2013 QCCQ 9172, 2013 QCCQ 9172

Unofficial English Translation R. c. Grand-Maison 2013 QCCQ 9172 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL "Criminal and Penal Division" No.: 500-01-069328-125 DATE: March 26, 2013 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE MARIE-JOSÉE DI LALLO, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

Yvan Grand-Maison Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] JD2851 Yvan Grand-Maison is charged with driving his automobile while his ability to operate the motor vehicle was impaired by the effects of alcohol and drugs, thereby causing the death of Ms. Wong and bodily harm to Mr. H. [ 2 ] On the evening of February 21, 2012, around 8:00 p.m., Mr. H. and Ms. Wong were walking along a street in their residential neighbourhood.

The couple were mere steps away from their residence on Cérès Street in Dollard-des-Ormeaux, when they were suddenly hit from behind by the motor vehicle driven by the accused. [ 3 ] Ms. Wong, 73 years old, died from the many injuries she sustained. Mr. H., for his part, sustained multiple fractures and head bleeds. Now, one year later, at 72 years of age, he is in a CSHLD (long-term care facility) waiting for an umpteenth operation to address his multiple injuries and severe head and brain traumas. [ 4 ] The accused admits to consuming 1/4 gram of cocaine around 2:00 p.m. and drinking a few beers during the day.

He admits that, a short time before the tragedy, around 7:30 p.m., he took two Seroquel pills, which had been prescribed for him that very day and were to be taken at bedtime to help with his insomnia. [ 5 ] A few minutes after taking the pills, however, his mother asked him to go buy her some lottery tickets. He got dressed again and left for the corner store. At that moment, he felt that he was quite fit to drive. He had not begun to feel any particular effect from the drug. [ 6 ] On the way home, on Cérès Street near Andras Street, he saw a flash of white light to his right, drawing his attention.

When he averted his eyes for a few seconds, he hit the couple strolling down the street head on. He claims that he did not see anything. [ 7 ] According to the first people on the scene, the accused was in shock, calling for help and crying. In the view of the police officer who arrived shortly thereafter, he was calm and not worked up. His eyes were small and glassy. He spoke slowly and smelled of alcohol. [ 8 ] Nobody witnessed the crash, and no one noticed him or his driving in the moments leading up to the tragedy.

Issues in dispute [ 9 ] Was Yvan Grand-Maison’s ability to operate a motor vehicle impaired from the combined effect of drugs and alcohol when he was returning from the corner store? If so, is there a causal link between this impaired ability to operate a motor vehicle, the death of Ms. Wong, and the injuries sustained by Mr. H.? Submissions of the Parties

Prosecution [ 10 ] The prosecution argues that Grand-Maison displayed a serious degree of recklessness by driving his vehicle to the corner store after ingesting sleeping pills. He knew that he had consumed cocaine and moreover, that he had drunk beer that day. Indeed, the qualified technician's certificate indicates a blood alcohol level of 62mg/100ml of blood at 9:41 p.m. following the breath sample. He knew that his doctor had given him a prescription for Seroquel to treat his insomnia. He did not read the small stickers that the pharmacist had affixed to the pill vial.

He ignored the warnings about the adverse effects of the drug when combined with alcohol and the possibility of dizziness. [ 11 ] The prosecution argues that, taking into account all of the evidence and more particularly the officers' observations, Grand- Maison's behaviour in the breathalyser room, and the fact that he fell asleep in the Centre Opérationnel, it has been proved beyond any reasonable doubt that Grand-Maison's abilities were impaired by drugs and alcohol when he drove. [ 12 ] The prosecution submits that the crash is unexplained and that the version of the accused, who claims to have been distracted by a white light, must be rejected.

Furthermore, it has been proved that Grand-Maison's state contributed in more than a de minimis way to the death of Ms. Wong and to the injuries inflicted on Mr. H. Defence [ 13 ] The defence argues that Grand-Maison was not drowsy that evening. The Seroquel pills had not started to take effect and he was entirely fit to drive. This tragic event was an accident, which may have been caused by the flickering of the defective street lamp that drew his attention from the road for a few seconds. He did not see the couple walking down the street and when he did, it was too late.

Even though he tried to avoid them, the pedestrians were hit head on. [ 14 ] There is no evidence that Grand-Maison's driving just before impact was erratic or inappropriate. The street is not well lit. The street lamp near the impact, which is defective, distracted him. [ 15 ] According to the defence, his calmness in no way confirms any type of impairment. It was normal for him to become drowsy later in the evening.

He agrees with the conclusion of Evaluating Officer Pilette that at 1:05 a.m., he was unfit to operate a motor vehicle because the Seroquel pills had by then taken effect. [ 16 ] The defence argues, however, that Yvan Grand-Maison must be acquitted of the offence. There is no evidence beyond any reasonable doubt that his abilities to drive were impaired by the combined effect of drugs and alcohol around 8:00 p.m.

