R. v. Perignon, 2023 BCSC 147

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Perignon, 2023 BCSC 147 Date: 20230127 Docket: 27856-2 Registry: Vancouver Rex v. Jean-Luc Charles Perignon Before: The Honourable Mr. Justice Milman Oral Reasons for Judgment Counsel for the Crown: T.R. McKelvey Counsel for the Accused: D. Ferguson A.A. Goldin Place and Dates of Trial: Vancouver, B.C. March 21-24, 28-31 and December 13, 2022 Place and Date of Judgment: Vancouver, B.C. January 27, 2023 Table of Contents I. Introduction .. 3 II. The Facts .. 3 III. The Psychiatric Evidence .. 9 IV. The Legal Framework .. 10 V. Analysis .. 13 VI.

Summary and Conclusion .. 17 I. Introduction [ 1 ] The accused, Jean-Luc Perignon, stands charged with one count of aggravated assault, contrary to s. 268(2) of the Criminal Code , R.S.C. 1985, c. C-46 . He does not dispute that on April 17, 2017, he stabbed his then wife in the back with a kitchen knife, as the Crown alleges. [ 2 ] Despite what occurred, he asks the court to find him not guilty, on the grounds that he was not acting voluntarily at the time.

In particular, he claims that he was in a state of automatism, unassociated with any mental disorder, as a result of having consumed a cocktail of prescription drugs and alcohol prior to the incident. [ 3 ] As defence counsel acknowledged in his closing submissions, such a defence will rarely succeed. The courts are justifiably reluctant to acquit on that ground due to policy concerns about the feignability of such a condition and the need to maintain respect for the administration of justice. Because the law assumes that, in general, people act voluntarily and are responsible for their actions, Mr.

Perignon bears a heavy burden to demonstrate that the ordinary presumption should not apply here. Nevertheless, he says that he has met that burden. [ 4 ] The Crown disagrees. In the Crown’s submission, the evidence before the court does not rise to the requisite level to justify an acquittal.

II. The Facts [ 5 ] I will begin my discussion with a recitation of the background facts, which are generally not in dispute. [ 6 ] Mr. Perignon was born in France in 1962. He moved to Canada at a young age. He eventually found his way to Montreal, where, after trying his hand at various careers, he worked as an IT consultant. He met his future wife, Debra Perignon, in 1990. They were married in 2007 and remained together until the incident that is the subject of this proceeding. They have three daughters, Rochelle, Kaitlin and Olivia. The older two daughters testified as part of the Crown’s case. Mr.

Perignon has had no contact with his former wife or their youngest daughter, Olivia, who still lives with her, since that time. [ 7 ] Mr. Perignon’s relevant medical history begins with injuries he sustained in two motor vehicle accidents, the first in 2002 and the second in 2007. The earlier of these occurred when he was still living in Montreal. He was struck by a motor vehicle while he was crossing a busy street in downtown Montreal as a pedestrian. As a result of that accident, he suffered a compression fracture in his spine. [ 8 ] He was treated initially with physiotherapy and simulated cell regrowth.

He soon became dependent on escalating dosages of opioids to control his pain. These issues exacerbated a problem he had been having for much of his adult life with insomnia. Since the 1980s, when he was in his late teens, he had been taking bromazepam, a drug in the benzodiazepine family, to help him sleep. [ 9 ] In 2006, Mr. and Ms. Perignon relocated from Montreal to the Sunshine Coast area of British Columbia. They hoped that the milder climate would alleviate his pain symptoms. Mr. Perignon had spent part of his childhood there and his mother was still living there at the time.

They eventually bought a two-story house on Celestial Place in Gibsons. Mr. Perignon’s mother introduced him to her family physician, Dr. Scott, who agreed to take Mr. Perignon on as a patient. [ 10 ] They had not been living on the Sunshine Coast for very long before Mr. Perignon was involved in a second motor vehicle accident, which exacerbated his pre-existing injuries. Dr. Scott tried to reduce Mr. Perignon’s intake of opioid medications but Mr. Perignon did not respond well to the change. Dr. Scott referred him to Dr. White, a psychiatrist, for cognitive behavioural therapy. Mr.

