COURT FILE NO.: 38/22 DATE: 2023/08/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHAWN NORRIS Defendant

Counsel: Heather Donkers, for the Crown Robert Farrington, for the Defendant

HEARD: June 5 and 6, 2023

MOORE j. (orally)

I. Introduction

[1] On October 7, 2019, Shawn Norris was operating a four-door grey Hyundai Sonata southbound on Highbury Avenue in the City of London heading toward St. Thomas. Around 12:30 p.m., his vehicle crossed the centre line and collided head-on with a Ford Escape being driven by Paul Kay (the “collision”). Paul Kay’s wife, Penny Kay, was in the front passenger seat and was killed. Paul Kay was also badly injured, as was the defendant. Mr. Norris had to be extricated from his vehicle and was then taken to the hospital.

[2] Shawn Norris, the defendant, now faces four charges under the Criminal Code:

i. Dangerous driving causing bodily harm (s. 320.13(2)) ii. Dangerous driving causing death (s. 320.13(3)) iii. Impaired driving causing bodily harm (s. 320.14(2)) iv. Impaired driving causing death (s. 320.14(3))

[3] Identity, date, jurisdiction and causation are all admitted.

[4] Much of the evidence regarding the collision is not in dispute. The defence made a series of admissions at the outset of the trial through an agreed statement of fact (“ASF”) and documents filed on consent. These included admissions as to the parties involved in the collision and their vehicles, continuity of all items seized, the coroner’s report, the accident reconstruction report, eight volumes of the defendant’s medical records and doctor’s letters, and the Centre for Forensic Sciences (CFS) report and letter of opinion.

[5] In addition to the ASF and exhibits filed, the Crown called ten witnesses: four civilian, five police officers, and one expert from the CFS. The defendant did not testify. It is an agreed upon fact that he has no memory of the collision. No other defence evidence was called.

[6] There were two issues that were left for the Court to determine:

• Did the defendant drive in a manner dangerous to the public in the circumstances, such that it constituted a marked departure from the standard of care that a reasonable driver would exercise in the circumstances?
• Was the defendant’s ability to operate a motor vehicle impaired by a drug at the time of the collision?

[7] These reasons explain the verdicts I have reached on the counts before me.

[8] Rather than discuss the evidence by witness, I have included their testimony under the issues to be determined and divided the evidence into the driving evidence and the impairment evidence.

II. The Driving Evidence

A. Witnesses Testimony

[9] The evidence of multiple witnesses was that October 7, 2019, was a bright day with some cloud cover, the roads were dry, and the driving conditions were good. The road at the location of the collision was flat and straight. There was one lane of traffic in each direction with a double center line.

[10] The Crown’s case as to the nature of the defendant’s driving consisted of three events:

• A vehicle crossed through the ten-meter grass median from the southbound lanes of Highbury Avenue (“Highbury”) to the northbound lanes, and then crossed back to continue southbound at about 12:30 p.m.
• The vehicle was observed to be swerving over the centre lane in the moments prior to the collision.
• The vehicle crossed the centre lane and collided head-on with the Kay vehicle on the gravel shoulder of the northbound lanes.

Crossing of the Median

Mark Frederick

[11] Mr. Frederick testified that he was on his lunch break at about 12:30 p.m. and was in the passenger seat of a vehicle, talking on the phone, travelling northbound on Highbury. He saw a southbound car hit the shoulder, spin a bit sideways, and then travel through the center median at a high rate of speed over to the northbound lanes. It caused mud and plants to go flying onto the northbound lanes.

[12] The car travelled across the center grass median and into the northbound lane of the highway, paused for less than five seconds, and then came back across the median and re-entered the southbound lanes now somewhere behind Mr. Frederick’s vehicle. Mr. Frederick was surprised it didn’t just keep going north in the northbound lanes.

[13] The car was described as an older model sedan dark in colour: navy, black or dark grey.

[14] At that location on Highbury, about midway between Bradley Avenue and Commissioner’s Road, there are two lanes of traffic in each direction separated by a grass median.

[15] Mr. Frederick testified that it was a sunny day with dry roads and lots of traffic in both directions.

[16] He agreed in cross-examination that the entry into the median was forceful, and he would not be surprised if there was some damage to the vehicle.

[17] Mr. Frederick did not report the driving immediately. He later saw an ambulance travelling northbound on Highbury and was told by a co-worker that Highbury had been closed due to an accident. He wondered if it was a coincidence. When he saw the news that evening, he decided to call police and report his observations. He believes he called that night or the next day. He provided a statement on October 13, 2019.

[18] Mr. Frederick’s observations were not challenged, and the defence counsel, quite properly in my view, conceded that it was a reasonable inference that the car observed by Mr. Frederick was Mr. Norris’s car.

Constable Ben Hush

[19] Constable Hush was the investigating officer in this matter. He testified that he was dispatched at 1:25 p.m. and arrived at the scene of the collision at 1:38 p.m. He described the two vehicles that had been involved in a head-on collision, a Hyundai Sonata, and a Ford Escape.

[20] He observed that the Hyundai had its roof and doors removed. While at the scene, he noted that the Hyundai had quite a bit of mud in its hubcaps and wheel wells. Since it was a clear, dry day and the gravel shoulder was not wet, he believed the vehicle had gone off the road at some point. There was also green vegetation with a yellow stem in the grille of the vehicle and there was no similar vegetation nearby. He drove north on Highbury to the 401 but did not see where a vehicle had left the road.

[21] After receiving the report from Mr. Frederick, Cst. Hush returned to Highbury Avenue on October 12, 2019, accompanied by Cst. Jackson, and attended at the area just south of Commissioners Road. At this time, he observed clear tire tracks entering the centre median from the southbound lanes, travelling across the median, and ending up facing northbound in the northbound lane. There was a second set of tracks showing that the same vehicle then re-entered the median and crossed back over to the southbound lanes. There was vegetation at that location that was similar to the vegetation found in the front grill of Mr. Norris’s car. The median at that location was also soft and muddy.

[22] Cst. Hush measured the wheel width of the impressions left by the tire tracks at the median and they were the same width as Mr. Norris’s vehicle. There was also a partial tire pattern that was consistent with the tires on the Hyundai.

[23] Cst. Hush was not cross-examined on any of his evidence.

Constable Jackson

[24] The evidence of Cst. Jackson is contained in the ASF. Cst. Jackson corroborates the observations of Cst. Hush of the tire marks leading from the southbound lanes onto the shoulder and then down into the grass ditch median. The tire marks continued across the grass median, creating deep furrows in the grass and went up onto the shoulder of the northbound lanes where they came to a stop. A second set of tire tracks continued where the first set stopped leading out into the northbound centre lane, back into the grass median and coming back out into the southbound lanes. There was a large group of flattened weeds in the median with flower buds consistent with those found in the front end of the Hyundai Sonata at the collision scene. The deep furrows were consistent with the mud build up around the tires and wheel well of the Hyundai.

The Manner of Driving in the Minutes before the Collision

Ms. Rosina McGuire

[25] Ms. McGuire’s evidence is contained in the ASF. She was behind Mr. Norris’s vehicle travelling in the same direction, at 80 km/h, for about two minutes prior to the collision. She made the following observations that I have reproduced from paragraph 10 of the ASF. These observations have been accepted as fact:

The Gray sedan was swerving onto the gravel shoulder of the southbound lane and then over the centre line into oncoming traffic and onto the gravel shoulder of the northbound lane. The sedan was traveling at approximately 80 kilometres per hour. It swerved five or six times in the two minutes that she spent observing the vehicle and crossed the centre line into the opposite lane approximately three times. When the Gray sedan last headed for the gravel shoulder of the northbound lane, a northbound SUV swerved onto the gravel to try and avoid the sedan. Ms. McGuire witnessed a head-on collision between the two vehicles. She did not see any maneuvers by the driver of the gray sedan to avoid the crash and did not see any brake lights deployed. Immediately after the crash Ms. McGuire pulled over and called 911.

