R v Fourmeaux-Clemens, 2023 MBPC 33

CITATION : R v Fourmeaux-Clemens , 2023 MBPC 33 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) T. Boult ) for the Crown – and – ) ) Lauren Nicole Fourmeaux-Clemens ) A. Pearse ) for the Accused ) ) Delivered: ) June 20, 2023 ALLEN, P.J. [ 1 ] Lauren Fourmeaux-Clemens is before the court charged with Assault with a Weapon and Impaired Operation of a Motor Vehicle. These charges arise from events of September 19, 2021. [ 2 ] The Crown’s case on the Impaired Driving charge rests on evidence called from a number of witnesses.

The evidence as to the charge of Assault with a Weapon rests with the testimony of the complainant who claims that she repeatedly rammed his vehicle with hers. [ 3 ] The accused argues that the Crown has not proven that she was the driver of the car that interacted with the complainant and that Ms. Fourmeaux-Clemens was not intoxicated by alcohol or drugs but was acting in an automatic state, involuntarily brought on by post-traumatic disorder. [ 4 ] The Crown evidence put forward to link the driving behaviour alleged to the accused includes the evidence of Brennon Siumaling.

This witness told the Court that he was driving south on Pembina Highway at about 10:00 p.m. on September 19, 2021, when he noticed a white Honda Pilot swerving in and out of the three lanes on the road. He said that several times the vehicle almost hit the cars that it passed both on the left and right. He said that he observed the Honda, and he noted the car’s licence plate number, for about two to five minutes. He also noted that the subject car turned off Pembina Highway at the perimeter and proceeded north.

He called 911 and reported the erratic driving and the vehicle description to police. [ 5 ] The Crown’s second witness was Kevin Thomas, who said that he was driving north/east on the perimeter sometime after 9:45 p.m. that evening and a white Honda Pilot came up behind him, flashing its lights. He noted the driver to be a woman in her 20s or 30s. he said the car sped up and slowed down, and flashed its lights between 10 and 20 times. He said that at some point the Honda passed him, cutting him off and almost made contact with his vehicle while doing so.

He said that the vehicle continued to speed up and slow down, sometimes driving partially in other lanes and swerving from one lane to another. At this point, the vehicle was approximately 200 metres ahead of him and he observed the erratic driving for one to two minutes. [ 6 ] At some point, the white Honda slowed down and he passed it. That car then again started flashing its lights at him and continued to accelerate up to him and then decelerate. Mr. Thomas then left the perimeter highway and turned north on Lagimodiere Boulevard.

He testified that the white Honda continued up Lagimodiere behind him and that when he stopped at Warde Avenue it rear- ended him going approximately 10 to 15 km/h. He said the car then reversed and smashed into his car again. Further, the driver once again backed up and smashed him again. Mr. Thomas tried to drive away and the white vehicle followed him and hit him again. In the hopes of gaining some security he drove into a Sobeys parking lot, but the white Honda followed him into the parking lot and hit him one or two times.

He said he was moving in the parking lot but the Honda kept after him, hitting him as he moved. [ 7 ] Mr. Thomas then left the lot and headed down Burning Glass Road. The Honda again rear-ended him two to three times on that street as he travelled at between 50 to 60 km/h. He turned onto another street and the white Honda hit him one to two times on that street. In an effort to get away, he turned onto another street and the Honda hit him two more times.

This saga finally ended as the Honda followed him into a turning circle or roundabout, which it failed to navigate, it then went up on the boulevard and hit a concrete post. He then drove to a location nearby and waited for police. Mr. Thomas estimated that his car suffered approximately $5,000 damage. [ 8 ] The next Crown witness was Alfonso Gagliardi, who testified that on the evening of September 19, 2021, he heard a noise outside his house and realized that a white Crossover vehicle had crashed through his fence and was in his yard about 20 feet from him. He made eye contact with the female driver.

On cross-examination, he conceded that the driver could possibly have been a male. He also said that the white car had hit a concrete post that was just outside the turning circle this is beside his property. This appears to be the turning circle described by Mr. Thomas in his evidence. [ 9 ] Police arrived at the Gagliardi residence having been told that a white Honda vehicle had driven through a fence. Police were

dispatched at 10:10 p.m. that evening. Police testimony from Cst. Nathan Dunning noted that the fence was damaged and a concrete light standard had been knocked over. He also testified that it was clear that a vehicle had driven through the pole and then into the fence. [ 10 ] Cst. Dunning said that when he was talking to Mr. Gagliardi, he received word that the police helicopter surveillance unit, Air One, may have located the white Honda. Cst.

