R. v. Armstrong, 2011 ONCJ 325

Information No. 09 – 627 Citation: R. v. Armstrong , 2011 ONCJ 325 ONTARIO COURT OF JUSTICE (at Cayuga, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - EAMON ARMSTRONG Mr. G. J. Smith for the Crown Mr. P. Osier for Eamon Armstrong Reasons for Judgment NADEL, J.: Introduction [ 1 ] On April 19, 2009, at about 8:20 p.m., while using radar, O.P.P. Officer Kimberly Kuchocki timed Eamon Armstrong driving at 155 kilometres per hour in a posted 80 kilometre per hour zone. Armstrong was driving home in his 1999 BMW going southbound, toward Hagersville, on Highway No. 6.

Kuchocki did a U-turn and chased after Armstrong. He not stop for her. He says he didn’t know that she was behind him until just before he turned left into his driveway. He admits to knowing she was behind him then; but, he still did not stop for her. Instead, he tried to get into his house. [ 2 ] He almost made it. Kuchocki was able to grab his shirt and tell that him he was under arrest for “stunt driving”. [1] Being much the larger, he shrugged her off and said, “Fuck you, this is private property” and hurried into his house. Armstrong says his doors were unlocked but finicky. Kuchocki says he locked her out.

Armstrong, a Type-2 diabetic, says that he had no choice but to act as he did because he was in the throes of a hypoglycaemic episode. About an hour later Armstrong came out and was arrested by Kuchocki. Each has a different version of the events. In due course I will review their evidence. [ 3 ] Armstrong was tried summarily on the following criminal charges: (

i) dangerous driving, s. 249(1)(a); (ii) failing to stop for police, s. 249.1(1); (iii) escaping lawful custody, s. 145(1)(a); and, (iv) resisting arrest, s. 129(a). [ 4 ] In addition, at the request of both the Crown and the defence, he was also tried by me on two Highway Traffic Act charges arising out of the same circumstances: (

i) stunt driving, s. 172(1); and, (ii) driving without a currently validated permit, s. 7(1)(a).

[ 5 ] The Crown’s position is that Mr. Armstrong should be convicted of everything except the invalid permit count, it being common ground that counsel recalled no admissible evidence to prove Armstrong’s permit was not current. The defence agrees with the last point but submits that none of Armstrong’s conduct was wilful. The defence submits that all of Armstrong’s conduct is excused by virtue of it being necessary.

At the very least, the defence position is that the Crown has failed to negative the excuse of “necessity” beyond a reasonable doubt so that Armstrong is entitled to an acquittal on all counts. [ 6 ] Only three witnesses testified on the trial: [2] Kuchocki, Armstrong and his physician, Dr. Henry Lim. Officer Kuchocki’s Evidence [ 7 ] Kuchocki was in uniform driving a marked and fully equipped police car. Seeing Armstrong coming toward her location at high speed she sighted him with her radar gun and got a reading of 155 kilometres per hour. The posted speed was 80 kilometres per hour.

She did a U-turn in the area of 2 nd Line Road, activated all of her emergency lights and proceeded to catch up with Armstrong. [ 8 ] She saw Armstrong react to her presence by looking at her through his exterior driver’s side mirror as well as looking back at her in his interior rearview mirror. When Kuchocki caught up to Armstrong and got behind him, he reduced his speed to 130 kilometres per hour. She followed him at that speed for about a kilometre. She also activated her emergency siren when Armstrong did not pull over.

Kuchocki saw him react to her siren, too, by looking back at her in his mirrors. [ 9 ] Armstrong failed to stop for her despite her use of lights and her siren so she pulled out into the northbound lane to get up beside him “to try and get him to note me and pull over.” Kuchocki got the front of her vehicle up to his driver’s door pillar and saw Armstrong looking over towards her but he continued on without stopping and she had to retreat back into her lane. She estimates that the distance she travelled from the point of her U-turn to Armstrong’s home was approximately two kilometres.

Closer to Hagersville the posted speed limit declines to 50 kilometres per hour resulting in a bottle-neck and backed up traffic. [ 10 ] Kuchocki thought she would be following Armstrong’s car through Hagersville and she was notifying the O.P.P. communications centre of the events that were occurring. She was attempting to stay within three car lengths of Armstrong, as she was trained to do when she noticed that Armstrong had signalled a left turn. He suddenly applied his brakes and made an unsafe left turn into his driveway cutting off two northbound transport trucks.

