2021 QCCQ 12634, 2021 QCCQ 12634

R. c. Cleminson 2021 QCCQ 12634 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU «Criminal and penal Division» No: 550-01-100230-178 DATE: November 12, 2021 ______________________________________________________________________ BY THE HONOURABLE ROSEMARIE MILLAR, J.C.Q. ______________________________________________________________________ THE QUEEN v.

JACQUELINE CLEMINSON Accused ______________________________________________________________________ VERDICT ______________________________________________________________________ [ 1 ] The accused, Jacqueline Cleminson, faces charges for operating a motor vehicle while impaired by alcohol or a drug, operating a motor vehicle in a manner dangerous for the public and having the care of a vehicle involved in an accident with another vehicle, with the intent to escape liability, did fail to stop her vehicle and give her name and address. [ 2 ] The event took place in l’Ange-Gardien on December 24 th , 2016. [ 3 ] On that day, Ms.

Cleminson left the Civic Hospital in Ottawa, where she had been admitted for suicidal ideation a few days before. She drove her car to an isolated area in the north with the intention of killing herself by taking the pills she had stashed in her car. She has no recollection from that point on. [ 4 ] The same day, her vehicle was seen by several witnesses driving erratically and hitting a truck in the opposite lane, before continuing and hitting a guard rail. [ 5 ] The question in issue is the criminal responsibility of Ms. Cleminson. [ 6 ] According to the accused’s expert, Ms.

Cleminson at the time of the alleged offences, was unable, as a result of a mental disorder, to know that the offences were wrong and would come under section 16(1) of the Criminal Code . [ 7 ] This opinion is contested by the Crown’s expert who concluded that she was indeed responsible for her actions considering she was voluntarily intoxicated by drugs. [ 8 ] For the following reasons, the Court finds that the accused was not criminally responsible at the time of the offences. FACTS [ 9 ] Ms.

Cleminson has a history of depression (this will be detailed later in the decision). [ 10 ] On December 20 th , 2016, Ms.

Cleminson was feeling lost and unwell and had suicidal thoughts, which she had informed her therapist. [ 11 ] The same day, accompanied by her therapist, she went to the Civic Hospital’s emergency where she was admitted under a Form 1 for safety considerations. [ 12 ] The admission note from the hospital indicates she was suffering from major depressive disorder and post-traumatic stress disorder. [ 13 ] She requested day pass and her psychiatrist accepted. [ 14 ] She went on a day pass both on December 23 rd and December 24 th , 2016.

[ 15 ] On December 24th, 2016, she felt upset and told the staff she was going on her day pass. [ 16 ] After a conversation with her daughter and an incident at Tim Hortons , she felt that things were ‘’flying out of control’’ and she decided to kill herself. [ 17 ] She had medications stockpiled in her car for this eventuality. [ 18 ] She decided to go north in Quebec to be isolated so that she would not be found. [ 19 ] She’d even thought about helicopters trying to find her and thought she would hide under the trees to avoid to avoid being seen. [ 20 ] She was looking for an isolated location and found a field that was partially plowed and stopped her car there. [ 21 ] She retrieved her pills from the back of her car and sat in the front seat of her vehicle, taking them as she thought of calling her therapist but does not remember if she did (her therapist confirmed receiving a call).

Her last memory relates to her intention to die. [ 22 ] On December 24 th , 2016, the Sureté du Québec received a call from a witness who had seen a person (identified later as the accused), who was probably inebriated, in a vehicle on road 309 at Val-Des-Bois driving erratically, who avoided hitting two cars and a pedestrian. [ 23 ] The witness, who followed Ms.

Cleminson for roughly 25 kilometers, saw her vehicle consistently going from one side of the road to the other, hitting the snowbanks on each side, at speeds between 60 to 80 km/hr. [ 24 ] Numerous vehicles had to take extreme measures to avoid an accident. [ 25 ] Finally, Ms. Cleminson hit a truck in the opposite lane, then hitting a guard rail and ended up on the right shoulder of the road. [ 26 ] Ms.

