khan would continue to drive a very damaged vehicle for the purpose of meeting up with a stranger when he was no longer in the mood for a hook up on the off chance that he might get in the mood later on. This was his new BMW, with a significant amount of damage and it was leaking radiator fluid (albeit from a secondary radiator source). Given the extent of the damage to the vehicle to make the choice to continue to drive it – not just to the hook up but then all the way back to Milton defies common sense. Mr. Khans’ evidence that he felt that it was fine to drive his vehicle since it was still operable is not believable. On all accounts the vehicle had significant damage.
[20] Secondly, Mr. Khan’s explanation for not seeking out medical assistance is also not believable. Mr. Khan testified that he was worried his parents would find out that he is gay. Mr. Khan, while not a practicing doctor, has a medical degree. He is well aware of the rules of confidentiality attached to the relationship between doctor and patient. When confronted with this in cross-examination, Mr. Khan testified that there was always the risk that he would become incapacitated one day and then his parents would see his medical records. In my view, this explanation defies common sense. Mr. Khan is well aware of doctor/patient confidentiality even if he shared a medical practitioner with his parents. Moreover, he could have gone to any walk-in clinic, he did not have to go to his family doctor, or any doctor that knew his family. In my view, it is not believable that Mr. Khan would fail to seek medical assistance on the off chance that one day in the future he might become incapacitated and that this would require his parents to see all his medical records.
[21] Thirdly, it also defies common sense that Mr. Khan would decide to go into the apartment and drink lemonade with a stranger when he had already decided, by his own evidence, that he did not want to hook up with this person. Mr. Khan testified that his sole use of grinder was for quick hookups. The person he was supposedly meeting that night did not live in Canada and was leaving the country the next day. They were not going to be come friends or enter into a relationship. The only purpose of the meet up was for a sexual hook up. Mr. Khan testified that he was already not in the mood for a hook up because of the car accident. He further testified that he was even more disinclined to engage sexually with this man once he met him. In this context it makes no sense that he would nonetheless remain for a cup of lemonade and conversation instead of leaving and tending to his vehicle.
[22] I therefore reject Mr. Khan’s evidence about what took place on April 30 and I am not left in a reasonable doubt by his evidence. Even if I were to believe or be left in a reasonable doubt by Mr. Khan’s evidence, I would still have to assess whether his evidence even raises a defence in law. In my view, it does not.
[23] Removing Mr. Khan’s assumptions about what occurred on April 30, Mr. Khan’s evidence can be summarized as follows:
- He went to an Airbnb to meet a person for a hook up.
- Upon arriving, he decided that he did not want to hook up with this person.
- He decided to stay and have some lemonade.
- He had three sips of lemonade, which tasted like lemonade.
- His next memory is being in hospital.
- He bled when he went to the washroom the following day.
Legal Issues
[24] Mr. Khan argued that since he had no plans to consume alcohol that night, never drinks to the point of blacking out and bled the next day, a reasonable inference is that the lemonade he was provided was spiked with some kind of drug and that he was either force fed alcohol or involuntarily consumed alcohol as a result of the spiked drink. It was Mr. Khan’s belief that the reason this person on Grinder drugged him was to commit a sexual assault and that he was in fact sexually assaulted by this person.
[25] Crown counsel argued that even if one was to believe Mr. Khan’s evidence, a defence is still not made out in law. Crown counsel argued that Mr. Khan is actually raising the defence of automatism and given the absence of expert evidence he has not met his burden to make out this defence.
Analysis
[26] I agree with Crown counsel that if the defence being raised is that of automatism, Mr. Khan has not met his burden. Having said that, I disagree with Crown counsel that this is the defence being raised. In the case at bar, Mr. Khan is not claiming that his behaviour was involuntary on April 30. He is alleging that he unknowingly consumed alcohol. While he could not remember the events of the night, he assumes his drink was spiked with a drug or alcohol, though he doubts it was alcohol because it did not taste like alcohol. Mr. Khan’s position at trial is that he either consumed the alcohol through a spiked drink or was forced to drink it once he was drugged and did not appreciate that he might be impaired.
[27] The question I must therefore ask is whether I am left in a reasonable doubt that Mr. Khan involuntarily consumed alcohol.