The Collision

Douglas Taylor

[26] Mr. Taylor testified that around 1:00 p.m. on October 7, 2019, he was driving his transport truck northbound on Highbury coming out of St. Thomas. At that location there is one lane of traffic in each direction, separated by a road marking. The conditions were cloudy but clear, the roads dry and markings visible.

[27] He was about 75 yards behind a van also going north and travelling at about 70 km/h when a car suddenly appeared in their lane of traffic. The van hit its brakes and Mr. Taylor hit his, the van went to the shoulder of the road to try and avoid the car, but the car also went to the shoulder and hit the van head-on. Although Mr. Taylor calls the vehicle ahead of him involved in the collision a van, it is clear that it is the Kay Ford Escape.

[28] The car that entered their lane was a grey coloured sedan and was travelling south with a group of other vehicles.

[29] Mr. Taylor had a dashcam in his truck that was functioning that day and captured the collision. It was entered as an exhibit at this trial. In the video, the van can be seen in front of Mr. Taylor, and a car can be seen crossing over the double center line and colliding with the van which had veered toward the right onto the shoulder of the road. One can see the front of the van rise up as a result of the collision.

[30] There was no cross-examination of Mr. Taylor.

Paul Kay

[31] Mr. Kay testified that he was with his wife, Penny Kay, and they were travelling north on Highbury, just south of the pumping station and just north of Scotland road, when a car crossed over and hit them head-on.

[32] They were both wearing their seatbelts. He could not say his speed, but knew it wasn’t excessive.

[33] The road at that location was straight. There is one lane in each direction with road markings separating them. He thought it might have been a dotted line.

[34] There was nothing to indicate to him that the other vehicle was coming over; it happened instantaneously. He believed he turned the wheel to the right to avoid the car.

[35] He heard a loud bang, saw a white flash, and then was unconscious. He awoke in a dreamy state to a police officer banging on the door asking if he was okay.

[36] He checked on his wife to see if her chest was rising or falling - it wasn’t. He wet his finger and put it under her nose to see if he could feel any coolness but could not. She had passed.

[37] Mr. Kay testified that as a result of the collision he suffered a damaged shoulder, eight broken ribs, a hematoma from the seatbelt that lasted a year, and a broken lower back.

[38] He still suffers even today, mainly from his back injury which causes him pain and limits what he can do. He testified that he used to be a powerful man, but now has to ask his 14-year-old granddaughter to lift things for him. After the collision, he was in hospital for a couple of weeks and still goes to physiotherapy every week.

[39] Mr. Kay was not cross-examined.

Accident Reconstruction Report - Constable Amanda Dymock

[40] Cst. Dymock is a technical collision reconstructionist who is employed by the London Police Service. She completed the technical motor vehicle reconstruction report for this collision which was filed as evidence on consent. She did not testify.

[41] The report describes the roadway at the location and position of the vehicles as set out earlier. The vehicles were facing each other on the gravel shoulder of the northbound lanes. Photos show that the two vehicles are fully off the paved portion of the road and on the shoulder. The engine compartment, hood and front carriage of the Hyundai had been pushed back toward the driver and passenger compartment. Three of the four doors and roof had been removed. She also indicates that a large amount of weed debris was found in the front grille and embedded in the engine compartment of the Hyundai. The undercarriage of the car had grass and dirt throughout. Inside the plastic wheel wells of the car was a large collection of fresh black dirt. There was no evidence that the weed debris came from the scene. Similar weeds were located at the ‘secondary scene’ where a car had crossed and recrossed the median. That scene was 7.3 km away.

[42] Two walkers and a pair of crutches had been removed from the car and were alongside the vehicle.

[43] She examined the scene and was unable to locate any signs of braking leading to the Hyundai’s final resting place. There were black tire marks from the Ford Escape leading into the gravel.

[44] The Hyundai was examined by a mechanic on October 8, 2019 and was found to be in average mechanical condition. The front end was too severely damaged to check steering components and front suspension. The brakes and emergency brake were in “ok” condition.

Constable Bernard Scheid

[45] Cst. Scheid is a 25-year member of the London Police Service (“LPS”). He was part of the investigation into the collision. He attended the scene and seized evidence which I will detail in the next section. In addition, he conducted a vehicle exam of the Hyundai Sonata.

[46] He testified that when he examined the vehicle, it had no roof and had significant damage to the front end, but otherwise appeared to be in working order.

[47] In cross-examination, he agreed that he wasn’t a mechanic but that the vehicle was examined by a mechanic. He also agreed that his notes of the vehicle examination indicated that the tire pressure of the tires on the Hyundai were as follows: right front – 20 pounds per square inch (psi); left rear – 30 psi; right rear – 30 psi, and left front – flat.

[48] He testified that he does not know when the tire became flat and that he could not rule out the possibility that it deflated right before the collision.

[49] In re-examination, he examined exhibit #7 which was a photo of the Hyundai and agreed that the damage depicted in the photo was in the area of the tire that was flat. He also opined that if the tire were to “go out” suddenly, he would have expected more damage to the tire.

Constable Bradley Yeo

[50] Cst. Yeo is a 20-year member of the LPS and is a collision reconstructionist. He was involved in investigating this collision.

[51] He testified that he examined the data of the crash data module from the Ford Escape [Kay vehicle]. He testified that the air bag control module recorded two events: a locked event which could not be overwritten, and an unlocked event that could be overwritten. Other than the unlocked event, which contained about 900 milliseconds of additional data, i.e., a little less than one second, the data was consistent with no other irregularities.

[52] The data revealed the speed the Ford Escape was travelling in the five seconds before the air bags deployed. They were as follows:

• 5 seconds (“s”) – 83 km/h
• 4s – 83 km/h
• 3s – 82 km/h
• 2s – 82 km/h
• 1s – 81 km/h
• 0s – 80 km/h

It also indicated that both occupants were wearing their seatbelts. The brakes were applied at the sometime between 0.5 seconds prior to collision and 0 seconds. The module detected the speed after the deployment as 53 km/h.

[53] The crash data module for the Hyundai was not supported and could not be analyzed.

B. Legal Principles

Presumption of Innocence and Burden of Proof

[54] The defendant is presumed innocent of the charges unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.

[55] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It is also not proof to a level of absolute certainty. It requires that I be sure that the defendant committed the offences. The standard of proof applies to each of the essential elements of the offences, but not every piece of circumstantial evidence, and requires that I determine if the evidence as a whole establishes proof beyond a reasonable doubt.

W.D. Principles

[56] The defendant called no evidence. Therefore, according to the principles established in R. v. W.(D.), [1993] 1 S.C.R. 742, I must consider whether on the evidence called by the Crown, I am satisfied beyond a reasonable doubt of his guilt on each count. If there is evidence in the Crown’s case that raises a reasonable doubt, I must find the defendant not guilty.

[57] What I cannot do is permit a criminal trial to turn into a credibility contest where I simply chose one side's evidence or version of events over the other.

Dangerous Driving Causing Bodily Harm or Death

[58] The Supreme Court of Canada in R. v. Roy, 2012 SCC 26, reiterating the test in R. v. Beatty, 2008 SCC 5, summarized the necessary conduct and mental state required for the offence of dangerous driving at para. 28 as follows:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [Emphasis in original]

[59] The Supreme Court went on in Roy to pose two questions that the trier of fact should consider in assessing the required mental state:

• In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? and
• Was the accused's failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused's circumstances?

