This week’s top three #summaries: R v Liu, 2020 BCCA 235: anecdotal #expert #evidence, R v Young, 2020 BCSC 1201: #ruse stop, and R v Sandhu, 2020 BCPC 160: #impaired by drug & alcohol
R v Liu, 2020 BCCA 235
[August 20, 2020] Expert Evidence - Misuse of Expert Evidence by using Anecdotal Experience of Police Expert to Convict (ie. the Sekhon 2014 SCC 15 error) [Reasons by Bennett J.A. with Saunders and Grauer JJ.A. concurring]
AUTHOR’S NOTE: When police officers masquerade as qualified experts in courtrooms, a problem often arises with their tendency to rely on anecdotal evidence. Some might say the dangers of using police in an expert capacity outweighs the need for their evidence and requiring them to be at the unbiased service of the court presents an overwhelming obstacle to acceptance. For example, how often will a so-called possession for the purpose of trafficking expert slightly skew their testimony in favour of their fellow police officers? Difficult to say with confidence either way. However, one problem well-recognised in law is that police experts can digress into opinions based on anecdotal experience (ie. "in all my investigations" or "I have never seen"). When this type of evidence comes out directly on the point of an element of the offence (ie. the purpose of possession), they have crossed the R v Sekhon line and their evidence should not be relied on by the court.
Pertinent Facts
[1] While executing a search warrant on a house suspected of containing an unlicensed marihuana grow operation, police found the appellant, Huobin Liu, in the basement among hundreds of marihuana plants. He was subsequently convicted of production of marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[4] Kevin Cahoon is a private investigator. In the fall of 2015, the house across the street from where he lived was sold. According to Mr. Cahoon, three men of Chinese descent attended the property on a regular basis. These men were subsequently identified as the appellant, Mr. Liu; his co-accused, Chao Lun Zeng; and Xi Heng Liang. Each of Mr. Liu, Mr. Zeng, and Mr. Liang drove a different van, which Mr. Cahoon observed parked outside of the house.
[5] Around April or May 2016, Mr. Cahoon noticed the smell of marihuana near the property. He began to pay closer attention to the house, and to photograph the people and vehicles that attended it. In mid-May, the RCMP also began conducting surveillance, apparently in response to a tip provided by Mr. Cahoon.
[6] Photographs taken by Mr. Cahoon show that on June 5, 2016, Mr. Liu drove his van to the property, loaded garbage bags into the vehicle, and drove away. He was seen at the property either by Mr. Cahoon or by the police a number of times.
[7] On June 8, 2016, the Coquitlam RCMP executed a search warrant of the house. They found 712 marihuana plants. The entire house was taken over by the grow operation, and the evidence suggested that no one was actually living there.
[15] At trial, Mr. Liu acknowledged that he was present at the property on eight occasions between May 18 and June 8, 2016. He testified that he attended the property to cook for Mr. Liang, as he was trained as a chef.
[16] Mr. Liu stated that when he saw the marihuana plants, he asked Mr. Liang if the grow operation was legal. Mr. Liang said it was and showed him four licenses. Because of his limited English skills, Mr. Liu was unable to read the licenses, but he trusted what Mr. Liang had told him.
[17] Mr. Liu testified that on June 5, 2016, Mr. Liang advised that he would be out of town for a period in July 2016 and asked if Mr. Liu would water the plants during his absence. Mr. Liu agreed to do so in exchange for $3,000. On June 6 and June 8, 2016, Mr. Liang showed him how to water the plants.
Trial Judge's Reasons
[23] The trial judge found that the circumstantial evidence supported the conclusion that Mr. Liu was involved in the production process, including:
1.Mr. Liu attended the residence on a regular basis;
2. He was found alone with the crop in the basement of the residence on June 8, 2016;
3. According to Staff Sergeant Patrick Murphy, called as an expert witness on the production, use, distribution, price, and packaging of cannabis marihuana, attendees at a significant grow operation “will be trusted individuals who can be expected to be engaged in the work of the grow op”; and
4. Mr. Liu was seen transporting a full garbage bag that resembled the bag of marihuana remnants transported by Mr. Zeng and was unable to provide a satisfactory explanation of its contents. [Emphasis by Author]
Misapprehension of Evidence
[37] From the foregoing, it is clear that the trial judge misapprehended the evidence of Staff Sergeant Murphy. He confused the notion that only trusted individuals would be permitted to attend at the grow operation (for whatever reason), with the notion that only trusted individuals who were working at the grow operation would be permitted to attend the same. In my view, this misapprehension was also material, as the mistake completely undermined Mr. Liu’s evidence and critically influenced the trial judge’s rejection of it.
