Following a traffic stop on December 23, 2018 in Mississauga, Michael Aranovsky (“Aranovsky”) was charged with the offence of operating a motor vehicle having consumed alcohol in a quantity that the concentration in his blood exceeded eight milligrams of alcohol in one hundred millilitres of blood (an offence referred to as “Over 80”).
After registering a “fail” on a roadside screening test, Aranovsky was arrested and taken to the police station. He provided two additional breath samples, each registering readings that exceeded the legal limit for blood alcohol.
At his trial, Aranovsky maintained that he was not aware that his friend had spiked a platter of watermelon with vodka that he had consumed before driving his roommate home. Aranovsky’s used the involuntary consumption defence and he was acquitted of the charge of Over 80.
THE ALCOHOL CONSUMPTION
Constable Callan of the Peel Regional Police testified that when he approached Aranovsky’s vehicle he described the accused’s face as slightly flushed, his eyes were red and there was an odour of alcohol coming from his breath. At the time, Aranovsky admitted to having consumed one bottle of beer. Aranovsky was described as being “coherent, calm and compliant” throughout his interaction with Constable Callan.
Due to his suspicions of alcohol consumption, Constable Callan demanded that Aranovsky provide a sample of his breath in a roadside screening device. He failed the ASD (approved screening device found in a police vehicle). If you fail this test, you will be arrested for impaired driving and taken to the police station for further testing.
At his trial, Aranovsky did not challenge the Crown’s argument that he had consumed enough alcohol to yield very high blood alcohol readings (186 and 200 mg/100mL). Aranovsky admitted that he had consumed a considerable amount of watermelon while at his friend’s home, although he was unaware that his friend had spiked the watermelon. His counsel admitted that the charges arose out of a “juvenile prank” played between two grown men. Aranovsky’s friend testified at his trial that he had secretly injected the watermelon with alcohol as a prank.
An expert report submitted from a toxiciologist indicated that Aranovsky’s blood alcohol readings suggested that he had consumed the equivalent of 7 shots of vodka (40% alcohol) and 1 bottle of beer (5% alchol) prior to testing.
It was Aranovsky’s defence that his consumption of alcohol, which led to his elevated blood alcohol readings, was not voluntary, and therefore he should be acquitted of his charges.
On behalf of the Crown, the prosecutor argued that Aranovsky’s evidence was “preposterous” and it was “implausible” that an individual could consume enough spiked fruit to provide a reading of 200 mg/100mL and not taste the vodka or feel the effects of such a large quantity of alcohol. The Crown asked that the court to find that Aranovsky’s consumption of excess alcohol was voluntary and satisfied the elements of the offence he was charged with.
ELEMENTS OF THE CRIME
The prosecuting Crown lawyer must prove beyond a reasonable doubt that there was both the criminal conduct (also known as the actus reus) and the criminal state of mind (also known as the mens rea)in order to prove that the accused is guilty.
The term actus reusrefers to the actual commission of the illegal act. In order for this element to be carried out, the act must be a voluntary commission.
The term mens rea refers to the accused’s state of mind. This requirement is dependent upon the specifics of the offence and is often determined by the wording and interpretation of the legislation. For most offences, the state of mind required is either the intent to commit the act or that the individual was reckless. Being unaware that the act was illegal is not an excuse or a defence.
At his trial, the key issue was whether Aranovsky had the mens rea for the offence of driving with excess alcohol.
Justice Allison Dellandrea quoted her colleague Justice Joseph Kenkel in setting out the mens rea required with regards to the defence of involuntary intoxication as:
the voluntary ingestion of alcohol or drugs intentionally for the purpose of becoming intoxicated or recklessly unaware that impairment could result but persisting in that risk.
Justice Dellandrea also referred to the definition of involuntary intoxication found in the decision of R. v. Brenton:
Involuntary intoxication is generally confined to cases where the accused did not know he or she was ingesting an intoxicating substance (such as the accused’s drink was spiked) or where the accused became intoxicated while taking prescription drugs and their effects were unknown to the accused.
In her reasons for judgement, Justice Dellandrea stated,
the Crown’s theory requires me to find that the dangerous and juvenile prank described by the defence witnesses could not have happened, as common sense makes it impossible. Regretfully, I cannot agree. In my experience, it is not at all uncommon to see otherwise good people making incredibly misguided decisions enduing up before me in court.
I conclude that the defendant’s evidence in this case was sufficient to rebut the presumption that his blood alcohol concentration at the time of driving was voluntarily induced. I accept that his rapid consumption of the spiked watermelon led to the surge of his blood alcohol concentration, of which he remained remarkably unaware.
Justice Dellandrea found that there was enough defence evidence to a raise a reasonable doubt as to Aranovsky’s knowledge of the quantity of the alcohol he had consumed and he was therefore acquitted of the charge of Over 80.
If you have been charged with impaired driving or any other driving offence, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to ensure you have access to justice at all times.