Cleminson was seen leaving her vehicle to inspect it even though she was standing directly at the center line of the road. [ 27 ] A witness removed her keys and took her in her car while waiting for the police. [ 28 ] According to the officer who arrested Ms. Cleminson, she was staggering and walking slowly. There was no odour of alcohol but she said she took medication (Lorazepam). She did not know the quantity and she was suicidal. [ 29 ] The presence of four substances were found in the blood sample taken that day: Lorazepam, Tramadol, Zolpidem and Metabolite de bupropion. [ 30 ] Dr.

Helen Ward, psychiatrist, is of the opinion that Ms. Clemison was suffering from a mental disorder at the time of the alleged offences, namely, an episode of major depressive disorder which rendered her unable to know that the offences were wrong. [ 31 ] Dr. Roger Labonté, psychiatrist, who testified for the Crown, has a contrary opinion. He considers that Ms. Cleminson, who is a nurse, took the medication voluntarily, would have known about the potential effects (impairment, blackout) of such an overdose and concluded that she is criminally responsible and consequently

section 16 C.cr . is not applicable. PAST PSYCHIATRIC HISTORY [ 32 ] Ms. Cleminson, is 66 years of age, lives in Ottawa, Ontario and also has a residence in Brownsburg, Quebec. [ 33 ] She worked as a nurse until 2005 when she was put on disability. [ 34 ] When she was 20 years old, while she was training as a nurse, she found her grandfather deceased from suicide. She felt really depressed, consulted a psychiatrist and entered into an inappropriate relationship with him during a five year period. [ 35 ] According to Ms.

Cleminson, this psychiatrist put her on all sorts of medication. [ 36 ] She decided to join the military to get away and was with the armed force until her release in 2000.

She received some mental health care while in the military. [ 37 ] After her release from the military, she completed a diploma in social work from Algonquin College in order to become a case worker. [ 38 ] She also taught a nursing course at Algonquin College during this time. [ 39 ] She worked briefly as a nurse in a correctional center but had to stop because she was forgetful with medication and disoriented. [ 40 ] She was put on disability in 2005. [ 41 ] She was hospitalized several times between 2004 and 2015. [ 42 ] Her evidence is that she had been on prescribed benzodiazepines for most her adult life. [ 43 ] She began hoarding pills in 1987, having in mind that if things got really bad she would kill herself. [ 44 ] According to her, three to four years before her hospitalization in 2016, she became particularly depressed during the Christmas period.

[ 45 ] She went through two previous difficult experiences which occurred at Christmas time. LAW [ 46 ]

Section 16 C.cr . reads as follows: " Section 16 (1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.” [ 47 ]

Section 16 C.cr . provides that the accused must establish on the balance of probabilities that, at the time of the infractions, she was suffering from a mental disorder rendering her incapable of appreciating the nature and quality of her act or knowing that it was wrong. [ 48 ] In the case Bouchard-Lebrun [1] , the Supreme Court decided that, to present a defence of mental disorder, the accused must satisfy a test in two steps, the first one being the qualification of the mental disorder and the second being the effects of this mental disorder. ANALYSIS [ 49 ] Ms. Cleminson is seeking a verdict of non-criminally responsible on account of a mental disorder, pursuant

section 16 C.cr . [ 50 ] According to Dr. Helen Ward, the psychiatrist presented by the defence, Ms. Cleminson was suffering from an episode of major depressive disorder, which is a mental disorder, and was not able to distinguish right from wrong. [ 51 ] According to Dr. Ward : “In my opinion, Ms. Cleminson was suffering from a mental disorder at the time of the alleged offences, namely, an episode of Major Depressive Disorder. A frequent symptom of such a depressive episode is suicidal ideation. Suicidal ideation ranges from fleeting thoughts, to serious and fixed intent. In Ms.

