CITATION: R v. Dewey, 2016 ONSC 7536
COURT FILE NO.: SCA(P) 1211/15
DATE: 20161205
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Quilty, for the Crown
Plaintiff
- and -
ERIC DEWEY
P. Lindsay, for the Defendant
Defendant
HEARD: October 21, 2016
SUMMARY CONVICTION APPEAL
[from the conviction and acquittal of the Honourable Justice Lenz of the Ontario Court of Justice]
Ricchetti, J.
THE APPEALS
[1] After a lengthy trial over 11 days, on September 1, 2015, Justice Lenz found Mr. Dewey not guilty of impaired driving and guilty of refusing to provide a breath sample.
[2] Mr. Dewey appeals the conviction on the refusing to provide a breath sample charge on the grounds:
a) the verdicts were inconsistent; and
b) having determined that Mr. Dewey suffered the "unanticipated effects of medication combined with alcohol" to acquit on the impaired charged, he erred in not acquitting Mr. Dewey on the same basis on the failure to provide a breath sample.
[3] The Crown appeals the acquittal on the impaired charge on the grounds:
a) the trial judge erred in his determination of the mens rea of impaired driving;
b) the trial judge erred in his interpretation of s. 253(2) of the Criminal Code; and
c) the trial judge erred in failing to find that Mr. Dewey was impaired by alcohol or drug.
[4] The sole issue at trial was mens rea - Mr. Dewey's mental state at the time of the driving and at the time of the refusal to provide a sample. The Defence submitted that he did not have the required mens rea because of the “unintended and unforeseen consequences” of the combination of alcohol and drugs at the time of driving and the refusal to provide a breath sample.
[5] The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that could have been reasonably reached. As a result, a court sitting on appeal should only allow an appeal of the decision, if:
a) it cannot be supported by the evidence; or
b) it is clearly wrong in law; or
c) it is clearly unreasonable; or
d) there was a miscarriage of justice.
REASONS FOR JUDGMENT
[6] After an 11 day trial, on April 27, 2015, the trial judge gave oral reasons for judgment. Further reasons for judgment were issued on September 1, 2015.
THE FACTS
[7] Mr. Dewey is the president of a transportation and logistics company.
[8] On August 10, 2011, prior to 6:00 p.m., Mr. Dewey had been operating a motor vehicle. He had been observed driving erratically, hitting the curb repeatedly, going through signs and a construction site. His vehicle eventually came to stop on the roadway. The vehicle was running. Mr. Dewey was passed out in the driver's seat. The wheels of Mr. Dewey’s car had been damaged by his driving, the tires were flat and the rims were damaged.
[9] When the police arrived, they had difficulty waking Mr. Dewey. His eyes were unfocused and there was a strong smell of alcohol on his breath. His speech was slurred. The police officers had to help Mr. Dewey out of the car and to the sidewalk.
[10] Persons in the area testified as to Mr. Dewey’s physical condition and behaviour when the police arrived.
[11] There was no dispute at the trial that Mr. Dewey’s ability to drive had been impaired that day and that Mr. Dewey had driven a motor vehicle.
[12] Mr. Dewey was arrested around 6:00 p.m. Mr. Dewey's vehicle was about a 22 to 60 minute drive from The Keg restaurant depending on traffic. The distance travelled was approximately 18.3 kilometres.
[13] Mr. Dewey was charged with impaired driving. When placed into the police cruiser, he immediately fell asleep.
[14] At approximately 6:35 p.m., Mr. Dewey was taken before a qualified breath technician. The entire encounter in the breath room was videotaped and made an exhibit at trial.
[15] While in the breath room, Mr. Dewey continued to show some signs of impairment (such as an odour of alcohol and red, watery eyes). However, Mr. Dewey was awake, responsive and showed a considerably greater awareness. For example, he asked the officers whether he had hit someone and when the officers told him no, he said “oh thank God” and began crying; he asked to speak to his (specifically named) lawyer; he spoke with duty counsel, he asked to speak to his wife and advised the police officer that he would provide a breath sample if he first spoke to his wife; he was belligerent and intimidating to the police officers.
[16] As stated above, Mr. Dewey refused to provide a breath sample until after he had spoken with his personal counsel. Mr. Dewey understood and exercised his right to speak with counsel of choice, who unfortunately did not return the call to him. Mr. Dewey spoke with duty counsel.
[17] As the outside time for taking a breath sample loomed near, the technician repeated the demand for a breath sample. Mr. Dewey clearly stated he would not do so until after he had spoken to his wife. This request was denied by the officer as they had been attempting to contact Mrs. Dewey but had been unable to do so. Mr. Dewey maintained his refusal.
