ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle
Appearing on his own behalf
Applicant
- and -
Her Majesty the Queen
Andrew Sadler, for the Respondent
Respondent
HEARD: September 16, 2016, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Summary Conviction Appeal
Introduction
1The appellant, Gordon Gravelle, appeals from the judgment of the Honourable Madam Justice Diane Baig dated December 10, 2015, convicting him of operating a motor vehicle while impaired by a drug, contrary to s. 253(1)(a) and s. 255 of the Criminal Code. He was fined $1,000 plus the applicable victim fine surcharge and given 120 days to pay. He was also placed on probation for thirty days and was ordered to pay restitution of $1,163.90. Finally, he was prohibited from driving for one year.
2The appellant also appeals from Madam Justice Baig’s dismissal of his motion that s. 7 and 8 of his Charter rights were breached. The trial was heard on December 9 and 10, 2015. He was represented by counsel on the Charter motions and at trial. His trial counsel also prepared the factum that was filed on this appeal. However, Mr. Gravelle represented himself on the appeal.
3At the commencement of the appeal, Mr. Gravelle sought leave to file fresh evidence and to amend his appeal to claim incompetence of counsel. Leave was refused because there was no timely application before the court within the Criminal Procedure Rules; the evidence sought to be adduced would have been available with the exercise of due diligence before trial, and the result at trial would not have been affected by such evidence.
4After the appeal was argued but before the decision could be delivered, Mr. Gravelle brought an application returnable October 13, 2016 seeking:
leave to file fresh evidence on appeal;
leave to file an amended factum alleging ineffective counsel at trial;
leave to obtain a trial exhibit for forensic testing;
a timetable for delivery of materials, and
a stay of the decision.
5The application was dismissed on the basis that the appeal had already been argued; that fresh evidence could have been available at trial by the exercise of due diligence; and that Mr. Gravelle had not complied with the Superior Court protocol in the Criminal Proceedings Rules for allegations concerning ineffective counsel. The court concluded that the appellant was attempting, in effect, to re-argue the appeal.
6Then, before the appeal could be decided, Mr. Gravelle served yet another notice of application dated November 23, 2016. The relief being sought is strikingly similar to that in the application returnable October 13th. He claims:
leave to re-open the appeal pursuant to the civil rules and s. 683 of the Criminal Code;
leave to file fresh evidence on appeal;
a timetable for delivery of materials; and
a stay of appeal pending disposition of the application.
7Two days after this application was filed with the court, an amended application dated November 25, 2016 was filed on Mr. Gravelle’s behalf by his trial counsel, the same individual he attempted to argue in his application dated October 13, 2016, was ineffective counsel at trial. The relief claimed is the same as in the application dated November 25th.
8Attached to the amended application is a letter from a psychiatrist dated February 13, 2015 advising Mr. Watkins that she is not a forensic psychiatrist qualified to testify in criminal matters. This information was provided to counsel almost ten months before trial.
9The other document attached to the amended notice of application is a product monograph revised as of October 20, 2014 for the hypnotic and sedative, “Imovane,” which is also known as Zopiclone. On the face of the document, it appears that the information was in the public realm at least thirteen months before trial. Hence, it is not fresh evidence.
10The psychiatrist’s letter was in counsel’s hands long before trial. The monograph was also in the public realm long before trial. There is no evidence that Mr. Gravelle or his counsel exercised diligence to seek out this information and present it at trial through an expert witness. At trial, the Crown called a forensic toxicologist to testify on the effect of Zopiclone.
11On March 18, 2016, Mr. Justice Shaw granted a stay of the driving prohibition on certain terms. The stay was to remain in effect until July 30, 2016.
12On each subsequent application to amend his appeal after the appeal was argued, Mr. Gravelle secured an order deferring the suspension of his driver’s licence pending the determination of the appeal.
13Each application has led to a delay in deciding the appeal on its merits. I am of the view that the appellant’s efforts to amend and re-argue his appeal after the appeal was initially argued are motivated by a desire for delay. The court has already dismissed an earlier application for similar relief because there was no evidence due diligence had been exercised to call the “fresh” evidence at trial and because the application was not in keeping with the Criminal Proceedings Rules. The second application to amend the appeal essentially replicates the October 13th application which was dismissed, although for different reasons. It is therefore also dismissed.