Cleminson’s case, she had a longstanding plan of overdosing on certain medications which she believed, by virtue of her nursing experience, would likely be fatal. When an individual is at the brink of a suicide attempt, there is a well-known theory which postulates an activation of a «suicidal mode», or circuit, in the brain. This results in a narrowing of point of view, negative cognitions about oneself and the situation, lack of consideration of alternatives, and numbing of emotions which leaves the person only focused on the option of killing him or herself. There are indications in Ms.

Cleminson’s account of this day that she was in such a state. She apparently eloped from hospital, although that is not her recollection. She sought out a remote location where she believed that she would be undisturbed. She consumed a significant amount of medication which, based on bystander’s accounts, rendered her cognitively and physically impaired. Her expectation was that the medication overdoes would kill her. (…) In my opinion, Ms. Cleminson was so acutely suicidal at the time of the alleged offences, as a result of her major depressive disorder, that she was focused only on the act of killing herself.

As a result of this narrowing of focus, despite having the intellectual capacity to know that she was consuming substances which would be potentially intoxicating, impairing, and disabling, she was unable to aply that knowledge in a rational way at the time of consuming the benzodiazepine and other medication. The consumption of the substances then presumably lead to her operating a motor vehicle without making a conscious choice to do so (i.e in an automatic manner). Therefore it is my opinion that Ms.

Cleminson, at the time of the alleged offences, was unable, as a result of her mental disorder, to know that the offences were wrong, and would come under Section 16(1) of the Criminal code [2] . [ 52 ] On the other hand, Dr. Labonté is of the opinion that Ms. Cleminson was not in a state of psychosis or mania when she left the Civic Hospital on December 24 th , 2016. [ 53 ] In his report, confirmed by his testimony, Dr.

Labonté states: “ Madame Cleminson ne s’oppose pas au fait qu’elle a fait une intoxication médicamenteuse dans le but de s’enlever la vie et les rapports policiers des témoins soutiennent un état d’intoxication qui est compatible avec une intoxication aux benzodiazépines. Madame Cleminson qui est infirmière et connait bien les effets des benzodiazépines en ayant été prescrits de façon longitudinale et ayant fait des intoxications médicamenteuses dans le passé, connaissait bien les risques de prendre de tels médicaments.

Bien que la consommation des benzodiazépines fût dans un but suicidaire et que ses actions par la suite n’étaient pas voulues et qu’elle n’avait pas d’intention de causer des blessures ou des dommages, l’ingestion de ses médicaments était volontairement induite. OPINION DIAGNOSTIQUE SELON LES INFORMATION DISPONIBLES :

Madame Jacqueline Cleminson était sous l’influence de benzodiazépines, tranquillisants, volontairement absorbés vers le 24 décembre 2016 et bien que cela influençait sa capacité de comprendre et d’apprécier ses gestes, selon mon humble opinion, le fait que cela était volontairement consommé connaissant le risque d’une telle intoxication, qu’elle peut être considérée comme responsable pour ses gestes en date des incidents en question [3] ″. [ 54 ] Ms. Cleminson’s lawyer is asking the Court to take a holistic approach and to set aside Dr.

Labonté’s report and evidence since his experience is less than the psychiatrist called by the defence. [ 55 ] It is the accused’s burden to establish on a balance of probabilities that Ms. Cleminson was not criminally responsible on December 24 th 2016 when she took her vehicle and drove under the influence of the medications she ingested. [ 56 ] Was Ms.

Cleminson suffering from a mental disorder, pursuant to s. 16 C.cr . at the time she committed the offences? [ 57 ] First, she has to establish she was suffering from a mental health disorder and second that she was not capable of judging the situation and of knowing whether her actions were wrong. [ 58 ] Dr. Helen Ward diagnosed that the accused was suffering from major depressive disorder, recurrent, moderate to severe, post- traumatic stress disorder, dissociative and borderline personality disorder. [ 59 ] Dr. Ward is of the opinion that Ms.