Law and analysis [ 17 ] The Court must first determine whether, on the evening of February 21, 2012, Grand-Maison drove while impaired by the combined effect of drugs and alcohol. [ 18 ] If the Court finds that the impairment of his abilities to drive has not been proved, then Grand-Maison must be acquitted. [ 19 ] If the Court believes beyond a reasonable doubt that he was intoxicated when he drove, the prosecution must prove that his state contributed to the injuries and the death in more than a de minimis way.

The prosecution need not prove, however, that this impairment of his abilities was the only cause of the tragedy. [1] [ 20 ] Conversely, proof of impaired abilities, by itself, does not necessarily ground a conclusion of a causal link. Impairment of driving ability [ 21 ] In R. v. Stellato , [2] the Supreme Court affirms the Court of Appeal for Ontario judgment on the applicable standard for the burden of proof required to establish impaired driving ability. It finds that proof of a marked departure from what is usually considered normal behaviour is not required.

That is to say, if the evidence establishes any degree of impairment ranging from slight to great, the offence has been made out. [ 22 ]

Section 253 Cr. C. requires proof of mens rea . It must be a voluntary consumption of drugs and/or alcohol knowing that an impairment of driving ability will follow, either because intoxication is the objective or because, out of carelessness, a person continues to consume without worrying about the result. [3] Impairment through medication [ 23 ] Murray [4] states that mens rea for the offence of impaired driving is established as soon as the evidence reveals that the accused voluntarily consumed sedatives and knew that this could impair his or her driving ability.

This is true even if the accused poorly estimated the time before the effects of the sedative would be felt. The accused’s miscalculation does not constitute a defence.

The prosecution does not need to prove that the accused knew that he would be impaired at the relevant moment. [ 24 ] Conversely, if an accused takes medication but is unaware of the effects that this medication may have on him or her and is unable to realize the degree of his or her impairment while driving, then the accused has not formed the mens rea to drive. [5] [ 25 ] In the case of Grand-Maison, we must determine whether his driving ability was impaired when he operated his motor vehicle while returning from the corner store.

Evidence [ 26 ] The prosecution called 16 witnesses to testify, including police officers, civilian witnesses, a pathologist, a doctor, a pharmacist, a mechanic, and a chemist-toxicologist. The qualification of the experts is not at issue.

[ 27 ] Yvan Grand-Maison testified in his defence. Crown evidence [ 28 ] The three first persons to arrive on the scene were alerted by a thud-like sound, like cars crashing. [ 29 ] The first witness was walking nearby and immediately followed the sound to the scene of the incident. He saw the accused in shock and a motionless body on the sidewalk. He tried to take the woman's pulse and, from where he was, noticed the man's body near the snow bank, some fifty feet away. He could see him very well. The accused was speaking on his cellular phone with 911.

When the police officers arrived, the accused was still in shock. At the time of his arrest, however, the accused was calm, unresisting, and no longer crying. [ 30 ] The second witness was smoking a cigarette on his balcony when he heard the sound of a crash. He turned around and noticed boots in the street from his second story balcony. He quickly went down to help. The accused was getting out of his car, crying. He was hysterical. When the police officers arrived on the scene, the accused was no longer crying, he was whimpering.

The accused appeared to be somewhat in shock. [ 31 ] The third person was in her living room that night when she heard a loud noise and then somebody calling for help. She looked out her window and immediately called 911 to report a man who was panicking. She quickly went to the driver. He was yelling. He was circling his car, walking quickly. He was gesticulating a lot. He claimed to be unable to communicate with the 911 dispatcher so she took the cellular phone from the accused. She stayed on the line with 911 to give them as much information as possible on the victims' status.

She tried to help the injured, as did some of the neighbours. In her opinion, her street is well lit. There was a street lamp near the woman and another one near the man. Officers Paquette and Delisle [ 32 ] Officers Paquette and Delisle were the first officers to arrive on the scene mere minutes after the call was placed to 911. They went straight to the victims when they arrived. Each police officer took care of one victim and did not pay any attention to the other people who were there. Their entire focus was on the two victims.

As for the lighting, they testified that, as they administered first aid, they could see each other very well, even though they were several metres apart and their uniforms are a very dark blue. Officer Giroux [ 33 ] Officer Marion Giroux arrived shortly thereafter with her partner Officer Harris. She has been an officer with the Police Department for 16 years. Because her colleagues were already busy working on the victims, she tried to find out what had happened. She noticed the shattered windshield on the car, but the vehicle was empty..

Speaking to the people at the scene, she asked who had been driving the car. Yvan Grand-Maison came forward as the driver. He stated that he did not know what had happened, and that he had not seen anything. [ 34 ] According to Officer Giroux, Yvan Grand-Maison was calm, not agitated. His eyes were small, red, and glassy. He spoke slowly and smelled of alcohol. Furthermore, he appeared to have a furred tongue and lips that stuck together. She then noticed that the window on the driver's side was half opened. She put her head inside the vehicle and observed that the inside of the car smelled of alcohol.

She arrested Grand-Maison because she had reason to believe that he had been operating his vehicle while impaired. He was handcuffed. He walked slowly to the patrol car. He was brought to the Police Centre Opérationnel Ouest. He remained calm during transport. Officer Giroux found him to be abnormally calm considering the tragic event that had just occurred. [ 35 ] It was nearly 8:30 p.m. when they arrived at the Centre Opérationnel. During booking, he spoke slowly. He still had a furred tongue. His walk was still slow. [ 36 ] In the breathalyser room, he was asked to sit on a straight-backed chair.

