Her Majesty the Queen - v. -, 2015 SKPC 139

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 139 Date: November 24, 2015 Information: 37253332 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Michael Pristupa Appearing: Rob Parker For the Crown Foster Weisgerber, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] Robert Michael Pristupa is charged that on March 14, 2015, at or near Moose Jaw, Saskatchewan did, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code and count 2, and further did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1)(

a) of the Criminal Code . [ 2 ] The Crown proceeded summarily. The trial was held on September 9, 2015 and my decision was adjourned to November 24, 2015.

ISSUE [ 3 ] I am satisfied that the evidence establishes beyond a reasonable doubt that Mr. Pristupa was operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood and that he was operating the motor vehicle while impaired. A Certificate of Qualified Technician was admitted into evidence as Exhibit P-1 and therefore the presumption of identity applies. There is no evidence to the contrary. The only question is whether the accused has established on a balance of probabilities that he was in a state of non-insane automatism.

THE EVIDENCE [ 4 ] The Crown called five witnesses. The first witness was Sherry Lewis. She was in the parking lot of the Saskatchewan Liquor Board store in Moose Jaw on the date in question. She was seated in the back seat of a truck. Her husband and brother were in the front seat. She noticed a truck pulling into a parking space next to a Ford Escape. She thinks it was a Jeep. She saw the back right side of the Escape being bumped and scraped by the Jeep which was the vehicle the accused was driving.

The Jeep did not stop when it made contact with the Escape but just kept proceeding into the parking stall and actually pushed and lifted the Escape and moved it ahead. She noted the accused get out of the Jeep, stagger a bit when he was closing the door and walked towards the entrance of the liquor store. She described the accused as wobbling and bounced against the side of his Jeep when he stepped out and was closing the door. She also observed the accused try to get back into the truck.

There were people gathered around by this time and she spoke to the owner of the Ford Escape and told him what happened and waited for the police to arrive. [ 5 ] On cross-examination she agreed that there was no indication by the accused that he was aware that he hit the Ford Escape. She was not sure how long the accused was in the liquor store but perhaps about 10 minutes. [ 6 ] The next witness was Aaron Welsch. He was also at the Liquor Board store, which is at the corner of Manitoba Expressway and Main Street in Moose Jaw around 1:00 or 1:30 in the afternoon of March 14, 2015.

His purpose there was supervising a group of Army Cadets who were fundraising in front of the liquor store. He was standing to the side and heard the sound of plastic being crumpled and looked over and saw a vehicle being pushed ahead. This was on the east side of the liquor store and he was about 20 feet from this incident. He walked towards the sound and noticed a silver Jeep strike a green Escape rear bumper and then just kept pushing through into the parking spot. The Jeep did not back up or take any other action.

In the end the Jeep was parked within the lines of the parking spot but at the expense of the vehicle to its left. [ 7 ] Mr. Welsch observed the accused look out his window at the Escape and then exit his vehicle. Mr. Pristupa tripped on the curb and then staggered towards the entrance to the liquor store. Mr. Welsch described the accused to have a lumbering gait and Mr. Welsch actually had to step out of his way so he wasn’t knocked over. He could smell alcohol coming from the accused and assumed he was impaired so he called 911. Mr.

Welsch also said he observed the accused to have bloodshot eyes and looked like he had a hard time keeping his eyes open. When the accused came out of the liquor store, he did not have any packages with him. It appeared he could not find his vehicle at first and was in the parking lot and then came up behind his vehicle. He saw the accused reach for his keys and Mr. Welsch said to him “No, I’m not going to let you drive. You are impaired and the police have been called”. Mr. Welsch recalls the accused denying that he was impaired and saying it was his medication. He also denied striking the vehicle. Mr.

Welsch did not believe the accused because the smell of alcohol was strong. [ 8 ] On cross-examination, Mr. Welsch elaborated that the accused appeared to have a hard time keeping his balance because he tripped over the curb but did recover. The accused did not seem to realize that Mr. Welsch was there and did not appear to realize what he was doing. [ 9 ] Cst. Norm Renwick has been with the Moose Jaw Police Service for 29 years. It was just before 2:00 p.m. on March 14, 2015, when he received a 911 call about an impaired driver and that the driver had hit another vehicle at the Liquor Board store parking lot.

