Her Majesty the Queen ) Marnie Evans ) for the Crown ) v. ), 2018 MBPC 47

2018 MBPC 47 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) Marnie Evans ) for the Crown ) And ) ) Michelle Justine GORDIEV ) Mark Wasyliw ) for the Accused Accused ) ) ) Reasons for Decision delivered: ) November 29, 2018 at the City of ) Brandon, in the Province of ) Manitoba Hewitt-Michta, A.C.J. Introduction [1] Michelle GORDIEV is charged with impaired driving arising from a collision with another vehicle. She testified, admittingimpairment of her ability to drive by prescription sleeping pills but denying her actions were voluntary or intentional. [2] Ms.

Gordiev spoke with a police officer after the collision. Whether her statements were the product of an operating mind and,therefore admissible, must be determined. [3] This case requires the application of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 to the evidence of Ms. Gordievalong with consideration of whether the defence evidence rebuts the presumption of mens rea arising from voluntary consumption ofintoxicating substances. The Evidence Garrett Hintz [4] Garrett HINTZ was stationary at a red light in Brandon when he first noticed Ms. Gordiev’s vehicle.

She was travelling towardsthe intersection and did not appear to be slowing for the red light. When she did stop, it was beyond the stop line and halfway into theintersection. At a subsequent intersection, Ms. Gordiev rear-ended Mr. Hintz’s stopped vehicle causing significant damage.

[ 5 ] Mr. Hintz noticed a large round fracture to Ms. Gordiev’s front windshield and believed she likely hit her head on the windshield during the collision. She admitted drinking a single glass of wine with supper. When Mr. Hintz mentioned calling emergency services, Ms. Gordiev insisted this was unnecessary. He felt this was unusual given she was obviously injured. Otherwise, he said Ms. Gordiev did not speak to him at the roadside. She appeared to have a bleeding injury to her finger and bloody scratches on her forehead. [ 6 ] A cat escaped from Ms. Gordiev’s vehicle when she opened the door.

She was preoccupied with retrieving the cat until emergency services arrived. [ 7 ] Mr. Hintz told police at the scene of the accident that Ms. Gordiev was “ very loopy ”. When he testified in court, he described her as “ a little out of it; not really one hundred percent ”. He was not concerned about her sobriety but did wonder if she might have a concussion or head injury from striking her head against the windshield. She did not appear to have difficulty running after her cat. [ 8 ] Mr. Hintz could not recall what Ms. Gordiev was wearing, including whether she was wearing pyjamas.

He was never close enough to Ms. Gordiev to detect whether she smelled of liquor. [ 9 ] Mr. Hintz was a credible witness who appeared to offer reliable evidence. He testified in a straightforward manner; did not appear to exaggerate or guess when answering questions; and was unshaken in cross-examination. Constable Conway [ 10 ] Constable Amanda CONWAY has experience dealing with persons under the influence of alcohol. She attended the collision and interacted with Ms. Gordiev at the scene. [ 11 ] Constable Conway observed significant damage to Ms. Gordiev’s vehicle. The hood was pinned under the rear of Mr.

Hintz’s truck. There was damage to the front windshield and blood inside her vehicle. There was a cat on scene. [ 12 ] Constable Conway was familiar with Ms. Gordiev, having dealt with her previously, always when Ms. Gordiev was intoxicated. [ 13 ] The officer observed paramedics assisting Ms. Gordiev to the ambulance and noted an odor of liquor on the breath of Ms. Gordiev. The Constable watched Ms. Gordiev stumble backwards on her first attempt to step into the ambulance. Emergency personnel helped her into the ambulance where she sat on a chair. A paramedic tried to assess the injury to Ms. Gordiev’s hand.

She was refusing treatment while paramedics told her it was serious and required attention. Ms. Gordiev gestured with her hands whilst speaking and Constable Conway witnessed her lose balance. [ 14 ] Constable Conway described Ms. Gordiev as “ obnoxious” and “ out of it ” as well as “ emotionally unstable ”. She observed her eyes to be red and glossy. She was unsteady on her feet as evidenced by the stumble while attempting to enter the ambulance. The officer noted Ms. Gordiev’s speech to be slurred, consistent with alcohol consumption. At the hospital, the officer observed Ms.