Use of Expert Evidence
[39] In Sekhon, the Court considered the admission of anecdotal evidence given by an expert. In that case, the expert testified to the effect that in the thousand drug cases he had been involved in, he had never seen a “blind courier”—someone who did not know that drugs were on board their vehicle. The trial judge relied on that evidence in rejecting Mr. Sekhon’s testimony.
[40] The majority of the Court held:
[49] In my view, the trial judge erred in relying upon the Impugned Testimony. The fact that Sgt. Arsenault did not personally encounter a blind courier over the course of his investigations is neither relevant nor necessary, within the meaning ascribed to those terms by this Court in Mohan, to the issue facing the trial judge — namely, whether Mr. Sekhon himself had knowledge of the drugs. The Impugned Testimony, though perhaps logically relevant, was not legally relevant because the guilt or innocence of accused persons that Sgt. Arsenault had encountered in the past is legally irrelevant to the guilt or innocence of Mr. Sekhon (see Mohan, at pp. 20-21). In other words, the Impugned Testimony was of no probative value in determining whether Mr. Sekhon knew about the cocaine in the hidden compartment. It is trite to say that a fundamental tenet of our criminal justice system is that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons. Moreover, the Impugned Testimony was not necessary because determining whether Mr. Sekhon knew about the drugs is not beyond the knowledge and experience of the judge, and it is certainly not a matter that is technical or scientific in nature.
[50] The lack of relevance or probative value is, in my view, sufficient to justify the exclusion of the Impugned Testimony. However, it is worth noting the prejudicial effect that such evidence may have on a trial. I agree with Newbury J.A. to the extent that she found little to no difference between the Impugned Testimony in this case and a homicide investigator being permitted to testify that in all of the cases she or he has worked on, the accused intended the death of his or her victim. Nor do I see a difference between the Impugned Testimony and a stolen goods investigator testifying that he or she has never seen a case of innocent possession of stolen property, or an experienced fraud investigator testifying that he or she has never seen a case where a senior manager was not aware of fraudulent conduct occurring within the company (A.F., at para. 60). The inherent danger of admitting such evidence is obvious — as Newbury J.A. pointed out:
Anecdotal evidence of this kind is just that — anecdotal. It does not speak to the particular facts before the Court, but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown’s favour, and of coming from the mouth of an “expert”. If it can be said to be relevant to the case of a particular accused, it is also highly prejudicial. [para. 27]
This type of anecdotal evidence would appear to require the accused to somehow prove that, regardless of a particular expert’s past experience, the accused’s situation is different. Such a result is contrary to another fundamental tenet of our criminal justice system — that it is the Crown that bears the burden of proving the mens rea of an offence beyond a reasonable doubt. As the appellant points out, “such evidence would logically trigger a defence need to call evidence to refute such opinions, such as a retired investigator who did experience an innocent person in similar circumstances, or a witness who could testify that he or she was in the same circumstances of the accused and was innocent” (A.F., at para. 61). At that point, the trial would become a battle of experts — and a completely irrelevant battle at that.
[51] For these reasons, I conclude that the Impugned Testimony was inadmissible. [Emphasis by Author]
Analysis of Misuse Here
[41] In this case, Staff Sergeant Murphy initially testified that anyone in the grow operation would be there for a purpose connected to the cultivation of marihuana. That evidence was tendered to prove that anyone found in the grow operation, such as Mr. Liu, had to be there to engage in criminal activity. Ultimately, his evidence was not as definitive as that given in Sekhon, but it was still anecdotal evidence that did not advance the ability of the trial judge to properly assess the evidence. Like in Sekhon, it was logically relevant, but not legally relevant.
[42] Not only did the trial judge misapprehend the evidence, he used the mistaken anecdotal evidence as one of the main bases to reject Mr. Liu’s evidence, and as circumstantial evidence to support his conclusion that Mr. Liu was engaged in the work of the grow operation prior to his arrest.
[44] In other words, the misapprehension of the evidence was, in my view, sufficient to order a new trial. The error was compounded when guilt was inferred based on the misstated opinion of the expert.