THE DEFENCE EVIDENCE AT TRIAL
Mr. Dewey’s Evidence
[18] Mr. Dewey testified that he was prescribed and took various medications, including Ativan (also known as Lorezapam), an antidepressant. He also took another drug which is not an issue. Mr. Dewey had been on a .5 milligram dosage of Ativan (the lowest dosage) for approximately 30 years. Mr. Dewey could not recall a doctor warning him about the danger of combining alcohol and Ativan nor did he think it might be problematic to combine alcohol with the Ativan. Mr. Dewey denied seeing any leaflet or drug information regarding a warning of combining Ativan and alcohol. Mr. Dewey admitted that he may have received some information regarding the effect of combining Ativan and alcohol but couldn't recall. Mr. Dewey denied he had ever previously combined alcohol and Ativan over the 30 years.
[19] On the day in question, Mr. Dewey testified he went to work in the morning. Mr. Dewey had a business meeting which lasted until approximately 2:30 p.m. After the meeting Mr. Dewey took a .5 milligram Ativan pill – his usual dosage.
[20] Mr. Dewey drove to The Keg and sat at the bar. Mr. Dewey testified he had a glass and a half of wine. Mr. Dewey testified that 30 - 40 minutes later, approximately between 3:30 and 4:15 or 4:30 p.m., he left for home. Mr. Dewey recalled leaving The Keg, getting into his car and driving northward.
[21] Mr. Dewey testified he couldn't recall anything else after heading northward in his car until he awoke next morning in the jail cell. Mr. Dewey testified he had no recollection as to what had occurred at the police station – the demand for a breath sample and his refusal. The trial judge was skeptical about Mr. Dewey being forthright in his evidence and did not accept his evidence or find that it raised a reasonable doubt when conducting his W.D. analysis.
Dr. Moftah’s Evidence
[22] The Defence called Dr. Moftah, an expert on absorption and elimination of alcohol from the body and the effects of alcohol and drugs on the body.
[23] Dr. Moftah testified that a glass and a half of wine would result in less than 80 milligrams of alcohol in the blood – he testified that Mr. Dewey’s blood alcohol concentration would have been approximately 32 milligrams of alcohol less whatever alcohol had been eliminated by Mr. Dewey’s body while at the bar. Dr. Moftah testified this amount of alcohol alone would not produce Mr. Dewey’s symptoms or behaviour observed at the scene where he was found stopped and asleep in his car.
[24] Dr. Moftah testified as to the body's elimination rate of alcohol being 10 to 20 milligrams of alcohol per hour. Using this elimination rate based on Mr. Dewey's evidence that he only had one and a half glasses of wine, Mr. Dewey’s blood alcohol level at approximately 6:00 p.m. that day would be very low. The trial judge also used Dr. Moftah's elimination rate to conclude that Mr. Dewey would have approximately zero milligrams of alcohol by the time he was in the breath room – a reasonable inference from Dr. Moftah’s evidence.
[25] Dr. Moftah opinion that it was unlikely the impairment observed in Mr. Dewey was caused by Ativan alone given the lengthy history of Mr. Dewey’s use of the drug.
[26] Dr. Moftah opined that Mr. Dewey’s observed behaviour could arise from the combination of the Ativan and alcohol. Dr. Moftah testified that the effect of alcohol on the Ativan could, in some people, enhance the effects of Ativan by as much as 10 fold. In others, not at all. Dr. Moftah referred to this as a "synergistic effect" causing the effects of Ativan to be a lot more than "it used to be".
[27] The entire thrust of Dr. Moftah's opinion for the Defence was the possible effect on Mr. Dewey from a combination of the Ativan and alcohol:
Q....in your opinion, would the Lorezepam have been interacting on his body in conjunction with the, the alcohol from the Chardonnay?
A. It certainly it would.
Q.... could he still have been feeling the effect of those two drugs in his system at the time of the driving?
A. Yeah, he, he could.
Q. [After viewing videotape in the breath room] .. would the effect that you've described to us on the body still have been likely operating on Mr. Dewey at the time he was in police custody at the station?
A. Yeah, it would have because Ativan, as we said, it's half life it's 12 hours and you have half of the amount after 12 hours, and in some literature, it could go up to 16 hours.
[28] Dr. Moftah was not asked whether this possible synergistic effect of the combination of Ativan and alcohol would continue after the alcohol had been completely eliminated from the person's blood - as the trial judge concluded it would have in the breath room if Mr. Dewey had only consumed one and a half glasses of wine some three hours earlier. Dr. Moftah's response to the question whether the observed behaviour in the breath room could have been from the combined alcohol and Ativan consumption was that it would have because the half-life of Ativan is 12 hours failed to deal with what happens to the possible synergistic effect between the Ativan and alcohol when the alcohol has been eliminated from the body.
Trial Judge’s Comments Regarding Dr. Moftah’s Evidence
[29] Unfortunately, the trial judge's reasons embark upon a description of "synergism" and "potentiation" from sources not described or in the evidence at trial to conclude that:
a) the "doctor's regrettably confused in regards of the meaning of synergism and potentiation."
b) "Clearly, as I noted, he doesn't appreciate the very basic distinction between synergism and potentiation, and nor can he say which might be occurring”. He concluded "It struck me that he was simply reading from the book [Compendium of Pharmaceuticals and Specialties] and his report is simply the contents of what's in the book describing what will take place if you take Lorazepam."
