Court File and Parties

COURT FILE NO.: 19-145-00 DATE: 20220525 CORRECTED DATE: 20220525

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MICHAEL GRELOWSKI Defendant

Counsel: Sarah Tarcza for the Crown Erec Rolfe and Karen Symes for Mr. Grelowski

HEARD: April 5-8, 2022

Corrected Judgment: The text of the original Judgment was corrected on May 25, 2022. A description of the correction is appended.

REASONS FOR JUDGMENT

C. BOSWELL J. (ORALLY)

[1] Humans have always strived to control their environment, their lives and, too often, each other. Despite best efforts, an element of randomness permeates each life. Sometimes that randomness produces marvellous results and when it does, we call that serendipity. Other times its effects are cruel and when they are, we call that tragedy. This case, like so many others that come before this court, is an example of the latter.

[2] On April 1, 2018 Jennilyn Reed was doing something that all parents with school-age children are familiar with: shuttling her kids to an activity. In this instance, she was taking her son, Brodie, age 11, and her daughter, Brooke, age 5, to register for a summer soccer league. They lived in the Orillia area. The registration was taking place at a church in Cumberland Beach, which is a little north of Orillia. The quickest route there – and the one taken by Ms. Reed – was by way of Highway 11 north.

[3] Had Ms. Reed started her journey a minute earlier or a minute later than she did, I expect the outing would have been routine. It was anything but.

[4] Ms. Reed pulled her white Toyota Sienna onto the northbound lanes of Highway 11 at Soules Road. The time was somewhere between 6:45 and 7:00 p.m. Brodie was sitting to her right in the front passenger seat. Brooke was in a booster seat in the second row, right behind Brodie.

[5] About thirty seconds after Ms. Reed entered the highway, a black Chevrolet Equinox suddenly appeared in front of her, heading southbound in the northbound lanes at a high rate of speed. It was in the left lane. It swerved in front of a car in that lane and collided head-on with Ms. Reed’s vehicle, which had been travelling in the right lane. She had only enough time to turn somewhat to the right in an effort to protect her small children from the impact. The right front of her vehicle took most of the force of the collision. She was seriously injured. Brodie escaped with cuts and bruises. Brooke suffered a broken arm.

[6] Michael Grelowski was the driver of the Chevy Equinox. He is charged with two counts of dangerous driving causing bodily harm.

[7] There is no question that driving southbound against oncoming traffic in the northbound lanes of a highway is dangerous. There is no question that Mr. Grelowski caused the collision between his vehicle and Ms. Reed’s vehicle. And there is no question that the collision caused bodily harm to both Jennilyn and Brooke Reed. All of these matters were conceded at trial.

[8] Mr. Grelowski’s trial focused on two issues. First, whether he had the capacity to understand the risk associated with driving on the occasion in question and whether he voluntarily assumed that risk. Second, whether he was acting voluntarily when he entered the northbound lanes of Highway 11 and drove south.

THE GOVERNING LEGAL FRAMEWORK

Fundamental Principles

[9] Before I embark on a review of the evidence adduced at trial, it is worth taking a moment to recognize a number of important principles that govern my review and consideration of that evidence.

[10] First, Mr. Grelowski is presumed to be innocent of the charges before the court. He may only be convicted of an offence if and when Crown counsel proves his guilt of that offence beyond a reasonable doubt.

[11] Second, the onus remains at all times on the Crown to prove Mr. Grelowski’s guilt. This rule never changes. Mr. Grelowski does not bear the onus to prove his innocence.

[12] Third, Mr. Grelowski tendered evidence of an exculpatory nature. Credibility and reliability are live issues with respect to that exculpatory evidence and, in the result, I must approach and weigh that exculpatory evidence within the analytical framework described by the Supreme Court in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (“W.D.”). In brief, the W.D. framework ensures that the trier of fact applies the reasonable doubt standard when assessing exculpatory evidence where credibility findings are required.

[13] Mr. Grelowski elected to testify in his own defence. He testified that he could not recall any of the events of April 11, 2018. His evidence was, on its own, not strongly exculpatory. But he also tendered evidence from an expert physician, who offered an opinion that Mr. Grelowski did not have the capacity, on the occasion in issue, to appreciate the risk posed by his driving. As Watt J.A. observed in R. v. Boucher, 2022 ONCA 40, at para. 55, “the principles of W.(D.) extend to exculpatory or potentially exculpatory evidence from sources other than an accused where credibility findings are required.”

[14] Having outlined those general legal principles, I will turn to an examination of the essential elements of the offence of dangerous driving and highlight where those elements are particularly contentious in this case.

The Essential Elements

[15] To establish Mr. Grelowski’s guilt on a charge of dangerous driving causing bodily harm, the Crown must prove the following essential elements to the reasonable doubt standard:

(i) Mr. Grelowski operated a motor vehicle;

(ii) He operated that motor vehicle in a manner that was dangerous to the public; and,

(iii) His operation of the motor vehicle caused someone bodily harm.

