2016 QCCQ 9556, 2016 QCCQ 9556

Translated from the original French R. c. Blanchard 2016 QCCQ 9556 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF DRUMMOND LOCALITY OF DRUMMONDVILLE “Criminal and Penal Division ” No.: 405-01-031094-138 DATE: August 5, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

KATHLEEN BLANCHARD Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is charged with refusing to comply, on August 25, 2013, with a demand made by a peace officer to provide the breath samples necessary to determine her blood alcohol level. Relevant facts [ translation ] [ 2 ] On August 25, 2013, around 8:00 p.m., Ms. Chantal Rivard was driving in the right-hand lane of Route 8 in Saint-Germain-de- Grantham. [ 3 ] Entering a sharp curve, she saw a vehicle coming directly towards her.

She had time to swerve into the left lane but the car made contact with the rear right-hand side of her car. The car that had run into her was found stopped in a ditch, near the site of the impact. [ 4 ] Shortly thereafter, Mr. Jean-Denis Chénard, Ms. Rivard’s husband, arrived on the scene. After checking on his wife, he went to see the driver of the other vehicle. [ 5 ] He noted that she was out of sorts and had difficulty expressing herself. She was shocked when he told her she had hit another vehicle. Later, she turned the radio on in the car.

She had difficulty speaking and the vehicle was filled with the strong smell of alcohol. [ 6 ] Mr. Gilles Pinard was one of the first responders at the scene. He is the director of the fire service. He knew the accused. When he got close to her, he noticed that she didn’t seem normal. He noted that she was in a very advanced state of drunkenness and that her behaviour – both her gestures and her words – was abnormal. [ 7 ] Around 8:19 p.m., Officer Yan Pelletier received a call regarding an accident including injured parties.

He arrived on the scene at 8:28 p.m. [ 8 ] After speaking briefly with the witnesses at the scene, he went over to the driver of the car in the ditch. [ 9 ] He asked her what had happened and she responded that nothing had happened. He noted that she was visibly intoxicated. He immediately put her under arrest for driving while impaired by alcohol. [ 10 ] The accused had difficulty getting out of her car and staying upright. She was unable to walk alone. The police had to support her in order to get her to the patrol car.

Her dress was torn and she seemed lost. [ 11 ] Once she was out of the ditch and moving towards the patrol car, the accused tried to turn back because she did not want to follow the police. They grabbed her and had to handcuff her because she started to be aggressive. [ 12 ] In the patrol car, Officer Yan Pelletier read the accused her rights using the provided card. The accused responded that she had understood but that she did not want to go to the police station and did not want to blow. Moreover, she would not cooperate and refused to identify herself.

[ 13 ] Consulting the licence plate registry established that the accused was the owner of the vehicle. Despite this, she mentioned that it was not her vehicle. [ 14 ] Officer Yan Pelletier tried in vain to find identification in the accused’s vehicle. [ 15 ] Once the accused informed him that she didn’t want to blow, Officer Pelletier re-explained to her the consequences of refusing. [ 16 ] They left the site around 9:13 p.m. and arrived at the station at 9:30 p.m.

During transport, the accused’s mood went up and down, she babbled on about nothing, about her dog inside her house, etc. [ 17 ] When they passed in front of her house, she started yelling and wanted to stop the patrol car to get out at her place. [ 18 ] At the station, she was placed in a room near the breathalyzer room. [ 19 ] Officer Yan Pelletier stayed with the accused nearly the whole time, except for a brief moment when he did a [criminal record search] to find a photo of the accused that would allow her identity to be confirmed. [ 20 ] Officer Véronique Pelletier is a qualified technician and the officer in charge of the file.

She arrived at the station around 9:30 p.m. She waited for the accused in the hallway. When the accused arrived, she noted that she was walking very slowly and had red eyes. [ 21 ] Because she was a woman, she went into the room where the accused was to be searched. [ 22 ] The accused refused to stand and be searched. She was still handcuffed and announced that she could remove the handcuffs herself. [ 23 ] Officer Pelletier took a step back and waited. After a few seconds, the accused accepted that Officer Pelletier remove the handcuffs and search her.

