R. v. Cacnio Date:, 2013 BCPC 261

Citation: R. v. Cacnio Date: 20130626 2013 BCPC 0261 File No: 223508-3-B Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CAMILLE ROXANNE CACNIO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: Daniel J. Porte Counsel for the Defendant: Jason D. Tarnow Place of Hearing: Vancouver , B.C. Date of Hearing: March 15, June 10, 2013 Date of Judgment: June 26, 2013

A corrigendum was released by the Court on June 28, 2013. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On September 7, 2012, Ms. Cacnio pled guilty to a charge of participating in a riot on June 15, 2011, during game seven of the Stanley Cup playoffs. Ms. Cacnio was given a suspended sentence and was placed on probation.

One of the conditions of the probation order was a 10:00 p.m. to 6:00 a.m. curfew for 12 months which provided: Except as provided in this order, for the first 12 months of this order, you are not to be outside the grounds of your residence between the hours of 10 PM and 6 AM except for medical emergencies or with the written permission of your probation officer.

In the event you are unable to contact your probation officer to obtain during regular working hours the written permission of your probation officer to work past your curfew, you may go directly to your place of lawful employment, work your shift and then return directly to your residence, but, you shall on the next business day, provide your probation officer with the details of such absences and upon request you must also provide copies of your employment records sufficient to allow your probation officer to confirm the dates and times you were working.

You may obtain written permission by e-mail and you may provide employment records by e-mail. Ms. Cacnio is now before the court on a charge of breaching the curfew condition of her probation order contrary to

section 733.1 (1) of the Criminal Code . ISSUE [ 2 ] The main issues in this case are: (1) whether the Crown has proven the elements of the breach of probation offense as charged; and if so (2) whether Ms. Cacnio has a reasonable excuse? ADMISSIONS [ 3 ] The following admissions of fact were made for the purpose of dispensing with formal proof thereof: 1. The accused Camille Cacnio is the person named in the information before the court; 2. On January 5, 2013, Ms. Cacnio was bound by a probation order on court file 223508-1-V; 3. On January 5, 2013, at approximately 10:20 p.m.

Constable Selver of the Vancouver Police Department stopped a vehicle in the 900 Block Powell Street during a roadside check stop. That vehicle was being driven by Ms. Cacnio. At approximately 10:33 p.m. Constable Selver arrested Ms. Cacnio.

SUMMARY OF EVIDENCE Constable Selver [ 4 ] On the evening of Saturday, January 5, 2013, Constable Selver was working with the integrated road safety unit at a road check in the area of the 900 block East Powell Street in Vancouver, British Columbia. He was specifically responsible for policing eastbound traffic. At approximately 10:20 p.m., he noticed an eastbound black Oldsmobile because it only had parking lights on. The driving headlights were not on. He stopped the car which was being driven by Ms. Cacnio. In addition to Ms.

Cacnio a man, later identified as her boyfriend, was in the passenger seat of the car. [ 5 ] Constable Selver had an initial conversation with Ms. Cacnio. He asked her if she had any alcohol to drink that evening. She responded she had not. However, Constable Selver smelled a slight odor of liquor coming from her breath. Constable Selver asked her where she was coming from. Ms. Cacnio told him she was coming from dinner. He asked her a second time if she had consumed any alcohol. She again responded she had not. After checking that the car’s headlights were working, Constable Selver asked Ms. Cacnio to pull over.

He asked for her driver’s license, which she produced. He asked her where she lived and she told him on Expo Boulevard in Vancouver. [ 6 ] Constable Selver asked Ms. Cacnio to take a roadside breath test. She did so and blew .009 which was well within the legal limits. He asked Ms. Cacnio why she had been dishonest with him about drinking liquor. She said she drank two margaritas at dinner about three hours before and did not think they counted.

[ 7 ] Constable Selver directed Ms. Cacnio to return to her car. He intended to write a violation ticket because she had been driving without headlights. He went to his police vehicle and checked her name on his computer. He learned she was subject to a probation order. One of the conditions of the probation order was a curfew from 10 p.m. to 6 a.m. The curfew condition listed two exceptions, namely, medical emergencies or with the written permission of the probation officer. [ 8 ] Constable Selver walked over to Ms. Cacnio's car. Up to this point she had not appeared to be in any form of medical distress.

He asked her to step out of the car and had a discussion with her about the fact she was breaching her curfew. At that point Ms. Cacnio did not request EHS. Constable Selver said Ms. Cacnio did not appear to be in medical distress. Constable Selver arrested Ms. Cacnio for breach of probation. He placed her in the back of his police vehicle. He arranged to have her car towed away, as her boyfriend did not have a valid driver’s license and therefore could not drive the car. [ 9 ] At approximately 11 p.m., Constable Selver left the scene of the traffic stop and drove Ms. Cacnio to the city jail.

The drive to the city jail took approximately three to four minutes. On the way to the jail, Ms. Cacnio was quiet, although when they were about to leave she had appeared upset with her boyfriend and was yelling at him. [ 10 ] Constable Selver said while he was dealing with Ms. Cacnio he was not concerned about her mental health. He did not form the view there was a medical emergency. If there had been he would have called for an ambulance or EHS. Constable Selver arrived at the jail with Ms. Cacnio at about 11:00 p.m. He remained at the jail for a few minutes. At no point during his dealings with Ms.

Cacnio did she ever ask him to get her medical attention. Furthermore, he did not hear her ask any of the jail staff for medical attention. [ 11 ] In cross-examination, Constable Selver acknowledged he had no special training in recognizing people who experience psychological distress. He was asked why he had concluded Ms. Cacnio was not in any medical distress. He said he reached that conclusion for a number of reasons. Ms. Cacnio did not appear in medical distress. She did not request emergency services, for example, an ambulance. When he spoke to her boyfriend he did not say Ms. Cacnio was in medical distress.