[45] In the result, I would allow the appeal and order a new trial.
R v Young, 2020 BCSC 1201
[July 23, 2020] Charter s.9 - Ruse Stop, Charter s.10(b) - Delay Due to Structural Problems with local small-town detachment [Mr. Justice G.P. Weatherill]
AUTHOR’S NOTE: This case provides another example where a police officer's story about the reasons for the traffic stop fail to convince a trial judge because of the shear implausibility of the circumstances. The result: a finding that the traffic related reasons for the stop were a ruse for an unrelated criminal investigation which had no reasonable grounds to begin with. These cases are the point where the liberty to simply be left alone by the state finds its way into the court. Cases where hunches prove false and the traffic stop results in nothing, don't go to court. The question of how many times the same police officers interfere with the liberty of law-abiding citizens for no good reasons is the underlying reason why these cases are so important to the proper functioning of the criminal justice system.
Herein, the core difficulties in accepting the officer's stated reasons for the stop were the local notoriety of the driver and the fact that the officer, the knowledge of the office of the type of car he drove, and a call for backup before the officer confirmed who the driver was at the roadside.
Pertinent Facts
[1] THE COURT: Mr. Young faces five Criminal Code (“Code”) charges related to possession of a .22 calibre gun, .22 calibre ammunition, and three ammunition magazines, (together, the “Seized Items”) discovered by the RCMP during a roadside traffic stop of a white 2004 Hyundai Santa Fe vehicle, (“Hyundai”) in which he was riding as a passenger.
[5] Lake Country (also known as Winfield) is a small community north of the City of Kelowna. It has its own RCMP community policing detachment. The building is comprised of mostly offices and meeting rooms. It has no holding cells, facilities for taking fingerprints, or areas that can be used by detained persons to call lawyers. Although there have been exceptions, those arrested in Lake Country are typically taken to the Kelowna RCMP detachment, a drive of approximately 20 to 25 minutes.
[7] Constable Marshinew was alone in his marked police cruiser driving northbound on Highway 97 through the centre of Winfield. It was shortly after one o’clock a.m. He observed the Hyundai travelling southbound on Highway 97 and testified that he decided to conduct a random and routine traffic stop of it. He said his purpose was to check for licencing, insurance, and sobriety. He turned his cruiser around and followed the Hyundai for a short distance. He did not observe anything of concern. He activated his emergency lights and the Hyundai promptly pulled over and stopped at the side of the highway (“Traffic Stop”). He radioed the Hyundai’s licence plate to his dispatch officer and also requested Constable Grebe to attend for backup. Dispatch confirmed that the Hyundai was registered to a Mr. Anthony Roberts with whom Constable Marshinew was quite familiar. Indeed, Mr. Roberts was known by the Lake Country RCMP to be an unsavoury character with a lengthy criminal history including a conviction for robbery and wearing a mask. The Lake Country RCMP knew where he lived and they made a point of keeping an eye on him. They also knew he was the subject of a lifetime weapons prohibition.
[10] Constable Marshinew testified that his authority for the Traffic Stop was the Motor Vehicle Act and the Criminal Code. He stated that one of his duties as a police officer is to ensure that drivers comply with those two statutes. He stated that despite knowing that Mr. Roberts drove a Hyundai matching the vehicle that had passed him in the opposite direction, his decision to conduct the Traffic Stop had nothing to do with suspecting it was Mr. Roberts behind the wheel. He says that it was not until dispatch confirmed the Hyundai was registered to Mr. Roberts that the recollection of Mr. Roberts’ firearms prohibition and fleeing from a traffic stop months earlier came back to mind.
[12] Constable Hutt was nearby, having just departed Lake Country’s detachment a short distance away. He had overheard Constable Marshinew’s request that Constable Grebe attend for backup and decided to drive to the scene. He activated his unmarked police Tahoe’s emergency lights and pulled in front of the Hyundai. He also knew about Mr. Roberts’ infamy and wondered why he was out at 1:15 a.m. Constable Hutt exited his Tahoe and positioned himself behind Constable Marshinew who was at the driver’s window. He, too, recognized the Hyundai from prior dealings with Mr. Roberts and knew of Mr. Roberts’ significant criminal history. He knew he had to be extra vigilant when dealing with him.