Dunning testified that, as directed by Air One, they then went to the nearby Tim Hortons restaurant and located a white Honda Pilot with the licence plate number as earlier provided by Mr. Siumaling. The Tim Hortons was located in the Sage Creek area, approximately one kilometer from the Gagliardi fence. The police officer immediately noted that the Honda had what he described as “massive front-end damage”. [ 11 ] He approached the driver, who was later identified as Ms. Fourmeaux-Clemens, and noted that she had glassy eyes, slurred speech and seemed to have difficulty answering questions.

When asked to provide her keys to the officers, she had difficulty doing so. Police asked her if she had consumed alcohol and she said that she had had two drinks. [ 12 ] When police asked her about the damage to her car she replied by saying, “What damage”. The officer testified that at 22:30, or 10:30 p.m., he formed the opinion that her ability to drive was impaired and he placed her under arrest. The officer noted that the air bag in the vehicle had deployed. Police asked her for her name and she said her name was Lauren but that she did not have her driver’s licence.

Police located her wallet and the licence was in the wallet. [ 13 ] Police located a “mostly empty” beer can under the driver’s seat that police noted still had some beer in it. Police also noted that the can was still cold. Police also found an empty can of a vodka cooler beverage in the car. [ 14 ] Cst. Dunning testified that Emergency Medical Services (EMS) arrived and attended to the accused. He said that she did not wish to cooperate with police and went to the ground, shaking her arms and legs, screaming, throwing a tantrum.

He testified that she was extremely difficult to deal with, screamed at police and would not listen to anything he was trying to say to her. [ 15 ] The officer testified that he read the accused her rights and as to the breath demand she said, “No, I am a member of the bar.” Cst. Dunning said that they left the Sage Creek location at 11:05 and arrived at the Dugald police detachment at 11:16 p.m. [ 16 ] Cst. Alain Hebert also testified. He confirmed his partner’s observations as to damage to the light standard and

section of fence at the Gagliardi residence on Tallgrass Crescent in Sage Creek. He also confirmed finding the Honda Pilot in the drive-thru at Tim Hortons with extensive front-end damage. He confirmed that the licence number and description of the vehicle matched that provided by Brennon Siumaling. [ 17 ] He said that the accused said that she was fine and nothing had happened. The officer testified as well to the accused’s glassy eyes, slow speech and apparent inability to comprehend what they were saying to her.

The officer testified: “As I talked to her I believed that she was impaired by alcohol.” He stated that the vehicle was so damaged that they couldn’t get the driver’s door open. The officer noted that the accused was unsteady on her feet and staggered as she walked. [ 18 ] The officer testified that, at the Dugald detachment, Ms. Fourmeaux-Clemens tried to engage a lawyer but that lawyer indicated that he was unavailable, so she said she would represent herself as she was a lawyer. [ 19 ] He said that he interviewed her for a driver’s check sheet that is normally prepared in these situations.

He said that she told him that she had consumed four White Claw alcoholic drinks at her home earlier that day. She estimated that those drinks were taken between 4 to 6:00 p.m. She also said that she had taken 150 mg of an anti-depressant drug, 24 hours earlier. She told him that the last food she ate was at approximately 10:00 a.m. In the officer’s opinion, she was still suffering from the effects of alcohol when they were working through the check list sometime after midnight. [ 20 ] The Crown also called Denver Sawatzky, a Winnipeg Fire/Paramedic officer. He testified as to his interaction with the accused.

He said that she had slurred speech and walked with an unsteady gait. He said that she was uncooperative with him and was unwilling to answer questions. He also said that she smelled of alcohol from her person. The witness found it unusual that the accused addressed him as “babe”. [ 21 ] He testified that she had abrasions on her chest, which in his opinion were from the seat belt in her vehicle. He said she refused to take a blood sugar/glucose test. The witness testified that, in his opinion, her presentation was consistent with alcohol impairment. [ 22 ] The final Crown witness was Cst.

