Her Majesty the Queen - v. -, 2011 SKPC 156

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 156 Date: October 11, 2011 Information: 24432183 Location: Creighton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clinton Darrel Rempel Appearing: Ed Stephens For the Crown Greg Baumann For the Accused JUDGMENT F.M. DAUNT , J [ 1 ] Clinton Darrel Rempel stands charged that he did, on or about the 30 th day of November, 2010 at Creighton, while his ability to operate a motor vehicle was impaired by drug, operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code . FACTS [ 2 ] On November 28, 2003, a date he will always remember, Mr. Rempel was in an industrial accident and permanently injured.

[ 2 ] On November 28, 2003, a date he will always remember, Mr. Rempel was in an industrial accident and permanently injured. He walks with a cane as a result of the accident. His left eye was also injured, resulting in a lens implant. He wears prescription eyeglasses. Since the accident, he has had a series of surgeries and has been prescribed medication to help with pain management. He has been prescribed codeine, diazepam and Flexeril®. He took these as prescribed. The medications carry a warning label to the effect that they may cause drowsiness.

The warning cautions the patient to “use caution before operating any machinery and refrain from driving until you know how the medication will affect you”. Mr. Rempel says that in the seven years he had been taking this medication, he did not experience any side effects that caused him to doubt his ability to operate a motor vehicle. [ 3 ] Toward the end of November 2010, Mr. Rempel was prescribed an additional medication, Restoril®, as he was suffering from insomnia as a result of his chronic pain. The doctor did not warn him specifically about operating a motor vehicle if he was taking this medication, but Mr.

Rempel acknowledged that the drug contained the same type of warning as his other medications. [ 4 ] The night of November 29 th , Mr. Rempel took a Restoril® tablet before he went to sleep. The prescription said to take one at bedtime. He recalls one night where he felt the medication wasn’t working, and so he took another one, possibly around 3:00 a.m. He wasn’t sure what night that was, but it might have been the night of November 29 th . He has never taken more than two doses of Restoril® . [ 5 ] The next morning, obviously still under the influence of the Restoril®, it would appear that Mr.

Rempel took two sets of car keys and his dog and began operating his motor vehicle. He did not take his glasses, his wallet, or his walking stick, all of which he needed to get by day to day. He does not remember this, but the police officer observed no walking stick, and Mr. Rempel saw his wallet and glasses at home on his kitchen counter after the ensuing events. [ 6 ] Mr. Grant Taylor is a local taxi driver. Around 9:00 a.m. on November 30, 2010, he was on his way to Denare Beach to pick up a medical fare. He observed Mr. Rempel driving toward him in his lane. Mr. Taylor started braking. Mr.

Rempel looked straight at Mr. Taylor and then moved back into the correct lane. It was daylight and the weather was clear. [ 7 ] Mr. Taylor continued on. He picked up his fare at Denare Beach. He was proceeding back to Flin Flon when he observed Mr. Rempel’s truck in the ditch, with a Good Samaritan helping to extricate him. Concerned, Mr. Taylor waited until Mr. Rempel’s truck got moving again. He followed him. He saw the accused weaving back and forth across the road. He beeped at him, and saw the accused look at him in the rear-view mirror.

He radioed his boss to phone the Creighton police, which he did at 9:20 a.m. Mr. Taylor continued to follow Mr. Rempel, beeping at him the whole way. Mr. Rempel remembers nothing of this. [ 8 ] Mr. Rempel drove into Creighton, where Mr. Taylor grew even more concerned. He observed as the accused veered across the street near some parked cars, and then skidded into a stop sign by Hooters. Mr. Taylor, still in his taxi, approached Mr. Rempel and said “Do you want to park that?” Mr. Rempel replied that the dog was distracting him. Mr. Taylor repeated “Park that vehicle”. Mr.

Rempel brought the truck around and left it idling, but did not turn the engine off. Mr. Taylor got out of his taxi and opened Mr. Rempel’s passenger door. He took the keys out of the ignition. Mr. Rempel produced another key and put it in the ignition. Mr. Taylor, now on Mr. Rempel’s driver’s side, reached in the window and put his arms around the steering column. There was a sheathed knife on the seat, which Mr. Rempel gripped, but did not take it out of its sheath. [ 9 ] There was some further struggle, and then Mr. Taylor returned to his taxi. Mr. Rempel does have a vague recollection of this confrontation.

From his point of view, he remembers someone trying to get into his truck, basically attacking him. He did not know what the man wanted and tried to push him away. He told the man he had a knife to frighten him away. [ 10 ] When Mr. Taylor went back to his taxi, Mr. Rempel turned the truck around and drove back down Main Street, back toward Denare Beach. Sergeant Savarin drove by and Mr. Taylor waved him down. He told him about the knife and the direction Mr. Rempel was heading. The sergeant told Mr. Taylor that the police would take it from there. [ 11 ] On a side note, at the relevant time, Mr.