She braked hard, in response, waited a few seconds to allow the trucks to clear and then followed him into his driveway. Kuchocki agreed that her police notebook contained no reference to transport trucks or the sound of heavy braking as a result of Armstrong’s left turn although she did describe that event in very general terms in the brief that she prepared for the Crown. She also agreed that no oncoming vehicles stopped or swerved off the roadway because of Armstrong’s left turn manoeuvre. [ 11 ] By then Armstrong was out of his car and running up to his front door.

She yelled for him to stop and caught him in front of his door where she grabbed a hold on his shirt and placed him under arrest for stunt driving. Armstrong said, “Fuck you, this is private property” as he swung his body and broke her grasp. He got into his house and shut the interior front door on her foot leaving her locked outside the house. Kuchocki smelled a strong odour of alcohol on Armstrong’s breath. [ 12 ] She pounded on the door and yelled for him to come out and warned him that if he did not then she would obtain a warrant to come in and arrest him. He did not respond.

The next time she saw him was at 8:45 p.m. He was shirtless and had opened the interior front door but had locked the screen door. She remained in his yard with her cruiser lights flashing and her siren wailing. Eventually, police reinforcements arrived. [ 13 ] At 9:43 p.m. Armstrong came out. He identified himself to Kuchocki and she arrested him for all of the Criminal Code charges he now faces, as well as for stunt driving.

He was read his rights and declined counsel but he elected to make a statement despite being cautioned that he was not obliged to do so. [3] [ 14 ] Armstrong said, “I don’t know what to say right now. I’ve had a really bad week.” He also told Kuchocki that he “went to Mac’s Milk and a loaf of bread was like $4.00”. He also told her that he “had driven to Zehrs in Caledonia.” Finally, he said, “I guess I was speeding. I didn’t see you until you were right behind me. I don’t know.” Kuchocki took him to her local detachment for booking.

While en route she continued to detect an odour of alcohol on his breath. [ 15 ] When asked, in-chief, if Armstrong ever mentioned any medical condition, she said that he did not. As part of the booking process she asked him this question: “Do you have any medical conditions that we are aware of?” (sic) and he answered, “no”. In cross- examination, she agreed that the question she asked him was whether or not he was aware of any medical condition that should be known. Kuchocki also agreed that Armstrong was angry and very irritable but she did not note him to be sweating or shaking.

Eamon Armstrong’s Evidence [ 16 ] Eamon Armstrong spent Sunday, April 19 th , 2009, doing work around the exterior of his home. He is afflicted with Type-2 diabetes. He believed that he was first diagnosed in 2007 but added “January, 2007-8” (sic) and later said “2006, 2007 January”. His mother is “a very hardcore diabetic, and [Armstrong] has learned a lot of research through her.” His doctor, Dr. Henry Lim, prescribed Metformin and Glyburide for his condition and Armstrong took these medications daily, including April 19, 2009. [ 17 ] At some point between 7:30 p.m. and 7:45 p.m.

Armstrong drove to Caledonia to buy some groceries for Monday lunches for himself and his children.

He drove his 1999 BMW, which he bought equipped with very darkly tinted windows, so darkly tinted that they were “beyond legal tint.” He arrived at the Zehrs store and found it had closed at 8:00 p.m. so he went to a Shoppers Drug Mart and purchased bread, tuna, eggs and other “stuff like that”. [ 18 ] As he left Shoppers Drug Mart he was feeling a little anxious and as he proceeded south along Highway No. 6 he became “even more anxious and paranoid. [He] thought [he] was going to die ... [he] thought [his] diabetes was ... falling to a low.” His heart was racing, he felt confused, and he was sweating and feeling anxious.

[ 19 ] He had had a similar but less severe experience on one prior occasion when he was not driving. He knew that he had to get his blood sugar level up as soon as possible. He knew that the usual method for doing so was to consume some food or drink. He knew that the food of choice was to consume anything with carbohydrates or a juice with a high sugar content. He said that none of his purchases, including the bread, was appropriate for that purpose. [ 20 ] There are no stores of any sort where sugary foods or carbohydrate laden foods could be purchased along the road between Caledonia and Hagersville.

While travelling home, Armstrong’s symptoms worsened. He “actually thought [he] was going to keel over and die.” He was not frantic; he drove with the flow of traffic, speeding a little over 80 kilometres per hour without cutting anyone off or driving “out of hand”. He did not pull off to the side of the road as that would have been useless because he had nothing available to raise his blood sugar level.

