2022 QCCQ 3220, 2022 QCCQ 3220

R. c. Marbil 2022 QCCQ 3220 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF JOLIETTE CITY OF JOLIETTE Criminal Division N°: 705-01-111706-208 705-01-111276-194 DATE: March 24, 2021 ______________________________________________________________________ PRESIDING THE HONOURABLE BRUNO LECLERC, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecution v. James Canaveral Marbil Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Marbil is charged with driving while his ability to do so was impaired by alcohol, driving with a blood alcohol concentration over the legal limit, and dangerous driving. [ 2 ] In a second file, he is charged with uttering threats to cause death or bodily harm. [ 3 ] The parties are proceeding jointly in the two files. BACKGROUND: [ 4 ] Mr. Marbil and Mr. Labiga are two foreign workers employed by the same transport company. [ 5 ] On the day of the events, Mr.

Labiga was driving a vehicle belonging to the employer in which the accused was a passenger. [ 6 ] They went to Montreal to run a few errands. [ 7 ] After a visit to the supermarket, they visited the home of one of Mr. Marbil’s friends. [ 8 ] The accused and his friend drank alcohol. Mr Labiga did not. [ 9 ] Mr. Marbil was intoxicated when they left the premises to return home. He fell on the ground and had to be placed in the passenger seat. [ 10 ] The versions of the events that took place on the way home diverge. [ 11 ] Mr. Labiga explained that the accused was annoying him.

He was punching him on the shoulder and saying various things such as “you’re not a good man”. [ 12 ] At one point, the accused asked him to stop the vehicle because he wanted to urinate on the side of the road. [ 13 ] Because the vehicle was on the highway, Mr. Labiga believed that it would be dangerous to do so, and he said that he was not going to stop the vehicle. [ 14 ] The accused then undid his seatbelt and appeared to want to open the passenger door. Mr.

Labiga dissuaded him from doing so. [ 15 ] The accused turned towards the driver, grabbed the steering wheel with both hands, and turned it toward himself.

[ 16 ] The vehicle swerved quickly to the right, and Mr. Labiga tried to turn the steering wheel to the left to get back in the proper lane. [ 17 ] This manoeuvre was too abrupt, and Mr. Labiga lost control of the vehicle, which rolled over and ended upside down, off the road on the left.

Fortunately, no one was hurt. [ 18 ] Other drivers stopped their vehicles to lend a hand. [ 19 ] An ambulance and then the police arrived at the accident scene. [ 20 ] The accused testified that he had been sleeping the entire time they had been on the road and, therefore, that he did not perform these actions. [ 21 ] Given the circumstances, the accused was arrested. Breathalyzer tests showed a blood alcohol concentration of 190 mg per 100 ml of blood. [ 22 ] Once the process was complete, the police officers drove Mr.

Labiga and the accused home. [ 23 ] Because both individuals lived at the same address in their employer’s home, it was agreed that Mr. Labiga would be dropped off at that residence first and that Mr. Marbil would then be taken to a hotel in a neighbouring town. [ 24 ] Threats were uttered while they were stopped at the employer’s home and at other moments. [ 25 ] The accused remembers making threats, but his counsel states that his client’s advanced intoxication at the time the offence was committed should lead to an acquittal. ISSUES:

A) Does the evidence, taken as a whole establish that the accused grabbed the steering wheel and caused the vehicle to swerve, thereby causing the accident and, if so, does that action establish that the accused was driving the motor vehicle?

B) Does the accused’s self-induced intoxication raise a reasonable doubt as to his culpable intent in relation to any of the other offences charged against the accused? ANALYSIS:

a) Does the evidence, taken as a whole, establish that the accused grabbed the steering wheel and caused the vehicle to swerve, thereby causing the accident and, if so, did that action establish that the accused was driving the motor vehicle? [ 26 ] As stated above, Mr. Labiga provided several details relating to Mr.

Marbil’s conduct in the moments preceding the accident, as they were driving home. [ 27 ] In cross-examination, he provided details about when the accused started punching him on the shoulder, among other things. [ 28 ] The Court perceived him as a witness who was sincerely trying to answer the parties’ questions to the best of his abilities and who related simple facts without exaggerating. [ 29 ] Of course, his testimony was not perfect. For example, he stated before the Court that Mr.

