R. v. Hallahan, 2021 ONCJ 156

ONTARIO COURT OF JUSTICE CITATION: R. v. Hallahan, 2021 ONCJ 156 DATE: 2021 03 16 COURT FILE No.: 19-1362 BETWEEN: HER MAJESTY THE QUEEN — AND — WYATT HALLAHAN Before Justice Angela L. McLeod Trial January 8, 2021 Submissions February 8, 2021 Reasons for Judgment released on March 16, 2021 Raymond Williams............................................................................. counsel for the Crown Charles Manners.............................................. counsel for the accused Wyatt Hallahan McLeod J.: OVERVIEW [1] The Crown alleges that on August 17, 2019, Mr.

Hallahan went out with friends to a party, consumed alcohol, had an altercationwith persons unknown to him, was arrested and assaulted the police officer. [2] The defence position is that Mr. Hallahan unknowingly and involuntarily consumed a mystery intoxicant while at the party. This substance was in addition to the alcohol that he voluntarily consumed. [3] A one-day trial was had, wherein the defence admitted the actus reus, but raised the issue of voluntariness due to involuntaryintoxication. ISSUES [4] The following issues were raised at trial:

(1) Judicial notice;

(2) The defence of involuntary intoxication and/or automatism; LAW – JUDICIAL NOTICE [5] The taking of judicial notice is an action by a court to fill an evidentiary gap. Evidence is not required to establish a fact. [6] The Supreme Court of Canada has examined the doctrine of judicial notice repeatedly, in R. v. Find, 2001 SCC 32 ,

2001 S.C.C. 32, R. v. Spence, 2005 SCC 71 , 2005 S.C.C. 71, R. v. Lacasse, 2015 SCC 64 , 2015 S.C.C. 64, and mostrecently in R. v. Le, 2019 SCC 34 , 2019 S.C.C. 34. The principles can be summarized as follows:

(1) Judicial notice is not rebuttable (Spence, supra, para. 55);

(2) Judicial notice is final (Spence, supra, para. 55); (3) “Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, thethreshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generallyaccepted as not to be the subject of debate among reasonable persons; or, (2) capable of immediate and accurate demonstration by resortto readily accessible sources of indisputable accuracy. These two criteria are often referred to as the Morgan criteria”. (Find, supra, para.48)

(4) Judicial notice should not be taken regarding the adjudication of guilt or innocence, “but rather to the framework within whichthat adjudication is to take place.

Such non-adjudicative facts are now generally called “social facts” when they relate to the fact-findingprocess...”(Spence, supra, para. 56); (5) “The permissible scope of judicial notice should vary according to the nature of the issue under consideration … the closer afact approaches the dispositive issues, the more stringent is the test for I think for admissibility” (Lacasse, supra, para. 156); (6) “The taking of judicial notice is more nuanced and depends on the role such facts will play in the disposition of a given case –the more they become dispositive of an issue in dispute, the more pressing it is to meet the two Morgan criteria” (Le, supra, para 85,quoting Spence, supra, para 63); (7) “When a fact falls between an adjudicative fact (one that is at the centre of the controversy between the parties) and abackground fact (one that is only at the periphery of the controversy, and that the court will assume to be uncontroversial), the courtmust ask itself: Whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not beingthe subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability andtrustworthiness increases directly with the centrality of the “fact” to the disposition of the controversy” (Lacasse, supra, para. 156,quoting Spence, supra, at para. 65); LAW – DEFENCE OF INTOXICATION [7] Intoxication can be voluntary or involuntary. [8] When voluntary intoxication is mild it does not give effect a defence at law. [9] When voluntary intoxication is moderate or advanced, the question becomes whether the accused person had the capacity toform the requisite mens rea?

Until recently, this applied only to specific intent offences pursuant to s.33.1(1) whereby the defence wasnot permitted for general intent offences involving violence or interference by a person with the bodily integrity of another person.

Section 33.1(1) was deemed unconstitutional and declared to be of no force or effect by Justice Paciocco in R. v. Sullivan, 2020 ONCA333. [10] Specific intent offences contain a heightened mental element, which might take the form of an ulterior purpose or actualknowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoningprocesses. Alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complexthought and reasoning process.