He sat down, often sideways, leaning on the wall. His legs were completely stretched out and he held his head in his hands. According to Officer Giroux, his behaviour was the same: he was very, very calm and did not speak. He closed his eyes on several occasions. [ 37 ] Because of the breathalyser test results (68mg/100ml and 62mg/100ml), a drug assessment officer was called in. Indeed, in light of Grand-Maison's state, Office Giroux had reason to believe that a combination of drugs and alcohol was causing the impaired abilities. [ 38 ] Grand-Maison went to another room to wait for the evaluating officer.

Officer Giroux saw him doze, wake up and go back to sleep. On a few occasions, she even heard him snore. At 9:55 p.m., he woke with a start and asked her whether psychotropics were drugs. She told him that he could ask the evaluating officer his questions. [ 39 ] The evaluating officer arrived at 10:02 p.m. The accused was ordered to submit to testing. [ 40 ] At 11:52 p.m., the accused was re-arrested following a call from the hospital. Officer Giroux then reread him his rights. She explained to him that he had caused the death of a person while driving impaired as a result of a combination of drugs and alcohol.

At that moment, the accused cried a bit for a few seconds but then leaned his head back on his hand, and fell back asleep. She even heard him snoring around 12:42 a.m. [ 41 ] When cross-examined, Officer Giroux maintained that even though the light from the lamp post was yellowish, she saw that Grand-Maison's eyes were small, red, and glassy. She does not believe that this had been caused by his crying since his eyes were not swollen and his cheeks were dry. Grand-Maison understood the questions put to him very well. He answered correctly, but slowly.

His diction was slow, as though his jaws were sticking together She did not notice any problems with his walk other than the fact that it was slow. There was no loss of balance. [ 42 ] According to Officer Giroux, he slept or looked like he was sleeping in five minute cycles while in the breathalyser room. In the

other room, there was very little conversation and he slept at times while waiting for the evaluating officer. DVD of the breathalyser room [ 43 ] Watching the DVD of the breathalyser room reveals that it was the site of many comings and goings. The room exits onto a very busy hallway. Grand-Maison appears to have trouble sitting in the chair. He appears to have back pain. Officers Giroux and Harris can be seen talking to each other in the room, near him. Grand-Maison is often seen holding his head. He stretches his legs out all the way.

In other words, he sits slightly sideways, with his legs completely extended, his head leaning on the wall. He changes the position of his head, hands, and arms. He does not move his legs as much. When he shifts in the chair, he seems uncomfortable. He always leans on the sides of the chair for support. When the technician returns to the room to take the second breath sample, he immediately attempts to get up. He succeeds, with difficulty, loses his balance somewhat but then steadies himself by again putting his hand on the edge of the chair seat. Finally, he manages to turn around and stand up straight. .

He blows into the device a second time while resting his hand on the counter. Officer Dugas [ 44 ] Officer Dugas is a qualified technician. She notes in her report that Grand-Maison had an unsteady gait, that his eyes were red and glassy, and that he was very cooperative, polite and calm. She adds that he was very calm given the situation. On cross-examination, she indicated that she could not determine whether Grand-Maison's eyes were red as a result of alcohol or because he had cried. Officer Pilette [ 45 ] Officer Pilette is a certified evaluating officer.

His qualification as an expert is not questioned. [ 46 ] On February 21, he was called at 9:30 p.m. by his colleagues to evaluate a case of intoxication caused by drugs because the results of the breathalyser tests were below 80mg/100ml. [ 47 ] At 10:07 p.m., he met Grand-Maison and asked him to follow him to another room to take his tests. He noticed that Grand- Maison walked slowly. Grand-Maison held on to the door frames and smelled slightly of alcohol. His evaluation lasted nearly one and a half hours. He noticed that the accused was sitting crooked and was falling asleep in his chair.

At the end of the assessment, he concluded that Grand-Maison was unfit to drive a car. He therefore ordered a urine sample for analysis. The reconstructionists and the mechanic [ 48 ] The reconstruictionists Officers Stéphane Gauthier and Éric Salvas and the mechanic Patrick Rinfret testified. Ultimately, in light of their analysis, only human factors can explain this crash. [ 49 ] Indeed, nothing about the Pontiac Sunfire's mechanics could have been at issue. The weather conditions were not at issue. The road was dry and in good condition.

The data provided by the airbag module indicates that the vehicle was accelerating during the last 5 seconds before impact and that the speed was 51 km/h. The vehicle was therefore accelerating slowly. The driver never applied the brakes before the crash. The speed limit in this residential neighbourhood is 40 km/h. [ 50 ] According to Officer Gauthier, the victims were walking northward on Cérès Street and, for unknown reasons, they were hit by a vehicle going in the same direction. Cérès Street is lit, but the streetlights are yellowish and not very bright. The street lighting is deficient.