He feared that if he pulled over things could become worse; he could step out onto the road and get killed or he could fall into a coma. [ 21 ] He was directly in front of his house when he first saw a police cruiser pull up right behind him. He was anywhere from 20 to 40 feet north of his driveway when the cruiser’s flashing headlights came on. Oncoming traffic was no closer than 200 feet away so he signalled his turn and pulled into his driveway and went into his house, intent upon raising his blood sugar level. The officer put her red lights on as he was making his turn.

She never pulled up beside him in the northbound lane. In any event, his intention was to get home and “get recovered from [his] illness. To get [his] sugar put back up.” [ 22 ] As he proceeded to go into his house Kuchocki, (who he recognized as a police officer), grabbed his shirt, when they were outside of his front door. He was in a panic and does not recall exactly what words were spoken between them. His house was open and he went right in. His front interior door was unlocked and remained so.

His exterior screen door was finicky and sticky but he did not lock it. [ 23 ] Once inside the first thing he did was to test his blood sugar level, with his glucometer. His sugar level was 2.3 which is quite low. A comfortable target blood sugar level should be anywhere from 5 to 6. He was sweating profusely, and anxious and panicky. He knew he had to get some food into him right away to move his blood sugar level up so he ate a carrot muffin and had a glass of orange juice.

Ingesting food is not fast-acting; it takes 20 to 30 minutes to be effective. [ 24 ] Armstrong knew that a policewoman had approached him outside of his home. The next thing he did after eating was to go “into the shower to calm down and try and get refocused”, as it takes a little bit of time for the food to break down and start working and he was still in “kind of a panicking mode”. [ 25 ] When he came out of the shower there was more than one officer present, his front door was still open but the screen door was smashed in, that apparently having been caused by one of the police officers present.

A male officer was yelling, “Don’t worry we’re not going to beat you up” and a female officer was banging on his kitchen window saying, “Get the fuck out here now”. That made Armstrong feel intimidated. He feared the police were going to attack him and he felt things were being blown out of proportion, so he called his wife and asked her to come home from work. [ 26 ] Armstrong’s wife worked only minutes from his home and as soon as she appeared he came out and was arrested. He advised Kuchocki that he was a diabetic both while detained in her police car and also at the station.

Further, Armstrong did not consume any alcohol that day. However, diabetes can produce a smell like alcohol, a smell “like a heavy type of ammonia type of a smell.” [ 27 ] Armstrong reported the day’s events to Dr. Lim who then changed his medication regimen. Armstrong has not had any similar episode since that time. Currently his diabetes is under control and he is not using any medications as he has been able to regulate his blood sugar levels through diet and exercise. Armstrong’s Cross-Examination [ 28 ] Armstrong testified that he was prescribed a dose of Metformin in the morning.

He did not know whether it was to be taken with food. He believed he ought to take it as needed. He agreed with the suggestion that Metformin is designed to regulate blood sugar and that it ought to be taken to maintain a consistent blood sugar level. [ 29 ] Armstrong usually checked his blood sugar twice a day; in the morning at about 9:00 a.m. and in the evening. He remembers getting up that Sunday morning around 9:00 a.m. and checking. It was 8 or 8.2, which is high but not uncommon upon awakening. His target blood sugar range was between 5 and 6. Higher or lower levels could cause issues.

Armstrong keeps a journal of his readings but he did not produce it. After checking his waking blood sugar level he took his Metformin and got on with his day. He took his prescribed medications as prescribed. During the day, before he checked again at 6:00 p.m. Armstrong ate hotdogs and drank sugared Kool-Aid with his family. [ 30 ] Armstrong next checked his sugar level in the early evening at six o’clock. It was “a little high” ... “it was like, 10”. So, he decided to take some Glyburide, which he knew was designed to lower blood sugar levels and does so very quickly.

Armstrong did not check his blood sugar level again, after taking the Glyburide, until he returned from Shoppers Drug Mart. He conceded that he was required to check to see whether or not his sugar level had come down from 10, after taking the Glyburide, before driving. He conceded that was the responsible thing to do. [ 31 ] In chief Armstrong described feeling a little anxious as he left the pharmacy. That was his first intimation of illness. In cross he said that he started to feel something was amiss a couple of minutes after leaving Shoppers Drug Mart.

