ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-0134-AP

DATE: 2013-09-23

B E T W E E N:

Her Majesty the Queen,

Deborah Kinsella, for the Crown

Respondent

• and -

Jodie Hoskins,

Kate Brindley, for the Appellant

Appellant

HEARD: August 23, 2013,
at Thunder Bay, Ontario

Mr. Justice F. Bruce Fitzpatrick

Decision On Summary Conviction Appeal

[1] Jodie Hoskins appeals from a guilty verdict of DiGiuseppe J. on a charge that she operated a motor vehicle while her ability to do so was impaired by alcohol or a drug contrary to ss. 253(1)(a) and 255 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] In her notice of appeal, Ms. Hoskins sets out the grounds for appeal as follows:

THE GROUNDS FOR THIS APPEAL ARE:

1. That the Learned Trial Judge erred in law, by applying to the evidence an unreasonably narrow interpretation of the principles relating to mens rea in impaired driving cases, specifically, the principle that, where impairment is produced as a result of using a drug in the form of medicine on a doctor’s order or recommendation, and its effect was unknown to the patient, the presumption of “voluntary intoxication” is rebutted. The Learned Trial Judge fell into this error by:

(a) failing to consider whether the appellant’s long experience with the medications in question, without any prior occurrence of excessive sedation, meant that the unexpected effects on the date in question were effectively “unknown to her” for the purposes of the above principle;

(b) placing an unwarranted degree of reliance on the warning label of the appellant’s anti anxiety medication, which advised caution when driving, but did not advise abstention from driving;

(c) misapprehending the evidence by finding that more than one of the appellant’s medications contained such warning labels (the evidence was to the effect that only one of her medications, Ativan, had this warning label);

(d) misapprehending the evidence by referencing the appellant’s anti-depressant medication as part his findings (Zoloft), when the uncontroverted expert evidence opined that this drug would not have contributed to impairment in this case;

(e) misapprehending the evidence by referring to the appellant’s awareness of the effects of her medications being “different this time” when she set out to drive (the evidence was to the effect that she felt tired, but no worse than that, upon setting out);

(f) failing to fully consider the effect of the appellant’s decision to cease driving and pull over, upon recognizing the acuteness of her drowsiness, and its effect on her driving.

[3] At trial, Ms. Hoskins conceded she was driving while impaired. However, the defence argued that the trial evidence raised a reasonable doubt that the Crown had proven the necessary mental element of the offence. DiGiuseppe J. did not accept that argument and found Ms. Hoskins guilty and imposed the minimum sentence required. Ms. Hoskins does not appeal against the sentence imposed.

The Test On A Summary Conviction Appeal

[4] Section 686(1)(a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(iii) on any ground there was a miscarriage of justice[.]

[5] Recently in the decision R. v. Linklater, 2013 ONSC 788, Shaw J. provided a useful summary of the jurisprudence concerning the test on a summary conviction appeal. At paragraphs 17 through 20, Shaw J. stated:

[17] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185 as follows:

… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[18] The test in Yebes, although expressed in terms of a verdict reached by a jury, is equally applicable to the judgment of a judge sitting at trial without a jury. R. v. Biniaris (2000), 143 C.C.C. (3d) (S.C.C.) at para. 37.

[19] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision (R. v. B. (R.H.), 1994 127 (SCC), [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact (Francis v. R., [1994] S.C.C.D. 5065-02; R. v. Yebes, supra). It is not entitled to retry the case.

[20] More recently, in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.

Discussion

[6] The issue in this appeal is whether the learned trial judge erred in interpreting the law respecting mens rea for the offence of impaired driving by applying a test that was overly stringent in terms of what the accused was required to establish in order to raise a reasonable doubt about her guilt.

[7] Ms. Hoskins argued that the learned trial judge misapprehended the facts and thereby committed an error of law. The parties agreed the leading case concerning the mens rea element required for an impaired driving conviction is R. v. King, 1962 16 (SCC), [1962] S.C.R. 746, 35 D.L.R. (2d) 386.

[8] The legal argument in this matter focused on the statement of the law as set out in Ritchie J.’s judgment in R. v. King at page 763:

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. 253] 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.

In the course of the lecture on “The Criminal Law” which is contained in the well-known work by O.W. Holmes Jr. on the “Common Law”, that learned author says:

As the purpose is to compel men to abstain from dangerous conduct, and not merely to restrain them from evil inclinations, the law requires them at their peril to know the teachings of common experience, just as it requires them to know the law.

It seems to me that it can be taken as a matter 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, 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.