Additionally, Constable Selver had dealt with people before who had been in medical distress both in his four years as a police officer and during the course of his own life experience. Ms. Cacnio did not appear to be in that kind of situation at the time. He was asked whether he could be certain she was not in any psychological distress or having mental issues at the time. He responded she did not appear to be. Constable Selver was asked whether Ms. Cacnio told him where she was going that evening. He said she told him she was going to Burnaby to a relative's house. He thought it was to a cousin's house. Ms.

Gonzales [ 12 ] Ms. Gonzales is a nurse with Vancouver Coastal Health who has worked at the Vancouver city jail since 2006. She provided some background about how persons with a medical condition are dealt with when they are brought to the city jail. If a medical issue is identified by the jailer, the nurses see the person even before he or she is booked in. For example, if a person indicates they have diabetes, which is very common, the nurse sees that person before he or she is booked into the jail.

If the jailer is concerned a person may harm himself or if a person indicates that may be the case, that person is seen first, even before being booked in. Special protocols are followed to deal with persons who indicate this kind of medical issue. [ 13 ] If there is no indication or expressed concern that a person has a medical issue, the person is first booked in and later assessed by a nurse. All persons booked into the city jail are assessed by a nurse who completes a health assessment form. That form sets out certain medical and other information to be obtained from persons taken to the city jail. [ 14 ] Ms.

Gonzales was working a shift which spanned the late evening of January 5 to the early morning of January 6, 2013. Ms. Cacnio was booked in at 12:40 a.m. Ms. Gonzales assessed Ms. Cacnio at approximately 1:55 a.m. and completed the initial health assessment. As part of that assessment she accessed Ms. Cacnio's Pharmanet information via the Internet. She also prepared a prisoner observation log. She spent some time with Ms. Cacnio but could not say how long. The time spent with a prisoner varies depending on how long it takes to complete the initial health assessment. Ms. Gonzales said Ms.

Cacnio was tearful; however, it is common for nurses to see prisoners in the jail who are tearful. [ 15 ] Ms. Gonzales asked Ms. Cacnio if she was taking medications. Ms. Cacnio told her she took anti-depressants. She asked Ms. Cacnio if she was currently taking the medications. Ms. Cacnio told her she had been off the medications for a week. She asked Ms. Cacnio about her alcohol use. Ms. Cacnio told Ms. Gonzales she drank occasionally and she had consumed alcohol that evening. [ 16 ] Ms. Gonzales asked Ms. Cacnio about her mental health. Ms. Cacnio told her she suffered from depression. Ms. Gonzales asked Ms.

Cacnio if she had any thoughts of harming herself. As part of the mental health assessment the nurses always ask about suicidal thoughts. Ms. Cacnio answered, "sometimes". Ms. Gonzales asked her if she currently had thoughts of harming herself. Ms. Cacnio’s response, as noted on the form, was "not currently". Ms. Gonzales asked Ms. Cacnio if she felt safe in the jail or whether she was going to hurt herself in the jail. Ms. Gonzales said Ms. Cacnio "contracted to safety”, that is, she was not going to hurt herself in the jail. [ 17 ] Ms. Gonzales had no concerns Ms. Cacnio might harm herself.

If she had any such concerns she would have followed the protocol of suicide precaution. This involves placing the person in an orange suit, in a mentally disordered offender’s cell, with no sharps and no saran wrap, and monitoring the person hourly by nurses and every 15 minutes by jail staff. Ms. Gonzales did not do any of that with Ms. Cacnio. [ 18 ] Ms. Gonzales testified she reviewed the Pharmanet file which contained a list of medications prescribed for Ms. Cacnio. She learned the last time medication had been dispensed to Ms.

Cacnio was in September 2012, when she was dispensed 90 tablets of Cipralex to be taken one tablet per day. This is an antidepressant which eases the symptoms of depression. According to Ms. Gonzales, it does not work immediately and is not considered an emergency medication. It can take two to four weeks for this medication to take effect. Ms. Gonzales said, based on the prescription, if Ms. Cacnio had taken the medication as prescribed, she would have been off the medication for about a month by the time she was seen at the city jail.

[ 19 ] As a jail nurse, Ms. Gonzales is not able to prescribe medication for prisoners. However, if medications are needed on an emergency basis, the city jail has access to a physician who is on call 24 hours a day. Ms. Gonzales said Ms. Cacnio was seen by Dr. Sutherland, one of the doctors who regularly attends at the jail. Dr. Sutherland went to the jail in the early morning of January 6, 2013. Ms. Gonzales did not have any conversation with Dr. Sutherland. [ 20 ] In cross-examination, Ms. Gonzalez said: - Ms.

Cacnio was booked at 12:40 a.m. that was not the time she was initially brought into custody; - When someone is brought into custody it is the jailers, not the police officers, who tell the nurse about the prisoner’s medical needs; - That night the jailers told her nothing specifically about Ms. Cacnio. They simply took Ms. Cacnio to the intake desk which is an area like a nurse's station; - The assessment form completed by Ms. Gonzales indicates Ms.

Cacnio was on antidepressants and she had been off antidepressants for one week; - In addition to the assessment the nurse also completes a form called "doctors parade" – this is a

summary prepared for the benefit of the doctor who performs rounds on that shift; It lists the clients in jail and any medical concerns the doctor should address; - Ms. Cacnio had elevated blood pressure at 156/60. Ms. Gonzales agreed this was a high blood pressure reading; - Her temperature was normal; - There was a notation that Ms. Cacnio had depression – she ticked “yes” in the box for thoughts of violence and then wrote "not currently"; - She noted “no” to suicidal ideation and “no” to history of attempts; - She did not fill in whether Ms. Cacnio’s behavior was appropriate because Ms.