[60] This offence requires a modified objective test, and examines the driving and risks associated with the manner of driving against the standard of a reasonable person in the defendant's circumstances.

[61] Lastly, the Crown must establish that such driving caused bodily harm and death, respectively, to the named victims. The threshold for bodily harm is rather low and incorporates any harm that is more than merely transient or trifling in nature. The manner in which the defendant operated his motor vehicle must be shown to be a significant contributing cause of the bodily harm suffered. There is no issue in this case that the manner in which the defendant operated his motor vehicle was a significant contributing cause to the death of Penny Kay and to the bodily harm suffered by Paul Kay.

[62] I must be careful not to work backwards from the devastating consequences of the collision and use these to conclude that the manner of driving was dangerous. The focus must be on the driving.

[63] I must also remain mindful that although civil consequences may arise from the collision, it is essential to apply the criminal standard of proof beyond a reasonable doubt to the essential elements of the offence. Only a marked departure from the standard of a reasonably prudent driver in the circumstances, coupled with the necessary mental element, will be sufficient to attract criminal liability.

[64] Where a case relies largely on circumstantial evidence, I must be satisfied that guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56.

C. Positions of the Parties

[65] The defendant agrees that driving into an oncoming lane of traffic and colliding head-on with another vehicle may be objectively dangerous in the circumstances and did not seriously contest that the actus reus of the offence was made out. However, he submitted that there are other explanations for the driving that could negate any inference of a marked departure from the standard of care that a reasonable person would observe in the circumstances.

[66] He submits that two particular scenarios could not be ruled out: a deflation of the front tire or both front tires that caused the vehicle to become uncontrollable, or a sudden physical event such as a panic attack. As such, he submits that a marked departure cannot be made out by the Crown beyond a reasonable doubt.

[67] The defendant concedes that it would be a reasonable inference for the Court to conclude that it was his vehicle that was seen by Mr. Frederick as having crossed back and forth over the median. The defendant submits that it is quite possible that the entry into the median may have damaged the front left tire resulting in it going flat at the time of the collision or causing damage to both front tires.

[68] He submits that there is no evidence of continuous bad driving, as there is a gap in the driving evidence from when he returns to the southbound lanes to when Ms. Maguire observes him.

[69] Further, he points to the newsletter provided to Mr. Norris by the counsellor in April 2019, “Talking about facing your fears and battling anxiety. Making a checklist to help along the way”, and in June 2018, “Talking about Panic, Anxiety. Recognize the symptoms, take a break in a quite place where you can sit and relax -breathing during a panic attack will help slow down your heart rate and calm you down”, as supporting the possibility of a panic attack.

[70] The Crown submits that the defendant’s driving was objectively dangerous in the circumstances and was a marked departure from the standard of a reasonable person. She submits that this was not a momentary lapse in judgement, but continuous dangerous driving over several kilometers.

[71] The Crown points to circumstances which include a clear day with dry roads and busy traffic. There is no explanation for the driving witnessed, which included hitting the shoulder and travelling through the ten-metre median to the northbound lanes, then driving back through the median back to the southbound lanes. Further, in the moments before the collision, swerving five to six times, including three times over the centre line, and once all the way across the oncoming lane to the shoulder of the other side. And finally, crossing the center lane all the way over to the shoulder of the northbound lane and colliding with the Kay vehicle head-on.

[72] At the time of the collision, the roadway was straight, with one lane in each direction, was divided by double line and there was busy traffic in both directions.

[73] The Crown submits that there is no evidence to support that the bad driving was caused by a sudden deflation of the front tire. She points to the alternate explanation for the flat tire, being the collision itself and Cst. Scheid’s evidence that if there was a “blow out” one would expect more damage to the tire itself. Further, she submits that the evidence does not support either a sudden or gradual deflation, as the dashcam video and other witnesses suggest a drifting over the centre lane to collide with the Kay vehicle. The witnesses and physical evidence suggest there was no braking by the defendant.

[74] In the alternative, the Crown submits that if there was a mechanical difficulty causing issues with the steering of the car, the defendant would have been well aware of the issue, having driven through the median and swerving multiple times in the moments prior to the collision. A reasonable person would have braked and pulled over to the shoulder of the road.

[75] As to the possibility of a sudden physical event, the Crown submits that there is absolutely no medical evidence to support such an event having occurred, and to consider one in the absence of evidence would be speculation.

D. Discussion

[76] I have no difficulty determining that the driving of the defendant on the date in question was objectively dangerous, given the nature and condition of the road, use of the place, and the amount of traffic that could reasonably be expected.

[77] I accept the evidence from the witnesses who testified about their observations of the defendant’s driving. They were all credible and reliable and were not challenged on their evidence.

[78] I heard evidence that Highbury is a major roadway in London that connects St. Thomas to London, as well as Highway 401 to downtown London. North of Highway 401 towards London, there are two lanes of traffic in each direction separated by a ten-metre natural median. South of Highway 401, there is one lane in each direction. It is a busy roadway. The collision occurred at around 12:40 p.m. in the middle of the day when there was traffic going in both directions.

[79] The collision occurred on a straight stretch of the roadway where there is one lane in each direction separated by a solid double yellow line. The roads were dry and in good condition. The weather was clear.

[80] For no apparent reason, the defendant’s car crossed the double center marked line into the oncoming lane and collided with the Kay vehicle on the gravel shoulder of the northbound lanes. There is no evidence of braking by the defendant.

[81] I am mindful that the Supreme Court in Roy cautioned trial judges from immediately jumping from a finding that the actus reus has been made out, to a determination that the offence has been made out. The mens rea for dangerous driving requires that there must be more than simple negligence, and that the Crown must prove that there was a marked departure from the behaviour of a reasonably prudent person in the circumstances. The conduct must be serious enough to be worthy criminal punishment.

[82] In this case, I have examined the whole driving picture in determining whether the defendant’s conduct is a marked departure.

[83] The first question the Supreme Court directs the Court to ask itself is, in light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?

[84] Here the risks were obvious. Crossing into an oncoming lane of traffic with oncoming cars nearby posed a serious risk of collision. The oncoming cars were clearly visible and there was nothing about the road or weather conditions which would have impacted on the perception of the risk. A reasonable person would have been alive to these risks and taken steps to avoid crossing over the center line by remaining on their side of the roadway or at minimum braking before a collision.

[85] The second question I must consider is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[86] The defendant submits that it was unforeseeable that he would cross the centre line and collide due to possibly a deflated tire (or tires), or due to a sudden physical event and that it was not possible to take steps to avoid it.

[87] It is in answering this question, that I have considered the earlier driving evidence as observed by witnesses and as set out in the accident reconstruction report.

[88] First, I find that there is no evidence to suggest that the poor driving by the defendant was brought on by a sudden physical event. There is no medical evidence post-collision that he suffered from an event such as a heart attack or stroke that may have impacted on his ability to drive. Of course, I appreciate and accept that the defendant has no memory of the collision so is unable to provide direct evidence as to what his state was. I stop to re-iterate that the defendant does not have to prove anything, the burden of proof is on the Crown and remains on the Crown.

[89] The defendant suggests that it is possible that he had a panic attack. While I have evidence from the medical records that the defendant suffered from anxiety and depression, I do not have any direct evidence he suffered panic attacks. The fact that he was given a newsletter with the titles referred to by the defence is not evidence that he suffered panic attacks. It clear from my review of almost three years of clinical records that the defendant was given the monthly newsletter almost every month and they covered a wide variety of topics.

