R. v. Domb, 2011 ONCJ 756

COURT FILE No.: Toronto Region, Metro North Court DATE: 2011·11·28 Citation: R. v. Domb , 2011 ONCJ 756 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ZVI DOMB Before Justice Leslie Pringle Heard on May 19-20, 2011; June 22, 2011; October 27, 2011 Reasons for Judgment released on November 28, 2011 Mr. M. Bloch .......................................................................................................... for the Crown Mr. A. Wine ........................................................................................ for the accused Dvi Domb PRINGLE J.: 1.

Introduction and Overview of the Issues [ 1 ] Zvi Domb was a TTC bus driver who has since left the employ of the Toronto Transit Commission. [ 2 ] On May 12, 2010 a passenger complained about his erratic driving, believing that he was impaired by alcohol. Although it turns out there was no alcohol involved, a Drug Recognition Evaluation (D.R.E.) officer determined that there were reasonable grounds to believe Mr. Domb’s ability to operate a motor vehicle was impaired by a drug. Mr.

Domb was arrested and later evaluated at the police station where grounds were established to believe his ability to drive was impaired by a narcotic analgesic (pain killer). A toxicologist from the Centre of Forensic Science confirmed that Mr. Domb had a narcotic analgesic called fentanyl in his urine, as well as a number of other drugs. Fentanyl is an opioid drug used for the treatment of pain. [ 3 ] The Crown submits that Mr. Domb’s ability to drive was impaired by drugs, and that Mr.

Domb should be convicted based on his voluntary consumption of numerous medications on the date in question. [ 4 ] The defence argues that the Crown has not shown that it was the drugs in Mr. Domb’s system that caused his impairment, and urges me to find that Mr. Domb’s impairment arose from his many medical or emotional ailments and not from the drugs he was taking for them. Even if I find that there was impairment caused by the drugs he was taking, Mr. Wine submits that the Crown has not proven that Mr.

Domb was at fault, since his medications were prescription ones, taken under the care of his doctors. [ 5 ] I have concluded that Mr. Domb’s ability to drive was impaired by the prescription drugs that he was taking on May 12, 2010. However, I find I am left with a reasonable doubt on the fault element of this offence. Mr. Domb was taking his medications under a doctor’s care and there is no suggestion that he was abusing his medications or not following the prescriptions.

Indeed, he testified that his doctor specifically prescribed fentanyl as a pain killer that would permit him to drive, since oxycontin and percocet would not. He said that he is still permitted to drive by the Ministry of Transportation while taking fentanyl to this day, in fact at an even greater dosage than he was taking on the day he was arrested. He explained that there were never any contra-indications with the doctor or the pharmicist about the combination of his drugs, and he had no reason to be aware of a problem.

[ 6 ] On that basis, I find I am left with a reasonable doubt that the impairment by drugs on May 12, 2010 was due to any fault attributable to him. To put it in the words of the King decision to which I will refer later, I find I can’t reject Mr. Domb’s evidence that he was taking his medications on his doctors’ orders and was unaware of any ill effects they might have on his driving that day. [ 7 ] Accordingly, I will find Mr. Domb not guilty. 2.

Summary of the Evidence [ 8 ] Katerina Papadolias was an associate with RBC Capital Markets who took the Senlac bus to and from work. On May 12, 2010 she became alarmed about the driver’s condition and his driving. She said his speech was a little slurred and he sounded tired. His face was somewhat flushed, and his eyes appeared tired and glazed. As she put it, he looked “like someone who had just woken from a nap. Like I’m sort of here, but not here”. Ms. Papadolias was about 2 feet away from Mr. Domb, and believed that she smelled alcohol.

She described that he was braking a lot, he sped past some stops and missed them, and at others he would stop abruptly. He missed her stop and then stopped in the middle of the street to let her and her neighbour out. [ 9 ] Ms. Papadolias said that as a result of the driving, people were bumping into each other and sliding around. She said passengers were upset and angry, and her neighbour shouted at the driver. After they got off, she decided she didn’t feel good about the situation in light of the schools and dense population in the neighbourhood, so she called the police to have Mr.

Domb tested for drunk driving. The call was placed at 6.44 p.m. [ 10 ] Constables Kroustallis and Ma arrived at the corner of Senlac and Finch at 7.01 p.m where the bus had pulled over as a result of a TTC communication to Mr. Domb. The weather conditions were clear and dry. By the time they got there, the passengers were gone, and only Mr. Domb was left on the bus. The officers observed Mr. Domb to be staggering and unsteady on his feet, and shaky or fidgety as if he had a nervous problem. When asked for his licence, Mr. Domb produced his Scotia bank card. Cst.

