R. v. Friebel Date:, 2013 BCPC 392

Citation: R. v. Friebel Date: 20130430 2013 BCPC 0392 File No: 181226-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAYNE KEVIN FRIEBEL ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: M. Vojvodic Counsel for the Defendant: R. Barreto Place of Hearing: Surrey , B.C. Dates of Hearing: January 28, 29, 30, March 18, 2013

Date of Judgment: April 30, 2013 INTRODUCTION [1] THE COURT: Wayne Friebel submits that he should be acquitted of charges of operating a motor vehicle while his ability todrive was impaired by alcohol and while his blood alcohol level exceeded 80 milligrams per cent. He says that he did not consumealcohol voluntarily; rather, he says that he drank while in a state of automatism which occurred after he took medication prescribed byhis doctor. [2] The Crown replies that the defendant has merely asserted that he was in a state of automatism, but has not provided a properevidentiary basis to prove that assertion.

The Crown further argues that the evidence actually contradicts the argument made by thedefence. The Crown says that the defendant was able to communicate effectively with the witnesses. He was able to take directions. He was able to communicate with a lawyer. He recalled specific details about the medication he was taking. Thus, the Crown says thatthese are hardly the actions of a person in a dissociative state. [3] The defendant tendered the evidence of an expert pharmacologist to explain the effects of the drug on him.

The expert saidthat the high dose of the drug prescribed by his doctor could put the defendant into a state where his actions would not have beenvoluntary. In deciding this case it will be necessary for me to assess the evidence of the witnesses who dealt with the defendant and tocompare their observations of his behaviour with the evidence of the expert to determine whether it is consistent with the assertion thatthe defendant was not consciously aware of his actions.

It will also be necessary to assess the evidence of the expert to determinewhether it is capable of forming the basis for a defence of automatism even though the expert is neither a psychologist nor a psychiatrist. RELEVANT LEGAL PRINCIPLES [4] The relevant legal principles in this case are as follows. The essential feature of the defence of automatism is that the accusedmust prove the defence to the standard of a balance of probabilities. This is different from the usual rule that an accused need only raisea reasonable doubt as to his or her guilt.

The rationale for this rule is that if the accused merely needed to assert that he or she acted in anautomatic or dissociative state it would place the Crown in an impossible situation. The prosecution cannot really be expected to provein every case that the accused's acts were voluntary. In this situation, therefore, the law assumes that accused persons have actedvoluntarily. It is up to the accused to rebut that presumption. [5] The Supreme Court of Canada discussed this issue comprehensively in the case of R. v. Stone, [1999] SCJ No. 271.

Thecircumstances of Stone involved what is often referred to as psychological blow automatism; that is, at trial Stone alleged that he stabbedhis wife to death after she had made certain comments to him which in turn caused him to lose conscious control of his actions. Othersorts of automatism may arise from an underlying internal cause, such as mental illness or disease of the mind, or an unconscious statearising from such things as diabetic shock or somnambulism (sleep walking). [6] A third type of automatism may arise from the effects of a person ingesting heavy doses of alcohol or other drugs.

Self-induced intoxication cannot be used as a defence to an offence involving violence. That is set out in s. 33.1(3) of the Criminal Code. Aswell, and not surprisingly, it is also not a defence to a charge of impaired operation of a motor vehicle that a person consumed so muchalcohol that he or she was reduced to a mental state akin to automatism. That was the decision by the Supreme Court of Canada in R. v.Penno, (SCC), [1990] 2 SCR 865. [7] It is, however, a defence to such a charge if the accused did not voluntarily become intoxicated.

Thus a person was found notguilty of impaired driving where his doctor administered a drug which caused him to become intoxicated. The accused had noknowledge that the drug would affect him in this way. It is a decision of the Supreme Court of Canada in R. v. King, (SCC), [1962] SCR 346. The criteria set out by the Supreme Court of Canada in Stone which an accused must meet to establish thedefence of automatism are quite stringent. Mr. Justice Bastarache summarized these criteria in paragraph 192 of the judgment.

