R. v. McGrath, 2013 ONCJ 528

Citation: R. v. McGrath , 2013 ONCJ 528 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Mike McGrath Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision Released 17 July 2013 Mr. Julian Daller ………………………………………………………………..for the Crown Mr. Stuart Konyer ...…………………………………………………………….for the Accused Paciocco J. I. Introduction [ 1 ] Mike McGrath is charged with three offences contrary to the Criminal Code of Canada . He is charged that on August 14, 2011 he drove a motor vehicle while impaired by drug contrary to subsection 253(1)(a).

It is also alleged that on the same occasion he drove dangerously contrary to subsection 249(2). And it is alleged that in committing either of these offences he breached an undertaking he had given to a peace officer under the authority of the Criminal Code of Canada to keep the peace and be of good behaviour, contrary to subsection 145(5.1) . [ 2 ] The issues in this case are narrow. It was admitted by his counsel that Mr. McGrath was impaired by the drug Clonazepam while driving a motor vehicle, and that he drove that vehicle in a manner dangerous to the public. These admissions were warranted and wise.

The evidence of his impairment is overwhelming. In his own words Mr. McGrath was not simply impaired. He was “obliterated”. A toxicology report from the Centre for Forensic Sciences furnished by expert witness Patricia A.M. Solbek confirmed that Mr. McGrath had both Clonazepam and Clonazepam metabolites in his urine, and his impairment is consistent with effects produced by that drug. [ 3 ] The evidence of how dangerous his driving was is also unequivocal. In a busy bar area of town with heavy pedestrian and automobile traffic Mr.

McGrath attempted to negotiate the U-turn corner at York St. near Sussex St. in the City of Ottawa at a speed so fast that his vehicle climbed a curb and struck a parked car only a few feet away from Amira Mensour and her party, who were on the sidewalk. Mr. McGrath then drove away, swerving to miss a cab that was stopped at a red light, before running that light almost striking pedestrians at the cross-walk. He then ran a red light on Rideau St. at King Edward, almost striking a utility pole, before smashing into a parked car which was driven up onto the sidewalk. Mr.

McGrath was being followed at the time he hit this second vehicle by a police vehicle, with its lights flashing and sirens blaring. Mr. McGrath had to be cut off before his vehicle stopped. [ 4 ] It was also admitted that at the time of this spectacularly dangerous driving Mr. McGrath was bound by a valid undertaking to keep the peace and be of good behaviour. [ 5 ] This case is not therefore about the acts Mr. McGrath performed. It is a case about “involuntary intoxication.”

II. The Law of Involuntary Intoxication A. Generally [6] “Involuntary intoxication” has been defined in a variety of ways. In my view the most accurate definition is offered by Vertes J.in R. v. Brenton (NWT SC), [1999] N.W.T.J.

No. 113 at para 31 (Q.L.), rev’d (on other grounds) [20001 N.W.T.J.No. 14 (Q.L.) (C.A.): “Involuntary intoxication is generally confined to cases where the accused did not know he or she was ingesting an intoxicatingsubstance (such as the accused’s drink was spiked) or where the accused became intoxicated while taking prescription drugs and theireffects were unknown to the accused.” [7] Mr. McGrath has raised the “involuntary intoxication” issue by testifying that at no time did he knowingly consume theClonazepam or any drug known by him to cause impairment.

Where involuntary intoxication of the kind claimed by Mr. McGrathoccurs an accused person is not apt to be convicted of impaired driving, and may not be guilty of dangerous driving, depending on thecircumstances. The technical way “involuntary intoxication” affects a prosecution varies with charge and circumstance. B. Involuntary Extreme Intoxication [8] Involuntary intoxication can, where impairment is profound enough, support an “extreme intoxication” defence to the chargesbefore me: see R. v. Daviault (SCC), [1994] 3 S.C.R. 63, R. v. King (SCC), 1962 Carswell Ont 18,[1962] S.C.R. 746 at para. 8-9 and R. v.