However, she still refused to identify herself and asked the police to drive her home so that she could get her driver’s licence. [ 24 ] Shortly thereafter, Officer Yan Pelletier came back with confirmation of the accused’s identity.

On her end, Officer Véronique Pelletier prepared the breathalyzer test and did a first verification test at 9:42 p.m. [ 25 ] She returned to the room where the accused was being held – the accused was still refusing to cooperate or to speak to a lawyer. [ 26 ] In fact, the accused did the opposite of whatever was asked of her. [ 27 ] Seeing the accused’s behaviour, the qualified technician understood that the file would probably end with a refusal.

She again explained the consequences of a refusal to the accused who said she understood. [ 28 ] When Officer Véronique Pelletier asked her to repeat what she had understood, the accused refused to do so because she did not want it to be written down and used against her. [ 29 ] Shortly after, the qualified technician gave her a mouthpiece to practice how to blow into the machine. [ 30 ] The accused took the mouthpiece and put it on the table. She refused to practice. [ 31 ] The qualified technician wanted to bring her in front of the machine so that she could formally refuse once she was at the machine.

She took her by the arm to help her stand. The accused fought her and she let go. [ 32 ] The accused refused to go into the room where the breathalyzer test was. Because she was sitting on a rolling chair, the qualified technician rolled her into the breathalyzer room. [ 33 ] At that moment, the accused finally stood up and entered the adjacent room where the breathalyzer test was. When she was three or four steps away from the machine, she refused to go any closer. [ 34 ] When the accused wanted to leave the room, the police held her by the shoulders.

She stiffened, they tried to sit her down and had to take her to the floor. [ 35 ] Once she calmed down, the accused still refused to say the words “that she refused”, opting instead for all manners of avoidance. She sat on the bench, she went back to the floor where she turned on her side and pretended to sleep.

Later, she got up, walked towards the room where the breathalyzer test was and then returned again to sit on the bench saying “that she didn’t want to go in there and if that’s what it takes, I don’t want to go home.” [ 36 ] She had difficulty expressing herself and articulating her words. [ 37 ] At 9:56 p.m., the technician asked her again if she wanted to take the test. The accused replied that her position was the same.

When asked what her position was, she finally clearly refused at 9:57 p.m. [ 38 ] The qualified technician specified that she preferred to take her time and to gather sufficient evidence before declaring an official refusal, so that there would be no doubt in court. This is why, she advances, she asked the accused 10 times if she was refusing to blow.

She truly wanted her to say the word “refuse” so that it would be clear. [ 39 ] For the qualified technician, the accused understood exactly what was happening and the implications of her refusal. [ 40 ] The technician observed that the accused had slow, hesitant reflexes and spoke incomprehensibly. The smell of alcohol was

present during the entire intervention as were the accused’s mood swings – she was sometimes calm, sometimes aggressive. [ 41 ] The accused has been a member of the Chambre des notaires since 1998. At the time of the events, she had just ended a difficult romantic relationship, marred by physical violence and financial troubles. This relationship ended in May 2013. [ 42 ] The accused has been a heavy drinker since the age of 13. She has a drinking problem and calls herself an alcoholic.

In her family, her father and her brother are also alcoholics. [ 43 ] Since 1997, she has had four psychiatric evaluations confirming a diagnosis of bipolar disorder. [ 44 ] On the morning of August 25, 2013, she went to buy two cases of beer – one of 24 bottles, the other 12. [ 45 ] She began drinking around 11:00 a.m. and continued until the events in question. [ 46 ] She has absolutely no memory of leaving the house. The only image that remains in her mind is having put on her evening gown.

