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Top court reviews car-crash verdict

Driver blamed drug for near-death

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Manitoba's highest court is reviewing the fate of a Winnipeg woman who blames a controversial medication for causing a near-deadly crash.

Joan Henderson, 54, pleaded guilty earlier this year to impaired driving causing bodily harm in what lawyers said may be the first case of its kind in Canada. Although she accepted responsibility for the April 2008 incident that crushed a Winnipeg construction worker, Henderson pointed the finger of blame at a prescription drug she was taking at the time that is currently the subject of a national class-action lawsuit.

The Crown was seeking a two-year prison term for Henderson, saying the physical damage she caused cries out for deterrence and denunciation. Queen's Bench Justice Brenda Keyser disagreed in handing out a suspended sentence with probation.

"This is one of those exceptional cases where jail is not warranted. The facts are unique. This should not be viewed as a precedent," Keyser at the time. "This is not the normal situation of an upstanding citizen who has a bad day and chooses to drink. The drug she was taking caused her to drink compulsively that day."

Crown attorney Chris Vanderhooft appeared before the Manitoba Court of Appeal on Thursday, asking them to overturn Keyser's decision. The high court has reserved its decision.

Defence lawyer Evan Roitenberg argued Keyser's sentence should stand. He told court his client suffers from "restless leg syndrome" and had started taking Mirapex to treat the often-painful symptoms. Instead, he said, Henderson was hit with numerous side-effects that included an "involuntary" inclination to gamble and drink alcohol.

On the night of the crash, the otherwise quiet, coffee-drinking Henderson found herself playing VLTs and drinking a half-dozen double rum and Cokes inside Smitty's lounge in Garden City, court was told. She then claims to have blacked out on the drive to her north Main Street home, leaving a trail of carnage in her wake. Her blood-alcohol level was .20, which is more than twice the legal limit of .08.

Michael Pacheco was part of a large street-cleaning crew near the Kildonan Golf Course and was in the process of picking up some road signs when Henderson's Dodge Neon slammed into his legs, crushing them between his own vehicle. Witnesses say a dazed, disoriented Henderson made no attempt to stop.

Pacheco, 29, suffered gruesome injuries. He was rushed to hospital in critical condition, and doctors feared they would have to amputate both legs. He ultimately spent months in hospital and has undergone eight surgeries to date. He still has difficulty walking and is suffering from extreme physical and emotional pain.

Henderson had no prior criminal or driving record and was free on bail for nearly three years without incident prior to her sentencing.

According to police, Henderson showed instant remorse at the scene of the crash and later during an interview. "What have I done, look what I've done, is he going to be OK?" Henderson asked officers. She was slurring her speech and actually fell onto the boulevard when asked to get out of her car.

Republished from the Winnipeg Free Press print edition November 4, 2011 A9

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