He was dispatched to this location which was three to four blocks from the police station. He observed the accused leaning against the rear of his Jeep. Mr. Welsch pointed out the accused as the driver of the vehicle. The officer approached Mr. Pristupa and identified

himself. The accused said “people say I hit a vehicle” but he denied it. The officer noted Mr. Pristupa to have red, bloodshot eyes, partially closed. He was talking slowly and his coordination seemed off. He seemed unbalanced. He swayed from side to side, unable to stand in one position. The officer asked Mr. Pristupa to sit in the back of the police vehicle and on two occasions, the accused tried to get into the front seat of the police vehicle. The officer finally got him into the back seat and obtained Mr. Pristupa’s name.

He could smell the odour of beverage alcohol on his breath and the accused said he had had a couple of bottles of champagne. [ 10 ] As a result, the officer read Mr. Pristupa the breathalyzer demand at 14:10 and asked him if he understood. The response was “yes”. The officer then asked at 14:12, “will you provide a sample?” The response was “yes I will”. The officer next read Mr. Pristupa his Charter rights to counsel from his printed card. Again the officer asked Mr. Pristupa “do you understand?” The response was “yes, I basically do”. Then he asked “Do you want to speak to a lawyer now?” “Yes” was the answer.

The officer did not read the police warning. On the drive back to the police station Mr. Pristupa told the officer he suffered from PTSD. At the station Mr. Pristupa was booked in and put in contact with Legal Aid. The officer said he encouraged Mr. Pristupa to speak to a lawyer. The officer noted that Mr. Pristupa’s speech was slow, he still appeared unbalanced and appeared upset or sad, not angry. Mr. Pristupa’s t-shirt was sweaty. Mr.

Pristupa was cooperative. [ 11 ] During the booking in process, there is a series of questions the officer asked the accused concerning his sleep, medication, what alcohol he consumed, his name, etc. In response to the question about medication, Mr. Pristupa responded “yes” but he wasn’t sure what. As far as the officer recalled, Mr. Pristupa answered all the other questions appropriately. At this time he was turned over to Cst. Jay McNaughton, the qualified breathalyzer technician. Mr.

Pristupa provided two samples of his breath and the Certificate of Analyses was entered as Exhibit P-1. [ 12 ] Officer Renwick then went to his Acting Sergeant to get some advice about release options for Mr. Pristupa. The accused had no family in town and the officer was concerned as to the appropriate course of action. [ 13 ] In cross-examination the officer agreed that Mr. Pristupa was wearing a fleece jacket over a t-shirt. The accused was released at 4:00 a.m. the following day although Officer Renwick did not see him at that time. Cpl.

Suave from the military police came and talked to the accused as the officer had concerns about his emotional state and did not feel he could leave him on his own. [ 14 ] Tyler Howard was also outside the liquor store on the day in question. He was just rounding the corner from the north side to the east side with a group of friends. He saw a man (the accused) behind the wheel of a silver Jeep hit another vehicle as he was turning into a parking stall. This accident was just to Mr. Howard’s left. He heard a grinding noise and watched the Jeep continue grinding against the vehicle next to it until it was parked.

The Jeep did not hesitate or slow down. The front driver’s side of the Jeep contacted the rear of this Ford’s back panel behind the rear wheel. Mr. Howard noticed in the end the accused’s vehicle was parked satisfactorily within the lines of the parking stall. He noted the accused get out of his vehicle, did not give any indication that he had hit the other car and entered the liquor store. Mr. Howard’s friend Lisa Miklautsch, who was an off-duty police officer from Saskatoon, kept an eye on Mr. Pristupa. He saw Lisa go to the front counter of the liquor store and talk to a clerk. Mr.

Howard observed the accused to be wobbly, his face appeared glazed over and he was leaning on his vehicle which was dirty and his black jacket was getting dirty. Mr. Howard walked over to the Jeep and said to the accused “that’s going to cost you some money” and Mr. Pristupa replied “no, not that big of a deal”. [ 15 ] On cross-examination, he said that Mr. Pristupa’s eyes did not seem to focus. He did not show any emotion and did not appear to be present. [ 16 ] Lisa Miklautsch was in Moose Jaw with friends on March 14, 2015.