Gordiev to be disruptive and loud in the emergency room. Staff told Ms. Gordiev to be quiet a number of times. She tried to get out of bed but hospital staff intervened. She rambled while speaking with the investigator. [ 15 ] Constable Conway testified Ms. Gordiev’s behaviour was “ a little more amplified ” during this incident, but otherwise similar to what the officer witnessed on previous occasions when Ms. Gordiev was intoxicated. [ 16 ] The officer was unable to articulate with any specificity what or how particular words or phrases were slurred. She could not recall having to ask Ms.

Gordiev to repeat words or phrases. She was never concerned that Ms. Gordiev was confused or could not understand information provided or questions asked. Ms. Gordiev appeared oriented throughout the incident and her responses were logical to the questions asked. [ 17 ] Constable Conway saw no evidence of a head injury nor was one identified to her by hospital staff. The officer took custody of Ms. Gordiev when discharged that evening. She inferred from the bleeding injury to Ms. Gordiev’s hand and lack of visible injuries to her head that it was Ms.

Gordiev’s hand, not head, that struck the windshield but conceded she lacked the training or expertise to conclude this with certainty.

[ 18 ] Constable Conway testified Ms. Gordiev was not wearing clothing identifiable as pyjamas. [ 19 ] The investigator arrested Ms. Gordiev at the hospital for impaired driving. When asked if she understood her

section 10(

a) Charter rights, Ms. Gordiev said, “ I understand what impaired driving is ”. In response to whether she understood her

section 10(

b) Charter rights, she indicated, “ yes ma’am ”. When asked whether she wished to contact counsel, she said, “ I’ll call Legal Aid ”. She confirmed understanding the police caution by indicating “ yes” . She spoke with a lawyer for approximately fifteen minutes. She responded to a blood demand saying “ absolutely not ”, adding the lawyer had advised her to refuse. [ 20 ] Ms. Gordiev told the investigator she had consumed a regular bottle of wine starting at about 2:30 PM and that she took two zoplicone sleeping tablets at approximately 6:00 PM and went to bed.

She said she “ all of a sudden woke up ” at the scene of the accident. When they could not retrieve her cell phone at the hospital, she told the officer she remembered taking her cell phone with her when she left her house that evening and placing it in the console of the vehicle. [ 21 ] Constable Conway was a credible witness who appeared to provide reliable evidence. She made reasonable concessions during cross-examination with respect to lack of specific notes about the slurring in Ms. Gordiev’s speech and lack of expertise in terms of assessing whether or not Ms.

Gordiev sustained a head injury during the accident. Her evidence was not otherwise shaken during cross- examination. The Accused [ 22 ] Ms. Gordiev testified both in respect of the voluntariness voir dire and on the trial proper. [ 23 ] She has a class one driver’s license and works alternating day and night shifts in her employment as a transit operator in the City of Brandon. [ 24 ] Years of shift work impaired her sleep function and she began taking two 7.5 mg zoplicone sleeping pills daily ten years ago continuing until sometime after this accident.

She denied receiving any warnings from doctors or pharmacists about potential side effects but admitted years before this accident she became aware of warnings on the pill bottles indicating the medication could cause drowsiness and cautioning not to operate machinery. [ 25 ] When she began taking zoplicone , she said she experienced a singular incident of sleepwalking where she reportedly walked out onto Portage Avenue in the City of Winnipeg resulting in a witness calling emergency services.

She described waking up “ a handful of times ” to find she had prepared and eaten food and left messes, including dirty and even broken dishes while asleep. During direct examination, Ms. Gordiev denied combining alcohol with zoplicone on any of those occasions but in cross-examination conceded that while she did not recall specifically doing so, it was possible on one or more of these occasions she had consumed alcohol as well as her zoplicone pills. [ 26 ] Ms. Gordiev said on July 28, 2017, she worked a day shift from 6:00 AM until 2:00 PM after which she went home and followed her typical routine.

