R. v. Dupuis Date:, 2013 BCPC 418

Citation: R. v. Dupuis Date: 20130522 2013 BCPC 0418 File No: 31624 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHIRLEY ANNE DUPUIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: J. Dufour Counsel for the Defendant: G. Wool Place of Hearing: 100 Mile House , B.C.

Dates of Hearing: Oct 12, 2012, Nov 20, 2012, Jan 4, 2013 and Jan 14, 2013 Date of Judgment: May 22, 2013 [ 1 ] Shirley Anne Dupuis is charged with 5 counts arising out of a motor vehicle incident in the late evening hours of August 26 th , 2011. The 5 charges are: Impaired Driving (s. 253(1)(a)), Over .08 (s. 253(1)(b)), Hit and Run (s. 252(1)(b)), Dangerous Driving (s. 249(1)(a)) and Evade Peace Officer (s. 249.1(1)) of the Criminal Code , respectively. [ 2 ] I have decided that I must find Ms. Dupuis guilty of counts 1, 2 and 3 – that is, of Impaired Driving, Over .08 and Hit and Run.

I find her not guilty of counts 4 & 5 – Dangerous Driving and Evade Peace Officer. I will explain why I have reached this conclusion beginning with a brief overview of the facts and the issues in this complicated case. [ 3 ] Shortly after 11 pm on August 26 th , 2011 a man riding a bicycle along Easzee Drive in the 108 Mile Ranch community fell off his bike and suffered a head injury. Passersby called 911 and, in due course, local first responders from the volunteer fire department, the ambulance and a couple of police officers in two separate police vehicles arrived at the scene.

One of the volunteer firemen, Bruce Sarvis, began controlling traffic through the scene. All west bound traffic was directed to slow down and change lanes into the oncoming lane in order to get around the injured cyclist and the emergency vehicles. Ms. Dupuis was giving a ride home to an intoxicated friend when she came across this scene. The witnesses differ somewhat but it is clear that Ms. Dupuis drove her white, Ford Explorer past the emergency vehicles and the injured cyclist. The accounts of the Crown witnesses and Ms. Dupuis diverge sharply at this point. The Crown’s position is that Ms.

Dupuis then side-swiped a blue car belonging to one of the volunteer firemen which was parked on the south shoulder of the road just to the west of the scene. Ms. Dupuis denies that she collided with anything though she does say that she heard a loud “bang” and felt the front end of her vehicle drop down. She says she thought that her tire had blown out. She opened her driver’s door and looked out but could see nothing as it was pitch black.

She says she closed her door and carried on driving as her passenger lived not far away and neither she nor her passenger were able, or inclined, to stop and change the tire at that moment. A police witness, Cst. Flett, followed Ms. Dupuis with his emergency equipment activated, attempting to get her to pull over, but she continued driving for 700 or 800 metres before pulling into the driveway and carport of the home where she was dropping off her friend. It is agreed that Ms. Dupuis was driving quite erratically over that distance but the reason for this erratic travel is under dispute. Ms.

Dupuis called a mechanic, Jason Harden, to say that the tie rod end on her vehicle was found to be broken after this incident. The defence theory is that Ms. Dupuis did not side swipe the blue car but that the tie rod end failed just at the point Ms. Dupuis drove by the blue car, causing the loud “bang” and the sudden falling down sensation she recalls. The defence theory is that any erratic driving observed after that was caused by this broken tie rod end which made it almost impossible for Ms.

Dupuis to steer her vehicle. [ 4 ] The evidence and the submissions of counsel give rise to many issues which may be organized into three main groups:

(1) Admissibility issues – I group under this heading an issue of voluntariness concerning some brief statements allegedly made by Ms. Dupuis to Cst. Ziemer as well as a series of Charter issues which have been raised. Ms. Dupuis’ argues that her s. 10(b), s. 9, s. 7 and s. 8 rights were breached in the course of this investigation and evidence should be excluded as a result of those breaches.

(2) The second group of issues involve analysis of the essential elements of each of the 5 offences to determine if they have been proven beyond a reasonable doubt and, finally, if the counts are otherwise proven, (3) the third group of issues concern the defence of necessity which is raised at least as it concerns counts 2 and 2 (Impaired Driving and Over .08). [ 5 ] I have organized my reasons on these various issues as follows: 1. Admissibility Issues: 1.1 Voluntariness of statements to Cst. Ziemer; 1.2 Charter Issues: 1.2.1 s. 10(b) 1.2.2 ss. 7 & 9 1.2.3 s. 8; 2.

Analysis of Each Count: 2.1 Count 1: Impaired Driving 2.2 Count 2: Over 08 2.3 Count 3: Hit & Run 2.4 Count 4: Dangerous Driving

2.5 Count 5: Evade Peace Officer; 3. Defence of Necessity; 4.

Summary. 1. Admissibility Issues 1.1 Voluntariness of Statements to Cst. Ziemer [ 6 ] Cst. Ziemer testified that during the second observation period he was seated in the interview room with Ms. Dupuis and she began speaking about her evening and how it had unfolded and how she was driving her friend home and had driven through the accident scene and then she said: “I thought I hit something on the road. I felt something.

I thought I ran over something.” And a short while later “I definitely had 3 drinks”. [All references to the evidence are taken from my notes which are not verbatim but have been checked against the court’s recording.] [ 7 ] He testified that he did not record the rest of the conversation but he did write these things down in his notebook verbatim because he believed they were important to the investigation.

The Crown seeks a ruling on the voluntariness and admissibility of these three brief sentences. [ 8 ] I remind myself that the Crown must prove beyond a reasonable doubt that statements made to persons in authority are voluntary before such statements may be admitted into evidence. [ 9 ] Ms. Dupuis did not specifically speak about these particular statements in her evidence – she neither denied nor admitted making them, she did not challenge their accuracy, and she did not provide any detail about her state of mind at the time she made them. [ 10 ] Ms. Dupuis did say that Cst.

Ziemer was “polite and wonderful and tried to calm me down”. He told her “I am sorry to have it happen this way” and he gave her a ride home to the 103 Mile after the investigation was over. He was, she said, “a total gentleman” in his dealings with her and this certainly accords with my impression of his personality and demeanour from observing him testify in court. He did not seem offended by cross examination.

He accepted reasonable suggestions that were put to him and he came across as a person who has a good sense of proportion – that is to say, good judgement about what is important and what is not important. [ 11 ] Cst. Ziemer testified that Ms. Dupuis was talkative and coherent but she spoke quietly and took deep breaths and was obviously sad during the time they spent together in the interview room. He said she appeared to understand him and he did not recall noting any problem with her hearing though he could not rule out the possibility that Ms. Dupuis said something about this to him.