The lamp post near the incident works intermittently, staying lit for about 5 minutes and then shutting off for about the same amount of time. No brightness tests were performed on Cérès Street on the night of the accident. [ 51 ] The street does not have sidewalks, and there were snow and ice banks on either side. At the time of the impact, the victims were in the street because they had no other place to walk. The man was wearing pale khaki clothing and the woman was wearing a royal blue coat. Dr. Ashwin Sairam [ 52 ] Dr. Sairam met with the accused on February 21, 2012. He is the accused's attending physician.

He decided to change his drug treatment completely. He withdrew the drug Cymbalta since it was causing Grand-Maison severe insomnia and replaced it with Seroquel 25 mg, 1 to 3 pills at bedtime, to help him sleep. This drug was prescribed mainly to resolve his insomnia and not to treat his anxiety or depression. [ 53 ] Dr. Sairam does not remember exactly what he told Grand-Maison during this appointment but, given the standards in effect for his practice, he must have explained that he should be vigilant if he intended to drive or if he consumed other substances.

He is certain, however, that he explained the dosages. He indicated that for the first two days he should take only one pill at bedtime. If the expected result was not attained, he could increase the dose on the third day to two pills for two days, and then to three pills, if he still did not get the desired effect. Madeleine Colta, pharmacist [ 54 ] Ms. Colta, the pharmacist, does not remember exactly what she said to Grand-Maison on February 21, 2012, but she knows that when a patient changes medications, especially when one drug is stopped, she always explains the dosage and side effects of the new drug.

Furthermore, she always gives the patient a tip sheet about the new drug. [ 55 ] On the Seroquel tip sheet, the following was written: [ translation ] - Drinking alcohol may increase the effects of the drug. Alcohol should be consumed only occasionally and in small amounts.

... In addition to the intended effects, this product may cause adverse () effects (side effects), including: - occasional headaches ... - dry mouth ... - possible dizziness or drowsiness - be careful and avoid drinking alcohol before driving. [ 56 ] She always tells patients not to be discouraged and that the adverse effects may disappear after one to two weeks. Nathalie Goudreau, forensic chemist-toxicologist [ 57 ] The last witness for the prosecution, Nathalie Goudreau, is a forensic chemist-toxicologist. Her analysis detected three substances in Grand-Maison’s urine, and they were not simply trace amounts.

There was cocaine, quetiapine (Seroquel), and methamphetamine. [ 58 ] Her expert report indicates, among other things, that: [ translation ] Seroquel is a central nervous system depressant with antipsychotic properties that is prescribed mainly for the treatment of schizophrenia and acute manic episodes associated with bipolar disorder. Its most frequently reported side effects are drowsiness and sedation. ...

The effects of a drug and their duration depend on the individual, the method of absorption, the dose absorbed, the presence of other substances, and the circumstances surrounding absorption. [ 59 ] The low amount of methamphetamine found in the urine demonstrates that its use was not contemporaneous with events. [ 60 ] According to Goudreau, the description of Grand-Maison's state by the witnesses does not reveal symptoms consistent with the recent use of cocaine. The presence of cocaine therefore indicates that it was consumed less than twelve hours prior to the incident. Because this

interpretation is based on a urine sample, however, it is difficult to determine exactly when the cocaine use occurred. The fact that Grand-Maison is described by the police officers as being very calm and that he does not move much on the DVD (he hardly moves) grounds an inference that the cocaine consumption was not contemporaneous with events.

It is therefore possible that the cocaine was consumed at 2:00 p.m. [ 61 ] As for the methamphetamine, it was consumed the night before, or at most two nights before, but not in the hours leading up to the crash. [ 62 ] As for the Seroquel, it can be assumed that it was consumed recently. This drug can be used as a sedative to induce sleep and reduce anxiety. The most frequently reported adverse effects are dry mouth, drowsiness, sedation, and also dizziness like that experienced when standing up too quickly. [ 63 ] According to Ms.

Goudreau, Seroquel functions as a central nervous system depressant, which induces sedation. Drowsiness combined with alcohol, which is itself a depressant, compounds the effects on the system. [ 64 ] The adverse effects of a drug are always stronger at the beginning of a course of treatment and when increasing dosage. The 25 mg Seroquel pills are immediate-release tablets. Thus, the full effects are felt a short time after absorption.

There are also extended release tablets that may take up to six hours before the maximum effect of the drug is felt. [ 65 ] The effects of an immediate-release tablet are felt minutes after absorption. It may take up to an average of one to two hours, however, to attain maximum effectiveness. Some people reach maximum plasma concentration thirty minutes after drug absorption, whereas others reach it only after three hours.

Moreover, the effects of the drug begin to be felt before maximum concentration is attained. [ 66 ] Unlike alcohol, quetiapine does not cause any lack of motor coordination. [ 67 ] Her observation of Grand-Maison's behaviour on the breathalyser room DVD leads her to conclude that he looks very calm because he is not moving. . Viewing the DVD does not allow her, however, to confirm whether he was intoxicated. [ 68 ] In light of Officer Giroux’s description of Grand-Maison's behaviour at the scene of the incident, Goudreau associates the slowness with the effects of the Seroquel.