At that time he estimates that he had only driven a very little of the way back to his home, perhaps two of the 14 kilometres back. [ 32 ] Armstrong had had a similar previous experience. He knew that the prudent thing to do at that point would be to turn around, go back to the store and consume something that would increase his blood sugar level. Instead he chose to continue driving home. He accepted that he could not dispute the radar timing result because he was in a panic and not looking at his speedometer. He was very

sweaty and almost shaking so it was hard for him to concentrate. [33] Armstrong admitted or conceded that: • he recognized his driveway and turned into it; • he ran from his vehicle; • he saw and recognized the police cruiser; • Kuchocki was in a police uniform and he identified it as such; • Kuchocki told him she was a police officer and he knew that she was one; • she told him to stop and grabbed his shirt outside his door; • he swore at her saying something like, “Fuck you, this is private property”; and, • at no point before he fled into his home did he tell her he was a diabetic suffering from a hypoglycaemic episode and that heneeded to consume food or drink urgently. [34] Armstrong said that he told Kuchocki he had diabetes while in her cruiser and he repeated that to her, in the presence of anotherofficer at the station.

Dr. Henry Lim’s Evidence [35] Dr. Lim, a family physician, became Armstrong’s family doctor in late 2005. He was qualified as an expert witness entitled tooffer opinion evidence about diabetes and its treatment and management. In addition to his medical school training Dr. Lim manageshundreds of patients afflicted with this condition as part of his family practice. He diagnosed Armstrong as suffering from Type-2diabetes in January of 2007. He managed his patient with oral medications.

One of those medications was Glyburide. [36] A potential side-effect from its administration is a too low blood sugar level, referred to as hypoglycaemia. If one’s blood sugarlevel is less than 4 a hypoglycaemic episode may occur.

The symptoms of hypoglycaemia include: feeling shaky; light headed ornauseous; being nervous, irritable or anxious; feeling confused or unable to concentrate; being hungry; having an increased heart rate;becoming sweaty or having a headache; feeling weak or drowsy; developing a feeling of numbness or a tingling sensation in the tongueor lips. [37] To remedy a hypoglycaemic episode one should ingest a drink with a high sugar content or other like foods or supplements. Afailure to treat a falling blood sugar level can result in coma and that consequence can happen within minutes.

Foods containing simplesugars are needed. The best sources would be sugary candy, sugary drinks or sugar tablets. Dr. Lim was not qualified as a nutritionist ordietician but, notwithstanding, he was of the opinion that ingesting bread would not be harmful but that it would not be as quick-acting assomething containing more simple sugars. [38] Armstrong consulted Lim on April 28th, 2009, to report that he had suffered a hypoglycaemic episode on April 19th. Armstrongbrought Dr. Lim his glucometer, which contained a reading of 3 taken on April 19, 2009. Dr.

Lim observed and charted the reading of 3but he failed to note the time of day when the reading occurred. As a result of that consultation Dr. Lim changed Armstrong’smedications. He discontinued Glyburide and substituted Diamicron, which does the same thing as the former but with less dramaticeffect. Prior to April 19, 2009, Armstrong had not complained to Dr. Lim about hypoglycaemic episodes nor had he made anycomplaints about the medications that had been prescribed for him.

Since changing his patient’s medication as a result of theirconsultation on April 28, 2009, Armstrong has not reported any further episodes of hypoglycaemia. [30] Dr. Lim’s opinion was that if a person diagnosed with Type-2 diabetes complained of symptoms of confusion, sweating andagitation, those complaints would be consistent with a hypoglycaemic episode. A breath odour can by produced in diabetes but such anodour would be less likely to be present with a lower blood sugar level. Notwithstanding, a diabetic with a low blood sugar level can stillproduce a characteristic diabetic breath odour. Dr.

Lim’s Cross-Examination [40] Dr. Lim outlined Armstrong’s medication regimen. As of March of 2008 he prescribed 500 mg. of Metformin to be taken once aday in the morning and 2.5 mg. of Glyburide three times daily, with food. The Glyburide must be taken as prescribed since its side-effects can be severe. In addition, a patient taking it must test for blood sugar level regularly. [41] Dr. Lim counselled Armstrong that Glyburide can cause hypoglycaemia and that he should be careful in using it and to only takehis medications as prescribed.

Further, he advised his patient to carry a can of cola and sugar tablets with him. Based upon the last prescription given to Armstrong, his patient would not have had any Metformin left to take on April 19th, if he had been taking it asprescribed. [42] Dr. Lim was apprised of some of the evidence given by Armstrong and he conceded that some of Armstrong’s admissions,essentially his awareness of his surroundings and the events he professed to be certain about, are inconsistent with a diagnosis of ahypoglycaemic episode.