He said that if he had become aware that she was having trouble hearing he would have taken steps to address this by speaking louder and confirming with her that she had heard and understood him. He said he did not solicit the conversation about driving through the accident scene and hitting something and he denied playing “good cop” in order to trick Ms. Dupuis in to talking to him. He agreed that he could have taken steps to record everything that went on during the observation periods but said that it was not normal police practice to do so and that is why he did not do so in the case of Ms. Dupuis.

He agreed as well that he could have reviewed her right to silence with Ms. Dupuis. He said he did not do so because he believed Cst. Flett had reviewed the right to silence with her at the same time as Flett had provided her with her s. 10 Charter rights. [ 12 ] In my view this body of evidence proves beyond a reasonable doubt that the statements given by Ms. Dupuis were voluntary. There is simply nothing in the evidence that gives rise to a doubt on the point. I find that the four brief utterances were voluntary and that they are admissible in evidence on Ms.

Dupuis’ trial. [ 13 ] I will move next to the Charter issues starting with the right to counsel, s. 10(b). 1.2 Charter Issues [ 14 ] I remind myself that the onus is on the defendant to establish a breach of her Charter rights on a balance of probabilities.

1.2.1

Section 10(b) [ 15 ] There is conflicting evidence between Cst. Flett and Ms. Dupuis about whether or not he properly informed her of her right to counsel, particularly her right to contact a free duty lawyer, available 24 hours a day at a 1-800 number he could provide – the so-called Brydges component of the right to counsel. This requires me to assess the credibility of Cst. Flett and Ms. Dupuis respectively and to make certain findings of fact. As will be seen, my conclusion, is that the defendant, Ms. Dupuis, has failed to meet the burden that exists in Charter matters of showing that it is more probable than not that her s. 10(

b) rights were breached. More specifically, there are some difficulties with Ms. Dupuis’ credibility, in my view. Her evidence that she was not informed of the availability of 24 hour, free legal advice, might have been sufficient to raise a reasonable doubt – that is not a decision I have to make - but I can say that the evidence before the court is not sufficient to establish her version of events on this point on a balance of probabilities. [ 16 ] I will now review the evidence on the s. 10(

b) point in detail. Cst. Flett testified that he advised Ms. Dupuis of her s. 10(

b) Charter right to counsel from his card twice in the course of his dealings with her that night. The first time was at 0003 hours shortly after her initial arrest for impaired driving, while she was seated in the back of his police car at 5057 Easzee Drive. According to him he read the full “Brydges” advice from his card, asked the following questions and received the following answers from Ms. Dupuis: “Do you understand? A: Yes I do Do you want to call a lawyer? A: No” [ 17 ] The second time was at 0034 hours. He testified that on the drive back to the detachment he realized he had failed to advise Ms.

Dupuis that he was also arresting her for the offence of “Hit and Run” so, when they arrived at the detachment he took her into an interview room and advised her that she was also being arrested for “Hit and Run” and then read the full “ Brydges” advice once again, from his card, asking the following questions and receiving the following answers from Ms. Dupuis: “Do you understand? A: Yes Do you want to call a lawyer? A: No” [ 18 ] Ms. Dupuis’ version of these events is rather different. Ms. Dupuis was 69 years of age at the time of this investigation back in the summer of 2011.

She testified that she is quite hard of hearing and needs hearing aids but cannot afford to buy them. She said she figures out what people are saying mainly by reading lips. Throughout the trial she utilized the equipment the court provides for those who are hearing impaired. [ 19 ] As for having been informed of her right to counsel on the first occasion she testified that she remembered Cst. Flett saying something while they were in the police car in the driveway of 5057 Easzee Drive but had no recollection of him saying anything at all about the right to counsel.

On the second occasion, in the interview room back at the detachment, Ms. Dupuis does recall Cst. Flett telling her that she could seek the advice of a “counselor” and that he explained this meant she could seek the advice of a “lawyer”. However, she insists it was never made clear to her that there was free legal advice available 24 hours a day. She described her recollection of the information provided by Cst.

Flett about her right to counsel – this is on the second occasion, in the interview room - as follows: “…And Flett came over and said “you have the right to call a counselor” and I asked for clarification and he said “you have the right to call a lawyer”. And I said “okay well I do not have a lawyer and I have no money to get a lawyer” and he said “are you sure” and I said “yes”. And he turned and walked out and nothing further was said. … Did Flett say anything about getting a lawyer free of charge? He did not, he did not say that at all.” [ 20 ] Counsel for Ms.

Dupuis argues that the court should resolve this “he said, she said” dilemma in favour of Ms. Dupuis. Why, he asks, if the police really are routinely giving the right to counsel as required by Canadian law do they not make a practice of recording this important step on one of the tiny, portable recorders they often seem to be equipped with nowadays? Or, on the second occasion, why did Cst. Flett not use the audio and visual equipment already in place in the interview room at the detachment? Why, at the very minimum, did Cst. Flett not get Ms.

Dupuis to sign his notebook after giving the right to counsel to indicate that, in fact, this step had been taken? [ 21 ] Counsel for Ms. Dupuis also emphasizes the context here. Cst. Flett, he says, completely mis-judged the situation – he assumed the white Explorer collided with the parked car when it did not, he assumed the driver of the Explorer was trying to evade the police when she was not.

He assumed “high risk takedown” tactics were necessary, such as running up to the driver’s window and screaming at the driver to “Take the keys out of the ignition!”, “Keep your hands on the dashboard!” and pointing what Ms. Dupuis is convinced was a handgun when, in fact, the driver proved to be an entirely harmless, senior citizen. Cst. Flett was, in the words of Ms. Dupuis, “a very angry young man” and, as a result, counsel argues, he was cavalier about Ms. Dupuis’ Charter rights and simply failed to inform her of them forthwith upon her detention. [ 22 ] As well, Mr. Wool argues, Cst.

Flett failed to take into account the fact that Ms. Dupuis is quite deaf. Even if he did read out

the required 10(

b) information as he has testified, he failed to take any reasonable steps to be sure that what he said was being heard and understood by her. On the first occasion she may simply not have heard him given that she was handcuffed in the back seat of the police car and he was sitting, facing away from her in the front seat, separated from her by a screen with the noise of the vehicle running in the background. If he did advise her of the full Brydges information about free, 24 hour legal advice, Mr.

