In a 2016 trial, an Ontario Court heard the appeal of a 2015 summary conviction decision which found a man ‘guilty’ on the charge of refusing to provide a breath sample and ‘not guilty’ on the charge of impaired driving. The accused man appealed the guilty verdict on the grounds that the 2015 verdicts were inconsistent; and also, once the court decided to acquit on the impaired driving charge because the accused suffered the “unanticipated effects of medication combined with alcohol”, the court erred in not applying the same reasoning to the charge of failure to provide a breath sample. In the 2016 action, the Crown also appealed the earlier decision to acquit the accused of impaired driving, arguing that the trial judge erred in the following: his determination of the ‘mens rea’ with respect to impaired driving; his interpretation of the Criminal Code, s. 253(2); and in failing to conclude that the accused was impaired by alcohol or drugs.
The key issue in the original trial was ‘mens rea’ (i.e. defined as ‘criminal intent’ or knowledge of wrongdoing), specifically in relation to the accused man’s mental state when he was driving and also, at the time that he refused to provide a breath sample. Defence counsel argued that the man did not have the necessary ‘mens rea’ due to the “unintended and unforeseen consequences” of the combination of drugs and alcohol.
In any summary conviction appeal, the court reviews only the evidence and the judge’s reasoning from the original trial, and must determine whether the trial judge reached a reasonable finding that is supported by the evidence and applicable law.
The background and facts of the case
The defendant, Mr. Dewey, was observed driving his vehicle erratically, including repeatedly hitting a curb and driving through signs and a construction site, until his vehicle came to a stop on the road. He was subsequently found passed out in his seat, with his vehicle running. Upon arrival at the scene, police had difficulty waking the driver; his eyes appeared unfocused; his speech was slurred; and officers noted the smell of alcohol on his breath. Mr. Dewey was subsequently charged with impaired driving (at 6:00 p.m.) and promptly fell asleep after being placed in the police car.
At the police station, the accused displayed much greater awareness and asked to speak to his personal lawyer before providing a breath sample. When his lawyer unfortunately did not return the call, the man spoke with duty counsel. At 6:35, Mr. Dewey was taken to a qualified breath technician but at this point, refused to provide a breath sample until he could speak with his wife. The accused’s behaviour to the officers was described as belligerent. Officers were unable to contact the man’s wife by phone and Mr. Dewey maintained his refusal to provide a breath sample to the breath technician beyond the outside time for taking a breath sample.
The accused gave evidence that he had been prescribed the lowest dosage (.5 milligrams) of Ativan and had been taking this antidepressant (also known as Lorazepam) for about 30 years. He testified that he did not remember being warned by his doctor about the dangers of combining the drug with alcohol and denied seeing drug information warning users against combining the two. He further stated that he had never previously combined Ativan and alcohol.
On the day of his arrest, Mr. Dewey had an afternoon business meeting until 2:30 p.m., at which point he took one Ativan pill. He testified that he later drove to a nearby restaurant, where he drank a glass and a half of wine, between 3:30 and 4:30 p.m., before leaving for home. The accused alleged that he did not recall any other details from that day, after he got into his car and began the drive home, which included an inability to recall the demand for a breath sample and his refusal. The trial judge expressed doubt that Mr. Dewey was forthright in his testimony and consequently, did not entirely accept his evidence or find that his testimony raised a reasonable doubt on the charge of failure to provide a breath sample.
A physician who is an expert on the absorption and effects of alcohol and drugs on the body, Dr. Moftah, testified for the defence. Dr. Moftah asserted that the amount of wine reportedly drunk by the accused (i.e. a glass and a half) would result in less than 80 milligrams of alcohol in his blood and it is likely that Mr. Dewey’s blood alcohol concentration (BAC) at the scene was about 32 milligrams minus whatever alcohol was eliminated by his body at the bar. Further, the defendant would likely have a BAC of zero by the time he was asked to provide a breath sample. The doctor also testified that the amount of alcohol Mr. Dewey allegedly consumed would, alone, not produce the type of symptoms and behaviour observed in the accused.