Necessity [43] The principles controlling the excuse of necessity[4], as a defence, are found in R. v. Perka, (SCC), [1984]

S.C.J. No. 40.

It provides that the defence is “strictly controlled and scrupulously limited to situations” where the conduct complained ofwas truly “involuntary” so that the accused could not have done otherwise. “If there is a reasonable legal alternative to disobeying thelaw, then the decision to disobey becomes a voluntary one...” Further, the defence does not excuse disproportionate illegality; viz theharm inflicted by disobeying the law must be less than the harm sought to be avoided. [44] Perka also settles the effect that an accused’s own fault, in being responsible for the events giving rise to the necessity, plays inthe availability of the defence.

The case directs one to inquire into whether the necessitous situation was clearly foreseeable to areasonable observer. If the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergencyrequiring the breaking of the law, then the situation was not an emergency producing an involuntary and therefore an excused response. Where “an accused’s ‘fault’ consists of actions whose clear consequences were in the situation that actually ensued, then he was not‘really’ confronted with an emergency which compelled him to commit the unlawful act he now seeks to have excused.

In suchsituations the defence is unavailable. Mere negligence, however ... will not disentitle an individual to rely on the defence of necessity.” [45] Finally, Perka confirms that the “defence” does not shift the onus of proof. “[T]he Crown always bears the burden of proving avoluntary act. The prosecution must prove every element of the crime charged.

One such element is the voluntariness of the act. ...[If]the accused places before the Court, ... evidence sufficient to raise an issue that the situation created by external forces was so emergentthat failure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, thenthe Crown must be prepared to meet that issue.

There is no onus of proof on the accused.” [46] In brief compass, then, the Supreme Court declared that “the defence only applies in circumstances of imminent risk where theaction taken was to avoid a direct and immediate peril.” However, one is disentitled to the defence if one’s actions are not trulyinvoluntary or if there was a reasonable legal alternative course of conduct available. To be involuntary “the act must be inevitable,unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law.” [47] In R. v.

Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3 at paragraph [28] the elements of the defence were distilled down tothree elements: first, there is the requirement of imminent peril or danger; second, the accused must have had no reasonable legalalternative to the course of action he or she undertook; and, third, there must be proportionality between the harm inflicted and the harmavoided. Dangerous Driving [48] Diabetes is not an uncommon condition. It can produce hypoglycaemia, which can result in a reduced level or loss ofconsciousness.

Either consequence while driving could be disastrous.[5] One issue that arises on the evidence in this case is the natureand extent of Mr. Armstrong’s knowledge of the risk he was running by continuing to drive. [49] In R. v. Jiang, 2007 BCCA 270 , [2007] B.C.J. No. 928 (B.C.C.A.) the accused was acquitted of, inter alia, dangerousdriving causing death after a collision that resulted when she experienced an “intrusive sleep episode”. The trial judge found that herbehaviour in falling asleep was involuntary and she was found not guilty; a finding upheld against the Crown’s appeal. For the purposesof Mr.

Armstrong’s case, that appellate decision is significant for its commentary on the actus reus of dangerous driving. The Court, atparagraph [17] held that “the offence may consist of embarking on driving or in continuing to drive in the face of a real risk of fallingasleep. As McLachlin J. ... explained in R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3 at 73 ... the actus reus of crimes ofpenal negligence ‘may consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all thecircumstances it is dangerous to do so.’” That comment was re-affirmed at paragraph [52] of Jiang where the court reiterated that theactus reus of dangerous driving may also consist of embarking on driving or in continuing to drive when, in all the circumstances, it wasdangerous to do so. (emphasis added) Earlier in that judgment at paragraph [22] the Court observed that “a driver may be convicted ofdangerous driving if the trier of fact is satisfied beyond a reasonable doubt that the driver embarked on driving or continued to drive incircumstances in which he knew or ought to have known that it was dangerous to do so because there was a real risk that he would fallasleep at the wheel.” [50] The mens rea required to be proved for a conviction for dangerous driving was settled in R. v.

Hundal, (SCC),[1993] S.C.J. No. 29. The issue joined was whether the Crown had to establish a subjective element in the mens rea. The facts are wellknown. Hundal drove an overloaded dump truck eastbound through a red light controlling a busy downtown Vancouver intersection. Hestruck a southbound vehicle broadside as it proceeded through the intersection with a green light, killing that driver. [51] The Court propounded a “modified objective test” as the standard against which an accused’s mens rea is to be measured on acharge of dangerous driving.