Wool argues, it is obvious that he took no reasonable steps to be sure that this was actually heard and understood by Ms. Dupuis as the court can see by the fact that Ms. Dupuis insists that no one ever told her that she could get free legal advice. [ 23 ] As I said at the beginning of this section, the evidence is not sufficient to establish on a balance of probabilities the defendant’s proposition that she was denied her Brydges information. Ms. Dupuis comes across as a lively, sociable, generous and hardworking person with a wide circle of friends in the 103 Mile community.

However, there are some difficulties with her credibility which I will now review: a . Ms. Dupuis’ description of events conflicts not only with that “angry, young man” Cst. Flett. Her evidence also conflicts on various points with Bruce Sarvis and with Cst. Matt Ziemer, both of whom came across as very genial, relaxed and fair minded individuals; b . The conflict with Sarvis is on the point of whether Ms. Dupuis stopped and had a conversation through her window with Sarvis before proceeding as he directed. She insists that such a conversation occurred and purports to give a verbatim account. Mr.

Sarvis has no recollection of such a conversation. It also seems unlikely, given her hearing condition, that Ms. Dupuis would have been able to have such a conversation since it was dark and, one would assume, difficult, if not impossible, for her to read Bruce Sarvis’ lip movement; c . The conflict with Ziemer concerns this point and two others. He was standing close by Bruce Sarvis and he too has no recollection of Ms. Dupuis’ stopping and engaging in conversation with Sarvis. The second conflict arises out of Ms. Dupuis’ testimony that she told Cst. Ziemer (and Cst.

Flett) that she needed to go to the washroom and both of them told her she could not go until the breath testing procedure was finished. When they did eventually allow her to go she says they insisted that the door of the toilet be left open and this caused embarrassment to some other male officers and no doubt to Ms. Dupuis herself. There was no mention of this issue in either Cst. Ziemer or Cst. Flett’s evidence. Perhaps they simply were never asked about it. However, I think it inherently improbable that Cst. Ziemer – who was otherwise very kind and considerate to Ms.

Dupuis including giving her a ride back to the 103 after the investigation - would have refused an older lady’s request to go to the washroom no matter how inconvenient it might be to his 20 minute breathalyzer observation period. Also, if, as she says, they prevented her going until after the breath testing was done it seems unlikely that they would have ordered her to keep the door of the toilet open as there would no longer be any need to keep her under observation. The third point of inconsistency between Ms. Dupuis and Cst. Ziemer is on the question of whether she advised him that she was hard of hearing.

Ms. Dupuis testified that she definitely did tell him this as they sat in the interview room whereas Cst. Ziemer did not recall her doing so and had no note that she had told him this. He did say that if there had there been indications that Ms. Dupuis could not hear him he would have spoken louder and confirmed that she was understanding what he was saying; d . Ms. Dupuis’ evidence is internally inconsistent on several points. The first concerns her testimony about her ability to walk steadily on the evening in question. Cst.

Flett thought she appeared to be unsteady on her feet when he ordered her out of her white SUV in the carport at 5057 Easzee Drive. She testified that this unsteadiness was because she had recently had knee surgery and could not walk on uneven ground and, in fact, normally walked with two canes. Yet, it was clear from her cross examination that Ms. Dupuis did quite a bit of walking around the 103 earlier in the evening.

When challenged about this she did say she had been using her canes earlier in the evening but, for some reason left them behind when she picked up her vehicle for the purpose of giving Tom Jones a ride home. However, it is clear from her evidence that even after she picked up her vehicle (and left her canes behind) she still did some walking up and down the road looking for Mr. Jones who, in his intoxicated state, had wandered off. One of her descriptions of this portion of her evening went as follows: “…We were walking at first and the car was parked down by the fence.

He went walking one way and I went walking the other way. It was Brian that found Tom and then I went walking up there too…” Her insistence that the unsteadiness observed by Cst. Flett was due to her inability to walk without her canes lacks credibility in light of evidence such as this. e . A minor internal inconsistency or incongruity is found in Ms. Dupuis’ testimony about whether or not she was afraid of Tom Jones. She testified that she left the Pub to go to Bryan and Carol’s because she was afraid Tom Jones would get in a fight.

Yet, a short while later she went out of her way to drive him, alone, some 5 miles over to his sister’s house in the 108; f . There was a tendency in some of Ms. Dupuis’ answers to provide an astonishing amount of detail about unimportant matters that I would not have thought most people would pay attention to, let alone recall nearly 2 years later. This does give me some concern that Ms. Dupuis was, at times, engaging in an after-the-fact reconstruction of events rather than relating what she actually remembered.

An example of this aspect to her evidence is found in the following extract on cross examination where she is describing an apparently unimportant detail, namely, what she did with the beer can Tom Jones had in his possession: “So you hid it, you threw it?

Yeah, into Rita’s yard and she knew the next day that I had thrown it, she found it and she knew where it had come from because they all knew that Tom had taken off.” Another example is the following exchange, also on cross examination, about what, if anything, she had to drink at the pub: “Did you have anything to drink at the pub - I took a sip of pear cider as I said earlier but I can’t drink it as I get heart burn, I don’t like it and that was it and I gave it back to Shawna the bartender and Bev had won Kato [ph] and she bought us all a drink and she got me a pear cider and I gave it back to Shawna and I didn’t drink anything else.

Nothing.”

[ 24 ] In light of these external and internal inconsistencies, Ms. Dupuis’ evidence fails to establish on a balance of probabilities that Cst. Flett failed to advise her of the availability of 24 hour free legal advice. [ 25 ] It is certainly true that this whole issue of whether the proper s. 10(

b) information was provided or not would have been beyond argument had Cst. Flett audio recorded his dealings with Ms. Dupuis. However, it is not a requirement of the law that he do so. Nor does the fact that he did not do so strike me as necessarily suspicious or as an indication that he is trying to cover up a failure to do his job as it concerns the Charter. He did make a note in his notebook that he had provided the Charter advice from his card on the two occasions and there is simply insufficient evidence to establish that his notes are not an accurate reflection of what occurred. [ 26 ] As for whether Ms.

Dupuis’ failed to hear the Brydges advice, Ms. Dupuis was unsure whether she had actually ever said anything about her hearing difficulties to Cst. Flett. She was certain, however, that she had mentioned it to Cst. Ziemer as they sat in the interview room. Both Cst. Flett and Cst. Ziemer testified that they had no recollection of Ms. Dupuis saying that she was hard of hearing. Nor did they recall her asking them to clarify or repeat what they said. Cst.