[13] Despite Constable Marshinew having seen nothing to indicate Mr. Roberts was impaired in any way and although he agreed he had no grounds to do so, he directed Mr. Roberts to exit the Hyundai. He did so, he testified, because both Mr. Roberts and the accused appeared to be nervous and fidgety and he wanted to separate them. Mr. Roberts complied.
[14] At some point, either as Mr. Roberts was in the process of exiting the Hyundai or after he was already outside, Constable Marshinew caught a quick glimpse of the accused lean forward and quickly stuff something into his jacket. This movement was referred to during the voir dire as the “stuffing motion”. Constable Marshinew did not see what the object of the stuffing motion was nor indeed whether there was an object involved. Nevertheless, he immediately suspected the accused had a gun. The stuffing motion surprised and startled Constable Marshinew who immediately advised Constable Hutt that the passenger had stuffed something into his jacket.
[15] Concerned for officer safety, especially since he already knew Mr. Roberts was known to carry weapons, Constable Marshinew reacted quickly. He turned Mr. Roberts over to Constable Hutt, ran around to the front of the Hyundai, pointed at the accused with his left hand, placed his right hand on his service weapon and, in a loud demanding voice, ordered the accused to show him his hands. The accused appeared very scared. Constable Marshinew described that his eyes were “as big as saucers”.
[16] The accused complied with Constable Marshinew’s demand, showed him his empty hands, but then dropped his hands out of sight. This prompted Constable Marshinew to run around to the passenger door, open it, forcefully eject the accused from the Hyundai, spin him around, and pin him against the Hyundai with his hands on its roof. As he did so, a large cylindrical metal object which turned out to be a barrel-type ammunition magazine (“Barrel Magazine”) fell out of the accused’s coat onto the ground.
[17] The accused spontaneously volunteered to Constable Marshinew, “It’s only .22 bullets”. At that point, Constable Marshinew believed there was a gun associated with the Barrel Magazine and demanded that the accused tell him where the gun was that went with it. The accused replied that it was in a black bag on the floor of the Hyundai where the accused had been sitting (“Black Bag”). The accused volunteered, “It’s only a .22. I found it”. Constable Marshinew asked the accused if he had a licence for the gun and the accused replied that he did not.
[19] Constable Marshinew immediately arrested the accused for unlawful possession and storage of a firearm and handed the accused to Constable Hutt who handcuffed him and took him away to his Tahoe. Once there, Constable Hutt re-arrested the accused and provided him with both a Charter warning and a police warning. Following Constable Hutt’s Charter warning, the accused stated that he wished to speak to a lawyer.
[20] ... In the Black Bag mixed in with tools, personal belongings, and other paraphernalia, Constable Grebe located a firearm (later determined to be a Ruger .22 calibre semi-automatic), a “banana” clip and clear plastic clip, both almost fully loaded with .22 calibre ammunition. He also determined that the Barrel Magazine was nearly fully loaded with .22 calibre ammunition. All of these items comprise the Seized Items. He photographed the Seized Items and placed the Black Bag back on the passenger floor of the Hyundai for more photos. He also asked Constable Hutt to remove the accused from the Tahoe and took a photo of him.
[21] Constable Hutt remained at the scene with the accused handcuffed in the rear of his Tahoe for approximately 20 minutes before leaving to transport him to the Kelowna RCMP detachment for processing. The reason for this extra 20 minutes was not fully explained.
[23] Constable Hutt eventually left the scene with the accused and drove to the Kelowna RCMP detachment, arriving at approximately 2:00 a.m. (35 minutes or so following the arrest). After completing paperwork, Constable Hutt arranged for the accused to contact Legal Aid. Because the accused was going to be released on a promise to appear, the accused stated that he no longer wished to speak to counsel. At 2:25 a.m., the accused was released from custody.
[24] Mr. Roberts was not ticketed or charged and was allowed to leave the scene in the Hyundai at 2:15 a.m. All told, the officers were at the scene for about one hour.
Assessment of the Evidence of Constable Marshinew
[28] Of greatest concern is Constable Marshinew’s evidence about the reason for the Traffic Stop. He testified that he did not know the Hyundai belonged to Mr. Roberts before he decided to initiate the Traffic Stop. I have concluded that he decided to stop the Hyundai either knowing or highly suspecting it was Mr. Roberts he was stopping. This is based on a number of factors including the following:
- Mr. Roberts was notorious at the Lake Country detachment such that the officers stationed there made a point of keeping an eye on him;
- Constable Marshinew’s evidence was that he suspects Mr. Roberts to have evaded a police stop approximately two weeks before;
- Constable Marshinew knew that Mr. Roberts owned and drove a vehicle identical to the Hyundai; and
- during Constable Marshinew’s first radio call to dispatch and before the owner of the Hyundai was confirmed to be Mr. Roberts, he asked Constable Grebe to attend for backup; it would have been unusual to call for backup in a routine traffic stop.