The mens rea for the offence of dangerous driving is assessed objectively in the context of all of the eventssurrounding the allegations.

The Court amplified and explained this conclusion at paragraphs [43] and [44] in these words: 43 ... a trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of thesection, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition anduse of such place and the amount of traffic that at the time is or might reasonably be expected to be on such place".

In making theassessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that areasonable person would observe in the accused's situation. 44 Next, if an explanation is offered by the accused, such as a sudden and unexpected onset of illness, then in order to convict, thetrier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the dangerinvolved in the conduct manifested by the accused. [52] The Supreme Court had occasion to revisit and confirm Hundal in R. v.

Beatty, 2008 SCC 5 , [2008] S.C.J. No. 5. Inwrestling with the application of Hundal, the majority, at paragraph [49] directed that one ought to first consider the actus reus: 49 If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need

to pursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct.

If there is no such evidence, the court may convict the accused. [53] The effect of Hundal as applied in Beatty requires that in a prosecution for dangerous driving a court must pose and answer two questions. First, has the accused commited the actus reus of the offence; did he operate his motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place?

If, the answer is yes, beyond a reasonable doubt, then the court must ask whether the accused had the mens rea for dangerous driving. That is to ask whether the accused’s manner of driving, viewed on an objective basis, constitutes a marked departure from the norm. Findings [54] I find Eamon Armstrong to be an unimpressive witness; one whose testimony was riddled with inconsistencies. Several examples come to mind. He testified that he felt it urgent to ingest a sugary drink or something laden with carbohydrates yet he ignored and did not resort to the bread that he had with him in the car.

He said it would not act quickly enough, yet he also testified that the foods he did ingested would not act quickly; that they were not fast acting. In my view low carbohydrate diets and diet gurus are so well known that one would have to be disingenuous not to know that bread has a high carbohydrate content. He testified that he was in a panic and felt that he was going to die; yet, he did not drive frantically. He said that he merely drove with the flow of traffic, travelling at a little over the posted speed of 80 kilometres per hour.

Leaving aside the contradictory evidence of Kuchocki as to his speed that I accept, it seems to me that his assessment of his driving is inconsistent with his emotional assessment. Despite feeling that he was going to die and despite being in a panic he said that he was fully aware of how far oncoming traffic was from him when he made his left turn. My view is that Mr. Armstrong’s evidence was internally inconsistent and contradictory. However, I cannot reject all of it outright as I accept, based upon the evidence I will outline next, that by the time Mr.

Armstrong arrived at his home, he was well into a hypoglycaemic episode that had begun much earlier that evening; an episode that was apparent to him when he left Shoppers Drug Mart. [55] Based on the testimony provided by Dr. Lim, that part of the testimony of Mr. Armstrong that I do accept and the testimony of Officer Kuchocki, I make the following findings of fact. Eamon Armstrong is a Type-2 diabetic. While he currently controls his condition by diet and exercise without the need of oral medications, he required oral medications in April of 2009. He was prescribed those medications by his physician, Dr.

Henry Lim. He was counselled by Dr. Lim on what medications to take and when to take them. He was counselled by Dr. Lim on the importance of taking his medications as prescribed. He was told that he needed to check his blood sugar level shortly after taking the medication, Glyburide, to ensure that its effect in reducing his blood sugar level was not too drastic. He was counselled to always travel with a can of cola or other sugary drink or sugar supplement in case he felt his blood sugar levels dropping. [56] Beyond the medical teachings provided to him by Dr. Lim, Mr.

Armstrong’s mother had a long history of diabetes and so, through her and her experience with the disease, he knew of its effects. Mr. Armstrong also had firsthand knowledge about the symptoms and effects of having a low blood sugar level. Although he had never experienced a hypoglycaemic episode while driving, Mr. Armstrong had, on one occasion prior to April 19, 2009, experienced such an episode.

He recognized the symptoms of hypoglycaemia and he knew that left untreated, such an episode could lead to a loss of consciousness. [57] On April 19, 2009, after leaving Shoppers Drug Mart in Caledonia where he had done some grocery shopping, he began to experience a form of anxiety that he recognized as a signal that his blood sugar was getting too low. While driving home Mr. Armstrong began to experience the physical signs and symptoms that he knew meant his blood sugar was becoming too low and potentially, if left untreated that it could become dangerously low and life-threatening.