Jiang 2007 BCCA 270 . However extreme intoxication carries a heavier burden ofproof than the two avenues I am about to explore, the first applicable to impaired driving and the second applicable to dangerousdriving.[1] As the name suggests, extreme intoxication also requires proof of a profound degree of impairment, producing symptomsakin to automatism, while any degree of intoxication can support an involuntary intoxication defence, particularly with respect to animpaired driving charge. Ultimately Mr.

McGrath cannot succeed on an extreme intoxication defence without also succeeding on thedefences I am about to consider. There is therefore no need to consider this extreme intoxication defence further. C. Involuntary Intoxication and Impaired Driving [9] The received view is that in case of impaired driving, it is best to treat “involuntary intoxication” as undermining the mens rea ormental state required by the offence.

That mens rea has been described in different ways but consists essentially in the “voluntaryingestion of alcohol or drugs, intentionally for the purpose of becoming intoxicated or recklessly aware that impairment could result butpersisting in the risk.”: Justice Joseph E. Kenkel, Impaired Driving in Canada (2012/2013 edition) (Toronto: Lexis-Nexis, 2013) at 28,citing R. v. Mavin (NL CA), [1997] N.J. No. 206 at paras 30-39 (C.A.). [10] There are cases where “involuntary intoxication” will not undermine the mens rea for the offence.

Even where “involuntaryintoxication” occurs, if an accused person becomes aware that they have become intoxicated by alcohol or a drug, they cannot deny themens rea if they subsequently choose to operate a motor vehicle while still impaired. This follows logically from usual mens reaprinciples. A person who intends to drive knowing they are intoxicated by the substance alleged in the charge against them has the mensrea for the offence, while committing the actus reus, even though they did not initially choose to create the risk of impairment.

Thiswould not be unlike a person who innocently accepted an item from another believing it was their own, but who then decided to keep theitem after learning that it was not their own. A theft would still occur even though the initial acquisition of the item was innocent. By thesame token, impaired driving occurs where someone who innocently and involuntarily became impaired chooses to drive afterappreciating what happened. Accordingly, in the leading case of R. v.

King at para. 63, Justice Ritchie commented that “a man whobecomes impaired as the result of taking a drug on medical advice without knowing its effect cannot escape liability if he becomes awareof his impaired condition before he started to drive his car….” [11] Even though “involuntary intoxication” undercuts one of the elements of an offence, it is appropriate to refer to the “defence ofinvoluntary intoxication.” This is because, in a typical impaired driving case, the Crown is not expected to prove voluntary intoxication,and a trial judge cannot speculate about the possibility if it is not supported by evidence.

As it was put in R. v. King at para 63: “[W]hen 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 arebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s.223 and must beconvicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabledwhen he undertook to drive and drive, from being able to appreciate and know that he was or might become impaired.”

[12] The accused must therefore raise a reasonable doubt about voluntary consumption before a “mens rea defence” of the kindoffered by Mr. McGrath can succeed: See R. v. Pitre (BC CA), [1971] 5 W.W.R. 270 (B.C.C.A). In essence, thevoluntariness of proved intoxication is assumed, absent evidence to the contrary. [13] Put contextually and in simple terms, Mr.

McGrath is therefore innocent of the impaired driving by drug charge particularizedagainst him if there is affirmative evidence that raises a reasonable doubt that his intoxication by drug was voluntary, and about whetherhe realised he was impaired before choosing to drive. D. Involuntary Intoxication and Dangerous Driving [14] “Involuntary intoxication” operates differently with respect to the offence of dangerous driving because dangerous driving doesnot have a subjective mens rea requirement of the kind that the offence of impaired driving has.

The mental element of dangerous drivingis objective, and is satisfied if the act or omission of the accused amounts to “a marked departure from the standard of care that areasonable person would observe in the circumstances”: R. v. Beatty 2008 Carswell BC 307, 2008 SCC 5 at para. 36. This “objective”standard is modified, however, to ensure that the circumstances the hypothetical reasonable person is imaged to be in include specialrelevant circumstances that affected the accused at the time and that would alter the standard of performance that could reasonably beexpected of them.