Cacnio was teary; - There was a notation which looked like “SI” This was written in someone else's notes, not the nurse’s notes. It was Dr. Sutherland's note. Ms. Gonzales testified that meant diagnoses. She said “SI” does not stand for suicidal ideation. DEFENCE CASE Ms. Cacnio [ 21 ] Ms. Cacnio testified that about a week after the Stanley Cup riot she was diagnosed with a medical condition, namely, depression and anxiety. The symptoms included experiencing random anxiety attacks which she could not control. She has a lot of suicidal thoughts. During such times all she can think of is life and death.

She has been hospitalized and has gone to the emergency department a number of times. For example, one time when Ms. Cacnio was alone at the house she had an anxiety attack. She was so overwhelmed she tried to hurt herself. However, she called 911 and police officers came to the apartment, placed her in handcuffs, and took her to the hospital. She believed this occurred in January 2012. [ 22 ] Another occasion when she went to the hospital was just the weekend before the June 10, 2013, trial continuation. She had an anxiety attack. She could not sleep. All she could think of was suicidal thoughts.

She tried to deal with it on her own but it was too overwhelming. Her father took her to hospital. This occurred at approximately 4 a.m. Sunday, June 9. She was in hospital for about 12 hours. [ 23 ] Ms. Cacnio said on January 5, 2013, she was on medications. At that time she was on Cipralex 10 mg. Since then the dosage has been increased to 20 mg. She has also been prescribed another medication Novofinlaxine (phonetic). She did not always take the Cipralex on a daily basis as prescribed. Ms. Cacnio acknowledged she was supposed to take the medication on a daily basis but often she did not do so.

She was too stubborn to accept she had to take medication to function day-to-day. She testified that Cipralex lowered all her anxiety and her suicidal and depressive thoughts. It made her think more clearly. When she took Cipralex she felt the effect right away. The symptoms were all alleviated right away. On days when she did not take Cipralex, she felt it right away and would feel her anxiety was heightened. [ 24 ] Ms. Cacnio testified that on January 5, 2013, she had not taken Cipralex for one week.

She and her boyfriend went to dinner at Hurricane Grill, a Yaletown restaurant a few blocks from where she lived. They went to dinner sometime between 8:00 and 8:30 p.m. Around 9:30 p.m. they were paying the bill. While at the restaurant Ms. Cacnio was "triggered by an anxiety attack". Everything was overwhelming and all she could think of was suicidal thoughts. All she could think of was about getting to her cousin’s house in Burnaby where she had left her medication a week before. Ms. Cacnio told her boyfriend they had to go to Burnaby to get her medication. There was no question about it.

She needed it because it had been a week since she had not taken it and it caused these anxiety attacks. [ 25 ] Ms. Casnio was asked whether she thought about going to the hospital or calling 911. She said she did but, if she went to the hospital, it would have taken hours before she got help. Given her state of mind, all she could think about was getting that medicine. It seemed to her the best option was to go to her cousin’s house to get the medications. She was not thinking about what time it was. She

was in survival mode. All she could think about was the medication. [ 26 ] Ms. Cacnio tried to call her cousin on his cell. She did not get an answer. She, therefore, decided to go to his apartment anyway. He lived in Burnaby in a ground-level apartment so, if he was there, he would see her at the window. [ 27 ] Ms. Cacnio said she was driving east along East Hastings when she was stopped at a road check. During the course of the road check she tried to talk to the police officer and tell him about her situation, namely, that she was going to Burnaby to get medications.

She said the officer was aggressive from the get go. Ms. Cacnio was very scared and extremely nervous at the roadside. The officer was very aggressive. After she gave a breath sample, Ms. Cacnio said she again tried to tell him about the situation. He seemed very upset she had passed the test and was not legally intoxicated. He merely sent her back to her vehicle. She again tried to tell him about her situation, namely, the reason she was out past 10 p.m. [ 28 ] The officer later returned to her vehicle and told her she was under arrest.

She was really scared so maybe she was not assertive enough, because the officer was very aggressive and was cutting her off. She tried to tell him she really needed to go to Burnaby but she could not get the explanation out. [ 29 ] Ms. Cacnio finally had some one-on-one time with the officer when she was placed in the back of his vehicle. She was still scared but was finally able to express to him that she needed her medication and that's why she was out past curfew and was driving to her cousin’s house. She said the officer seemed very angry and very aggressive. He did not ask her about her mental state.

He denied her access to her cell phone which her boyfriend had and which contained the phone number for her lawyer. [ 30 ] Once Ms. Cacnio was taken to the city jail she was placed in a cell. Ms. Cacnio said no one came to see her until hours later when someone took her to the nurse. She had no idea how long she was in the cell. She was very unstable and was crying when she saw the nurse. Ms. Cacnio remembered telling the nurse she needed her medication. She said the nurse did not ask her further questions about her mental state but the nurse told her she would be seen by a doctor soon.

She did not tell the nurse about the specific medications she was on. She was with the nurse for approximately one to two minutes. [ 31 ] When Ms. Cacnio was booked in they had taken her clothes from her and given her a thin painter- like outfit to wear. While she was being held in the cells she rang the emergency button. She was very cold. She felt she did not receive proper care. When they answered the call, she told them she was not feeling well. She also told them that if she got hypothermia she would call her lawyer. She also asked for her clothes. Ms. Cacnio said she received a second outfit.

She tried hurting herself at that time. She rang the buzzer again at a later point but no guard answered her call. [ 32 ] Ms. Cacnio saw the doctor in the early morning of January 6, 2013. She could not remember the questions the doctor asked but she remembered being asked how she was doing. Ms. Cacnio told the doctor she was not okay. She told the doctor it was lucky that there was nothing in the cell to hurt herself with. She was with the doctor for about five minutes. The doctor provided her 10 mg of Cipralex. Ms. Cacnio was released later that day. [ 33 ] In cross-examination, Ms.