[16] The first and third essential elements are conceded in this case. Only the second essential element is disputed. And even in relation to the second essential element, it is conceded that Mr. Grelowski’s conduct – his driving on the occasion in issue – was dangerous to the public. What is not conceded is whether he had the capacity to understand the risk that his driving posed.

Conduct and Fault Elements

[17] For all intents and purposes, all criminal offences in Canada have both a conduct element and a fault element. These are sometimes referred to in Latin terms as the actus reus and mens rea of the offence.

[18] The conduct element of an offence consists of a prohibited act. In relation to the offence of dangerous driving, the conduct element of the offence focuses on the manner of driving engaged in by the accused. The act prohibited by the offence is driving in a manner that is dangerous to the public, having regard to all of the prevailing circumstances.

[19] Our law applies an objective standard to assess the nature of the driving in issue. It asks whether the accused drove in a manner that, viewed objectively in all the circumstances, constitutes a danger to the public actually present or who may reasonably be expected to be present. It is the manner of driving that is at is at issue, not its consequences. See R. v. Akhtar, 2022 ONCA 279 at para. 29.

[20] The fault element of an offence generally relates to the state of mind that accompanies the prohibited act. As Justice McLachlin, as she then was, explained in R. v. Creighton, [1993] 3 S.C.R., at paras. 110-111:

110. The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty. Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accused have proceeded recklessly in the face of the risk…

111. Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably.

[21] The Criminal Code often fails to specify exactly what the fault element is in relation to particular offences. It is more often than not left to judges to determine the applicable mens rea of any given offence.

[22] The Criminal Code offers little in the way of clues as to what fault element applies in relation to the offence of dangerous driving. The Supreme Court has, however, provided guidance as to the requisite elements of the offence.

[23] Dangerous driving is a negligence-based offence. As I noted, the conduct element of the offence focuses on the nature of the driving and whether it is objectively dangerous in all the circumstances. The fault element of the offence reflects an objective mens rea. It also focuses on the manner of driving, but from a somewhat different perspective than the conduct element. A modified objective standard is used to assess whether the manner of driving attracts criminal fault. See R. v. Beatty, 2008 SCC 5 at para. 36.

[24] The objective standard is modified in two significant ways. First, the dangerous manner of the accused’s driving must be a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances as those of the accused. In this way liability for civil negligence can be separated from culpability for criminal conduct.

[25] Liability for civil negligence requires a finding of a breach of a recognized standard of care. It does not ask how far below the standard of care the driving in issue was. A finding of criminal culpability, however, requires a marked departure from that standard of care. Justice Charron instructed in R. v. Beatty, as above at para. 36, that “[i]t is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability.”

[26] Driving is an inherently dangerous activity. It is an activity that inevitably leads to accidents, collisions, injuries and, unfortunately, deaths. Accidents associated with the inherent risks of driving do not generally attract criminal sanctions. The marked departure standard ensures that the net is not cast too broadly, resulting in branding people as criminals who are not truly morally blameworthy. See Beatty, at para. 34. As former Chief Justice McLachlin noted in R. v. Creighton, as above, at para. 133, “the law does not lightly brand a person as a criminal.”

[27] The second way the objective standard is modified in relation to the fault element of dangerous driving is the allowance of exculpatory defences.

[28] As Justice Charron observed at para. 37 of Beatty, “[t]he underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity.”

[29] The reasonable person standard does not take account of the individual characteristics of the accused person, such as age, experience or education. It does, however, permit the court to take into account all of the circumstances in which the accused was situated. In other words, it asks how the reasonable person in the circumstances of the accused would have conducted himself or herself. The circumstances may bear on the capacity of the accused to avoid creating a risk of harm to others. For instance, where a driver suffers a sudden heart attack or seizure.

[30] Sometimes, due to incapacity, a person is unable to appreciate the risks associated with his or her behaviour. In such cases, criminal liability will not be found. Justice McLachlin, in Creighton, cited the following comment of Justice Oliver Wendell Holmes in his seminal work, The Common Law (1881), at page 109 as apposite:

There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of liability in general. When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them.

[31] Justice Charron summed up the requirements of the modified objective test at para. 49 of Beatty where she said as follows:

If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the accused.

The State of Mind Defences

[32] In all the circumstances of this case, I have no reasonable doubt that the driving in issue was a marked departure from the standard expected of a reasonably prudent driver. Having just driven his vehicle in the northbound lanes of Highway 11, Mr. Grelowski turned around in a gas station parking lot and immediately proceeded southbound in those same northbound lanes. He did so at a high rate of speed and for a considerable distance. A serious collision was all but inevitable. If that manner of driving is not a marked departure from the standard expected of a reasonably prudent driver then I do not know what is.

[33] The litigation in this case is focused on the next step of the analysis – whether Mr. Grelowski lacked the capacity to appreciate the risk posed by his conduct.

[34] Mr. Grelowski’s defence consists of two prongs.

