14 PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #24121008 HER MAJESTY THE QUEEN and Leonard C. Cheney S.C. Carter, P.C.J J. Field, Q.C., CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. T. Forsyth, SANDERSON, BALICKI, POPESCUL LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. [1] The accused is charged that on the 24th day of September, 2001, at the Prince Albert District in the Province of Saskatchewan, he had the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug. [2] Does the accused’s evidence, which was to the effect that when stopped by the police he was suffering from panic attack, raise reasonable doubt as to his guilt? [3] On September 24, 2001, the R.C.M.P. officers were dispatched to trailer park at the south end of Prince Albert, Saskatchewan. The officers were told that an intoxicated male was operating brown, two-toned pick up truck. Officers McDermid and Johnson responded to the scene. After turning off Highway #2 and onto 48th Street they saw motor vehicle matching the description they had been given at “T” intersection which leads into the trailer court from 48th Street. This vehicle turned left onto 48th Street and then began to travel east on the gravel road. [4] Cst. McDermid was driving the police vehicle. He said that the truck was “all over the road”. In his evidence-in-chief he testified that this meant that the truck swerved into the left-hand side of the road more than four or five times. In cross-examination he admitted that he made no notes about exactly how many times but insisted that it was more than two times. McDermid activated his emergency lights. The truck did not immediately pull over so he activated his siren. Again the truck did not pull over so he drove beside the truck and motioned to the driver indicating that he must pull over. He described how the driver, later identified as the accused, slowly turned to look at the police vehicle and then slowly looked back in front of him and pulled the truck over. From the time he activated his flashing lights until the accused pulled over the distance travelled was approximately half kilometre. [5] Cst. McDermid stopped his vehicle and walked to the driver’s door. He found the accused to be the driver and only occupant of the vehicle. He smelled “strong odour of liquor” coming from the accused as well as from the inside of the vehicle. Once the accused was outside of the vehicle he was very unsteady on his feet “to the point where we grabbed him so he would not fall”. These observations together with the erratic driving led him to conclude that the accused was an impaired driver. He arrested the accused and advised him of his right to retain and instruct counsel without delay. The accused took advantage of his Charter right. With the assistance of Cst. McDermid he made numerous attempts to contact and finally managed to contact lawyer over the telephone. During the process of helping the accused get through to lawyer, Cst. McDermid was standing foot or two away from the accused. He noted that strong odour of liquor was still coming from the accused’s breath, his eyes were blood shot and he now had “very bad slurred speech”. Cst. McDermid watched through an observation window as the accused used the telephone and at one point he thought that the accused was going to fall out of his chair. As the efforts to contact lawyer continued the accused’s motor skills were getting slower and he began to fall asleep. When leaving the breath test room, Cst. McDermid noted that the accused still displayed signs of impairment. His speech was “really slurred”. His eyes were blood shot. He was still unsteady on his feet. The accused’s blood-alcohol readings were .70 and .60 and thus no “over 80" charge was laid. [6] Cst. Johnson had been on the job as R.C.M.P. officer for very short period of time. His evidence was that he remembered the accused’s “fine and gross motor skills” were “really slow”. He also recalled that the accused leaned against objects to keep his balance. This last observation was made at the detachment in the cell area. The Defence Evidence [7] The accused testified that he suffers from panic attacks and that, when stopped by the police, he was in the grip of such an attack. He admitted to consuming one vodka cooler before driving but argued that the signs of impairment displayed by him were the manifestations of his panic attack not from the consumption of alcohol. [8] The accused has been diagnosed as suffering from general anxiety disorder. (G.A.D.). Dr. Josias Badenhorst, general practitioner in Prince Albert, Saskatchewan with knowledge and experience in this particular area, was qualified by the court to give expert evidence concerning this disorder. He testified that G.A.D. is caused by sedative deficiency in the brain and is related to depression. On one side of the spectrum, this deficiency causes mild anxiety. On the other it causes panic attacks. There are 13 symptoms any four of which must be manifest for at least 10 minutes before diagnosis of panic attack can be made. These symptoms include: sweating, shortness of breath, chest pains, nausea, feeling faint or dizzy, numbness, chills or hot flashes. The attacks do not usually last very long although there is no specific time length. After the attack passes, people remember certain things but do not normally remember much. They can be precipitated by going off medication, consuming alcohol, stress, and lack of sleep. He testified that most of the symptoms displayed in panic attack are caused by hyperventilation which deprives the blood of oxygen poisoning it with carbon dioxide. [9] The accused’s wife testified as to her husband’s panic attacks. She recalled two such attacks before they were married. The attacks came in busy, crowded areas after the accused had worked for long hours and was feeling under great deal of stress because of his mother’s health. She testified that her husband shook, went, white and his pupils dilated. She could make no sense of his conversation. He was sweating and did not know where he was. She said that these attacks lasted 24 48 hours after which he slept for long periods of time. She described these two episodes as extreme. She says that she has witnessed less severe attacks with similar symptoms. Alcohol had not been involved with any of the attacks that she witnessed. [10] The accused testified that he is an alcoholic. His life has been journey which has included very high levels of personal and professional achievement as well as extremely low periods which included living on the streets of Edmonton. He spent some periods of time in mental institution in Alberta. He has been diagnosed as suffering from G.A.D.. [11]. The events leading up to September 24 were extremely stressful for the accused. His mother was extremely ill and suffering from Alzheimer’s’. He was in charge of her welfare. His sister, who suffers from cerebral palsy, was in the process of moving back from Calgary to Prince Albert. He was also looking after her. He was working long hours renovating