Marbil tried to open the door of the vehicle before grabbing the steering wheel. [ 30 ] This attempt to open the door, however, did not appear in Mr. Labiga’s statement to the police on the day of the events. [ 31 ] The Court bears this fact in mind in its assessment of the reliability of Mr. Labiga’s testimony, but it also recalls that there are many possible explanations for this omission from the police statement. [ 32 ] The language barrier is the first such explanation. It is noted that Mr. Labiga, like Mr. Marbil, is Filipino and that his mother tongue is Tagalog, not English.

Agitation due to the situation is another possible explanation. [ 33 ] The Court does not accept counsel for the accused’s argument that Mr. Labiga has an interest in lying so that he can keep his driver’s licence. [ 34 ] Mr.

Labiga has a foreign driver’s licence, and there is no evidence indicating that the authorities in his country of origin would consider the accident grounds to revoke his driver’s licence. [ 35 ] The Court nevertheless keeps all these elements in mind in its analysis of the evidence as a whole, in light of the principles set out by the Supreme Court in W.(D) . [ 36 ] The two other eyewitnesses to the accident also confirmed the facts related by Mr. Labiga. They described the same path of the vehicle, which is consistent with the accused grabbing the steering wheel and Mr.

Labiga attempting to regain control by turning the wheel to the left. [ 37 ] In addition to confirming the movements of the vehicle in the seconds before the accident, these witnesses also described Mr.

Marbil as they waited for the authorities to arrive. [ 38 ] Mr. Palmigiani described the accused, who was bumping into trees as he walked having trouble speaking, and laughing for no reason, as a person who was highly intoxicated. [ 39 ] Ms. Lévesque said that the passenger was unsteady and very agitated and that he refused to be touched. According to her, his actions indicated that he was intoxicated. [ 40 ] Once again, their testimony is not perfect. Ms. Lévesque, for example, contradicts Mr. Labiga, who claims that he helped Mr. Marbil out of the vehicle. [ 41 ] Is it possible that Ms.

Lévesque simply did not see Mr. Labiga do this? [ 42 ] Once again, the Court will bear these elements in mind in its assessment of the evidence as a whole, but this simple contradiction does not greatly detract from the credibility of the witnesses Ms. Lévesque and Mr. Labiga. [ 43 ] None of the witnesses to the accident and the moments immediately following it described the accused as asleep. [ 44 ] This is what the accused testified, however.

According to him, he fell on the ground as soon as he left his friend’s home, he was placed in the vehicle, and his seatbelt was buckled for him, by which time he was asleep. Il was only once the ambulance technicians intervened that he woke up. [ 45 ] It was not until his cross-examination about when he fell asleep in the vehicle that it was revealed that this entire aspect of his testimony was based either on hearsay or on the fact that he has a habit of falling asleep when he drinks alcohol. [ 46 ] He testified that he fell on the ground because his friend told him so.

He said that he fell asleep as soon as he was placed in the vehicle because his friend told him so. [ 47 ] He himself has no memory of the event. [ 48 ] His last memory is of being at the table at his friend’s home while they were drinking alcohol. The next thing he remembers is the ambulance technicians talking to him, well after the accident. [ 49 ] Between those two events, he remembers nothing. [ 50 ] With respect, the Court cannot assign any probative value to this testimony. The Court does not know who this friend is or in what circumstances this friend might have recounted these events to the accused.

The Court does not know what state this friend was in when he observed these facts, or whether this testimony is at all reliable. [ 51 ] In short, this part of the accused’s testimony, based as it is on hearsay, raises no reasonable doubt in the Court’s mind. [ 52 ] Similarly, the fact that he has a habit of falling asleep when he drinks alcohol does not prove that he was actually sleeping in the vehicle.

All it does is reinforce the accused’s idea, planted in his mind by his friend, that he was sleeping when he was placed in the vehicle. [ 53 ] The Court is convinced beyond a reasonable doubt that the accused grabbed the steering wheel with both hands, as Mr. Labiga testified, and that he caused the accident at the centre of this case. [ 54 ] The case law is clear: by acting this way, the passenger was driving the automobile [1] .

b) Does the accused’s self-induced intoxication raise a reasonable doubt as to his culpable intent in relation to any of the other offences charged against the accused? [ 55 ] The Supreme Court’s judgment in Daley [2] is the leading case that establishes the rule regarding the different legally relevant degrees of intoxication: [ 41 ] Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call “mild” intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behavior.