He was about two kilometres from the open Shoppers Drug Mart that he had just left. He was about 12 kilometres from his home. To get home he had to drive along Highway No. 6, which was the main thoroughfare linking several substantial towns in that area. The posted speed for much of his route home was 80 kilometres per hour. [59] Mr. Armstrong had apparently not been taking his Glyburide as prescribed and he did not take it as prescribed on April 19, 2009.

Further, despite being counselled to check his blood sugar shortly after taking this medication, he had not checked his blood sugar level before leaving his home to go shopping shortly before 8:00 p.m. on that day. He did not take a sugary drink or other supplement with him when he travelled as recommended by his doctor. Once homeward bound he realized that he was beginning to experience a hypoglycaemic episode. He had bread with him and knew that bread contained carbohydrates, a substance his body required to raise his blood sugar. He elected not to eat any of it.

He testified that it would not act quickly enough. The obvious inference from that testimony is that he knew time was of the essence. [59] He knew that the prudent thing to do at that point would be to turn around and go back to Shoppers Drug Mart and consume something that would increase his blood sugar level. He chose not to do so despite knowing that he was not in extreme distress but that his distress could become extreme.

Instead of making the prudent choice he elected to drive a much longer distance to his home because he wanted to get home. [60] He began to drive at high speeds and he felt increasingly ill. For a period of time, he was driving at 155 kilometres per hour in an 80 kilometre zone. He eventually reduced his speed to about 130 kilometres per hour for a distance of something less than two kilometres until traffic backed up near his home when he had to further reduce his speed to a level that was not identified in the evidence.

He drove at those speeds because he felt very ill and wished to get home as soon as he could. He felt very ill and felt he was going to die. When he got close to his home he braked abruptly and made an unsafe left turn into his driveway. He tried to get into his

house but before he could do so he was arrested by Officer Kuchocki for stunt driving. He broke free of her grasp on his shirt and heescaped from her custody and fled into his home. [61] He took his blood sugar level when he got into his house using his glucometer, a device that tests blood sugar levels. His bloodsugar level was 3, well below his target comfort level of between 5 and 6. Mr. Armstrong’s glucometer has a memory function whichrecorded that test and its date. He showed that test result to Dr. Lim on April 28, 2009, during an appointment. Dr.

Lim saw that bloodsugar level reading and that it was obtained on April 19, 2009, but he failed to note the time of the reading. In light of Dr. Lim’sevidence, I reject Mr. Armstrong’s evidence that he had a reading of 2.3. Judgment [62] On the charge of dangerous driving I find the defendant guilty. First, I reject the contention that Mr.

Armstrong’s conduct canbe excused by virtue of the application of the defence of necessity since his actions invited the clear consequences of the situation thatactually ensued so that he was not ‘really’ confronted with an emergency which compelled him to commit the unlawful acts he nowseeks to have excused. As a result the defence of necessity is unavailable to him. [63] Second, as noted above at paragraph [51], the offence of dangerous driving may consist of embarking on driving or in continuingto drive in the face of a real risk of ... losing consciousness. “As McLachlin J. ... explained in R. v.

Creighton, (SCC),[1993] 3 S.C.R. 3 at 73, 83 C.C.C. (3d) 346, the actus reus of crimes of penal negligence ‘may consist in carrying out the activity in adangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so.’” (Jiang at [17]) [64] Arguably, Mr.

Armstrong committed the offence of dangerous driving merely by driving after taking Glyburide without firsttaking his blood sugar level shortly to ensure his sugar level drop was not too precipitous after taking the drug and without having asugar supplement in his vehicle or taking one along with him, as recommended by his physician. [65] However, in addition to that, Mr. Armstrong drove his car a distance of approximate 12 kilometres to his home from the pointwhere and when his condition was much less severe.

He drove that distance at very high speeds while feeling increasingly ill and atmoments feeling deathly ill. He was in the grip of an increasingly severe hypoglycaemic episode, which could have resulted in himlosing consciousness. Earlier he was merely two kilometres from help at a time when he was only mildly ill. His illness would,untreated, only increase over time. He chose to drive a much longer distance and at very great speed. He drove at various speeds thatwere well in excess of the posted speed limit. Further, he chose to drive along a highway that was a major thoroughfare.

Near the end ofhis journey he made a very unsafe left turn that required traffic both behind him and in front of him to brake hard to avoid colliding withhim. [66] I am satisfied to the exclusion of any reasonable doubt that by driving as he did in those circumstances Eamon Armstrongoperated his motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, including the nature,condition and use of the place at which he operated his motor vehicle given the amount of traffic that at the time was or might reasonablybe expected to have been at that place; i.e., travelling along Highway No. 6. [67] Further, I am also satisfied to the exclusion of any reasonable doubt that Eamon Armstrong had the mens rea required to supporta conviction for dangerous driving.