Powers of the Summary Conviction Appeal Court
14The powers of the summary conviction appeal court are set out at s. 822(1) of the Criminal Code, which incorporates by reference the powers of the Court of Appeal at s. 686 of the Code. In an appeal against conviction, the appeal court may allow an appeal where:
the verdict is unreasonable or cannot be supported by the evidence;
the trial court erred on a question of law; or
on any ground there was a miscarriage of justice.
The Charter Motions
15The appellant sought orders pursuant to s. 7 and 8 of the Charter of Rights and Freedoms, arguing firstly that his right to make full answer and defence had been breached when certain police officers advised him that he was not to contact witnesses. Secondly, the appellant also argued that his blood had been unlawfully seized at the hospital because he could not remember consenting to the seizure. He sought an order excluding the results of blood testing at trial on the grounds that he was entitled to be secure from unreasonable search and seizure.
16Mr. Gravelle’s grounds for appeal set out in his notice of appeal do not describe in any detail his objections to the disposition of his claims for Charter relief in the pretrial motion. He simply states:
Mr. Gravelle was wrongful [sic] denied Charter relief. The blood evidence should have been disclosed. The police conduct blocking Mr. Gravelle’s ability to speak to witnesses and other behaviors denied his constitution rights to for [sic] self representation [sic] and that was an “abuse of process.” [Emphasis in original.]
17The trial judge concluded that the appellant’s right to be free from unreasonable search and seizure pursuant to s. 8 was not breached.
18In her reasons, Madam Justice Baig found that following a motor vehicle accident, Mr. Gravelle tested negative for alcohol on his breath. The drug recognition officer was called. After the appellant was unable to perform certain physical tests at the police station that were suggestive of impairment, he was transported to the hospital.
19The judge found that the hospital visit had two purposes: to obtain a sample of his blood and to have a mental health assessment performed.
20The drug officer based her concern about the appellant’s mental health on the peculiar way he was dressed, his odd statements, and information received that Mr. Gravelle had expressed some suicidal ideation. The officer testified that she believed that the appellant understood her demands for physical tests and for blood testing.
21When Mr. Gravelle arrived at the emergency department of the hospital, he was seen privately by the attending physician who also testified at the voir dire that he believed that the appellant was aware of what was going on.
22The trial judge found that a proper blood demand had been made by the police; that the appellant understood what was happening because he signed a consent, (even though he testified he did not remember signing it); and that the attending physician supervised the taking of blood by a qualified laboratory technician in accordance with hospital procedures. The trial judge found that Mr. Gravelle was required by law to comply with the demand and he did so. The results of the blood samples were admitted into evidence.
23It is evident from the trial judge’s reasons that she did not accept Mr. Gravelle’s testimony that he did not recall signing the consent to give blood, preferring instead the testimony of the officer who made the demand and that of the physician who interviewed the appellant at the hospital. It is not an error of law to prefer the evidence of one witness to that of another. Her conclusion is reasonable and is grounded in the evidence. There is no misapprehension of the evidence and no error of law in her conclusion. Thus, this ground of appeal fails.
24The appellant also argued that his right to make full answer and defence pursuant to s. 7 of the Charter was breached. He submits that the trial judge did not articulate why his fear of being arrested if he spoke to witnesses was illogical. He also submits that there is no property in a witness.
25On the appeal, Mr. Gravelle submits that he was prevented from hiring an expert witness to present a defence on non-insane automatism at trial because he was forced to spend funds on retaining counsel to argue Charter relief. This proposition was never put to the trial judge in argument on the Charter motions.
26The trial judge summarized his claim as follows:
The defence submits that firstly his section 7 Charter rights were breached when the police officers cautioned him about speaking to witnesses. This occurred after the accused had spoken to one witness on the 6th of July 2014. After the accused spoke with that witness at the witness’ workplace that witness contacted the police indicating he was concerned about the contact. So the police went to the accused and cautioned him. The accused admits that the police advised him, the day following the day he had attended at the business place of the witness, the police officers advised him that he should speak to duty counsel to get advice with respect to contacting witnesses.