This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. See Daviault, at p. 99. Second, there is what we might call “advanced” intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea.

The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials: … A defence based on this level of intoxication applies only to specific intent offences. … [ 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. [ 56 ] The defence of extreme intoxication may apply to any type of non-violent offence under s. 33.1 of the Criminal Code , but a

defence of extreme intoxication has not been raised in this case. In any event, this defence would have to be supported by expert testimony, which was not provided here. [ 57 ] Counsel for Mr. Marbil argues that the accused’s advanced intoxication, described by the witnesses and confirmed by the accused, constitutes his defence against the charge of uttering threats. [ 58 ] Counsel for the accused does not raise this defence against the charges involving the operation of a motor vehicle because they are offences of general intent, not specific intent.

The defence of self-induced intoxication, even when such intoxication is advanced, is not available for such offences. [3] [ 59 ] Advanced intoxication is, however, recognized as a defence against a charge of uttering threats. [ 60 ] Because the accused does not really deny the threats reported by the police officers and since he admits uttering certain threats, the question that the Court must decide is whether the accused was in fact intoxicated to the point of raising a reasonable doubt as to his intention in uttering these threats. [ 61 ] It is true that the accused was described as highly intoxicated by all of the witnesses to the accident.

He had trouble walking and speaking, and he was laughing for no reason. According to Mr. Palmigiani, he even urinated on a tree after the accident. [ 62 ] The threats occurred later, however. According to the witnesses, the accident took place around 6:30 p.m., and the threatening remarks began once the accused was released around 8:36 p.m., approximately two hours later. [ 63 ] The police stated that, although the accused was still intoxicated at that time, his state had been slowly improving. [ 64 ] It appears from the testimony of Officer Labelle that when Mr.

Marbil was at the police station, he understood his constitutional rights. The officer made sure that he understood by asking him questions, to which the accused responded accurately. Indeed, the accused does not argue that his constitutional rights were infringed. [ 65 ] The accused was offered the opportunity to contact duty counsel or a legal aid lawyer. He understood, and he chose to contact a legal aid lawyer. [ 66 ] Similarly, Officer Denis stated that he explained to Mr. Marbil how the breathalyzer worked and how to provide breath samples. He stated that Mr.

Marbil understood perfectly well when these tests were administered at 7:21 p.m. and 7:42 p.m., since he provided the samples according to the instructions given, to the satisfaction of the qualified technician. [ 67 ] Finally, the accused’s own testimony clearly shows that he understood what was happening when he uttered the threats. [ 68 ] Speaking about Mr.

Labiga, he testified that he said the following: “Why you do this to me Joedel, I was sleeping, why did you tell I was the one who was driving, why did you tell I am the one in charge, you give me a problem, then I said I kill you, then the police arrested me.” [ 69 ] It is apparent that Mr. Marbil understands very well that it is Mr.

Labiga’s testimony that incriminates him and that this testimony names him as the person responsible, even though he was not the driver of the vehicle but a passenger. [ 70 ] The accused remembers where he made the threats, as well as the circumstances that led to him making them. [ 71 ] The accused even states that he did not intend to follow through on the threat, since it was the alcohol talking. [ 72 ] With respect, other than the evidence that at the time of the accident, two hours before uttering the threats, the accused was highly intoxicated and blew 190 mg per 100 ml of blood, nothing else shows that Mr.

Marbil did not have the necessary intent, within the meaning of the Supreme Court’s judgment in McRae , [4] at the time these words were uttered. [ 73 ] Therefore, the evidence as a whole convinces the Court beyond a reasonable doubt that the accused committed the acts alleged and that he had the necessary intent. [ 74 ] The act committed constituted dangerous driving, and the accused tested over 80 mg within two hours of this conduct. He also threatened to kill Mr. Labiga in front of the police officer, and he clearly intended for those threats to be taken seriously.

FOR THESE REASONS, THE COURT: CONVICTS the accused on counts 2 and 3 in file 705-01-111706-208; ORDERS a conditional stay of proceedings on count 1 in file 705-01-111706-208, in light of Kienapple ; CONVICTS the accused on the count of uttering threats in file 705-01-111276-194; ________________________________________ BRUNO LECLERC, J.C.Q.

Mtre Claudie St-Jean For the prosecution Mtre David Leclair For the accused Date of hearing: February 24, 2021