Dr. Moftah gave the opinion that Mr. Dewey’s behaviour was unlikely to have been caused by the Ativan alone, particularly given his long-term use of the drug. However, his lethargy and other behaviours could have arisen from the combination of alcohol and Ativan. Dr. Moftah stated that, for some people, alcohol can enhance the effects of the drug by as much as ten times, while for others, there may be little or no effect. He further testified that Mr. Dewey could have been affected by the synergistic effect of the combination of Ativan and alcohol at the time of his driving. Also, it was opined that Ativan could have effected Mr. Dewey while he was in police custody, since Lorazepam has a half life of 12 hours and in some cases, 16 hours.
The trial judge gave moderate weight to Dr. Moftah’s evidence but asserted the need for caution on the issue of the impact on the body when alcohol and a drug are combined. It was noted that Dr. Moftah’s testimony did not address what happens to the potential synergistic effect once the alcohol is eliminated from the body. However, the judge acknowledged that the doctor’s testimony provides some basis for the contention that the combination of a minimal amount of alcohol and low dose of Ativan caused the extreme reaction, rather than a large amount of one or the other.
On the impaired driving charge, the trial judge gave weight to the observations by civilians who had no bias in the case, in coming to the conclusion that the defendant’s testimony, as supported by Dr. Moftah’s evidence, might reasonably be true. This combination of evidence raised a reasonable doubt on the impaired driving charge.
On the issue of the accused’s refusal to provide a breath sample, the trial judge found that the Crown’s evidence proved that a proper breath demand was made, and that the defendant clearly and fully understood the demand and was sufficiently aware of his rights but nevertheless refused the demand. Video evidence from the breath room also supported a conclusion that Mr. Dewey’s reactions and actions were seemingly not impaired at that time. Particularly relevant to the defendant’s state of mind was the fact that, even assuming the lowest elimination rate, based on the evidence of Dr. Moftah and the defendant, there would have been no alcohol in the defendant’s blood at the time the breath demand was made and thus, no combined effect from alcohol and drugs on his behaviour.
On appeal in R. v. Dewey (2016), Justice Ricchetti asserted that the court can have reasonable doubt that the defendant had the required ‘mens rea’ when driving, but this does not mean there must be, or should be reasonable doubt on his ‘mens rea’ at the time of the breath demand. Justice Ricchetti found nothing inconsistent in the trial judge’s conclusion that he had a reasonable doubt that the defendant knew that the combination of drugs and alcohol would impair his ability to drive, while at the same time concluding that, by the time the breath demand was given, the accused had the capacity to understand the demand and consciously refuse to provide a sample. As a result, defence’s appeal on the issue of inconsistent verdicts for the charges of impaired driving and failure to provide a breath sample was dismissed, and the conviction on the charge of failing to provide a breath sample was upheld.
In his analysis on the Crown’s appeal of the earlier dismissal of the impaired driving charge, Justice Ricchetti noted that “the mens rea for impaired driving is the intent to operate a motor vehicle after voluntarily consuming alcohol or a drug”. As described in R. v. King (1962): under the Criminal Code, s. 223, when it is proven that a driver was operating a motor vehicle while impaired by alcohol or drugs, he/she is guilty of the offence unless there is evidence raising a reasonable doubt that, through no fault of their own, the driver was disabled when they decided to drive and therefore, did not know, foresee or appreciate that they may be impaired. On the other hand, if the driver’s lack of appreciation of his/her condition was induced by voluntary consumption of drugs or alcohol which they had a reasonable ground to believe might cause impairment, then they cannot avoid conviction. Only if the condition of impairment resulted without the driver’s free will, might the offence in s. 223 not have been committed. This means that impaired driving is a ‘general intent offence’, rather than one of absolute liability.
The Crown argued that King does not apply in this case because this case refers to impairment by alcohol or drugs. However, Justice Ricchetti rejected this argument, stating that it is not reasonable that impairment caused by alcohol and drugs should be an absolute liability offence where an accused person cannot offer evidence to rebut the presumption that voluntary consumption of a combination of drugs and alcohol was neither foreseeable or known to cause impairment of their driving ability.
Justice Ricchetti asserted that although it is indisputable that Mr. Dewey voluntarily consumed the drug Ativan, drank a glass and a half of wine, and then drove his vehicle, it appears that his impairment resulted because his consumption of the prescribed medication along with alcohol, had an unforeseeable effect on his behaviour (given that he had never before combined alcohol and the drug). The judge concluded that the evidence established a reasonable doubt whether Mr. Dewey knew or foresaw that his ability to drive would be impaired by drinking a small amount of alcohol after having taken Ativan. As a result, the acquittal on the impaired driving charge was upheld.