Perignon remained primarily under the care of Dr. White for the next ten years, until the incident that is the subject of this proceeding. Over those years, Dr. White attempted, with some success, to reduce Mr. Perignon’s opioid intake. [ 11 ] In the meantime, Mr. Perignon’s consumption of bromazepam for insomnia continued unabated. That medication allowed him to sleep well. On June 1, 2016, however, the British Columbia College of Physicians and Surgeons amended its professional standards and guidelines to prohibit the prescription of benzodiazepines or sedative hypnotics together with opioids.

After becoming aware of the new restriction, Dr. White told Mr. Perignon that he could no longer continue taking opioid medications together with bromazepam, but had to choose one or the other. Mr. Perignon decided to give up bromazepam, because his wife had just been laid off from her job and he thought it more important that he control his pain so he could continue working. Mr.

Perignon’s PharmaNet records show that on July 14, 2016, he was dispensed bromazepam for the last time prior to the date of the alleged offence. [ 12 ] The same document issued by the College ended with the following note of caution: “Benzodiazepine tapering should be gradual because of the significant risk of benzodiazepine withdrawal.” It appears that warning went unheeded in Mr. Perignon’s case. Soon after he stopped taking bromazepam, he began having withdrawal symptoms. His insomnia returned with a vengeance. He recalls having tremors. In consultation with Dr.

White, he began experimenting with a variety of substitutes, including trazodone, clonazepam, quetiapine, cyclobenzaprine, duloxetine and pregabalin. None of these were successful in restoring a stable sleep pattern. Over the Christmas holiday in 2016, he tried yet another drug, baclofen, but it caused him to sleep through the whole of Christmas day. In his frustration, he says he tried, on one or two occasions, to force himself to sleep by consuming large quantities of vodka, but this made him nauseous rather than sleepy.

He testified that he consumed no vodka on the date of the alleged offence, and indeed, he was not observed doing so. [ 13 ] Dr. White appeared to be at a loss as to what to do about Mr. Perignon’s predicament. He was changing Mr. Perignon’s prescriptions every two weeks or so. Ms. Perignon noticed that Mr. Perignon’s moods had become volatile. He would say strange things unpredictably. She accompanied him to an appointment with Dr. White and, while there, complained to Dr. White that she thought he was treating her husband like a guinea pig. [ 14 ] In January 2017, Dr.

White prescribed zopiclone, known as a sedative hypnotic, for the first time. Unlike bromazepam, it is not in the benzodiazepine family, although it is said to have a similar pharmacology. It is also known to have potentially serious side effects, including, among many others, antegrade amnesia and complex sleep behaviours.

The latter are, according to one of the psychiatric reports in evidence, “complex activities, normally associated with wakefulness, that occur when the subject is in a sleep-like state.” [ 15 ] Because of the pharmacological similarity between zopiclone and the benzodiazepines, the same dangers arise when either are combined with opioids. In light of these and the various other risks it poses, it is not recommended that patients take zopiclone more than ten days in a row. [ 16 ] In any event, Mr.

Perignon’s PharmaNet history indicates that in early 2017, he was dispensed 14 pills, each containing 5 mg of zopiclone. Mr. Perignon recalls that at that dosage, he saw no improvement in his sleep and experienced no side effects other than a metallic taste in his mouth. In March 2017, Dr. White had him try another drug, doxepin. Mr. Perignon stopped taking that one after only one day because, he says, it made him short-tempered. He asked Dr. White to try something else but by then Dr. White appeared to be running out of ideas. It was at that point that, according to Mr.