First ofall, the accused must assert involuntariness and must call expert psychiatric or psychological evidence confirming this assertion. [8] Second, the defence has the burden of satisfying the trial judge that there is evidence upon which a properly instructed jurycould find the accused acted involuntarily. The trial judge must at this point examine the psychiatric or psychological evidence andinquire into the foundation and nature of the expert opinion. The trial judge must examine all other evidence. That examination shoulddetermine whether certain relevant factors exist.

For example, what was the severity of the triggering stimulus? Is there corroboratingevidence of bystanders? Is there corroborating medical history of automatistic-like dissociative states in the accused? Is there evidenceof motive for the crime? Is the alleged trigger of the automatism also the victim of the automatistic violence? [9] I just pause to remark that Stone dealt with a particular fact pattern which is different from the fact pattern in this case, and thatsome of the questions that Mr.

Justice Bastarache addressed, for example, whether the victim was also the trigger of the automatism,really does not apply in the case at bar. [10] At this point in the inquiry the trial judge need not weigh the evidence but must examine it carefully in determining whether aproperly instructed jury could accept the assertion of automatism. On a trial by judge alone, as in this case, the trial judge must thenmake a careful assessment of the evidence and decide what weight, if any, to give to the various aspects of the evidence tendered by thedefence.

The trial judge's task at that point is to determine whether the accused has in fact established automatism to the standard of abalance of probabilities. CIRCUMSTANCES [11] The circumstances of this case are briefly as follows. Well, not so briefly, but I hope succinctly. On January 1st, 2010 avehicle driven by the defendant struck another vehicle in the rear while that vehicle was stopped at a red light. A police officer attendedthe scene soon thereafter and dealt with Mr. Friebel, who had remained at the scene. The officer eventually read a demand that the

defendant provide breath samples. He returned with the officer to the police station where he eventually provided two breath samples which showed that his blood alcohol level was 150 milligrams of alcohol per 100 millilitres of blood. [ 12 ] The accident occurred sometime just before 3:30 p.m. The defendant was driving a pickup truck. The driver of the other vehicle, Steven Berger, got out of the car. After checking to see that he and his girlfriend were okay (she was a passenger), he went back to the defendant's truck. He said that the defendant was the only occupant of that truck. When he asked Mr.

Friebel if he was okay, the witness said that Mr. Friebel did not give much of a response. The witness noticed that Mr. Friebel had some cuts or bruises to his face. He said that the defendant told him that these injuries did not occur from the accident. He asked the defendant if he was okay and said that the defendant merely nodded his head. He said that Friebel asked if he and his girlfriend were okay. [ 13 ] The witness said that Mr. Friebel was not speaking clearly; he was mumbling. Mr. Berger said that he suggested to the defendant that they exchange insurance documents.

He gave his insurance documents to the defendant. The defendant went back into his truck with those documents presumably to look at them and to give whatever his documents were to the witness. However, at that point the police arrived and Mr. Berger basically had no further contact with the defendant. Mr. Berger said that in his opinion Mr. Friebel was intoxicated. The other witness, Mr. Berger's girlfriend, Ms. Lahtinen, was a passenger in the vehicle. She is the one who phoned the police. She never really had any significant dealings with the defendant and mainly kept her distance from him.

So any evidence she gave about her observations of him should not be given much weight. [ 14 ] The investigating officer, Cst. Wishnevski, arrived just before 3:30 p.m. He said Mr. Friebel was sitting in his truck when he arrived. He noticed that the defendant had some minor cuts to his face. There was no damage to the windshield, so the officer believed it was unlikely that the defendant had struck his head or face on the windshield. He said that Mr. Friebel took a significant period of time to react to the officer's presence. The officer agreed that the defendant was staring blankly at him.