Brad Sparrow, a camera operator in Air One. He testified that he flew above the Sage Creek area and beyond, searching for a white Honda vehicle with front-end damage and the only vehicle he found that met these criteria was the vehicle in the Tim Hortons’ drive-thru. He testified that he watched the located vehicle until police boxed it in. The witness showed the surveillance video and explained that only recently used or currently running vehicles glowed from the heat of their engines. He said that the drive-thru was about one kilometer from the Gagliardi damaged fence.

He also confirmed that the technology available in Air One was capable of determining that the tire tracks on the Gagliardi lawn had been recently made. [ 23 ] The accused testified and told the Court that she did not really remember her interaction with paramedics. She also said that she has a limited memory of what transpired when she was at the Dugald police station. [ 24 ] She testified that she is on Effexor, anti-anxiety medication, and that she takes it every day in the morning. She denied telling the officer that she consumed four White Claws – she is sure she said only two.

She says that she didn’t address the paramedic as “babe” but admits that she may have. She denied being under stress and testified that she was motivated by fear of an ex-partner who had been abusive towards her. Ms. Fourmeaux-Clemens denied that she swore at police and suggested that they misinterpreted her being emotional as swearing and yelling. [ 25 ] The accused says she has no memory of being told that she was being charged with Assault. She denied that she repeatedly yelled at police that she was a lawyer. She also denied replying to Cst.

Dunning asking her if she wanted a lawyer by saying, “No, I am a member of the Bar.”

[ 26 ] She also testified that she doesn’t have a “lot of memories of the full evening”. As to the events of September 19: [ 27 ] She testified that she had been married and had two children, but her marriage dissipated in 2020 and she began a relationship with a person who became physically abusive towards her. That relationship lasted until May 4, 2021, when she secured a Protection Order. [ 28 ] She detailed a number of abusive incidents, including on an occasion allegedly being strangled.

She also said that she was aware that the abuser was at one point in possession of firearms. [ 29 ] She testified that she has seen a therapist since being charged in September 2021, and has seen psychologist Dr. Michael Stambrook two or three times. Ms. Fourmeaux-Clemens testified that she was so upset as a result of the abusive relationship that she took more than a year off work and that her mother came to live with her for three months. She said that her last memories are of the afternoon, and doesn’t remember anything from the afternoon until she was at Tim Hortons. [ 30 ] The defence also called Dr.

Stambrook. He testified that over many years of practise he has frequently dealt with people suffering from Post-Traumatic Stress Disorder (PTSD). He said that he met with Ms. Fourmeaux-Clemens and that the symptoms she reports are consistent with PTSD. His conclusion was that she has been experiencing PTSD. He also said that she may have experienced a dissociative flashback incident on September 19, 2021. [ 31 ] When cross-examined, the witness said that when he interviewed the accused she denied using drugs or alcohol on September 19.

The witness also testified anyone on anti-anxiety medication should not be consuming alcohol. He also said that he was concerned Ms. Fourmeaux-Clemens reported an unusually large number of the possible symptoms of PTSD and that this causes concern as to possible subterfuge. [ 32 ] He testified that PTSD symptoms do not look like alcohol impaired symptoms; that if she was in a dissociative state, that it is unlikely that she would have been in such a state throughout the entire episode as they don’t normally last that long. [ 33 ] On cross-examination, the witness acknowledged that Ms.

Fourmeaux-Clemens’ behaviour could have been the result of alcohol use rather that a dissociative state. He also said that it would be unusual for a PTSD episode to result in longer frames of memory loss. Finally, he said that it would not be typical for PTSD to result in aggression.

Analysis [ 34 ] To establish a conviction for Impaired Driving, the Crown must show that the accused person’s ability to drive has been impaired by alcohol or drugs. [ 35 ] In this case, The Crown argues that the driving observed by Brennon Siumaling and described by Kevin Thomas, and by the physical signs of impairment observed by the two attending police officers and the EMS fireman, establish that Ms. Fourmeaux-Clemens was impaired. [ 36 ] The accused argues that the Crown has not proven that the driving witnessed on Pembina Highway and the Perimeter Highway can be linked to the accused. Neither Mr.

Siumaling nor Mr. Thomas could identify the accused. [ 37 ] I am satisfied that it was the accused’s vehicle that Mr. Siumaling witnessed being driven erratically on Pembina Highway and that it was also her vehicle which rammed into Kevin Thomas’ repeatedly. [ 38 ] Mr. Siumaling testified that the erratically driven car was a white Honda Pilot and he gave police the licence plate number. I am satisfied that this information establishes that the vehicle he spoke of is the vehicle Ms. Fourmeaux-Clemens was found in at the Tim Hortons drive-thru.