Ziemer said that if he had received an indication that she was not hearing him he would have adjusted his behavior – by speaking louder and confirming that she was understanding what he was saying. This seems to me to be the likely – almost instinctive - response of any reasonable person. There is simply insufficient evidence here to satisfy me that Csts. Flett and Ziemer failed to respond in the normal way people usually respond if conversing with someone who is hard of hearing. [ 27 ] In

summary on the s. 10(

b) point, I find that the evidence fails to establish that Ms. Dupuis’ s. 10(

b) rights were violated in the course of this investigation. 1.2.2 Sections 7 & 9 [ 28 ] It is argued that the violence with which Cst. Flett accosted and arrested Ms. Dupuis amounts to a violation of her s. 7 right to life, liberty and security of the person, and further, that he had various improper motives for arresting her and thereby violated her s. 9 right to be free from arbitrary arrest or detention. R. v. Cornell, 2010 SCC 31 , and R. v. Mori, 2012 ONSC 3433 are cited. [ 29 ] I find that after pursuing Ms.

Dupuis’ white Ford Explorer from the scene of the collision with the parked car – as I explain later in these reasons I do find that Ms. Dupuis side-swiped Mr. Capenhurst’s car – Cst. Flett rushed up to her driver’s side window and started shouting orders such as “Take the keys out of the ignition!” and “Keep your hands on the dash!” as Ms. Dupuis has said. I accept the sincerity of Ms. Dupuis’ evidence that this was a terrifying experience for her. [ 30 ] Ms. Dupuis says that Cst. Flett also pulled his sidearm and pointed it at her. Cst. Flett denies doing this. [ 31 ] Ms.

Dupuis’ evidence about the sidearm is somewhat ambivalent. The following was her evidence on the point during examination in chief: “…I took it that it was a police officer and he came running up beside the vehicle and I was just about to roll the window down and he said “don’t touch that window!” “don’t open the door!” with something in his hands out front and something black in his hand . I was positive it was a gun. My ex husband used to have a revolver.

That is how he would hold his gun otherwise I would never have guessed what it was .” … “…I looked up and he put the gun away or whatever he had in his hand was not there and he opened up the door and said “Get out!”. And on cross examination: “I am in the car. Flett is standing right beside my car with his hand pointed at me like this . Your window is up – yes You are not looking at the gun that you say Flett is pointing at you – I took a quick look at the gun. The gun was right there .

I had my hands on the dashboard and was looking to the side at the gun.” … “Why did you think you were in trouble – well why were the police after me?! I didn’t know, but the way Flett came running up with his gun, screaming. To me it was a gun . I said “what have I done” and he said “you don’t know what you have done!” … “Then another officer came up to the passenger side and then Cst. Flett says “get out”?

No, he said “take keys out of ignition” and I said “I can’t” and he said “take the keys out” and I did nothing as I was scared terrified and he said “take your hands off the dash and take the keys out” and he put the gun away . Whatever it was in his hand .

I was petrified to take my hands off the dash as this was a very angry young man.” [ 32 ] From the emphasized portions it will be seen that sometimes Ms. Dupuis speaks about “the gun” and other times she speaks about “whatever it was in his hand”. She also refers once to an object in Cst. Flett’s “hands” (plural) and three times to it being in his “hand” (singular). This hint of uncertainty about just what it was she was seeing may be because it was hard for her to get a clear view of what Cst.

Flett was doing given that she was seated in the driver’s seat facing forward and he was approaching from the back, on her left side. Also, it appears her driver’s side window was rolled up at the time. [ 33 ] In my view, the evidence is not sufficient to establish on balance of probabilities that Cst. Flett did pull his sidearm when he initially approached Ms. Dupuis’ vehicle. [ 34 ] However, if I am wrong about this, I still do not think that the actions described by Ms. Dupuis amount to a violation of her s. 7 right. It must be remembered that in the mind of Cst.

Flett he was approaching the driver’s window of a vehicle that had just collided with a parked car, fled the scene and refused to stop over a distance of more than ½ a km in response to urgent police signals (siren and lights) to do so. He thought at one point, as he pursued it, that the driver’s door of the Explorer had come open and that the driver was going to jump out and make a run for it. His adrenalin was, no doubt, running high and I think he assumed he would find a very different sort of person behind the wheel of the Explorer than he did. On Ms.

Dupuis’ evidence, he put “whatever he had in his hand” away very quickly after he was able to see who he was dealing with. [ 35 ] Bearing all these circumstances in mind I cannot find that if Cst. Flett deployed his firearm in the way Ms. Dupuis alleges it has been established that it constitutes such a gross misuse of force as to amount to a violation of Ms. Dupuis’ s. 7 Charter right. [ 36 ] It is also argued that Cst. Flett arrested Ms. Dupuis on various false grounds and thereby violated her s. 9 Charter right to be free from arbitrary arrest or detention. Mr. Wool argues that Cst. Flett arrested Ms.

Dupuis simply as a way of (

a) justifying his own use of force and overreaction (assuming she had collided with the parked car when she had not, deploying lights and siren, running up to her vehicle and screaming commands at her even though she had come to rest in a carport and clearly could drive no further, pulling his sidearm and generally terrifying her and treating her rudely and abruptly), and (

b) getting even with her for smashing into the volunteer fireman’s private vehicle. [ 37 ] I cannot find that the arrest of Ms. Dupuis was arbitrary. Cst. Flett testified that shortly after telling her to get out of her vehicle and walk to the back bumper he formed the opinion that her ability to operate a motor vehicle was impaired by alcohol. He had reasonable grounds for this belief on the evidence I have heard. He had observed what he believed was a collision between Ms. Dupuis’ vehicle and a parked car, her vehicle then left the scene without stopping and drove erratically.

She failed to stop in response to his lights and siren. She appeared to be unsteady on her feet as she walked along the side of her vehicle in the carport. She had a flushed face and an odour of liquor from her person. [ 38 ] The fact that there may be innocent explanations for some of these symptoms such as the erratic driving (broken tie rod end), failure to stop (deafness), unsteadiness on feet (knee injury) does not change the fact that, at the time, Cst. Flett was not aware of those alternative explanations for any of the symptoms.

In his subjective view there were reasonable grounds to make the breath demand and in my view, his grounds were also objectively reasonable given the information available to him at the time. [ 39 ] Because he had grounds for a breath demand, his detention of Ms. Dupuis was not arbitrary. As for whether he should simply have detained her rather than arresting her, I cannot find that it has been established that Cst. Flett acted in excess of his authority under s. 495 of the Criminal Code in deciding to arrest Ms. Dupuis.