I have come to this conclusion reluctantly because it means I did not believe Constable Marshinew’s evidence on the reason for initiating the Traffic Stop.
[30] Where Constable Marshinew’s testimony conflicted with Constable Hutt’s, I prefer that of Constable Hutt.
Charter s.9 - The Ruse Traffic Stop
[33] The Crown properly concedes that the Traffic Stop was an arbitrary detention.
[35] However, random traffic stops are limited to their intended purposes. A traffic stop initiated for no valid purpose is flawed and a breach of the Charter: R. v. Harrison, 2009 SCC 34; R. v. Ladouceur, 2002 SKCA 73; and R. v. Nolet, 2010 SCC 24.
[36] Subject to the foregoing, the police are not entitled to arbitrarily stop vehicles without reasonable and probable grounds to believe the occupants are engaged in criminal activity. They cannot stop a vehicle on a hunch that the occupants might be up to something and they want to search the occupants or the vehicle: R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615 at 629.
[37] I have already stated my finding regarding the reason for the Traffic Stop. It was not a routine traffic stop as Constable Marshinew suggests. To the contrary, I conclude that Constable Marshinew was on patrol, travelling northbound in Winfield when he saw the Hyundai travelling in the opposite direction and knew or highly suspected that it was Mr. Roberts behind the wheel. He decided to stop the Hyundai and see what Mr. Roberts was up to under the guise of a routine traffic stop. I conclude he was specifically targeting Mr. Roberts.
[44] I am satisfied that the search of the Black Bag was made incidental to the accused’s arrest and, if the accused’s arrest was legal, so was the search of the Black Bag.
Charter s.10(b) - Access to Counsel without Delay
[45] Constable Marshinew had four interactions with the accused which all occurred during the events that were unfolding quickly:
- when Constable Marshinew asked the accused to identify himself and the accused complied;
- when the Barrel Magazine fell from the accused’s jacket and the accused spontaneously stated, “It’s only a .22”;
- when Constable Marshinew responded by asking the accused, “Where is the gun that goes with it?”, and the accused responded that it was in the Black Bag; and
- when Constable Marshinew asked the accused if he had a licence for the gun to which the accused replied, “No”.
[46] In addition, Constable Hutt had interactions with the accused while he was in the rear of the Tahoe and the accused mentioned that he had found the Black Bag earlier that evening.
[47] These interactions with the officers will jointly be referred to as the “Statements”.
[51] However, I conclude that the scene was secure immediately upon the accused being removed from the Hyundai and handcuffed. At that point, the accused’s s. 10(a) and 10(b) Charter rights were engaged and he had the right to know immediately the reason for his arrest and his right to counsel: R. v. Suberu, 2009 SCC 33, at para. 42.
[52] I do not accede to the suggestions by Constables Marshinew and Hutt that they continued to feel threatened after the accused was handcuffed. There were no realistic police or public safety issues. Both occupants of the Hyundai were secured in handcuffs and three fully equipped police officers were present. It was at that point the accused’s Charter rights were engaged.
[54] Section 10(b) of the Charter imposes a duty upon the police on arresting or detaining a person:
(1) to inform the detainee of his or her right to retain and instruct counsel …
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
(R. v. Taylor, 2014 SCC 50, at para. 23)
[55] Constable Marshinew had a duty to inform the accused of his s. 10(b) right to counsel immediately upon his arrest. Instead, he handed the accused over to Constable Hutt who waited until he had placed the accused in his Tahoe to inform him.
[56] The officers also had an obligation to facilitate the accused’s access to counsel at the earliest practical opportunity: Taylor at para. 32.
[57] Upon Constable Hutt providing the accused with his s. 10 (b) Charter rights while in the rear of the Tahoe and upon the accused stating that he wished to consult counsel, in my view, Constable Hutt should have transported him to the Lake Country detachment which was a drive of approximately one minute and facilitated the phone call. To suggest that the policy is to transport detained persons to Kelowna, a drive of 20 to 30 minutes, instead, is not “immediate” or “without delay” as is required. I do not accept that arrangements could not have been made for the accused to be given a private telephone somewhere at the Lake Country detachment.