Cacnio acknowledged she had gone to the hospital on two occasions. She also acknowledged she had gone to the hospital because it was an urgent situation and she needed immediate attention. However, she said there were also other occasions when she needed immediate attention when she did not go to hospital. The example she gave was one occasion when she and her boyfriend drove to a store. He went inside while she waited in the car. She got an anxiety attack. She found a pair of pants in the vehicle and tried to strangle herself. On that occasion, she did not go to the hospital.

She sent her boyfriend a text and he came out of the store. At that time she was taking her medication and was able to talk herself down with her boyfriend’s help. At first she said this occurred in February 2012, but she was not sure of the date. She later corrected herself and said it was this year, 2013. [ 34 ] Ms. Cacnio was asked about times when she was not on medication. She said when she was not on medication it was because she did not want to take it. She acknowledged she felt better if she took the medication.

There were several incidents between September 2012 and December 2012 when she did not take her medication. She acknowledged not following the prescribed dosage. There were random incidents when she tried to fight her medical condition. Ms. Cacnio said sometimes she would not take the medication for couple of days, other times it was just one day. She could not say the number of times she stopped and started having feelings of anxiety, and depression. It was not something she counted. She thought it was more than one time, but not more than five.

The longest period of time she stopped taking the medication was the week leading to the incident of January 5, 2013. [ 35 ] In cross-examination, Ms. Cacnio was asked details of what happened after dinner on January 5, 2013. She said she was at the restaurant for approximately three and a half hours. They first arrived at about 8:30 p.m. and paid at approximately 9:30 p.m. When she found she did not have her medication she called her cousin. When he did not respond she thought there was a chance he had his phone on silent.

She noted it was a Friday night and her 27-year-old cousin, who lives with his girlfriend, might possibly be home because he is a homebody. At that time of the evening it was approximately a 20 minute drive to his home in Burnaby. [ 36 ] Ms. Cacnio acknowledged she was approximately two minutes from her home by car. She was asked why she did not go to the hospital if she was feeling depressed and sad. She said she did not go to the hospital because at that time her judgment call, which she said turned out to be a bad call, was that she needed the medication. If her cousin was home it would have been a quick fix.

She would have gotten her medication and felt better. This was based on her experience with the medication. If she went to hospital she would have to wait a long time to see a doctor. She did not want to sit in hospital for a long time before she got her medication. She thought it would take a long time based on prior experiences of going to the hospital. She believed she would not get the medication she needed for six hours or more. She believed she would not be able to get to see a doctor for 6 to 10 hours. [ 37 ] Ms. Cacnio was asked how her medication came to be at her cousin’s.

She said she had visited her cousin a few days before the New Year. She did not remember when exactly. The medication was in her purse and she believed she must have taken it out. At some point the medication had fallen out. Her cousin called her afterwards and told her he had found the medication. This was some time before January 5, 2013. Ms. Cacnio was asked why she did not go to pick up her medication. She said it was the holiday season and she was distracted with events. She noted her cousin was all the way in Burnaby and it would have taken time away from social events. Ms.

Cacnio also said she was trying to fight her medical condition again. She acknowledged it was very foolish of her to do that and a bad

mistake. She acknowledged she had described the drive as only a 20 minute drive. However, she said she was not responsible. That was characteristic of her and reflected why she sometimes did not take her medication. She said it was not a good decision or judgment call. She just did not go. [ 38 ] Ms. Cacnio was asked about the details leading up to her breath test. She acknowledged the first question she was asked was whether she had drank any alcohol. She also acknowledged she denied consuming alcohol earlier in the evening. She agreed she lied. It was a foolish decision but she could explain it.

The explanation was she wanted to get to Burnaby as soon as possible. She knew she was not drunk and she not want to go through all the procedure involved in a drunk driving investigation. She was not thinking straight. It was put to Ms. Cacnio that she believed the easiest way out of the situation was to lie. Ms. Cacnio said she would not use those words. She thought those words were very accusing. Her view was that she thought she was not in an intoxicated state so she was legally able to drive. She was not thinking straight.

She acknowledged that at the time she thought the best decision was to lie about her alcohol consumption. [ 39 ] Ms. Cacnio acknowledged the officer asked a second time if she had been drinking and she again denied it. Ms. Cacnio was asked for specific details about what happened. She said she was not able to recall every single little detail. She did not remember the exact words the officer used. She acknowledged she also told the officer she had two margaritas three hours before. That time frame was not correct. Ms. Cacnio maintained the officer was aggressive with her throughout the investigation.

He demonstrated his aggression in the way she spoke, his tone of voice and his physical posture. Ms. Cacnio maintained the officer never gave her an opportunity to tell him about her medical condition. [ 40 ] Ms. Cacnio agreed the jailers spoke to her. She also acknowledged the nurse asked her what medications she was on. She told her the nurse she was on antidepressants. She did not recall the nurse asking her questions about her mental health. She was crying and feeling anxious. Ms. Cacnio did not recall the nurse asking her about hurting herself.

She did recall telling the nurse she sometimes had thoughts about hurting herself. At the time she told the nurse this she had no thought of hurting herself but she was referring to that very moment. She acknowledged she had thoughts of self-harm before talking to the nurse and while she was in the cell. She had not acted on them and she had not told the jail guards. [ 41 ] It was put Ms. Cacnio that on the way to the jail all was quiet in the police car and she had the opportunity to tell the officer about her situation. She acknowledged that was so.

She did have that opportunity but did not tell the officer. [ 42 ] Ms. Cacnio was asked whether this was the first time since stopping her medications that she felt anxiety. She said it was not the first time. However, on other occasions she could fight it. She could overcome it by talking to herself. She did not recall how often this had occurred before, but it was more than once. She said the January 5 situation was overwhelming and she needed immediate help. [ 43 ] Ms. Cacnio was asked why she did not call 911. She said at the time it seemed to her the best option was to get the medications.