Kroustallis did not make any observations relating to alcohol, and formed a suspicion that Mr. Domb’s ability to drive was impaired by a drug. He requested that a D.R.E. officer attend. Through-out his dealings with him that night, Cst. Kroustallis found Mr. Domb to be lethargic, slow in speaking and slow in movement. [ 11 ] TTC supervisor Jeffrey Hamilton arrived about 7.10 p.m. He said Mr. Domb looked nervous, which he said was understandable in the circumstances. However, Mr. Hamilton also explained that he thought there was something wrong with Mr. Domb that evening, based on his prior knowledge of him.

In Mr. Hamilton’s words, Mr. Domb seemed “a little bit zoned out”, and his eyes seemed a little glossy. Although he said he was not a professional, it seemed as if Mr. Domb was on some kind of pain killer. [ 12 ] Detective Constable Butt was the D.R.E. officer who attended and formed the grounds necessary for a full drug recognition evalution at the police station. The Crown relies only on her general observations of Mr. Domb’s appearance, and not the results of the Standard Field Sobriety Test that she conducted. Detective Butt observed that Mr.

Domb was dopey and groggy, his speech was slurred and his eye lids were droopy. She said he appeared to have a very dry mouth and was unsteady on his feet. At the same time, she agreed that Mr. Domb was compliant, cooperative and polite. [ 13 ] Police Constable Sylvie Guay was the qualified Drug Recognition Evaluator who carried out the full drug evaluation at the police station. She explained that during the evalution she followed a standardized series of 12 steps in order to evaluate Mr. Domb in relation to 7 categories of drugs. Looking at the totality of information gathered, Cst.

Guay said her task was to determine if a drug was causing impairment of the subject’s ability to drive, and if so, which category of drug. [ 14 ] In this case, her opinion was that a drug in the narcotic analgesic category was causing impairment. She said that drugs in this category usually cause a depression in body systems, such as lethargy and droopy eyes, where everything is depressed or slowed down. With this category of drug, there is usually a constriction of the pupils, and she would not expect nystagmus, which is an involuntary jerking of the eye.

A dry pasty mouth is common, and sometimes the subject almost appears to be sleeping. She explained, “they are listening, but they don’t appear to be”. [ 15 ] In cases of poly-drug use, she acknowledged that there can be antagonistic effects of the various drugs, and she would have to

take that into account. She also agreed that any assessment of symptoms requires a degree of subjectivity and impression. Although she was aware that Mr. Domb had taken clonazepam, she didn’t really see the effects of that drug in her evaluation. [ 16 ] Cst. Guay noted down the information that Mr. Domb gave her, which was agreed to be voluntary and admissible.

She said he was very cooperative, and told her: • He had wiener schnitzel, chicken soup, a protein bar and coffee at 5.30 p.m.; • He was scheduled to start around 6 p.m., but arrived late at 6.21 p.m.; • He had coffee at 6.30 p.m. and only water after that; • He was fairly well oriented in time; • He had slept for almost 12 hours the night before; • When asked if he was sick or injured he said he had several medical conditions: depression, anxiety, hypolipidemia, elevated cholesterol; • He had a back injury in the past, an L5-S1 injury which had been caused when -originally he said he “slept in the tub” but then laughed and corrected himself to say “slipped in the tub”; • He said he was under the care of Dr.

Jack Lefkowitz and was taking numerous medications: o Clonazepam, 1 mg tablets, 2 at night and 1 in the day; o Neurontin, an anti-convulsant, 300 mg, 2 pills taken at night and 1 early in the afternoon after he gets up; o Cesamet, 1 mg (he had taken that the night before); o Lipitor for cholesterol; o Risperidal, a central nervous system depressant mood stabilizer; o He was wearing a 75 mg fentanyl patch on his left bicep, which is a narcotic analgesic, which he had applied the day before, the patch was good for 3 days; o Flomax for prostate; o Proscar; o Naproxen for inflammation ; o He said he was wearing a nicotine patch (although Cst.Guay didn’t see it), and was ingesting nicotine caplets and chewing nicoret gum. [ 17 ] In general terms, Cst.

Guay described Mr. Domb’s coordination as poor and his movements as slow and depressed. She said his mouth was very very dry and somewhat pasty, his breath was stale. His speech was slow, somewhat laboured and stuttering at times. She noted the “slipped/slept” in the tub as an example of how he was not entirely coherent. She said he was sweating profusely, and his eyes were droopy. She noted that he told her he had a lazy right eye. He had a brown mark on his tongue, which she said made some sense in light of his indication that he taking nicotine caplets and chewing nicoret gum. [ 18 ] In relation to Mr.

Domb’s performance on the various steps of the evaluation, she testified that: • his eyes tracked together and there was no evidence of nystagmus; • his pupil size was constricted; • his pulse and blood pressure were elevated above the normal; • on the Romberg balance test where the subject is directed to tilt his head back and count to 30 seconds, he did so in 28 seconds, so he was pretty close.