After that, she woke up the next morning in the cell at the police station. [ 47 ] She vomited in the taxi on the way back to her home. Once she arrived, she slept until noon. She had urinated in her bed while she slept. [ 48 ] Because she had no previous memories, she established how much alcohol she had consumed by counting the empty bottles. There was a case of 12 empty beer bottles as well as two other open bottles on the counter. In addition, she counted two open wine bottles – one was completely empty and the other had some wine left, but she couldn’t say how much.

She emptied the bottle in the sink. [ 49 ] The 750 ml bottle of Ménage à Trois wine contained 13.5% alcohol. The 330 ml Corona beers she drank contained 4.6% alcohol. [ 50 ] At the time, she was a daily drinker, drinking more intensely on the weekends. The accused mostly drank beer and very rarely drank wine. [ 51 ] Her habitual consumption was five to six beers a day during the week. She generally drank at home alone, although sometimes she drank with friends. She wasn’t in the habit of going to bars. [ 52 ] She handles beer very well.

She blamed the wine, on the other hand, for the fact that she was sick the next day. Consuming 12 beers was more or less normal for her. [ 53 ] She normally drank alone. After reflecting, she deduced that on the night of August 25, 2013 she had taken Route 8 to go to her friend Raynald’s house on Route 9. However, she had no specific memory of contacting him. [ 54 ] She has two prior convictions for impaired driving, one for refusing to submit to a blood alcohol test and one for driving while prohibited from doing so. [ 55 ] At the time, she regularly had blackouts – she estimated roughly once a week.

Most of the time, these would be times when she couldn’t remember when she went to bed. THE EXPERT EVIDENCE [ 56 ] Mr. Mohamed Ben Hamar was declared an expert in toxicology. [ 57 ] He estimated the accused’s blood alcohol level to be at 403 mg at 8:28 p.m., the time of the accident, and at the time of the refusal, at 373 mg.

He estimated that her blood alcohol level at 6:00 a.m. was 210 mg. [ 58 ] His estimates are based on the information provided to him by counsel for the accused, namely: - A 39-year old woman, weighing 137 pounds, 5 ft. 4 inches tall, having consumed, between the hours of 11:00 a.m. and 6 p.m., 13 bottles containing 330 ml of beer at 4.6% alcohol, and one 750 ml bottle of wine containing 13.5% alcohol. - He also considered the fact that the individual was an alcoholic with a higher elimination rate than average, which he set at 20 mg. [ 59 ] The higher the blood alcohol level is, the more severe the symptoms are bound to be.

Mr. Ben Hamar filed as D-3 a table of the consequences and symptoms linked to blood alcohol level. [ 60 ] A non-alcoholic who consumes enough alcohol to reach 400 mg of alcohol for every 100 ml of blood has one chance in two of dying. [ 61 ] For an alcoholic, such as the accused, Mr.

Ben Amar [sic] concluded without hesitation that the symptoms described in the evidence are compatible with a very advanced state of intoxication and the amount of alcohol described. [ 62 ] At this very advanced, even serious, blood alcohol level, an individual may experience memory loss or amnesia; as well as act unconsciously or in a state of automatism. Some specific symptoms described in the evidence confirm this state, such as the accused’s incontinence in her home many hours later and the hypothermia she felt in her cell that morning. [ 63 ] Dr.

Pierre Gagné was qualified as an expert in forensic psychiatry.

[ 64 ] He met the accused and produced a report dated October 27, 2014. He also attended or listened to all of the evidence at trial. [ 65 ] His analysis of the situation and his evaluation of the accused led him to believe that the intoxication here was, beyond the shadow of a doubt, very serious. [ 66 ] When he met the accused, he could not establish her blood alcohol level because this is not part of his area of expertise as a doctor.

He knows how alcohol impacts the nervous system, but less about how to determine the precise blood alcohol level related with a given quantity consumed. [ 67 ] He gathered from Mr.

Ben Hamar that the accused’s blood alcohol level had oscillated around 375 mg per 100 ml of blood, and dropped thereafter. [ 68 ] What he took away, both from the evidence he heard and his meeting with the accused, was that she had “blackout” episodes once a week, each time resulting in automatism, that is conduct of which she was not conscious. [ 69 ] By definition, alcohol-induced amnesia is the absence of memory whereas automatism is related to conduct.