Going to her cousin’s was a better choice than calling 911. She always tried to solve the issue on her own. Ms. Cacnio also said she had never gone to the emergency department before that day. The incident when she called 911 was after January 5, 2013. [ 44 ] It was put Ms. Cacnio that she knew taking her medication alone did not solve the issues with respect to anxiety. She denied that was the case because her feelings were not as strong. However, on January 5 it had been a week that she had not taken medication. Mr. Co [ 45 ] Ms. Cacnio's cousin, Tommy Co, testified that he saw Ms.

Cacnio from time to time, generally at family events. They did not socialize or see one another often. In December 2012, he saw Ms. Cacnio at his apartment when she paid him a visit a few days before the New Year. He could not remember the exact date. At that time he lived in the Bonsor Park/Nelson Street area in Burnaby. After that visit Mr. Co found a small bottle with her name on it. It was prescription medication. He sent her a message about it. She responded that she would pick up the medication when she had time.

She never did pick up the bottle. [ 46 ] On January 5, 2013, he and his wife were at a baby shower in Richmond from about 7 p.m. to approximately midnight. Someone tried to call him on his cell phone but he did not pick up because his phone was on silent. When he was leaving his friend’s house he noticed the call had been from Ms. Cacnio. His phone log indicated she had called three or four times. He did not recall if Ms. Cacnio left a voice mail message or if she sent any texts. He did not call her that evening but the next day he called her on her cell, however, he did not reach her. [ 47 ] Mr.

Co said he learned about Ms. Cacnio's arrest from her mother. He realized the medication was important and he kept it, probably in one of his cupboards. He did not remember what happened to the bottle of medication because he moved apartments. He saw Ms. Cacnio or her parents before he moved apartments, but he did not give them the medication because no one asked him for it. Mr. Duhamel [ 48 ] Ms. Cacnio's boyfriend, Rob Duhamel, testified he and Ms. Cacnio have been together for approximately eight months. During that time he has had occasion to observe Ms. Cacnio.

He has witnessed episodes when she snaps and needs the assistance of medication. He said that sometimes a small thing occurs and she becomes a different person. She breaks down, cries, becomes incoherent and needs to be consoled. Ms. Cacnio’s reaction when she has these episodes is significantly out of proportion to the triggering event. He was asked what he has seen her do to alleviate her condition. He said she takes medication. [ 49 ] After the fact, Mr. Duhamel has heard from Ms. Cacnio about incidents involving self-harm. This has usually occurred when he had left her to have time on her own.

He knows she has been admitted to hospital. The last occasion he remembered Ms. Cacnio being admitted to hospital was around Christmas time (presumably 2012). He and Ms. Cacnio had a small argument; she had an episode and went to hospital by ambulance. He went to pick her up around 1 a.m. [ 50 ] Mr. Duhamel confirmed Ms. Cacnio's testimony that on January 5, 2013, they went out for dinner at about eight o'clock to the Hurricane Grill. Toward the end of dinner, at approximately 9:30 p.m., Ms. Cacnio had an episode. In his evidence-in-chief, Mr.

Duhamel said he did not know what triggered the episode. However, in cross-examination, he said there was a small argument between the two of them. He could not remember what the argument had been about. Ms. Cacnio just snapped. She started to cry and was extremely upset. She did not seem to care who was around her. Mr. Duhamel said Ms. Cacnio was overwhelmed. She was upset about her bad luck and said everyone was against her. [ 51 ] While they have been living together, Ms. Cacnio has been taking medications. He thought she took them daily. He did not know if she skipped taking her medication. Mr.

Duhamel acknowledged that Ms. Cacnio has had similar incidents in the past. In the ten days leading up to the incident of January 5, 2013, she was up-and-down but he did not really remember details. [ 52 ] Mr. Duhamel said that during the 2012 Christmas period they did not go to a lot of social functions. Before January 5, he did not recall Ms. Cacnio telling him that she had left her medications at her cousin's house. If she did tell him it was not a big deal. He assumed the medication was at home and on January 5 he found out she did not have it. [ 53 ] He was asked to describe her condition that evening. Mr.

Duhamel said Ms. Cacnio was frazzled and confused. She was not in a good state. He talked to her and tried to calm her down as she was driving. She was agitated and erratic; however, she was calm when driving. She had two hands on the steering wheel and was “almost nervous looking”. [ 54 ] Mr. Duhamel said the police officer who stopped them appeared vindictive and pushy. The officer looked like he had a chip on his shoulder. It was put to Mr. Duhamel that he had been aggressive with the officer. He said the two of them had not really gotten along. Mr. Duhamel did not remember what was said.

He did not remember the tone of voice. He did not remember refusing to answer the officer's questions. He did not remember refusing to give his last name. Mr. Duhamel said he did not recall Ms. Cacnio yelling at the scene. However, he remembered her crying hysterically. Mr. Duhamel said he did not tell the police officer where they were going. He did not know why he did not. He did not tell the police officer that Ms. Cacnio needed medical attention. He said Ms. Cacnio was embarrassed about it and it was not up to him to say. [ 55 ] After the interaction with the police officer, Mr.

Duhamel left the scene, went home and went to bed. He did not call the jail. He did not call Ms. Cacnio’s parents, but he did call one of her friends. The next morning Ms. Cacnio called him as soon as she was released. She then took a taxi to their residence. Dr. Sutherland [ 56 ] Dr. Christy Sutherland is a physician licensed to practice in British Columbia. She is a family doctor with a specialty in addiction medicine. She is qualified by the American Board of Addiction Medicine. She provides medical services to clients of various agencies in the Downtown Eastside.

She also works approximately five shifts per month at the Vancouver city jail. [ 57 ] Dr. Sutherland was working the early morning shift at the Vancouver jail on January 6, 2013. She saw Ms. Cacnio that morning and made notes on the initial health assessment form about her observations. Those notes indicate that the subjective symptoms reported by Ms. Cacnio were depression, that she had been off Cipralex for seven days, and was feeling unwell from this. Ms. Cacnio's mood was described as anxious. Ms. Cacnio stated she took no recreational drugs. Dr. Sutherland's notes further indicate that Ms.