General intent offences, on the other hand, require very little mental acuity (R. v.

Tatton, 2015 SCC 33,para. 39). [11] Assaulting a peace officer is a specific intent offence, requiring the Crown to establish knowledge of the fact the person beingassaulted is a peace officer. [12] Assault simpliciter is a general intent offence and is an included offence in the offence of assault peace officer. [13] When voluntary intoxication is extreme and akin to automatism, voluntariness is negated, and it is a complete defence to criminalresponsibility. [14] Involuntary intoxication is relevant to all criminal offences, regardless of their fault element.

An accused who isinvoluntarily intoxicated is not performing a voluntary act. A reasonable doubt about voluntariness will result in an acquittal. [15] Involuntary intoxication includes ingesting an intoxicating substance (alcohol or drug) that the accused is not aware of, or may bethe voluntary ingestion of a substance that the accused is not aware of its intoxicating effect. [16] The law on involuntary intoxication was summarized in R. v. Harris, [2004] ABQB 205, wherein the court wrote: Overview of the Case Law on Involuntary Intoxication – General

17 R. v. King (SCC), [1962 CarswellOnt 18 (S.C.C.)] was the first case in which the Supreme Court of Canadaconsidered the defence of involuntary intoxication, specifically related to charges of impaired driving.

Ritchie J. writing for the majorityheld the following: The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are twodifferent things, and I am of opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so wasimpaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of theoffence created by s. 223 and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was,through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or mightbecome impaired.

If the driver's lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which heknew or had any reasonable around for believing might cause him to be impaired, then he cannot, of course, avoid the consequences ofthe impairment which results by saving that he did not intend to get into such a condition, but if the impairment has been brought aboutwithout any act of his own will, then, in my view, the offence created by s. 223 cannot be said to have been committed.

The existence of a rebuttable presumption that a man intends the natural consequences of his own conduct is a part of our law, but itsapplication to any particular situation involves a consideration of what consequences a man might be reasonably expected to foreseeunder the circumstances. and later, It seems to me that it can be taken as a matter of "common experience" that the consumption of alcohol may produce intoxication and,therefore, "impairment" in the sense in which that word is used in s. 223, and I think it is also to be similarly taken to be known that theuse of narcotics may have the same effect, but if it appears that the impairment was produced as a result of using a drug in the form ofmedicine in a doctor's order or recommendation and that its effect was unknown to the patient, then the presumption is, in my view,rebutted.

R. v. King (1962), (SCC), 133 C.C.C. 1 (S.C.C.), at 18 [hereinafter, King]. Underlining added. 18 Subsequent cases remain consistent with King. 19 R. v. McDowell [1980 CarswellOnt 8 (Ont. C.A.)] from the Ontario Court of Appeal, considers King and states the following: The necessary fault is to be found in the consumption of alcohol and drugs under circumstances in which he knew or ought to haveknown that his ability might thereby be impaired. R. v. McDowell, [1980] O.J. No. 488 (Ont. C.A.), at 5 [hereinafter, McDowell]. Underlining added. 20 The Alberta Supreme Court, Appellate Division in R. v.

Mack [1975 CarswellAlta 24 (Alta. C.A.)] also considers King and putsforward a similar premise: The effect of this decision is that if an accused knew or had any reasonable grounds for believing that the consumption of drugs oralcohol might cause him to be impaired, such evidence supports the conclusion that his condition was due to the voluntary consumptionof drugs or alcohol and that intoxication voluntarily induced by itself does not rebut the rebuttable presumption that a man intends thenatural consequences of his actions. R. v. Mack (1975), (AB CA), 22 C.C.C. (2d) 257 (Alta.

C.A.), at 264 [hereinafter, Mack]. Underlining added.

[17] In R. v. Saxon (1975), (AB CA), 22 C.C.C. (2d) 370 (ABCA), the court was dealing with the question of a‘spiked drink’ and held that “the only practical case of involuntary intoxication is if a harmless drink is surreptitiously replaced by anintoxicant which the unsuspecting defendant takes.” (para. 15, quoting Colin Howard, Strict Responsibility, 1963, at p. 203; and,referenced in R. v. McDowell (1980), (ON CA), 52 C.C.C. (2d) 298) at para. 12). [18] In R. v.