[30] The trial judge concluded regarding Dr. Moftah's evidence:
Frankly as it relates to Dr. Moftah I can give moderate weight, but there is a need for caution in respect of the issue of drugs combined with alcohol and its impact on the body. With that caveat it proves some support for the defendant's contention that it was a combination of a minimal amount of alcohol and a low dosage of Lorazepam that caused the severe reaction as opposed to a large quantity of one or the other.
TRIAL JUDGE’S DECISION ON THE IMPAIRED DRIVING CHARGE
[31] On the impaired charge, the trial judge concluded:
I am very suspicious of some of the defendant's testimony. I have concluded that it might reasonably be true that the defendant consumed some alcohol in an amount I cannot say with Lorazepam, and he did so when Lorazepam was at its highest concentration. I am willing to believe that it might reasonably be true that the impact of each was enhanced by the other, thus increasing the more usual signs of Lorazepam or alcohol, dizziness, lightheadedness, drowsiness, clumsiness, unsteadiness and slurred speech, all of which was shown by the defendant. I, on all the evidence, believe it might reasonably be true - again with some serious reservation - that despite the length of time the defendant has taken medication or to some extent because of the length of time the defendant might honestly not have recalled the warning he was given initially in respect of the danger of taking medication with alcohol and serious impairment which could result therefrom.
The most important factor for me in coming to a conclusion that it might reasonably be true that the consumption of the Lorazepam and alcohol caused the impact that he has described is actually the information and observations of the civilians and officers at the scene.
Those observations by civilians who have no particular axe to grind and by officers who are clearly fair is actually in my opinion what's most likely to allow me to come to a conclusion that what the defendants says with the support of what Dr. Moftah said might reasonably be true.
It’s the last section [of W.D.] which shall we say gives Mr. Dewey the out. His own evidence quite frankly as far as I was concerned was not sufficient to raise a reasonable doubt even combined with Dr. Moftah's evidence. However, when one looks at the evidence as a whole and sees the state of the defendant as described by civilians, so far as I'm concerns that evidence is and provides sufficient evidence to raise a reasonable doubt.
There is in my opinion sufficient evidence overall to raise a reasonable doubt as it relates to the impaired driving
Trial Judge’s Decision on the Refusal to Provide a Breath Sample
[32] There was no dispute at trial that Mr. Dewey refused to provide a breath sample when demanded. There was no dispute that Mr. Dewey did not have a lawful excuse to refuse to provide a breath sample until he had spoken with his wife. This reason for the refusal does not constitute a lawful excuse. The issue was Mr. Dewey’s state of mind.
[33] The trial judge found:
He may have been disinhibited and unwise and stupid for the way he handles it, but he was the one who made the decision not to provide a sample. He made it clearly. He understood what he was being asked and he chose not to. It struck me in fact that looking at the video he had a fully operating mind; he knew what he was being asked to do; he was largely responsive though unwisely crude; he seemed to understand the consequences of a refusal and he decided for his own reasons, good or bad, to refuse.
Furthermore, just because this defendant doesn't remember what he did now does not mean he failed to comprehend what was being asked of him at the time the demands are being made.
As it relates however, to the failure to provide a sample of his breath, the situation in my opinion is not the same. I noted that when the defendant failed to provide a sample of his breath he was sufficiently aware of his rights, that he made a logical choice to speak to his own counsel. I noted as well when offered a chance to speak with Duty Counsel he did, although he called him a lamebrain. He was from looking at the video apparently able to understand the demand and when offered to provide the sample, indicate he would if he could speak to his wife, something that the police had been attempting to do. When the breath tech refused to contact his wife the defendant simply refused to supply a sample. He did not at that time seem to demonstrate the extreme symptoms of impairment previously noted by the police.
Frankly, looking at it there is also a logical reason for the defendant refusing to provide a sample of his breath, more logical than an impairment of judgment by the consumption of a low dosage of Lorazepam and alcohol. In my opinion, the more likely reason is that the defendant didn't wish an analysis of his breath so that there could be accurate information as to the amount consumed, perhaps during the missing hour, since he really can't say how much he has consumed.
Whether approached on facts or law, in my opinion the Crown has proven beyond a reasonable doubt the following. A proper demand was made. The demand was clearly understood and consciously of his own volition with a full understanding of what was being requested the defendant refused which is all that the Crown needs to prove.
Just because he can't remember it now doesn't mean that he wasn't operating with a conscious mind at the time that he was asked to supply the sample.
[34] On the September 1, 2015 the court added to its reasons from a page which was inadvertently omitted when the reasons had be read on April 27, 2015. On the issue of the effect of Ativan and alcohol on the refusal to provide a breath sample charge:
….. I would also point out that based on the evidence of the defendant and Dr. Moftah and the expert evidence as it related to absorption and elimination of alcohol, even at the lowest elimination rate, at the time the demand was made there would have been no alcohol in the defendant's system, provided his recollection was correct in regards to having one and one half glasses of Chardonnay. There wasn't anything in his system at the time of his refusal to react with the Lorazepam, which was the issue that was supposed to create the enhanced effect on a low dosage of Lorazepam.