The officer opened the door to the truck and when he did so he could smell a strong odour of liquor coming from the vehicle. The officer asked Mr. Friebel about his apparent injuries. Friebel replied that he was fine and he said that the cuts occurred earlier in the day, not because of the accident. [ 15 ] The officer noticed that the smell of liquor was coming from the defendant's breath. The officer also noticed that the defendant's speech and movements were very slow. He was very slow in responding to the officer's questions about events. The officer asked the defendant if he had anything to drink.

The defendant replied that he had something to drink earlier that day. He was no more specific than that. The officer formed the opinion that the defendant's ability to drive was impaired by alcohol. He took the defendant back to the police car, read the breath test demand, arrested him for impaired driving, and advised him of his right to counsel. When he asked Mr. Friebel if he wanted to speak to a lawyer, the defendant said that he did. [ 16 ] The officer then took the defendant to a nearby police station. The officer next provided Mr. Friebel with a book containing a list of the lawyers whom he could phone.

Mr. Friebel said that he had difficulty reading without his reading glasses. Eventually the defendant decided to speak to a lawyer provided by Legal Services. Eventually Legal Services duty counsel phoned and the defendant spoke to that person for approximately four minutes. [ 17 ] While waiting to provide his breath samples the defendant had further conversations with the officer. Before providing the first breath sample he told the officer that he was taking medication for depression. The officer asked him how much he was taking.

The defendant answered he was taking five pills in the morning, five at 2:00 a.m. and then three every six hours after that. He told the officer he was going through a bad breakup with his wife. Before providing the second sample Mr. Friebel said that he had recently been prescribed medication by his doctor and the doctor had told him he should not be driving while he was on the medication. The officer said that the defendant was also curious as to what the result was on the first breath sample that he had provided. The officer also noticed that Mr.

Friebel was unsteady on his feet when he walked to the breath test room. After serving Mr. Friebel with various documents, the officer released him from custody. [ 18 ] Mr. Friebel testified. He said that he had no memory at all of any events after 7:30 p.m. on December 31st until the afternoon of January 1st, 2010 when he became aware that he was in a police station. This catastrophic memory loss occurred after he began taking medication prescribed by his doctor on December 30th. The background to him taking the medication is that he was struggling with alcoholism.

He had sought assistance from his family doctor earlier in 2009 for this as well, for anxiety, depression partly resulting from the breakup of his marriage, in addition to his problem with alcoholism. [ 19 ] In May and July of 2009 the doctor had prescribed a drug known as Ativan, which is the trade name of the drug Lorazepam, to assist him with the effects of alcohol withdrawal and with the anxiety and depression he was suffering. In both instances after being prescribed medication Mr. Friebel stopped consuming alcohol; however, after some time he started drinking again. By December 29th, 2010, Mr.

Friebel had fallen off the wagon. He began drinking heavily again. Once again he consulted his doctor. Once again he promised his doctor that he would not drink. Once again his doctor prescribed Lorazepam. The prescribed regime of taking the drug was as follows, and the drug is described in the prescription by its trade name of Ativan, and the prescription was: Five milligrams of Ativan on the evening of December 30th. Five milligrams of Ativan at 2:00 a.m. on December 31st. Three milligrams of Ativan at 9:00 a.m. and three milligrams every six hours there afterwards.

Two milligrams of Ativan at 9:00 a.m. on January 1st and two milligrams every six hours, and two milligrams of Ativan at 9:00 a.m. on January 2nd and two milligrams every six hours afterwards. [ 20 ] Mr. Friebel's doctor had prescribed the same regime of Ativan in May of 2009. Mr. Friebel said that he took the five milligrams as prescribed by his doctor on December 30th. He also took five milligrams at 2:00 a.m. and the three milligrams at 9:00 a.m. and at 3:00 p.m. Because he has no memory of what occurred to him after 7:30 p.m. that day it is unknown whether he took any other doses of medication.