Rempel testified that he was in the process of moving to a cabin in Denare Beach, Saskatchewan. That would explain his driving back and forth between Creighton and Denare Beach on November 30 th . However, none of the witnesses observed any activity that is consistent with moving belongings, such as loading items into the truck, or stopping at a certain place to collect items. Rather, Mr. Rempel seemed to be driving aimlessly back and forth between Denare Beach and Creighton.

Mr. Taylor was certainly in a position to observe whether or not Mr. Rempel picked up some stuff and put it in the truck. Rather, he saw Mr. Rempel drive into Creighton, and then turn around and drive back toward Denare Beach. [ 12 ] About ten kilometres out of Creighton, Sgt. Savarin observed Mr. Rempel’s truck cross over the yellow centre line completely into the lane of oncoming traffic. Another vehicle was coming over the hill, and had to swerve into “its left lane” to avoid a collision. [ 13 ] Sgt. Savarin pulled the truck over. Because there was a complaint of a knife, they told Mr.

Rempel to lie on the ground. Mr. Rempel complied, although he did this slowly and showed poor balance. He was placed in handcuffs. He was placed under arrest for an assault with a weapon and impaired driving. There was a sheathed knife in the handle of the door and three pill bottles, prescribed to Mr. Rempel. Of this episode, Mr. Rempel vaguely remembers flashing lights and being on the ground. [ 14 ] Sgt. Savarin had a suspicion that Mr. Rempel had been drinking, and asked him when his last drink was. Mr. Rempel couldn’t remember, and said “a while ago”.

When given a list of options regarding the time of his last drink, Mr. Rempel chose “five hours ago”. Sgt. Savarin made a demand for a breath sample. While filling out the check sheet at the Flin Flon Detachment, Sgt. Savarin asked Mr. Rempel what the time of day was. Mr. Rempel replied that he thought it was 5:00 or 6:00 p.m. It was actually closer to 11:00 a.m. When asked the date, Mr. Rempel incorrectly replied that it was the 29 th . Mr. Rempel gave a breath sample, which resulted in an alcohol reading of zero, meaning that he had no alcohol in his bloodstream. [ 15 ] At this point, Sgt.

Savarin became concerned for Mr. Rempel’s health, because he was still showing signs of impairment. As a result, he took him to the Flin Flon hospital to be examined by a physician. Sgt. Savarin was present during the examination. When the doctor told Mr. Rempel to stand on one leg, he lost his balance immediately. Mr. Rempel said that was his bad leg. However, when the doctor asked Mr. Rempel to close his eyes and stand before him, within seconds Mr. Rempel lost his balance and the doctor had to catch him to prevent him from falling. Mr. Rempel remembers none of this. [ 16 ] A blood sample was taken from Mr.

Rempel as part of the examination. Pursuant to a warrant, the police seized the blood remaining after the hospital had done their tests. Because of the sample size, the Toxicology Services could deliver only a qualitative analysis. That is, they could say which drugs were in Mr. Rempel’s system, but not how much of each drug. The report shows that Mr. Rempel’s blood contained codeine, diazepam, temazepam (Restoril®), oxazepam and cyclobenzaprine (Flexeril®). Mr. Rempel was prescribed all of these medications, except for oxazepam. He was not sure what that is.

I note from the toxicology report that oxazepam is a metabolite of both diazepam and temazepam. That means that it is a product formed in the body after the prescribed drug is metabolized or broken down. In other words, the fact that it was in his body does not mean he ingested it independently of the other drugs in his body. [ 17 ] Eventually Mr. Rempel was released to his sister-in-law, who took him home. He recalls seeing his glasses and his wallet on the counter and thought that was unusual, as he needs his glasses and his wallet. He didn’t remember leaving the house.

After the incident, he was scared by what happened and didn’t want it to happen again, so he threw away the Restoril®, and no longer takes it. Now he takes codeine, cyclobenzepine and Imitrex®. Before the Restoril® was prescribed, he had no trouble operating a motor vehicle. Since he has stopped taking it, again he has no trouble operating a motor vehicle. He has been on an undertaking since the date of the offence. Originally, one condition was that he not operate a motor vehicle.

With Crown consent, that was amended on June 14 th to allow him to operate a motor vehicle, but added the conditions that he abstain from the consumption of benzodiazepine (which includes Restoril®) or any drug except as prescribed by a physician. Since then, he has been driving without incident. [ 18 ] I find that Mr. Rempel took his medication as prescribed. He may have taken a second sleeping pill when the first one didn’t work. However, I find that to be within the bounds of proper use of medication. There was no recklessness in that decision. It is clear from the evidence that on November 30 th , Mr.

Rempel was still under the influence of the sleeping pill he took the night before. I find that Mr. Rempel had no way to foresee the effect the sleeping pill would have on him the next morning. I find that on November 30, 2010, he did not have the capacity to make any decisions whatsoever. Specifically, he did not have the capacity to form the intention to operate a motor vehicle. ISSUES [ 19 ] The Crown has proven beyond a reasonable doubt that Mr. Rempel operated a motor vehicle, and that he did so while he was impaired by a drug or drugs.