If one looks at the nature of what the defendant was doing during his time with the breath tech, he is (1) trying to delay providing a sample by demanding an opportunity to speak to his wife, and (2) deterring the police at one point with remarks like, "I have friends. You guys are so fucked", which I think were remarks intended to intimidate the police.
THE FAILING TO PROVIDE A BREATH SAMPLE CONVICTION
Inconsistent Verdicts
[35] This court finds no inconsistency between the verdicts on the two counts. Both offences have different essential elements. Both offences were alleged to have occurred at different times. The trial evidence as to Mr. Dewey's mental state at the two time periods was different.
[36] The fact, the court had a reasonable doubt that Mr. Dewey had the necessary mens rea when driving, does not necessarily mean that the trial judge was required to have or should have had a reasonable doubt regarding Mr. Dewey's mens rea when a breath sample was demanded.
[37] I see nothing inconsistent with the trial judge concluding that he had a reasonable doubt Mr. Dewey knew or that it was foreseeable that the combination of the alcohol and drugs voluntarily taken would impair his ability to drive but, nevertheless conclude that, by the time Mr. Dewey was asked for a breath sample, he understood the demand was made, had the capacity to reason and made the conscious decision to refuse to provide a breath sample.
[38] This ground of appeal is dismissed.
Material Misapprehension of Dr. Moftah’s Evidence
[39] A misapprehension of evidence warranting appellate intervention refers to a failure on the part of the trial judge to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence that occupy an essential part in the narrative of the judgment and in the reasoning process upon which a conviction is founded.
[40] This test was first set out by Justice Doherty in R. v. Morrissey, (1995) 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, and subsequently adopted by the Supreme Court of Canada in a number of other cases. In Morrissey, Justice Doherty noted:
… Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[41] In order for the Defence to succeed on this ground in this appeal, the Defence must show that the trial judge was mistaken as to the substance of material parts of the trial evidence and that those errors played an essential part of the reasoning process resulting in the conviction.
[42] The Defence submits that the trial judge’s misapprehension of the evidence (namely the trial judge’s assessment of Dr. Moftah’s evidence) was effected by the trial judge erring in the following areas:
a) the trial judge erred in his assessment of Dr. Moftah's experience with drugs. Dr. Moftah did testify that he had considerable expertise in the area of impact of drugs on the body and mind; and
b) The trial judge conducted his own research into synergism versus potentiation, from which he concluded Dr. Moftah did not appreciate the significance. The Defence submits this affected his assessment of Dr. Moftah’s evidence. There is no doubt that the trial judge erred in considering extraneous evidence which was not in evidence at trial rendering the trial unfair when he conducted research into various definitions in unknown sources and coming to conclusions regarding his assessment of Dr. Moftah’s evidence . See R. v. Stucky 2009 ONCA 151, [2009] O.J. No 600 (C.A.) at para 68.
[43] I accept that the trial judge erred by conducting his own research, assessing Dr. Moftah's evidence, in part, based on his own interpretation of that research.
[44] As Dr. Moftah's evidence relates to the refusal to provide a breath sample offence, the issue is whether the trial judge’s assessment of Dr. Moftah’s evidence was an essential part of the trial judge’s reasoning process in the questions he needed to decide:
a) Whether a lawful demand was made;
b) Whether there was a failure to comply with that demand; and
c) Whether Mr. Dewey intended to produce a failure to provide a breath sample.
[45] The sole issue at trial was whether Mr. Dewey intended to produce a failure to provide a breath sample. The Defence position was that Mr. Dewey did not have the intention to produce the failure because of the combined effect of alcohol and Ativan on his mental state.
[46] In my view, the necessary mental state at the time of the demand for a breath sample was whether Mr. Dewey had the mental ability to appreciate and understand a demand was being made for a sample of his breath and had the mental ability to make a choice whether to comply with the demand.