[28] Since R. v. King, involuntary intoxication has been a recognized defence to the offence of impaired driving. This is because it negates the mens rea for the offence. In King, the court stated at page 763,
…I am of the opinion that when it has been proven that a driver was driving a motor vehicle while his ability to do was impaired by alcohol or drug, then a rebuttable presumption arises that his conditions was voluntarily induced and that he is guilty of the offence created by s.233 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 known that he was or might become impaired.
[29] The Supreme Court of Canada further held,
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 grounds 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 be committed.
[30] In R. v. King, supra, the Supreme Court of Canada did not find that involuntary consumption of alcohol will be a defence in all cases. Instead, the court held that even where the consumption of alcohol was involuntary, if prior to driving the accused became aware of his/her impairment and still elected to drive, the offence would still be made out. The court stated, “That is to say, that a man who becomes impaired as the result of taking a drug on medical advice without knowing its effect cannot escape liability if he became aware of his impaired condition before he started to drive his car.”
[31] This notion of unknowingly consuming alcohol or drug has been addressed many times since R. v. King. In R. v. McGrath, [2013] O.J. No. 3728 (OCJ), Justice Paciocco sitting as a provincial court judge at the time, adopted the definition of involuntary intoxication from R. v. Brenton at para 31. Justice Paciocco wrote,
Involuntary intoxication is generally confined to case where the accused did not know he or she was ingesting an intoxicating substance( such as the accused’s drink was spiked) or where the accused became intoxicated while taking prescription drugs and their effects were unknown to the accused.
[32] In R. v. Hallahan, 2021 ONCJ 156, Mcleod J. summarized at paragraph 18 the caselaw where the accused is more likely to raise a reasonable doubt about the voluntariness of her intoxication. These cases tend to have evidence that:
- The accused formulated a plan and carried out that plan to avoid drinking.
- The availability or opportunity to administer the drug surreptitiously.
- Truly bizarre behaviour beyond the usual signs of impairment.
- Efforts made by the accused to determine the presence of drug in her body.
[33] On the issue of whose burden it is to establish involuntary intoxication, while there is a rebuttable presumption that the accused intended the natural consequences of his actions, the burden remains on the Crown to prove each essential element of the offence beyond a reasonable doubt. Justice McLeod quoting from R. v. Lefebvre [2010] ABPC 108 wrote at para 22,
The accused has not proven positively that she was drugged. She took some steps to determine whether that was what had happened to her and those steps were not successful. It would be an intolerable burden to place on an individual in such circumstances to prove an affirmative defence. This remains a criminal prosecution. In the end, I must take into account all of the circumstances to determine whether the Crown has proven a case beyond a reasonable doubt and whether in this case evidence has been produced to rebut the presumption that the Accused intended the natural consequences of her actions. It will be a rare case where an accused consumes some alcohol and still the circumstances permit a finding of involuntary intoxication. This is one of those cases.
[34] In the case at bar, the evidence of involuntary consumption of alcohol comes solely from Mr. Khan’s assumptions about what occurred on April 30. His assumptions are based on his assertion that he had no intention of consuming alcohol that night, has no memory of the events of the night after drinking three sips of lemonade and his assertion that he normally does not drink to the point of blacking out. In many of the cases provided by counsel, the courts have held that having no memory of what took place usually means that the accused cannot rebut the presumption that he consumed alcohol voluntarily, In McGrath, Paciocco J. stated,
The pay dirt question, though is whether his evidence raises a reasonable doubt about voluntary intoxication, in all the circumstances. I am convinced that it does not. While unknown involuntary intoxication scenarios are not impossible to imagine, it is impossible, in my view, to successfully rebut the presumption of voluntariness with testimony from a source who cannot recall what he did in the hours prior to the alleged offence. I appreciate that this may seem unfair. Someone “obliterated” as the result of involuntary intoxication may experience a black out and be left unable to rebut the presumption of voluntary consumption, even where it has happened. Yet this seems to be the state of the law.
[35] Other courts have made a similar analysis. For example, in R. v. Talock, 2003 SKCA 69, the defendant testified that she did not know how she became impaired prior to operating her motor vehicle. She believed that someone spiked her drink. The Appellate court overturned the acquittal on the basis that there was no evidence that she consumed alcohol involuntarily as she had no memory of the event.