This may be explained by the fact that the brain cells responsible for judgment are more sensitive to alcohol than those responsible for motor function, thus automatism is conduct done without thinking, without reflection or analysis. [ 70 ] In the case of the accused, he concluded that she had a blood alcohol level likely to leave her in a comatose state. This was confirmed by the fact that her last memory was of donning an evening gown, the blackout having then settled in. [ 71 ] He explained that the word automatism was not in his report because it is fundamentally a legal concept.

Although he had mentioned it in some earlier files, he now teaches that determining the presence of automatism is the role of the court, and he limits himself to factual observations. [ 72 ] In the case of the accused, her level of intoxication corresponded to a state of quasi-unconsciousness, the more neurological processes are affected, the less a person is able to consent. This leads to the absence of adequate judgment about what is going on.

Even if the accused had consented to the test, this would have been done without judgment. [ 73 ] However, given the impact of alcohol on her brain, the accused was not capable of making an appropriate decision. In addition, in the present case, the amnesia could not be caused by the accident because there was no cranial trauma or concussion.

POSITIONS OF THE PARTIES [ 74 ] Counsel for the accused submits that the extreme intoxication in this case is akin to automatism. [ 75 ] The evidence confirms this theory because the first people in contact with the accused after the accident described bizarre behaviour and said that she appeared lost and not normal. [ 76 ] The same applies to her behaviour at the police station, which led the police officers to ask her a dozen times if she wanted to do the test, which would not have been the case with a person who was behaving normally. [ 77 ] Given her state, she was not even allowed a taxi and was placed in a cell. [ 78 ] Considering all the evidence, the Court should acquit the accused based on the defence of automatism. [ 79 ] The Crown submits that the Court has proof beyond a reasonable doubt that the accused committed an offence. [ 80 ] The defence of voluntary intoxication does not apply to the offence of refusal, and voluntary intoxication is admissible only in circumstances of automatism, based on the principles in Daviault [1] and Daley . [2] [ 81 ] In this case, the accused’s version contradicts in certain respects her relationship with alcohol because she said that she never drinks wine and then clarified that she drinks it only very rarely.

In this case, she drank more than one bottle of wine. [ 82 ] Moreover, she deduced the amount of alcohol she drank based on the number of bottles, but this does not establish precisely what she drank before she lost her memory and is merely speculation. [ 83 ] This led expert Ben Hamar to testify about the possibilities based on a theoretical elimination rate because no simulation was done based on a blood test. [ 84 ] Dr.

Gagné’s conclusion in his report is not a valid defence, while in court he submitted the defence of automatism, which is not included in his report. [ 85 ] The police here were in a no-win situation because, on the one hand, they would be blamed if they did not confirm a refusal, and on the other, they would be in error if they insisted too much. [ 86 ] The accused should be convicted, based on all the evidence. ANALYSIS

[ 87 ] The accused raises a defence of automatism caused by extreme intoxication. [ 88 ] The Supreme Court in Daley [3] described the current state of the law on the defence of voluntary intoxication. There are three relevant degrees of intoxication: mild intoxication, advanced intoxication and extreme intoxication. The accused raises this last level, which the Supreme Court defined as: 43. The third and final degree of legally relevant intoxication is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility.

As discussed above, such a defence would be extremely rare, and by operation of s. 33.1 of the Criminal Code , limited to non-violent types of offences. [4] [ 89 ] This case does not involve a violent offence covered by s. 33.1 of the Criminal Code . For her defence to succeed, the accused must prove on a balance of probabilities that her state of intoxication was akin to automatism and this defence must be plausible.

APPLICATION TO THIS CASE [ 90 ] What precisely happened to the accused on the night of August 25, 2013? [ 91 ] First, the Court notes that it believes, beyond the shadow of a doubt, the accused’s version of her personal circumstances and her alcohol consumption on the day of August 25, 2013. [ 92 ] The accused claims that she was an alcoholic at the time of the events.