She cleared up her lunch dishes, prepared her lunch for the following day at the same time as her dinner for that evening, made some telephone calls, and spent time on Facebook . Following this, she tidied up her home, got ready for bed, set an alarm for the next morning knowing she had to be at work by 5:30 AM, took two zoplicone pills, donned a sleep mask, and went to bed. [ 27 ] Because it had been “ a bad day”, Ms. Gordiev poured herself some wine early in the afternoon.

She maintained she consumed only two glasses of wine and said she is confident of this because when she returned home the following day there was a half bottle of wine remaining. [ 28 ] Ms. Gordiev insisted she finished her wine by 3:30 in the afternoon and was not feeling its effects when she later took her zoplicone and went to bed. She asserted she had no plans to leave her home that evening in her vehicle and that she does not take her cat with her in the vehicle unless she is leaving Brandon. [ 29 ] Ms.

Gordiev testified her next memory was of looking down at her hand in the hospital having no idea what had happened. She

denied any memory of the accident or of speaking with police and claimed only a hazy recollection of using a telephone in the hospital to speak with a lawyer. [ 30 ] The injury to Ms. Gordiev’s hand required 38 stitches. She was cleared and released to the care of police following treatment. She was critical of the treatment she received from hospital staff, accusing them of releasing her prematurely and causing a serious infection requiring antibiotics. Ms. Gordiev testified she felt ill in the days that followed including headaches, nausea, and a sensitivity to light which she says endures somewhat to this day.

Her evidence, if believed, invites an inference she may have suffered a concussion during the accident. [ 31 ] I have concerns about the credibility of Ms. Gordiev and the reliability of her evidence, which I will return to later in these reasons. Doctor Sitar [ 32 ] Doctor Sitar testified for the defence, having been qualified as an expert in pharmacology. He never examined or interviewed the accused. He did not speak or consult with the accused’s physician(s).

He testified generally to the nature, effect, intended uses, and possible side effects of zoplicone . [ 33 ] According to Doctor Sitar, zoplicone is synthesized as a replacement for benzodiazepines – it is chemically different but pharmacologically acts on nerve cells in the same way as benzodiazepines . Zoplicone is commonly used as a sedative hypnotic to help people fall asleep and is used as an anti-anxiety medication. It is a central nervous center depressant that slows the brain, reducing anxiety, helping the individual to fall asleep and remain asleep.

This type of medication is sometimes used in combination with opioid medications to achieve conscious sedation – to keep someone from recollecting unpleasant things that occur during a medical procedure. [ 34 ] The strongest recommended adult dose according to the Compendium of Pharmaceuticals and Specialities is 7.5 mg. Doctor Sitar clarified this does not mean zoplicone is never prescribed in higher doses. Dosage may vary with the particular circumstances of the patient.

Zoplicone is typically produced in 7.5 mg tablets. [ 35 ] Doctor Sitar testified a concern with higher doses is they are likely to result in a greater incidence of anterograde amnesia, which is unpredictable. It occurs more commonly with higher doses than lower ones. Doctor Sitar said he might be concerned about Ms. Gordiev’s prescribed two 7.5 mg tablets of zoplicone but would have to rely on her physician for the justification because the prescribing physician knows Ms.

Gordiev’s specific circumstances. [ 36 ] Doctor Sitar confirmed he does not like benzodiazepines and advocates diligently against their use in society. He fears they are over-prescribed and commonly abused. He noted their impairing effect, which is exacerbated when combined with alcohol consumption.

The primary side effect of this type of prescription medication is impairment of function, similar to impairment by alcohol including problems with balance, memory, hangover effects, and other typical signs of central nervous system depression. [ 37 ] Doctor Sitar explained if he were administering zoplicone to a patient, he would advise the medication be taken thirty to sixty minutes before going to bed with a cold glass of water.

He would warn the patient that if they got up suddenly there would be an increased risk of falling or of possibly doing something they would not later remember doing (anterograde amnesia affect) and that it is totally unpredictable.