They were approaching the corner of the liquor store and she saw a Jeep turn into an empty parking space in front of the liquor store. She also noticed the Jeep come into contact with the rear passenger quarter panel of the Ford. The Jeep appeared to be parking and was going slow but continued to press forward into the Ford. She heard the noise and then saw the two vehicles make contact. The Ford shifted and rocked as contact was made. She saw the Jeep stop and the accused exit his vehicle and walk into the liquor store.

She observed that the accused was not walking steadily and did not appear to stop and look at the other vehicle. She also noticed the accused’s gaze was distant. He did not appear to focus. His eyes were glassy. She saw the accused go into the wine area of the liquor store. She noted his feet were planted but his body swayed back and forth. The accused looked at the wine but did not select anything. In the meantime she went to the clerk at the cash area and advised that the accused was impaired, that he had hit a vehicle and he shouldn’t be served. She heard Mr. Pristupa say to the clerk “I have fibromyalgia”.

He left with no purchases and walked out the front door into the parking lot. The accused’s vehicle was actually in a stall to the left of the front door. The accused looked around in the parking lot and then walked behind the first row of vehicles to the area where his Jeep was parked. The accused said “what happened” and appeared surprised or stunned when told of the accident. The accused responded “no” in disbelief. The accused asked if the Ford was hers and then he walked to the driver’s door of his Jeep. She

blocked him from entering. The accused sighed very deeply and she could smell a strong odour of beverage alcohol coming from the accused’s breath. She asked him how much he had had to drink that day and he responded “I have fibromyalgia and had a glass of champagne with breakfast”. She was not able to pinpoint the kind of alcohol but to her it smelled like whiskey or rum. [ 17 ] That was the case for the Crown. [ 18 ] Mr. Pristupa testified that he is 47 years of age and is currently posted at 15 Wing in Moose Jaw. He has been a Wing Training Development Officer since 1989.

He has been posted other places but in the summer of 2014, he received a posting to Moose Jaw. He testified in 2006, he was deployed to West Africa and on his return he was diagnosed with symptoms of PTSD and survivor’s guilt. Within six months of his return from West Africa in the summer of 2007, he reported to the base medical clinic with respect to his condition. At that time there was little or no infrastructure in place to treat his situation and he was prescribed the antidepressant Prozac. He was waiting for an appointment with a psychologist and at this time he was working in Winnipeg in 2009.

As a result of this waiting for something to happen, he read up and started practicing Buddhist meditation, going to a civilian gym and basically relying on his own devices to get feeling better. He went off his meds in 2012 and 2013. In 2014, he received what he termed a last minute notice of a posting to Moose Jaw. So, in a space of three months or less, he had to sell his house and make all the arrangements for a move. [ 19 ] In Moose Jaw there is no Buddhist meditation group but Mr. Pristupa had a routine where after work every day he made sure he participated in activities which he found beneficial.

He went to Regina every day and took his dogs to a dog park, participated in Buddhist meditation and went to a gym. However, the anxiety returned and panic attacks returned. In the fall of 2014, he reported to the base doctor. He was told that it could just be the Christmas “blahs” and to come back after Christmas. In February 2015, he saw the doctor again complaining of panic attacks. He thinks this was brought on by the ISIS propaganda and he had recurring nightmares of someone holding a blade against his throat and he was begging for his life. At that time the doctor prescribed the antidepressant Ativan.

This was Dr. Presella. The first prescription was dated March 4, 2015. He was advised by the doctor to watch for increased depression and suicidal thoughts. The doctor advised him that Ativan takes about two to three weeks for it to kick in and once it does, the full effect would last about eight hours. He was advised to start with one Ativan and then take as needed. There was no discussion with respect to the use of alcohol. Mr. Pristupa filled this prescription immediately at the base pharmacy.

There was no discussion with the pharmacy although he did admit there was a warning on the pill bottle label to avoid alcohol or other drugs that make you sleepy and to drive with caution. [ 20 ] On March 9, 2015, the prescription was refilled and Exhibit D-1 confirms this as well as containing a prescription history, in other words prescriptions that had been recently prescribed to him.

Exhibit D-2 was the pill bottle of the antidepressants and on the label it warns alcohol may intensify this effect and there is a warning about operating a motor vehicle. [ 21 ] The accused says he took the first Ativan of this prescription on March 9 and started with one a day as directed. He took these at night and then at 5:00 a.m. and 12:00 noon the second week. [ 22 ] On March 13, 2015, he got up feeling better although his stomach was upset. He said he felt 100% normal. He had a routine day at work spending most of his working day at his computer.

