R. v. St, 2013 NBPC 21

R. v. Stéphanie Mazerolle, 2013 NBPC 21 PROVINCE OF NEW BRUNSWICK File: 04303011 PROVINCIAL COURT HER MAJESTY THE QUEEN v. STÉPHANIE MAZEROLLE Decision following trial delivered by the Honourable Judge Ronald LeBlanc of the Provincial Court, at Bathurst, New Brunswick, onNovember 5, 2013. Ms. Mazerolle was charged under s. 253(1)(

b) of the Criminal Code. Counsel: Mélanie Poirier-LeBlanc, for the Crown Luc Roy, for the defendant [TRANSLATION] 1. In the case at bar, the Court must determine whether a woman in a situation of distress because of her abusive husband may be foundnot guilty of driving while her blood alcohol level exceeded the legal limit, based on the defence of necessity. THE CASE LAW 2. The fundamental principle which governs this defence is set out in Perka v. The Queen, (SCC), [1984] 2 S.C.R.232.

Dickson J. states the following at page 248: It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strictobedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelminglyimpel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they areexcusable. Praise is indeed not bestowed, but pardon is [...] 3. This defence must be restricted to the rare cases where the action was “involuntary”.

It must be “strictly controlled and scrupulouslylimited”, as Dickson J. stated at page 250. Therefore, the defence of necessity has limited application. The Court review involves “apragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely

subjective and unverifiable excuse”: see R. v. Ruzic, 2001 SCC 24 , [2001] 1 S.C.R. 687, at paragraph 61. 4. The elements that must be present for the defence of necessity were outlined in R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R.3, at paragraphs 28-34. I quote some excerpts: 28 Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril ordanger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook.

Third, there mustbe proportionality between the harm inflicted and the harm avoided. 5. With regard to the first element, namely imminent danger, the Court states the following at paragraph 29: 29 To begin, there must be an urgent situation of “clear and imminent peril”: Morgentaler v. The Queen, (SCC), [1976]1 S.C.R. 616, at p. 678. In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable orlikely; it must be on the verge of transpiring and virtually certain to occur.

In Perka, Dickson J. expressed the requirement of imminentperil at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry outfor action and make a counsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement ofimmediate peril: “The requirement . . . tests whether it was indeed unavoidable for the actor to act at all”. Where the situation of perilclearly should have been foreseen and avoided, an accused person cannot reasonably claim immediate peril. 6.

Regarding the second element, to wit, that there was no reasonable legal alternative to disobeying the law, we must determinewhether the accused, who had to act, could have acted to avoid the peril or prevent the harm without breaking the law. Was there a legalway out? The Court states the following at paragraph 30: 30 […] If there was a reasonable legal alternative to breaking the law, there is no necessity.

It may be noted that the requirementinvolves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but hemust have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity on this aspect fails. 7. The third element is that of proportionality: the harm inflicted must not be disproportionate to the harm the accused sought to avoid. The two harms must be of a comparable gravity – the harm avoided must be either comparable to, or clearly greater than, the harminflicted: Latimer, at paragraph 31. 8.

The defence of necessity is rooted in an objective standard – “involuntariness is measured on the basis of society’s expectation ofappropriate and normal resistance to pressure”: Perka, supra, at page 259. The first two requirements must be evaluated on the modifiedobjective standard, while the third one must be measured on an objective standard. 9. The modified objective standard requires the Court to undertake an objective evaluation of the conduct of the accused who was in asituation of peril, while taking into account his particular circumstances and personal characteristics.

When evaluating the conduct of theaccused who was in a situation of peril, the Court must at all times take into account the personal characteristics of the accused. It mustconsider the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action. On this point, at paragraph 33, the Court states that this conduct must always be reasonable: 33. While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should beexcused, those perceptions remain relevant only so long as they are reasonable.

The accused person must, at the time of the act, honestlybelieve, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must bea reasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affectthe accused person’s ability to evaluate his situation.

The test cannot be a subjective one, and the accused who argues that he perceivedimminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given hiscircumstances and attributes […]

10 . It is within this jurisprudential framework that Ms. Mazerolle asks that her illegal action be excused. THE FACTS 11 . In my opinion, the following facts were proved according to the standard applicable to the proof of facts. THE PEACE OFFICERS’ VERSION OF THE FACTS 12 . On June 19, 2011, at 2:15 a.m., Constable François Allaire received a 911 call about an argument between two people at 5008 Route 134, in Allardville, New Brunswick. According to Constable Allaire, two people could be heard arguing on the sound recording of the call. At 2:30 a.m., he called René Mazerolle, the occupant of the residence. Mr.

