Court File and Parties
COURT FILE NO.: CR 19-177 DATE: 20210618
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN The Respondent
– and –
LISA JOHNSTON The Appellant
Counsel: Jennifer Armenise, for the Crown Bernard Cugelman, for the Appellant
HEARD: June 14, 2021 via Zoom
JUSTICE VERNER
Reasons for Judgment
[1] On September 20, 2019 the Appellant was convicted of impaired driving, failing to comply with a breath demand and dangerous driving. On October 1, 2019, she was sentenced to a fine and a driving prohibition. She now appeals her convictions.
[2] It was not disputed that the Appellant was intoxicated while she was driving, that she drove dangerously and that she failed to provide a breath sample when requested. The main issue at trial was whether one of her drinks had been drugged such that she was unknowingly and involuntarily intoxicated when she drove. Alternatively, the Appellant argued that her s. 10(b) rights were violated and accordingly the evidence relevant to the charge of failing to comply with a breath demand should be excluded under s. 24(2) of the Charter. The Crown’s position at trial was that the Appellant had not been drugged, she was voluntarily intoxicated by alcohol, and there were no Charter violations.
[3] The trial judge rejected the defence of involuntary intoxication and found there was no violation of s.10(b).
[4] On Appeal, the Appellant contends that the trial judge erred in several aspects of her approach to the issue of involuntary intoxication and further erred in finding that there was no violation of s. 10(b). I find that the trial judge applied the wrong standard of proof to the issue of whether the Appellant was involuntarily intoxicated and I order a new trial on that basis. It is therefore unnecessary for me to review the facts or the merits of the other issues raised.
Relevant Facts
[5] On May 26, 2017, the Appellant made plans to meet her boyfriend after he finished work at a bar called Hooligans. She had been there a number of times before. In fact, Mr. James Garland – a co-owner of the bar – testified that the Appellant regularly came and ordered three of four glasses of red wine, which she could handle without any problem. On May 26, she attended the bar and ordered red wine as per usual, while she waited for her boyfriend to finish work. She testified that she did not have anything to drink prior to arriving at the bar and consistent with her evidence, Mr. Garland testified that she appeared sober when she arrived.
[6] The Appellant remembered having two full glasses of wine and ordering a third. She remembered sitting near two men at the bar, and remembered going to the washroom at least once as she waited for her boyfriend. She had no memory of what happened after she ordered her third glass of wine. Mr. Garland testified that the Appellant was not sitting near two men, but rather she sat with two men at the same table. He corroborated her testimony regarding how much she drank as he remembered serving her a total of three glasses that evening and remembered that at one point during her third glass she was “cut off” from drinking any more alcohol since she was showing obvious signs of impairment. He did not explicitly remember her going to the washroom at any point, but assumed that she probably did at least once that evening.
[7] Two witnesses testified that after the Appellant was “cut off” they saw her walk with a man around the outside of the bar to behind the building and out of sight. There was contradictory evidence as to whether she was laughing or arguing with the man.
[8] Soon after she was spotted going behind the bar, she got in her vehicle and started to drive home. Several witnesses advised her not to drive as she was too intoxicated. She ignored their advice and she was observed driving at a high rate of speed, weaving on the road and going through a red light. A bystander called authorities with her license plate number. The police attended the residence registered to the plate number and observed the Appellant driving dangerously as she approached her house. She was arrested at that time and later failed to provide a breath sample when requested.
[9] She woke up the next morning with no memory of the evening. In fact, she did not even remember being arrested.
[10] Both the Crown and the defence called toxicology experts. Both experts testified that the Appellant’s behaviour, as described by bystanders, was inconsistent with only having consumed two glasses of wine. The Appellant either consumed more than two glasses or she was drugged. The defence expert not surprisingly supported a finding that her drink was spiked with a drug. Although the Crown expert did not support that theory, he could not exclude it as a possibility.
The Positions of the Parties
[11] The Appellant alleged that the trial judge inappropriately put the onus on her rather than on the Crown at trial. The Crown pointed out that although the trial judge misstated the burden twice and used unfortunate language at other times in her reasons, she also correctly stated the burden more than once. More importantly, according to the Crown’s argument, when the reasons are read as a whole, it is apparent the appropriate test was applied.