In cross-examination, Mr. Friebel agreed that he could not point to any unusual or difficult reaction to the same drug administered in the same doses in May of 2009. EXPERT EVIDENCE

[ 21 ] The defence also called Dr. John McNeill, a professor of Pharmaceutical Sciences, as an expert witness. To say that he is well qualified is an understatement. He is the former dean of Pharmaceutical Sciences at the University of British Columbia and is now a professor emeritus. He has taught in universities around the world and has an impressive and lengthy body of work in research and in contributions to scientific journals. [ 22 ] Professor McNeill said that the drug Lorazepam, of which Ativan is the trade name, is often used to assist persons who are withdrawing from the heavy use of alcohol.

It prevents the multiple physical and emotional problems which result. Professor McNeill said that the symptoms of alcohol withdrawal can be quite serious, even life threatening. Lorazepam mimics the effects of alcohol, presumably allowing a person who is an alcoholic to go without drinking but to gradually get into a state where he or she does not need the constant presence of alcohol in his body. [ 23 ] Dr. McNeill also said that Ativan is used to reduce anxiety in persons. It relaxes muscles and can help facilitate sleep. He said that it is also used as a pre-anaesthetic medication, but it does induce amnesia.

That is, as he said in his report, this means that once the drug is given, the individual has no memory of events that follow. Professor McNeill said that the dose of Ativan provided by Mr. Friebel's doctor was "on the high side." In his research he could not find any reference in the literature that recommended such a high dose. He also said that in circumstances such as Mr. Friebel's where there had been two prior attempts to assist him in withdrawing from alcohol and involving the use of Ativan and those efforts had failed, that Mr.

Friebel should not have been allowed to go home, but should have been supervised in a hospital setting.

The point is that a person under the influence of Ativan could react unpredictably, perhaps even start drinking again unless they were supervised carefully. [ 24 ] Professor McNeill further said, and this is in his report, "At the doses used in this case I believe it is probable that Lorazepam did produce an amnesic effect." He also stated that the addition of alcohol to the system of someone who has taken Lorazepam would "further enhance the depressant and amnesic effects of the drug." [ 25 ] Concerning the effect on memory Professor McNeill in his report said: I should note that the mechanism involved here in producing amnesia is that the memory of events does not occur in the brain.

It is not a matter of just forgetting. The memory is simply not there. He said that the effects of this large dose of Lorazepam was the same as the effect of a large dose of alcohol. He further said, and I quote again: The patient is mentally confused and would not appreciate the consequences or meaning of his actions and would not know where he was or what time it was. The doctor further said that: The patient who took such a dose of drugs would not be able to form an intention to make a plan.

He would be in an unconscious state, would not appreciate or understand questions put to him during this period, nor remember aspects of anything that occurred since he entered this state of amnesia. [ 26 ] In his concluding paragraph of his report Professor McNeill said, and I quote again: The fact that Lorazepam produced marked intoxication and amnesia is totally predictable. The dose was not appropriate, particularly in an unsupervised patient. Mr. Friebel did consume alcohol following the ingestion of Lorazepam, but claims he has no memory of this.

As I stated earlier, this claim is believable based on amnesic effects due to Lorazepam. The ingestion of the Lorazepam led to amnesic, intoxicated state that Mr. Friebel was in at the time of the accident. ANALYSIS [ 27 ] I will now discuss the general aspects of the evidence I heard. The evidence in this case establishes beyond a reasonable doubt that the defendant was in the care and control of a motor vehicle, that his ability to drive was impaired by alcohol, and that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

A Certificate of Qualified Technician has been admitted into evidence. Therefore, the “presumption of identity” and the “presumption of regularity” apply. There is no evidence to the contrary. Thus the law presumes that Mr. Friebel voluntarily consumed the alcohol at the level it was in his body at the time the accident occurred. The question is, therefore, has the defendant established on a balance of probabilities that he did not voluntarily consume the alcohol, or, another way of putting the same question, has he proved that he was in a state of automatism?

