IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Sandhu is charged with three offences: (i) dangerous driving, contrary to s. 249(1)(a) of the Criminal Code; (ii) failing to stop a motor vehicle when directed so to do by a police officer, contrary to s. 249.1(1) of the Criminal Code; and (iii) impaired driving, contrary to section 253(1)(a) of the Criminal Code. The actus reus of each offence is proven beyond a reasonable doubt.

[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.

[4]           The following are summaries of the evidence of the significant witnesses. As noted below, I accept some of the evidence as accurate and have doubts about some of the evidence. In the interest of brevity, I have omitted the phrase “the witness said” from the summaries.

[5]           Ms. Krausher is a supervisor at Carlos O’Brien’s Pub in Nanaimo. She has many years of experience in the restaurant industry, and has had encounters with many patrons in various states of intoxication. One of her responsibilities in her present employment is to watch out for intoxicated customers and to take appropriate measures to ensure the safety of such customers and of the public generally.

[6]           Prior to March 30, 2017, Ms. Krausher had encountered Mr. Sandhu many times at Carlos O’Brien’s Pub, she in her capacity as an employee and he as a customer. She first learned his name on March 30, 2017 as a result of the events described below.

[7]           Ms. Krausher was on duty as a supervisor on the evening of March 30, 2017. She observed Mr. Sandhu and another man enter the pub during the evening. She recognized Mr. Sandhu from his previous visits. She observed that both men were consuming alcohol, but she was not their server, and cannot say how much each man had to drink. Before they left, shortly after 9 p.m., Mr. Sandhu paid their bill, which totalled $263.32. Mr. Sandhu also left a gratuity of $65.83. Ms. Krausher was near their table when Mr. Sandhu paid the bill, and spoke to him as he left the pub. He spoke lucidly and responsively during the interchange and displayed no signs of intoxication.

[8]           Ms. Krausher next saw Mr. Sandhu at about 10 p.m. on the same evening. He was unaccompanied, walking up the stairs leading from the parking lot to the main entrance to the pub. He was staggering and weaving from side to side. He was reaching out to a railing in an attempt to keep his feet. Ms. Krausher approached within a foot of him and told him to leave the pub. Ms. Krausher does not recall that he made any audible response. He did not make eye contact with her. He left the pub and went to a white Cadillac which was parked outside the pub, 20 to 50 feet from Ms. Krausher’s vantage point. He entered the driver’s side and sat in the driver’s seat. Ms. Krausher observed him get out of and back into the Cadillac two or three times. Ms. Krausher telephoned the police non-emergency line to report him as an impaired driver. She made a note of the license plate of the Cadillac, British Columbia plate #DM2 90S, and provided it to the police operator. The police operator asked her to call 911 if Mr. Sandhu set the Cadillac in motion. Mr. Krausher kept the Cadillac under direct and continuous observation for about 20 minutes, at which time Mr. Sandhu set the Cadillac in motion. As he did so, Ms. Krausher called 911 to report that development, and approached the vehicle. The Cadillac passed within five feet of her as it left the parking lot. Ms. Krausher observed Mr. Sandhu in the driver’s seat as it passed her. She saw no one else in the Cadillac. Mr. Sandhu drove the Cadillac out of the parking lot at a reasonable pace and turned south on Stewart Avenue.