[90] Without evidence, I am unable to accept the inference suggested by the defence that the collision was the result of a sudden physical event. I conclude, based on the evidence I do accept, the findings of fact I have made and the absence of evidence to support the defence’s inference, that it is an unreasonable inference to make.

[91] While accepting as a fact that the driver’s side front tire was flat at the time the vehicle was inspected the day after the collision, I find there is no evidence to suggest that the tire deflated before the collision or played any part in the collision. Cst. Scheid testified that if there was a sudden deflation i.e., a blow-out, he would have expected more damage to the tire.

[92] Even if I accepted that the tire deflated prior to the collision and was the cause of the defendant’s issues with controlling the vehicle, given the evidence of his driving in the minutes before the collision, I conclude that a reasonably prudent driver would have recognized the mechanical difficulty and pulled off the road.

[93] It is clear that the defendant, at least 7.3 km before the collision, was having difficulty keeping his vehicle within his own lane, as evidenced by hitting the shoulder and going through the median into the northbound lanes. His decision to return back through the median and re-enter the southbound lanes was an imprudent one. The difficulty with staying in his own lane continued in the moments prior to the collision.

[94] Even if there was some mechanical issue with the vehicle, or if the defendant was dealing with a medical event (which is not supported by evidence), I would find that his prior knowledge of the problem, his lack of foresight of the risk to other drivers, and his lack of any action to avoid that risk by slowing down and pulling over, was a marked departure from the standard of a reasonably prudent person in all the circumstances. The defendant would have been aware of the difficulties he was having before the final crossing and the collision.

E. Conclusion

[95] I am satisfied beyond a reasonable doubt that the defendant, having regard to all the circumstances, including the nature, condition, and use of the place where the motor vehicle was being operated, and the amount of traffic that at the time could be expected, drove his vehicle in a dangerous manner. I am further satisfied beyond a reasonable doubt that the degree of care exercised by the defendant was a marked departure from the standard of care that a reasonable person would observe in the circumstances.

III. The Impairment Evidence

A. Witness Testimony

[96] The evidence that I have described in the driving evidence section is also relevant to circumstantial evidence of impairment.

Christine Flint

[97] Ms. Flint was in a relationship with the defendant, and they lived together in October 2019. She testified that while they lived together, the defendant used his own medication but would often take hers as well, including her Percocet and oxycodone.

[98] The day before the collision, he was recovering from his recent knee surgery and fell down the stairs. After the fall, she testified that he was in a lot of pain. He spent the night in his chair. In the morning, he was angry, really agitated, and in a lot of pain.

[99] On the day of the accident, the defendant was heading to London to get his methadone. Ms. Flint testified that the defendant took some of her medications, but she didn’t see which ones. She said he took a lot. This was before 10:00 a.m., as he wanted to get to London and get back. She testified that she was concerned about him driving to London.

[100] After the collision, they continued their relationship, but it ended in January 2020. After that, Ms. Flint moved to Brampton and then Mississauga. They continued to communicate until a few weeks before the trial but stopped after she gave a statement to the police.

[101] In cross-examination, she acknowledged having a long record for fraud related convictions, including a five-year sentence in 2010, which appears to be her last conviction. She also acknowledged selling some of her prescription medication.

[102] She testified that the morning of the collision, she believed that the defendant ingested some “oxy’ and “percs”.

[103] She admitted that she had told the police that she wasn’t prescribed Lorazepam. She testified at trial that she had forgotten about that prescription.

Mr. Scott Beattie

[104] Mr. Beattie has been a member of the London Fire Department for the last 18 years. He was working on October 7, 2019, and was the driver of the engine that responded to the collision, arriving at 12:45 p.m.

[105] Others were assisting the female in one of the two vehicles involved. He assisted the defendant by removing the doors and roof of his vehicle. He described Mr. Norris as trapped in the car.

[106] He noted that the defendant’s one leg was heavily bandaged and straight. While he was assisting a female paramedic who was caring for the defendant, he noticed medication bottles on the floor of the car. He gathered them up and put them on the passenger seat.

[107] He described the defendant’s demeanour as groggy and said, “Most people are groggy after a collision like that, our job is to keep them coherent, don’t want them falling asleep, need to keep them awake, he was obviously groggy.”

[108] Mr. Beattie testified that he spoke to the defendant who was coherent and answering questions but was fading in and out of coherency. He wasn’t fading in and out of consciousness, but he was very lethargic.

[109] In cross-examination, he agreed that it was not uncommon for someone to be lethargic after the person has taken an airbag to the face.

Cst. Ben Hush

[110] Cst. Hush testified that he observed nine bottles of methadone on the front passenger seat of the defendant’s car. He also observed a pill bottle in the name of the accused for a drug called Saphris, but which contained many different pills. He also observed a pill bottle in the name of Christine Flint for a drug called Lorazepam, but which contained multiple different pills.

[111] The methadone bottles were in the name of Shawn Norris. All but one were full and were dispensed on October 7, 2019. They had different ingest dates. One bottle had an ingest date of October 20, 2019, and was intact with a lid, but was empty.

[112] The Saphris bottle instructed the user to dissolve two pills under the tongue at bedtime. The prescription was for 14 pills. The bottle contained 22 pills of various kinds. Cst. Hush used a pill identifier program to try and identify the pills, and identified some as APO Lamotrigine, R20 Rabeprazole, Spironolactone, Naproxen, and Trazadone 150. He was not able to identify the remaining pills, but none appeared to be Saphris.

[113] In the pill bottle with Christine Flint’s name, the dispensing date was September 28, 2019. The label indicated the bottle contained Lorazepam 2 mg with instructions to take one tablet at bedtime, as needed for sleep. The bottle contained 17 pills, including some of the same pills as identified in the other bottles, and some unidentified pills. None of the pills in the bottle appeared to be Lorazepam.

[114] The Lorazepam bottle contained a warning label that read: “Keep out of reach of children, may cause drowsiness and reduced alertness, use care while driving or operating machinery, do not consume alcohol while taking this medication”.

Constable Annette Hammerli

[115] Cst. Hammerli has been an officer with LPS for eight years. On the date of the collision, she was the initial responding officer. She was dispatched at 12:41 p.m. and arrived on scene at 12:47 p.m. She approached the defendant’s vehicle and observed that the air bags had deployed, that there was blood on his face, and that he was pinned in the vehicle. She spoke to him, and he appeared to be conscious and speaking. She told him not to move until medical help arrived. She testified that her interaction with the defendant was very, very brief – approximately 10-15 seconds.

[116] She then went to the other vehicle where she observed that the male driver was conscious and talking, but the female passenger was not doing well. There was a bystander with the front passenger. There was about a five-foot ditch beside the passenger side of the vehicle. The passenger was slid forward and was faintly breathing and not responding. She stayed there until other help arrived.

ASF Witnesses

[117] After witnessing the collision and calling 911, Rosina Maguire approached the grey sedan. She observed a male driver with a brace on his leg. There were walkers in the back seat. The airbag on the driver’s side had deployed. She observed the driver still trying to turn the steering wheel in front of him while the vehicle was stationary.

[118] Wayne Misikowetz was also travelling southbound on Highbury and observed the aftermath of the collision. He pulled over and checked on the occupants. A woman in the Ford Escape was slouched down and unconscious; the male driver was conscious. For the other vehicle, he observed what appeared to be a compound fracture in the right arm of the driver and the dashboard was pushed in on him. He noticed glass medicine bottles on the floor beside the driver. He noticed that the driver was confused and muttering things.