IS THE DEFENCE ADMISSIBLE? [ 28 ] The preliminary issue as to whether there is sufficient evidence upon which a properly instructed jury could conclude that Mr. Friebel did not voluntarily commit the actus reus of this offence is a vexing one. In my view, it is made more difficult because of the nature of the alleged source of the automatic behaviour.

That is, this case does not deal with a psychiatric disorder or what is commonly called a “psychological blow.” Neither does it deal with a situation where the defendant alleges that he took the drug involuntarily which unknowingly caused him to be intoxicated or in a dissociative state. By that I mean he does not suggest that taking the Ativan itself is the source of the impairment with which he is charged. Rather, the defendant says that the initial cause of his subsequent behaviour

which led him to commit the actus reus of the offence was a drug which through no fault of his own put him in an unconscious or automatic state. [ 29 ] But the mere act of drinking significant amounts of alcohol is much more complicated than someone taking a single dose or two of some medication. As well, the defendant did not call psychiatric or psychological evidence. However, because the defendant's case centred on the catastrophic effect of the dosages of Lorazepam, it was necessary for him to call expert evidence on the effects of the drug on a human being.

Professor McNeill, as I said, was eminently qualified to testify about this. I doubt that any psychiatrist or psychologist would have the extensive and exhaustive knowledge of the effects of such drugs that Dr. McNeill has. [ 30 ] In deciding whether the defence would be put to a jury, a trial judge should weigh the evidence. Thus, it is difficult to determine in this case whether a jury could accept that the defendant had established his case on a balance of probabilities in the absence of psychiatric evidence. The basis of the defence is Mr.

Friebel maintains that he had no memory whatsoever of what he did or where he was between 7:30 p.m. on December 31st and about 4:00 p.m. on January 1st. That claim itself is not implausible. [ 31 ] Second, the dose that he was administered of Lorazepam was extremely high. [ 32 ] Third, Lorazepam in smaller doses can cause amnesia. Lorazepam does have an effect on the human body and brain that is similar to the effect that alcohol has, thus theoretically this could result in a situation where the defendant was in a state in which he did not act voluntarily. Dr.

McNeill testified that one effect of the Lorazepam could be that the person who took Lorazepam would not even form memories. [ 33 ] A psychiatrist or possibly a psychologist might have been able to expand upon what Dr. McNeill talked about by describing the kind of behaviour that one might expect to observe of a person in a so-called automatic state or state of automatism, but it is possible that a jury might find that Professor McNeill's evidence was sufficient in conjunction with the other evidence to satisfy the jury that Mr.

Friebel was in a state of automatism at the time the alleged offence occurred. [ 34 ] In the circumstances, in my view, it is appropriate to accept that the defendant has passed through the preliminary threshold in arguing this defence, and to actually weigh the evidence tendered to support his argument. Thus for me the question becomes: has the defendant proven on a balance of probabilities that he did not voluntarily consume alcohol? That is, has the defendant proven on a balance of probabilities that he did not commit the actus reus of the offences for which he is charged because his acts were not voluntary?

HAS THE DEFENDANT PROVED THE DEFENCE? [ 35 ] What is the evidence which supports this defence? Professor McNeill made it clear that Lorazepam is a powerful drug. It can cause amnesia in lower doses than the doses given to Mr. Friebel. It mimics the effects of alcohol. The dose prescribed to Mr. Friebel was a very high dosage, even dangerously high. He probably should have been kept under observation in a hospital. The actual dose of Lorazepam taken by Mr. Friebel because it was such a high dose would have a greater or exaggerated effect on him. Mr.

Friebel did take the drugs as prescribed by the doctor, at least until 3:00 p.m. on December 31st. [ 36 ] Mr. Friebel's assertion on the witness stand that he had no memory of events after 7:30 p.m. on December 31st was not implausible. The witnesses who saw him at the time of the offence did notice some unusual actions on his part, particularly slow reactions to questioning and slow, deliberate movements. His appearance might well be described as appearing somewhat stunned.