27The trial judge continued in her reasons:
In September, a pre-trial conference began with the accused representing himself and it is clear from the evidence that the judge and the Crown clarified with the accused that there was nothing stopping him from contacting witnesses unless the witness chose not to speak to him. So he knew at that point that he was able to contact witnesses. According to the accused he was not sure he could follow through on that advice. He claims he was fearful. I do not accept the accused’s evidence on that point. He was told that he could talk with witnesses unless the witness did not want to speak to him and he knew already that one witness he spoke to did not want to speak with him. It was very soon after the pre-trial conference or in fact during the ongoing pre-trial conference that the accused retained counsel and that took place I believe by October 2014. So there was nothing hampering any gathering of evidence after the accused was advised by the judge and the Crown that he could continue on if he was representing himself to contact witnesses and his lawyer certainly knew that he could contact witnesses and there have been months in between where they would have been able to do this.
28The trial judge concluded that there was no evidence that the defence had been hampered by the caution the police gave Mr. Gravelle when he was self-represented not to talk to witnesses. She concluded that any misdirection given to the accused by the police was rectified early in the proceedings by the pretrial judge and the Crown. Accordingly, she concluded that no s. 7 breach had occurred. This conclusion is grounded in the evidence and does not represent an error of law. Thus, this ground for appeal also fails.
The Grounds for Appeal of the Trial
29The appellant asserts the following grounds for appeal of the trial:
the trial judge erred in finding that the Crown had proven the mens rea for the offence of driving while impaired by a drug in circumstances where the appellant was taking the drug on a doctor’s order or recommendation, rebutting the presumption of “voluntary intoxication;”
the trial judge failed to accept the evidence of the Crown’s witness who testified that the known side effects of the drug consumed were “sleep walking” and “sleep driving;”
the trial judge failed to accept evidence that the appellant’s blood level was within a therapeutic range when tested;
the trial judge did not completely analyze the appellant’s credibility on the whole of his testimony. In particular, the appellant submits that she did not consider Mr. Gravelle’s testimony that he had taken the medication for many years and would not drive while under its influence;
The trial judge failed to analyze evidence pointing to the appellant being unaware of the effect of the drug:
a) that he was out in the community wearing only a housecoat and slippers;
b) that he was observed by others as having a glazed look in his eyes;
c) that the appellant invited a telephone technician to come to his residence to fix his phone and then advising that the phone had been destroyed;
d) that the appellant exhibited bizarre behaviour to the police and third parties, indicating that he could be unaware of the effect of the medication, despite his ability to communicate with others.
The trial judge erred in calculating the time the medication was consumed; and
The trial judge considered the effect of alcohol consumption on the appellant’s driving even though his blood test showed no alcohol at the time of testing.
Discussion
30The essence of the appeal is whether the trial judge correctly concluded that Mr. Gravelle had the mens rea or mental element to drive while impaired by a drug, specifically a sleeping medication, Zopiclone. A secondary ground of appeal is the trial judge’s credibility analysis.
31The Supreme Court of Canada set out the test for mens rea in impaired driving in R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746. At p. 15 the court held 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 just as a man who did not appreciate his impaired condition when he started to drive cannot escape liability on the ground that his lack of appreciation was brought about by voluntary consumption of liquor or drug.…
32The trial judge cited King in her reasons and applied the principles for mens rea to the facts of this case as she found them.
33Mr. Gravelle testified that he had a drink of alcohol around noon on May 5th, then voluntarily consumed two tablets of the sleeping medication, Zopiclone, at 10 p.m. on the evening of May 5, 2014. This was in accordance with the prescribed dosage.
34The label on the bottle cautioned that consumption may cause drowsiness. The label also warned that alcohol may intensify the effect of the drug, and that care should be exercised when operating a car or a dangerous machine.
35Mr. Gravelle stated in cross-examination that he understood at the time that he should not drive after taking Zopiclone.
