ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-019
DATE: 20120613
BETWEEN:
HER MAJESTY THE QUEEN Appellant – and – Mark Jensen Respondent/Accused
C. Hepburn, for the Crown
Andrew Perrin, for the Respondent/Accused
HEARD: May 16, 2012, in Parry Sound
DECISION on Appeal
Del Frate J.:
[ 1 ] The Crown appeals the acquittals entered on September 22, 2001, by the Honourable Justice Klein on one count of impaired operation of a motor vehicle and one count of over 80 mg of alcohol in 100 millilitres of blood contrary to s. 253(1) (a) and s. 253(1)(b) of the Criminal Code , R.S.C. 1985, c. C-46.
Background
[ 2 ] On June 20, 2009, the Parry Sound Department of the Ontario Provincial Police received several complaints from concerned citizens about the erratic driving of a motor vehicle in Parry Sound. The citizens followed the vehicle which eventually stopped at the dock area of Parry Sound.
[ 3 ] The police arrived shortly thereafter and found the respondent behind the wheel of the vehicle. He was either sleeping or passed out. The officer detected a strong odour of alcohol and it was obviously clear that the respondent was intoxicated. After giving him his rights, he was brought to the police station for breathalyser tests. The results indicated that the respondent had a blood alcohol content of 290 and 280 milligrams in his system.
[ 4 ] The Crown’s case proceeded by an agreed statement of facts. The respondent called evidence.
[ 5 ] It was agreed that the only issue to be argued was whether the respondent was in a state of non insane automatism while operating his motor vehicle. The basis for the automatism defence was the respondent’s despondency following his brother’s death. The respondent became depressed and was drinking heavily to assist him in his sorrow. He was in a confused state. The most blatant example was an incident approximately a week prior where he was at a stop light and eventually was awakened by another driver since he had missed two green lights. On that occasion, he had not been drinking.
[ 6 ] At trial, the respondent testified that he had no recollection of the day in question other than that he spoke to his ex-wife on several occasions. He had no recollection of when he purchased and consumed the alcohol and no recollection of telling the breathalyser operator that he had been drinking rye and had consumed half a 40 oz. He also had no recollection of speaking to the various attendants at the hospital to whom he admitted that he was drinking on the side of the road.
[ 7 ] The learned justice dismissed the defence of non-insane automatism on the basis that there was no expert evidence called confirming his automatic state.
[ 8 ] The learned justice then entered acquittals on both counts finding that the respondent lacked the requisite mens rea for the offences.
[ 9 ] The Crown appeals these acquittals on two main grounds. Firstly, there was no evidentiary basis to conclude that the respondent lacked the intent to drink and drive.
[ 10 ] Secondly, the learned justice erred in not requesting and permitting counsel to address the issue being the lack of requisite mens rea for the offences on which he proceeded to acquit the respondent.
Position of the Appellant
[ 11 ] The learned justice erred in applying the test enunciated in R. v. King , 1962 16 (SCC) , [1962] S.C.R. 746, whereby the presumption is that the impairment is the product of intentional and self induced intoxication unless the accused adduces evidence to the contrary.
[ 12 ] Once the Crown establishes the impaired operation, then the accused must establish on the balance of probabilities that he or she consumed the intoxicants either unintentionally or unknowingly. Examples of this situation, include the following:
• The unexpected effect of mixing a prescription drug and alcohol ( R. v. Fiorante , [1990] S.J. No. 93 (Q.B.) );
• The unexpected effect of a dental anaesthetic ( R. v. King );
• The unexpected effect of a prescription drug ( R. v. Kurgan , [1987] O.J. No. 2436 (Dist. Ct.) );
• A situation where, unbeknownst to the accused, a psychotropic drug is put in the accused’s drink ( R. v. Fletcher , 2005 BCPC 67 , [2005] B.C.J. No. 491 (Prov. Ct.));
• An inadvertent exposure to hazardous chemicals at a work site ( R. v. Armstrong , [1993] B.C.J. No. 2684 (Prov. Ct.) ).
[ 13 ] In the appellant’s perspective, the respondent did not lead any evidence other than he had blacked out some one week before this occurrence and that on the day in question, he could not recall what happened and that according to his ex-wife, the respondent, sounded “a little off”.
[ 14 ] In the appellant’s submission, there was no evidence lead by the accused to establish that his consumption of alcohol on that day was unknowing or accidental.
[ 15 ] On the second ground, the appellant submits that the learned justice erred in not permitting counsel to address him on the vital issue on which he acquitted. Although the trial judge is permitted to take into consideration alternate defences, where the issue becomes the main reason for acquitting, the parties should have had the opportunity to address it.
Position of the Respondent
[ 16 ] The respondent submits that the learned justice did not err since he concluded that a reasonable doubt was raised by the evidence in that the respondent was in a confused and blackout state prior to commencing the ingestion of alcohol. It was open to the learned justice to accept the evidence of the respondent and to conclude, as he did, that a reasonable doubt on his mens rea was raised. Accordingly, the presumption raised by the voluntary impairment was rebutted.
[ 17 ] On the second ground, the respondent relies on the decision on R. v. Burns , 1994 127 (SCC) , [1994] 1 S.C.R. 656, where the Supreme Court of Canada stated:
Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)( a ). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points: see R. v. Smith, 1990 99 (SCC) , [1990] 1 S.C.R. 991, affirming (1999), 1989 ABCA 187 , 95 A.R. 304, and MacDonald v. The Queen, 1976 140 (SCC) , [1977] 2 S.C.R. 665. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside a verdict.
[ 18 ] The respondent submits that even though the learned justice did not give lengthy reasons on this particular issue, there was ample evidence before him to conclude that the confusion prevented the respondent from appreciating the consequences. Accordingly, there was no error in law.