Doctor Sitar confirmed the anterograde amnesia affect does not occur often but indicated it is impossible to predict which patients will experience the effect other than to say generally it is more likely at a higher dose of the medication than a lower dose. [ 38 ] According to Doctor Sitar, the duration of zoplicone ’s effect, as well as any side effects, are quite variable and depend on the patient’s tolerance including how long they have been taking the medication.

Side effects are less predictable and more likely to occur with a new prescription than in a person who has been taking the medication over a long period. [ 39 ] Peak time for effect of zoplicone depends on speed of absorption but because it aims to aid sleep, it is designed to be absorbed relatively quickly. [ 40 ] Additive interactions and side effects can be more likely if one ingests zoplicone in conjunction with anti-depressant medication.

[ 41 ] With respect to any demonstrated connection between zoplicone use and memory loss, Doctor Sitar testified some theorize that zoplicone interferes with the brain’s ability to transfer short-term memory into long-term memory but this is not definitively established in the literature. He asserted there is wide publication supporting an association between zoplicone use and general inability to remember. [ 42 ] Doctor Sitar described anterograde amnesia, explaining it refers to a period after taking the medication where the individual is unable to recollect any events that happened during that period.

The memories are never recovered. Anterograde amnesia is a possible side effect of zoplicone . [ 43 ] Doctor Sitar explained that impairment by zoplicone is analogous in many respects to impairment by alcohol. Balance; ability to perform divided attention tasks like driving; and impact on social interactions can all be impacted. [ 44 ] Doctor Sitar described somnambulism as “ fancy jargon for people being up and doing stuff while sleeping ”. Sleepwalking is an example. Doctor Sitar confirmed somnambulism is a possible side effect of zoplicone use. It is not common but appears in the literature “ multiple times ”.

He said amongst one thousand people taking zoplicone, he would be surprised to see the behaviour arise more than a couple of times but it is impossible to predict with certainty who amongst the one thousand people might exhibit the side effect. He offered one caveat; that if a person exhibited the behaviour once they would be more likely to experience it again. Any side effect is more likely to occur at higher doses than lower ones. Doctor Sitar was unable to say whether somnambulism has ever been documented at a dose as low as 15 mg zoplicone . [ 45 ] The history provided to Doctor Sitar was that Ms.

Gordiev was prescribed an anti-depressant because of a history of depression and two 7.5 mg zoplicone tablets for difficulties falling asleep. He understood that on the date of the accident, Ms. Gordiev took both her anti-depressant and her zoplicone pills at approximately 5:45 PM. He was advised she had consumed one glass of wine at about 3:30 PM but by the time she took the medication the alcohol would no longer be an issue in this case. He opined that on those facts, everything exhibited by Ms. Gordiev could be accounted for by the medications.

If she had consumed a bottle of wine between 2:30 PM and 6:00 PM along with the zoplicone medication between 5:55 PM and 6:00 PM, he opines there would be substantial impairment recognizable to almost anyone dealing with that person unless they were an alcoholic with some considerable tolerance. [ 46 ] Doctor Sitar opined rate of absorption with food in one’s system might be slower than on an empty stomach. On an empty stomach with a cold glass of water, he would expect onset of zoplicone to occur within thirty minutes.

If a person were going to have side effects, he would expect them to appear while it is being absorbed. Zoplicone will not absorb within five minutes unless injected and it is unusual to see effects within ten minutes. Thirty to sixty minutes is the most reliable evidence of time after ingestion on an empty stomach. [ 47 ] Doctor Sitar confirmed that amnesia is a self-reported phenomenon, as there are no reliable tests to assess with certainty its occurrence. [ 48 ] Doctor Sitar was a credible witness. His evidence seems reliable.

Some of the information he provided was clarified through cross-examination but he was not shaken in any of his assertions. Doctor Sitar’s opinion, that Ms. Gordiev’s behaviour could all arise from her prescribed medications, is problematic because the history he assumes is not borne out by the evidence produced during the trial. There is no evidence establishing Ms. Gordiev took an anti-depressant. The evidence establishes she consumed at least two glasses of wine prior to taking her medication. Ms.