[36] Counsel for Mr. Khan relied heavily on the case of R. v. Hallahan, supra. In that case, Justice McLeod found that even though Mr. Hallahan had no memory of the events leading up to his driving and even though she could not determine what substance Mr. Hallahan consumed before driving while impaired by alcohol, she was nonetheless left in a reasonable doubt about whether Mr. Hallahan consumed alcohol voluntarily. In finding him not guilty, Justice McLeod noted that Mr. Hallahan’s abandoned drink or pizza could have been drugged and that the video of Mr. Hallahan that night showed that he was not acting like he was intoxicated, but instead was acting in a bizarre fashion. Justice McLeod was able to reach this conclusion because witnesses who knew Mr. Hallahan testified about how Mr. Hallahan typically responds to alcohol.
[37] In my view, the case at bar differs dramatically from the facts in Hallahan. Firstly, I cannot conclude that Mr. Khan’s behaviour was attributable to something other than alcohol. His readings were very high and nothing in the behaviour described or seen on the videos suggest it was caused by something other than alcohol. Secondly, no one else testified about Mr. Khan’s response to alcohol to provide a basis in which to conclude that the behaviour seen that night was due to something other than alcohol. I have Mr. Khan’s self report that he normally does not drink to the point of blacking out, but this is not evidence that he did not do so on this occasion. Thirdly, nothing about spiked lemonade explains how Mr. Khan consumed enough alcohol to have readings as high as 270 mg of alcohol in 100ml of blood.
[38] In my view, even if I was to accept Mr. Khan’s evidence, there is no air of reality to his position that he consumed alcohol involuntarily. There is also no evidence before me that rebuts the rebuttable presumption that a person intends the natural consequences of their actions. Mr. Khan has no memory of what took place. His few sips of lemonade, even if it was spiked, does not explain his blood alcohol levels at the time of driving. No other evidence was presented at trial to explain his level of impairment at the time of driving. When I consider all the evidence, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Khan voluntarily consumed alcohol and then operated a motor vehicle while his ability do so was impaired and while he had a BAC over 80.
[39] I am mindful that one way of looking at the evidence is that at the time of consuming alcohol and driving Mr. Khan was acting involuntarily because of the effects of the drug put in his drink. This was not, however, the way Mr. Khan put forward his defence. Out of an abundance of caution I will briefly address the defence of automatism.
[40] In R. v. Stone, [1999] 2 SCR 290, the Supreme Court of Canada held that the burden lies on the defendant to establish the defence of automatism on a balance of probabilities. The defence of automatism will be made out where the accused has established on a balance of probabilities that he was acting involuntarily at the time of the offence, that the automatistic state was caused by an external event and that the external event could have produced a dissociative state. Applying these legal principles to the case at bar, in order to find Mr. Khan not guilty by reason of non-insane automatism, I would have to find that his drink was in fact spiked with some drug and that this drug put him in a dissociative state (which caused him to act involuntarily). In the case at bar, I have no evidence that Mr. Khan’s drink was spiked. I only have Mr. Khan’s opinion that it must have been spiked. Moreover, I have no evidence at all that if his drink was spiked by some drug, that this could or would cause Mr. Khan to act involuntarily. As a result, in my view, Mr. Khan has not met his burden and the defence of non-insane automatism fails.
[41] An example of a case where the defence of automatism was made out is R. v. Desrosiers, 2017 ONCJ 299. In that case the defendant argued that despite having no memory of the events of that day, her actions of drinking and driving on the night of her arrest were involuntary. There was ample to evidence to support the fact that when she operated her motor vehicle she was acting involuntarily. She had a history of a sleep disorder and expert evidence was presented on her diagnosis of parasomnia. There was also evidence about past triggers to her sleep walking, some of which existed at the time of the offence. Moreover, bystanders and police described her behaviour at the time of arrest as bizarre and nonresponsive. In light of the clear history of sleep walking and uncontradicted expert evidence, the court found that that Ms. Desrosiers met her burden of establishing on a balance of probabilities that she was in a dissociative state of automatism when she drove her vehicle. The facts in the case at bar differ significantly. In the case at bar there was no expert evidence presented, no history of acting involuntary and no evidence that Mr. Khan’s behaviour that night was due to anything other than being impaired by alcohol.
[42] In light of the above, I find Mr. Khan guilty of the offences of impaired driving and Over 80.