The Appropriate Test
[12] Where involuntary intoxication is a live issue, the court must acquit if it has a reasonable doubt that the accused was involuntarily intoxicated.
[13] The issue of involuntary intoxication was raised in the seminal case of R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746, in which Taschereau J. stated that,
there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision, or in other words, there must be a willpower to do an act whether the accused knew or not that it was prohibited by law.
Although Taschereau J. was speaking for himself in that judgement, in R. v. Bouchard-Lebrun, 2011 SCC 58 Lebel J., speaking for a unanimous court, adopted that principle. Thus, if an otherwise criminal act is committed while intoxicated involuntarily, it is possible that no crime was in fact committed.
[14] However, there is a presumption that individuals are intoxicated voluntarily and the defence has an onus of pointing to evidence that raises a reasonable doubt, before it is an issue at all. In King, supra Ritchie J. articulated the test in his concurring reasons, as follows:
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 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. [Emphasis added.]
[15] Although there is a “rebuttable presumption”, the defence only needs to point to evidence that raises a reasonable doubt as to the voluntariness of the intoxication. What is relevant for this case, is that the defence does not need to prove anything on a balance of probabilities.
The Trial Judge’s Reasons on the Burden of Proof
[16] The trial judge in the case at bar found that the defence of involuntary intoxication was relevant to all three offences before the court. She then quoted lengthy passages from King, supra and R. v. Saxon, 1975 CanLII 1292 (AB CA), [1975] 4 WWR 346, in which those courts discussed the defence in some detail. Within those passages, the court articulated, amongst other things, the appropriate standard of proof to be applied.
[17] Later in her reasons, the trial judge dedicated two paragraphs to the appropriate burden. Those two paragraphs read:
[56] "[T]he burden is not on the defence to prove beyond a reasonable doubt that he or she was involuntarily intoxicated but the court must be satisfied from the evidence presented that there is likelihood that an intoxicant was unintentionally or unknowingly ingested.": Perry, [[2017] O.J. No. 1921] 50 ; R. v. Lefebvre, 2010 ABPC 10.
[57] Or put another way, "[t]he rebuttable presumption referred to in King does not require the defence to prove that his condition was not voluntarily induced. A conviction will follow unless other evidence is adduced that raises a reasonable doubt on that essential element": R. v. Sitarz, [2013] O.J. No. 5185.
[Emphasis added.]
[18] At the beginning of her section titled “Findings of Facts and Legal Analysis”, the trial judge stated the burden as follows:
It is conceded that the Crown has proven that the accused was driving a motor vehicle while her ability to do so was impaired by alcohol or drugs and that she was driving dangerously. The evidential burden now shifts to Ms. Johnston to adduce evidence that raises a reasonable doubt as to whether her condition was voluntarily induced. [Emphasis added.]
[19] At paragraph 75 of her reasons, she stated that establishing a “possibility” that the Appellant was intoxicated involuntarily was not sufficient to meet the defence burden. Instead, the Appellant must show there was a “likelihood”. She said:
Both experts also testified that anterograde amnesia can also be caused by other central nervous depressants and provided examples. I find that there is no evidence to support the likelihood that such items were put in Ms. Johnston's drink. Dr. Mayers agreed that he could not rule out the possibility of an illicit drug causing some of Ms. Johnston's behaviour. However, not ruling out a possibility is not the same as establishing a likelihood of the presence of a drug.
[20] The trial judge concluded her analysis with the following passage, which is the only other time she discussed the burden of proof associated with the defence of involuntary intoxication:
When I balance all these factors, I find that the totality of the evidence is insufficient to rebut the presumption that Ms. Johnston's intoxication was voluntary, and it does not raise a reasonable doubt about the mens rea for the impaired driving and dangerous driving.
Analysis
[21] As mentioned above, the trial judge dedicated paragraphs 56 and 57 of her reasons to articulating the burden of proof. In paragraph 56, the trial judge quoted R. v. Perry, supra and found that the accused is presumed to be intoxicated voluntarily, unless the court is “satisfied” that there is a “likelihood” the intoxication was involuntary. This is not the appropriate standard of proof that was articulated by Ritchie J. in King. In paragraph 57 of her reasons, the trial judge erroneously stated that the Perry standard could be equated with the standard of proof beyond a reasonable doubt, which is the appropriate standard of proof. The Crown submits that the fact the trial judge equated the two standards is evidence that she simply misspoke when she said “likelihood” in paragraph 56.