This drug has no effect on intellectual function; sedation is the primary effect. In fact, people who have ascertained that taking this drug does not cause any adverse effects and that their bodies are able to counteract the effects of drowsiness may drive a vehicle. [ 69 ] In therapeutic doses, Seroquel will induce drowsiness. People who take it will be tired, close their eyes, and lose small intervals of time, but it will not affect their intellectual functions. It may slow them down somewhat, but it will not cause them to make inappropriate decisions.

[ 70 ] Following an unrelenting cross-examination, she answered that it was possible that Grand-Maison had been fit to drive his vehicle, but that it was more likely that the opposite was true. That is to say, it was more likely that Grand-Maison was unfit to drive a car that night. [ 71 ] Goudreau was also asked whether there could be a scientific explanation for Grand-Maison's unusual behaviour at the scene of the accident.

She explained that his behaviour – screaming, described as hysterical, crying, walking rapidly in circles around his car and then, a few minutes later, becoming extremely calm – might have been caused by an adrenaline rush that peaked for five minutes and then tapered off. This may also explain the theory of drug absorption. [ 72 ] When examined on the effects that adrenaline could have on the human body, she indicated that here, as in any other circumstance, stress levels increase adrenaline, which is in itself a stimulant.

In people who are tired, adrenaline will counter the effects of drowsiness somewhat, for a limited time. [ 73 ] She added that although she has not read any specific studies on the effects of adrenaline when combined with the drug, she could submit a hypothesis. Adrenaline can remain in the system for a longer time in the absence of another molecule to counteract its effect. The effect of adrenaline may drop off more abruptly if there is a molecule in the central nervous system that is a depressant. [ 74 ] Quetiapine has a significant sedative effect, especially at the start of treatment.

The number of pills that were taken must also be borne in mind. Someone with a low tolerance for this drug will feel very significant effects from a single pill. [ 75 ] In her opinion, Officer Giroux’s description of Grand-Maison is consistent with the combined effect of alcohol and quetiapine, which has a significant effect of drowsiness and sedation. In all likelihood, the combined effect of these two substances had an impact on Grand-Maison's state.

Defence evidence Yvan Grand-Maison [ 76 ] Because Yvan Grand-Maison has presented a defence, his testimony must first be assessed on the basis of the evidence as a whole. [ 77 ] This is what happened on February 21, 2012. Grand-Maison lives with his mother. That morning, as was his habit, he took care of his mother, who has lung cancer. They both got up at 7:00 a.m. and he prepared their breakfasts. Then, around 8:00 a.m., he bathed his mother, dressed her, and settled her in the living room. [ 78 ] Afterwards, he took his shower and left for his appointment at the AMS Clinic.

He has been going to this clinic since August of 2010 for herniated discs and adjustment disorders. He began going to this clinic following a workplace accident, a fall at Rona. [ 79 ] Dr. Sairam met with him around 10:45 a.m. Because Cymbalta, the drug he had been taking for a few months, was making him very anxious, his doctor decided to immediately take him off Cymbalta and replace it with Seroquel. [ 80 ] He told his doctor that he had not slept in over three nights and that he had been having insomnia since November of 2011.

Furthermore, with Cymbalta, he had started consuming cocaine and alcohol again. [ 81 ] He explained to his doctor that the anxiety caused by taking Cymbalta had resulted in a relapse and his drug and alcohol addiction issues had resurfaced. This was why Dr. Sairam immediately took Grand-Maison off Cymbalta and put him on Seroquel. On cross-examination, it became clear that the relapse had begun well before Grand-Maison started taking Cymbalta, in fact in January of 2011, following a break-up, when he took cocaine and alcohol.

The Cymbalta did not help to counter this drug relapse. [ 82 ] On his way out of the doctor's office, he ran into a man called Pierre, a friend he knew from the clinic. They knew each other through the physiotherapy and occupational therapy they had been doing at the clinic together for several months. [ 83 ] Pierre asked him if he could get a lift to Lachine. He told him he was thinking of getting a divorce and asked Grand-Maison to go to the Bar to have a beer with him so that they could continue their conversation. [ 84 ] That was when he began consuming that day.

He drank his first beer and then, around 1:30 p.m., he agreed to share a quarter gram of cocaine with Pierre. He was offered a second beer but refused since he had to go home and prepare lunch for himself and his mother. He got home around 2:00 p.m. [ 85 ] After lunch, they played cards and watched television. Around 3:15 p.m., he went to the SAAQ to dispose of his vehicle for repairs. [ 86 ] Following an accident that occurred on January 1, 2012, his vehicle, a 2003 Pontiac Sunfire, had sustained damage to the hood, bumper and sides.

Because the repairs to his car would take a few months to complete, he did not see the need to pay registration for this period. [ 87 ] After going to the SAAQ, he went to the Jean Coutu pharmacy by car because he was allowed to drive it until midnight that day. [ 88 ] He got to the pharmacy around 4:00 p.m. and submitted the new prescription written by Dr. Sairam that very morning. The pharmacist gave him the medication and explained the nature of Seroquel in general terms. He does not remember what he was told. He then went home.