Cleminson was suffering from a mental disorder at the time of the alleged offences, specifically an episode of major depressive disorder. [ 60 ] According to Dr. Ward, a frequent symptom of such a depressive episode is suicidal ideation that can range from fleeting thoughts to serious and fixed intent. [ 61 ] For Dr. Ward, Ms. Cleminson had a longstanding plan of overdosing on certain medications, which she believed by virtue of her nursing experience would likely be fatal. [ 62 ] Dr.

Ward continues by explaining that: «when an individual is at the brink of a suicide attempt, the brain is in a «suicidal mode», or circuit, in the brain. This results in a narrowing point of view, negative cognitions about oneself the situation, lack of consideration of alternatives, and numbing of emotions which leaves the person only focused on the option of killing him or herself». [ 63 ] Dr. Ward is of the opinion that Ms.

Cleminson was in such a state: she left the hospital, sought out a remote location where she would be undisturbed, consumed a significant amount of medication, which rendered her cognitively and physically impaired. Her expectation was that the medication overdose would kill her. [ 64 ] According to Dr. Ward, Ms. Cleminson was so acutely suicidal at the time of the alleged offences, as a result of her major depressive disorder that she focused only on the act of killing herself. [ 65 ] For Dr. Ward, Ms.

Cleminson, being so focused on the act of killing herself, although she had the intellectual capacity to know that she was consuming substances which would be potentially intoxicating, impairing and disabling, was unable to apply that knowledge in a rational way at the time of consuming the benzodiazepine and other medications. [ 66 ] Finally, Dr. Ward concludes that the consumption of substance then presumably lead her operating a motor vehicle without making a conscious choice to do so as in an automatic manner. [ 67 ] Dr. Roger Labonté disagrees with Dr. Ward’s opinion. [ 68 ] For Dr.

Labonté, on December 24 th , 2016, Ms.

Cleminson was under the influence of benzodiazepine, that she voluntary consumed and even if it impaired her capacity to understand her actions, because it was voluntarily consumed, knowing as a nurse the risks of such an intoxication, she was responsible for her actions. [ 69 ] According to the Supreme Court, the first stage of the defence of mental disorder involves characterizing the mental state of the accused. [ 70 ] The Supreme Court in Bouchard-Lebrun [4] decided that it is preferable for the courts to engage in an individualized analysis that takes into account the specific circumstances of each case to determine whether the mental condition of each accused is included or excluded from the definition of disease of the mind proposed in Cooper . [5] [ 71 ] Dr.

Ward, an experienced psychiatrist, concludes that Ms. Clemison was suffering from a mental disorder at the time of the offences, namely an episode of major depressive disorder. [ 72 ] According to Dr. Ward’s testimony, Zopiclone, one of the medications taken by Ms. Cleminson, is also known to produce not just amnesia but also complex behaviour, complex automatism on rare occasions. This is something Ms. Cleminson would not have known from her nursing experience since the warning by Health Canada only came out in 2014 [6] . [ 73 ] It is important to note that Dr.

Ward testified that : “However, in my experience people who are very depressed and highly suicidal are distorting everything. They have distortions to the extent that they cannot in fact take in other information. It would be difficult for them to change their mind in that case. And Mrs. Cleminson wasn’t really looking to have her mind changed either in that situation. And, so, she was very focused on suicide at that time.

And in my opinion, that degree of distortion, those negative beliefs about oneself and the negative beliefs about the world and about the situation, when they are that intense meet the criteria for disorder, for a confident person to lose the capacity to make a rational choice. So, in this case, she made a choice to commit suicide, that was her choice of intention you heard repeatedly today. In my opinion, based on what I know of people who become locked in on suicide in this way, is that it was not something that she could derail herself from. She was intently focused that that was her goal.

In my opinion, that led — She took the overdose. And I appreciate what has been said and probably will be said about the overdose being — the intoxication, the injection of the pills being voluntary. Yes, it was, it was a deliberate act. But it was

an act that she did with a particular intention, and that intent was to die. And obviously whether or not that can be — Obviously, whether or not the fact that it was intentional, even though it was part of a mental disorder, the actions arose out of a mental disorder, the question whether or not it was intentional — Sorry, excuse me, the question of it being intentional and therefore negating the mental defense, the mental disorder defense, or the issue with the driving, is for the Court to decide, not for me.