Perignon, they discussed reverting to zopiclone, but this time Dr. White suggested increasing the dosage by half a pill at a time until it began working. [ 17 ] Strange as it may seem, Mr. Perignon’s account is confirmed to some extent by the PharmaNet records. They show that on April 6, 2017, 11 days before the date of the alleged offence, he was dispensed 30 tablets of zopiclone at the increased concentration of 7.5 mg per tablet. Mr. Perignon says that in keeping with Dr.

White’s instructions, he took one tablet on April 12, 1.5 on April 13, two on April 14, 2.5 on April 15, three on April 16 and 3.5 on April 17. At 7.5 mg per tablet, the latter dose would have amounted to a total of

26.25 mg. According to Dr. Kolchak, one of the psychiatrists who testified at trial, this was “well beyond the recommended range of prescription for this medication.” [ 18 ] While experimenting in this way with zopiclone, Mr. Perignon also continued to take a dangerously high dosage of opioids, the equivalent of 400 mg of morphine per day. Dr. White had already reduced Mr. Perignon’s opioid intake from a previous peak at the equivalent of 1650 mg. Dr.

Lu, another of the psychiatrists who testified for the defence, put those quantities into perspective by explaining that a dose of 200-300 mg is enough to be fatal for someone naïve to opioids. Current guidelines suggest that any dose greater than 90 mg is considered high-risk. In the days prior to the alleged offence, Dr. White had decided to refer Mr. Perignon to another specialist, Dr. Resnick, to help wean him off opioids. An appointment with that physician was booked for Wednesday, April 19, 2017, two days after the date of the alleged offence. [ 19 ] So matters stood with Mr.

Perignon’s prescription drug regimen when, on the Easter weekend in April 2017, he and Ms. Perignon hosted their three daughters in their home for the holiday. Also staying with them that long weekend was Kaitlin’s then partner, Russell Dunsford. [ 20 ] They had a family dinner together on Easter Monday, April 17, 2017. Kaitlin and Rochelle had the impression that Mr. Perignon was behaving normally that day, at least until the end of the dinner. He was joking with them as he helped with the dinner preparations. Kaitlin thought his mood at dinner was better than normal. Ms.

Perignon had the impression that he was “a bit more off, more than normal”. His eyes, she thought, were “funny” and he was saying things that did not make sense. They did not have any arguments that weekend, although they were, by then, sleeping in separate bedrooms due to Mr. Perignon’s ongoing struggles with insomnia. [ 21 ] Although, as I have already noted, Mr. Perignon did not consume vodka on that date, he did have three or four drinks of pastis, an anise-flavoured liqueur, which he mixed with water, around or just before dinner time. The dinner ended at around 7:30 or 8 pm. [ 22 ] After dinner, Ms.

Perignon and Olivia went into the living room to watch a movie. Mr. Perignon came into the room while they were doing so and wanted to discuss his latest plan to replace the opioids with lighter medications. Ms. Perignon told him that she did not want to have that discussion with him at that particular time. After a second unsuccessful attempt to speak to her, he returned to his bedroom. [ 23 ] After the movie ended at around 10 pm, Ms. Perignon sent Olivia to bed and went to the front door to let the dog out before retiring to bed herself. As she was doing so, she heard Mr.

Perignon’s footsteps on the stairs behind her. She never saw him, nor did she hear him say anything. She felt a “thump” in her back and realised she had been stabbed. She reached behind her back for the knife and pulled it out herself, cutting her thumb badly in the process. She recalls screaming and having trouble breathing as Kaitlin and Mr. Dunsford came to her aid a few minutes later. [ 24 ] Mr. Perignon’s testified that his memory of the events that occurred on that day blended into one another. He recalls having dinner with the family and retiring to his home-office to watch a movie.