Cacnio told her she had experienced some "suicidal ideation" the previous night, but when seen by the doctor she was no longer having those thoughts. The notes also indicate that Ms. Cacnio "contracted to safety". [ 58 ] Dr. Sutherland's notes about her objective observations were that Ms. Cacnio was alert. She was in no acute distress; she was organized and conversational. Dr. Sutherland prescribed Cipralex 10 mg to be taken daily. In particular, after the assessment Dr. Sutherland prescribed one tablet of 10 mg of Cipralex and gave instructions to the jail nurse to give Ms. Cacnio that tablet. [ 59 ] Dr.

Sutherland testified that Cipralex is one of several medications used to treat depression and anxiety that are called selective serotonin re-uptake inhibitors (SSRI). She was asked to explain antidepressant discontinuation syndrome. She said this is a syndrome which manifests itself after the discontinuation of SSRI medication, if the medication is stopped suddenly. The symptoms often manifested by a person with this syndrome are flu-like symptoms, nausea, malaise, increased anxiety and insomnia. The symptoms vary from patient to patient. [ 60 ] Dr.

Sutherland was asked whether symptoms of an anxiety attack or depression or antidepressant discontinuation syndrome could “simmer down” in time even if the person experiencing them did not have access to any medication. Dr. Sutherland said that was definitely possible because mental illness is not like other illnesses (e.g. blood glucose problems). Mental illness is more subtle and the symptoms come and go because people can self soothe their anxiety. The body can't sustain anxiety for hours. The symptoms are complex and subjective and can come and go.

She testified that if someone had been arrested at 10:30 p.m. it would be reasonable for those symptoms to have subsided by the time she saw that person. She said Ms. Cacnio told her that the prior evening she felt bad but when she was seen by Dr. Sutherland her symptoms were relieved a bit. [ 61 ] Dr. Sutherland was asked why she prescribed 10 mg of Cipralex to Ms. Cacnio. Dr. Sutherland said she did so for two reasons: (

a) she did not know whether Ms. Cacnio was experiencing SSRI discontinuation syndrome or not, but she suspected Ms. Cacnio did; (

b) but regardless of whether Ms. Cacnio had that syndrome, Dr. Sutherland would have prescribed she restart her medication for her depression. Dr. Sutherland said she was treating the underlying illness of depression and “perhaps giving her a bit of relief from the discontinuation syndrome”. Dr. Sutherland was asked whether a person taking 10 mg of Cipralex could experience relief from various symptoms associated with SSRI antidepressant discontinuation syndrome. She answered "yes". [ 62 ] In cross-examination of Dr.

Sutherland, the Crown reviewed a cluster of symptoms which are normally associated with antidepressant discontinuation syndrome. Dr. Sutherland agreed that Ms. Cacnio had not complained about the majority of these symptoms. Ms. Cacnio did not report disequilibrium (light-headedness, or vertigo). Ms. Cacnio did not complain of sensory symptoms. Ms. Cacnio did not complain of general somatic symptoms (lethargy, tremors, sweating or anorexia). Ms. Cacnio did not complain of sleep disturbance. She did not complain about gastrointestinal problems. Ms.

Cacnio only complained of affective symptoms such as irritability, anxiety, agitation and low mood.

[ 63 ] Dr. Sutherland candidly admitted that when she wrote her notes she did not consider the diagnosis of antidepressant discontinuation syndrome was so important that she would be in court about it. At the time Dr. Sutherland did not explore it much because she was going to restart the medication anyway. Dr. Sutherland agreed she did not write down a diagnosis at the time she saw Ms. Cacnio in the city jail. Dr. Sutherland acknowledged that her assessment of Ms. Cacnio was all based on Ms. Cacnio's subjective report that she had a history of depression and had been on medication. [ 64 ] Dr.

Sutherland did not recall being told by Ms. Cacnio that she was lucky there was nothing in the cell the she could hurt herself with. She did not recall being told by Ms. Cacnio that she had scratched herself. If Ms. Cacnio had said those two things that would have led to a further inquiry. She had no notes of such comments. Dr. Sutherland further acknowledged that Ms. Cacnio did not tell her she had tried to kill herself during the night. If Ms. Cacnio had told her that she would have written it down. [ 65 ] Dr. Sutherland agreed that objectively Ms.

Cacnio was alert; she was not in any distress; she was able to engage in the interview; and she was not psychotic. Dr. Sutherland agreed that the reports of anxiety, depression and self-harm were all subjective. She agreed that mood is totally subjective. It is the patient’s own experience. Dr. Sutherland said if she had concerns Ms. Cacnio might harm herself she would have undertaken further investigations. As part of her duties at the city jail she can order checks on people if she is worried they are suicidal. However, if someone was so ill that they needed a suicide check she would certify them.

POSITION OF THE PARTIES [ 66 ] The defence submits that on January 5, 2013, Ms. Cacnio had a medical emergency and therefore she had a reasonable excuse for not complying with the curfew condition in her probation order. The defense also submits we need to put ourselves in Ms. Cacnio's shoes. She has suffered considerable distress following the riot related charge and the media attention it generated. She has a mental health condition which she has found difficult to accept. At times she has not followed instructions regarding her medication.

However, the defense submits, on the night in question she was suffering from antidepressant discontinuation syndrome, which brought on a severe anxiety attack. All she wanted to do was alleviate the symptoms of the anxiety attack. In the circumstances, the defense argues, it was reasonable for Ms. Cacnio to attempt to obtain her medication which she had left at her cousin’s who lived approximately 15 minutes away in Burnaby. [ 67 ] The Crown argues that the circumstances described by Ms. Cacnio do not constitute a medical emergency.