When he arrived, he read the entire tip sheet he had received from the pharmacist describing the medication, detailing its instructions for use, and listing its adverse effects. He did not see the indications on the vial referring to alcohol consumption and possible dizzy spells. He did not see the small stickers or logos stuck to the pill vial.

[ 89 ] From 4:15 p.m. to 6:00 p.m. he drank two Alberta's Best beers and made supper. Then, around 6:30 p.m., he washed the dishes, had another beer, and watched television with his mother. [ 90 ] Around 7:15 p.m., or 7:30 p.m., he put on his pyjamas and took his Seroquel.

He told the Court that, at that point, he was so [ translation ] “burned out” that he decided to take two 25 mg Seroquel pills. [ 91 ] He took two pills because he was hoping to sleep, since he had slept only two or three hours a night over the last four days. [ 92 ] Once he was in his pyjamas, his mother asked him to go to buy her lottery tickets at the corner store. [ 93 ] He agreed, got dressed again and drove toward Gouin Boulevard in his Pontiac Sunfire.

He went to that specific corner store one and a half kilometres away, even though it was a bit farther, because he wanted to buy some Alberta's Best beer, which was not available at the corner store right next to his home. [ 94 ] He states that he felt perfectly fine when he took the car out. When asked how he felt when he got behind the wheel of his car, he told the Court: [ translation ] "Just like I do now".

He stated that he was fine to drive a car. [ 95 ] He bought the lottery tickets for his mother at the corner store as well as a six-pack of Alberta's Best beer, which he claims were for the following day. [ 96 ] It was on the way home that the tragic events took place. Grand-Maison explained that when he drove along Cérès Street from Andras Street, he saw a flash of light to his right which he thought was a car. But there was no car. When he turned his gaze back, two pedestrians suddenly appeared. He applied the brakes gently and tried to avoid them by turning the steering wheel to the left.

He hit the first person, who fell to the right of the car, and then he tried to slow down as much as possible to prevent the second person, who was on the hood, from sliding to the ground. This person ultimately slid and fell in front of the car. This all happened in a fraction of a second. When cross-examined, he stated that even though it all happened very quickly, he nevertheless had the time to think about being careful not to apply the brakes suddenly when he saw the person on his hood, against his windshield. [ 97 ] He activated the hazard lights and called 911.

He was panicked, in a state of shock, calling for help and crying. He gave his cell phone to a woman who arrived on the scene. He says that he was unable to comply with the 911 operator's requests that he go to see the injured persons because he was scared. The woman therefore went to see the first victim, and he then told her that there was another one farther away. Meanwhile, he walked in circles in the driveway of a home. [ 98 ] He saw the police officers arrive. He describes in surprising detail the actions of Officer Giroux when she in turn arrived on the scene.

If he was in such a state of shock, it is unlikely that he would be able to remember the details that the police officer approached his car on the passenger side then went around to the driver's side, all the way to the window, and then turned around and asked who had been driving the car. He raised his hand and stated that he had been the driver. He gave her his wallet and she asked him to place his hands on the trunk of his car. At the time, he was merely nervous. Officer Giroux spread his legs roughly by kicking them farther apart.

Officer Harris swore and shouted at him, [ translation ] "Are you proud of yourself?" That is when he became scared. Officer Harris completely threw him off, and from that moment on, Grand-Maison withdrew into himself. [ 99 ] Officer Harris renewed his attack, saying [ translation ] "You don't know what to say, huh, big boy?" He was then taken to the patrol car. He explained to the officers that he had herniated discs and that he was having trouble walking because of them.

He states that the officers therefore held him and led him to the car slowly. [ 100 ] Since he did not have his driver's licence in his wallet, he gave them his licence number, which he knew by heart. He was driven to the Centre Opérationnel. [ 101 ] When he arrived, Officer Dugas greeted him and explained the next steps. He was then searched. He understood what he was being told, but he states that by then, he was afraid of the police officers because he had seen too many movies. [ 102 ] Officer Harris scared him and he felt bullied by him because of the way he had shouted at him when he was being arrested.

As a result, he remained fearful throughout. He then called his attorney and he was asked to wait in the breathalyser room. [ 103 ] That part was filmed. He explains to the Court that he was told to sit and wait but he told them that it was difficult for him to remain seated because of his herniated discs. As for his unusual posture, which is apparent in the video, he states that he often sits sideways with his legs stretched out. He favours this position solely because it is the only way for him to sit without having too much back pain.

The posture does not indicate indifference, as Officer Giroux seems to suggest. [ 104 ] At times, he leaned on the wall or remained seated, but he never slept. When he is seen holding his head in his hands, it was only because he had a headache. The lighting was too bright. He was beginning to feel tired. His eyes wanted to close. He thinks that he was starting to feel the effects of the drug. His eyes were heavy, but no more than that. He was nevertheless alert. [ 105 ] After the two breathalyser tests, he was moved to another room to wait for the evaluating officer.