[9] The defence acknowledged that R. v. King stands for the proposition that there is a rebuttable presumption in our law that the accused is presumed to know the consequences of her acts. However, the defence argues that a more careful reading of Ritchie J.’s passage in R. v. King, would permit a trial court to apply this principle more stringently or less stringently depending on the facts of the case. The argument goes that when making an assessment of the circumstances, a trial judge is permitted to moderate the stringency of the “known and intended” consequences of the actions of an accused.

[10] With respect I disagree. With regard to the elements necessary to rebut the legal presumption applicable in an impaired driving case, in my view, R. v. King stands only for the proposition that an objective test is to be applied to a consideration of the circumstances of any particular case before the court. Accepting the defence argument that somehow the circumstances can themselves create a more stringent or less stringent test, is not only practically unworkable, it would import a degree of subjectivity to the process which is not evident from the language used by Ritchie J. in the R. v. King decision.

[11] Accepting this argument would be impractical as it does not allow for what factors would direct a court to be more, or less, stringent in considering the circumstances of any particular case. To my mind, this is a kind of bootstrapping argument, which is really a disguised attempt to reweight to a subjective test, what is clearly defined by R. v. King as an objective test. Accepting the defence argument, in my view, would mean a trial court would be required to give more weight to the particular experience of an accused when dealing with an issue concerning the rebuttable presumption. This strikes me as contrary to the jurisprudence that followed and interpreted R. v. King, in particular the decision of the Ontario Court of Appeal in R. v. Murray (1985), 1985 3603 (ON CA), 12 O.A.C. 21, 22 C.C.C. (3d) 502.

[12] R. v. Murray, which dealt with the issue of operation of a motor vehicle while the operator was impaired by a drug. In that case, the driver experienced a side effect with his drug sooner than he had anticipated. In rejecting that this evidence was sufficient to rebut the presumption, Lacourciere J.A. noted:

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.

[13] In R. v. Cosentino, [2008] O.J. No. 5263 (Ont. Sup. Ct.) (QL), Durno J. dealt with an application of the principles set out in R. v. King. He noted at paragraph 79 of the decision:

… to accept the appellant's submission to the effect that ‘I have consumed that much before and my ability to drive was not impaired’, would be to import an unnecessary subjective element to the offence, and ignore the cases that establish the impairment can be caused by a combination of factors. It would permit a person who had not slept for 36 hours to say that 6 beers had never resulted in their ability to drive being impaired before and escape liability.

[14] It is clear the authorities following R. v. King have rejected an attempt to import a more subjective aspect into any consideration of the factors necessary to rebut a presumption that an accused is presumed to intend the natural consequences of her own conduct. I therefore do not accept the defence argument concerning R. v. King, nor the suggestion that the case was misapplied by DiGiuseppe J. for reasons set out below.

[15] Keeping in mind the provision of s. 686(1)(a) and the jurisprudence noted above concerning the test on a summary conviction appeal, I turn now to the particular arguments made by the parties regarding the defence allegation that the learned trial judge misapprehended the evidence and thereby committed legal error.

[16] This argument proceeded from the basis that in making his factual findings, DiGiuseppe J. did not properly apply the relevant test from the leading case on the issue, R. v. King. As noted above, I did not accept the defence position regarding the interpretation of R. v. King. In my view, DiGiuseppe J. properly applied R. v. King in considering the trial evidence concerning the mental element necessary to convict Ms. Hoskins. In my view, the Crown at trial proved the necessary mens rea and this is borne out in a specific examination of the facts upon which DiGiuseppe J. found a basis to convict Ms. Hoskins.

[17] At trial, the Crown’s case proceeded on the basis of agreed facts. Ms. Hoskins also testified in her own defence. The learned trial judge found her to be a credible and compelling witness.

[18] As noted above, the notice of appeal contained six separate ways in which the defence alleges the learned trial judge fell into error. However, upon a careful review of the grounds for appeal, and upon hearing the oral submissions of the parties, the factual dispute on this appeal can be distilled, leaving two particular findings of fact made by the learned judge.

[19] First, the learned judge found that Ms. Hoskins was aware of, and comprehended, warning labels on the prescription medications she had taken on the day at issue. These labels warned that the medications may cause drowsiness and affect the ability to drive. This ground is referred to in subparagraphs (b), (c) and (d) of the notice of appeal.

[20] Second, the defence argues the learned judge erred by finding that, on the day in question, Ms. Hoskins was aware that her medication was affecting her differently than she had experienced on prior occasions. This is set out in subparagraphs (a) and (e) of the notice of appeal.