[35] On the first prong, Mr. Grelowski asserts that there is sufficiently compelling evidence to raise a reasonable doubt about his capacity on the occasion in issue. Counsel are agreed that, provided there is an air of reality to this defence – which I find there is here – the onus is on the Crown to negate the defence. In other words, to establish that he did have such capacity.

[36] On the second prong, Mr. Grelowski asserts that his mental processes on the occasion in question were so profoundly impacted by a state of hypoglycemia that his actions were no longer voluntary. He asserts that he was in a state of automatism.

[37] It is a fundamental principle of Canadian criminal law that only voluntary actions will attract findings of guilt. The actus reus of each of the charged offences in this case involves the act of driving. If Mr. Grelowski was not driving voluntarily, then it will inevitably follow that he cannot be guilty of a driving-related offence.

[38] The elements of an automatism defence were explored in detail by the Supreme Court in R. v. Stone, [1999] 2 S.C.R. 290. Justice Bastarache, who wrote the majority decision, defined automatism as:

…[A] state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action.

[39] He noted that there are two forms of automatism recognized by Canadian law: non-mental disorder automatism and mental disorder automatism. Both involve impaired states of consciousness in which an individual has no voluntary control over his or her actions. Each leads to a different outcome if established. In particular, an established claim of non-mental disorder automatism will entitle the accused person to an acquittal. On the other hand, an established claim of mental disorder automatism will not result in an acquittal, but rather a determination that the accused person is not criminally responsible by reason of a mental disorder. Mr. Grelowksi argues that he was in a state of non-mental automatism on the occasion in issue.

[40] I said earlier that the Crown bears the onus, at all times, to establish the guilt of an accused person beyond a reasonable doubt. That rule never changes. It applies with full force here. That said, the law presumes that people act in a voluntary way. The Crown is entitled to rely on that presumption in proving its case.

[41] Because voluntariness is presumed, the onus is on an accused person advancing a defence of automatism to demonstrate, on a balance of probabilities, that he or she was not acting voluntarily on the occasion in issue.

FACTUAL OVERVIEW

[42] I will take a moment to review the surrounding circumstances before I embark on an analysis of the central issue in this case – Mr. Grelowski’s state of mind at the time of the incident in issue.

[43] As I have alluded to, the facts are relatively straightforward and, for the most part, not in contention.

[44] Mr. Grelowski testified that he has no recollection of the events of the day in question. His absence of recall is not limited to the collision and the moments that preceded it. He testified that he can remember nothing at all of April 11, 2018.

[45] He was able, of course, to testify about his circumstances generally, as they prevailed in 2018. He is presently 41 years old and was 37 at the time of the collision. He is the father to twin girls, age 7. He has been employed in heavy equipment operation since about age 20. In April 2018 he was working for Priestly Demolition, though he had only been with that company for a matter of weeks. At the time of the alleged offences he was living on Raymond Avenue in Orillia.

[46] Mr. Grelowski has Type-1, insulin-dependent diabetes, which he was diagnosed with at age 19. At the time he was diagnosed, his doctor told him to make sure he tested his blood sugar level each time before he drove. He also said to always have something with him that he could eat and to watch for signs of low blood sugar.

[47] Mr. Grelowski testified that he followed his doctor’s advice. He kept a test-kit, candy and a pop in his lunch box. He would use his kit to test his blood sugar before he ate or if he felt like he was having a low and prior to each occasion when he drove or operated machinery. The test involved pricking his finger and reading a sample of his blood on a testing device. He said that low blood sugar was any result below 5 millimoles per litre (mmol/L).

[48] Mr. Grelowski generally managed his diabetes well. Nevertheless, he did experience occasions when he had low blood sugar. He described the symptoms he would feel as getting grumpy or snappy, fatigue, sweating or having difficulty with comprehension.

[49] On April 11, 2018 Mr. Grelowski was working on a job site for Priestly Demolition in Markham near the 407 and Woodbine. He had been working at that site for several weeks. He carpooled to work with a co-worker named Aaron Blackmore. They met in the mornings at about 5:00 a.m. at a Tim Horton’s restaurant located on Monarch Drive, just east of the intersection of Highway 11 and Coldwater Road in Orillia. Mr. Blackmore drove a company vehicle and he drove them to and from work. Mr. Grelowski left his vehicle at the Tim Horton’s during the day.

[50] Mr. Blackmore testified that they normally worked from 7:00 a.m. to 5:00 p.m. On April 11, 2018 they shut down their equipment at about 4:30 in order to get everything wrapped up for 5:00 p.m. On that day he had some paperwork to finish off. Mr. Grelowski offered to drive the work truck back to Orillia to so that Mr. Blackmore could do the paperwork while they drove.

[51] According to Mr. Blackmore, there was nothing remarkable about Mr. Grelowski’s appearance during the work-day or on the drive home. He appeared to be in a normal state. He had a call with his twins that lasted about 5 minutes. The call appeared to him to be normal.