However, he was swaying slightly, and experiencing leg and hand tremors as he tried to hold the position; • on the walk and turn test, he didn’t follow instructions and started too soon, and he stepped off stepped off the line and made several other missteps. On this test, Cst. Guay said that Mr. Domb accumulated 6/8 clues relating to balance that indicated he wasn’t performing the test as prescribed, with anything over 2 being unsatisfactory;

• on the one leg stand, Mr. Domb swayed, held his arms out and on the left leg he put his foot down 5 times. She noted that he said he had surgery on his right ACL, so that could have caused him difficulty in keeping his leg up. On his good leg he had 2 clues, on his other he had 3 clues; • on the finger to nose test he used the pad of his finger instead of the tip as instructed and was having eyelid tremors and couldn’t keep his head back, and didn’t follow instructions about turning to face her; • his muscle tone was flacid. [ 19 ] Justin Hinman is a forensic toxicologist from the Centre of Forensic Sciences.

He testified that as a result of a urine sample, the following drugs were found to be present: • Fentanyl • Clonazepam • 7-aminoclonazepam • Diphenhydramine • Venlafaxine [ 20 ] He noted that there are a number of limitations to a urine sample, which simply provides evidence that some time before the sample was taken, a drug was ingested or administered. It’s not possible to tell how long prior the drug was ingested, or what the dosage was. All that the urine sample reveals is whether the drug is “detected” or “not detected”. [ 21 ] Mr.

Hinman explained that it’s not possible to relate detection of a drug in someone’s urine to specific effects of impairment on the body. The effects of a drug are dependent on that person’s tolerance. When a drug is frequently administered, the body develops tolerance and becomes accustomed to it, so that the effects of the drug are reduced. [ 22 ] In respect of fentanyl, Mr. Hinman said that it is an opioid for treatment of severe pain that is classified as a narcotic analgesic. It can cause central nervous system depressant effects such as drowsiness, lack of incoordination and slower breathing.

If someone had been taking fentanyl consistently for months then they could develop some tolerance so that the effects on them would be less than on someone who was not tolerant. In other words, use of fentanyl could result in impairment for a non-tolerant individual, but it might not cause impairment in a tolerant one. Although he expected that there would be some information about fentanyl causing drowsiness on the box, he didn’t know for sure. When shown EX 10 he agreed that there was no such warning. [ 23 ] Mr.

Hinman testified that diphenhydramine is a sleeping aid that can also be used for allergies or a decongestant or anti-nausea drug. It can be purchased over the counter under names such as Nytol, Benadryl and Gravol. It has central nervous system depressant properties such as causing sleepiness and some lack of coordination. It was possible that Mr.

Domb could have taken this drug a couple of nights before May 12th, such that it could be detected in his urine on May 12th, but no longer be active in his blood. [ 24 ] Clonazepam is a drug that can be prescribed for treatment of seizures or for panic attacks and anxiety. It is classified as a benzodiazepine with depressive effects on the central nervous system, such as lack of muscle control, drowsiness, impaired judgement or memory, confusion and dizziness. When asked to look at Mr. Domb’s prescription for clonazepam in court, Mr.

Hinman agreed there was no warning label on the package, although he would have expected one based on the drug’s sedative effects. [ 25 ] 7-aminoclonazepam is simply a metabolite of clonazepam that has little pharmacological activity. [ 26 ] Venlafaxine is a drug prescribed for the treatment of clinical depression that, if taken therapeutically, would likely produce little if any impairment relative to operation of a motor vehicle. [ 27 ] Mr. Domb testified and confirmed the numerous medications that he had previously mentioned to the police. He explained that he suffers from insomnia, anxiety and depression.

He said he is 45 pounds overweight. He had reconstructive surgery on his right ACL in 1997, and has spinosis of the L5S1 vertabrae from sitting on the bad seats in the old TTC buses, and driving on bad roads. He has

problems with his gait, he has planter faciitis and severe pronation when he walks. He wears orthotics and orthopedic shoes. He has three doctors: a GP, Dr. Jack Lefkowicz; a psychiatrist, Dr. Croft; and a pain specialist, Dr. Igor Willderman. [ 28 ] Mr. Domb stated that on May 12, 2010 he was a little late for work and the bus prior to his had gone missing in action so there was an angry crowd of passengers waiting when he arrived. The load was full, and he needed to pump the brakes to prevent an on-board accident. He was warming up the brakes because the new hybrid buses brakes tended to bite.

He was trying to make the ride smooth, but he said it wasn’t his best performance. [ 29 ] The only person who had a concern with his driving that he was aware of was a female whom he thought was probably Ms. Papadolias. He said she rang the bell late, and he told her he couldn’t let her out safely there, and when he did stop she had a 10 minute walk back to her stop. As a result he said she wasn’t very happy; in fact he said she was very angry. [ 30 ] Mr.