Because he was seated and there was a table in front of him, he leaned his elbows on the table and held his face in his hands; closing his eyes, he felt himself drift off. He fell asleep a few times in front of Officer Giroux. [ 106 ] When Officer Pilette arrived to conduct the tests to determine if he had taken drugs, he explained the steps to Grand-Maison in great detail. Grand-Maison told Evaluating Officer Pilette that he had taken two Seroquel pills, which are antidepressants. He also told him about his herniated discs.

He did not feel it was useful to tell him about the fact that he had consumed cocaine that day because he had taken it over ten hours earlier. He told Officer Pilette about the meals he had eaten that day: four pieces of toast and four eggs for breakfast and lunch. He did not tell him anything about his supper. [ 107 ] Overall, he thought he had done well on the tests. What he was unable to do was the result of his hernias. After the tests, he

provided a urine sample. He was placed in a cell, where he fell asleep. [ 108 ] He outlined his criminal record: impaired driving in 2004, theft in 2004, and a probation violation in 2005. He simplified it somewhat: as he admitted on cross-examination, he had also been convicted of refusing to provide a breath sample, mischief and five counts of fraud in 2004. [ 109 ] During his current relapse with cocaine and alcohol, he has driven his car only when sober.

He does not drive his car when he is [ translation ] "wasted", he says. [ 110 ] In fact, on February 21, 2001, he felt fine to drive even after having consumed a small amount of cocaine during the day, then beer, and then, around 7:30 p.m., two Seroquel pills to sleep. [ 111 ] His own assessment of his state is difficult to believe. Analysis [ 112 ] It appears from the accepted evidence that Grand-Maison was in a state of panic following the tragic events. He was disturbed and stressed.

This state of agitation was caused by adrenaline, which dropped off quickly, leaving in its place a generalized slowness that Officer Giroux characterizes as abnormal. [ 113 ] The toxicologist explains this possible abrupt change of attitude by the fact that there was a central nervous system depressant in his body that counteracted the effects of the adrenaline. [ 114 ] Indeed, the civilian witnesses at the scene of the incident have also confirmed that Grand-Maison was calmer when he was arrested and that he was no longer crying. [ 115 ] Officer Dugas, a police officer for fourteen years and a qualified technician for six, is of the view that he was very calm under the circumstances, considering that he had just hit two pedestrians. [ 116 ] Officer Giroux, a police officer for sixteen years, feels that he was abnormally calm.

He walked slowly. His speech was slow, he appeared to have a furred tongue, and his lips seemed to stick together. He answered the questions well but otherwise did not speak. On several occasions, Officer Giroux repeats: [ translation ] "He was very, very calm." [ 117 ] When Grand-Maison testified in court, however, he spoke at an absolutely normal rate. He does not speak slowly, quite the contrary. [ 118 ] As for his posture in the breathalyser room, the Court does not necessarily attribute it to indifference, but more to the fact that he appears uncomfortable because of his back problems.

Moreover, the fact that he tried to shield himself from the light because he had a headache and held his head in his hands and then closed his eyes several times supports the fact that, in addition to the sedative effect, he was experiencing headaches, one of the known adverse effects of Seroquel. [ 119 ] Another adverse effect of Seroquel, which is a central nervous system depressant, is dry mouth. This is exactly what Officer Giroux noticed at the crash site. [ 120 ] The two Seroquel pills were well on their way to being absorbed when Grand-Maison was returning from the corner store.

He deliberately took two pills rather than the one his doctor had instructed him to take. Further, he had been sleeping only two or three hours a night for the last four days. He told the Court that he had been so [ translation ] “burned out” that he doubled the dose, taking two pills. [ 121 ] Even though he read the Seroquel tip sheet from start to finish when he got home, he ignored the warnings.

This tip sheet indicated that drinking alcohol could increase the effects of the drug and that alcohol consumption should be consumed only occasionally and in small quantities, but he nevertheless decided to continue consuming. He drank two more beers between 4:15 p.m. and 6:00 p.m. and another one with supper around 6:30 p.m. It was his favourite beer – Alberta's Best in a 355 ml can. [ 122 ] The Court concludes that the consumption of alcohol coupled with the ingestion of two Seroquel pills contributed to Grand- Maison’s impairment when driving home from the corner store.

After picking up his prescription, he continued to drink alcohol with no thought or worry about its interaction with the pills. He was warned that alcohol could increase the effects of the drug. He knew that he had to take the Seroquel at bedtime to induce sleep.

Yet he nevertheless decided to take his car to the corner store despite the tip sheet’s warning to [ translation ] "Be careful and avoid drinking alcohol before driving." [ 123 ] The mens rea of the offence of impaired driving has been established because the evidence reveals that Yvan Grand-Maison willingly consumed beer and Seroquel, knowing that this could impair his ability to drive. [ 124 ] His state of intoxication was proved by the fact that he was tired, or as he says, [ translation ] “burned out”. He drank a few beers and he started his Seroquel treatment by taking two pills.

With this combination, it is not surprising that Officers Giroux and Dugas found him to be abnormally calm under the circumstances. He was sedated. At the scene of the impact, it is not surprising that, a few minutes after the initial surge of adrenaline brought on by stress, his speech was slow, his tongue was furred, and his lips appeared to stick together. [ 125 ] The toxicologist established a correlation between the reactions observed by the witnesses and the police officers and the concurrent absorption of the two substances.