He believed, on reasonable grounds, that she had fled the scene of an accident and that she was trying to evade his pursuit. In those circumstances, he had reasonable grounds to believe that arrest was necessary to “...prevent the continuation or repetition of the offence...” (s. 495(2)(d)(iii)). 1.2.3

Section 8 [ 40 ] To the extent that Cst. Flett’s conduct towards Ms. Dupuis at the time of her arrest engages her

section 8 Charter right to be free from unreasonable search and seizure I find that the evidence falls short of establishing a breach of this right. My reasons are the same as those set under the “ Sections 7 & 9” analysis above. I find that Cst. Flett was not acting on mere suspicion – he sincerely believed that Ms. Dupuis had collided with the parked car, left the scene, driven erratically and tried to evade the police. This subjective belief is objectively reasonable based on the information available to him at the time. I agree that jumping out of his police truck and running up to Ms.

Dupuis’ window shouting commands proved to be an overreaction. However, I cannot find that this would have been obvious at the time. If he drew his sidearm – and I have found that the evidence falls short of establishing that he did – there was some basis for doing so, given what he had observed up until the point he was able to get a clear view of the person behind the wheel and see that she was responding to his commands and was not going to drive any further. I find that R. v.

Mori 2012 ONSC 3433 has no application on the facts of this case. [ 41 ] The other potential s. 8 issue which I believe may exist in this case is with respect to the taking of breath samples from Ms. Dupuis. It is argued that the Crown has failed to prove that Cst. Flett had the necessary reasonable grounds for a breath demand. As I said in ¶ 38 above, I find that Cst. Flett did have proper grounds for the breath demand and therefore it has not been established that the taking of breath samples constituted an unreasonable search and seizure. 2.

Analysis of Each Count 2.1 Impaired Driving [ 42 ] In the case of count 1, Impaired Driving, the element that is in issue is impairment – whether the Crown has proved beyond a reasonable doubt that Ms. Dupuis’ ability to operate a motor vehicle was impaired by alcohol to any degree from slight to severe. After listening again to the evidence in this case, I have concluded that that this element has been proved beyond a reasonable doubt. [ 43 ] In arriving at this conclusion it has been necessary to make certain findings on disputed factual issues.

[ 44 ] The first and most contentious issue is whether or not Ms. Dupuis actually side-swiped Mr. Capenhurst’s small blue car with her white Ford Explorer. Ms. Dupuis insisted in her testimony that, although she heard a loud “bang” and felt the front end of her vehicle drop down, she did not strike anything with her vehicle except perhaps the pavement (when the front end dropped down).

She insisted that she did not collide with, or run over, anything. (The defence theory is that the loud “bang” and the dropping down of the front end of her vehicle were caused, not by a collision, but by the severing of a piece of metal that connects to the tie rod end on the driver’s side and is a key component of the steering mechanism in Ms. Dupuis’ vehicle – see Exhibit 9) [ 45 ] It is argued that the physical evidence supports the view that there was no collision – or, at least, that the lack of physical evidence along with Ms.

Dupuis’ denials should leave the court with a reasonable doubt on this factual issue. [ 46 ] It is certainly correct that there was no physical damage to the front of Ms. Dupuis’ Ford Explorer (see photographs, Exhibit 8) other than a black scrape mark on the driver’s side of the wraparound fender (photo # 10) . As well, although Cp. Pelley was not called to testify, I am prepared to find on the basis of Cst. Ziemer’s evidence (he watched while Cpl. Pelley conducted an examination of the Explorer), that there was no blue paint from the car found on the body of Ms. Dupuis’ Explorer. [ 47 ] Despite Ms.

Dupuis’ denial of any collision and despite the lack of physical evidence on Ms. Dupuis’ vehicle I do find that the evidence, as a whole, proves beyond a reasonable doubt that a collision occurred. [ 48 ] There are several factors that lead me to this conclusion. First, Ms. Dupuis’ insistence during her testimony in court a year and a half after the event that there was no collision is seriously undermined by her statements to Cst. Ziemer, made within a couple of hours of the event. At that time she stated: “I thought I hit something on the road. I felt something.

I thought I ran over something.” [ 49 ] This is a clear admission by Ms. Dupuis that she thought she had hit something or run over something. If she did not know it for sure, it is obvious from what she said that she strongly suspected it. That is the clear meaning of what she said to Cst. Ziemer and it seriously undermines the credibility of her later insistence that she did not hit anything and did not even suspect that she had hit or run over anything (other than the pavement). [ 50 ] I remind myself of the direction in R. v. W.D. If I find that Ms.

Dupuis’ denials in court regarding the collision are true then I must find in her favour on this point. Even if I do not believe her but her evidence leaves me with a reasonable doubt then I must also find in her favour on the issue. If I neither believe her, nor am left with a reasonable doubt by her evidence on the point, then I must ask myself, on the evidence I do accept, whether the Crown has proved beyond a reasonable doubt that Ms. Dupuis did collide with the parked car.

Finally, I remind myself that if I find all of the witnesses who testified on this point believable, or if I don’t know who to believe, then I must resolve the uncertainty inherent in such a position in favour of Ms. Dupuis’ version of events. [ 51 ] In light of her comments to Cst. Ziemer shortly after the incident I do not believe Ms. Dupuis when she now says that she did not collide with anything or did not suspect she had collided with anything. [ 52 ] As for other evidence in the case on the issue of whether or not there was a collision, there is the lack of physical evidence on Ms.

Dupuis’ vehicle which I have already referred to. But against that there is the evidence of what, I conclude, are three eye witnesses to at least the latter phases of the collision: Bruce Sarvis, Cst. Flett and Cst. Ziemer. [ 53 ] Mr. Sarvis was standing on the south shoulder to the east of the scene involving the injured cyclist. He testified that although Ms. Dupuis approached the scene rather quickly causing him some anxiety, she did slow down and move into the south lane to go around the scene in response to his signals. However, unlike other vehicles that he had signaled through, Ms.

Dupuis did not return to the north lane after going around the emergency vehicles. She continued to drive close to the south shoulder and remained in the south lane longer than other vehicles that had passed through the scene. Then he heard a very loud “crash” and turned to see Ms. Dupuis’ vehicle driving away emitting a very loud grinding noise. Mr. Sarvis agreed that he did not see the actual impact but he did see the two vehicles immediately afterwards. The inference he drew from the position of Ms.