White, [2012] ABPC 290, the court summarized the caselaw re the voluntariness of intoxication and held that “anaccused is more likely to raise a reasonable doubt about the voluntariness of her intoxicated condition if she adduced evidence about thefollowing factors:

(1) The accused formulated and carried out a plan to avoid driving after consuming alcohol;

(2) The presence of drugs on the night in question;

(3) The availability of an opportunity to administer the drugs;

(4) Truly bizarre behaviour beyond the usual signs of impairment; and,

(5) Efforts made by the accused to determine the presence of drugs in her body. [19] In R. v. Lefebvre, [2010] ABPC 108, the court accepted the evidence of the accused and found that:

(1) She consumed a fourth shot that “tasted weird”;

(2) She was dressed inappropriately;

(3) She appeared to be extremely intoxicated, but did not have an odour of alcohol;

(4) Her speech was unintelligible; [20] In Lefebre, supra, the Crown as is the case herein, insisted that the accused had to establish non-insane automatism to make outan effective defence.

The defence did not seek this conclusion, rather argued that the accused had become intoxicated unintentionally,“rather that she ingested something unintentionally which caused the degree of intoxication she exhibited and gave rise to circumstanceswhich put her behind the notwithstanding her intention not to drive.” (para 92) [21] Moreover, the court rejected the Crown submission that because the accused had voluntarily consumed some alcohol, she wasthen precluded from advancing that her intoxication was involuntary.

The court wrote, “I do not accept that her voluntary consumptionof some alcohol means that I am relieved of the duty to review and weight the evidence to determine whether I am satisfied on the issueof voluntary intoxication.” (para. 96) [22] Finally, the court held: The accused has not proven positively that she was drugged. She took some steps to determine whether that was what had happened toher and those steps were not successful. It would be an intolerable burden to place on an individual in such circumstances to prove anaffirmative defence. This remains a criminal prosecution.

In the end, I must take into account all of the circumstances to determinewhether the Crown has proven a case beyond a reasonable doubt and whether in this case evidence has been produced to rebut thepresumption that the Accused intended the natural consequences of her actions. It will be a rare case where an accused consumes somealcohol and still the circumstances permit a finding of involuntary intoxication. This is once of those cases. (paras. 98-100) [23] The Crown must prove that the accused’s act was voluntary. Herein the defence has raised the issue of involuntary intoxicationin order to raise a doubt.

It is not a defence, and there is no burden on the accused. The burden remains with the Crown to prove beyonda reasonable doubt that the accused’s act was voluntary. LAW – AUTOMATISM [24] Mr. Manners, on behalf of Mr. Hallahan, made submissions that founded a defence of involuntary intoxication, although he usedthe term ‘automatism’. He did not refer to any caselaw on automatism, nor make any submissions on the legal test.

His arguments werefocussed on involuntary intoxication. [25] The Crown, however, picked up on the use of the term ‘automatism’ and then focused all submissions on the test and referred tothe leading caselaw. In particular, the Crown submits that the defence of automatism must fail because no expert evidence was called. [26] With respect, the Crown overly complicated the issue, in part, due to the unfortunate use of the term ‘automatism’ by thedefence. [27] The defences/issues, as identified in R. v. Talock, [2003] SKCA 69, are often conflated. [28] The submissions made by Mr.

Manners are appropriately categorized as raising a doubt about the voluntariness of the actions ofMr. Hallahan due to his purported involuntary intoxication. They were not in support of a non-mental disorder automatism defence. Assuch, I will not review the applicable law. FINDINGS OF FACT [29] A court can accept some, all or none of a witness’s evidence. A witness can be credible and reliable; credible but not reliable;neither credible nor reliable.

[ 30 ] It must be remembered that the defence has admitted the actus reus, that Mr. Hallahan did in fact head-butt the officer. This issue is not in contention. The issue is the specific intent required by the offence of assault peace officer, and the general intent required by the included offence of assault, each of which may be negated by involuntary intoxication. My findings will be focussed on that single issue. [ 31 ] I am troubled by the evidence of Sgt. Pileggi. The officer has been with the O.P.P since 1998. He has extensive experience.