Domb explained that when he received a call from transit control to pull over his bus, he was concerned and thought that his mother might have had a heart attack because they didn’t tell him what it was about. He said he was pacing and sweaty and anxious. When the first officer arrived and said they had had a call about erratic driving and alcohol, he told the officer that he had not been drinking alcohol. He said his anxiety level increased as he tried to recall what it was about his driving that could have caused the complaint.

He became more anxious and was in “complete disarray”. [ 31 ] He was asked about medications by the officer, and told him that he was on medications under a doctor’s care, and listed them for him. He said he had no idea how the police came to the conclusion he was on medication at all, it was really surprising to him. After dealing with the D.R.E. officer on scene he felt that her major concern was the fentanyl, but he found that none of the officers were very concerned about his ailments and weren’t empathetic. [ 32 ] Mr.

Domb said that he tried to explain to the officers that his coordination wasn’t very good, and he wasn’t wearing his orthotics, and that he had had reconstructive surgery on his knee and a lazy eye. He said he should have been focusing more on the test but he was preoccupied with the bad news that was pending, because he still hadn’t been told why they stopped the bus. Mr. Domb felt that the reason he didn’t do well on the D.R.E. test was because of his anxiety, and the fact that he is obese and uncoordinated and has poor balance generally. He wasn’t wearing his shoes or orthotics, and his surgery didn’t help.

He thought he might have been overzealous in starting some of the tests too soon with Cst. Guay, because Det. Butt had already explained what he needed to do at the roadside. [ 33 ] Mr. Domb denied that he was at all impaired by the drugs he was taking on May 12 th , and said that the only impairment he had was due to anxiety and his physical conditions. [ 34 ] Mr. Domb said that on May 12, 2010 he was on fentanyl for his back pain. This was prescribed by Dr. Willderman but sometimes when his pain specialist wasn’t available he would get his prescription renewed by Dr. Lefkowicz, his GP.

He was also on Venlafaxine for depression, clonazepam for anxiety, and a mood stabilizer called Risperidal, all prescribed by Dr. Croft. The night before this incident he had taken a cough syrup called Benolyn. He thought that he had stopped taking Lipitor by May 12 th , although he had been taking it at one time. [ 35 ] Mr. Domb described fentanyl as a patch that is applied trans-dermally. He had first started on this medication over 4 years earlier with Dr. Willderman. At that time, Dr.

Willderman placed him on a 75 mcg patch that could be worn for 3 days, and told him not to drive and to see how his body reacted and tolerated the medication. As a result, he booked some time off when he first started taking this drug. [ 36 ] He had also tried oxycontin and percocet for pain relief in late 2009 with Dr. Willderman but he couldn’t drive with those medications. Since Dr. Willderman said it was always ok to drive on fentanyl, he went back on the road with this medication in early 2010. Mr.

Domb said that he had been driving while taking fentanyl for about 5 months before this situation arose on May 12 th . [ 37 ] Mr. Domb brought an empty box of fentanyl patches dated May 3, 2010 to court (EX 10), and explained that as the box indicated, it had contained 5 patches of 50 mcg each. He said this box was from 9 days before the incident, and he had another box of 25 mcg patches as well. On the date in question, he said he was wearing two patches, side by side on his arm, one 50 mcg and one 25 mcg.

[38] Mr. Domb noted that there is no warning on the box of fentanyl. He said he had read the original leaflet regarding this drug longago, but didn’t keep it since he was familiar with it. He said that he took out the patches and wrote down when he took them so as not toconfuse the doses. He said he never abused his medications and would not jeopardize his own safety or that of his passengers. In May2010 he said he was keeping track of his patches, it was very easy, since it was a single patch of 75 mcg. He said it would be impossibleto double up the dosage, since it would be fatal. [39] Mr.

Domb told me that since last year he has gained more weight, and he is now using a 100 mcg patch every 3 days. He saidthat he passed his medical to keep his licence and still has a licence to drive while he takes fentanyl and clonazepam as well as a newanti-depressant and something for insomnia. [40] He said that he has tolerated these medications for years, and stated there have never been any contra-indications with the doctorsor his pharmacist regarding his medications. 3. The Law relating to Impaired Driving by a Drug [41] The Ontario Court of Appeal stated in R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 , aff’d (SCC), 90 C.C.C. (3d) 160n (S.C.C.), that there is no special test for determining impairment, such as a “marked departure” fromnormal behaviour. The offence of impaired operation of a motor vehicle by reason of alcohol or a drug is made out by proof of anydegree of impairment ranging from slight to great. [42] In R. v. Toews, (SCC), [1985] S.C.J. No. 48, the Supreme Court of Canada held that the mens rea for drivingwhile impaired is the intent to drive a motor vehicle after the voluntary consumption of alcohol or a drug.