As was his routine at the time, he took trazodone, an antidepressant, and his usual mix of opioids three times that day. Approximately ten minutes before retiring to bed, he also took the 3.5 tablets of zopiclone that I have already mentioned. After that, he remembers taking off his shoes and socks before getting into bed. He remembers feeling pain in his back. [ 25 ] His next memory is standing over his wife while she was lying on the floor in front of him, screaming in pain. He remembers seeing the kitchen knife on the floor near her. He was in shock.

He did not know how he had got to the front door on the ground floor – his bedroom was on the second floor. He recalls running back up the stairs to his bedroom to retrieve his cell phone in order to call 911. He locked himself in the bedroom because he feared he might pose a danger to the others present in the house. [ 26 ] According to the 911 call log, he reached the dispatcher at nine minutes past 10 pm. He stated that his wife was badly injured and needed an ambulance. When asked what was going on, he responded that he had just stabbed her. He was then asked where his wife was at that moment.

His response was that, “she’s okay, … it wasn’t a killing wound …” After asking several times where the ambulance was, and as he was heading back downstairs, he stated to either the dispatcher, his other family members, or the police officer who had just arrived, that he “just did something really stupid.” [ 27 ] When the police arrived, Mr. Perignon was immediately arrested and taken into custody. He was warned that he was under investigation for attempted murder. One of the attending officers returned to the house to retrieve four medications that Mr. Perignon said he needed. When the officer got to Mr.

Perignon’s washroom, he observed what he thought was about a hundred pill bottles in a plastic shopping bag. [ 28 ] Mr. Perignon has only sporadic memories of the ride to the police station. He remembers sleeping soundly in the cells that night. On April 19, 2017, he gave a lengthy statement to the police that was, with some minor exceptions that I will discuss later, generally consistent with his testimony at trial. [ 29 ] By the end of following month, Mr. Perignon had stopped taking opioids altogether. Soon after that, he resumed taking bromazepam and has had no difficulty sleeping since then. III.

The Psychiatric Evidence [ 30 ] As part of his defence, Mr. Perignon adduced written and oral evidence from two psychiatrists, Dr. Andrew Kolchak and Dr. Shaohua Lu. Without objection from the Crown, both were qualified as experts in abnormal mental states, including dissociative states, and the impact of medications on them. [ 31 ] Dr. Kolchak noted that Mr. Perignon’s behaviour at the material time, if one accepts his account of what occurred, resembled complex sleep behaviour. However, it was unclear to Dr. Kolchak precisely what was going on in Mr. Perignon’s mind at the time. Dr.

Kolchak considered the possibility that the stabbing was triggered in part by anger towards his wife, perhaps as a result of an argumentthey may have had just before. Even if that were so, however, in Dr. Kolchak’s view, it is likely that Mr. Perignon was intoxicated by theprescription medications he had consumed and that he was experiencing adverse effects attributable to them. As a result, in Dr.Kolchak’s view, it is likely that Mr. Perignon’s ability to foresee the consequences of his actions was at least to some degree impaired bythe effects of those medications. [32] Dr.

Lu was more categorical in his opinion. His report contains the following assertions: … [Mr. Perignon] was certain to be in a state of impaired mental awareness, and more likely, he was [in] an altered sleep state. Morelikely than not, he was in a state of complex sleep related behaviours. As such, Mr. Perignon would not be aware of his actions nor beable to form basic intent. [33] Dr. Lu added that his opinion in that regard was bolstered by the fact that Mr. Perignon’s condition had stabilised after hediscontinued his opioid consumption and went back on bromazepam.

That sequence of events was, in his view, “highly consistent” withthe conclusion that Mr. Perignon was suffering from severe sleep disorder at the time of the alleged offence. [34] The Crown adduced no expert evidence. IV. The Legal Framework [35] There is also no dispute between the parties about the applicable law. Although not contentious, the legal framework iscomplicated by the fact that, after the evidence was concluded, but before I received closing arguments, the Supreme Court of Canadastruck down former s. 33.1 of the Criminal Code as unconstitutional: see R. v. Brown, 2022 SCC 18.