Gordiev’s evidence with respect to timing of consumption of alcohol and ingestion of the sleeping pills is unreliable and suspect. Doctor Turner [ 49 ] Doctor Turner is Ms. Gordiev’s family physician since the end of 2015. Ms. Gordiev came to Doctor Turner with previously prescribed medications, including two 7.5 mg tablets of zoplicone daily. Doctor Turner felt the dosage was higher than she would typically prescribe. She may have mentioned this but made no changes because Ms. Gordiev was dealing with an acute depressive episode at the time. Months after the collision, Ms.

Gordiev expressed a desire to taper off the zoplicone . [ 50 ] Doctor Turner did not recall providing any warnings about mixing alcohol with the zoplicone because she does not typically do this if previously prescribed so long as the individual is stable. She assumed the previous practitioner would have provided any such warnings. She is aware that medications come with a sheet listing potential side effects and typically, the pharmacist will review the side effects. She concedes there is not always a warning label affixed to the pill container.

[51] The accident occurred at the end of July. In September, for the first time, Ms. Gordiev told Doctor Turner about the incidentmany years prior walking into the street in Winnipeg and mentioned some history of cooking and eating while asleep. It was also inSeptember that Ms. Gordiev disclosed to Doctor Turner, for the first time, symptoms consistent with a concussion including headaches,nausea and light sensitivity. She told Doctor Turner she obtained her medical report from the emergency department and that it said shehad a concussion.

Doctor Turner’s records from the emergency room do not reference a concussion but she wonders if Ms. Gordiev couldpossibly have received some type of handwritten report from the emergency department. [52] Concussions are diagnosed on a clinical basis because there are no diagnostic imaging tests available. Doctor Turner agreed withthe crown attorney’s suggestion that sleep eating and sleepwalking are rare, reportedly occurring in less than one percent of individualstaking zoplicone. Doctor Turner testified Ms.

Gordiev told her she consumed two glasses of wine with dinner the day of the accident andthen took her zoplicone at bedtime. [53] Doctor Turner was a credible witness. She seemed to do her best to provide reliable information but she appeared to haveminimal independent recall of the details of her involvement with Ms. Gordiev. She relied heavily on file notations to answer questionsand at times corrected aspects of her evidence after reviewing her notes. Admissibility of Statements to Police [54] The statements Ms.

Gordiev made to Constable Conway at the hospital are admissible if the crown proves voluntariness of thestatements beyond a reasonable doubt. The defence concedes the only issue with respect to voluntariness is whether Ms. Gordiev had anoperating mind at the relevant time. The defence contends Ms. Gordiev lacked an operating mind owing to impairment from prescribedsleeping pills and their side effects. [55] The Supreme Court of Canada decision in R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 is instructive. The assessmentof voluntariness is to be a contextual one.

The rationale for requiring proof of voluntariness is the need to ensure reliability of thestatement and fair treatment of Ms. Gordiev, including her right to choose whether to make a statement. [56] To have an operating mind requires only that the accused knows what she is saying; to appreciate that she is saying it to a personin authority who can use it against her; and that she have the capacity to choose whether to make the statement. [57] Even bearing in mind Ms.

Gordiev’s impairment along with the possibility she may have struck her head and suffered aconcussion during the accident, the available evidence establishes beyond a reasonable doubt, she had the limited cognitive abilityrequired to meet the operating mind threshold. [58] I accept the evidence of Constable Conway that Ms. Gordiev was oriented to place and time. Constable Conway testified with theassistance of her notes to the specific responses Ms. Gordiev provided to the notice of arrest; Charter warnings; and police caution. Herdocumented responses to the arrest and cautions support the conclusion Ms.

Gordiev understood her jeopardy and that she was speakingto a person in authority. The words spoken by Ms. Gordiev, although contradictory in respect of what she ate for supper, were logical toher circumstances and surroundings and were rationally responsive to questions posed by the officer. Evidence establishing Ms. Gordievunderstood, articulated, and exercised choices to contact counsel and to refuse a blood demand add to the strength of the crown’sevidence on the issue of operating mind and voluntariness. [59] For reasons summarized in the paragraphs that follow, I did not find Ms.