One example of such a special circumstance offered by Justice Cory in R. v. Hundal (SCC), [1993] 1S.C.R. 867 at 887 was “involuntary intoxication.” He said that a person who “in the absence of any warning or knowledge of its possibleeffects, takes a prescription medication which suddenly and unexpectedly affects the driver in a way that the manner of driving wasdangerous to the public could … establish a defence to the charge.” [15] Once again, it is up to the accused to raise a reasonable doubt about whether there is a special circumstance that should modifythe objective test.

As Justice Charron explained in R. v. Beatty 2008 SCC 5 , [2008] S.C.J. No. 5 at para. 8: “Objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arisingfrom the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction bysimply stating that he or she was not thinking about the manner of driving.

However, where the accused raises a reasonable doubtwhether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for findingobjective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made fordefences such as incapacity and mistake of fact (underscore added).” [16] Accordingly, as with the impaired driving charge, to achieve a defence to the charge Mr. McGrath must provide evidence thatsucceeds in raising a reasonable doubt about whether he was involuntary intoxicated. E.

Analysis [17] Since Mr. McGrath presented defence evidence raising the “involuntary intoxication” defence I must apply the principles in R. v.W.(D.) (SCC), [1991] 1 S.C.R. 742 when asking whether his guilt has been proved beyond a reasonable doubt. If Iaffirmatively believe his evidence about involuntary intoxication, I must acquit him. Even if I do not believe him entirely, I must askwhether his evidence leaves me in a reasonable doubt on this matter. The other elements of the offence having been admitted, I need gono further, for if I do not have a reasonable doubt about involuntary conviction, Mr.

McGrath will stand convicted on all three counts. [18] Mr. McGrath’s material evidence is this. He testified that on the night in question he had attended a barbeque at his friend Lex’sbefore leaving in his car for the Barefax bar on York Street in the market area of Ottawa. He testified that he believed he had brought atleast one or two cans of Smirnoff vodka-based coolers to the barbeque, but was sure that he did not consume any drugs at the barbeque orbefore. He said he was “close to being completely sober” when he left. [19] After leaving the barbeque Mr. McGrath’s memory is limited.

He testified that he has retained only “splashes” of what happened. He does not recall whether he lined up to gain entry. He does not recall where he sat, or who he spoke to, or what, if anything, he had todrink while there, or how long he stayed. His next material recollection was being asked to leave before being escorted out of Zaphod’s,the bar adjacent to the Barefax. He does not even recall moving to Zaphod’s. [20] Mr. McGrath testified that at the time he felt disassociated or very depersonalized, or out-of-body, as though his personality wasbeing eroded. It alarmed him.

He believes he must have headed to his car to leave for Cantley, Quebec, where he was staying with afriend. His next memory was striking a parked car, and then being arrested by an officer who was “furious” with him. He recalls feelingdesperate while sitting in the police vehicle, thinking he had ruined his life. He testified to some memory of the breathalyzer process,

being in a cell, and how the officers who dealt with him were very professional and concerned. [21] When asked if he ingested Clonazepam that evening he replied “No. Not to my knowledge.” [22] The Court is not left solely, in this case, with Mr. McGrath’s testimony about drug consumption. There is other material evidencerelating to the “involuntary intoxication” issue. It consists of statements made by Mr. McGrath, and the discovery during his DrugEvaluation of an apparent white powdery substance, and possibly a piece of a pill, in Mr. McGrath’s nostrils.

I will begin with thestatements. [23] There is a particular statement attributed to Mr. McGrath by Cst. Timothy Keen that I wish to deal with first. Specifically, Cst.Keen testified that Mr. McGrath told the breathalyzer technician in Cst. Keen’s presence that Mr. McGrath was on Ciprolix and that heblacks out when he takes it with alcohol. The Crown does not wish to rely upon this statement to prove Mr. McGrath was impaired bythe voluntary consumption of Ciprolix. The toxicology urine screen conducted by Ms. Solbeck ruled out the ingestion of Ciprolix.Instead, the Crown wants me to rely upon Mr.