That puts the white Honda Pilot on the Perimeter Highway in the same time frame as noted by Mr. Thomas. Additionally, Mr. Thomas’ evidence described his pursuer hitting a pole and leaving the road. This connects to Mr. Gagliardi’s evidence that the driver of the white Honda crossover was likely a female and puts it in close proximity to the Tim Hortons where the accused was located. [ 39 ] As well, the evidence of the camera operator from Air One and the video exhibited in court, established that there were no other similar vehicles in the area of the Gagliardi broken fence.

Further, the damage found on the accused’s vehicle was consistent with Mr. Thomas’ description of the repeated bashing of the Honda into his vehicle. I am satisfied that the vehicle being driven by the accused in the Tim Hortons drive-thru is the vehicle that was observed on Pembina Highway and that repeatedly smashed into Mr. Thomas. [ 40 ] Ms. Fourmeaux-Clemens testified but at no point said that she lent her vehicle to anyone else. It is also noteworthy that the EMS officer testified that the accused had abrasions on her chest which appeared to be caused by her seat belt.

In my opinion, these abrasions would be evidence consistent with Ms. Fourmeaux-Clemens’ vehicle being repeatedly rammed into Mr. Thomas’ car. As would the fact that the air bag safety device in her car had been deployed. [ 41 ] I am satisfied that the only reasonable conclusion to be drawn from the evidence heard at trial, is that the vehicle as described by the various witnesses in this trial was the same white Honda Pilot that Ms. Fourmeaux-Clemens was found in at the Tim Hortons drive-thru.

I am also satisfied that the evidence at trial establishes that the accused was in care and control of that vehicle throughout the relevant times. [ 42 ] On the issue of impairment, the police reported that Ms. Fourmeaux-Clemens was confused, unsteady on her feet and had slurred speech. The EMS officer smelled alcohol coming from Ms. Fourmeaux-Clemens. Both officers and the EMS officer believed that she was impaired by alcohol. Additionally, Ms. Fourmeaux-Clemens had difficulty getting out of the vehicle and was unaware that her vehicle had been damaged.

When asked what happened, she said “nothing”, which appears to indicate that she wasn’t aware that the air bag had gone off.

[43] Where the evidence of the accused conflicts with that of the officers or the EMS official, I accept the evidence of the officers. Ido so because the accused acknowledged that her memory of the events of that evening is not clear. As to the events at the Dugalddetachment, she said she has almost no memory. Additionally, I found the accused’s testimony to be evasive. She seemed to be wary ofadmitting to any suggestion made to her on cross-examination, even as to something as non-contentious as owning the white Honda Pilot.I found that Ms.

Fourmeaux-Clemens remembered some things, such as she is sure she drank nothing but two White Claws, but cannotremember other things, such as what time she left her home or where she went. I do not accept that the officers’ observations as to herbeing unsteady could be attributable to her not having shoes. I accept the officers’ testimony that she was on the ground screaming,crying and swearing. I find her explanation that they misinterpreted her being emotional as to why they described her as being “next-level out of control” to be implausible.

Officer Dunning described her as being out of control “on another level from anything [he] hadever seen”. Additionally, the EMS officer said she was entirely uncooperative with him, which was consistent with what the policeofficers said as to their involvement with her. [44] Despite Ms. Fourmeaux-Clemens testifying that she remembers nothing after being in her home in the afternoon in her pajamaswatching television, she told Cst. Hebert, when he questioned her as to filling out an arrest check sheet, he asked where she was comingfrom and she told him she “was coming from home”. As well, she told Dr.

Stambrook that what happened was triggered by seeing animage of her abuser. [45] Dr. Stambrook’s report at page 7 says: “This was Ms. Clemens’ report about what occurred on September 19, 2021 and whereshe had been markedly fearful of her alleged perpetrator and had reported that she had seen his image and, where she was vigilant andhad fearfulness of him.” [46] Turning to the defence position that Ms. Fourmeaux-Clemens was suffering from PTSD at the time of the incident and thisresulted in her being in a dissociative state at the time of this incident.