The actus reus is the act ofdriving where the voluntary consumption of alcohol or a drug has impaired the ability to drive. [43] A reasonable doubt that it was alcohol or a drug that caused the impairment of the ability to drive will mean that the Crown hasfailed to prove the actus reus of the offence. For example, the accused will be acquitted if the signs of impairment reasonably couldhave been caused by fatigue as opposed to a drug: see R. v. Steeves, [2010] N.B.J. 155 (P.C.), aff’d 2010 N.B.J. No 433 (N.B.Q.B.); andR. v. Sanclimenti, [2010] O.J.

No. 5917 (C.J.); or where there was a reasonable explanation for difficulties on the D.R.E. that couldn’t berejected (R. v. Jurcevic, [2010] O.J. No. 5231 (C.J.)). In a number of cases, courts have echoed the view expressed in Steeves that “merepresence in the accused’s body of drugs with potential to cause driving ability impairment [is] not sufficient to found a conviction”. InR. v. Jansen, [2010] O.J. No. 959 (C.J.), Justice Fuerth found that the limitations of the urine test left many important questionsunanswered regarding the quantity, absorption, elimination, and effects of the drug.

In that case, he found that the Crown had notsatisfactorily related back the findings of the evaluation and chemical analysis to the time of driving. [44] However, where the court finds that the voluntary consumption of alcohol or a drug has contributed to impairment of thedefendant’s ability to drive, then the actus reus will be made out: see R. v. Greenwood, [2010] O.J. No. 569 (S.C.J., Durno J.), and R. v.Caldwell, [2004] O.J. No. 4769 (C.J.), aff’d [2006] O.J. No. 3280 (S.C.J.). [45] In R. v. King, (SCC), [1962] S.C.J.

No. 60, the Supreme Court explained that mere impairment by alcohol or adrug is not sufficient. There must be

an act of free will that brings about the mental condition.

Ritchie J. held: 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 arebuttable presumption arises that his condition was voluntarily induced… unless other evidence is adduced which raises a reasonabledoubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciateand know that he was or might become impaired. …if it appears that the impairment was produced as a result of using a drug in the form of medicine on a doctor’s order orrecommendation and that its effect was unknown to the patient, then the presumption is, in my view, rebutted. [46] There are not many cases dealing with the issue of fault where the defendant was taking drugs under the care of a doctor ordentist.

The Supreme Court of Canada’s decision in King is the starting point for this discussion, and I will refer also to R. v. Murray,

(ON SC), [1998] O.J. No. 217 (C.A.), and R. v. Cosentino, [2008] O.J. No. 5263 (S.C.J., Durno J.). [47] In the King case, Mr. King was scheduled to have 2 teeth extracted at the dentist’s office. He signed a form 2 days in advance ofhis surgery containing a warning, “patient is cautioned not to drive after anaesthetic until head clears”. On the day of the surgery he wasgiven a needle, the teeth were extracted and he remained in the recovery room for half an hour. As he was leaving, he recalled that thenurse warned him about driving and he told her he was going to walk.

He then went and got in his car, but shortly after becameunconscious and had a slight accident. [48] The trial judge found King guilty on the basis that he drove his car, knowing that he had been given a drug, and knowing that hehad been warned about the risks of driving when he signed the form. [49] The Supreme Court of Canada dismissed the appeal from the Court of Appeal’s statement of the law that “mens rea relating to theact of driving and to the state of being impaired by alcohol or a drug is an essential element of the offence”, confirming in essence that itwas a correct statement of the law.

Although the Supreme Court noted that the Court of Appeal had made findings of fact directlycontrary to the trial judge, they didn’t interfere with the acquittal since the Crown didn’t appeal that aspect of the decision. [50] In the Murray case, Mr. Murray was a bus driver by profession. He took 2 sleeping pills about 9.30 p.m. and debated whether heshould drive his own car on an errand, since he usually became drowsy about 1 ¼ to 1 ½ hours after he took the pills. After giving itsome consideration he decided he would drive, and thought that he would assess his condition when he got to his destination.

However,unbeknownst to him, the effects of the sleeping pills were more rapid and pronounced on an empty stomach, and he hadn’t eaten sincenoon. Murray got into an accident on his way home. In retrospect, he admitted that he took a foolish risk. His doctor had warnedagainst driving after taking the pills, and Murray said he would never have driven a bus after taking them. [51] The Court of Appeal held that Mr. Murray had the necessary mens rea since he voluntarily consumed a sedative drug which heknew might impair his ability to drive a motor vehicle. [52] Finally, in R. v. Cosentino, Mr.

Cosentino was taking prednisone and sulpha, and had been warned by his doctor not to drive if heused sulpha. The doctor told him “to use his judgement” about how long to wait before driving. On the night before he went out to abar, he took two prednisone in the morning and two sulpha at night, and on the morning he went out, he took one sulpha but noprednisone. That night he said he consumed alcohol, but the trial judge was left with a reasonable doubt on the amount, and acquitted onthe over 80 charge.