36He agreed in cross-examination that if he took more Zopiclone on the 6th of May, he did not recall when he would have taken it. He had no memory of events on May 6th preceding his attendance at the police station later in the day.
37Nevertheless, the evidence indicated that he told the police investigating the collision that he took two more Zopiclone tablets on the morning of May 6, 2014.
38The appellant told the police that he did not remember eating lunch on May 6th , or going to Canadian Tire.
39The appellant equates lack of memory with lack of intent. Because he did not remember does not mean that he did not form the intention to drive. It was open to the trial judge to conclude that he behaved in a purposeful way after ingesting the drug: for example, by driving to the telephone store to attempt to get his broken phone repaired.
40Mr. Gravelle drove his car to Tbaytel in the early afternoon of May 6th. He was dressed in a bathrobe and slippers and observed behaving oddly at the store that afternoon. He asked the clerk to come home with him to repair his telephone, which he said was smashed. The clerks who observed him described his state of dress, his bizarre requests, his slurred speech, his dazed gaze, and his poor motor skills, including his driving. Soon after he left the store, he was in a motor vehicle accident.
41Mr. Gravelle tested negative for alcohol consumption when a breath analysis was administered but still indicated signs of impairment to the drug officer. The appellant’s blood was seized about 8 p.m. that evening. It tested positive for Zopiclone in a therapeutic range. The Crown’s toxicologist testified that the dosage taken on May 5th would have cleared Mr. Gravelle’s system by about 10 a.m. on May 6.
42Based on this evidence and the appellant’s statement to the police that he took two additional Zopiclone tablets the morning of May 6th, it was open to the judge to conclude that Mr. Gravelle voluntarily ingested more Zopiclone the day of the motor vehicle accident.
43The appellant submits that the trial judge failed to accept the evidence of the Crown’s witness who testified that the known side effects of the drug consumed were “sleep walking” and “sleep driving.”
44In my view, this is a misapprehension of the toxicologist’s evidence. The toxicologist testified that these effects are rare and not well-studied: that reports are largely anecdotal. He also testified that Zopiclone can affect memory.
45The toxicologist could not offer an opinion on the facts of the case put to him as a hypothetical. He could not say on the facts of this case at what point Mr. Gravelle was still absorbing the drug into his system and at what point he began eliminating it because effects vary among individuals. He could not say whether memory would be affected before Zopiclone was absorbed into the system.
46The appellant submits that the trial judge failed to accept evidence that the appellant’s blood level was within a therapeutic range when tested. This is not an accurate statement of the judge’s conclusions. In her reasons for judgment she stated,
…The toxicologist from the Centre of Forensic Sciences, Randal Warren, who testified had received the blood sample that was taken from Mr. Gravelle close to 8 p.m. on 6 May, 2014. Mr. Warren testified that Zopiclone detected in Mr. Gravelle’s blood sample was in an amount consistent with therapeutic administration, that is: an amount taken to do what it is meant to do, that is, to put the taker to sleep. This amount in Mr. Gravelle’s blood some four hours after driving with no intervening consumption was in an amount that was sufficient to put him to sleep at that time four hours later.
47Thus, the trial judge recognized that Mr. Gravelle was under the under the influence of the drug when it was in a therapeutic range. This is not the test for the mens rea for impairment. It does not afford the appellant a defence. An individual may be experiencing the effect of drug ingestion within a therapeutic range and still be impaired for purposes of driving.
48The appellant submits that the trial judge erred in considering the effect of alcohol consumption on the appellant’s driving even though his blood test showed no alcohol at the time of testing.
49Officer Cattani, who responded to the motor vehicle collision involving Mr. Gravelle, testified that when questioned about alcohol consumption, Mr. Gravelle initially denied it; then later recanted, stating that he had consumed alcohol two hours earlier. The trial judge recognized it was not clear when the alcohol was consumed. It is common ground that when tested, Mr. Gravelle did not show signs of alcohol consumption. Nevertheless, it was an accurate statement by the trial judge of the officer’s testimony.