The consumption she describes for the day of August 25 th is absolutely realistic and compatible with her regular consumption at that time. [ 93 ] In addition, as the accused mentioned, she was able to verify the number of empty bottles when she returned home. This was how she was able to estimate, relatively precisely, what she had consumed prior to the events. [ 94 ] The Court accepts, therefore, as Mr. Ben Hamar submitted, that she consumed 13 beers and a bottle of wine prior to the accident. [ 95 ] Given the personal characteristics of the accused, Mr.

Ben Hamar estimated her blood alcohol level to be 403 mg at the time of the accident and 373 mg when she refused to take the blood alcohol level test. [ 96 ] The expert concluded that she was in an advanced and serious state of intoxication that corresponded to the consumption described, as well as the symptoms noted and filed as evidence by the various witnesses in this case. [ 97 ] For Mr.

Ben Hamar, it is clear, according to his research on the topic and his expertise, that at this level of intoxication, amnesia is certainly possible, and so is automatism. [ 98 ] The witnesses who were in contact with the accused all describe behaviour that is clearly compatible with her level of intoxication. They describe a confused person, who had difficulty expressing herself, behaving strangely – doing things like turning on the radio while in a ditch following an accident. [ 99 ] Those who know her, like Mr.

Gilles Pinard, found that she was not herself, and spoke of a state of advanced drunkenness as well as abnormal behaviour and speech. [ 100 ] The police who intervened describe a person with mood swings, sometimes aggressive, seeming lost and unable to walk alone.

Her strange behaviour can also be seen in the fact that she persisted in denying her identity and denying that she was the owner of the vehicle she was driving. [ 101 ] The qualified technician, acting in this role in the file, also described the peculiar state of the accused, like the fact that she refused to stand or be searched and that she announced that she was going to un-handcuff herself. [ 102 ] The accused did the opposite of everything asked of her, and had to be rolled into the breathalyzer test room. [ 103 ] The entire scene described by the technician who was trying to bring her before the machine, with the accused resisting and making a series of totally abnormal manoeuvres like sitting on a bench, pretending to sleep, getting up, going back to the floor, etc., perfectly illustrates her high level of intoxication.

In addition, the accused was using incomprehensible language that required the police officer to ask her ten times to refuse clearly, and the officer hesitated to declare that the accused had refused, given the state she was in. [ 104 ] Dr. Gagné, who met the accused and reviewed the evidence as a whole, concluded in his report that [ translation ] “... the severe state of intoxication in which Ms.

Blanchard found herself sufficiently affected her judgment to allow us to conclude that she was incapable of understanding the implications, the consequences of a refusal to comply with the order to take a breathalyzer test. It would be appropriate to say that she was unable to formulate the intention to refuse to submit to the test ”. [5] [ 105 ] In Court, Dr. Gagné explained that, on the facts, the inability to formulate an intention to submit to the test corresponds to automatism.

However, as an expert, he left the legal characterization of the medical situation he described to the Court. [ 106 ] As he explained during his testimony, automatism is unconscious conduct, without any reflection or analysis.

[ 107 ] For the Court, the accused’s degree of intoxication corresponds to the third degree of intoxication, namely extreme intoxication as described in Daley . [6] [ 108 ] A global analysis of the evidence, combined with credible and un-contradicted expert evidence, convinces the Court on the balance of probabilities that the accused’s state of intoxication on the night of August 25, 2013 corresponds to automatism and, as a result, the accused was not in a state of voluntariness at the time when she formulated her refusal, which, in our law, is an acceptable defence.

FOR ALL THESE REASONS, THE COURT: ACQUITS the accused of the offence with which she is charged. __________________________________ ÉRICK VANCHESTEIN, J.C.Q. Mtre Kevin Mailhiot Criminal and penal prosecutor Mtre Jean-Pierre Rancourt Counsel for the accused Dates of hearing: March 14, April 26 and June 20, 2016