[9]           Corporal Neilson is an RCMP officer stationed in Nanaimo. Shortly after 10 p.m. on March 30, 2017, she heard a message on the police radio, reporting a suspected impaired driver leaving the parking lot of Carlos O’Brien’s Pub in a white Cadillac. A subsequent message provided the vehicle license number, British Columbia plate #DM2 90S. She observed a white Cadillac leave the parking lot of Carlos O’Brien’s Pub and turn south on Stewart Avenue. She followed the Cadillac and noted that its license plate number matched that provided by the RCMP dispatcher. The Cadillac was proceeding slowly in the right-hand lane and swerving from side to side. Corporal Neilson activated her dashboard camera (which records events in front of her police car) and then her emergency lights. When the vehicle did not respond, she activated her siren. The Cadillac immediately accelerated. Her dashboard camera is equipped with radar which measures the speed of a vehicle in front of her police car. Before she activated her siren, the Cadillac was moving at speeds between 48 and 65 kilometres per hour. The posted speed limit on Stewart Avenue was 50 kilometres per hour. Immediately after she activated her siren, the Cadillac accelerated to 80 kilometres per hour and went through a red light at the intersection of Stewart and Terminal Avenues at that speed. Corporal Neilson followed at a slower speed and went through the red light at the same intersection in pursuit of the Cadillac. She observed the Cadillac run through a second red light, at the intersection of Terminal Avenue and Comox Road, at a speed of 100 kilometres per hour. After passing through that intersection, the Cadillac continued to accelerate south on Terminal Avenue. At that point, Corporal Neilson decided to abandon the chase. She made enquiries on her on-board computer and ascertained that the registered owner of the Cadillac (later identified as Mr. Sandhu’s father) lived at an address about two kilometres away, so she drove at a prudent speed to that address. There she found the white Cadillac, readily identified by its license plate, parked in the driveway. There was no one in the vehicle. No lights were on in the house. The hood of the Cadillac was hot and she detected the smell of overheated brakes. Other RCMP officers joined her. She knocked loudly on the door of the house and rang the doorbell twice, but elicited no response. She walked around the house, but saw no sign that the house was occupied. She rang the doorbell again, without response. She returned to the Cadillac, and observed that the driver’s door was unlocked. She opened the driver’s door and observed fresh vomit on the driver’s seat, on the door sill and on the floor. There was a cell phone on the passenger seat which was unlocked. She turned on the cell phone and the name “Premi” came up on the screen. She observed an entry entitled “Home” on the contact list on the cell phone. She dialled that number and a male voice answered. She asked the man to come to the front door of the house and speak with her. The response was unintelligible. She repeated her request and the man hung up. Corporal Neilson found a driver’s license in the console between the front seats of the Cadillac. It bore the name “Premi Sandhu” and the address to which the Cadillac was registered.

[10]        Constable Neilson described the area through which the Cadillac passed while under her observation. Stewart Avenue, Terminal Avenue and Comox Road are all main thoroughfares, each four lanes wide. The buildings fronting on Stewart Avenue include apartment blocks, motels, restaurants and marinas. Several other vehicles, travelling in the opposite direction to the Cadillac, are visible on Constable Neilson’s dashboard video. Nanaimo’s entertainment district is centred on an intersection a few hundred metres south of the point at which Constable Neilson ceased her pursuit.

[11]        At the time of the incident, Mr. Sandhu was 32 years of age. He graduated with a business degree from Vancouver Island University. After graduation, he found employment as a financial advisor with Sun Life Insurance Company. However, his career was interrupted by a health issue which arose in 2015. As a result, he was off work from November 2015 to February 2017. In 2015, he was diagnosed with an ingrown hair on his spine which required several surgeries. After surgery, he was prescribed opiates for pain management. He found the opiates to be unsatisfactory. In October 2016, his doctor prescribed another pain medication (“Gabapentin”) to replace the opiates. Mr. Sandhu found Gabapentin to be much more suitable for his needs, and used it daily from October 2016 to June 2017. His dosage comprised three tablets of one hundred milligrams each, three times daily.

[12]        Mr. Sandhu noticed that Gabapentin, unlike the opiates previously prescribed for him, appeared to have little or no intoxicating effect. Its only effect appeared to be to render him slightly more emotionally labile than normal. He did not consume alcohol with Gabapentin prior to March 30, 2017.

[13]        Mr. Sandhu had his father’s permission to use the father’s white Cadillac, British Columbia license plate #DM2 90S. On March 30, 2017, Mr. Sandhu used that vehicle to pick up his friend, Mr. Low, and to drive from Mr. Low’s apartment to Carlos O’Brien’s Pub. They were at the pub together for two to three hours, and left shortly after 9 p.m. Mr. Sandhu consumed no alcohol before he arrived at Carlos O’Brien’s Pub. While at Carlos O’Brien’s Pub, he drank some beer, but no more than two servings, and one “shooter” (a confection of hard liquor and flavouring). His primary activity during the evening was playing pool with a group of like-minded patrons, some of whom he had encountered on previous visits to Carlos O’Brien’s Pub. He ordered food and shooters for the other players, including Mr. Low. Shortly after 9 p.m., he paid the bill and drove Mr. Low back to his apartment. He felt no signs of impairment as he did so. He visited in Mr. Low’s apartment from about 9:15 p.m. until shortly before 10 p.m., and consumed no alcohol or drugs during that period. As he left Mr. Low’s apartment shortly before 10 p.m., he took three Gabapentin tablets of 100 milligrams each. It was his intention to drive directly from Mr. Low’s apartment to his parents’ home. He did not intend to return to Carlos O’Brien’s Pub that evening. He has no memory of any events that evening after he left Mr. Low’s apartment shortly before 10 p.m. In particular, he has no memory of driving a second time from Mr. Low’s apartment to Carlos O’Brien’s Pub, of encountering Ms. Krausher, of being pursued by a police car or of his return to his parents’ home.