[119] Constables Clark and Refflinghaus arrived at the scene at 1:18 p.m. They checked the Hyundai for documents to identify the driver and were able to identify him as Shawn Norris. They located two medication bottles in the centre console: Lorazepam 2 mg prescribed to Christine Flint with about 10 different pills in the bottle, and Saphris 10 mg, prescribed to Shawn Norris with about 20 different pills in the bottle. Cst. Refflinghaus also observed various methadone bottles on the passenger seat which had be located in the vehicle by the fire department.

CFS Expert – Inger Bugyra

[120] Ms. Bugyra is employed at the CFS in Toronto since 1998. On consent, she was qualified to give opinion evidence in the area of forensic toxicology, including blood sample analysis for the detection of drugs, and the various effects of drugs found in a person’s system including possible impairing effects. She was also qualified to comment on the presence or absence of drugs in the blood sample that had been prescribed to the defendant. I found that Ms. Bugyra gave her evidence in an objective and careful fashion as one expects an expert would.

[121] Ms. Bugyra testified that she received two samples from the hospital identified as having come from Shawn Norris: one sample of only red blood cells and a second sample of red blood cells and serum. Only the serum sample was analyzed. Due to the small size of the sample, not all drugs could be tested for. The analysis focused on the more common drugs of abuse as well as prescription medication.

[122] She did not test for alcohol, cannabis, GHB and some other prescription medication that the defendant was prescribed, including Pregavalin and Gabapentin. She noted in his medical records that he was prescribed these medications. The main side effect of these medications is sedation, but that was expected to decrease if one was taking the prescribed dose over time. It is unknown if the defendant had these drugs in his system on the date of the collision as they were not tested for.

[123] The toxicology report and opinion letter were filed as an exhibit. They indicate that the analysis revealed four drugs in the defendant’s blood at the time of the blood draw. The ASF indicates that the blood was drawn at 2:12 p.m. on October 7, 2019. These drugs are:

• Methadone, 0.45 ng/ml: an opiate, detected in concentration which has been associated with the therapeutic range for treatment of opioid addiction. Effects that occur after using this drug may include dizziness, drowsiness, and stupor. Toxicity to Methadone is highly dependent on tolerance to opioids. When the individual is stable on a dosage for a period of time and is not experiencing any sedating effects, methadone may not impact the ability to operate a motor vehicle. However, when an individual is newly prescribed methadone, the dose has increased or there is coadministration with other central nervous system (CNS) depressant drugs; methadone can impair an individual’s ability to operate a motor vehicle.
• Lorazepam, 64 ng/ml: a benzodiazepine anti-anxiety medication that belongs to the class of CNS drugs, detected in amount which is within or exceeds therapeutic concentration. Effects that occur after use of this drug may include motor incoordination, drowsiness, impaired memory, and dizziness. Lorazepam use has been demonstrated to increase reaction time and decrease cart handling ability and impaired vigilance. Lorazepam can impair an individual’s ability to operate a motor vehicle. Its effects will last 6-8 hours.
• Trazadone, 1.3 mg/L: an anti-depressant with CNS effect, detected at a level associated with a therapeutic concentration. Effects that occur after the use of this drug include drowsiness and dizziness. It will last maybe 4-6 hours.
• Venlafaxine, 0.21 mg/L: an anti-depressant that belongs to the class of CNS drugs. It is unlikely to cause sedation or impairment to an individual’s ability to operate a motor vehicle. If quick release, it will last 4-8 hours and if extended release it will last 12-24 hours.

[124] The defendant was prescribed methadone, trazadone, and venlafaxine. He was not prescribed Lorazepam.

[125] Ms. Bugyra explained that some of these drugs can be used to treat depression or anxiety, but also had depressive effects on the CNS which could cause sedation. Generally, benzodiazepines treat anxiety and trazadone is used to treat depression. They both have the possible side effect of causing someone to become sedated and can be used as a sleep aid. Whether a person experiences sedation depends on how the person consumes the drug, how often, the amount, and the combination with other drugs.

[126] Of the four drugs found, venlafaxine is the least likely to cause CNS depression, particularly if it has been taken over a period of time. In those circumstances, it is less likely to cause sedation, and less likely to cause driving impairment.

[127] Methadone is used to treat opioid withdrawal but can also be used for pain. It is in the same class as morphine but is longer acting. Its main side effect is sedation.

[128] Ms. Bugyra explained that methadone, lorazepam, and trazadone can all have sedation as a side-effect. Sedation means a lower level of arousal or alertness. Basically, drugs with CNS depression effect a person’s level of consciousness. She explained it is a continuum from a little tired, wanting to fall asleep, asleep, difficult to awaken, coma, and death.

[129] A person who takes methadone for the first time is much more likely to experience sedation effects than a person who takes the same dose over a period of time.

[130] Ms. Bugyra opined that the severity of the sedative effect can be increased if the drug is co-administered with other drugs with sedative properties. If someone combines methadone with other drugs with sedative properties, it is more likely for a person to experience sedation and more severe sedation than if the person was just consuming methadone alone in a stable dose.

[131] Since the drugs are all in the therapeutic range, they are more likely to cause impairment if a person overdosed, if someone was new to the drug, or consumed the drug in a different manner than was intended i.e., smoke, chew, inhale etc.

[132] Ms. Bugyra testified that in order for someone not to experience any sedative effect when using these drugs in combination, a person would need tolerance to the combination of the four drugs together taken at a consistent dosage. However, she also acknowledged that tolerance is individual. Generally, a person needs to be on a medication for a period of time to develop tolerance. Tolerance can be partial or more extensive. The sedative effect is likely to disappear if a person takes the same drugs, in the same amount, over weeks or months. However, given individual variation, one person may continue to experience sedative effects while another has no sedative effect.

[133] A person can achieve tolerance if they take a drug on a regular, daily basis. If a prescription drug is taken every day or multiple times a day, there is an increased likelihood of tolerance. If a drug is not prescribed, someone can still develop tolerance if they take the drug on a regular basis through illicit means. It may be that they are less likely to take the drug regularly and in the same amount if they do not have a prescription.

[134] If someone does not have tolerance to the combination of drugs at that dosage (or a higher dosage), it would be expected that the person would experience sedative effects and possibly driving impairment.

[135] Ms. Bugyra reviewed the defendant’s medical records and did not see a prescription for Lorazepam. He did have a prescription for Diazepam, which is also a benzodiazepine. It stays in the body longer and has a slightly longer effect than lorazepam. Five mg of Diazepam is equivalent to 1 mg of Lorazepam. In other words, Lorazepam is about five times more potent than Diazepam.

[136] There can be some crossover tolerance between drugs of the same family. There was no Diazepam detected in Mr. Norris’s blood sample. Ms. Bugyra would have expected to see it if he were taking that drug as prescribed but explained that 2 mg of Diazepam is a relatively small dose which, depending on a person’s metabolism, could be metabolized rapidly. Also, due to the size of the blood sample, she only used half of what she would usually use to test, and this would decrease the sensitivity of the analysis.

[137] Usually, peak effect is experienced when a person has the highest concentration of a drug in their system, usually 1-3 hours after consumption if taken orally. With methadone, it takes longer to get to peak effect.

[138] Ms. Bugyra testified that it was her opinion that, given the combination of drugs found in the defendant’s blood sample, there was a strong possibility for causing sedation and therefor driving impairment, assuming a person does not have tolerance for that amount and that combination of drugs.

[139] In cross-examination, Ms. Bugyra testified that quite apart from tolerance, individual people can have varying side effects depending on the individual. Not everyone experiences the same side effects or to the same degree, but if an individual consumes drugs from a certain class, certain effects can be expected.