Dupuis’ vehicle immediately prior to the loud “crash”, the loud “crash” itself, the position of her vehicle immediately after the loud “crash”, and the very loud grinding noise her vehicle was making as it drove away, was that the her vehicle had collided with the parked car. [ 54 ] Cst. Flett was standing in the north lane between the back of the ambulance and the front of his police truck. (See Exhibit 4 ). He was helping the ambulance attendants do up the last straps to hold the injured cyclist on the gurney in preparation for loading in the ambulance. He observed Ms.

Dupuis’ white Explorer go past in the south lane. He testified that the vehicle was travelling erratically - lurching left (south) then right (north) then left (south) again and then there was a very loud “smash”. Initially he insisted that he had observed the entire collision.

However, cross examination was effective in demonstrating that what he recorded in his report made shortly after the incident suggests that his view of the parked car was blocked by the back of the ambulance and that it was not until after he heard the loud “smash” that he ran around from behind the ambulance and observed what was going on over on the south shoulder, somewhat to the west of his position. He testified that saw the front driver’s side of the white Explorer riding up the side of the blue car and then come off it with a bouncing motion and drive away. Like Mr. Sarvis he recalls Ms.

Dupuis’ vehicle emitting a loud shrieking or grinding sound as it drove off. [ 55 ] Cst. Ziemer was standing close to Bruce Sarvis, the flag man, when Ms. Dupuis drove through the scene. He said she was coming very fast but did slow down in response to Sarvis’ signals and did proceed successfully into the south lane to get around the emergency vehicles and the injured cyclist in the north lane. He recalled commenting to Sarvis that the driver appeared to be having trouble steering.

He then heard a very loud “crash” and, like Sarvis and Flett, immediately got in position to look off to the west in the direction of the sound. He described what occurred from there as follows: “… the white SUV was up against a blue car parked on the shoulder of the east bound lane to the opposite end of the scene and this white vehicle was up against that blue car and I would use the word “peeled” itself off that car and continued west bound on Easzee Drive.”

[ 56 ] I find that Mr. Sarvis saw Ms. Dupuis’ vehicle immediately after the collision and that Csts. Flett and Ziemer saw it during the latter phases of the collision as it was “peeling” its front, driver’s side wheel off the blue car and landing with a bouncing motion on the pavement before continuing on its way.

I find that a collision did occur as these witnesses observed (in the case of Flett and Ziemer) and inferred (in the case of Sarvis). [ 57 ] Further, I find that the physical evidence on the blue car, if it does not positively support the testimony of these three witnesses is, at least, not inconsistent with those witnesses. The rim of the driver’s side front wheel of the blue car was bent back by some tremendous force moving from the east to the west: Exhibit 3, photos 3 & 4. East to west was Ms. Dupuis’ direction of travel.

There are smears of a dull white or grey substance at various locations along the driver’s side of the blue car ( Exhibit 3, photos 4 through 9 inclusive). There is no expert evidence to explain what, exactly, this substance is or how it got there. But, I note that Ms. Dupuis’ Explorer is white in colour and I note also that the outer wall of her front, driver’s side tire appears to be scrubbed off by some sort of friction.

In my view, it can be safely said that the bent rim and the whitish, grey marks along the side of the blue car are not inconsistent with what the witnesses describe – namely, the white vehicle coming up against the side of, and to some extent running up onto and along the driver’s side of the blue car before falling back to the pavement and continuing on its way. [ 58 ] In the previous paragraph I mentioned the bent rim on the front, driver’s side wheel of the blue car. Counsel for Ms.

Dupuis emphasizes that while the way in which that rim is bent would appear to be consistent with the rim coming into contact with a tremendous force moving from east to west, there was other damage on the blue car that is positively inconsistent with the Crown’s theory. He points to photos 8 and 9 of Exhibit 3 which show the hub cap on the back wheel of the blue car pried out and away from the rim at the top and towards the back (approximately the 12 o’clock to 5 o’clock portion of the circle formed by the hub cap).

He argues that this damage is more consistent with a force applied from the west moving towards the east which is opposite to the direction Ms. Dupuis was travelling. [ 59 ] I agree that this damage could be consistent with a force moving from west to east coming into contact with the back hub cap. However, it also seems to me to be consistent with the downwards motion of the Ford Explorer towards the latter part of the incident, something that is described, curiously enough, by both Cst. Flett and Ms. Dupuis herself. Cst.

Flett described the Explorer coming down off the side of the blue car and bouncing on the pavement. Ms. Dupuis, of course, denies hitting the blue car but she does recall that after she heard a loud “bang” the front of her vehicle on the driver’s side dropped down abruptly. [ 60 ] In

summary, I find as a fact that Ms. Dupuis did side-swipe the blue car with her white Explorer more or less in the way described by Csts. Flett and Ziemer and inferred by Bruce Sarvis. I reject her denials on this point because of the admissions she made to Cst. Ziemer in the immediate aftermath of the incident. I cannot make much of the physical evidence given the lack of any expert testimony on the point except to say that it does not appear inconsistent with what the witnesses describe.

Given the way the witnesses describe this rather unusual event – the Explorer running up along the side of, or “peeling” itself off of the side of the blue car – the absence of blue paint and physical damage to the body of the white Explorer does not raise a reasonable doubt on the issue of whether there was a collision. [ 61 ] I will now return to my assessment of whether the evidence proves beyond a reasonable doubt that Ms. Dupuis’ ability to operate a motor vehicle was impaired by alcohol on the night in question.

As I said earlier I do find that this essential element of count 1 is proven to the necessary standard. [ 62 ] I have decided that I cannot put any weight on the evidence about Ms. Dupuis’ driving prior to the collision (approaching at speed, abrupt changes of direction while passing through the scene). She did follow Mr. Sarvis’ signals and did successfully negotiate past the accident scene. As for the abrupt changes in direction and apparent difficulty in steering observed by the police witnesses, Ms.

Dupuis testified that her vehicle was “shimmying” and “wobbling” and “pulling to the left” even before the collision. It is possible that the failure of the steering system Mr. Harden testified to had started manifesting itself prior to the collision with the blue car and that the erratic steering noted by Csts. Flett and Ziemer as Ms. Dupuis drove past them was due to mechanical difficulties rather than impaired ability on the part of the driver. [ 63 ] However, in my view, the collision itself is important evidence of impairment. Mr.

Sarvis testified that other vehicles he waved through the scene returned to the north lane after going around the emergency vehicles but Ms. Dupuis failed to do so and continued “tightly” against the shoulder of the south lane longer than other vehicles had done. As a result, she collided with the parked car. This failure to change back into the north lane once it was safe to do so and the fact that Ms.