Gordiev to be a credible witness generally and herevidence was unreliable in material aspects. The defence evidence did not rise to the level of raising a doubt about the voluntariness ofher cautioned comments to Constable Conway. Impairment and the possibility of a concussion do not, as bare assertions, support aconclusion or even raise a doubt about voluntariness. [60] The detailed evidence specifying the circumstances and interactions surrounding Ms. Gordiev’s comments to the officer compelme to conclude there is proof beyond a reasonable doubt Ms.

Gordiev had the requisite cognitive ability for an operating mind. Application of R. v. W.(D.) [61] R. v. W.(D.) mandates consideration of the evidence of Ms. Gordiev and her denial of criminal responsibility in the context of the

case as a whole to determine whether I believe her, or alternatively, whether her evidence raises a reasonable doubt. If not, the crown bears the onus of proving all elements of the offence beyond a reasonable doubt. [ 62 ] While I accept the evidence of Ms. Gordiev that she ingested both alcohol and prescription sleeping pills, I had particular difficulty with the portions of her evidence related to amount of alcohol consumption and timing of the consumption. I found Ms. Gordiev’s evidence on these issues to be both unreliable and self-serving. [ 63 ] With respect to amount of alcohol consumed, Ms.

Gordiev contradicted herself at the scene, while speaking under caution to Constable Conway at the hospital, and when testifying during her trial. At the roadside, she mentioned a single glass of wine. In hospital, she told Constable Conway she drank a bottle of wine. In court, she insisted she had only two glasses of wine. [ 64 ] With respect to timing of consumption, she further contradicted herself. At the scene in conversation with the officer, and when speaking to her family doctor, Ms. Gordiev said she drank wine with her supper. In court, Ms.

Gordiev insisted she drank wine only between 2:30 PM and 3:30 PM, finishing before supper. [ 65 ] The evidence compels me to conclude Ms. Gordiev’s recollection of details related to timing is unreliable. [ 66 ] Ms. Gordiev’s evidence was inconsistent, self-serving, and illogical in various further respects. [ 67 ] First, cross-examination established Ms. Gordiev’s uncertainty as to sequence and timing of events.

It was apparent July 28 was a day like most others leading up to the accident and that her recollection of what and when she did things that afternoon relied substantially on her typical routine as opposed to precise memory of the particular day. With respect to the timing of her alcohol consumption, she said, “ I poured a glass of wine probably by 2:30 PM ”. She said she prepared her lunch and dinner “ probably around 3:00, 3:30”. She said, “ It usually takes me about two hours ”. She said, “ I was probably done by 4:30, 5:00 ”.

Unsolicited, she added “ but I had stopped drinking wine by 3:30, maybe even before that. ” She went on to specify that she had two glasses of wine between 2:30 and 3:30 PM. She testified that she is “ usually in bed about 5:50 PM ” and when asked what time she went to bed on July 28 specifically, she said “ probably ” 5:50 PM .” She believed she took the zoplicone pills just before getting into bed. She conceded she did not know the exact time and that it could have been later than 5:50 PM, but she denied it could have been any earlier than 5:50 PM. [ 68 ] Ms.

Gordiev’s uncertainty as to precise times is obvious. In contrast, her adamant certainty that she had nothing to drink after 3:30 PM and could not have taken her prescription sleeping pills earlier than 5:50 PM is contradictory and self-serving. Considered in the context of Constable Conway and Doctor Sitar’s evidence about time, the reliability of Ms. Gordiev’s evidence is further diminished. Constable Conway’s notebook documents her arriving at the collision scene at 6:10 PM meaning the accident happened at least a few minutes earlier.