That provision had operated, incases involving crimes of violence of the kind in issue here, to render the defence of automatism unavailable in certain circumstances.Since then, Parliament has enacted a replacement provision, but the parties agree that it does not apply retroactively to this case. [36] The outcome of this case therefore turns on whether Mr. Perignon has satisfied the common law test for automatism.

The natureof and rationale for the defence was explained by Kasirer J. writing for the court in Brown, as follows at paras. 46-8: [46] The defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence (R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1321; R. v. Parks, (SCC), [1992] 2 S.C.R. 871, at p. 896).Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks thecapacity to answer for what they did (J.

Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007), atp. 142). A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused. [47] Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or “external” shock, orconditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey, at p. 523).

Physical voluntariness is a principle of fundamentaljustice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morally innocent(Daviault, at p. 74; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46-47; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3S.C.R. 575, at para. 45). Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt (R. v.Théroux, (SCC), [1993] 2 S.C.R. 5, at pp. 17-18).

This is distinguished from moral involuntariness, which describesscenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act (Ruzic, atpara. 44). [48] In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where an accused has noconscious awareness of their movements, they necessarily cannot intend their involuntary acts.

Imposing criminal liability in the absenceof proof of fault also offends the principles of fundamental justice (Motor Vehicle Reference, at pp. 513-15). [37] Under the formal test that has developed based on those principles, an accused seeking to rely on the defence must meet both anevidentiary and a persuasive burden: R. v. Antonius, 2020 BCSC 1360. [38] With respect to the former, before the accused can raise the defence before a jury, he must:

a) assert that his act was involuntary; and

b) adduce logically probative evidence from a qualified expert supporting the claim, upon which a properly instructed jury could findthat the impugned act was involuntary. [39] In assessing whether the accused has met the second branch of that test, the court is to consider all of the relevant circumstances.Some of the factors that will bear on the analysis were listed by Bastarache J., writing for the majority, in R. v. Stone, (SCC), [1999] 2 S.C.R. 290, as follows, at para. 192:

a) the severity of the triggering stimulus;

b) corroborating evidence of bystanders;

c) corroborating medical history of automatistic-like dissociative states;

d) whether there is evidence of a motive for the crime; and

e) whether the alleged trigger of the automatism is also the victim of the automatistic violence.

[ 40 ] In this case, the Crown concedes, and I agree, that Mr. Perignon has met the threshold burden so as to justify putting the defence to a jury. Because I am sitting in this case as a judge alone without a jury, I will consider those factors and others in greater detail when I consider whether Mr.

Perignon has met his persuasive burden to show that his act was indeed an involuntary one. [ 41 ] Before addressing that question, a second preliminary issue arises as to whether it is “mental disorder automatism” or “non- mental disorder automatism” that should be left with the trier of fact in the circumstances of this case. That issue turns on whether the condition asserted by Mr. Perignon to explain his conduct can be identified as a mental disorder, in which case different consequences will follow: Stone at paras. 193-222 . There are two principal considerations that bear on the analysis in that regard:

a) the “internal-cause” factor (that is, whether an otherwise normal person might have entered into an automatonic state in similar circumstances); and

b) the “continuing danger” factor, which focuses on the risk to public safety. [ 42 ] Here too, the Crown concedes, and I agree, that the question to be answered in this case concerns non-mental disorder automatism exclusively. Both Dr. Kolchak and Dr. Lu testified that in their view, the mix of medications and alcohol that Mr. Perignon consumed on the date of the alleged offence were such as to create the potential for automatonic behaviour, independent of any mental disorder. Conversely, there was no basis in the evidence to support a conclusion that Mr.