Defence submits that, on these facts, the Crown has not proven that the act was a voluntary one. In effect, defence submits that Mr. Rempel was in a state of non-insane automatism and therefore was not criminally liable for his actions. In

support of his position, counsel filed the cases of R. v. Parks , [1992] S.C.R. 871 and R. v. Chaulk , 2007 NSCA 84 . [ 20 ] The Crown replies that the accused voluntarily consumed drugs and that he was aware they could impair his ability to operate a motor vehicle. The Crown submits that

section 33.1 acts as a bar to the defence in any event. ANALYSIS [ 21 ] It is clear that Mr. Rempel had no capacity to form even the minimal intent required for this offence, whether it goes to actus reus or mens rea . The only issue in this case is whether Mr. Rempel is denied a defence to the charge because of his voluntary consumption of prescription drugs. [ 22 ] Both Crown and defence referred to

section 33.1 of the Criminal Code of Canada .

Section 33.1 deals with voluntariness and mens rea , both of which are at issue in this case. The

section reads:

(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(3) This

section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person. [ 23 ] I cannot agree that this

section applies to the offence of impaired driving. Generally speaking, it applies to crimes of violence or assaultive behaviour. Mr. Rempel did not interfere with the bodily integrity of another person. While I agree that the manner of his driving created a substantial risk that someone would be hurt, a risk is different from a threat. Essential to a threat is some act of communication. A threat is a word,

an act or a gesture which communicates to another person that the accused will harm them immediately or in the near future. That element of communication is not present in this case. [ 24 ] However, although the

section does not technically apply, its principle is similar to the body of case law that has developed regarding the elements of the offence of impaired driving. Whether it goes to actus reus or mens rea , the cases are clear that voluntary intoxication will afford no defence to impaired driving. It is not, however, an absolute liability offence. Some degree of intention is required, whether it be in the intoxication stage or the driving stage of the offence. [ 25 ] Mr. Rempel voluntarily consumed the drugs that were prescribed to him, for the purpose they were prescribed.

However, he had no way to foresee the effect the drugs would have on him the next morning. In R. v. King , [1962] S.C.R. 756 , 133 C.C.C. (cited in Chaulk , supra ), the accused was given sodium pentothal at his dentist’s office prior to a procedure. He was warned twice, both before and after the procedure, not to drive a car. He did not remember these warnings, and had no knowledge of the effect the drug would have on him. He drove away from the dentist’s office, passed out behind the wheel, and was involved in a motor vehicle accident.

In upholding his acquittal, Ritchie J. wrote at paragraph 63: The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are two different things, and I am of the opinion that when 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 a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 [now s. 253] and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.

If the driver's lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment which results by saying that he did not intend to get into such a condition, but if the impairment has been brought about without any act of his own will, then, in my view, the offence created by s. 223 cannot be said to have been committed.

The existence of a rebuttable presumption that a man intends the natural consequences of his own conduct is a part of our law, but its application to any particular situation involves a consideration of what consequences a man might be reasonably expected to foresee under the circumstances. [emphasis added] [ 26 ] Mr. Rempel had been on a combination of medications for seven years, with no effect on his ability to operate a motor vehicle. Shortly before the events in question, he was given an additional prescription for Restoril®, for the purpose of treating his insomnia. This was not a recreational drug. Mr.

Rempel did not take it other than as prescribed. Even if he took a second pill because he felt the first one wasn’t working, he did this, not to become intoxicated, but to allow him to sleep. He took it at home, at night, in circumstances in which he could not reasonably foresee a danger that he would operate a motor vehicle. His behaviour was in no way a marked departure from responsible prescription drug use. [ 27 ] When he woke up the next morning, he simply had no capacity to form a conscious intent to drive. He left his glasses and wallet and walking stick at home, but he took his dog with him.

He did not know what time of day it was. Although he had been in the ditch and hit a street sign, he could not understand why Mr. Taylor was talking to him. His behaviour shows that he had no appreciation of his actions whatsoever. When he took the sleeping pill the night before, he had no way of foreseeing what effect it would have on him the next day. He did not take the pill as an intoxicant, he took it as a sleep aid, with the intention of going to sleep, and that is what he did. He went to sleep.

I cannot believe the law requires him to hide his car keys on himself or disable his vehicle in some way when he goes to bed on the mere possibility that he may get up under the influence and do something irrational. I find that his intoxication was not “voluntary” in the sense that attracts criminal liability. [ 28 ] In conclusion, although the mens rea required for the offence of impaired driving is a minimal one, usually proven by a common sense presumption of fact, I find that in this case, that presumption has been rebutted.

He had no way to foresee that the drug would affect him in the way it did the next day. When he got up the next morning, he had no appreciation of his actions because of the drug, which he consumed responsibly. [ 29 ] On the specific and unusual facts of this case, therefore, I find the accused not guilty. F.M. Daunt, J