That, in my view, summarizes the essence of the defence case. [ 37 ] On the other hand, there is evidence which weighs against the accused's assertion of being in an automatistic state. First of all, there is the important question of the access to alcohol. How did he get it, how much did he drink, where did he drink it? And this in turn, answering these questions, reveals that the defendant would have had to take significant purposeful action to actually get something to drink. [ 38 ] The defendant said that he had no liquor in his residence on December 31st.

He had not consumed alcohol for at least a couple of days. It is therefore obvious that he later did have a significant amount of alcohol to drink as evidenced by the results of the analysis of the breath samples. How did that happen? [ 39 ] First of all, the defendant would have to know where to go to get some liquor. Second, he would have to physically travel to go to that place to get liquor. Thus, he would have to know where he was at the time and where he was going. That is, there would be a direct purpose to his behaviour in making a decision to go and get some liquor somewhere.

He would actually have to travel to a location to get liquor. That would have the appearance of him making a decision to go from his home to a particular place for a particular purpose. [ 40 ] Mr. Friebel would have to choose what liquor he was going to drink. He would have to purchase it. That is, he would have to know how much money he had or could afford to spend, and he would have to understand how to actually pay for the liquor. Mr. Friebel would have to then go somewhere to consume the liquor.

Presumably, he could have gone to a bar somewhere and start drinking there, or he could have bought some liquor and consumed it on his own in a more isolated place such as his vehicle. [ 41 ] There is a complete lack of evidence of when he started drinking or how much he drank and when he stopped drinking. Neither is there any evidence of any person who might have encountered him during that time between December 31st in the evening and the afternoon of the 1st of January, who can advise what he looked like or what he did or what he acted like. [ 42 ] Second, Mr.

Friebel had been prescribed Ativan twice in 2009 before December 30th. In May of 2009 his doctor prescribed a very similar high dosage of drug. Mr. Friebel did not report suffering any serious adverse effects of the medication, such as engaging in dangerous or unlawful activity. Of course, if it is correct that this high dosage induces amnesia, he might not remember doing such acts. However, it is improbable that he engaged in something as drastic as driving and getting in accidents, or engaging in difficult or unlawful behaviour and was not noticed by anyone or his acquaintances.

That is, therefore, the drug in May seemed to serve its purpose of mainly

preventing him from suffering the serious health risks of alcohol withdrawal. [ 43 ] Third, his physical and mental condition as viewed by the Crown witnesses contradict the assertion that he was not in a conscious state. Of course, the symptoms that the witnesses noticed were consistent with Mr. Friebel being under the influence of alcohol such that his ability to drive was impaired by that drug; alcohol is a drug. [ 44 ] Here I refer to such things as slow reaction, slow speech, stunned look about him, smell of liquor, unsteadiness on his feet, and, of course, bad driving. Nonetheless, Mr.

Friebel was responsive to questions. The driver of the vehicle that he struck asked him if he was okay. Mr. Friebel nodded to acknowledge that he was. Mr. Friebel even asked if the witness and his passenger were all right. That is, he seemed to be aware that he had been in an accident with another vehicle. Mr. Friebel was responsive to the officer's questions or directions, albeit, sometimes his reactions were slow. For example, the officer asked him if he had anything to drink. Mr. Friebel responded that he had, although, his response was somewhat vague. The officer asked Mr. Friebel about the cuts to his face.

Mr. Friebel responded that they had occurred earlier in the day and were not a result of the accident. That is, he was directly responsive to the question and he was able and apparently referring both to the current time, the current event of the accident, and to some event that occurred earlier. [ 45 ] He told the officer that he understood the breath test demand. He told the officer that he would like to speak to a lawyer, and when they returned to the police station he pursued that request and actually did speak to a lawyer. Mr.