[21] In oral argument, the defence did not pursue the ground set out at subparagraph (f) of the notice of appeal.

[22] With regard to the warning label dispute, Ms. Hoskins took the position that DiGiuseppe J. placed undue emphasis on the effect the labels had on Ms. Hoskins’ decision making process that evening. The evidence at trial was that she was under the influence of three prescription medications – Zoloft, Ativan and methadone – on the night in question. She also may have smoked marijuana the day before as was evidenced by trace amounts of THC that were found in the blood sample introduced as agreed at trial. Only the label on the Ativan contained an express warning about drowsiness. However, Ms. Hoskins admitted that she had been given literature while taking methadone that also indicated taking methadone in combination with other medications could cause drowsiness.

[23] The defence admitted Ms. Hoskins was aware of the warning on the Ativan label. However, the defence submitted that a warning label that indicates a drug “may” cause drowsiness, is capable of also informing a person taking the drug that it “may not” cause drowsiness. The defence argued by referencing the warning labels, the learned judge was placing too stringent a requirement on the mental element Ms. Hoskins had to prove to rebut the legal presumption that she knew a consequence of taking her prescriptions was a possible resulting impairment of her ability to drive.

[24] With regard to the argument that DiGiuseppe J. placed an “unwarranted degree of reliance” on the warning labels contained on the prescription medication, in my view, there was clear evidence at trial that Ms. Hoskins was aware that at least two of her prescription medications, Ativan and methadone, could cause drowsiness. The fact that the trial evidence indicated Zoloft did not have a drowsiness label is not sufficient to bring the learned judge’s findings about “labels” into a category of being a misapprehension of the evidence.

[25] The defence also argued that a label which indicates a drug may cause drowsiness is also consistent with a presumption that a drug may not cause drowsiness. If this proposition was accepted, then the defence would have proceeded to suggest that Ms. Hoskins was in a position of being unaware of the possible effects that taking the medication would have on her ability to drive. I reject this argument. I think it ignores a common sense understanding that is presented to every adult consumer of prescription medications. Common sense suggests that any warning label placed on a prescription bottle is put there as the result of scientific evidence related to the effects the medications will be expected to have on the consumer of the drug. The warnings are given out of an abundance of caution. The labels recognize when it comes to operating machinery or driving a car (inherently risky activities), it is a best practice, a reasonable action, for a person to avoid, rather than engage in such activities, when using medications that contain these express warnings. I do not think it lies in the mouth of an accused having admitted to driving impaired, that they should escape responsibility because a warning label uses the words “may cause drowsiness” when one could, arguably, “read in” to the label, the words “may not cause drowsiness”. While this may be an appropriate argument concerning the interpretation of statutes, it does not persuade me in this particular matter.

[26] The evidence concerning the label issue was reasonably capable of supporting the trial judge’s finding. In my view, DiGiuseppe J. did not misapprehend the facts concerning this issue.

[27] The second line of argument concerning the learned judge’s alleged misapprehension of the facts focused on the conclusions he made concerning how Ms. Hoskins’ experience had impacted her decision to drive on the evening in question. This evidence related to her prior experience with her prescription medication and how, in the past, she had not had any adverse effects when using the particular medication she took on the evening in question. DiGiuseppe J. found that she was feeling differently before she got behind the wheel and drove.

[28] The defence argued that learned trial judge misapprehended the evidence by attributing to Ms. Hoskins a mental state that recognized her prescription medications were affecting her differently than they had in the past, when all she had testified to was that she was “tired” prior to getting behind the wheel on the night in question.

[29] The trial testimony to which I was directed in oral argument was as follows:

Transcript: Jodie Hoskins – in-Ch. beginning at page 18, line 5:

Q. Okay. And then how were you feeling during the rest of the tattooing?

A. I was feeling okay but tired.

Q. Tired.

A. Yes.

Q. Okay; why did you think you felt tired if you had reason.…

A. A long drive that day, lots going on, the stress of the tattoo.

Q. Okay; was the tattoo completed?

A. Yes, it was.

Q. Did it hurt?

A. Yes.

Q. Is there-they don’t give you anything for pain really?

A. No.

Q. So, did you wait at the tattoo shop at all after the tattoo was done?

A. No, he took a picture of it and I paid him and I left.

Q. Okay; and how were you feeling when you left the tattoo shop?

A. Tired.

Q. And what were you intending to do on leaving the tattoo shop, where were you planning to go?

A. I was planning to go back to my hotel.

Q. Okay; so just describe exactly how things go from the point you leave the tattoo shop and get into your vehicle? I assume your vehicle is there at the time?