Moreover, even if it were a medical emergency, the actions she took to deal with it were not reasonable in the circumstances. The Crown submits that in considering whether there was a medical emergency I should consider Ms. Cacnio's evidence. In particular, I should consider the fact she lied to the police officer several times and she did not tell the police officer, the jail nurse, or the jail guards that she was in medical distress and needed immediate attention.

Moreover, the Crown argues that driving to Burnaby to the home of her cousin, who had not answered her phone calls, was, in the circumstances, unreasonable. If there was a medical emergency Ms. Cacnio could have gone to hospital or called 911 to get assistance. The Crown notes she did not do so and her actions, in the context of her experience, were simply not reasonable. ANALYSIS [ 68 ] I will first consider whether the Crown has proven the essential elements of the offence of breach of probation. The Crown must prove that Ms.

Cacnio was bound by a probation order and that she failed or refused to comply with it. In this case, given the formal admissions and the evidence of Ms. Cacnio, I find the Crown has proved that Ms. Cacnio was bound by a probation order. That probation order contained a curfew condition which prohibited her from being outside the grounds of her residence between 10 p.m. in the evening and 6 a.m. in the morning, except for medical emergencies or with permission of the probation officer. Further, it is established Ms.

Cacnio was stopped by a police officer at approximately 10:20 p.m. and, therefore, was not in compliance with the curfew condition. Furthermore, on the basis of Ms. Cacnio's evidence, I am satisfied she knew she was breaching the curfew condition and did so intentionally. [ 69 ] The central question that remains to be addressed, however, is whether Ms. Cacnio had a reasonable excuse for failing to comply with the curfew condition. The curfew condition itself provides two exceptions one of which is for medical emergencies. Accordingly, I will first consider whether the circumstances described by Ms.

Cacnio and other witnesses constituted a medical emergency. [ 70 ] In R. v. Zehr 2011 ONCJ 516 , the court considered a defense argument that vehicles of Hydro One (Ontario's equivalent of BC Hydro) responding to an emergency were statutorily exempt from certain sections of the Highway Traffic Act . In doing so, the court considered the meaning of the word “emergency”.

At paragraph 53 it noted: An emergency has a simple and well understood meaning: a serious, unexpected and potentially dangerous situation requiring immediate action (see the Oxford English Dictionary or Black’s Law Dictionary for two examples). [ 71 ] In R. v. Tan 2010 ABPC 163 , the court considered a charge of breach of a recognizance which, among other things, provided for a curfew. The recognizance provided for certain exceptions including medical or other emergencies. In that context the court noted that the term "medical emergency" conveyed a somewhat obvious meaning.

It also considered the meaning of the word “emergency”. 30 I start by considering the word "emergency". In Volume V of The Oxford English Dictionary , Second Edition (Oxford University Press, Oxford, 1991) at p. 176, the following definition is given as "the ordinary mod[ern] use": "A juncture that arises or 'turns up'; esp. a state of things unexpectedly arising, and urgently demanding immediate action ....

Hence sometimes used for: Urgency, pressing need ...." In The Canadian Oxford Dictionary , edited by Katherine Barber (Oxford University Press, Don Mills, Ontario, 2001), the word "emergency" is defined, at p. 457: "[1] a sudden state of danger, conflict, etc., requiring immediate action. [2a] a medical condition requiring immediate treatment. [b] a patient with such a condition ...."

[72] In Alex Girvin Housing Co-operative Inc. v. Booth (ON SC), 51 O.R.(2d) 587, a case concerning a landlordand tenant dispute, the housing cooperative invoked emergency provisions of an occupancy bylaw to terminate the respondent’soccupancy of the premises. The court considered whether there was an emergency warranting an invoking of the emergency procedures.It, therefore, reviewed the meaning of the word "emergency”.

After considering the definition in Black’s Law Dictionary and referencesin Words and Phrases Legally Defined the court concluded: … that the term is a fluid one, the meaning of which must be determined by all the circumstances and, secondly, that the term connotessome imminent danger. [73] The above noted cases indicate that an emergency involves a degree of urgency and a serious, unexpected and potentiallydangerous circumstance. In this case, it is clear on the evidence that Ms. Cacnio suffers from depression and at times experiences anxietyattacks.

It is also clear on the evidence that she was taking a medication called Cipralex. However, other than her assertions, there is nomedical evidence to indicate why the medication was initially prescribed to Ms. Cacnio and whether it was prescribed for depressiononly, anxiety only, or both. [74] Dr. Sutherland, who only saw Ms. Cacnio for about five minutes in the jail, commented generally on the use of Cipralex andother similar medications. She indicated that such medications are prescribed for depression and anxiety.

There is insufficient medicalevidence before the court to support a conclusion that Cipralex provides immediate relief of symptoms of anxiety or an anxiety attack.Ms. Cacnio believes this to be the case. However, I find that the evidence of nurse Gonzales and Dr. Sutherland does not support Ms.Cacnio’s view. The nurse stated that Cipralex does not work immediately and is not considered to be an emergency medication. She saidit could take two to four weeks for the medication to take effect. [75] Dr. Sutherland testified she did not know whether Ms.

Cacnio had SSRI discontinuance syndrome, although she suspected shedid. However, she prescribed Cipralex because she was treating the underlying illness of depression and “perhaps giving her a bit ofrelief from the discontinuation syndrome”. Dr. Sutherland did say that a person taking 10 mg of Cipralex could experience relief fromvarious symptoms associated with antidepressant discontinuation syndrome. However, she was not asked and did not say that the reliefwould be immediate. Moreover, her answers in cross-examination made it clear she did not make a formal diagnosis of antidepressantdiscontinuation syndrome.