In this case, the accused argues that as a result of PTSD, sheexperienced a dissociative event and consequently was not acting voluntarily on September 19. The Supreme Court in the case of R vFontaine, 2004 SCC 27, said at paragraph 54: In the case of “reverse onus” defences, such as mental disorder automatism, it is the accused who bears both the persuasive and theevidential burdens.

Here, the persuasive burden is discharged by evidence on the balance of probabilities, a lesser standard than proofbeyond a reasonable doubt. [47] As to what constitutes the defence the Supreme Court in R v Brown, 2022 SCC 18, at paragraphs 46 to 48, said the following: The defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence (R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1321; R. v. Parks, (SCC), [1992] 2 S.C.R. 871, at p. 896).

Involuntaryconduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks the capacity toanswer for what they did (J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007), at p. 142). Aphysically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused.

Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or "external" shock, or conditionssuch as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v. Attorney-General forNorthern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey, at p. 523). Physical voluntariness is a principle of fundamental justice and arequirement of all true criminal offences, central to the criminal law's desire to avoid convicting the morally innocent (Daviault, at p. 74;R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46-47; R. v.

Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 45).Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt (R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, at pp. 17-18). This is distinguished from moral involuntariness, which describes scenarios where theaccused retains conscious control over their body but has no realistic choice but to commit a guilty act (Ruzic, at para. 44). In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary.

Where an accused has no consciousawareness of their movements, they necessarily cannot intend their involuntary acts. Imposing criminal liability in the absence of proofof fault also offends the principles of fundamental justice (Motor Vehicle Reference, at pp. 513-15). [48] The question for the Court is whether the accused’s behaviour was legitimately triggered by a flashback memory of abusewhich resulted in her behaving in an involuntary manner, or whether her behaviour resulted either from alcohol consumption or amixture of alcohol and medication. [49] I have a number of concerns as to Ms.

Fourmeaux-Clemens’ description of her mental status on the day in question. On the onehand, she says she cannot remember even leaving her house, yet she argues strongly that she only had two drinks and not four as she toldone of the officers who prepared the impaired check list. She also says she remembers nothing but she appears to have told Dr.Stambrook she thought she saw her abuser that day. I also found the accused guarded in her evidence.

She answered nearly, if not all,questions with long explanations, even in situations where simple explanations would have sufficed. [50] The officers reported typical signs of intoxication such as glassy eyes, slurred speech, and in the case of the EMS officer, thesmell of alcohol. The officers found a cold can of beer under her seat with some alcohol in it. She explained this by saying it may havebeen cold because of the air conditioning in the car. She was asked about stumbling on cross-examination and attributed that to PTSD.She acknowledged to Dr.

Stambrook that during her relatively recent marriage she and her husband over-consumed alcohol. [51] Dr. Stambrook said that individuals suffering from PTSD can have episodes of dissociation, but normally of shorter durationand not repeated. The psychologist also stated that there can be significant consequences to mixing anti-anxiety medication and alcohol. [52] In this case, the accused testified that she took her medication in the morning and consumed alcohol in the afternoon. She toldCst. Hebert at the Dugald detachment that she had four White Claws. She says she had two.

When she was interviewed by Dr.Stambrook she denied any recall of using drugs or alcohol on September 19. [53] It is also noteworthy that the psychologist voiced some concern as to Ms. Fourmeaux-Clemens claiming so many PTSD

symptoms. His concern was that this might reflect her being less than forthright. He also stated that PTSD symptoms do not look likealcohol impairment symptoms and conceded that her behaviour could have been caused by alcohol rather than being in a dissociativestate. [54] He also said that it is unlikely she was in a dissociative state throughout these events.

If this is the case, then I find itconcerning that she claims no memory of anything from the afternoon until the Tim Hortons drive-thru. [55] Finally, the psychologist said that it would be unlikely for someone in a PTSD state to lose such large time frames of memory.He also said that it would be unusual for a PTSD dissociative state to translate into aggression. The episode of aggression described bythe complainant in this case was protracted. This was extreme aggression.