He drove home after he finished work about 4:00 p.m., made supper, watched TV and planned to get up early Saturday and go to Regina to his gym. His house had a wine cooler which he stocked and he recalls that in February he had bought three bottles of wine and previously he, on a Friday and Saturday night, often had two to three glasses of red wine. [ 23 ] He recalls on March 13, having a total of five bottles of wine in his cooler. He prefers Australian reds although he had a couple of sparkling whites that he had purchased on sale.

He recalls taking a sip or two of wine and then heard a voice saying “have you been drinking” and “people saying things about accidents, nothing made sense”. He remembers a voice to his left, a blonde woman, asking him if he had had anything to drink. He can recall snippets of moments. For example, he remembers somebody in the liquor store saying you have been in an accident and then he remembers being at the Jeep and told about the accident. He remembers saying “no”. He was in shock. He recalls being in the police vehicle at the police station and a phone and then being in a cell.

He only knows what actually happened from the written paperwork. He left the house without socks or his cell phone and it was cold. He couldn’t figure out what he was doing there in the cell. His dogs were unattended and he didn’t even know where they were. All he remembers is the sip of wine. He did not recall driving or being in the accident. He remembers being taken to the hospital and upset about the dogs. He remembers having a quick assessment at the hospital and recalls hiding under the gurney at the hospital.

He says that he has not consumed any alcohol or Ativan since that time (except for one Ativan administered at the hospital).

[ 24 ] On cross-examination the accused clarified that from 2007, when he returned from his posting, he did not see a doctor or professional for nine months. Then for two and a half years he did not take any antidepressants and for another two and a half years, he was on prescribed antidepressants. He made it clear it was his fiancée that had the fibromyalgia not him. Mr. Pristupa testified that it is common for people that have PTSD to self medicate. He made it clear that he has not been diagnosed with PTSD but has the symptoms of that disorder.

He said that he was also prescribed Tylenol 3s for about two years and only drank alcohol when he was not taking the Tylenol. He just took the Tylenol if the pain was very great. He was certainly aware of the dangers of drinking alcohol when on antidepressant medication and testified he did not drink for the two and a half years he was on antidepressants. He explained that his understanding was that Ativan works parallel with antidepressant medication to ease a person’s anxiety until the antidepressant medication “kicks in”. It has sometimes been referred to as “gap” medication.

He admits that he was aware of the wording on the prescription receipt, Exhibit D-1, that Ativan could cause drowsiness and that there was a warning about driving and it could be habit forming. He was also given warnings by his doctor and he had a scheduled follow-up appointment for March 16. [ 25 ] He also acknowledged on Exhibit D-2, the pill bottle, that there is a warning about the medication causing drowsiness and that alcohol could intensify the effect. Mr. Pristupa understood if he took Ativan, it could make him sleepy and he would go to bed.

He agreed that these warnings were specific and that he would likely be impaired if he took Ativan and alcohol. He indicated that when he picked up his prescription, there was no information sheet or as he called it syllabus inside the prescription bag as there often is. He acknowledged the prescription history and the March 4 prescription for Ativan which said to take one tablet twice daily as needed. He had understood the doctor to tell him that he could take Ativan every eight hours which he did for awhile.

He acknowledges the March 9 prescription was different and just said one daily. [ 26 ] On March 13, he remembers taking an Ativan at 5:00 in the morning and noon. He remembers opening the bottle of wine and having two or three sips of wine. He also admitted that when he returned home he saw three empty red wine bottles on the counter. There were two half bottles of wine in his fridge. He disposed of all of the wine at that time. [ 27 ] Dr. Melanie McLeod was the final witness for the defence. She was sworn in on both the voir dire and the trial proper.

She referred to her extensive curriculum vitae and highlighted her most recent achievements. The Crown did not oppose her being qualified as an expert in a particular area but asked some questions on cross-examination. [ 28 ] In examination-in-chief, Dr. McLeod said she received her doctorate of pharmacy in 2010 and was the most distinguished graduate that year. She has worked with the Regina Qu’Appelle Health Region in the Department of Psychiatry as part of a team for several years. Part of her work is to educate and train psychiatrists on the various medications in the psycho pharmacology area.