[52] About 25 minutes from Orillia, Mr. Blackmore noticed that their vehicle was drifting slightly out of its lane. He asked Mr. Grelowski if he was okay. Mr. Grelowski responded that he was just tired, which Mr. Blackmore considered a normal condition after a long day of demolition work. About 10 minutes later the vehicle again drifted a little out of its lane. Again Mr. Blackmore asked Mr. Grelowski if he was okay and again Mr. Grelowski said he was just tired. Still, they pulled over and switched drivers at Mr. Blackmore’s suggestion.

[53] When they arrived at Tim Horton’s it was, according to Mr. Blackmore, about 6:20 or 6:30 p.m. Mr. Grelowski collected his belongings and got out of the vehicle. Mr. Blackmore said, “see you tomorrow” and Mr. Grelowski responded, “Yep, bright and early.” Mr. Blackmore said that as he drove away, he observed Mr. Grelowski at the side of his own vehicle putting his belongings in it.

[54] Mr. Blackmore said he was familiar with Mr. Grelowski’s blood sugar test kit. He did not see Mr. Grelowski use it on April 11, 2018.

[55] Jennifer Sneath is the mother to Mr. Grelowski’s twin girls. She resided with him at one time in the past, though she said they were not really in a relationship. At any rate, she testified that she has observed Mr. Grelowski to have episodes of low blood sugar roughly half a dozen times over the years. She said that when his blood sugar was low, Mr. Grelowski got argumentative and had an angry tone. When she thought his blood sugar was low, she encouraged him to eat something sugary. When he did so, the issue would be resolved.

[56] She described one somewhat serious incident of low blood sugar, which she said occurred in March 2015. Mr. Grelowski had been outside their home smoking a cigarette. He walked inside the house with his cigarette still lit, which was forbidden in their house. He was particularly grumpy and fell to the floor and began convulsing. Ms. Sneath called an ambulance. In the meantime, her older daughter gave Mr. Grelowski a glass of orange juice and that resolved the issue.

[57] Ms. Sneath corroborated Mr. Blackmore’s evidence about a phone call between Mr. Grelowski and his twins during his drive home from work. She testified that every night when she picked the girls up from daycare they would call him from the car. April 11, 2018 was no different. The call took place at 5:16 p.m. and it lasted about 5 minutes.

[58] Ms. Sneath said the call was not a normal conversation by Mr. Grelowski’s standards. It was short and abrupt. The girls were tired and not particularly communicative. Mr. Grelowski got off the call quickly, saying “fine, I am not going to talk to you if you don’t want to talk to me.” Ms. Sneath said he sounded “kind of mean” and was absolutely not how he would normally be with the girls.

[59] The sequence of events occurring after Mr. Blackmore drove away from the Tim Horton’s on Monarch Drive at roughly 6:30 p.m. on April 11, 2018 can be somewhat stitched together from the accounts of other witnesses, all of which went in by way of agreed statements of fact.

[60] Jeremy Rasmussen was driving northbound on Highway 11 when he observed a black Chevy SUV on the northbound onramp from Coldwater Road. It is a circular onramp. The SUV failed to negotiate the circle. At the bottom of the circle it continued to drive straight. It jumped a curb, traversed a grassy area and entered the live lanes of traffic going north. It continued to drive erratically, so Mr. Rasmussen called 911. The time of his call was 6:52 p.m.

[61] I note that Mr. Grelowski’s residence on Raymond Avenue was west of Highway 11 and south of Coldwater Rd. His typical route home would involve him crossing Highway 11 on Coldwater Road and continuing west. He was unable to explain why, on this occasion, he entered the onramp to head north on Highway 11.

[62] In any event, Mr. Rasmussen continued to follow the black SUV. He observed it swerving between lanes. It pulled off at a gas station but did not stop to get gas. It paused at the exit from the gas station, then turned left and began to travel southbound in the northbound lanes. This was close to 7:00 p.m.

[63] Carol Beatty was travelling northbound on Highway 11 at about 7:00 p.m. on April 11, 2018. She observed a black SUV sitting at the exit of the Shell station. She thought the SUV was going to merge onto the highway so she pulled over into the left lane. As she was doing so, the SUV entered the highway going southbound and came straight at her. She had to swerve out of the way to avoid it and even then, it missed her by just inches.

[64] Seema Rani was working inside the Shell gas station on Highway 11 north, just past Knight Avenue on April 11, 2018. At roughly 6:45 p.m. she observed a black Chevy SUV driving between the gas pumps, under the canopy, at a fast rate of speed. She saw it enter the highway and proceed southbound in the northbound lanes and heard cars honking their horns.

[65] Other witnesses observed the black SUV coming towards them as they drove north on Highway 11 and had to swerve to avoid a collision. They include Robin Faris-Cadeau, Samuel Pace and Derek Crawford. Mr. Crawford observed the collision in his rear-view mirror. He pulled over immediately and made his way to the SUV. He learned the driver’s name was Mike. Mike appeared “somewhat incoherent” and had blood on his face.