[140] She agreed that it was possible to develop tolerance to each of the drugs found in the defendant’s system individually and in combination, although there are no studies involving that particular combination of drugs. If a person developed a tolerance to the combination of drugs, their ability to operate a motor vehicle would not be impaired by those drugs.

[141] She also agreed that if the defendant had stopped taking Diazepam a couple of days prior to the collision, it might not be found in his system, and that it is possible for someone to take Lorazepam regularly even if not prescribed. If they were doing so, they could develop a tolerance and there may not be any sedation effect. She then clarified in re-examination that if a person developed an extensive tolerance and was fully tolerant, then Lorazepam may have no CNS sedation effect. A person is more likely to become tolerant if there is a steady concentration of drug in their system, such as when they take a drug in the same concentration, every day or multiple times a day, as opposed to if they take a drug as a sleep aid or once a day.

B. Medical Records

[142] The Crown filed eight volumes of medical records as part of exhibit #4 which included: a letter from Dr. Norris dated March 30, 2022, with documents; a letter from Dr. Stack dated April 2, 2022; records of doctor’s visits with Dr. Norris prior to October 7, 2019; copies of prescriptions for the defendant prior to October 7, 2019; Clinic 528 documents; Patient Medical History records from London Medical Pharmacy; and medical records from London Health Sciences for October 7, 2019 and thereafter.

[143] The records were all filed on consent and admitted as accurate and could be relied on for the truth of their contents. The records show that the defendant had been a patient at Clinic 528 since June 29, 2015 and had been taking methadone to deal with substance use issues. The levels had been adjusted several times to be lowered to deal with drowsiness and increased to deal with withdrawal effects and pain. There was a period in 2017 when the defendant took Suboxone, but he changed back to methadone. He had been at his current dose of methadone of 63 mg on October 7, 2019, for 35 days.

[144] The records reveal that the defendant had a complete knee replacement two months before the collision and a patellar tendon repair (knee) four days prior to the collision.

[145] As a result of the collision, he suffered a left nasal bone fracture, left clavicle fracture, sternal body fracture, fracture of ribs 3-6 on the right side, a right lung upper lobe contusion, a sigmoid mesenteric hematoma, right radius and ulna fracture, and left knee posterior dislocation. He did not suffer any intracranial injury or skull fracture. He was discharged from the hospital on October 11, 2019, following surgery.

[146] The letter from Dr. Stack provided the following information:

• The defendant was on 63 mg of methadone daily for opioid replacement therapy. He was to take one dose every 24 hours.
• A person reaches a steady state blood level with methadone after taking the same dose for 3-5 days. Once a steady state is reached, it had been demonstrated not to produce sedation or euphoria and it is expected that any sedative side effects associated with the dose increase subside. Methadone reaches its peak blood level about four hours after ingestion.
• The letter indicates that the defendant would become troubled by the side effect of the methadone in combination with the other hypnosedative psychotropic medications he was taking for his concomitant mood disorder and anxiety disorder. He would respond to advice to cut back on his benzodiazepine use and would cut back on methadone, at which time his sedation would improve, but then his withdrawal and anxiety would return.
• The defendant was on maintenance and allowed to take home six doses of methadone and he was to consume the seventh in front of the pharmacist.
• The side effects and material risks associated with methadone are indicated in the consent to treatment that the defendant signed.
• With patients who have comorbid psychiatric conditions and who take psychotropic medications in addition to methadone, the risks associated with the methadone increase, and this is focussed on throughout treatment. The defendant was warned repeatedly about increased sedation and impairment of function associated with drug interactions. He improved to the point he was permitted take-home doses. He had the occasional slip but responded well to reminders not to overdo concomitant sedative drugs.
• Side effects were anticipated and predicted. Sedation was a concern because of the concomitant prescription of hypnosedative drugs and the misuse of the same.
• In March 2017 and again in March 2018, he was advised to taper off the benzodiazepines. After the return from Suboxone in June 2017, he was reminded of the risks associated with dose changes and drug interactions causing drowsiness and not to drive or operate machinery when drowsy.
• His dosage of Methadone was increased by 5 mg on August 26, 2019, to assist with the pain post knee surgery.
• He was last seen in clinic on September 16, 2019. He was given a prescription for methadone for October 7, 2019, which included 13 “carries” due to the holiday, with one dose to be consumed at the pharmacy.

[147] Dr. Norris summarized his warnings to the defendant as follows:

From beginning Methadone on 29th June, 2015 Mr. Norris accepted that driving an automobile or operating machinery during the stabilization period may be dangerous and that these dangers may also arise during adjustments or periods of instability. He was clearly informed not to drive if at all drowsy. This was a theme that was repeatedly returned to and reiterated during the years that he has been in the program. He has been repeatedly warned not to take more medication than were prescribed and to be aware of the risk of combining hypnosedative medications and Methadone. He demonstrated that he was able to internalize this input and understand it to the point that he was felt to be safe to manage his own daily dispensing methadone with the provision of take-home doses.

[148] The clinic records of visits and signed consent forms confirmed the information contained in Dr. Norris’s letter. On at least 25 occasions, the clinical notes relating to the defendant’s visits include a notation that “patient reminded of driving precautions and to avoid bz/etoh”. Other notes after a methadone dose increase indicated “risks of sedation with increase dose reviewed. Caution with driving and use of machinery discussed. Warned of risk of overdose with use of sedating substances such as benzodiazepines, alcohol, opiates and over the counter meds such as Gravol and antihistamines”.

[149] The other records indicated that the defendant was dispensed 13 bottles of methadone on October 7, 2019, with one other to be consumed at pharmacy.

[150] The letter from Dr. Stack dated April 2, 2022, had a chart attached to it with all the defendant’s medications including the date first prescribed, duration, side effects disclosed, the expected onset and duration in the body, and instructions and warnings given to him on how to take the medication. There are 18 medications listed. Of interest, the defendant had been prescribed Diazepam, a benzodiazepine anxiolytic, originally on March 7, 2018. For this drug, under duration it is noted “attempting to taper and discontinue”. Drowsiness and many other potential side effects are listed under potential side effects. The dosage is indicated as 2 mg twice daily at 8:00 a.m. and 9:00 p.m., onset in 1-2 hours with half-life of 48 hours. Under instructions and warning given to the defendant about how to take the medication, it indicates, “Advised to only take the amount as prescribed, history of abuse.”

C. The Law

[151] I will not repeat the general principals, W.(D.) principles, or circumstantial evidence law as set out above.

Impaired Driving

[152] The actus reus for impaired by drug is the act of driving where the voluntary consumption of alcohol or a drug has impaired the ability to drive, R. v. Toews, [1985] 1 S.C.R. 119, 20 D.L.R. (4th) 758 (S.C.C). A reasonable doubt that it was alcohol or a drug that caused impairment of the ability to drive will mean the Crown has failed to prove the actus reus of the offence: R. v. Kenneth Steeves, 2010 NBCP 25. The “mere presence in the accused’s body of drugs with potential to cause driving ability impairment is not sufficient to found a conviction”: Steeves, at para. 100. However, where it is found that the voluntary consumption of alcohol or a drug has contributed to impairment of the defendant’s ability to drive, then the actus reus will be made out: R. v. Greenwood, 2010 ONSC 912.

[153] Impairment is proven if, due to consumption of a drug or drugs, a person’s ability to operate a conveyance is impaired to any degree. Impairment, even in the absence of bad driving, looks to a person’s altered judgment or diminished physical abilities and focuses on the effect on a person’s motor functions required to operate a motor vehicle.