Friebel had a conversation with the officer at the police station, which indicated that he was aware of why he was there and aware of the fact that he had taken medication. That is, he told the officer he was on medication for depression. He accurately described the dosage that he took. He recalled that his doctor had told him not to drive while he was on the medication. As well, after providing the first breath sample he asked the officer what the actual reading was. [ 46 ] Mr. Friebel was able to follow directions about going to and from the breath test room.

He provided breath samples as instructed by the operator of the instrument. Most significantly, Mr. Friebel actually communicated with a lawyer. I reiterate that he had requested to speak to a lawyer. He spoke to the lawyer for about four minutes. Of course, we cannot know anything about what the discussion was because of the rules regarding privilege. Nonetheless, there are some inferences which I can draw from this transaction. A lawyer would need to know some basic details. Where was Mr.

Friebel, why was he at the police station, what had the police asked him to do, what were the circumstances of his detention, and what was the nature of the potential charge that he was facing? Without speculating as to the responses that Mr. Friebel gave to the lawyer, he was probably able to at least get some of his basic information across to the lawyer. [ 47 ] Although Professor McNeill suggested that Mr. Friebel might have some brief memories of recent events, he said that it would only be a brief, short term phenomenon. He explained that Mr.

Friebel could remember some things which happened before he started taking the Ativan because he would have formed those memories before the drug was in his body. However, Mr. Friebel's responses to the officer, his apparently spontaneous disclosure to the officer of his drug regime and his apparent awareness of why he was in the police station all contradict the theory that he had no working memory. CONCLUSION [ 48 ] Having considered all the evidence, it is my conclusion that the defence has not established on a balance of probabilities that Mr. Friebel did not consume alcohol voluntarily.

The weight of the evidence is, in my view, clearly that it is probable that he did consume alcohol voluntarily. After all, although he had been told not to drink by his doctor, consuming alcohol was something that he actually wanted to do. That is, it is not some sort of aberrant behaviour on his part; it is not something which could be described as unexpected or unusual behaviour. For him to actually get access to alcohol he had to engage in a relatively sophisticated set of actions which required thought and purposeful behaviour.

His reaction to the witnesses who observed him after the accident strongly suggest that he knew where he was and understood what was said to him. [ 49 ] The defence did not call any evidence which would describe the kind of behaviour one might expect from someone who is in a state of automatism caused by the Ativan which could differentiate from such unconscious conduct from normal or conscious conduct. That is, Mr. Friebel appeared to be intoxicated by liquor. He drove his vehicle in a manner which is consistent with someone whose ability to drive was impaired by alcohol.

He did not appear to be severely intoxicated. [ 50 ] In essence, Mr. Friebel's argument is that although he looked and acted as if he was someone who was merely under the influence of liquor, he was also in an automatic state despite the fact that he was able to engage in very purposeful behaviour over a significant period of time. He was able to answer questions appropriately. He was able to take instructions from the police. He was able to engage in a discussion with a lawyer and to answer the lawyer's questions in some fashion.

All of these activities are not consistent with someone who is in a state of automatism. [ 51 ] I find, therefore, that the defendant has not established on a balance of probabilities that he was in a state of automatism at the time of the accident. I further find that he has not established on a balance of probabilities that he did not consume alcohol voluntarily before he drove his vehicle. I find him guilty on both counts. [ 52 ] MR. VOJVODIC: Thank you, Your Honour.

My friend has advised me prior to this hearing that he was essentially completely new to the file and he's not in a position to -- [ 53 ] THE COURT: No, that's fine. [ 54 ] MR. VOJVODIC: -- proceed with sentencing at this point, so -- [ 55 ] THE COURT: Just for the record then, because it is a situation where he cannot be sentenced on both counts, I will direct a judicial stay of proceedings on Count 1. Proceedings will go ahead on Count 2, the 08 count. (REASONS FOR JUDGMENT CONCLUDED)