She has also been active in many related organizations. [ 29 ] On cross-examination by the Crown, Dr. McLeod readily admitted she does not have a medical degree and she is not a psychiatrist or a psychologist. She made it clear that she works as part of a team that includes a psychologist, a psychiatrist and registered psychiatric nurses. She does not diagnose but rather advises psychiatrists on the medications available and the effects and interactions of such medications. She can prescribe some medications but these do not include narcotics or the benzo drugs.

Rather, she described it as collaborative prescribing. She sees patients by appointments three days a week as well as at the Regina General Hospital, two days a week, on a ward monitoring the effectiveness of various medications. She was qualified by the Court as an expert to give opinion evidence as to the side effects and counter indications of Ativan, Lorazepam and the interaction of alcohol and Ativan and impacts this can have on an individual who uses Ativan and alcohol. [ 30 ] The evidence of the voir dire was applied to the trial proper. [ 31 ] Dr.

McLeod testified that Lorazepam is the drug and Ativan is a trade name. Lorazepam has many purposes. It comes from the Benzodiazepine group and it works on specific receptors in the brain. Most commonly it is used to reduce excessive excitement and anxiety and to assist people in sleeping. It also has some anti-convulsant properties. It can also reduce a person’s memory and is given to people for some types of surgical or medical procedures. However its most common use is to reduce anxiety and panic. The side effects of the drug depend on the individual.

If the prescription is to reduce a person’s anxiety, then the expected effect would be for the person to be more relaxed. Sedation is a major factor and concern if a person is not used to taking the drug. There can be some memory impairment depending on if a person is new to the drug or if they have been on it for a long time. If a person is not used to the drug and they take a large amount over a short period of time, there can be short term memory loss. In long term use, it can also result in cognitive impairment.

Anterograde amnesia is the correct term with respect to this effect and it means a person’s memory can be impaired for a defined period of time. She has read in the literature that for a short time period people can have amnesia and have no recall of events

but otherwise are conscious. [32] When asked about the effects of Lorazepam combined with alcohol, it was her opinion that the effects intensify and occurmore quickly. Their memory can be impaired although they can appear functionally normal. Alcohol certainly intensifies or increasesthis effect if taken along with Lorazepam because both work on similar parts of the brain. They are cental nervous system sedatives. Patients should be advised to avoid alcohol if prescribed Lorazepam. The literature refers to “Ativan black out” and a person just takingAtivan can appear to be functioning okay.

However if alcohol is added, there is some functional impairment. She was asked if a personexperienced an Ativan black out with or without alcohol, is a person aware of what they were doing? In the midst of a black out, shewould say no. However, the doctor cautioned that it would depend on the amount of the Lorazepam and that every person is differentand has various risk factors. The variables are not well documented in the literature. Some people are genetically predisposed to theseeffects if not used to taking it.

In her opinion, a two milligram dose was not a very high dosage but if it is combined with alcohol, therisks increase dramatically. [33] On cross-examination by Mr. Parker, she said that she had never met the accused in these proceedings. She had been giveninformation on possible dosages, amount of alcohol and the time period involved. She was here today to testify about things that couldhappen rather than any exact hypothetical situation. She said that .5 milligrams twice a day of Lorazepam is an average starter dose.

Shesaid Lorazepam is not a primary drug but it is used as an adjunctive to help in the short term until the primary antidepressant kicks in. She said the March 4 prescription for taking twice a day and the March 9 for taking once a day made sense as the main antidepressantwould start working so you need less of the Lorazepam. [34] On March 14 if Mr. Pristupa was taking three times the prescribed dose, he could have an Ativan black out and not bevoluntary or conscious of his activities.

When one takes the Ativan with alcohol, there is an extra layer of impairment and a person mayappear more impaired than they actually are. She made it clear that she could not pinpoint the exact time when the black out would startor end. DEFENCE SUBMISSIONS [35] Mr. Weisgerber submitted that the evidence of the Crown witnesses confirms that the accused clearly did not know what hewas doing at the point in time he was seen driving into the parking stall at the Liquor Board store and entering and exiting the store. Forexample, Mr. Welsch observed that the accused “didn’t know what he was doing”. Ms.