Perignon’s conduct was attributable to any ongoing mental disorder. [ 43 ] The only issue upon which the parties disagree, and on which the outcome of the case therefore turns, is whether Mr. Perignon has met his legal or persuasive burden to demonstrate that his conduct was indeed involuntary, due to non-mental disorder automatism. It is to that ultimate question that I now turn. V. Analysis [ 44 ] Defence counsel argues that the evidence strongly supports the conclusion that Mr. Perignon’s act was involuntary. He refers to several of the Stone factors, emphasizing the lack of any apparent motive for Mr.

Perignon’s conduct and the strong support for the defence theory that is to be found in the reports and testimony of the two psychiatrists. Defence counsel submits that Mr. Perignon himself was a credible witness, noting that his version of events was corroborated in several respects by independent evidence, particularly that of the Crown witnesses and the PharmaNet records. [ 45 ] Although Crown counsel disputes that the defence has met its burden, he concedes that this case is “close to the line”.

He also concedes that there was no apparent motive for the stabbing and that the trigger for that act, if there was one, appears to lie in the pattern of Mr. Perignon’s consumption of prescription medications and alcohol. Nevertheless, Crown counsel argues that the preponderance of the Stone factors tilts in favour of conviction. In urging that conclusion, Crown counsel emphasized the following factors:

a) Mr. Perignon was not a credible witness, inasmuch as his capacity to remember important details was suspiciously selective; and

b) assuming Mr. Perignon consumed the zopiclone tablets at 10 pm, as he testified, there would not have been enough time between then and the stabbing for the effects of the zopiclone to be felt, given that the stabbing had already occurred by 10:09, when he made the 911 call. [ 46 ] One difficulty I have with the Crown’s submission is that the Stone factors are not intended to be exhaustive, nor are they intended to be a tally, with the outcome turning on how many of them favour one result or the other.

Each factor will assume different degrees of importance in different cases. [ 47 ] Here, the lack of both a motive and an obvious trigger figures prominently in the analysis. I say this because Mr. Perignon’s act is very difficult to explain in any way other than as the defence urges. Not only was there no argument between Mr. and Ms. Perignon in the leadup to the incident, they had their children staying with them in the house that weekend. I am left with no explanation as to why Mr. Perignon, if he was indeed acting intentionally, would have chosen that moment in particular to attack his wife.

Conversely, the fact that he immediately called 911 and was evidently anxious for help to arrive quickly, tends to negate the suggestion that he consciously intended to cause her harm at any stage. [ 48 ] I appreciate that the case must turn to a large degree on Mr. Perignon’s own credibility. Ultimately, he is the only one who can directly attest to his internal experience that night. As Crown counsel argues, his account was not without its problems, particularly where it was self-serving and not supported by other evidence.

A central example of this can be seen in his description of the instructions he claims to have received from Dr. White. That aspect of his case could have been bolstered by confirmatory testimony from Dr. White himself, although I am not prepared, as Crown counsel urges, to draw an adverse inference against Mr. Perignon for failing to call him. Inherent in the defence that was raised was an element of criticism directed at Dr. White for the care he provided in the leadup to the incident.

The PharmaNet records go a long way to filling that gap in any event. [ 49 ] Nor am I prepared to make much of the minor inconsistencies in Mr. Perignon’s previous statements, such as his apparent confusion over whether he had made a note on a piece of paper that his dosage of zopiclone had risen to 3.5 tablets, or his ability to recall certain details over others. The testimony of the psychiatrists adequately explained how his impaired state of mind could have caused his memory to behave in that manner.

While it is certainly strange that his memory became suddenly clear when he called 911, the psychiatrists explained that the sound of Ms. Perignon’s screams, coupled with the shock of the scene laid out before him, could have startled him into a more awake state. [ 50 ] Having regard to some of the other Stone factors, it is noteworthy that Ms. Perignon thought that Mr. Perignon’s behaviour and appearance was particularly strange at dinner that evening. On the other hand, Mr. Perignon had no previous history of complex sleep behaviours or dissociative states.