He claimed to have an independent recollection of the events, and to having made notes at the time of the incident. His recollection was incongruent with his notes. [ 32 ] Officer Pileggi testified that when he arrived on scene, he found three males holding down Mr. Hallahan on a back deck. He placed him in handcuffs and immediately detected a strong odour of alcohol and red bloodshot eyes. His evidence in this regard is contradicted by the homeowner, Mr. Fraser, who testified that there was only himself and another neighbour on the deck with Mr.

Hallahan, and that two officers were immediately on scene and took control of the accused. [ 33 ] Mr. Fraser testified that Mr. Hallahan was acting weird, not saying anything, breathing heavy and deep and sweating quite a bit. He described Mr. Hallahan as walking to the police vehicle on his own without assistance. Mr. Fraser was a bar tender for 20 years and testified that he did not smell alcohol on Mr. Hallahan. [ 34 ] Officer Pileggi testified that Mr. Hallahan was very intoxicated, unsteady on his feet and was dozing on and off.

He went on to elevate his conclusion and said that the accused was in fact “extremely intoxicated” to the point that he had to support him so that he wouldn’t fall over. This evidence is in contradiction to the cell video in which Mr. Hallahan was seen bending over at the waist, standing and moving about never losing his balance. Indeed, he was very steady on his feet.

At no time was the accused seen to be dozing off or appearing sleepy at all. [ 35 ] Officer Pileggi testified in cross examination that he was aware of the importance of taking careful notes because he might be required to testify 1-2 years after an incident. In spite of this acknowledgment, the officer did not make any notations about an odour of alcohol, being unsteady on his feet or having blood shot eyes. Again, this was in spite of arresting Mr. Hallahan for the offence of public intoxication.

The officer’s notes simply noted the conclusion of intoxication without mention of indicia thereto. [ 36 ] Ultimately, I find that I cannot rely upon the officer’s testimony, given the contradictions noted above. I accept the evidence of Mr. Fraser, who was called by the Crown. I accept that Mr. Hallahan did not have an odour of alcohol upon him, that he was acting weird, not speaking, and was steady on his feet. [ 37 ] Mr. Hallahan testified; as such, I am required to conduct a W.D [1] .analysis. [ 38 ] I found Mr. Hallahan to be a credible witness.

His evidence was not perfect, and he acknowledged when his memory failed him. He was steadfast in his recollection of all matters prior to the eating pizza and returning to the basement to continue the imbibing of his abandoned drink. I found his recollection of looking at himself in the bathroom mirror and the distorted reflection to be ensconced in an emotional reliving of the moment. [ 39 ] Mr. Hallahan’s evidence is supported by the testimony of Megan Cornick and Harley Stone.

She testified that she had seen him drink multiple times but had never seen him in the same state that he was on the night in question. Normally, after drinking, he would be in a “happy state”. She lost sight of Mr. Hallahan at the party for about 35-40 minutes. When they met up again, he seemed “lost, he was scared, wasn’t making eye contact”. She testified that he “couldn’t say anything, he said ‘what is this?’ over and over”. [ 40 ] Ms. Cornick was concerned and decided to take Mr. Hallahan home. Once they arrived, Mr. Hallahan seemed “spooked” and took off running. She and another friend took off after him.

Mr. Hallahan stopped in the middle of the road. He was mumbling. He sat on the road. He seemed to look past the friends and not appear to know who they were. Ms. Cornick was panicked. Mr. Hallahan tried to punch the friend. [ 41 ] Mr. Hallahan stood up, kicked off his shoes and took off running again. He mimicked the action of shooting himself, by putting his hand to his head. The friends followed him to the backyard where the altercation with the homeowners took place. [ 42 ] Ms. Cornick had not been drinking. Her memory was clear. Her recollection was straightforward and unmoved in cross examination. [ 43 ] Mr.

Hallahan’s evidence was further supported by the evidence of the friend, Harley Stone. Mr. Stone, like Ms. Cornick, testified that Mr. Hallahan was a happy drinker, indeed he described him as “an amazing drunk, cracking jokes, having a good time, good energy”. Mr. Stone observed Mr. Hallahan eating some pizza at the party. He described Mr. Hallahan thereafter as “having eyes that were darting back and forth, like things were racing by him, as having a blank stare, like if you waved in front of him, nothing would happen”. [ 44 ] Mr. Stone corroborated Ms. Cornick’s evidence about Mr.