Dupuis, apparently, simply did not see the blue car on the south shoulder (when coupled with the evidence about consumption of liquor and other physical symptoms) is important evidence of impairment of the ability to operate a motor vehicle. [ 64 ] Ms. Dupuis’ action in driving away from the scene without stopping is also, in my view, evidence of impaired judgment. Even on Ms. Dupuis’ version of events – failure of a tie rod end – something very dramatic had just happened to her vehicle. She could barely keep her vehicle on the road.

It was emitting a piercing shriek indicating to any reasonable observer that it was severely damaged. Yet, despite all these dramatic indicators, Ms. Dupuis says she decided not to stop and address the problem and ask for help from the several police and firemen who were right there, but rather, to continue driving to her destination which was nearly a kilometre away. As I say, this behavior is an important indicator that her judgment was impaired on the night in question. [ 65 ] I will not take into account Ms.

Dupuis’ erratic driving after the collision with the parked car in the 700 to 800 metres from there to her destination because it may very well be that the tie rod end failed at the same time as the collision with the parked car and that the erratic driving during the latter phase of this incident is more to do with mechanical failure than driver impairment. [ 66 ] There are some physical symptoms in this case. Cst. Flett observed that Ms. Dupuis was unsteady on her feet when she emerged from her vehicle upon his command and walked back towards the back bumper area. For the reasons set out in ¶ 23 (

d) above, I find Ms. Dupuis’ explanation that she was unsteady on her feet because she did not have her canes, lacking in credibility. It does not leave me with a reasonable doubt as to the cause of the unsteadiness observed. I find that Ms. Dupuis was unsteady on her feet because of the effects of alcohol on her balance and bodily coordination.

[67] Cst. Flett also observed that Ms. Dupuis’ face was flushed and that there was a strong odour of liquor about her person. Ms.Dupuis confirms that she did consume liquor in the 4 hours or so leading up to this incident – somewhere between 2 and 3 drinks. [68] As against these symptoms there is the fact that Ms. Dupuis was able to engage in a coherent conversation with Cst. Ziemer andher mood was appropriate to the occasion – quiet and sad. Cst. Ziemer clearly did not think she was highly intoxicated and he evenventured the opinion to her that he was “not sure she would blow over”. [69] In R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 the Ontario Court of Appeal (affirmed by the SupremeCourt of Canada at (SCC), [1994] 2 S.C.R. 478n) famously reminded Canadian courts that proof of the offence ofimpaired driving requires proof, beyond a reasonable doubt, of impairment of the ability to operate a motor vehicle of any degree, fromslight to great. Ms. Dupuis was not highly intoxicated. This is clear from the evidence. However, I do find that it has been provedbeyond a reasonable doubt that her ability to operate a motor vehicle was impaired to at least a slight to moderate degree.

Key pieces ofevidence are, as I have said, the fact of the collision, the fact that she left the scene despite dramatic evidence that something was terriblywrong, unsteadiness on her feet, flushed face and a strong odour of liquor about her person along with her admission of consumingbetween 2 and 3 alcoholic drinks that evening. I find Ms. Dupuis guilty of count 1. 2.2 Over .08 [70] The principle issues with respect to count 2 were the s. 10(

b) Charter issue and the question of whether Cst. Flett hadreasonable grounds to make a breath demand of Ms. Dupuis. [71] I have found that there was no breach of Ms. Dupuis’ Charter rights in this case (see ¶ 15 to 27 above). [72] As for whether Cst. Flett had reasonable grounds to make a breath demand of Ms. Dupuis, there is both a subjective and anobjective component to this. The Crown must prove beyond a reasonable doubt that Cst. Flett had an honest belief that Ms. Dupuis hadcommitted an offence under s. 253 of the Criminal Code and there must be reasonable grounds for this belief: R. v.

Shepherd, 2009 SCC35 at ¶ 17. The court must consider the totality of the circumstances when determining whether grounds for the breath demand existed(¶ 21). The officer need not have anything more than reasonable grounds to believe that the driver has committed the offence; he neednot demonstrate a prima facie case before pursuing his investigation (¶ 23). [73] It was argued that Cst. Flett launched into an ‘Over .08’ investigation of Ms. Dupuis as a way of justifying or covering up hisexcessive and violent treatment of Ms. Dupuis and also as a way of getting even with Ms.

Dupuis for smashing into a car belonging toone of the volunteer firemen. It was argued that there were innocent explanations for the erratic driving he had observed (mechanicalfailure), for her failure to stop (deafness), for the unsteadiness on her feet (weak knees and lack of canes) and for the odour of liquorabout her person (transporting a severely intoxicated friend home after a party) and that Cst. Flett failed to take these things into accountbecause he was engaging in “tunnel vision”. He was determined to arrest Ms. Dupuis for something without regard for the evidence [74] Clearly, Cst.

Flett’s adrenalin was running high as he ran up to the door of Ms. Dupuis’ vehicle and started shouting commands. I have no doubt that he did have to rapidly re-adjust how he was thinking about the matter when he saw that the person behind the wheelwas an older lady who was not trying to run away and who posed no physical threat to him as long as she did not put her vehicle inmotion. I find that his manner with her, was, at least initially, abrupt and verging on rudeness. [75] However, despite these negative aspects of Cst. Flett’s conduct I have no doubt that he had an honest belief that Ms.

Dupuis haddriven erratically, collided with a parked car, fled the scene of the accident, failed to stop for police and that he had observed physicalsymptoms of alcohol impairment in the form of unsteadiness on her feet, flushed face and strong odour of liquor on her person. He hadmade these observations with his own eyes and was not, at that point, aware of any alternative explanations for what he had seen. I findthat he honestly believed that Ms. Dupuis had committed an offence under s. 253. [76] I also find that Cst. Flett’s belief was objectively reasonable.

In fact, as noted when analyzing count 1, I have found onsomewhat similar evidence that the offence of impaired driving has been proved beyond a reasonable doubt. [77] I therefore conclude that the evidence proves beyond a reasonable doubt that Cst. Flett had reasonable grounds to make a breathdemand in this case. [78] I have considered each of the other essential elements of count 2 and find that they too, have been proved beyond a reasonabledoubt. I find Ms.

Dupuis guilty of count 2. 2.3 Hit & Run [79] Counsel focused their submissions regarding this count on the issue of whether or not the Crown had proved that Ms. Dupuis“was involved in an accident with another vehicle”. For the reasons set out in ¶ 44 to 60 above I do find that the evidence proves thiselement beyond a reasonable doubt. Put another way, I agree with Cst. Ziemer when he testified: “There had been an accident; therewas never any doubt of that.” [80] In my view the issue with respect to count 3 is the mental element of whether the evidence proves beyond a reasonable doubtthat Ms.