A scientist from the Centre for Addiction and Mental Health testified that the abrupt withdrawal from prednisonemight have caused the symptoms of impairment by Mr. Cosentino. [53] The trial judge convicted Mr. Cosentino of impaired driving. On appeal, in relation to the issue of impairment by a drug, JusticeDurno found that the fault element was met. Mr. Cosentino had been given a caution about taking sulpha in combination with alcohol,and by his own admission drank six ounces of alcohol on the same day he took that medication. Further, while his doctor may havegiven him deficient advice about prednisone, Mr.

Cosentino appreciated that he was disoriented while driving, but instead of pullingover, he continued to drive on a less busy road. 4. Analysis in Mr. Domb’s Case 4.1 Impairment of Mr. Domb’s ability to drive [54] Ms. Papadolias described a number of aspects of Mr. Domb’s driving that were of understandable concern to her: pumping thebrakes a lot, speeding past some stops, stopping abruptly at others, letting people off in the middle of the street. She said that she hadridden this route hundreds of times, and the bad driving this evening was obvious. Other passengers were angry and upset as well. [55] Ms.

Papadolias also made observations of Mr. Domb himself that suggested some kind of impairment: slurred speech, flushedface, eyes that were tired and glazed. He seemed “here but not here”. She believed she smelled alcohol.

[ 56 ] Although Ms. Papadolias was incorrect in her belief that Mr. Domb had been drinking, it is not entirely suprising that she believed she smelled alcohol in light of the signs of impairment she saw. I did not find that her reliability was diminished by her mistake, especially since all of her other impressions of Mr. Domb’s demeanour were corroborated by other witnesses who described him as “zoned out”, “groggy”, “lethargic”, and having glossy eyes and slurred speech. [ 57 ] I found that Ms. Papadolias was a credible witness.

She had no motive to exaggerate or fabricate her evidence; she was simply a concerned citizen. While she may have been the only person who came forward with a complaint, I have no reason to doubt that she observed others to be angry and upset by Mr. Domb’s driving as well. [ 58 ] Mr. Domb denied that his driving was poor, although he admitted that it might not have been his best performance. He suggested that it was necessary for him to brake that way because the brakes in the new hybrid buses tended to bite. However, Mr.

Domb’s evidence was contradicted by TTC supervisor Jeffrey Hamilton, who said that he moved the bus from Finch to Senlac that night and didn’t notice anything unusual about the brakes. He said everything seemed to be functioning as it should. He also stated that he had received no information that the brakes of the hybrid buses needed to be warmed up. [ 59 ] Looking at the evidence as a whole, I have no hesitation in finding that the problems with Mr. Domb’s driving had nothing to do with the bus, and everything to do with the way he was driving it. Moreover, I reject Mr.

Domb’s evidence that he was not impaired that night. Frankly, every other person with whom he dealt that evening noticed the same signs. Even Mr. Hamilton, who knew Mr. Domb, felt that there was something wrong with him that night. 4.2 Impairment of Ability to Drive by a Drug [ 60 ] The roadside observations of witnesses such as Ms. Papadolias, Mr. Hamilton, Constables Ma, Kroustallis and Butt go a long way in demonstrating that Mr. Domb’s ability to drive a motor vehicle was impaired by something . [ 61 ] Moreover, we know from Justin Hinman’s analysis that Mr.

Domb’s urine contained several drugs, including fentanyl and clonazepam, which could cause drowsiness, lack of coordination, impaired judgement and confusion in some people. [ 62 ] However, Mr. Hinman was unable to say how these drugs might have affected Mr. Domb that night without knowing Mr. Domb’s tolerance to them, and without knowing the concentration of the drugs in his blood. Therefore, Cst. Guay’s evidence is important to the Crown in establishing the link between Mr. Domb’s signs of impairment and the drugs found in his system.

If, as the defence suggests, the cause of impairment is consistent with someone suffering from only physical and emotional ailments, the Crown cannot prove the actus reus. [ 63 ] Mr. Wine challenges Cst. Guay’s credibility and points out that she “bristled” under cross-examination and was defensive as a witness. He reminds me that the officer frequently editorialized, and submits that she displayed a degree of subjectivity that should undermine her opinion. [ 64 ] I did have some concerns about Cst. Guay’s evidence.

She gave personal examples about her own planter fasciitis and expressed her personal hopes about a doctor taking into account Mr. Domb’s profession in a way that was not in keeping with her role as an independent and professional evaluator. She also refused to answer an appropriate hypothetical example put to her, and at times she became overly defensive in the face of cross-examination. These factors diminished the weight of her evidence and to some extent, the value of her opinion. [ 65 ] Mr. Wine further submits that many of Cst. Guay’s observations of Mr.