Anytime someone is employing something as large anddangerous as a motor vehicle to ram another vehicle that is violence on another level. [56] The defence provided several cases in this matter. Some of these cases dealt with tangential issues related to automatism. R vBrown, 2022 SCC 18, was primarily focused on the constitutionality of

section 33.1 of the Criminal Code. R v Blanchard, 2019 SCC 9, [2019] 1 SCR 486, dealt with concerns as to the Quebec Court of Appeal questioning the availability of an automatism defencewhen that issue had been conceded at trial. R v Fontaine, 2004 SCC 27 , [2004] 1 SCR 702, dealt with the trial judge’s refusalto put the defence of automatism to a jury. R v Graveline, 2006 SCC 16 , [2006] 1 SCR 609, again involved the handling of thelower court trial. [57] The case of R v Hotte, 2006 SCC 8, was put before the court. The Supreme Court in that case adopted the reasons of Doyon,J.C.A. of the Quebec Court of Appeal.

That decision found that the automatism defence is not founded alone by the fact that the accuseddid not remember events, or from rage felt toward a victim or from the fact that the victim was the event’s trigger. The Hotte decisionquoted favourably from the Bastarache, J. decision in R v Stone, (SCC), [1999] 2 SCR 290 from the Supreme Court ofCanada. That case says the following at paragraph 184: In addition to an assertion of involuntariness, the defence must present expert psychiatric evidence confirming its claim.

See for exampleBratty, supra, at p. 413; Falconer, supra, at pp. 250-57 and 266; Daviault, supra, at pp. 101 and 103; Rabey (S.C.C.), supra, at p. 552, perDickson J. Even the appellant in the present case concedes that in the absence of such psychiatric evidence it is unlikely that he couldsatisfy his evidentiary or proper foundation burden. [58] Further, the Stone case goes on at paragraph 186 and 187: Although cases involving claims of automatism do not deal with complex chemical reactions or the like, they do require judges to assessconfusing and often contradictory psychiatric evidence.

In particular, when determining whether the evidentiary burden for automatismhas been satisfied, trial judges must be careful to recognize that the weight to be given to expert evidence may vary from case to case. Ifthe expert testimony establishes a documented history of automatistic-like dissociative states, it must be given more weight than if theexpert is simply confirming that the claim of automatism is plausible. In the former case, the expert is actually providing a medicalopinion about the accused.

In the latter case, however, the expert is simply providing an opinion about the circumstances surroundingthe allegation of automatism as they have been told to him or her by the accused. Trial judges must keep in mind that an expert opinionof this latter type is entirely dependent on the accuracy and truthfulness of the account of events given to the expert by the accused.Indeed, in the present case, Dr.

Janke, the defence psychiatrist, qualified his opinion by noting that it was based almost exclusively onthe accuracy and truthfulness of the appellant's account of events: I think that, that when, in offering the [expert psychiatric] opinion, it is, in this circumstance, it's contingent upon the person beingaccurate in representing what they recall from that event. There are circumstances where you do have other witnesses who can give yousome supportive evidence, but in this situation, you have to rely on a person. If they're not telling the truth, then the opinion is worthless.

In order to satisfy the evidentiary or proper foundation burden, all cases will require an assertion of involuntariness and confirmingpsychiatric evidence.

However, this burden will generally require more than an assertion of involuntariness on the part of the accusedaccompanied by confirming expert evidence that automatism is plausible assuming the account of events given to the expert by theaccused was accurate and truthful. [59] Justice Bastarache set out in the Stone case to provide guidance on the nature of relevant evidence to establish a defence ofautomatism (see para 187). [60] Included in his relevant evidence list is the following (at para 188): “With reference to psychological blow automatismspecifically, I agree that the defence will generally have to provide evidence of a trigger equivalent to a ‘shock’ in order to satisfy itsevidentiary burden.” [61] In the case at bar, Dr.

Stambrook in his report says the accused said she thought she saw her abuser when driving and thattriggered her. At trial, when she testified she said she remembered nothing from some point in the afternoon. [62] Justice Bastarache also speaks of the importance of corroborative evidence. As such, he says evidence consisting ofdocumented medical history of dissociation related to automatism would be useful evidence.

He says that although this evidence is notnecessary to discharge the evidentiary burden, the absence of such evidence is also a relevant factor in determining whether the defencehas discharged the requirement (see para 189). [63] Justice Bastarache adds that witnesses who can corroborate the accused’s appearance, before, during or after the event, and hecites glassy eyes, etc. can be of value. In this case, the officers noted Ms. Fourmeaux-Clemens’ glassy eyes.