Lewis described the accused as confused. Mr.Howard said it looked like the accused wasn’t present and Ms. Miklautsch described the accused as having a “thousand yard stare”. Shewas not sure he was focusing, it was like he was daydreaming. [36] The Court is asked to accept Mr. Pristupa’s evidence as to what he remembers during that time frame. He testified he wastaking the prescribed medication, being Ativan, at a higher dosage than prescribed. He took two Ativan over a course of several hoursand he thought this was the dosage at the time. There had been no verbal caution from the pharmacist.

Exhibit D-1 clearly indicates thatone should avoid alcohol when taking this prescription and Exhibit D-2, the caution according to the defence, was ambiguous. In anyevent, on March 13, the accused consumed alcohol. He only recalls having two to three sips. On March 14, he has no recollection ofevents until approached by someone at the liquor store. He was oblivious to the fact that he had struck a vehicle and this is confirmed byall witnesses who say that the Jeep did not stop and try to back up and avoid the vehicle but just kept on proceeding into the parkingstall.

His first memory is of Lisa Miklautsch when she asked him “have you been drinking”. At that time the accused says he slowlywas starting to regain awareness. [37] Dr. McLeod described the effects of Ativan and in particular the amnesia effect and the interactions between Ativan andalcohol. She described a person could be in a state that they were not acting voluntarily but by rote, which is akin to automatism. [38] The defence refers to the Supreme Court of Canada decision of R v Stone, (SCC), [1999] 2 SCR 290 [Stone],which sets out what the defendant must establish on the balance of probabilities.

First, the accused must establish that his actions wereinvoluntary. Second, the Court must be satisfied that the psychiatric evidence confirms the nature of this behaviour. Here there is thecombined effects of the Ativan plus alcohol.

[ 39 ] In R v Friebel , 2013 BCPC 392 , the Court reviews the requirements for this defence. The Court accepted the expert evidence that an Ativan black out could occur but based on all the circumstances and evidence, the Court held that the defendant had not established on the balance of probabilities that he was in a state of automatism at the time of the accident. [ 40 ] The defence suggest the present case is different in that Mr. Pristupa had no plan to go to the liquor store. He had no wallet. He had no socks on.

He still had some wine at home and he did not even try to purchase anything at the liquor store. Secondly, in the within case, Mr. Pristupa had some interactions with other people but he has no memory of driving or being in an accident. He had no memory up to the point until Lisa Miklautsch talks to him. All the witnesses say that the accused appeared shocked when he was told that there was an accident. [ 41 ] The defence also referred to the case of R v Prescott , 2008 ONCJ 604 [ Prescott ], where the Court found that automatism was a defence and found the accused not guilty.

The Court was satisfied that there was sufficient evidence that the accused was acting involuntarily and there was sufficient expert evidence to establish the impact on that accused. At paragraph 62, the Court found that Ms. Prescott: ... has established on a balance of probability that her conduct that night was involuntary and therefore not a crime. Her impaired consciousness was due to the consumption of alcohol and Imovane. This is an external cause and is not dependant on a disease of the mind. Ms.

Prescott’s situation is properly defined as non-insane automatism. [ 42 ] The Court further goes on at paragraph 65 to say: The lack of any memory, the lack of motive, the lack of destination and the evidence of poor planning ability such as wearing one’s pyjamas out in the middle of the night raise the claim of non-insane automatism to one established on a balance of probability. As a result Ms. Prescott is entitled to an acquittal as her conduct was not voluntary. CROWN SUBMISSIONS [ 43 ] Mr.

Parker submitted that the observations of every one of the witnesses are equally consistent or indicative of a person grossly impaired by alcohol and a drug. The expert witness, Dr. McLeod, was not asked to look at each factor and give her opinion on which is attributable to a black out and which is indicative of an impaired. The Crown suggested that Dr. McLeod was not the type of expert witness that is required to establish this defence. The Crown pointed out Dr. McLeod has specialized training in the area of pharmacology and she was qualified as an expert in that field.

However, her evidence consisted of general information. She admitted she was never given a hypothetical that matched this accused and his actions and she was never asked the question if in fact, in her opinion, this person, namely Mr. Pristupa, was functioning as an automaton. Dr. McLeod again talked of what could be the possible effects not what did happen. [ 44 ] The Crown also argued that the Court should be skeptical of Mr.