[14]        During his evidence in chief, Mr. Sandhu said that, prior to March 30, 2017:

[15]        While awaiting trial on the present charges, Mr. Sandhu conducted a search on the internet, and found there some information about Gabapentin, which he printed from the website. The internet search took him about 20 minutes. Mr. King tendered the document in evidence during Mr. Sandhu’s evidence in chief. The following exchange ensued:

[16]        Mr. Low corroborated Mr. Sandhu’s account of events prior to 10 p.m. on March 30, 2017. In particular, he said that Mr. Sandhu consumed no alcohol or other drugs before they arrived at Carlos O’Brien’s Pub sometime between 6 and 7 p.m., that Mr. Sandhu consumed two servings of beer (and no other drugs or alcohol) at Carlos O’Brien’s Pub between 7 p.m. and 9 p.m., that Mr. Sandhu consumed no alcohol or drugs in his presence after they left Carlos O’Brien’s Pub, and that he observed no signs that Mr. Sandhu was intoxicated at any time during the evening. He said that the servings of beer were pint-sized, by which he means 16 to 20 fluid ounces each.

[17]        Ms. Kirkwood was tendered by the defence and accepted by the Crown as an expert in the intoxicating effects of alcohol and prescription medications (including Gabapentin). She said that the combined intoxicating effect of alcohol and Gabapentin, taken together, is far greater than the intoxicating effect of either taken alone, that the effect would be different for each individual, and, for that reason, the extent of intoxication is unpredictable. She referred to an article from Wikipedia, which was tendered as a defence exhibit.

[18]        Mr. Sandhu’s bottle of Gabapentin was tendered in evidence. It is a small plastic bottle with print on it. One of the printed items reads: “Pharmacist: Dispense with information leaflet”. Despite its ambiguity, I construe this to be an instruction to the pharmacist to provide the customer with a copy of a consumer information leaflet. Mr. Sandhu was not asked whether he was given a copy of the leaflet or whether he asked for one. The leaflet was not tendered in evidence.

[19]        I accept the evidence of Ms. Krausher and Corporal Neilson as truthful and accurate in all respects.

[20]        I am satisfied beyond a reasonable doubt that Mr. Sandhu was the person who drove the Cadillac when it was pursued by Corporal Neilson in her police car. It is possible that Mr. Sandhu stopped the Cadillac and relinquished control of it to another driver in the brief interval after it passed out of sight of Ms. Krausher and before it came within sight of Corporal Neilson, but there is nothing in the evidence to suggest that he did. The governing principle was stated in R. v. Villaroman 2016 SCC 33 (CanLII), [2016]1 SCR 1000 at para. 50:

[21]        I am satisfied beyond a reasonable doubt that Mr. Sandhu’s ability to drive was impaired by drugs and alcohol while Corporal Neilson was pursuing the Cadillac. I draw that inference from Ms. Krausher’s description of his movements when he returned to Carlos O’Brien’s Pub about 10 p.m., from Corporal Neilson’s description of his driving behaviour, and from Mr. Sandhu’s statement that he remembers nothing after he left Mr. Low’s apartment for the second time.

[22]        I am satisfied beyond a reasonable doubt that Mr. Sandhu heard Corporal Neilson’s siren when she turned it on, and immediately accelerated his vehicle in an attempt to escape her pursuit. No other conclusion is consistent with the driving behaviour described by Corporal Neilson and seen on her dashboard video.

[23]        I am sceptical about the evidence of Mr. Sandhu and Mr. Low on the subject of their alcohol consumption at Carlos O’Brien’s Pub on the evening of March 30, 2017. Mr. Sandhu had been out of work for about 15 months prior to that date. I could accept the evidence of Mr. Low and Mr. Sandhu only if I were willing to believe that Mr. Sandhu purchased refreshments, at a price well in excess of $200, for the other pool players who were, at most, casual acquaintances. That seems to me an extraordinary behaviour, at least if Mr. Sandhu were sober at the time.