McGrath’s admission to having black outs, which is relevant to his credibility, as hetestified before me that he has never had a black out. [24] I cannot, however, consider the statement made to Cst. Keen. At the outset of the trial I received an admission that the statementsto the Drug Recognition Evaluator, Cst. John Rozich, were voluntary. No such formal admission was made with respect to statementsmade to other police officers, and no voir dire was conducted into the voluntariness of such statements. The law is settled.

There is anabsolute obligation on the Crown, absent a clear waiver of a voir dire, to prove voluntariness beyond a reasonable doubt, even in theabsence of an objection: R. v. Erven (SCC), [1979] 1 S.C.R. 926, 1978 SCC 19 . In this case I did not initiate apre-admission voir dire when the statement was being offered, as I could have under the authority of R. v. Hodgson (SCC), [1998] 2 S.C.R. 449 at para. 44, 1998 SCC 798 . I did not as this statement was admissible to support the grounds for aDrug Recognition Evaluation demand.

I had no indication before me when this conversation was being relayed to me that it would berelied upon by the Crown for other purposes. In any event, absent proof of voluntariness during a voir dire, or a clear waiver andadmission of voluntariness, this statement is not admissible to contradict Mr. McGrath’s testimony. [25] Second, there is the statement by Mr. McGrath to the Drug Recognition Evaluator, Sgt. Rozich, about sniffing Ritalin. Thestatements to Sgt. Rozich were admitted to be voluntary and they are admissible. Here, however, Cst. Keen and Sgt.

Rozich, both ofwhom heard the comment, narrate it differently. Cst. Keen said that Mr. McGrath said that he sniffed Ritalin three days ago and has doneso in the past. Sgt. Rozich reported that Mr. McGrath said he did snort some Ritalin, and when asked why said “I am a man that likes totry different things.” In the end, nothing turns on the differences in detail that I have just described. The statement cannot be relied uponas an admission of drug ingestion on this occasion as the urine screen came back negative for Ritalin. I find, however, that Mr.

McGrathmade a comment about snorting Ritalin, a point I will come back to. [26] This, then, leaves the evidence relating to the condition of Mr. McGrath’s nostrils. Cst. Keen testified that he was present whenthe Drug Recognition Evaluator shone a flashlight up Mr. McGrath’s nose. Cst. Keen was asked to look. Cst. Keen said he could seewhat appeared to be a white flaky substance, or a red and white substance, inside both of Mr. McGrath’s nostrils. Cst. Robillard, theIntoxilyzer Technician, who was also present and who looked up Mr. McGrath’s nose said he saw essentially the same thing.

Cst.Robillard was more precise than Cst. Keen, saying he observed the red “crystallization” in one area of the left nostril. Sgt. Rozich, theDrug Recognition Evaluator, said that he saw a white powdery substance in Mr. McGrath’s nasal area. He described it as an off colouredgranular substance, with the left nostril containing a finely ground red powder material, and a patch on the inner wall that contained around object resembling a pill. [27] I believe the testimony of the officers. They were not challenged on their testimony about this observation, and I have no doubtthat Mr.

McGrath’s nostrils did contain the material described. What use if any can be made of this, given that no analysis was everdone of the substance? [28] Mr. Konyer, for Mr. McGrath, called this evidence a “red herring” absent proof of what the powder was. While I agree that therelevance of this evidence has been materially compromised by the failure of the police to seize and analyse the substance, I do not agreethat this evidence is so bereft of relevance as to be a “red herring,” In my view, this evidence, even without analysis of the powder, issome circumstantial evidence consistent with recent drug ingestion.