Doctor Sitar testified that zoplicone typically takes effect within thirty to sixty minutes of ingestion on an empty stomach, likely longer if taken in proximity to food. It will not be absorbed and effective within five minutes of ingestion and it would be unusual to see effects after only ten minutes. [ 69 ] Second, cross-examination revealed Ms. Gordiev’s defence originates with her own independent research following the accident regarding side effects of zoplicone including sleepwalking and sleep eating.

While denying in her direct evidence she would ever use alcohol recreationally along with zoplicone, she conceded in cross-examination that on July 28, 2017 she consumed alcohol and took zoplicone in the same afternoon albeit in her estimation approximately two hours apart. [ 70 ] Third, unsolicited during cross-examination, Ms. Gordiev exclaimed that the accident was a horrible experience; that it left her “ scared to death ”; and that she was now changing her life, including efforts to wean herself off zoplicone . When the crown suggested Ms.

Gordiev’s experience years earlier, wandering onto Portage Avenue in Winnipeg, must have scared her as well, Ms. Gordiev claimed repeatedly that it had only confused, not scared her. Her adamant responses during this line of questioning seemed illogical and disingenuous. [ 71 ] Fourth, self-reported amnesia during the critical time is central to Ms. Gordiev’s proffered defence but her admissions to Constable Conway as well as her evidence in court were inconsistent with her asserted lack of recall. Ms.

Gordiev told Constable Conway she recalled placing her cell phone in the console prior to operating the vehicle that evening thereby negating anterograde amnesia as defined by Doctor Sitar. Ms. Gordiev insisted in cross-examination she had little memory of what happened at the hospital; that she could not remember what she did or did not say to the police officer while there. However, after giving this evidence, she insisted during cross- examination that she definitely did not tell the police officer she drank a regular bottle of wine; contending that she specifically told the

officer she had two glasses of wine. [ 72 ] Ms. Gordiev was not a credible witness and her evidence on material aspects of her defence is unreliable. She tailored her evidence to support a defence she researched and associated herself with post-charge, most notably by minimizing the amount of alcohol she consumed; diminishing the proximity between ingestion of alcohol and zoplicone ; and inflating memory impairment to amnesia.

Her evidence in these respects was particularly unbelievable, so much so that it neither raises a reasonable doubt nor rebuts the presumption of mens rea arising from voluntary consumption of intoxicating substances. [ 73 ] Ms. Gordiev is nonetheless entitled to an acquittal unless the crown proves all elements of the offence beyond a reasonable doubt. The defence concedes impaired ability to drive arising from zoplicone ingestion. The evidence convinces me beyond any reasonable doubt that Ms.

Gordiev’s significant impairment was, in fact, the result of mixing alcohol and prescription sleeping pills. [ 74 ] Common sense and life experience leave me highly suspicious of Ms. Gordiev’s claim no doctor or pharmacist ever warned her about the potential side effects of mixing zoplicone and alcohol. However, a reasonable doubt on that issue might have prevailed but for related admissions arising during Ms. Gordiev’s evidence. Ms.

Gordiev testified that, years before the collision, she noticed warning labels on her zoplicone prescription pill bottles cautioning that the pills may cause drowsiness and not to operate machinery after ingesting. She said she was not sure whether she was ever provided written materials about potential side effects of the medication. If so, she admitted she had not bothered to review the materials. Finally, and most notably, Ms. Gordiev confirmed she knew as a matter of common sense not to “ mix pills and booze”.

She responded affirmatively when the crown suggested she appreciated that mixing alcohol and her prescription medication could lead to adverse reactions including “ bad ” or “ extreme ” side effects. [ 75 ] The evidence establishes beyond a reasonable doubt that Ms. Gordiev voluntarily consumed prescription sleeping pills in proximity to alcohol knowing doing so could cause an adverse reaction; aware that the medication would cause drowsiness; and cognizant that it could impair ability to operate machinery.

Recklessness as to impairment is sufficient proof of mens rea. [ 76 ] The crown proved all elements of the offence beyond a reasonable doubt. A conviction is entered on the charge of impaired operation of a motor vehicle. “original signed by ACJ Hewitt-Michta” Associate Chief Judge S. Hewitt-Michta