[66] Scott Reid came upon the collision on Highway 11 and attended at the black SUV to check on its occupant. He asked the driver what his name was and he immediately responded, “Mike”. Mike said, “I want out…get me out of the vehicle.” He described Mike as “slurring his words”. He was mumbling, speaking slowly, slightly incoherent and appeared confused. Mr. Reid observed Mr. Grelowski to be in and out of consciousness four or five times during a period of about 15 minutes that he spent with him before an ambulance arrived.

[67] Mr. Grelowski was initially transported by ambulance to Soldiers’ Memorial Hospital in Orillia, arriving there at 8:31 p.m. Some time later he was transferred to St. Michael’s Hospital in Toronto. I am unclear about how long he spent in the Emergency Department at Soldiers’ Memorial but it appears to have been at least a couple of hours.

[68] Blood tests done at Soldiers’ Memorial indicated that his blood sugar level was 4.6. His blood alcohol level was zero. According to the attending physician, Dr. Craig Markle, there was “no evidence of hypoglycemia.”

The Expert Evidence

[69] The defence called Dr. Ian Blumer, an endocrinologist, to provide expert evidence about diabetes generally, its care and management, and the impact it can have on mental functioning. His qualification to provide such evidence was not disputed.

[70] Dr. Blumer described a number of conditions that are of significance to the circumstances in this case.

[71] “Hypoglycemia” is a term used to describe low blood sugar. Specifically, a blood sugar level of 3.9 mmol/L or less. Symptoms of hypoglycemia may include sweating, palpitations, nausea and hunger.

[72] “Severe hypoglycemia” is a term used to describe hypoglycemia that incapacitates a person to the point where they are unable to self-manage their low blood sugar and require a third party to assist. A person suffering severe hypoglycemia is typically confused and disoriented and may lose consciousness. Blood sugar levels of less than 2.8 mmol/L are often associated with severe hypoglycemia.

[73] “Neuroglycopenia” is a condition where low blood sugar impairs thinking. In other words, brain functioning is interfered with. A person experiencing neuroglycopenia is often confused, disoriented, acting strangely and may lose consciousness. Severe hypoglycemia and neuroglycopenia typically go hand-in-hand.

[74] According to Dr. Blumer, a diabetic person may or may not have prior awareness of severe hypoglycemia. In other words, he or she may not sense it coming on. It is entirely possible for a diabetic to go from a state of unawareness of dropping blood sugar level to severe hypoglycemia without knowing it and without going through any sort of middle stages. Indeed, this is not uncommon.

[75] He said, in fact, that sometimes the people who best manage their diabetes are the ones more prone to sudden, severe episodes they are unaware of. The disease is very unfair in this respect. There is no typical rate of progression from dropping blood glucose to severe hypoglycemia. It can happen in minutes or it can take a whole day.

[76] Once someone enters a state of severe hypoglycemia, he or she will be so incapacitated that they are unable to look after themselves.

[77] The effects of neuroglycopenia vary from person to person, episode to episode and minute to minute. In most instances, a person in a state of neuroglycopenia is not aware of what he or she is doing and mostly engages in rote behaviours. Some people will continue to have a reasonable amount of high functioning. They can appear to be doing normal things but seem to be in a daze. Most of the time the person won’t remember what happened while they were in a state of neuroglycopenia.

[78] Dr. Blumer described a “gold standard” test that is used in the diabetes world to obtain an overview of blood glucose levels. Known as the A1c test, it determines how much sugar is attached to red blood cells over the lifetime of those cells. The lifespan of a red blood cell is 3-4 months. A person with well-controlled diabetes will have a test result of 7% or lower. On April 23, 2018 Mr. Grelowski’s A1c measured 7.0. That means that in the 3 months or so, pre-collision, his diabetes control was very good.

[79] Dr. Blumer expressed the “strong impression” that Mr. Grelowski had generally well-controlled diabetes. On the occasion in issue, however, his blood sugar level dropped precipitously to the point where he was not consciously aware that he had low blood glucose or that he was driving erratically.

[80] When Mr. Grelowski arrived at Soldiers’ Memorial, his blood glucose level was 4.6. Such a level is not associated with severe hypoglycemia and is, in fact, toward the lower end of the normal range.

[81] Dr. Blumer explained, however, that when a person has bodily injuries due to a traumatic event, there is a surge of hormones in their body. These hormones stimulate the liver into making glucose and releasing it into the bloodstream. Typically, glucose levels will start rising after a trauma like this. The collision occurred roughly 90 minutes before Mr. Grelowski’s blood glucose level was tested at the hospital. He had suffered significant injuries including a fractured left patella, dislocation of the left knee, a fractured right humerus and a fractured right ankle. Dr. Blumer said he was surprised Mr. Grelowski’s glucose level remained so low. He would have expected it to be up around 10 mmol/L. A reading of 4.6 suggested to him that the blood glucose level at the time of the collision must have been very low. In his view, the odds are incredibly high that Mr. Grelowski’s blood glucose level was much lower than 4.6 at the time of the collision.