Indeed, given that it is unlikely that powder and apparent pillfragments are apt to enter one’s nose by accident, it is also evidence of voluntary consumption. This is not, in my view, unlike treatingneedle marks on one’s arm as consistent with drug abuse without laboratory confirmation of the substance injected. It is not unlikerecognizing that the presence of a sticky compound surrounding the nose and chin of an impaired person is evidence consistent with glueinhalation, even where that compound has not been tested. Drug sniffing can leave residue, just as glue sniffing can.

That is why DrugRecognition Evaluators are trained to examine the nasal area.

[ 29 ] Ultimately, the presence of a powdery substance in Mr. McGrath’s nasal cavities has to be considered in the context of other proof. This is a case in which there is uncontested evidence that Clonazepam, which comes in pill form, was ingested by him. There is also evidence before me that one mode of ingesting pills is to crush them and snort them. The presence of a powdery substance inside Mr. McGrath’s nose, while incapable on its own of affirmatively proving voluntary ingestion of the Clonazepam, is not red herring information. It is some evidence consistent with voluntary consumption of drugs.

Coupled with the evidence showing that the only drug in his system was Clonazepam, it is some evidence consistent with the voluntary consumption of Clonazepam. [ 30 ] What, then, does the evidence amount to, bearing in mind the principles in R. v. W.(D.) ? [ 31 ] Beginning with stage 1 of the W.(D.) analysis, I find that I do not affirmatively believe Mr. McGrath’s assertion that he did not ingest Clonazepam. Mr. McGrath has little memory of what happened. He is not even sure what alcohol, if any, he consumed at Barefax and Zaphods. How can his testimony about not having voluntarily consumed drugs be relied upon?

Indeed, even he responded when asked if he had taken Clonazepan, “No. Not to my knowledge.” That answer is a concession that he does not know for sure. On reliability grounds alone Mr. McGrath’s cautious denial does not persuade me that he never voluntarily consumed the drug. [ 32 ] I also have sufficient reservations about his credibility, that is to say, his honesty in testifying, that I do not affirmatively believe him. He denied having ever having snorted anything, yet he admitted to the officers that he had snorted Ritalin. I do believe that Mr.

McGrath does remember little of the night in question, but I think he recalls more than he allowed in his evidence. I was troubled by the illogic in his claim that he thought for days after the event that he was being charged with impaired driving by alcohol, even though he claimed a vague memory of being told he “blew” a zero on the Intoxilyzer. I was also troubled by his vacillating answers about whether he remembered driving. Mindful of the care that must be given in acting on demeanour evidence, I was left with the sense that Mr.

McGrath’s answers were studied rather than simply responsive to the questions asked. He seemed to be cultivating his responses to tough questions. These credibility concerns prevent me from believing affirmatively Mr. McGrath’s account. [ 33 ] The pay-dirt question, though, is whether his evidence raises a reasonable doubt about voluntarily intoxication, in all the circumstances. I am convinced that it does not.

While unknown involuntary intoxication scenarios are not impossible to imagine, it is impossible, in my view, to successfully rebut the presumption of voluntariness with testimony from a source who cannot recall what he did in the hours prior to the alleged offence. I appreciate that this may seem unfair. Someone “obliterated” as the result of involuntary intoxication may experience a black out and be left unable to rebut the presumption of voluntary consumption, even where it has happened.

Yet this seems to be the state of the law. [ 34 ] Fortunately, in this case I am left untroubled by the fairness of the outcome because I also affirmatively disbelieve Mr. McGrath’s denial of voluntary consumption beyond a reasonable doubt, independently of the reliability problems that emerge from his lack of recall. His evidence is not credible enough to raise a reasonable doubt about involuntary consumption, particularly not in the face of the nostril powder evidence which I do find weakens his claim of involuntary consumption. [ 35 ] As I have no evidence before me raising a reasonable doubt that Mr.

McGrath may have become involuntary intoxicated, the presumption of voluntary intoxication remains undisturbed. I therefore find Mr. McGrath guilty of each of the offences charged. Released: July 17, 2013 ___________________________________ The Honourable Justice David M. Paciocco