[154] There is no specific test for impairment. Impairment can be proven if the driver’s judgment, reaction time or functions are diminished through the consumption of drugs or alcohol. The degree of impairment does not have to reach a certain level and does not have to be a marked departure. I will quote from the oft quoted passage from R. v. Stellato (1993), 12 O.R. (3d) 90, 18 C.R. (4th) 127 (Ont. C.A.), aff’d , [1994] 2 S.C.R. 478, 18 O.R. (3d) 800, where the Supreme Court endorsed the following from the Ontario Court of Appeal decision:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [emphasis added]

[155] The Crown does not have to establish bad driving evidence, but such evidence can be used by the Crown as evidence of impairment.

[156] Impaired driving is a general intent offence. The mens rea for impaired by drug is the voluntary consumption of a drug and the knowledge of, or reckless indifference to, the fact that the drug could impair one’s ability to operate a motor vehicle: R. v. Imrie, 2017 ONCJ 383.

[157] The Supreme Court of Canada considered the issue of mens rea of impaired by drug in the R. v. King, [1962] S.C.R. 746, 35 D.L.R. (2d) 386 (S.C.C.), where the accused had received drugs for dental work. He was told not to drive until his head was perfectly clear. He testified that he did not hear the warning or remember signing a form with the same warning. He got into his vehicle but lost consciousness and ran into the rear of a parked car. The Court found that the voluntary consumption of drugs, which contributed to his impaired ability to drive a motor vehicle, created a rebuttable presumption of the mens rea. The presumption can be rebutted where the consumption was involuntary or where there were unexpected side effects of a drug or combination of drugs.

[158] In the King case, Justice Ritchie for the majority found as follows, starting at p. 15:

…it appears to me that if a person takes charge of a motor vehicle on the highways of this country knowing that his ability to do so is impaired by alcohol or a drug, he is doing an act which is not only criminal in the sense of being punishable by the Criminal Code but which is also criminal in the “real sense”…because such a driver must be taken to be aware that his impaired condition constitutes a danger to the life, limb and safety of other users of the highway, and the question of whether he acted knowingly or not, therefore, seems to me to be all the more important.

And further at pp. 17 and 18:

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. If the driver's lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment which results by saying that he did not intend to get into such a condition, but if the impairment has been brought about without any act of his own will, then, in my view, the offence created by s. 223 cannot be said to have been committed. [emphasis added.]

The existence of a rebuttable presumption that a man intends the natural consequences of his own conduct is a part of our law, but its application to any particular situation involves a consideration of what consequences a man might be reasonably expected to foresee under the circumstances… It seems to me that it can be taken as a matter of "common experience" that the consumption of alcohol may produce intoxication and, therefore, "impairment" in the sense in which that word is used in s. 223, and I think it is also to be similarly taken to be known that the use of narcotics may have the same effect, but if it appears that the impairment was produced as a result of using a drug in the form of medicine on a doctor's order or recommendation and that its effect was unknown to the patient, then the presumption is, in my view, rebutted.

[159] The King case was also followed by the Ontario Court of Appeal in R. v. Murray, [1985] 22 C.C.C. (3d) 502. In that case, the accused took two sleeping pills that had been prescribed to him by his doctor. He thought that the effects would not be felt until after he reached his destination, but he collided with a parked bus. In overturning his acquittal, the Court held at p. 2:

We are all agreed that the respondent's acquittal was based on a misconception of the requisite mens rea to support a charge of impaired driving. We agree with counsel for the appellant that the necessary mens rea was established once it was shown that the respondent had voluntarily consumed a sedative drug which he knew might impair his ability to drive a motor vehicle: see R. v. King and R. v. MacCannell (1980), 54 C.C.C. (2d) 188.

The present case was not one of involuntary ingestion of a drug where the patient is unaware of its possible effect on his ability to drive and where he would obviously not have the requisite mens rea. The subjective over-estimation of the time period in which the drug would begin to take effect cannot negative the necessary mental ingredient of the offence. To paraphrase what was stated by this Court in R. v. MacCannell (supra) at p. 195, in reference to a prosecution under s.236, we are all of the view that proof of the respondent's voluntary consumption of the drug supplied the necessary mens rea and that it was unnecessary for the Crown to prove, in addition, that the respondent knew that he would be impaired at the relevant time. [emphasis added.]

[160] There is no issue here as to identity or as to the fact that the defendant’s driving caused the death of Penny Kay and bodily harm to Paul Kay. The issue is whether the Crown has proved beyond a reasonable doubt that the accused’s ability to drive was impaired by a drug to any degree at the time of the collision.

D. Positions of the Parties

[161] The Crown relies on the evidence of bad driving, the evidence of Christine Flint, the evidence of the CFS expert, the medical records, methadone records, and evidence of post collision behaviour, and asks me to find that the only reasonable inference for the driving is impairment by drug.

[162] The Crown submits that the defendant voluntary consumed the drugs and was well aware of the effect they could have on his system and ability to drive. She argues that evidence shows that the defendant “double dosed” on his methadone medication on the day of the collision. He had also been warned multiple times as evidenced in the medical records not to take Lorazepam. He was also aware of the possible side effects of the drugs he was prescribed. He was warned not to drive if he was feeling any sedative effects.

[163] The Crown points to the CFS expert’s evidence that one “could” develop a tolerance to a combination effect of multiple central nervous system drugs if those drugs are taken together over a period of time. She submits there is no evidence that the defendant was taking the prescribed drugs in combination with the Lorazepam over a period of time. She also points to the fact that the Lorazepam is significantly more potent than the drug Diazepam he was prescribed.

[164] The peak effects for Lorazepam and Trazodone would be felt within one to four hours after consumption. The Crown argues that this lines up with the time of consumption and the time of the collision. She also points out that the drugs in the defendant’s system could have memory impairing effects.

[165] The defence argues that the Crown has not proven impairment by a drug beyond a reasonable doubt. While one possibility is that the defendant became drowsy as a result of his consumption of drugs, this is not the only reasonable inference.

[166] The defence points to the significant injuries to the defendant and Mr. Beattie’s evidence that he was groggy “like most people after a motor vehicle collision like this”, and submits that the Court should not place much, if any, weight on the post-collision observations of the defendant. He also submits that neither the initial officer nor Mr. Beattie testified as to any slurred speech.

[167] The defence points to Dr. Norris’s letter of March 30, 2022, which indicates that the defendant had been on methadone for 35 days and was in a steady state, and that the methadone should not have been causing any sedative side effects within the body. He also points to the fact that all the medications were within the therapeutic range.

[168] The defence also draws the Court’s attention to the fact that no one offered an opinion that the defendant was impaired and suggests that there were no physical indicia of impairment. There was no Drug Recognition Examination (DRE) done in this case. There was no field sobriety testing done.

[169] The defence again points to the possibility of tire deflation or a sudden physical event as being possible explanations for the bad driving.

E. Discussion

[170] As indicated above, the other elements as to impaired driving causing death and impaired driving causing bodily harm are admitted, other than the impairment and knowledge of impairment itself.

[171] In this case, the expert evidence cannot definitively tell the Court whether the defendant would be impaired with the drugs that were in his system. The expert evidence amounts to the fact that his ability to operate a motor vehicle could have been impaired by the drugs in his system. All the drugs in his system were CNS depressants and could cause drowsiness or other impairing effects, although Ms. Bugyra opines that venlafaxine would be unlikely to do so. Unlike with alcohol, whether a person was impaired or not depends on the person’s tolerance to the drugs or to the combination of the drugs in the quantity consumed.

[172] Although I have no direct evidence as to the defendant’s tolerance for the four drugs in his system, I can consider that three of the drugs were prescribed to him. I have considered Dr. Norris’s letter that he had been on methadone for some time and was in a steady state. I have also considered that all drugs were in the therapeutic range.