But from a medical perspective, I see the ingestion of the pills as part of her mental disorder [7] .” (…) So, in Mrs Cleminson’s situation, it’s my view that what happened is that the amount of medication she took and the combination of medication she took, the Lorazepam particularly, also the Tramadol, which is sedating and can be amnestic, but particularly the Zopiclone put her into a situation where she drove in an automatic fashion. There was no intention to drive, there was no - - [8] (...) A. I wouldn’t go so far as to call the behaviour of taking of pills automatic.

What I would say is the behaviour of taking the pills was not something she could chose to not do. Like, she was unable to make a rational choice to not take the pills [9] . (…) Now, this case gets more complex because of the whole issue, because of

Section 33.1 and the whole issue specifically about intoxication and voluntary intoxication. It get more complex. But I do believe that this is a case where she was not able a rational choice to do anything else. She was not able to think about what happens if this doesn’t relay work and I’m disabled, what happens if this causes me to lose consciousness, lose ability and then drive. There’s no reason she should have been able to have those thoughts. There was no place for those thoughts in her world here [10] .” [ 74 ] The Court accepts Dr.

Ward’s opinion, who has testified numerous times on the issue of criminal responsibility and has knowledge of people in suicidal mode. Moreover, Dr. Ward also testified that she had a number of cases in the past where people committed criminal acts in the course of suicide attempts. She has been qualified as an expert on this issue and has experience is this area [11] . [ 75 ] The Court considers that Ms.

Cleminson has met the first stage of the statutory test, i.e. she was suffering from a mental disorder at the time of the events. [ 76 ] The second stage of the defence concerns the effects of the mental disorder. [ 77 ] The Court must determine if Ms. Cleminson, in light of her mental condition, was incapable of knowing that her actions were wrong. [ 78 ] According to Dr. Ward, Ms. Cleminson was in a suicidal mode focusing only on the option to kill herself and she consumed the medication to overdose in order to kill herself. [ 79 ] For Dr. Ward, the consumption of the medication led Ms.

Cleminson to operate a motor vehicle without making a conscious choice. [ 80 ] According to Dr. Ward’s opinion, this automatic manner in operating a motor vehicle rendered her, as a result of her mental disorder, unable to know that the offences were wrong, which is the second stage of the statutory test. [ 81 ] The Court concludes, in line with Dr.

Ward’s assessment, that in light of the special circumstances of this case, because her narrow focus was to kill herself, despite having the intellectual capacity to know she was consuming substances which would be potentially intoxicating, impairing and disabling, Ms. Cleminson was unable to apply that knowledge in a rational way at the time. [ 82 ] The Crown argued two decisions among others, R. v . Vire [12] and R. v .

Abad [13] where the accused, who wanted to commit suicide, were found guilty of impaired driving. [ 83 ] The Court distinguishes these decisions with the present case since, in both decisions, it was a defence of non-insane automatism that was presented and, contrary, to this case, there was no expert evidence concluding to the existence of a mental disorder at the time of

the offences. CONCLUSION [ 84 ] The Court concludes that Ms. Cleminson has proven on a balance of probabilities that she was suffering from a mental disorder that rendered her incapable of appreciating the nature and quality of the acts or knowing that they were wrong. [ 85 ] Ms. Cleminson met the requirements of the two stage statutory test as set out in the case of Bouchard-Lebrun . [ 86 ] For these reasons, the Court concludes that Ms. Cleminson, at the time of the alleged offences, was not criminally responsible under section 16(1) C.cr . FOR THESE REASONS, THE COURT : FINDS the accused not criminally responsible of the alleged offences under

section 16 C.cr . __________________________________ ROSEMARIE MILLAR, J.C.Q. Me Marie-Philippe Guimond-Methé Criminal and penal prosecutor Me Christian Deslauriers Counsel for the accused Dates of hearing: April 7 th and 8 th, , 2021, and September 3 rd , 2021