Domb’s poor performance on the 12 steps of the evaluation were equally consistent with his physical and emotional ailments. He says that Cst. Guay was not empathetic to Mr. Domb’s problems, and failed to take them into account in making her overall assessment. [ 66 ] I have looked again at Cst. Guay’s evidence, especially in light of my concerns about the manner in which she testified. However, I find I can’t agree with this submission. Cst. Guay did look at the totality of the factors before her and she did take into account that some of Mr. Domb’s physical conditions could have affected the test.

For example, in respect of the crossed eye test, she

was aware that he had a lazy right eye, and in respect of his poor results on the leg stand test, she acknowledged that his knee surgery could have affected the results. She further explained that while Mr. Domb’s elevated heart rate and blood pressure were not generally symptomatic of a narcotic analgesic, they could have been attributable to his consumption of nicotine caplets and gum, and also the anxiety-provoking nature of the situation itself. Finally, while Mr. Domb felt that she was not sympathetic to his ailments, I find that she did note them all down and was well aware of them.

To the extent that the form didn’t allow sufficient space to record that information, Cst. Guay took an additional full page of notes to document Mr. Domb’s comments. [ 67 ] Cst. Guay’s final opinion was as follows: When I look at that later [the slow speech, dry mouth] with the constricted pupils, with the droopy eyelids, with the lethargic slow movements, uncoordinated walk, with a stale breath, pasty mouth, with the slow laboured stuttering speech, those would certainly direct me towards the narcotic analgesic category.

At the conclusion of my evaluation it was my opinion that his ability to operate a motor vehicle was impaired by the consumption of a narcotic analgesic. [ 68 ] Despite some of my concerns about the manner in which Cst. Guay gave her evidence, I would not reject her opinion. Indeed, her findings of impairment were consistent with Ms. Papadolias’ observations of Mr. Domb and his poor driving. The officer’s explanation that a narcotic analgesic can leave the impression that someone is “listening but not listening” was also completely in keeping with Ms. Papadolias’ description of Mr.

Domb being “here but not here”, and Mr. Hamilton’s observation that he was “a bit zoned out…as if he was on some kind of pain killer”. [ 69 ] Cst. Guay’s evidence that a narcotic analgesic depressed the body’s systems and slowed them down also fit with Cst. Kroustallis’ and Ma’s evidence that Mr. Domb was slow and lethargic in his movements. Finally, Cst. Guay’s opinion was corroborated in part by Mr. Hinman, who testified that fentanyl was a narcotic analgesic that could result in precisely the kind of symptoms displayed by Mr. Domb. [ 70 ] Therefore, Cst.

Guay’s evidence fits extremely well with all the other evidence pointing to Mr. Domb’s impairment by a pain medication drug that night. Based on the totality of the evidence, I am prepared to accept Cst. Guay’s opinion that Mr. Domb’s ability to drive was impaired by a narcotic analgesic. [ 71 ] In my view, Mr. Domb’s bad driving and zoned out behaviour that night cannot reasonably be attributed to his medical or emotional ailments alone.

Excessive braking, missing stops, abrupt stops, and letting people off in the middle of the street go well beyond a bad knee or bad back, and his slow movements and the impression that he was not really there can’t simply be explained away by insomnia or anxiety. Even to Mr. Hamilton who knew him, there was something wrong with Mr. Domb that night. [ 72 ] The actus reus of the offence is made out: I find that Mr.

Domb’s ability to operate his bus on that evening was impaired by a drug. 4.3 The Fault Element [ 73 ] As set out in King, once the court determines that someone was driving a motor vehicle while his ability to do so was impaired by a drug, there is a presumption that his condition was voluntarily induced. However, that presumption can be rebutted by evidence that raises a reasonable doubt as to whether he was, through no fault of his own, disabled from being able to appreciate and know that he was or might become impaired.

If it appears that the impairment was produced as a result of using a drug in the form of medicine on a doctor’s order and its effect was unknown to the patient, then the presumption is rebutted. [ 74 ] I see this issue as resting largely on Mr. Domb’s credibility. [ 75 ] As I indicated above in relation to the issue of impairment, in some respects I did not believe Mr. Domb’s evidence. He seemed anxious to find blame with everyone else but himself: according to him Ms.

Papadolias was the only unsatisfied passenger, she rang the bell late, she was angry; his back was bad from old buses and bad seats and bad roads; the officers weren’t empathetic to his ailments etc. In this regard, Mr. Domb appeared to have very little insight into his own behaviour. Accordingly, I have considered whether I can

accept any of Mr. Domb’s evidence – but, on this issue regarding the medications he was taking and the lack of warnings he received, I have determined that I can’t reject it. I say so for the following reasons. [ 76 ] Mr. Domb seemed very familiar with his medications and their doses, and repeatedly explained this information to various officers. Cst. Guay’s impression was that he was cooperative and forthright in this regard, and I agree. [ 77 ] Detective Guay also agreed that Mr. Domb appeared to be on medication for valid reasons.