This factor leads into anotherof the Bastarache criteria, which is that the adjudicator must also assess whether there could be some other explanation for the accused’sbehaviour. He says at paragraph 191: A question that trial judges should ask in assessing whether the defence has raised evidence which would permit a properly instructedjury to find that the accused acted involuntarily on a balance of probabilities is therefore whether or not the crime in question is

explicable without reference to the alleged automatism. If this question can be answered in the negative, the plausibility of the accused'sclaim of involuntariness will be heightened. Such was the case in Parks, supra, for example, where there was no explanation for why theaccused would attack his "in-laws", with whom he otherwise had a good relationship, except automatism induced by a state ofsomnambulism.

In contrast, if this question invokes a positive response, the plausibility of the claim of involuntariness will be decreased. [64] In this case, the Crown alleges that the accused mixed alcohol and prescription medication and this resulted in intoxication of anature that lead to what they described as an incident of protracted road rage. [65] In

summary, Bastarache, J. says at paragraph 192: To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence mustmake an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion. However, it is anerror of law to conclude that this defence burden has been satisfied simply because the defence has met these two requirements.

Theburden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that theaccused acted involuntarily on a balance of probabilities. In reaching this conclusion, the trial judge will first examine the psychiatric orpsychological evidence and inquire into the foundation and nature of the expert opinion. The trial judge will also examine all otheravailable evidence, if any.

Relevant factors are not a closed category and may, by way of example, include: the severity of the triggeringstimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there isevidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence. Ipoint out that no single factor is meant to be determinative.

Indeed, there may be cases in which the psychiatric or psychologicalevidence goes beyond simply corroborating the accused's version of events, for example, where it establishes a documented history ofautomatistic-like dissociative states. [66] I am not satisfied that the accused has established a sufficient evidentiary basis to conclude on a balance of probabilities thatshe was suffering from automatism. I have questions as to the accused’s credibility and I find that the evidence of Dr. Stambrook is notadequate when related to the facts of this case to establish that the accused’s actions were involuntary.

In his report, he says that it ispossible that she experienced a dissociative incident but then modifies that statement by saying, “However, typically, these dissociativeflashback incidents are relatively brief albeit maybe longer than a few seconds” (report of Dr. Michael Stambrook dated February 27,2023, page 8). When the evidence of Dr.

Stambrook is looked at in its entirety, in my opinion, it is not enough or adequate to establishthat the accused was in an extended dissociative state and acting involuntarily. [67] As with all cases in Canadian criminal law where credibility is at issue, the guidelines provided in the Supreme Court ofCanada case of R v W(D), (SCC), [1991] 1 SCR 742, must be followed. That case lists three steps judges must follow inadjudicating credibility issues: 1. If you believe the evidence of the Accused obviously you must acquit. 2.

If you do not believe the testimony of the Accused but you are left in reasonable doubt by it, you must acquit. 3. Even if you are not left in reasonable doubt by the evidence of the Accused you must ask yourself whether on the basis of the evidencewhich you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [68] In this case, the evidence of the accused does not provide a defence to the Assault with Weapon charge because she says shehas no memory of that episode.

As to the Drive Impaired charge, I do not believe her evidence as to the events of the day in questionbecause of my earlier stated concerns as to her credibility and as to what I believe is her selective memory as to remembering some thingsthat advance her defence and forgetting many other things. In any event, for much of the evidence provided by the officers and the fire-paramedic, she either has no memory or as stated above, she had explanations that I found implausible. [69] As to the W(

D) test’s second stage, I am not left in doubt by her evidence. Further, as stated above, I do not accept that Ms.Fourmeaux-Clemens was acting involuntarily. I am satisfied that the Crown has established that the accused’s ability to operate a motorvehicle at the time of this charge was impaired by alcohol. [70] Accordingly, I find her guilty of count one on the docket, under

section 320.14(1)(

a) of the Criminal Code. [71] As to the Assault with Weapon charge: I am satisfied that the Crown has proven that the accused had care and control of thevehicle that was reported on by Mr. Siumaling and that repeatedly struck the vehicle of Kevin Thomas. [72] Assault is the intentional application of force to another person, either directly or indirectly. Assault with a Weapon is anassault where the perpetrator uses a weapon. [73] I am satisfied that the evidence heard at this trial establishes that the accused assaulted Mr. Thomas and utilized her vehicle todo so. Accordingly, the accused is convicted of count three on the docket under

section 267(

a) of the Criminal Code. Original signed by Judge Allen H. L. ALLEN, P.J.