[22] However, I note that in the case relied on by the trial judge, R. v. Perry, the court explicitly put an onus on the accused to prove the defence of involuntary intoxication on a balance of probabilities. Marion J. said:
50 In R. v. Lefebvre [2010 ABPC 10] the accused was found not to have the necessary mens rea to establish her guilt. She alleged that someone must have slipped something in her drink. The court stated that the burden is not on an accused to prove beyond a reasonable doubt that he or she was involuntarily intoxicated but the court must be satisfied from the evidence presented that there is likelihood that an intoxicant was unintentionally or unknowingly ingested.
51 In order to rebut the presumption the defence must establish on the balance of probabilities the following:
a) that the combination of alcohol and Champix may have caused Ms. Perry's intoxication; and
b) that the defendant was unaware of this interaction; and
c) that the defendant could not reasonably have known that impairment could result from the combination of the substances.
[Emphasis added.]
[23] At paragraph 76 of his reasons in Perry, Marion J. found that he was “satisfied” that the accused in that case was involuntarily intoxicated and then at paragraph 77, indicated that since the accused had met its burden in relation to the defence, the onus then shifted back to the Crown to prove the offence beyond a reasonable doubt. He said:
77 In my opinion, the presumption of voluntary intoxication is rebutted. As a result, the Crown bears the burden of proving voluntary intoxication beyond a reasonable doubt.
[24] It is clear that the wrong standard of proof was applied in Perry. I note that the trial judge in the case at bar relied on Perry for not only the burden, but for several other principles relating to the defence of involuntary intoxication as well (see paras. 54, 55 and 58). The trial judge in this case must have therefore been familiar with the reasoning in Perry when she relied on it to state that there was a burden on the defence to show a “likelihood”.
[25] I further note that in the case at bar, the trial judge’s ultimate conclusion was that the Appellant’s behaviour on the night in question was “not inconsistent” with impairment by alcohol alone. She concluded her analysis of the evidence with the following findings:
[76] I find that Ms. Johnston's behaviour is not inconsistent with the usual signs of impairment by alcohol. Even Dr. Rosenbloom conceded that alcohol alone can account for slurred speech, poor driving, being emotional, having poor motor skills such as fumbling in a purse for keys, having to brace oneself to keep one's balance and anterograde amnesia.
[77] …[Mr. Garland] noticed slurred speech and glossy eyes when he served her the third glass of wine. Her behaviour eventually progressed to stumbling, having to hold herself up by leaning on her car and fumbling for her keys in the back alley, then to the impaired driving and dangerous driving. Again, I find this behaviour is not inconsistent with the usual signs of impairment by alcohol.
[Emphasis added.]
It was on the basis of these findings that the trial judge found that the Appellant had not met her onus. The trial judge’s language in these paragraphs suggests that she was not assessing whether there was a reasonable doubt as to whether the Appellant was drugged, but rather was assessing whether the defence had disproved that she was intoxicated by alcohol.
[26] The most explicit example of the trial judge applying the wrong standard of proof was in paragraph 75, which I reproduce here for ease of reference:
[75] Both experts also testified that anterograde amnesia can also be caused by other central nervous depressants and provided examples. I find that there is no evidence to support the likelihood that such items were put in Ms. Johnston's drink. Dr. Mayers agreed that he could not rule out the possibility of an illicit drug causing some of Ms. Johnston's behaviour. However, not ruling out a possibility is not the same as establishing a likelihood of the presence of a drug. [Emphasis added.]
[27] When the above passages are considered together with the reasons as a whole, it is apparent that the trial judge put an onus on the defence to prove the defence of involuntary intoxication on a balance of probabilities. In other words, she applied the wrong standard of proof.
Appropriate Remedy
[28] It is far from clear that the trial judge would have convicted on any of the offences had she applied the proper standard of proof. I quash all three convictions on the basis of this error and order a new trial.
Justice Verner
Released: June 18, 2021
COURT FILE NO.: CR 19-177 DATE: 20210618
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – Lisa Johnston
REASONS FOR JUDGMENT
Justice C. Verner
Released: June 18, 2021