Dupuis did, “with intent to escape civil or criminal liability, fail to stop her vehicle”, provide information and offer assistance. [81] Ms. Dupuis testified at trial that she drove away without stopping after the loud “bang” and the dropping down of the front ofher vehicle because she believed that her front tire had blown out, not that she had been in an accident. It was implicit in her evidencethat she did not intend to escape civil or criminal consequences. [82] Her evidence on this point would have left me with a reasonable doubt were it not for the admissions she made an hour or twoafterwards to Cst.

Ziemer:

“I thought I hit something on the road. I felt something. I thought I ran over something.” [83] These comments, made while the incident was fresh in her mind, indicate that Ms. Dupuis, at a minimum, strongly suspectedthat she had “hit something” or “ran over something”. I find that, at a minimum, Ms. Dupuis was in a state of willful blindness abouthaving hit or run over something. See R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570. [84] As for whether Ms. Dupuis drove away with the intention of avoiding civil or criminal liability I reject her implicit denial onthis point.

The inconsistency between what she said at trial and her comments to Cst. Ziemer as well as the other factors referred to inmy analysis of credibility found at ¶ 23 combine to undermine the credibility of Ms. Dupuis’ implicit denial. [85] As well, I find it unlikely that Ms. Dupuis would have continued driving had she truly believed that all that had happened was ablow out of her front tire. Help with a blown out tire was available right there. One of the police officers or volunteer firemen couldhave given her and Mr. Jones a ride to their destination or called someone to come and pick them up.

In my view, the reasonable courseof action would have been to immediately pull over, without damaging the tire any further, and ask one of the emergency personnel forhelp, rather than driving nearly a kilometer further to her destination. I reject Ms. Dupuis’ explanation that she did not ask for helpbecause the emergency personnel were too busy. Bearing in mind, in particular, my assessment of the credibility of Ms. Dupuis’evidence, I find that the evidence proves beyond a reasonable doubt that Ms.

Dupuis did not stop and ask for help but instead, droveaway from the accident between her vehicle and the blue car because she was afraid and wanted to avoid the consequences of heractions. [86] I find Ms. Dupuis guilty of count 3. 2.4 Dangerous Driving [87] As I understand it, this count is directed towards Ms. Dupuis’ driving after she left the scene of the accident. Cst. Flett alleges,and Ms. Dupuis acknowledges, that her driving was very erratic during that 700 to 800 metre distance before she brought her vehicle to astop in the carport at 5057 Easzee Drive. Ms.

Dupuis attributes this erratic driving to the failure of a key component of the steeringsystem on her vehicle. She said she could barely keep the vehicle on the road and Mr. Harden testified that it is astonishing that she wasable to do so given that her vehicle had sustained a break in the tie rod end. [88] I am left with a reasonable doubt with respect to two elements of this offence. First, the evidence concerning the broken tie rodend does raise a reasonable doubt. Mr.

Harden lacks credibility due to his extensive criminal record but his evidence about themechanical condition of the vehicle after the incident is sufficient to raise a reasonable doubt as to the cause of the erratic driving. It is atleast possible that it was due to the broken tie rod end rather than to Ms. Dupuis’ level of alcohol impairment or attempts to evade thepolice. [89] Second, the evidence of several witnesses was to the effect that there was very little traffic at that time of night on Easzee Drivethus, I am left with a doubt about whether the driving described by Cst. Flett was, in fact, “dangerous”.

I find Ms. Dupuis not guilty ofcount 4. 2.5 Evade Police [90] Again, this count is directed to the events after the collision. I find Ms. Dupuis not guilty of count 5 because of the evidencethat Ms. Dupuis is hearing impaired and also because of the evidence about the broken tie rod end. Ms. Dupuis testified that she was notaware that Cst. Flett was pursuing her along Easzee Drive in his police truck with emergency lights flashing and siren activated.

I findthat it is possible that her attention was so fully absorbed on trying to keep her vehicle on the road that she did not see the lights behindher and that she may not have heard the siren due to her deafness. 3. Defence of Necessity [91] It is argued that the defence of necessity is available to Ms. Dupuis on the facts of this case. It is argued that it was “necessary”– in fact, a matter of life and death – that she give the very intoxicated Tom Jones a ride home.

Otherwise, he might have been injured orkilled by bears roaming the area or by a vehicle, should he wander out onto the highway. [92] This defence, if available, would have application to counts 1 and 2 (Impaired Driving and Over .08) and possibly also to count3 (Hit & Run). [93] The so-called “defence of necessity” operates as a justification or an excuse for crime.

If the accused is found to be otherwiseguilty, the argument is then advanced that the accused’s actions were justified, or ought to be excused because they were necessary forthe preservation of life. [94] For policy reasons the defence is only available in quite narrow circumstances. See R. v. Perka (1984), (SCC),2 S.C.R. 232 and R. v. Latimer, 2001 SCC 1. To be successful, the defence requires the presence of the following three elements: 1. Imminent peril of some kind; 2. The absence of any legal alternative to the course of action undertaken by the accused; and 3.

Proportionality between the harm inflicted and the harm avoided. [95] The onus of proof is similar to that in a case of self defence. The accused must place sufficient evidence before the court toraise the issue – to give the issue an ‘air of reality’ - and the onus is then on the Crown to disprove at least one of the three elements,

beyond a reasonable doubt. If the presence of even one of the elements has been disproved, the defence is not available. [ 96 ] In the case at bar I find that it is the second element that is problematic for Ms. Dupuis – in my view, the evidence proves that there were other legal alternatives available for the care of Mr. Jones. Knowing that she had been consuming alcohol that evening and should not be driving, Ms. Dupuis could have called Mr. Jones’ sister to come and pick him up or she could have called 911 and reported his location and the fact that he was unable to care for himself due to intoxication. 4.

Summary [ 97 ] In

summary, I find Ms. Dupuis guilty of counts 1 (Impaired Driving), 2 (Over .08) and 3 (Hit & Run). I find Ms. Dupuis not guilty of counts 4 (Dangerous Driving) and 5 (Evade Police). Because of the rule against double jeopardy (‘ Kienapple’ principle), I direct a conditional stay of proceedings on count 1 and a conviction will be registered and Ms. Dupuis sentenced on counts 2 and 3 only. ___________________________ E. L. Bayliff Provincial Court Judge