50In her reasons for judgment, the judge determined that Mr. Gravelle had no memory of events on May 6th apart from a few events at the police station following his arrest. However, the focus of her conclusion that the appellant was impaired was on the effect of his drug consumption. Thus, the judge did not misapprehend the evidence about alcohol consumption.
51The appellant argues that the trial judge erred in calculating the time the medication was consumed. In my view, the judge’s finding of impairment does not turn on the time of consumption, but rather on the effects of consumption on driving and whether the appellant knew the effects of Zopiclone before driving.
52The evidence of Officer Cattani was that Mr. Gravelle told him at the police station that he had taken two Zopiclone tablets and driven from his May Street residence to the Thunder Centre where Tbaytel is located. The officer was not specific about when those tablets were ingested, except that consumption occurred prior to the appellant driving.
53The trial judge found that this medication was a sedative, acting as a central nervous system depressant, a substance the appellant had been taking for seven years as a treatment for insomnia. She concluded that on the 6th of May, 2014, the appellant voluntarily ingested a sedative drug which he knew might impair his ability to operate a motor vehicle.
54The trial judge was entitled to make credibility findings and did so on the evidence before her. Generally, there were long gaps in Mr. Gravelle’s memory, from the evening of May 5th to late afternoon the following day. He did not dispute the material facts.
55The appellant submits that certain facts show that he was unaware of the effect of the drug on him: that he was out in the community wearing only a housecoat and slippers; that he was observed by others as having a glazed look in his eyes; that the appellant asked a telephone technician to come to his residence to fix his phone and then said that the phone had been destroyed; and that the appellant exhibited bizarre behaviour to the police and third parties, indicating that he was unaware of the effect of the medication, despite his ability to communicate with others.
56In my view, these factors, together with the appellant’s admissions that he had used Zopiclone for many years and was familiar with its effects and knew that he should not be driving when under its influence, support the judge’s conclusion of impairment. This was a reasonable conclusion on the evidence.
57The appellant relies on R. v. Prescott, 2008 ONCJ 604 with respect to impairment by virtue of consumption of Imovane. The facts in Prescott are significantly different from Mr. Gravelle’s case such that it is not helpful in this appeal. In Prescott, the accused was intoxicated by alcohol and had also consumed Imovane. At trial, she presented expert evidence of non-insane automatism, which the court accepted.
58The Supreme Court of Canada determined that the onus is on an accused who asserts a defence of involuntariness based on non-insane automatism to call expert psychiatric evidence to prove the defense on a balance of probabilities. See: R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, paras 179, 183, and 184. The mere assertion of voluntariness is not sufficient.
59In the case at bar, there was no expert psychiatric evidence called to prove non-insane automatism, a fact that Mr. Gravelle conceded when the appeal was argued.
60The appellant also relies on R. v. Domb, 2011 ONCJ 756. The facts of that case involve the mens rea of a bus driver who was prescribed the pain killer, fentanyl, by his physician on the basis that it would not interfere with his ability to drive. In my view, the Domb case is also distinguishable on its facts. The court in Domb had a reasonable doubt that the accused had the intention to drive impaired because he was taking medication on doctor’s orders, unaware of the impact it might have on his driving. The court found that Mr. Domb did not have the mens rea for impaired driving.
61In conclusion, the trial judge’s findings were supported by the evidence. Her reasons were sufficiently articulated. She applied the correct test of mens rea to the facts as she found them. Accordingly, there was no error in law and no miscarriage of justice.
62The appeal is therefore dismissed.
63As there was no appeal from sentence, the stay of sentence is lifted and the sentence of the trial judge is reinstated.
64Having disposed of the amended application dated November 25, 2016, the return date for that application, February 6, 2017 at 9:30 a.m. is vacated.
_______“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: December 22, 2016
CITATION: R. v. Gravelle, 2016 ONSC 8099
COURT FILE NO.: CR-15-0077-AP
DATE: 2016-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Gravelle
Applicant
- and -
Her Majesty the Queen
Respondent
REASONS FOR JUDGMENT
Pierce J.
Released: December 22, 2016
/cnm