She acknowledged that she could not say that he was abusing his medications. [ 78 ] In fact, Cst. Guay stated, “in his interview with me he was extremely cooperative and he was a mild mannered man, he was – I – I have no reason to say yes he’s a drug abuser or anything like that”. She further agreed that she believed he had been “forthright with what he’d been telling me with regards to drugs and doses and – and the amount he’d taken… I didn’t find he was being deceptive…he was being fairly forthright in my opinion”. [ 79 ] Based on all the evidence before me, I would make a similar finding that Mr.

Domb was relatively forthright about his medications. [ 80 ] In coming to this determination, I have considered that although Mr. Hinman said that he would have expected a warning on the labels of both fentanyl and clonazepam regarding driving, it has now been established that there is no such warning. Indeed, Mr. Domb explained that he specifically discussed the issue of a pain killer that would permit him to continue to drive with his doctor, and the doctor prescribed fentanyl. It appears that he is still permitted to drive by the Ministry of Transportation notwithstanding his pain medication. [ 81 ] Mr.

Domb agreed that the initial effects of these medications involved side effects that dictated that he take time off work when he first started to use them, about 4 years earlier. He said he did that on his doctor’s advice, and explained that since then he has tolerated these drugs for years. [ 82 ] There was no evidence to cast doubt on Mr. Domb’s testimony in this regard. There was nothing to suggest that he had experienced bad driving due to medication previously, or that he had been warned that this might be the case. There were no pharmacy information sheets dictating cautions about driving.

Accordingly, on the fault element, I see no reason to disbelieve Mr. Domb’s evidence, and find I can’t reject it. [ 83 ] Mr. Bloch submits that fault can be attributed because Mr. Domb knew the effects of fentanyl and knew that it was a central nervous system depressant that could cause slower movement, drowsiness or dizziness. Mr. Domb agreed, but explained that this was only in the initial stages of taking the drug, which in his case had been a number of years earlier. He said at that time he took time off, and had tolerated the medication since then for years.

While it appears there had been an interruption in his fentanyl regime in late 2009 while he tried oxycontin and percocet for the pain in his back, he didn’t drive during this period. After that, he said he had been back on fentanyl and driving for about 5 months before May 12 th . [ 84 ] Similarly with respect to clonazepam he said that he had been on this drug for over 8 years. He said that initially he might have felt some lack of muscle control or drowsiness, but felt no side effects like that at all on May 12 th . This would certainly be consistent with Mr.

Hinman’s evidence regarding the effects of tolerance based on repeated use of a drug. [ 85 ] There was some inconsistency in Mr. Domb’s evidence regarding the number of fentanyl patches he was wearing on May 12, 2010. In examination in chief he said he was wearing only one patch of 75 mcg, and Cst. Guay said she saw only one patch. Although in cross-examination Mr. Domb said he was wearing two patches side by side on his arm, this discrepancy was never really pursued.

While this area of cross-examination might have yielded some fruit for the Crown, I am not prepared to speculate about the effect of the inconsistency based on the record before me. [ 86 ] The crown also argues that the effects of impairment on May 12, 2010 were observable and obvious, but since Mr. Domb didn’t do anything about it, he was at fault. I agree with the Crown that that the effects of impairment were readily discerned by Ms. Papadolias and Inspector Hamilton, as well as Det. Butt and Cst. Guay. However, it’s hard to assess Mr. Domb’s own awareness of his

bad driving and symptoms of impairment, because he himself thought everything was fine. This aspect of his lack of awareness can be compared to the facts in King, when he was warned after taking sodium pentol not to drive. In those circumstances the Court of Appeal found that he couldn’t be expected to understand that warning when he was in a state of “undetected mental impairment”. Similarly here, where I find Mr. Domb was impaired by a drug, his ability to assess his own behaviour was minimal. [ 87 ] The evidence does not reveal why Mr.

Domb’s ability to drive was impaired by his medications on that day as opposed to other days. On that day, it is unknown whether he took more than the prescribed dose or did something out of the ordinary to cause the drugs to react differently than they usually did. While it is possible to speculate about that, there is nothing grounded in the evidence that I have heard. [ 88 ] In the end result, I find that Mr. Domb’s testimony leaves me with a reasonable doubt that the impairment by drugs on May 12, 2010 was due to any fault attributable to him. In the words of the King decision, I find I can’t reject Mr.

Domb’s evidence that he was taking his medications on his doctor’s orders and was unaware of any ill effects they might have on his driving that day. Released: to the parties November 21, 2011; in court November 28, 2011 Signed: “Justice Leslie Pringle”