[82] Dr. Blumer was asked about Dr. Markle’s note to the effect that there was “no evidence of hypoglycemia”. He was obviously not able to speculate about what was in Dr. Markle’s mind. He said he could not understand why Dr. Markle wrote what he wrote.

[83] Under cross-examination, Dr. Blumer accepted that it is impossible to say what Mr. Grelowski’s blood glucose level was at the time of the collision. He was aware that Mr. Grelowski was able to tell aiders on the scene that he wanted to get out of his vehicle. He appeared to have been aware that he could not get out on his own. He said, however, that people with impaired cognition due to low blood sugar may be able to express themselves or reflect pain. Certain aspects of cognition may be available while others are not and they may change minute by minute.

[84] He was asked by Crown counsel about certain features of the evidentiary narrative that are arguably manifestations of low blood sugar that Mr. Grelowski ought perhaps to have been aware of. For instance, his fatigue, drifting out of his lane while driving the work truck, and speaking harshly to his twin girls.

[85] Dr. Blumer said that it was possible that Mr. Grelowski was hypoglycemic well in advance of the collision, such as when he was speaking with his twin daughters at 5:16 p.m. Without a contemporaneous test, however, it is impossible to say. Moreover, he said that while diabetics typically do recognize when they have low blood sugar, there are current studies that show that most have episodes they are not aware of. It is essentially impossible to say whether there were manifestations of low blood glucose that Mr. Grelowski ought to have recognized (and perhaps acted upon).

[86] Dr. Blumer confirmed, under cross-examination, that diabetic patients are advised to measure their blood glucose level before driving and then every four hours while driving. If their level is below 4, they should eat 150g of carbohydrates and wait 40 minutes, then test again. It is up to each individual driver to take the necessary precautions. Even then, he said, a person can follow the guidelines and still experience misadventure.

DISCUSSION

The Parties’ Positions

[87] Crown counsel urged the court to approach Dr. Blumer’s evidence with a healthy degree of caution. In her submission, he did not demonstrate the level of impartiality that the court expects of expert witnesses. He is, she said, obviously sympathetic to his diabetic patients and did his best to twist the evidence in Mr. Grelowski’s favour in any way he could, so as to leave the impression that what happened here was misadventure.

[88] The Crown does not strongly dispute the inference that Mr. Grelowski was in a state of severe hypoglycemia at the time he began to drive southbound in the northbound lanes of Highway 11. But that does not mean, the Crown says, that the collision was the result of misadventure. In the Crown’s submission, the offence was complete long before that moment. It became complete when Mr. Grelowski began to drive, knowing the risk he was taking, in light of obvious signs of low blood glucose and his failure to test his glucose level before driving.

[89] The Crown cited R. v. Elson, 2012 ONSC 5188, in support of its position. Elson is similar to the case at bar in a number of respects. Mr. Elson caused a motor vehicle collision while in a state of severe hypoglycemia. He was charged with dangerous driving, amongst other offences. He admitted that the actus reus of the offence was made out. He disputed the fault element of the offence, asserting that he did not have the capacity to understand the risk associated with his driving on the occasion in question.

[90] Mr. Elson lived and worked in Brampton. On May 27, 2010 he left work at about 3:40 p.m. He felt normal when he got into his vehicle to drive home, a trip that would normally take 15-20 minutes. At some point during the drive he began to feel that his blood sugar level was dropping. While continuing to drive, he ate half a bun left over from his lunch and a Nature bar. He continued to drive despite knowing that it usually took 5 minutes for him to feel better after eating a Nature bar.

[91] At some point during the drive, Mr. Elson became disoriented and “blacked out”. He drove well outside of the Brampton city limits. His driving was erratic. He struck another vehicle in an intersection, reversed and drove off. He eventually caused a multiple-vehicle collision.

[92] Mr. Elson defended the charge of dangerous driving on the ground that he was so disoriented and confused that he could not appreciate or was not aware of the risk he was taking when he continued to drive after sensing that his blood glucose level was low. The court rejected that defence.

[93] The trial judge determined that Mr. Elson made a conscious decision to keep driving despite knowing his blood glucose level was low. His disorientation and confusion occurred, at the earliest, minutes after he felt his blood sugar was low, giving him ample time to pull over. He chose to drive, despite understanding the risk involved. His evidence did not leave the trial judge in a state of reasonable doubt about his capacity to appreciate the risk flowing from his conduct. In the circumstances, his moral fault was established and he was properly convicted.

[94] The Crown urges the court to make a similar finding in Mr. Grelowski’s case. There are, in the Crown’s submission, ample reasons to conclude that Mr. Grelowski made a conscious decision to drive – and to put to the public at risk – when he knew his blood sugar level was low and that he should, at the very least, test that blood sugar level before driving.

[95] The Crown points to a number of features of the evidentiary landscape that ought to have been red flags to Mr. Grelowski:

(a) He had not tested his blood glucose level before driving Mr. Blackmore’s work truck; (b) He felt fatigued while driving back to Orillia; (c) He was uncharacteristically grumpy and a little short-tempered with his twin girls when speaking with them at 5:16 p.m.; and, (d) He drifted out of his lane twice within a space of about 10 minutes, as he approached Orillia.