[58] The evidence is that the accused was arrested at approximately 1:25 a.m. Immediately upon Constable Hutt providing the accused with his 10(b) Charter right, the accused indicated his desire to consult a lawyer. He did not withdraw his desire to speak to counsel until after he had been taken to the Kelowna RCMP detachment arriving at about 2:00 a.m. when he was told he would be released. In my view, given the availability of the Lake Country detachment nearby, this 35-minute delay with no access to counsel was unreasonable and a breach of his s. 10(b) Charter rights.
[59] It must be remembered that the accused’s s. 10(b) right is not just the right to counsel, it is the right to counsel without delay regardless of the circumstances and regardless of whether evidence may have been elicited before access to counsel has been facilitated: R. v. Moyles, 2019 SKCA 72, at para. 81. “Without delay” means as immediately as is reasonable and the failure on the part of Constables Marshinew and Hutt to do so was a breach of the accused’s Charter rights.
Charter s.24(2)
Seriousness of the Charter Violation
[67] Respecting the first Grant factor, in my view, the s. 9 breach was on the higher end of the seriousness scale because the Traffic Stop improperly targeted Mr. Roberts who was simply driving late at night with the accused as his passenger. Constable Marshinew suspected Mr. Roberts was up to no good. The public should be allowed to go about their business without being randomly and arbitrarily detained under the guise of a traffic stop to check for sobriety, insurance, and licencing. In my view, what occurred was egregious and deliberate and, if allowed, could lead to serious erosion of public confidence in the justice system. There is a need for the court to disassociate itself from such behaviour.
[68] This factor favours exclusion of the Seized Items and Statements from evidence.
Impact on the Protected Right
[69] Respecting the second Grant factor, I consider that the impact of the breach on the accused’s privacy was serious. It was intimidating, scary, and intrusive. He was shouted at in a threatening fashion by a highly armed officer with one hand on his gun. On Constable Marshinew’s evidence, the accused was fearful for his safety. When weighed against the totality of the events, this too favours excluding the evidence.
Balancing
[76] It follows that the defence application must be allowed. I rule that the Seized Items and the Statements cannot be admitted at trial pursuant to s. 24(2) of the Charter.
[Crown led no evidence - Accused acquitted.]
R v Sandhu, 2020 BCPC 160
[August 19, 2020] – Impaired Driving - Mental Intent for Impairment by Combination of Alcohol and Drug [T. Gouge J.]
AUTHOR’S NOTE: Usually the mental intent for impaired driving is a no-brainer. A person does not generally drink alcohol unintentionally. Nor do they get behind the wheel though accident if they are found driving. However, the issue of interactions between medications and alcohol is more complex. As this case illustrates, where a person does not know the interactions of their medication with alcohol, there is a possible defence.
Overview
[2] Mr. Sandhu says that, on the evening in question, he was intoxicated by a combination of alcohol and prescription medication (Gabapentin), which deprived him of: (i) the ability to make conscious choices; and (ii) any memory of the events in issue, and that he did not anticipate that the combination of those two drugs would cause him to behave as he did. For that reason, he says that he cannot be held criminally responsible for his actions. If true, that might afford him a defence to the charges of dangerous driving and fleeing a police officer. However, as will become apparent: (i) Mr. Sandhu carries the onus on that issue; (ii) the onus can be discharged only by the evidence of a psychiatrist or psychologist; and (iii) no such evidence was tendered by the defence in this case.
[3] The charge of impaired driving raises a different issue. Before the events in question, Mr. Sandhu made no enquiry as to the intoxicating effects of taking Gabapentin and alcohol together. That was grossly and inexcusably careless. If it were shown that such enquiries would have alerted him to the danger, I would conclude that such carelessness would be sufficient to establish the necessary mens rea. However, there is no evidence of the response which Mr. Sandhu would have received (for example, from his doctor or pharmacist) if he had made such an enquiry. In the absence of evidence to support the inference that, had he made such an enquiry, the reply would have alerted him to the risk, I do not think that gross and inexcusable carelessness constitutes a sufficiently guilty mind to support a criminal conviction.
