Court File and Parties

COURT FILE NO.: CR-16-30000100-00AP DATE: 20170704 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Xiao Liu

BEFORE: Corrick J.

COUNSEL: Paul Calarco, for Mr. Liu, Appellant Tanya M. Kranjc, for the Crown, Respondent

HEARD: May 15, 2017

Endorsement

Introduction

[1] Following a trial before Hall J., Mr. Liu was convicted on September 30, 2016 of operating a motor vehicle while his ability to do so was impaired by alcohol. He appeals the conviction on two grounds:

1. The trial judge erred in rejecting Mr. Liu’s defence of non-insane automatism.
2. The trial judge erred in finding that Mr. Liu’s impairment was due to alcohol and not to drugs, and thereby erred in holding that the Crown had proven the offence as charged.

[2] For the following reasons, the appeal is dismissed.

Evidence at Trial

[3] Mr. Liu admitted the Crown’s case. On March 30, 2013, at around 5:45 a.m., Mr. Liu was driving eastbound on Eglinton Avenue East when he lost control of his car and hit a pole. When police arrived on the scene, Mr. Liu was in the rear seat of his car trying to retrieve items from the front seat. He was confused and disoriented. His eyes were red and glossy and there was a smell of alcohol on his breath. Police recovered two bottles of cognac from the front seat of his car.

[4] Mr. Liu was arrested and placed in the back of a police cruiser. His interaction with the police from this point was both video and audiotaped. The police in-car camera video and the booking video were played at the trial and filed as exhibits. In the police car, Mr. Liu insisted in a loud voice that he wanted to contact his counsel, that he had not been speeding, that he was a permanent resident of Canada, that he had a business and that he paid his taxes. He continued to ask the officers why he was arrested despite having been told on more than one occasion that he was under arrest for impaired driving. He told the officers that he would complain about them if they did not tell him the reason for his arrest.

[5] At the police station, Mr. Liu became physically aggressive with the officers. He was placed in a cell and held until 4:30 p.m., when he was released.

[6] Mr. Liu admitted that his ability to drive a motor vehicle had been impaired.

[7] Mr. Liu testified that he had been at his girlfriend’s house in Mississauga earlier that evening. They had argued. He left her home, arriving at his condominium at 2:00 a.m. He decided to commit suicide by taking sleeping pills. He testified that he consumed 38 sleeping pills that he had obtained in China and swallowed two ounces of cognac. He believed that the sleeping pills would kill him.

[8] He wrote a will and left a message on his answering machine for his girlfriend, believing that she would find his body in the morning. The next thing he remembers is waking up in a room that appeared to be a cell. He testified that he had no intention of driving that night. He does not remember getting into his car, driving, or hitting a pole.

[9] In cross-examination, Mr. Liu agreed with the Crown that he would not drive after taking two sleeping pills, and that it would be dangerous to drive after drinking two ounces of cognac.

[10] Mr. Liu’s girlfriend and her mother also testified. His girlfriend, Ms. Zhang, confirmed that she and Mr. Liu had argued that evening. Mr. Liu left her residence at 1:00 a.m. She had not seen him drink any alcohol that day. When Mr. Liu did not answer her telephone calls at 3:00 a.m., she became concerned, and drove to his condominium. He was not there. She saw the empty pill packages and Mr. Liu’s will. She also heard the message he had left for her. She waited at Mr. Liu’s residence until 2:30 p.m. When she had not heard from him, she left for work.

[11] Ms. Zhang also testified that, throughout the following week, Mr. Liu was not fully awake and did not seem fully conscious of his surroundings.

[12] Ms. Zhang’s mother, Ms. Yei, picked Mr. Liu up at the police station when he was released. She testified that he was not walking properly, and did not seem to know what he was doing or who she was. Over the course of the next week, he seemed to be in a trance and slept more than normal.

[13] Mr. Liu’s friend, Mr. Ren, testified that he saw Mr. Liu on April 1, 2013, two days after his arrest. At the time, Mr. Liu was not responsive to Mr. Ren’s questions.