A. Right. I got in and I checked my map to see which way I had to go to leave.

Q. Okay.

A. And I proceeded to leave and I turned left, then right, and I realized that I was very tired and wasn’t feeling myself and I decided to pull off and loot at my map and find out where I was because I don’t know the city very well and I was going to call for a ride.

Q. You were going to call for a ride?

A. Right.

Q. So, is that the reason you were looking at a map.

A. Right.

Q. Do you have a cell phone that you carry?

A. Yes, I do.

Q. Did you have it with you at that time?

A. I would say, yes.

Q. So, if you could just go into a little more explanation of why you decided to pull over.

A. I didn’t feel that I should have been driving at that point.

Ending at page 19, line 24.

Jodie Hoskins – Cr-ex. beginning at page 39, line 13:

Q. All right; now you said that when you-the tattoo was done you felt tired; correct?

A. Correct.

Q. All right; you’d had a fairly decent night’s sleep the night before it sounds like, you went to bed at nine or ten and got up at a regular time?

A. Fairly.

Q. Okay; and the drive from Emo is what, about four hours?

A. Roughly, yes, four and a half.

Q. And then you sort of relaxed in the middle of the day, did some shopping, things like that?

A. I wouldn’t call it relaxing, but, yes.

Q. Okay; but you weren’t doing anything particularly stressful during the middle of the day.

A. No, just busy all day long.

Q. Okay; just running around doing some shopping, things …

A. Right.

Q. … like that. And at what point in the tattoo do you start to feel tired?

A. After I took the second one I was relaxed and …

Q. Okay; I’m not concerned about relaxed though, I want to know about tired because that was your evidence.

A. Right; probably into the second or third hour.

Q. Okay; so you start to feel tired, and is this a normal tired or is this something, “Man, I’m really bagged; I’m just really exhausted.”?

A. Exhausted, yes, like not falling asleep or anything but, yes, I was overly tired.

Q. Okay; so certainly the effects at that point were different than what they had been before.

A. Correct.

Q. Okay; and you were aware that they were different.

A. At the time I didn’t realize that I was more than just tired.

Q. Okay. Well, but you’ve certainly recognized that your tiredness at this point after taking your medication was different than it had been before.

Q. Right.

A. Right.

Ending at page 40, line 24.

[30] In my view, based on a review of this evidence and the submissions of the parties, there is no basis to find that DiGiuseppe J. misapprehended the evidence on this point. Nor can it be said that the evidence was not reasonably capable of supporting the trial judge’s decision. The particular finding was one the learned trial judge was entitled to make based on the evidence before him. Ms. Hoskins testified about her condition that evening in a manner that left it open to a trial judge to make a finding, as DiGiuseppe J. did, that she was “unusually tired” before she drove. The last question noted above was quite direct. It was expressly directed at obtaining from Ms. Hoskins the admission that her state of tiredness was different from that which she had experienced previously. This admission is capable of supporting a finding that Ms. Hoskins acknowledged that the effects of the medication on her were different than she had previously experienced.

[31] The defence argues that the learned trial judge did not give proper weight to the evidence Ms. Hoskins gave with regard to her prior experience with her medication. For me, this argument was no more than a statement by the defence that Ms. Hoskins simply did not agree with DiGiuseppe J.’s findings that Ms. Hoskins was experiencing something different from her usual experience on the night in question. Again, in my view, the evidence was reasonably capable of supporting the conclusions reached by the trial judge.

[32] Therefore I do not find that the learned trial judge misapprehended the evidence on both factual points raised in this appeal. His findings of facts were based on the evidence given at trial.

[33] In my view the learned trial judge did not err in law. He relied on the leading case of R. v. King, he considered the application of a rebuttable presumption, and found no reasonable doubt that the accused was able to appreciate the possibility that she was impaired and nevertheless chose to drive. His judgment was not unreasonable and was supported by the trial evidence. It was not argued before me that the trial judgment represented a miscarriage of justice.

[34] The appeal is therefore dismissed. There was no appeal as to sentence. Ms. Hoskins was sentenced to the minimum penalty, a one year licence suspension and a fine of $1000.00. As agreed, this licence suspension shall take effect 30 days following the release of these reasons.

___________”original signed by”

The Hon. Mr. Justice F. Bruce Fitzpatrick

Released: September 23, 2013

COURT FILE NO.: CR-12-0134-AP
DATE: 2013-09-23

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen,

Respondent

• and –

Jodie Hoskins,

Appellant

DECISION ON
SUMMARY CONVICTION APPEAL

Fitzpatrick J.

Released: September 23, 2013

/mls