[96] In the Crown’s submission, any one or more of these features ought to have been sufficient to alert Mr. Grelowski to the fact that he ought not to be driving until he had confirmed that his blood glucose level was at least 5 mmol/L. Mr. Grelowski made a conscious decision to drive, in the face of these red flags, and despite being aware of the risk he was taking. His choice to drive under these conditions establishes the moral and legal fault necessary to ground criminal liability.

[97] The defence position is that Mr. Grelowski was in a state of neuroglycopenia when he left the parking lot at Tim Horton’s. He was observed driving terribly erratically only moments later. He lacked the capacity, when he drove off in his SUV, to appreciate the risk that he was taking.

[98] This case is distinguishable from Elson, in the position of the defence. In Elson, there was clear evidence – from the defendant himself – that the defendant was aware of his low blood sugar level. There is no such evidence here. Moreover, the evidence supports the conclusion that Mr. Grelowski was in a state of neuroglycopenia before he began to drive his SUV and that he remained in that state to the time of the collision.

[99] There is, in the defence submission, at least a reasonable doubt about Mr. Grelowski’s capacity to appreciate the risk that his driving posed when he set off from Tim Horton’s.

[100] A concurrent submission made by the defence is that Mr. Grelowski was so incapacitated that he was no longer acting voluntarily when he drove away from Tim Horton’s. He was in a state of automatism, which continued until the point of the collision.

Analysis

[101] Having set out the background circumstances in some detail, the analysis of the live issues is really quite straightforward in my view.

[102] I am satisfied that Mr. Grelowski was in a state of neuroglycopenia at the time he left the Shell station and headed southbound in the northbound lanes of Highway. 11. That he was confused and disoriented is the only reasonable explanation for why he entered the highway going in the wrong direction and continued to drive in that direction for a considerable distance, passing a number of swerving and honking vehicles along the way. The only alternative explanations for that conduct that come to mind are that he was either suicidal or homicidal. As his counsel argued, there is no evidence to support that he had either of those states of mind.

[103] I am also satisfied that Mr. Grelowski was in a state of neuroglycopenia when he drove off in his SUV from the Tim Horton’s on Monarch Drive in Orillia.

[104] He was dropped of at that location by Mr. Blackmore between 6:20 and 6:30 p.m. on April 11, 2018. Mr. Rasmussen called 911 at 6:52 p.m. to report Mr. Grelowski’s erratic driving. At the time of his call, he was at the intersection of Highway 11 and West Street, which is 3.9 km away from the Tim Horton’s on Monarch Street. It is not possible to say exactly how long it took Mr. Grelowski to drive that 3.9 km, but I would not expect it to be more than 5 or 6 minutes. That means there are anywhere from about 15 to 25 minutes between when Mr. Blackmore dropped Mr. Grelowski off in the parking lot and when Mr. Grelowski began to drive away.

[105] It is impossible to say what Mr. Grelowski did in that period of time. He has no recollection of any part of the day.

[106] Crown counsel argued that I should have some concern about Mr. Grelowski’s credibility in light of his assertion that he could not remember any of the day. The Crown submits that, even if he had suffered an episode of hypoglycemia, Mr. Grelowski should be able to remember those parts of the day in issue both before and after that state of impaired cognition.

[107] It does seem a little odd to me that Mr. Grelowski cannot remember any of the events of April 11, 2018. But I cannot say that he is exaggerating his memory loss. I found him to be an otherwise candid witness. The date was a significantly traumatic one for him, though he did not suffer any apparent head trauma. He testified, however, that he has been having memory problems and has a tendency to repeat himself many times over. He has been suffering bad migraines since the collision.

[108] I found Mr. Grelowski to be generally credible. I accept that he cannot recall the events in issue. In the result, I am left with a blind spot in the evidentiary record involving the time period between about 6:20 p.m., when Mr. Grelowski was dropped off at Tim Horton’s, and about 6:45 p.m., when Mr. Grelowski left Tim Horton’s in his own vehicle.

[109] I find that at some point in that blind spot, Mr. Grelowski’s blood sugar fell to the point where he was in a state of severe hypoglycemia. I find that he fell into a state of severe hypoglycemia precipitously and, in particular, too quickly for him to be able to do anything about it.

[110] There is some evidence, of course, that Mr. Grelowski had experienced at least one prior episode where he fell precipitously into a state of severe hypoglycemia. Specifically, the occasion described by Ms. Snead when he fell to the floor convulsing.

[111] I accept Dr. Blumer’s strong impression that Mr. Grelowski’s blood glucose level dropped precipitously to the point where he was not consciously aware of his low blood sugar or that he was driving erratically.

[112] I do not share Crown counsel’s somewhat dim view of Dr. Blumer’s objectivity. I agree that he presented as sympathetic to diabetes sufferers. I am not surprised by that in light of his life’s work. That said, I do not agree that he contorted the evidence to fit a particular view. As he said, we cannot know for sure what Mr. Grelowski’s blood glucose level was without contemporaneous test results. But considering the circumstantial evidence as a whole, he was able to form a strong opinion. I believe he was fair in his approach.