That being said, there was evidence of his having slept through Christmas day after taking baclofen in

2016. More importantly, the medical evidence suggested that the side effects of zopiclone were capable of being idiopathic – that is, they could well have appeared out of nowhere, especially if, as was claimed to be the case here, the medication was being taken in escalating doses. What is equally important here, in my view, is the fact that Mr. Perignon had no history of violence either. [ 51 ] Another line of evidence that is argued by the Crown to undermine the defence theory arises from some of the remarks that Mr.

Perignon is recorded to have made that night, suggesting that, contrary to his testimony at trial, he had in fact been awake throughout. Dr. Kolchak himself was troubled by Mr. Perignon’s statement to the police, when told that he was being held for attempted murder, that he did not intend to murder his wife but only to hurt her. He told the 911 dispatcher that what he had inflicted on his wife was “not a killing wound.” Towards the end of the 911 call, Mr.

Perignon can be heard, as he was being taken into custody, stating to those present that he “just did something really stupid.” How could he have said those things, Crown counsel argues, had he not been fully aware at the time of his actions and intentions. [ 52 ] I accept that these statements could be taken to connote an intact memory and intentional conduct. However, it was never put to Mr. Perignon in cross-examination that he acted intentionally.

In any event, the more compelling inference to be drawn is that he was, in making those statements, reconstructing events to explain what had occurred, without having actually experienced it consciously. One of the most important pieces of evidence supporting that exculpatory inference arises from the response he gave when he was asked by the 911 dispatcher where the knife was. He answered that he had thrown it on the floor. What he could not have known at the time was that Ms. Perignon would later remember removing the knife from her back herself.

Indeed, she had, in doing so, sustained a cut to her thumb that later required stitches. That evidence strongly suggests that Mr. Perignon, in his confusion, was trying to weave together a coherent narrative to explain what had just occurred, rather than relating real memories. [ 53 ] As Crown counsel argues, the defence theory is also undermined to some extent by the apparent timing of Mr. Perignon’s consumption of zopiclone in relation to the stabbing.

The psychiatric evidence was that zopiclone would have to have been the essential ingredient in bringing about a somnambulistic state, with the opioids and alcohol contributing but not capable of doing so on their own. Dr. Kolchak noted in his report that it was surprising that the medications, if indeed they had had that effect, would have worn off sufficiently to render Mr. Perignon as alert as he appeared to be when he was taken into custody.

However, both psychiatrists testified in cross-examination that it was possible, if unlikely, for the zopiclone to have taken effect in the few minutes available, assuming the timing was indeed as reconstructed by Crown counsel. [ 54 ] Regardless of whether those few minutes could suffice for that purpose, I am not persuaded that the available window necessarily had to be less than ten minutes, as Crown counsel’s argument assumes. That timing is based on Mr.

Perignon’s statement to the police, a few days later, that he believed he had taken the zopiclone at precisely 10 pm because he looked at the clock in his bedroom when he did so, intending to fall asleep by 11 pm. However, it is possible that either the clock itself, his memory of the event, or both, were inaccurate. Other witnesses who were present gave differing accounts as to the timing of events that night. For example, both Kaitlin Perignon and Mr. Dunsford recalled hearing screams at 10:30 pm.

Rochelle Perignon recalled looking at her cell phone after hearing screams at 10:04 or 10:05 pm. [ 55 ] Taking the evidence as a whole, as I must, I have concluded that Mr. Perignon was, at a minimum, operating in a severely impaired state of mind at the material time. Although it is possible that he acted intentionally despite that impairment, the more likely explanation for his conduct is that it was entirely involuntary because it occurred while he was effectively asleep. In other words, I am satisfied on a balance of probabilities that the offence with which Mr.

Perignon stands charged was not a voluntary act but was committed while he was in a state of non-mental disorder automatism. VI.

Summary and Conclusion [ 56 ] Having been satisfied that Mr. Perignon did not act voluntarily when he committed the act of which he is accused, I find him not guilty. “Milman J.”