Pristupa’s evidence claiming that immediately prior to the police arriving, he appeared to “pop out of his black out state”. [ 45 ] The Crown referred to Stone and in particular, at paragraph 192, where Bastarache J. summarised what the accused must do to satisfy the test that he acted involuntarily. The quote is as follows: To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion.

However, it is an error of law to conclude that this defence burden has been satisfied simply because the defence has met these two requirements. The burden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In reaching this conclusion, the trial judge will first examine the psychiatric or psychological evidence and inquire into the foundation and nature of the expert opinion. The trial judge will also examine all other available evidence, if any.

Relevant factors are not a closed category and may, by way of example, include: the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is

evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence. Ipoint out that no single factor is meant to be determinative. [46] The Crown points out that the Saskatchewan Court of Appeal has also followed this approach in R v Talock, 2003 SKCA 69[Talock], at paragraph 17: ... there was nothing in the evidence to support a finding that her actions while amnesic were involuntary.

The expert opinion did notaddress that question, and dealt only with her ability to evaluate the appropriateness of her actions, something entirely different. [47] At paragraph 12 in Talock, the Court said that the expert, who was Dr. Richardson, not a psychiatrist or psychologist but atoxicologist, did not address the question of whether the accused’s actions were amnesic were voluntary or involuntary which is the testof automatism.

The Court pointed out that: Lack of or impaired ability to evaluate actions or to exercise good judgment is quite a different thing from having no voluntary controlover one’s actions. ... To establish the defence of automatism, the defence must prove actual absence of volition, and the opinion did notdo that. [48] Paragraph 14 in Talock is very much like the case here the Crown suggested where the Court of Appeal stated: When arrested, the respondent showed the usual signs of impairment by alcohol. The police officer believed she understood the usualwarnings and demands made upon her.

She was concerned about her van and arrangements were made to have it picked up. She did notwish to speak to a lawyer. None of her actions indicate lack of volition on her

part in making the decisions she was called upon to make,or, for that matter, any inability to act as called upon to do so. [49] Therefore, the Crown suggests the Saskatchewan Court of Appeal says that expert psychiatric or psychological evidence isnecessary in such a case. [50] The Crown also filed the following cases: R v Devingt (2001), 49 WCB (2d) 113, [2001] OJ No 521 (Sup Ct) R v Armando Abad, (ON SC) R v McEachern, 2003 ABQB 87 [51] The Crown concluded by submitting that Mr. Pristupa voluntarily consumed drugs and alcohol.

He knowingly took morethan the prescribed dosage of the Ativan but felt he could take it as needed. He was told not to consume alcohol as there were warningson the bottle but he does not heed those and consumes wine. In conclusion, the Crown says the defence has not met its burden on thebalance of probabilities. ANALYSIS [52] It is clear that the defence bears the burden on a balance of probabilities to convince the Court that the defence of non-insaneautomatism is justified.

A review of the authorities indicates that the accused either has to adduce evidence that he becameunintentionally intoxicated by unknowingly consuming alcohol or a drug or by not being aware of the effect of a drug alone or in acombined state with alcohol. An accused could also argue that he intentionally consumed alcohol but only so much that it was notreasonably foreseeable that through a combination of alcohol and drugs that he would become impaired or intoxicated.

[ 53 ] In Stone , the Supreme Court set up a new combined three part test for insane as well as non-insane automatism defences:

(1) The accused must lay down a proper evidentiary foundation for the defence of automatism. The evidentiary burden will be met only where the trial judge is satisfied there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In all cases the defence must assert involuntariness and present confirming psychiatric evidence. In addition, corroborating evidence like a medical history of automatistic-like dissociative states and evidence of bystanders will also be relevant. No single factor is determinative.

Although placing a burden on the defence with respect to an element of the offence constitutes a limitation of the accused’s rights under s. 11(

d) of the Charter , it is necessary to further the objective behind the presumption of voluntariness and can be justified under s. 1.

(2) The trial judge must determine whether mental disorder or non-mental disorder automatism should be left with the trier of fact.

(3) If the condition from which the accused suffers is not a disease of the mind only non-mental disorder automatism will be left with the trier of fact who must then determine whether the defence has proven, on the balance of probabilities, that the accused acted involuntarily. [ 54 ] In Talock , the defence argued that after drinking a little bit of alcohol, somebody administered a drug to the accused which made her amnesiac and that in this automatic state, she drank more alcohol which resulted in impairment and excessive blood alcohol at the time of driving.