[173] On the other hand, I find as a fact that the defendant “double dosed” on his methadone medication that morning. He was seen to take a dose in front of the nurse at the clinic but one of his “carries” had also been consumed. The bottle was intact, with the lid affixed, but empty. There is no indication that it was emptied as a result of the collision. The only other reasonable inference is that the defendant consumed the contents.

[174] I also take into account that the defendant had Lorazepam in his system. Although he had been prescribed Diazepam and both drugs are in the same family, Lorazepam is significantly more potent. This drug was not prescribed to Mr. Norris but was prescribed to Ms. Flint and had been refilled on September 28, 2019.

[175] The defendant was just a few days post-op from his patella tendon surgery and had fallen down the stairs the night before, leaving him in considerable pain.

[176] The defence pointed to Ms. Flint’s record for fraud, her inconsistencies between her police statement and trial testimony, and her possible motive to lie, and urged the court to consider her evidence cautiously. I am alive to those issues.

[177] On the other hand, I note that there has been a gap of 13 years since her last conviction and it was her that went to the police, rather than the police coming to her. Some of her testimony about the accused falling down the stairs the night before the collision and going that morning to get his methadone is either unchallenged or is supported by other evidence, including the clinic records. While she believed that he had taken some of her Percocet and oxycodone that morning, there was none found in the blood testing. She also testified that he had her bottles of medicine out, but she didn’t see what he took that day. I note that a prescription bottle for Christine Flint for Lorazepam from September 28, 2019, was in the defendant’s car, but seemed to be filled with various other medications and that it no longer contained any Lorazepam. There was a second bottle in the name of the defendant, also filled with a variety of drugs. I accept the evidence of Ms. Flint that the defendant was abusing prescription drugs, including hers.

[178] I conclude that although all drugs were in the therapeutic range, the double dosing and the addition of Lorazepam makes it more likely that the drugs would have a sedative effect on the defendant, than if he was regularly taking prescribed drugs in their recommended dosage over a period of time.

[179] Even if the defendant was only taking the drugs prescribed to him and in their recommended dosages, he had an obligation to be vigilant for any side-effects that might impair his ability to drive. As MacLean J. found in Imrie, at para. 361, after reviewing a number of cases involving impaired by drug charges:

I completely agree that even where patients have come to tolerate their medications, they cannot ignore situation when, due to a variety of factors, they become impaired by the drugs they are taking on a regular basis. Those who take medications must be vigilant in recognizing when their prescribed medications are impairing them. They cannot put other users of the road at risk, just because they believe that since their doctor prescribed them, they have been taking the medications for a long time and felt fine before, that they can continue to drive and ignore the symptoms when their medications are impairing them on a particular day.

[180] While it is clear that the drugs in the defendant’s system could impair his ability to drive, the Court must look to the other circumstances to determine whether the evidence proves beyond a reasonable doubt whether the person’s ability to operate a vehicle was actually impaired at the time of the collision.

[181] I have considered the evidence of post-collision observations of the defendant which includes that he was confused, muttering, groggy and lethargic, fading in and out of consciousness, and that he continued to try and steer his severely damaged, inoperable car after the collision. He also did not appear to be in significant pain, despite substantial damage to his knee that he had just had surgery on and other injuries including fractures to his ribs, nose, and left clavicle, and an upper lobe contusion and hematoma. The Crown submits that the defendant is not a small person, so the air bag striking him the face would not be the same as to a smaller individual. He didn’t have any intracranial injury or skull fracture and he didn’t have symptoms of an acute stress response to the crash. She argues that the defendant’s post-collision behaviour is probative evidence of impairment.

[182] The defence counters that it is unknown whether the defendant lost consciousness and that he has no memory of the collision. He argues that the Court cannot relate the defendant’s behaviour to impairment, rather the behaviour was that of any other crash victim.

[183] I agree that in the circumstances, without expert evidence to differentiate what might be “normal” post-collision behaviour from impaired behaviour, that it would be improper for me to attribute the defendant’s post-collision behaviour to impairment by drug rather than shock or some other cause. I will disregard this evidence when determining if I am satisfied beyond a reasonable doubt if the defendant was impaired by drug at the time of the collision.

[184] The defendant is not required to prove anything. However, the Court can consider if there are other explanations or inferences for the bad driving other than impairment by drug. Obviously, since the defendant has no memory of the events, those explanations cannot come from him in this case.

[185] The defence has pointed to the possibility of a mechanical or tire issue with the defendant’s vehicle, or a sudden physical event as being alternate reasonable explanations for the bad driving. For the same reasons set out above, I do not find these alternate possibilities to be reasonable. There is no evidentiary foundation for the Court to find that the defendant experienced a sudden physical event, such as a panic attack.

[186] Further, as previously noted, if the defendant was having trouble controlling his car or was experiencing some physical issue, this does not accord with the fact that he continued to drive for another 7 km and did not appear to slow down or apply his brakes before entering the oncoming lane of traffic.

[187] I find that the driving evidence does not support the reasonable inference that it was caused by a sudden mechanical or physical issue.

[188] I ask myself the following questions: If there are no other reasonable inferences as to the accused’s driving other than impairment, does this satisfy the Court beyond a reasonable doubt that drug impairment is the only reasonable conclusion? Secondly, if his ability to operate his motor vehicle was impaired by drug, has the presumption of mens rea been rebutted?

[189] Each case is different, and this case does not have some of the other impairment features of the cases provided to me such as DRE or SFST testing. As well, the behaviour post-collision could relate to the collision itself. However, what sets this case apart is the egregious driving over a distance of 7 km. The driving evidence is probative to both an inability to control his motor vehicle and to impaired judgement. It was his inability to keep his car in his lane that led the defendant to hitting the shoulder and going into the centre median. However, once he was through the median and facing northbound in the northbound lane, it was impaired judgement that led to recrossing the centre median and re-entering the southbound lanes. The median was wide, muddy, and full of vegetation.

[190] After re-entering the southbound lanes, the defendant still could not stay in his lane. He was observed over several minutes swerving across the centre line, once all the way over to the gravel on the other side by Ms. Maguire. At no time did she see the defendant brake and he certainly did not pull off the road.

[191] Lastly, both witnesses and the video show the defendant drifting over the center lane towards the Kay vehicle. Despite the fact that Mr. Kay moved his vehicle towards the shoulder of the road, the defendant’s vehicle met him there and struck him head on. Again, the defendant wasn’t observed to apply his brakes and there were no brake marks on the highway from his vehicle.

[192] I am satisfied that the only available inference based on all the evidence is that the defendant’s ability to drive his motor vehicle was impaired by a drug or a combination of drugs. I am also satisfied beyond a reasonable doubt that the defendant voluntarily consumed the drugs in his system and was well aware of the possibility of those drugs causing impairment of his ability to drive. Therefore, the presumption of mens rea has not been rebutted. He had been told a number of times about the possible impairing effects of those drugs. He was aware of the risks of consuming the drugs as prescribed and was also aware of the added risk if taking the drugs in higher doses than prescribed or taking other non-prescribed benzodiazepines. If he was unaware that the drugs were having an impairing effect on his ability to operate his motor vehicle, he would have certainly become aware after he hit the shoulder and went through the median or subsequently when he couldn’t keep his car in his own lane of traffic. Yet he chose to continue to operate his motor vehicle.

F. Conclusion

[193] For the reasons set out, I am not left with any reasonable doubt that the Crown has proven all the essential elements of the impaired driving offences.

[194] I find Mr. Norris guilty on all counts.

Moore J.

Released: August 10, 2023