Alcohol can increase the effect of the Seroquel pills, which is why the doctor and the pharmacist talked to Grand-Maison about the possible effects of combining the drug with other substances. [ 126 ] The Court concludes that Grand-Maison's ability to drive was impaired when returning from the corner store on the evening of February 21, 2012.

[ 127 ] Now, the proof of impairment alone does not ground a conclusion that there was a causal link. The Court must answer this second question: Did Yvan Grand-Maison's state contribute in even the slightest degree to the death of Ms. Wong and the injuries of Mr. H.?

Proof of the causal link [ 128 ] In matters involving impaired driving causing death or bodily harm, the prosecution must establish that the state of the accused contributed in even the slightest degree to the death or injuries, or in other words, that the accused's state of intoxication contributed, outside the de minimis range, to the death or bodily injury caused to the victims. In R. v.

Nette , [6] Arbour J. of the Supreme Court, after confirming the importance of the test developed in Smithers , suggested a different wording: It is preferable to use positive terms such as ‘significant contributing cause’. [ 129 ] There is no doubt that it was Grand-Maison that hit the pedestrians from behind while driving his car and caused the death of Ms. Wong and bodily harm to Mr. H. Furthermore, the Court concludes that his ability to drive was impaired at the time.

This does not, however, create a causal link between Grand-Maison's state and the death and bodily harm. [ 130 ] All of the circumstances must be taken into consideration: - His car did not have any mechanical issues; - The road was dry; - Cérès Street is in a residential neighbourhood. This street has yellowish lighting.

The light may have been deficient, but all the civilian witnesses at the crash scene report that visibility was nonetheless very good; - The police officers clothed in dark blue uniforms could see each other very well when they were administering first aid to the victims; - In fact, some of the pictures taken by Officer Gauthier, which are darker, give us an idea of the light at the time; - The two pedestrians were walking in the street because of the snow and ice banks on the sides of the street; - The fact that one of them was wearing a royal blue coat and the other was wearing pale khaki and that they were holding bags that were white, among other colours, in their hands; - The fact that his headlights were on; - The fact that Cérès Street is straight; - The fact that he was driving at 51 km/h and slowly accelerating; - The fact that the street lamp near the crash was defective; - The fact that the brake pedal was never touched at the time of impact.

Conclusion [ 131 ] Grand-Maison should have spotted the pedestrians well before crossing Andras Street. Indeed, he had been driving on Cérès Street since Sunnybrook. Therefore, even though the streetlight near Andras Street was defective and it is possible that it suddenly lit up as Grand-Maison passed it, thereby distracting him, he should have seen the pedestrians well before that. This distraction may have contributed to the fact that he could not avoid them at the last minute. The effect of the sedative decreased his vigilance.

His slowness coupled with the fact that he claims to have been distracted by a glare or flashing lights means that his reflexes were not at their best. There is no doubt that the accused's condition was at issue in the tragic incident. [ 132 ] The explanation given by Grand-Maison for the cause of the crash cannot, in itself, explain the crash. Furthermore, the Court does not believe him when he claims to have been absolutely fit to drive that night. Even though the Court accepts the version of the facts whereby the glare of the light suddenly drew his attention, the rest of his story remains unlikely.

A glare of light distracted him. He turned his head and realized that he had just hit a pedestrian, who fell to the right of his car. In the following fraction of a second, he analyzed that he should press on the brake pedal gently and slowly to prevent the other pedestrian, who had just shattered his windshield and was lying on his hood, from suddenly falling to the ground. It is unlikely that he reacted this way.

This version does not raise a reasonable doubt in light of the overall evidence. [ 133 ] The impairment of Grand-Maison’s ability to drive because of his drowsiness resulted in the accused not seeing the pedestrians, who were walking with their bags in the street. Before the impact, his drowsiness had decreased his ability to gauge his environment quickly. He even failed to brake. [ 134 ] It is not necessary for the prosecution to establish that Grand-Maison's impairment was the only cause of the tragic crash.

It is enough that this state contributed to the result in more than a de minimis way. [ 135 ] Parliament requires only that there be impairment of the ability to drive, not a [ translation ] "marked" impairment. [ 136 ] That night, Grand-Maison made the wrong choice by driving his car to purchase buy lottery tickets and six cans of beer. He knew that he was very tired, that he had drunk several beers, and that he had just taken two pills of a new sleep medication, whose side

effects were still unfamiliar to him. [ 137 ] Unfortunately, he was very near his home when the crash and its tragic consequences took place. [ 138 ] The Court concludes that his intoxication from consuming alcohol and the medication contributed in a more than de minimis way – in fact in a significant way – to the death and injuries. [ 139 ] This impairment of his ability to drive is what prevented him from seeing the pedestrians walking in the street and being unable to avoid them. Yvan Grand-Maison is therefore convicted of having caused the death of Ms. Wong and having caused bodily harm to Mr.

H. __________________________________ MARIE-JOSÉE DI LALLO, J.C.Q. Mtre Dennis Galiatsatos Crown Prosecutor Mtre Alexandre Paradis For the accused