[47] The trial judge concluded Mr. Dewey did appreciate and understand the demand and made a decision to refuse to provide a sample for the following reasons:
a) Having reviewed the videotaped recording, the trial judge observed Mr. Dewey's behaviour at that time the demand was made. The trial judge had clear and cogent trial evidence of Mr. Dewey's state of mind at the relevant time. The trial judge concluded that Mr. Dewey had an operating mind - he understood what was going on and could properly make and articulate his decisions; He understood the questions asked; He responded to the questions properly; He understood and exercised his Charter rights; He understood he could speak to his own lawyer and asked to speak with him by providing his name; He spoke with duty counsel; He attempted to intimidate the police to delay proceeding with the breath sample; he was attempting to delay providing a breath sample. Unlike at the time the police arrived at Mr. Dewey's car, by the time Mr. Dewey was at the police station, his mental abilities had substantially improved and there was a video recording of the entire events for the trial judge to review and consider;
b) The observations of Mr. Dewey's behaviour at the scene where he was found in his car were consistent with Dr. Moftah's described effects of how alcohol and Ativan could synergistically combine to effect Mr. Dewey's state of mind. However, the observations of Mr. Dewey's behaviour in the breath room displayed an operating mind capable of understanding, reasoning and decision making; and
c) If one accepts Mr. Dewey's evidence that he only had one and a half glasses of wine some three plus hours earlier, then the trial judge concluded Mr. Dewey would not have had any alcohol left in his system to synergistically interact with the Ativan. On the other hand, if Mr. Dewey were not telling the truth about the amount he had to drink that afternoon, Mr. Dewey would have the motivation for delaying or refusing to provide a breath sample. The trial judge stated it appeared that Mr. Dewey was sufficiently alert to attempt to delay the taking of the sample - evidence of a cognitive mind operating to avoid the consequences of his actions.
[48] This gave the trial judge ample evidence to conclude: "It struck me in fact that looking at the video he had a fully operating mind; he knew what he was being asked to do; he was largely responsive though unwisely crude; he seemed to understand the consequences of a refusal and he decided for his own reasons, good or bad, to refuse."
[49] Could the trial judge’s assessment of Dr. Moftah’s evidence have had a material effect on his determination on the trial judge's assessment of Mr. Dewey's state of mind?
[50] Having reviewed the entirety of Dr. Moftah’s evidence at trial, I conclude that it was not material to the trial judge’s determination whether Mr. Dewey intended to produce a failure to provide a breath sample. I come to this conclusion because:
a) At no point was Dr. Moftah specifically asked about the amount of alcohol which could have remained in Mr. Dewey's body at the time he was in the breath room given Mr. Dewey's time of consumption at The Keg (between 3:30 pm and 4:30 pm) and whether, if there was no alcohol left in Mr. Dewey's body, how or whether the Ativan and alcohol [or lack of alcohol] could or would have resulted in the suggested synergistic effect on Mr. Dewey's behaviour in the breath room;
b) While Dr. Moftah described Mr. Dewey's behaviour as possibly arising from the combination of alcohol and Ativan, Dr. Moftah was not asked and did not provide any opinion regarding Mr. Dewey's ability to understand, reason and make decisions while in this state, IF the synergistic effect continued while Mr. Dewey was in the breath room. It is important to note that Dr. Moftah's evidence, while explaining the observed behaviour of Mr. Dewey, does NOT at any point suggest that Mr. Dewey did not or could not in the breath room, understand that a demand was made and make an informed choice as to whether to provide or not provide a breath sample. Not being a medical doctor or a psychiatrist, Dr. Moftah could not and did not opine on Mr. Dewey's mental ability to form the requisite intention in the breath room; and
c) The videotaped encounter in the breath room provided very clear and cogent evidence regarding Mr. Dewey’s ability to form the requisite intention.
Inconsistent Findings between the Impaired Driving and Refusal to Provide a Breath Sample
[51] I find no inconsistency in the trial judge’s findings. The trial judge found that Mr. Dewey had an operating mind when a request was made for a sample of his breath and he refused based on the evidence as a whole, including a review of the videotaped encounter in the breath room. The trial judge dismissed the argument that the combined effect of the alcohol and drugs continued to cause a non-operating mind because, in part, by that time the evidence suggested Mr. Dewey’s blood alcohol level would have been zero – leaving nothing for the Ativan to react with and, in part, because Mr. Dewey's observed actions and reactions did not appear to be impaired. The trial judge’s decision to go further and suggest a possible reason why Mr. Dewey might have refused to provide a sample was neither necessary nor integral to his reasoning of the conviction on this count. This statement was not inconsistent with the overall findings, analysis or conclusion of the trial judge.
[52] The Defence then embarks upon its own speculative analysis. The Defence suggests that there was no evidence of the precise timing of Mr. Dewey’s last drink. However, the evidence accepted by the trial judge is that Mr. Dewey left The Keg at approximately 4:15 to 4:30 p.m. when Mr. Dewey said he left The Keg and got into his car to drive. Clearly, based on Mr. Dewey’s evidence, he did not have a drink after that - he was driving. The suggestion that there is no evidence of timing of Mr. Dewey's alcohol consumption is not supportable.
[53] The Defence submits that Dr. Moftah’s calculation of the blood alcohol level was based on Mr. Dewey being 200 pounds but there was no direct evidence of Mr. Dewey’s weight. Like the prior submission, I do not accept this submission. The Defence called Dr. Moftah. At page 29 of the transcript, in-chief, Dr. Moftah uses 200 pounds for Mr. Dewey's weight for the purpose of providing certain concentrations of blood alcohol based on that estimate. Given the evidence at trial, I am not persuaded that it was improper to use Dr. Moftah’s evidence as to the rate of elimination of alcohol.