[24]        I accept Mr. Sandhu’s evidence that he remembers none of the events which occurred after he left Mr. Low’s apartment for the second time, at about 10 p.m. I think it likely that his absence of memory is attributable to the combination of Gabapentin and alcohol in his bloodstream.

[25]        The actus reus of dangerous driving was defined in the following terms in R. v. Roy 2012 SCC 26 (CanLII), [2012] 2 SCR 60 at paras. 33 to 35 [underlining in the original]:

[26]        In this case, Mr. Sandhu was driving in an urban area shortly after 10 p.m. Nanaimo is a small city of approximately 100,000 inhabitants. It could not be described as a city which never sleeps, but it is not uncommon for its citizens to be out on the streets, as pedestrians or drivers, between 10 p.m. and 11 p.m. A number of businesses frequented by the public (including Carlos O’Brien’s Pub) are open at that hour. Nanaimo does not have an area which could be characterized as “downtown”, but the area around the intersections of Terminal and Stewart Avenues and Stewart Avenue and Comox Road (the two red lights run by Mr. Sidhu) is among the most densely-populated and commercially active in the city. Several other moving vehicles are seen on Corporal Neilson’s dashboard video. In that environment, Mr. Sandhu ran two red lights at speeds between 80 and 100 kilometres per hour. That conduct, alone would suffice to constitute the actus reus. It is appropriate to consider also the actual danger in which Mr. Sandhu placed Corporal Neilson. A similar issue was considered in R. v. Roadhouse, 2015 SKPC 36; [2015] SJ No. 113 at para. 110 :

[27]        The mens rea necessary to support a conviction for dangerous driving was described in Roy at para. 35 to 38 [italics in the original, underlining added]:

[28]        There is no doubt that running a red light at 80 to 100 kilometres per hour represents a marked departure from the standard of care to be expected of a reasonable person.

[29]        The issue in this case is whether Mr. Sandhu’s conduct was the result of his incapacity to appreciate or avoid the risk. The governing principle was stated by Justice Doherty in R. v. Luedecke, 2008 ONCA 716; [2008] OJ No. 4049; 93 OR (3d) 89 at para. 53 to 55 [citations omitted]:

[30]        Where it is alleged that the accused acted involuntarily, in the sense described in Luedecke, the accused carries the onus of proving that he so acted: .R v. Stone 1999 CanLII 688 (SCC), [1999] 2 SCR 290 at para. 171. The fact that Mr. Sandhu cannot recall any of the events after 10 p.m. is not sufficient to establish that his actions were involuntary: Pitre v. The Queen [1971] BCJ No. 628; 1971 CanLII 1195 (BC CA), [1971] 5 WWR 270; 3 CCC (3d) 380 at para. 13. In R v Stone, Justice Bastarache said at paras. 184 and 192 [underlining added]:

[31]        Mr. King referred to R. v Daviault 1994 CanLII 61 (SCC), [1994] 3 SCR 63 at p. 80 to 81 in support of the proposition that psychiatric or psychological evidence is not required. Daviault was discussed at length in Stone. Mr. King’s submission cannot be sustained in light of the discussion of Stone and Daviault, found in R. v. Daley 2007 SCC 53 (CanLII), [2007] 3 SCR 523 at para. 38.

[32]        In this case, there is no evidence from a psychiatrist or a psychologist. Ms. Kirkwood was not tendered as a psychological or psychiatric expert, and was not asked to comment on this issue. As a result, the onus which lies on the defence is undischarged, and I am bound to reject the suggestion that Mr. Sandhu acted involuntarily.

[33]        The video from Corporal Neilson’s dashboard camera clearly shows the Cadillac accelerating away from her as soon as she turned on her siren. The Cadillac continued to accelerate and escaped her pursuit because it ran through two red lights and Corporal Neilson thought it necessary, or at least prudent, to stop at the second one. Unless he was in a dissociative state, Mr. Sandhu must have seen the emergency lights and heard the siren. I have stated above my conclusion that Mr. Sandhu heard the siren and accelerated his vehicle in response to it. As noted above, Mr. Sandhu carries the onus of proof on the issue of disassociation and that onus is undischarged.

[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 (7^th) 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]:

[40]        “Recklessness”, in this context, was defined by Glanville Williams in the following terms in his Textbook of Criminal Law (1987) [underlining added]):

[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:

[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.