an office building. Finally, he also got married on September 15, 2001. The couple’s honeymoon was spent in hotel room after the ceremony and then rental cabin at Waskesiu in the Prince Albert National Park. It was at this rental cabin that he began to drink again. [12] His wife testified that at the rental cabin she awoke at about 4:00 in the morning on September 16 to find that her new husband was “well on his way”. He drank and slept. In the morning she testified that she literally had to put him into the van. She drove him back to Prince Albert and dropped him off at his mother’s house where he was living. She will have nothing to do with alcohol and did not see him for about month. She testified that when she did see him he was trying to sober up and that his anxiety level was extremely high. [13] The accused testified that he started to drink in the early hours of September 16, 2001 after two years of remaining sober. He testified that he drank for day and half straight. He did not eat and could not sleep. He was no longer taking his medication because he said he stopped when he began to drink. On September 24, 2001, he testified that he got up at 7:30 8:00 a.m. feeling pretty shaky. He got things together for his mother. At 11:00 a.m. he drank vodka cooler to “settle me down so could concentrate”. His wife was not speaking to him. He decided to drive to the trailer court where she was staying in order to drop off some of her clothing for her. He described his condition as being emotionally upset. He had not slept for week. He was upset over the wedding. He was “working like robot”. He recalled driving to the trailer and pulling onto the left-hand side of the driveway. He saw person named Brad who came out of the garage and he spoke to Brad about the clothes. Brad told him to put the clothes into car which the accused did. Brad then went back into his garage. The accused said that he smoked about three-quarters of cigarette hoping that Brad would come back to talk to him. When he did not come, he stubbed out his cigarette and then drove out of the trailer court and then east on 48th Street where he was pulled over by the police. [14] He remembered being told by the police that he had been stopped because he was swerving all over the road although he thought he had been driving in straight line. He remembered being told that he was being arrested for impaired driving. He recalled being taken to the R.C.M.P. detachment and also recalled calling seven or eight lawyers trying to get legal advise. He recalled the telephone booth that he sat in to make the calls. He recalled blowing once into the breath testing instrument although he was told that he actually blew twice. He did not recall the drive back to his mom’s house but recalled getting back to his mom’s house. He had no recollection of any difficulty in sitting on the chair in the phone booth at the detachment. He said that it was possible that he was unsteady on his feet because “I was into my panic disorder”. [15] The defence argues that the police officers were focused on impairment by alcohol because they had been told by their dispatcher that the operator of the two-toned brown Ford pick-up might be drunk. They argue that this focus blinded the police from seeing any other possibilities. The defence position is that the signs and symptoms of impairment displayed by the accused were the result of, or were equally consistent with, a panic attack. [16] The difficulty with this argument is that the evidence does not support it. Dr. Badenhorst confirmed that the accused had been diagnosed as suffering from G.A.D.. He has prescribed mild dose of Librium to help calm the accused. However, the evidence of Dr. Badenhorst is that most of the symptoms of panic attack are brought on by hyperventilation which has the effect of aggravating the problem because hyperventilation deprives the body of the oxygen it needs. There was no evidence of any hyperventilation by the accused. No shortness of breath which could have caused problems for the breath test. There is no evidence of sweating or of nausea or of chest pains or numbness or hot or cold flashes. According to Dr. Badenhorst, when in panic attack, one would expect the patient to have speech problems in the sense of choking, not the slurring of speech. In addition one apparently does not fall or begin to fall asleep during such an attack. The accused’s memory of the events prior to and during and after the driving and his arrest was quite good. [17] The condition the police found the accused in was nowhere near to what his wife told the court she has seen when panic attack is upon her husband. She described high level of anxiety with incoherent speech, shaking and sweating. The police officer found relatively coherent, calm person who later began to fall asleep when they were dealing with him. [18] Although the accused testified that he was into his panic attack his evidence was that he was working hard, stressed out about his marriage, stressed out about his mother and sister, off his medications, drinking, and not sleeping. He testified that he was like robot. [19] do not believe the accused when he testified that he was in the throws of panic attack. Nor does his evidence and that of the doctor raise reasonable doubt as to the possibility of him being in such an attack. [20] The blood-alcohol readings testified to show that the accused was below the legal limit but in my view that evidence together with the other evidence involving consumption of alcohol and the signs and symptoms of impairment by alcohol prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol: see R.v. Stellato, (1993), 1993 CanLII 3375 (ON CA), 18 C.R. (4th) 127 (Ont. C.A.), affirmed 1994 CanLII 94 (SCC), [1994] S.C.R. 278, 31 C.R. (4th) 60; R.v. McCallum, (1995), 1994 CanLII 4646 (SK CA), 35 C.R. 266 (Sask. C.A.). As was stated by the court in McCallum the fact that the effects of alcohol may have been exacerbated by the accused suffering from fatigue does not provide defence to the charge. [21] I find the accused guilty as charged. DATED this 28th day of January, A.D., 2003, at the City of Prince Albert, in the Province of Saskatchewan. S.C. Carter, Provincial Court Judge
The accused was charged with operating a motor vehicle while impaired by alcohol or drug (Code ss.253(a) and 255(1)). The accused admitted to consuming one vodka cooler before driving but argued the signs of impairment were manifestations of his panic attack. No .08 charge was laid, as his readings were .07 and .06. HELD: The accused was found guilty of impaired driving. The evidence did not support the argument that he was in the throws of a panic attack. The blood-alcohol readings show he was below the legal limit but the signs and symptoms of impairment by alcohol proved beyond a reasonable doubt his ability to operate a motor vehicle was impaired by alcohol. As stated in McCallum, the fact that the effects of alcohol may have been exacerbated by the accused suffering from fatigue does not provide a defence to the charge.