[14] Finally, the defence called Dr. David Rosenbloom, who was qualified on consent as an expert in pharmacology, the absorption and elimination of alcohol in the body, and the effects of sleeping pills on the body.

[15] Dr. Rosenbloom testified about two main points. The first was that Mr. Liu’s ingestion of 38 sleeping pills could induce a state of automated behaviour. He opined that Mr. Liu’s operation of his car was not voluntary.

[16] The second point was that the alcohol ingested by Mr. Liu would have been eliminated by the time of the accident. He agreed that Mr. Liu was driving while impaired, but his impairment was caused by the ingestion of the sleeping pills, not alcohol.

Analysis

Did the trial judge err in rejecting the offence of non-insane automatism?

[17] In my view, he did not.

[18] Justice Hall held that the defence of non-insane automatism is not a defence to impaired driving in a case where the defendant has voluntarily ingested drugs or alcohol. His conclusion was based squarely on binding authority, with which I agree.

[19] Justice Dambrot held in R. v. DeVingt, [2001] O.J. No. 521 that a defendant who drives a car while his ability to do so is impaired by drugs or alcohol, voluntarily consumed, has no defence to a charge of impaired driving even if he had no intention to drive at the time that he consumed the drugs or alcohol and even if he is unaware of his driving.

[20] Justice Dambrot carefully reviewed the four judgments issued by the Supreme Court of Canada in R. v. Penno (1990), 59 C.C.C. (3d) 344 and concluded as follows:

[39] And while extreme self-induced intoxication akin to automatism or insanity is not generally a sufficiently blameworthy state of mind to justify culpability, the judgments in Penno convincingly demonstrate that such a state of mind is sufficiently blameworthy in the context of drinking and driving offences to justify culpability.

[21] In my view, this is an accurate statement of the law that has not been altered by the Supreme Court of Canada’s decisions in R. v. Daviault, [1994] 3 S.C.R. 63 or R. v. Stone, [1999] 2 S.C.R. 290.

[22] For these reasons, I conclude that the trial judge did not err in concluding that the defence of non-insane automatism was unavailable to the defendant and therefore did not err in rejecting that defence.

Did the trial judge err in finding that Mr. Liu’s impairment was due to alcohol, and thereby err in holding that the Crown had proven the offence as charged?

[23] Mr. Calarco, on behalf of Mr. Liu, submits that the trial judge erred in holding that acceptance of Dr. Rosenbloom’s evidence required him to accept Mr. Liu’s evidence about how much alcohol he had consumed and when he had consumed it.

[24] Dr. Rosenbloom’s opinion that Mr. Liu was impaired by a drug, not alcohol, at the time of the accident, was based on a hypothetical scenario that Mr. Liu had consumed 38 sleeping pills and three ounces of cognac, at 40% alcohol by volume, at 2:00 or 2:30 a.m. The only evidence of the quantity of alcohol consumed by Mr. Liu and the time at which he consumed it was Mr. Liu’s testimony, which the trial judge rejected. In the absence of evidence establishing the factual basis for Dr. Rosenbloom’s opinion, the trial judge was correct in rejecting it.

[25] The trial judge found that Mr. Liu’s ability to drive was impaired by alcohol. Mr. Liu testified that he had consumed alcohol. He lost control of his car and struck a utility pole. When police arrived on the scene, they found Mr. Liu in the back seat of his car and two bottles of alcohol, one nearly empty, in the front seat of his car. His eyes were red and glossy, and there was a strong odour of alcohol on his breath. There was ample evidence before the trial judge to conclude that alcohol was a contributing cause of Mr. Liu’s impairment.

[26] The trial judge did not err in finding that Mr. Liu’s ability to drive was impaired by alcohol and therefore did not err in holding that the Crown had proven the offence as charged beyond a reasonable doubt.

[27] The appeal is dismissed.

Corrick J. Date: July 4, 2017