[54] The Defence also submits that, because there was a smell of alcohol from Mr. Dewey in the breath room, there was some evidence of continued alcohol in Mr. Dewey's body for the Ativan to interact with. In my view, this is pure speculation by the Defence. It is not known whether the smell of alcohol was residual (from clothes, from Mr. Dewey's breath) or because of a high blood alcohol level. Further, there is no evidence as to the source, strength of this smell and what, if anything, there is a correlation with Mr. Dewey’s blood alcohol level at the time.
[55] The Defence also submits that the effects on Mr. Dewey may have been caused by the Ativan by itself. The evidence at trial was that Mr. Dewey was taking the lowest dosage for Ativan and that Mr. Dewey had been taking this drug and dose for approximately 30 years. The question asked of Dr. Moftah was:
Q: ... [limiting it to 4 years prior to the events in question] they could - they can hypothetically take this medication from time to time situationally if they're experiencing anxiety or stress, could that person four years down the line all of a sudden experience side effects just from the consumption of .5 milligrams of Ativan?
A. Yeah, it could.
[56] It is unclear whether this issue was argued at trial. In any event, what is clear is that this is speculation at its highest like the following question: hypothetically, could the world end today? Yes, it could. Many drugs have the potential to cause symptoms such as described as possible effects of Ativan. To allow such pure speculation to raise a reasonable doubt without more of a causal connection would not and does not raise a reasonable doubt without additional evidence to connect the potential symptoms and the symptoms observed in the particular case.
[57] Most importantly, regardless of what may have caused the behaviour observed at the scene, the trial judge having viewed the videotaped encounter in the breath room and concluded that Mr. Dewey, despite his behaviour, had an operating mind in that he understood what was being asked and made a conscious decision to refuse to provide a breath sample.
[58] I see no merit to this ground of appeal.
Failure to Consider “Reasonable Excuse”
[59] The Defence submits that, even if Mr. Dewey specifically intended the consequences of his words of refusal, there is still a question of whether Mr. Dewey had a lawful excuse due to the consequences of alcohol/drugs. The Defence submits that the trial judge did not deal with this issue.
[60] It is noteworthy that the Defence fails to set out what the “lawful excuse” would be given the trial judge’s findings that: “The demand was clearly understood and consciously of his own volition with a full understanding of what was being requested the defendant refused which is all that the Crown needs to prove.”
[61] The onus was on Mr. Dewey to establish a reasonable excuse on the balance of probabilities. See. R. v. Goleski, 2015 SCC 6 at para 1. He failed to do so.
[62] I reject this submission.
Conclusion on Failing to Provide a Breath Sample
[63] In addressing whether the verdict was unreasonable, I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. Rather, I am required to determine whether there was evidence to support the conviction by examining whether a properly instructed trier of fact, acting reasonably, could reach the conclusion the trial judge did: R. v. Yebes (1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.).
[64] I am satisfied that there was ample evidence to support the trial judge's determination that the Crown had proven beyond a reasonable doubt that Mr. Dewey, at the time the demand was made, had the capacity to form and did form the intention to refuse to provide a breath sample to the police technician.
[65] The appeal from the conviction on the refusal to provide a breath sample is denied. The conviction is upheld.
IMPAIRED DRIVING ACQUITTAL
The Crown’s Position
[66] The Crown submits that, unlike the situation where the impairment is caused by alcohol or drugs alone,:
More than half a century after King, the question that remains unanswered is whether the presumption is rebuttable where an accused’s impairment is caused by a combination of alcohol and a prescription drug. (para 4 of the Crown’s Factum)
The Crown submits that where impairment is caused by the combination of alcohol and a prescription drug, the presumption in King is not rebutted. This is true whether or not the accused had reasons to be aware of the effects of such a combination.(para 16 of the Crown’s Factum)
Where the impairment is caused by the voluntary consumption of alcohol or narcotics, the presumption is not rebuttable, as common sense – or “common experience” – dictates that alcohol and narcotics may cause impairment. It is only where the impairment is caused by a medicinal drug taken on the recommendation of a doctor that the presumption can be rebutted, and then only if the accused could not reasonable have been expected to be aware of the drug’s effect.(para 22 of the Crown’s Factum)
The Crown’s position is that where impairment caused by a combination of alcohol and a prescription drug, the presumption of voluntariness cannot be rebutted....
(para 24 of the Crown’s Factum)
Analysis
Mens Rea for Impaired Driving
[67] The offence of impaired operation is a general intent offence: R. v. Penno (1990), 1990 CanLII 88 (SCC), 59 C.C.C. (3d) 344 (SCC) at par 18. A general intent offence is one where the required intent relates solely to the performance of the act in question, with no other ulterior intent or purpose.
[68] The mens rea for impaired operation is the intent to operate a motor vehicle after the voluntarily consuming alcohol or a drug. The actus reus is the act of operating a motor vehicle when the voluntary consumption of alcohol or a drug has impaired the operator's ability to operate the motor vehicle: R. v. Toews 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119
[69] In R. v. King, 1962 CanLII 16 (SCC), [1962] SCR 746, Justice Ritchie described what constitutes the mens rea for the offence of impaired driving.