In Talock , the defence failed because the expert evidence did not prove the involuntariness of the drinking. [ 55 ] In Prescott , the accused drank alcohol and took sleeping pills and became highly intoxicated. The accused knew that she should not mix these and therefore it was found she became voluntarily (recklessly) intoxicated. She woke up in the night and drove and caused an accident. She was acquitted.

Perhaps the way to reconcile Prescott with Pennell and other cases is the element of reasonable foreseeability to get into a state of impaired consciousness and drive. [ 56 ] In this case, the question is whether Mr. Pristupa is responsible for his intoxication. I find the answer to be in the affirmative. I accept his evidence that the day before the accident he took 1 to 1.5 milligrams of Ativan. He voluntarily took a few sips of wine the same evening before blacking out.

The next afternoon he was found to be at the Liquor Board store parking lot involved in a minor accident and subsequently had a blood alcohol content of 200 and 180 (see Exhibit P-1). [ 57 ] Mr. Pristupa admitted there was a warning on the prescription bottle to avoid combining Ativan with other drugs that make him sleepy and the pill bottle label contained a warning that alcohol may intensify the antidepressant effects. Mr. Pristupa acknowledged all this. Therefore I find that Mr.

Pristupa was clearly aware of the risk of impairment by a combination of Ativan and alcohol and therefore I find he became voluntarily or recklessly intoxicated. [ 58 ] Mr. Pristupa must convince the Court that he acted as an automaton when he drove. The Supreme Court in Penno precludes the defence of automatism in drinking and driving cases. However if I look at the more recent case of Stone , which requires expert evidence of a psychiatrist or psychologist to support a finding of non-insane automatism, I find that the defence still fails. [ 59 ] The pharmacist, Dr.

McLeod, testified that a person taking Ativan can experience a black out and the effects of Ativan are intensified and occur more quickly when combined with alcohol. She also testified that if the accused was taking three times the prescribed dose of the medication on the day of the offence, three pills or 1.5 milligrams, he could have had an Ativan black out and not be voluntary or conscious of his activities. However, when I look at the evidence in this case, there are unexplained gaps. After having two or three sips of wine in the early evening of Friday, March 13, 2015, Mr. Pristupa says he blacked out.

The next event he remembers is somebody asking him if he was drinking, which was around 2:00 p.m. the next day, after he had driven to the liquor store and caused the minor accident. He was blacked out for a lengthy period of time. Dr. McLeod could not pinpoint the exact time when the potential black out would start or end. However she testified that if a person is not used to Ativan and takes a large amount over a short period of time, there can be a short memory loss. [ 60 ] There was no evidence regarding the consumption of Ativan on March 14, 2015.

I am not prepared to speculate that the accused shortly before he drove to the liquor store took an Ativan and then drove in an automatic state. It is noted the accused recalls having had a total of five bottles of wine in his cooler on March 13. When he returned home after his drinking and driving incident, there were three empty wine bottles on the counter and two half full bottles in the fridge. It of course would be easy for me to infer that

he drank this wine between Friday evening and Saturday early afternoon. This would explain his erratic driving and behaviour on Saturday as well as the blood alcohol readings. In any event I am satisfied that the accused voluntarily consumed alcohol and Ativan being fully aware of the warnings about combining Ativan with alcohol. In my view, I cannot conclude that Mr. Pristupa had an adverse reaction to the combination of alcohol and drugs. I do not accept the argument that after a few sips of wine, he blacked out (because of the Ativan) and obviously drank way more than he intended. Dr.

McLeod does not support that theory. It is only speculation. Almost a day later, his blood alcohol content was very high. I accept that he blacked out and cannot remember the events. However, that is a result of consuming too much alcohol. That is not a defence to this charge. While I accept that the pharmacist did not talk to him specifically about these dangers when he picked up the prescription, that does not change the situation. Mr. Pristupa was reckless and quite frankly took the chance with the results as heard by the Court. [ 61 ] Mr.

Pristupa has not established on a balance of probabilities that his impairment was due to automatism. Therefore I find him guilty as charged with both counts on the Information. As is the custom, I am prepared to enter a judicial stay on count 2 at the expiration of the appeal period. I find Mr. Pristupa guilty on count 1. M. Gordon, J