Discussion
[ 19 ] On the first ground of appeal, both counsel agree that R. v. King is the test to be applied in determining this issue. Once the Crown establishes that the accused had been drinking and was operating a motor vehicle, then a rebuttable presumption arises whereby the accused must establish that he either did not know that he was ingesting an intoxicant or did not appreciate the consequences of such an intoxicant.
[ 20 ] The learned justice appreciated the test enunciated in R. v. King since at p. 200 of the transcript, he states:
The accused does not have to prove the lack of the mental element, nor does the accused have to provide psychiatric evidence on the issue of the mental element. The accused has to lead evidence to raise a reasonable doubt as to the requisite mental element of the offence. The trial Judge, that being me, does not have to conclude that the accused was robbed, literally of his ability to form the intention to commit either or both of the offences, the Judge must merely have a reasonable doubt as to that essential mental element.
[ 21 ] The learned justice then goes on to find that the respondent was at a very “low point in his life”, was “lost”, “dumbfounded” and “in disbelief”.
[ 22 ] At p. 200, the learned justice then states:
This confusion that Mr. Jensen was under during that day may have been caused by the voluntary ingestion of alcohol but the facts also support a finding that the accused was in a confused state before the signs of alcohol impairment or consumption were apparent to Mrs. Jensen and lead me to have some doubt as to whether Mark Jensen had the requisite mens rea to commit either offence before the court. On that basis, an acquittal will be entered on both counts.
[ 23 ] The learned justice came to this conclusion on the basis of the respondent’s ex-wife’s evidence whereby she stated that on the day in question from approximately 1 p.m. to 7 p.m. she had several discussions with the respondent. As the afternoon wore on, he “appeared to be in a confused state”. It was not until “some moments before the police arrived and the offence was actually discovered and the charges were laid, did she have any concern that he was under the influence of alcohol”: see transcript at p. 201.
[ 24 ] Respectfully, I disagree with the learned justice’s conclusions. In my view, the proper evidentiary basis did not exist for him to conclude that the state of confusion existed prior to the respondent commencing the drinking. There is no evidence on when the respondent commenced drinking. For him to have concluded that the confusion arose prior to the commencement of the drinking is conjecture and speculation.
[ 25 ] The confusion that his ex-wife detected at around 4 p.m. and shortly before the respondent was arrested, could just as easily have been caused by the ingestion of half a bottle of rye.
[ 26 ] Likewise, the respondent’s inability to recall the events of that day could just as easily have been attributable to the amount of alcohol that he consumed.
[ 27 ] Besides, his lack of recollection contradicts the respondent’s uncontested evidence, being the statements made to the breathalyser officer and to one of the attending physicians whereby he accurately tells them that he consumed half a bottle of rye and had consumed it by the roadside.
[ 28 ] If the learned justice came to the conclusion that the accused did not appreciate the consequences of drinking, then reasons ought to have been given.
[ 29 ] The only evidence before the trial judge was that the respondent could not remember consuming the alcohol. There is no evidence to indicate that he was not aware that he was consuming alcohol. Quite to the contrary, as indicated earlier, he did admit to the breathalyser officer and to the attending physician that he was consuming alcohol and where he had consumed it.
[ 30 ] The respondent lead no evidence to show that he did not consume alcohol voluntarily. This situation is unlike the cases cited earlier whereby there was an unknown event which precipitated and preceded the impairment.
[ 31 ] Accordingly, in my view, the learned justice erred in law since there was no existing evidentiary basis on which he could come to that conclusion.
[ 32 ] On the second ground of appeal, being the lack of opportunity of counsel to address the issue of mens rea on which he proceeded to acquit, the learned justice did not err in law. Although it would have been preferable to have asked for submissions, R. v. Burns indicates that the trial judge does have discretion. In jury trials, a trial judge may make that kind of ruling so as not to delay the trial.
[ 33 ] In this case, the learned justice could have considered giving counsel the opportunity to address the issue especially since it was agreed at the commencement of the trial that the only defence was one of non insane automatism. A further attendance for submissions on the issue of mens rea would not have delayed the matter and it would have alleviated the perception of an injustice.
[ 34 ] I reiterate, however, that in my view, this lack of opportunity was not fatal.
Conclusion
[ 35 ] Having ruled that the learned justice did make an error in law, I must now consider whether a new trial ought to be ordered or whether a conviction should be entered.
[ 36 ] The respondent submits that a new trial should be considered while the applicant submits that a conviction should be entered.
[ 37 ] The evidence is overwhelming that, on the day in question, the respondent was impaired. Initially, his erratic driving attracted the attention of concerned citizens. When the police officer arrived at the scene the officer concluded immediately that the respondent was impaired. Subsequent breathalyser tests revealed an alcohol concentration of 290 and 280 milligrams, some three times over the legal limit.
[ 38 ] In my view, a trial judge in a new trial, applying the proper test, would have no hesitation in concluding that the respondent was impaired on the day in question. Accordingly, I accept the appellant Crown’s submission that a conviction on both counts ought to be entered.
[ 39 ] However, the Kineapple principle ought to be considered and I invite submissions from counsel as to which of the two counts ought to be stayed. I also invite submissions as to the appropriate penalty.
[ 40 ] In summary, therefore, the appeal is allowed and a conviction is entered on both counts. Counsel may speak to the trial co-ordinator to set a date to address these issues.
Justice R.G.S. Del Frate
Released: June 13, 2012
COURT FILE NO.: CR-11-019
DATE: 20120613
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – Mark Jensen Respondent/Accused DECISION ON APPEAL Del Frate J.
Released: June 13, 2012