[113] A precipitous drop-off in blood glucose is, in my view, supported by the evidence. In my view, Mr. Grelowski was in a state of confusion and disorientation when he first drove off from Tim Horton’s. The extent of his confusion and disorientation was manifest by the time he got to the onramp to Highway 11 north at Coldwater Road. That onramp is a very short distance from the Tim Horton’s on Monarch Drive. He was driving erratically, in other words, just moments after he left Tim Horton’s.

[114] There is certainly reason to believe that Mr. Grelowski was completely unable to appreciate the risk he was taking when he drove his own vehicle out of the Tim Horton’s parking lot.

[115] The Crown submits, as I noted, that Mr. Grelowski ought to have taken steps earlier so as to have avoided the precipitous drop-off in blood glucose that resulted in his erratic driving. He ought to have, for instance, tested his blood glucose before leaving Markham.

[116] I accept that the gold standard of care dictates that diabetics test their blood glucose levels prior to each occasion when they drive. Mr. Grelowski should have tested his blood glucose level prior to leaving the job site in Markham. I do not know whether he did. He said he thinks not given what happened. But that is nothing more than retrospectant speculation.

[117] Mr. Blackmore did not see Mr. Grelowski testing his blood glucose, but Mr. Blackmore’s focus was not on Mr. Grelowski and his testing. The bottom line is that I can only speculate about whether Mr. Grelowski did or did not test.

[118] I also accept that there may have been signposts along the way between Markham and Orillia that Mr. Grelowski perhaps ought to have recognized as warning signs. Whether he was in any state of mind to recognize the significance of those signposts is a matter of speculation. As Dr. Blumer noted, there are times when a diabetic’s blood glucose falls, even significantly, without the person being aware of it.

[119] On the evidentiary record before me, I am prepared to – and do – make the following findings:

(a) I am unable to find that Mr. Grelowski’s blood glucose level was low during the drive to Orillia. There is no test result to consider and there is conflicting circumstantial evidence about whether he was experiencing hypoglycemia during that drive. At any rate, to be fair, regardless of the state of his blood sugar, he stopped driving when Mr. Blackmore suggested he take over for the balance of the drive; (b) At some point his blood glucose dropped precipitously to the point where he was unable to appreciate the risk that his driving posed. That fall-off occurred so quickly that he was unable to take steps to ward it off; and, (c) He was in a state of neuroglycopenia at all times during the drive from Tim Horton’s to the point of the collision. He continued in that state for some time afterwards. Even though he was able to tell aiders his name, he was described by them as being confused and somewhat incoherent. He fell in and out of consciousness a number of times while Mr. Reid was attending to him.

[120] This case is, in my view, readily distinguishable from Elson. Mr. Elson testified that he was aware of his dropping blood glucose level, yet made the conscious decision to keep driving, despite the known risk of doing so. There is no evidence that Mr. Grelowski was aware that his blood glucose was dropping. There is no evidence that he made a conscious decision to get in his SUV and drive, knowing he had low blood sugar and being aware of the risk he was taking. In my view, the evidentiary record supports a finding that he was in a confused and disoriented state when he set off in his SUV, in which case he was in no position to rationally assess the risk associated with driving.

[121] In brief summary I conclude:

(a) The Crown has established the actus reus of dangerous driving to the reasonable doubt standard. No one could suggest that driving southbound in the northbound lanes of Highway 11 is not dangerous. (b) The Crown has established, to the reasonable doubt standard, that driving southbound in the northbound lanes of Highway 11 is a marked departure from the norm. (c) The evidence regarding Mr. Grelowski’s actual state of mind raises a reasonable doubt about whether a reasonable person in his position would have been aware of the risk created by his conduct. Stated another way, the exculpatory evidence tendered by Mr. Grelowski – particularly the evidence of Dr. Blumer – leaves me in a state of reasonable doubt about Mr. Grelowski’s capacity to appreciate the risk his driving entailed and thus the requisite mens rea for the offences is not made out.

[122] In the result, Mr. Grelowski must be, and is, acquitted of both charges.

[123] In view of my conclusion that Mr. Grelowski must be acquitted, there is no need to analyse his alternative defence of automatism.

[124] I will say, briefly, that I am not satisfied that the evidence supports a finding of automatism. Dr. Blumer did not address automatism in his report. He did not offer the opinion that Mr. Grelowski was in a state of automatism when he drove on April 11, 2018. He was not asked whether he held that opinion when testifying here.

[125] I am satisfied that Mr. Grelowski was, at the very least, confused and disoriented when he turned into northbound traffic. I am not satisfied, on a balance of probabilities, that he was in a state of automatism.

C. Boswell J.

Released: May 25, 2022

May 25, 2022 – Correction:

1. “Orally” has been added to the heading.
2. The spelling of Dr. Blumer’s name has been corrected throughout.