In my view the enactment of s. 223 of the Criminal Code added a new crime to the general criminal law, and neither the language in which it was enacted nor the evil which it was intended to prevent are such as to give rise to a necessary implication that Parliament intended to impose absolute liability unless the impaired condition which the section prohibits was brought about by some conscious act of the will or intention. (page 762)
....and I am of opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.
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. (page 763)
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. (page 764)
(emphasis added)
[70] The Crown accurately states that King referred to impairment by alcohol or drugs. The Supreme Court, in 1962, did not deal with the situation where the impairment could be caused by a combination of alcohol and drugs.
[71] The Crown's position essentially would make impaired driving an absolute liability offence if the impairment was caused by a combination of alcohol and drugs.
[72] I cannot read King as strictly as the Crown proposes. The essence of the Supreme Court’s decision in King is that where the impairment is caused by consuming a substance, the presumption arises that the impairment was voluntarily caused – a presumption which is rebuttable. This presumption results in the necessary mens rea – that the accused intended to operate the vehicle after having voluntarily consumed the substance which impaired the accused's driving ability. The presumption of mens rea can be rebutted where the accused can show that he did not have a “guilty mind” because the impairment resulted of an unknown or unforeseeable consequence of his or her voluntary act(s) of consuming the substance.
[73] According to King, this analysis would apply to the voluntary consumption of alcohol. According to King, this analysis applies to the voluntary consumption of a drug. I see no reason why this same analysis should not apply equally to situations where multiple voluntarily consumed substances may have caused or contributed to the impairment to operate a motor vehicle.
[74] As a result, I see no reason why - where the impairment is caused by the voluntary consumption of alcohol and drugs, the accused cannot adduce evidence to attempt to rebut the presumption that his voluntary consumption of the combination was neither known nor foreseeable to cause any impairment to the accused's driving ability. To do otherwise, would be to make impairment when caused by alcohol AND drugs, an absolute liability offence.
Section 253(2) of the Criminal Code
[75] The Crown points to s. 253(2) of the Criminal Code as providing a complete answer that impairment by a combination of alcohol and a prescription drugs is not subject to the rebuttable presumption.
[76] Section 253(2) of the Criminal Code provides:
For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
[77] The Crown submits that s. 253(2) of the Criminal Code deems impairment by a combination of alcohol and drug to be an impairment by alcohol and impairment by a drug. See para 31 of the Crown’s Factum.
[78] The Crown submits that this section somehow makes, where the Crown has shown impairment by alcohol and drugs, an absolute liability offence because the Crown submits that once the accused has chosen to consume any quantity of alcohol, the accused is impaired to some extent, and the accused assumes the risk of impairing the accused’s ability to operate a vehicle when the accused chooses to also voluntarily consume drugs.
[79] I do not read this section as suggested by the Crown. This section simply makes it clear that the impairment of one's ability to drive need not arise solely from alcohol consumption or solely from drug consumption but may arise as a result from a combination of both. The Crown is not obliged to prove the extent to which the impairment was caused by alcohol or drugs. As long as the impairment was caused by the voluntary consumption of alcohol, drugs or a combination of both, the Crown has established the necessary mens rea for a conviction unless the presumption is rebutted.
[80] As set out in King, the accused may seek to rebut the presumption that arises from the voluntary consumption of the alcohol or drugs (and in my view) the combination of the alcohol and drugs.
[81] The Crown goes on to state that it would be contrary to Parliament’s intention to permit a person who has voluntarily consumed alcohol and drugs to become impaired to the extent that they blacked out and be acquitted on the basis because they did not know the combination might impair them to that extent. To accept this argument would be to essentially remove the mens rea requirement from impaired driving and make this offence an absolute liability offence. That is exactly what King determined it was not – it is a general intent offence. If it had been Parliament’s intention that by enacting s. 253(2) to create such an absolute liability offence when the impairment is caused by the voluntary consumption of alcohol and drugs, much clearer language could have been and should have been used. As stated in King:
In my view the enactment of s. 223 of the Criminal Code added a new crime to the general criminal law, and neither the language in which it was enacted nor the evil which it was intended to prevent are such as to give rise to a necessary implication that Parliament intended to impose absolute liability unless the impaired condition which the section prohibits was brought about by some conscious act of the will or intention.
[82] I reject this submission.
Where Alcohol is a Contributing Factor to Impairment
[83] The authorities establish that an individual can be convicted of "impaired" where the evidence established that the impairment was caused by the voluntary consumption of alcohol in combination with another cause or causes. There is no law that requires the Crown to establish that a driver's ability to operate a motor vehicle was impaired by alcohol alone or drugs alone.
[84] The Crown points to authorities where the court determined that the accused’s impairment was caused by the consumption of alcohol along with other causes.