She did not explore the syndrome that much because she was going to restart the medication anyway. Accordingly, on the basis of the medical evidence before the court, I cannot conclude that Cipralex would have provided immediaterelief for Ms. Cacnio's anxiety symptoms as she claims. [76] Nevertheless, even if Cipralex could have relieved Ms. Cacnio’s symptoms, in the circumstances of this case, I find thecircumstances did not amount to an emergency as that word is defined in the case law. I reach this conclusion for a number of reasonsincluding the following: 1. Ms.

Cacnio testified that on days when she did not take the Cipralex she missed it right away and would feel her anxiety going up. Atthe time of the January 5 incident, she had not taken the medication for approximately a week. She had left the medication at her cousin'splace. Given the experiences Ms. Cacnio recounted regarding her anxiety attacks and their effect on her, the fact that she did not pick upher medications from her cousin's home makes no sense. Ms.

Cacnio attempted to explain it away by saying: it was the holiday season,she was distracted with events, and that her cousin lives over in Burnaby and it would have taken time away from social events to gothere. Ms. Cacnio described the debilitating effects of her depression and the anxiety attacks. Given the symptoms she described, it isdifficult to understand why she preferred to attend holiday events over getting medication which she said improved her mental health.Moreover, she said it would have taken time away from social events to go to her cousin’s house.

Yet, when she explained her reasonsfor disobeying her curfew to go to her cousin's house, she described her cousin’s house as being only 20 minutes away. Her explanationfor not going to pick up her medication during the holidays is, therefore, in part, inconsistent with her evidence as to why she decided togo to her cousin’s on January 5. 2. The description Ms. Cacnio and her boyfriend gave of her demeanor, to the effect that she was overwhelmed, hysterical, frazzled andconfused is not borne out by the testimony of Constable Selver or the nurse who dealt with her that evening.

Neither of them describedthis degree of agitation. The most nurse Gonzales noted was that Ms. Cacnio was a little teary. 3. When Ms. Cacnio was seen by nurse Gonzales she denied any thoughts of harming herself. The note the nurse made on this pointwas "not currently". However, when this was pointed out to Ms. Cacnio she maintained she was referring to her thoughts at that verymoment. She maintained she had thoughts of self-harm before talking to the nurse but she had not acted on them and had not told the jailguards.

Her failure to alert the first medical professional she saw after her arrest or the jail guards, who had no direct involvement withher arrest, seriously undermines her claim about the seriousness of her anxiety attack and the need to get immediate relief. 4. Neither Ms. Cacnio nor her boyfriend told the persons they dealt with that she was in medical distress and needed medication. If Ms.Cacnio's condition was as urgent as she claimed, this failure to alert the authorities and to request immediate medical attention ispuzzling.

In fact, it leads me to infer that her condition could not have been as serious and urgent as she now claims. 5. Ms. Cacnio testified that Cipralex lowered all her anxiety and her suicidal and depressive thoughts. When she did not take it she feltthe effect right away and would feel her anxiety heightened. Her boyfriend said in the ten days leading up to the incident she was up-and-down. Accordingly, the symptoms she experienced on January 5 were not unusual or unexpected.

In fact, given the episodes sheand her boyfriend described, I find the onset of an anxiety attack, after seven days of not taking Cipralex, was predictable. Ms. Cacnioherself adverted to the fact that she needed the medication to function on a day-to-day basis but was too stubborn to accept that. [77] If I am incorrect in my conclusion that the situation Ms. Cacnio described was not a medical emergency, I nevertheless find theactions she took to address it were not reasonable in the circumstances. Ms.

Cacnio and her boyfriend both gave evidence that she hadbeen taken or had gone to hospital to deal with other instances when she had experienced anxiety attacks. Regrettably, that evidence was

not clear or precise, in particular the dates and times when this occurred were unclear. At one point during the trial I understood Ms. Cacnio to say that she had gone to hospital before January 5, 2013. At another point, however, I understood her to say the call to 911 and the visit to the hospital occurred after January 5, 2013. The significance of this evidence is that if Ms. Cacnio's visits to the hospital were after January 5, 2013, those subsequent experiences could not possibly be the basis for not wanting to go to hospital on January 5, 2013, because they had not yet occurred. [ 78 ] Moreover, even if Ms.

Cacnio had prior negative experiences at hospitals before January 5, 2013, her explanation for not going on January 5 simply is unconvincing. The evidence is that the Hurricane Grill restaurant, where she and her boyfriend went for dinner, is in the Yaletown area of Vancouver. I take judicial notice that the Yaletown area of Vancouver is close to St. Paul's Hospital. Accordingly, she was close to a medical facility where she could get professional help, yet she chose not to go there despite the serious symptoms she described. Further, Ms.

Cacnio had no reasonable explanation why she did not call 911 for assistance. She claimed that, at the time, going to her cousin’s to get the medication was a better choice than calling 911. She maintained this in spite of the fact that she did not even know whether her cousin was home. [ 79 ] I find that Ms. Cacnio’s actions in attempting to drive from Yaletown to Burnaby, instead of going to a local hospital or calling 911, is a course of action that was not reasonable in the circumstances. Ms.

Cacnio had other options available to deal with her anxiety attack which were more reasonable than driving to a cousin’s apartment in Burnaby who may or may not have been home. [ 80 ] In

summary, in light of the above noted findings, I conclude the symptoms Ms. Cacnio experienced as a result of an anxiety attack do not constitute a medical emergency. Moreover, even if those symptoms did constitute a medical emergency, the actions Ms. Cacnio took to address her condition were unreasonable in the circumstances of this case. [ 81 ] Accordingly, I find Ms. Cacnio guilty of breaching her curfew condition on January 5, 2013. _____________________________ The Honourable Judge M.F.

Giardini Provincial Court of British Columbia CORRIGENDUM – Released June 28, 2013 [1] In the Reasons for Judgment dated June 26, 2013, the file number 223508-1-V should read 223508-3-B. The Counsel for the Defandant Jason D. Tamow should read Jason D. Tarnow.