That is to say, I am satisfied that his manner of driving, viewed on an objective basis, constituted amarked departure from the norm. Mr. Armstrong effectively admitted that to be the case when he said that the prudent course of actionwould have been to drive the shorter distance back to the pharmacy to obtain a sugar supplement and raise his blood sugar level, ratherthan try for home. In my view this is cogent evidence of his actual state of mind at the time. It does not raise a reasonable doubt aboutwhether a reasonable person in Mr.

Armstrong’s position would have been aware of the risk created by this conduct. Rather, it confirmsthat Mr. Armstrong was actually aware of the risk created by this conduct. [68] On the charge of failing to stop for police I find the defendant not guilty. I have already rejected the contention that Mr.Armstrong’s conduct can be excused by virtue of the application of the defence of necessity. Despite that I find him not guilty forseveral reasons. First, I have a reasonable doubt that Mr. Armstrong was aware that he was being pursued by Officer Kuchocki, until hewas very close to his home.

Given his frantic and ill state, I do not reject his testimony that he did not advert to the presence of theofficer behind him, despite her testimony to the contrary. In addition, given the tint shown in a photograph of his vehicle’s windows , Iam left in doubt that Officer Kuchocki could see into it from the distance of three car lengths away, that she was trying to maintain. Third, Officer Kuchocki followed Mr. Armstrong for about two kilometres at high speeds. At 155 kilometres per hour one can travelmore than two and one-half kilometres in a minute.

At 130 kilometres per hour one can cover more than two kilometres in a minute. Since Armstrong was already travelling at 155 kilometres per hour as he passed Kuchocki and since she had to slow down to make herU-turn, she would not have been able to get behind and close to him for very long. All of that leaves me in a state of reasonable doubtabout whether he knew he was being pursued. Second, I am not satisfied that Mr. Armstrong’s purpose was to evade the police, at leastwhile he was driving.

In the result, that count is dismissed. [69] On the counts of escaping from lawful custody and resisting arrest, I find the accused guilty of both. I accept the evidence ofOfficer Kuchocki about what happened after she pulled into Mr. Armstrong’s driveway until he fled into his house. I make no findingabout whether he locked the doors as she said or whether he left them open as he said. I need not resolve that conflict to arrive at adecision on these counts. His evidence differs little from hers about those events other than the door issues.

Officer Kuchocki had theauthority to effect an arrest for the offence of stunt driving and she did so by taking hold of his shirt and telling him he was under arrest. (See R. v. Whitfield, (SCC), [1969] S.C.J. No. 66.) He admitted to shrugging her off and running into his house. Byshrugging her off he resisted her arrest of himself and by running into his house he escaped from lawful custody. These are separatedelicts proscribed by separate offences so that the principle in Kienapple v.

The Queen (1974), (SCC), 15 C.C.C. (2d)524 (S.C.C.) does not apply to preclude separate convictions. [70] On the charge of stunt driving I find the defendant guilty. I find that Mr. Armstrong was travelling at 155 kilometres per hourin an 80 kilometre per hour zone. I have previously rejected the applicability of the excuse of necessity as a defence available to Mr.Armstrong. There is no other basis in the evidence that demonstrates that Mr. Armstrong took all reasonable care to avoid committing

this prohibited act. (See R. v. Raham, 2010 ONCA 206 , [2010] O.J. No. 1091 (C.A.) at [32] and [48] to [50].) [71] On the charge of driving without a currently valid permit I find the defendant guilty. While it was common ground that theCrown did not lead any legally admissible evidence, in its case-in-chief, to prove that Mr. Armstrong’s permit was not currently valid,Mr. Armstrong admitted that fact under cross-examination at page 83: Q. Well, what about the validation sticker? Was that expired? A. Yes, it was. [72] I appreciate that there are a number of factual conflicts that I have not resolved.

Those conflicts include but are not limited to ifand when Mr. Armstrong told Officer Kuchocki that he was a diabetic, whether he locked her out of his home, and whether the smell heexuded was as a result of his consumption of alcohol. Fortunately, I am of the view that none of these issues were required to beresolved by me in arriving at my judgment. Dated at Cayuga, this 15th day of June 2011. _____________________