[85] The Crown relies on R. v. Bartello, [1996] O.J. No. 1000 (Prov. Ct.) (affirmed on appeal [1997] O. J. No. 2226 (C.A.) where an accused, while travelling and being deprived of sleep, drank two light beers. Mr. Bartello got into his car and an accident ensued. Mr. Bartello was convicted. The trial judge concluded:
- In his testimony, Dr. Galea carefully sets out the limits of his opinion evidence. He did not physically examine Mr. Bartello, and he can not rule out the consumption of alcohol as a factor in causing Mr. Bartello's symptoms. In my view, the admitted consumption of alcohol by Mr. Bartello, coming as it did in such close proximity to the automobile accident, coupled with the observations of Mr. Mills and Constable Crowley, prove beyond any doubt that alcohol was the triggering event in causing Mr. Bartello's impairment. Mr. Bartello is an experienced traveller, who regularly travels across time zones in pursuit of his company's affairs. He, of all people, should be familiar with the effects of sleep deprivation and jet lag, or chrono-biological stress. It is clearly foreseeable by Mr. Bartello that the consumption of alcohol, coupled with his weakened condition, could result in this accident.
[86] The trial judge in Bartello found that the offender was familiar with the effects of sleep deprivation, so it was clearly foreseeable that, when Mr. Bartello was sleep deprived and jet lagged, the consumption of alcohol could result Mr. Bartello’s impairment to drive. Mens rea had been established.
[87] The Crown also relies on R. v. Cosentino 2008 CanLII 68102 (ON SC), In many ways, the Crown is repeating the arguments made in Cosentino (see para 54). In Cosentino, the accused had stopped taking a drug which he knew had the possibility of affecting his ability to drive when taken in conjunction with alcohol. He had been given a warning about the drugs and driving. He consumed 6 ounces of alcohol. Then drove. When the accused realized something was wrong, he decided to continue to drive by taking a "safer route" home. The Defence was that it was the unexpected consequences of the combination of alcohol and the withdrawal symptoms from the drug that caused the impairment. Mr. Cosentino was convicted and the conviction was upheld on appeal. In my view, Cosentino is distinguishable from this case.
Application to this Case
[88] The actus reus for impaired operation is established by evidence that the accused operated a motor vehicle when the voluntary consumption of alcohol and/or a drug impaired his or her ability to operate a motor vehicle: R. v. Toews 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119.
[89] The mens rea for general intent offences is established by evidence that the accused performed the act that constitutes the actus reus. The mens rea for impaired operation is established by evidence of the voluntarily consumption of alcohol and then operating a motor vehicle while impaired.
[90] There could be no contest that Mr. Dewey voluntarily consumed a drug and voluntarily consumed a glass and a half of wine and then drove his vehicle. There was no issue that Mr. Dewey was impaired when he drove his vehicle. The actus reus and mens rea was not at issue in the trial.
[91] However, the issue of mens rea does not end with evidence of voluntary consumption of any amount of alcohol or voluntary taking a drug followed by driving in an impaired state. In King, the Supreme Court when dealing with the injection of a drug referred to:
... 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.
[92] In this case, the trial judge concluded from the evidence that:
a) There was doubt as to whether Mr. Dewey had known of the possible impairment of his ability to drive by the consumption of alcohol and taking Ativan prior to that afternoon;
b) the observed symptoms of impairment at the car were consistent with behavioural effects which could be caused by voluntarily consumption of Ativan but which had not been observed or felt by Mr. Dewey previously;
c) that Mr. Dewey had not previously combined the consumption of Ativan and alcohol;
d) Mr. Dewey voluntarily consumed alcohol, but not a large quantity; and
e) the combination of the small quantity of alcohol may have magnified the effects of Ativan.
[93] These findings were clearly available on the evidence before the trial judge. A trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference by this court. It is not the role of the appellate court to retry the case and reverse findings of fact that were not favourable to the Appellant. In R. v. Cornell, 2010 SCC 31, [2010] S.C.J. No. 31 (S.C.C.) the Court set out that “the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellant review.”
[94] The trial judge concluded in this case that the evidence established a reasonable doubt whether it was known or foreseeable to Mr. Dewey that by drinking the alcohol after having taken the Ativan, his ability to drive a motor vehicle would become impaired.
[95] Based on the entirety of the evidence, it was open to the trial judge to conclude that Mr. Dewey had rebutted the presumption by showing that Mr. Dewey did not know and it was not foreseeable to him that by having taken the Ativan followed by the consumption of one and a half glasses of wine would result in his impairment to drive.
[96] Acquittal on the impaired driving charge upheld.
Ricchetti, J.
Released: December 5, 2016
CITATION: R v. Dewey, 2016 ONSC 7536
COURT FILE NO.: SCA(P) 1211/15
DATE: 20161205
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Plaintiff
- and –
ERIC DEWEY
Defendant
REASONS FOR JUDGMENT
[from the conviction and acquittal of the Honourable Justice Lenz of the Ontario Court of Justice]
Ricchetti, J
Released: December 5, 2016