Impaired Driving
[34] Mr. Sandhu’s defence is founded upon two propositions: (i) he drove in a manner dangerous to the public and failed to stop when directed to do so by Corporal Neilson because he was in a dissociative state; and (ii) that dissociative state was caused by the combination of alcohol and Gabapentin. It necessarily follows, that, by his own account, Mr. Sandhu operated a motor vehicle while his ability to do so was impaired by alcohol and/or a drug, and the actus reus of the offence is established by his own evidence.
[35] However, that does not end the enquiry. In this case, Mr. Sandhu says, and it may be true, that he did not realize that the combination of Gabapentin and alcohol might impair his ability to drive safely.
[36] The Crown must prove the mental element of the offence beyond a reasonable doubt: R. v. Bax. 2018 AJ No. 1171; 2018 ABPC 223 at para. 17.
[37] There is no evidence to support an inference that Mr. Sandhu actually knew of the risk associated with taking Gabapentin with alcohol.
[38] I am indebted to Justice Gorman of the Provincial Court of Newfoundland and Labrador for his thorough and scholarly review of the relevant jurisprudence in R. v. Allingham [2018] NJ No. 240; 30 MVR (7th) 54 at paras. 94 to 100. I conclude that Mr. Sandhu may be convicted of impaired driving if he was reckless as to the potential consequences of combining Gabapentin with alcohol or if he was wilfully blind to those consequences.
[39] “Wilful blindness” was defined in R v. Briscoe 2010 SCC 13 (CanLII), [2010] 1 SCR 411 at para. 21 [italics in the original]:
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. … "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"
There is no evidence to support an inference that Mr. Sandhu made a conscious choice to refrain from enquiries as to whether it would be dangerous to mix Gabapentin and alcohol. No such proposition was put to him during his cross-examination. If it were incumbent upon the Crown to establish willful blindness, the onus has not been discharged.
[40] “Recklessness”, in this context, was defined by Glanville Williams in the following terms in his Textbook of Criminal Law (1987) [underlining added]):
Intention means a volitional movement (or omission), knowledge of the relevant circumstances and a desire that any relevant consequence shall follow. An act can be said to be intentional, but not as to a circumstance that is not known or a consequence that is not desired.
After many doubts, it is now generally agreed that recklessness means not gross negligence (an objective meaning) but advertent negligence (a subjective meaning). Ordinarily, it would be sufficient to tell the jury that recklessness means that the defendant realised the probability of the consequence or of the circumstance in question. Occasionally that may be too favourable to the defendant, when it will be better to instruct the jury in terms of knowingly running an unreasonable or unjustifiable or unacceptable degree of risk, having regard to the social value if any of what the defendant was doing."
That definition was adopted in R. v. MacCannell [1979] OJ No. 3419; 3 MVR 264 at para. 21.
[41] However, the law of British Columbia appears to be different. I cannot reconcile a requirement for advertent negligence with the decision in R. v. Charles [2013] BCJ No. 24; 2013 BCSC 23. At para. 61 of that decision, Justice Sigurdson said:
The conduct of the respondent was reckless for these reasons. She did not know what the pills were that she was consuming with alcohol. She had not taken them before. She did not inquire into what the pills were or what effects they might have when mixed with alcohol. She knew only that they were like super Extra Strength Tylenol and that they were a powerful pain medication used for "the most painful medical disease known to the medical community". She acknowledged that she "took a chance with one drink".
[42] I conclude that, in British Columbia, gross and inexcusable carelessness may constitute “recklessness”, and so may constitute sufficient mens rea to support a conviction for impaired driving.
[43] There is one factor which serves to distinguish this case from Charles. There is no evidence in this case which could support an inference that Mr. Sandhu would have learned of the risk of mixing Gabapentin and alcohol if he had made reasonable enquiries on that subject. That risk is not mentioned in the Wikipedia article to which Ms. Kirkwood referred, nor in the results of the internet search conducted by Mr. Sandhu while awaiting trial. The patient information leaflet is not in evidence. No doctor or pharmacist was called to give evidence of the advice which would be given in response to an enquiry from a patient on the subject. In my opinion, a failure to make reasonable enquiries cannot constitute the requisite mens rea unless it is proven that reasonable enquiries would have disclosed the danger. The Crown carries the onus on this issue, and that onus is undischarged.
[44] I convict Mr. Sandhu of dangerous driving and fleeing from a police officer, and acquit him of impaired driving.