Hallahan repeatedly saying, “I don’t know what this is”, observing the mimicking of shooting himself with his hand, running off and mumbling. [ 45 ] Mr. Stone acknowledged that he was intoxicated. He had drunk up to 6 beer and maybe had a couple of shots of alcohol. He acknowledged some gaps in his memory. His evidence was not shaken during cross examination. I found his evidence straightforward and I am able to rely upon it with respect to his observations of Mr. Hallahan. [ 46 ] The cell video is without the most objective evidence proffered.

As counsel submitted, ‘if a picture is worth 1000 words, then a video must be worth 1 million’. [ 47 ] The cell video, as noted above, depicts Mr. Hallahan over an extended period of time. Contrary to the officer’s evidence, he was steady on his feet, never swaying at any point. He moved about, stood and bent over. He remained steady on his feet.

[ 48 ] The behaviour of Mr. Hallahan can best be described as simply bizarre. I have watched many similar cell videos, both as former counsel and as a jurist. I have never seen anyone behave in a similar manner. [ 49 ] While I am unable to take judicial notice of his actions equating to those of someone who is on drugs, I can take notice that they are inconsistent with someone who is either ‘very intoxicated’ or ‘extremely intoxicated’. Mr. Hallahan appears to be in his own world, acting out a play or scene. He removes all of his clothes, again on steady feet. He folds and unfolds the clothes neatly on the cot.

He attends at the toilet and sink and acts as those he is fixing them. [ 50 ] I find that his behaviour in the cell was, as noted in White, supra, truly bizarre behaviour beyond the usual signs of impairment. [ 51 ] I take judicial notice of the indicia, rather lack of indicia, of intoxication alcohol. This, in addition to the homeowner’s observation that Mr. Hallahan was acting weird, the observations of Ms. Cornick and Mr. Stone, and ultimately the evidence of Mr. Hallahan leads me to conclude that something other than alcohol was ingested. [ 52 ] I am not troubled, as the Crown submits that I should be, by Mr.

Hallahan’s ability to recall clearly the nights activities before eating pizza, but not thereafter. Indeed, this serves to support his evidence that something, some drug, must have either been on the pizza or put into his abandoned drink. [ 53 ] I accept his evidence that he is “not a drug guy” and did not voluntarily ingest any drugs on the night in question. [ 54 ] I accept his evidence that he was panicked and trying to figure out what was going it and find that this is corroborated by Ms. Cornick and Mr. Stone’s evidence that he repeatedly asked, ‘what is this?’.

I accept his evidence that he thought he was in the back of Ms. Cornick’s car, not the officer’s car. I accept his evidence that while he was in the cell, he was thinking that he was a plumber and that he needed to fix the sink and toilet. Mr. Manners, as an officer of the court, advised that he had not shown the cell video to Mr. Hallahan before the trial. As we all watched the video, Mr. Hallahan sat with his head on the table, embarrassed and could not bring himself to watch. There is no sound. He could not have seen his actions on the video. [ 55 ] While he testified, Mr. Hallahan often broke down.

I find that his was genuine embarrassment and frustration with not understanding why he behaved the way he did that night. CONCLUSION [ 56 ] I cannot determine what substance Mr. Hallahan ingested on the night in question, nor can I determine whether it was in his abandoned drink or the pizza. I am confident, however, that: 1) his behaviour was not as a result of intoxication by alcohol and, 2) that he did not voluntarily ingest any drugs. As such, I find that his intoxication was involuntary. [ 57 ] Given this finding, Mr. Hallahan will be acquitted.

He has rebutted the presumption that he intended the natural consequences of his actions, that his actions were not voluntary. Obiter: [ 58 ] I wish to note that police officer’s have a very difficult, and too often dangerous job. They routinely deal with intoxicated persons. No one should have to go to work and come home injured. Sgt. Pileggi’s dental injuries were not insignificant. I am sympathetic, but criminal cases cannot be decided on sympathy or prejudice. Released: March 16, 2021 Signed: Justice Angela L. McLeod