Mazerolle told him he didn’t understand why the police was answering a 911 call as he had only had an argument with his spouse, who had left afterward. Constable Allaire called Constable Jean-Charles Tessier for assistance. At around 2:40, the officers went to the residence of René Mazerolle and Stéphanie Mazerolle, the accused in this matter. Ms. Mazerolle was not there, and no car was parked in the private driveway. 13 . The officers had some difficulty waking up Mr. Mazerolle, who was sitting in an armchair, apparently asleep, at the back of the house.

They questioned him about the 911 call, asking him what had happened and if he had argued with his spouse. Mr. Mazerolle said that they had argued, but that there had been no physical violence and that she had left. The officers went over the whole house. They did not notice any sign of violence. They did not see anything that would have allowed them to conclude that there had been a fight on the premises. They also noted that nothing about Mr. Mazerolle’s person or clothing indicated that he had been in a fight of any kind. He told them that he did not know who had placed the 911 call.

An odour of alcohol emanated from his breath. He refused to tell the police what kind of car Ms. Mazerolle was driving. 14 . The officers left the residence at around 2:59 and drove north toward Bathurst. 15 . At 3:00 a.m., Constable Allaire observed Ms. Stéphanie Mazerolle’s vehicle, a PT Cruiser convertible. This vehicle was heading south, toward the Mazerolle residence. Ms. Mazerolle was driving the vehicle. He decided to intercept her and signaled Constable Tessier, who was following, to stop her, which he did at 3:02 a.m. They stopped at Club Le Lexus, situated at 4996 Route 134, in Allardville.

The distance between Club Le Lexus and the accused’s residence is about 200 feet. 16 . Constable Allaire asked her what had happened at her home. She said she and her spouse had argued, but that there was no physical violence. She added that she had left the house to let things cool off. She told him that Mr. Mazerolle had placed the 911 call. She was emotional and was sobbing. 17 . Constable Allaire noted an odour of alcohol on her breath. He made the demand to provide a breath sample in an approved screening device, an Alcotest 7410 GLC, for analysis purposes. The device registered an “F”, which meant that Ms.

Mazerolle had been operating her motor vehicle while her blood alcohol level exceeded the legal limit. He read her the breathalyzer demand. She understood everything and said she wanted to speak to a lawyer. Counsel for the defence does not contest the validity of the demands or that the accused was informed of her right to counsel. He even consented to the certificate of analysis (Exhibit C-1) being admitted.

When Constable Allaire informed the accused that he had to transport her to the police station, she said, [TRANSLATION] “What was I supposed to do, stay there until he beat me?” The Constable replied, [TRANSLATION] “You had neighbours.” 18 . After she spoke to a lawyer, Ms. Mazerolle provided two breath samples which showed her blood alcohol content to be 170 milligrams of alcohol per 100 millilitres of blood. 19 . At the police station, Constable Allaire asked her if she wanted to lodge a complaint against her husband. She told him that they had simply argued, that nothing else had happened.

He deduced from this that she had left the house before any physical contact happened.

20 . Constable Tessier testified that four months later, in October 2011, he investigated a spousal abuse complaint lodged by Ms. Mazerolle. At the time, he had taken photographs of Ms. Mazerolle’s injuries. The police initiated proceedings against Mr. René Mazerolle, her husband, for assault. In her statement, Ms. Mazerolle disclosed that she had been the victim of spousal abuse inflicted by Mr. Mazerolle several times in the past. The matter was eventually resolved in Court when Mr. Mazerolle signed a recognizance under

section 810 of the Criminal Code to keep the peace and be of good behaviour toward his spouse. THE ACCUSED’S VERSION OF THE FACTS 21 . Ms. Mazerolle married René Mazerolle on June 30, 2006. They had two children. They separated in October 2009 over Mr. Mazerolle’s excessive alcohol consumption. This separation lasted two years. They resumed living together in April 2011, about two months before the June 19 incident.

During the period from April to June 2011, there was no spousal abuse on the part of her husband, but there were several incidents of spousal abuse while they were living together during the first 3 years of their marriage. Ms. Mazerolle was often abused as a result of Mr. Mazerolle’s excessive alcohol consumption. Ms. Mazerolle describes him as [TRANSLATION] “not the same person” when he drinks to excess, and she says he often did. During these violent incidents, he pushed her around, squeezed her arms and pulled her hair. He never punched her. After he had abused her, Mr.

Mazerolle would leave home on his Rhino, a four-wheel all-terrain vehicle. He could stay away for several days, but he always came back home. 22 . On June 19, at around 8 p.m., Mr. and Ms. Mazerolle went to a camp in the woods in the Saint-Sauveur area. They were there with some friends and relatives, about twenty people. They were driven there by their friend, Jeannie Duguay. They intended to drink, which is why they had left their car at home. In the course of the evening, Ms. Mazerolle consumed about ten bottles of beer and a few “shooters”. She said she was drunk. Her husband had had even more to drink.

In addition to beer, he had consumed hard liquor. She thinks he was more intoxicated than she was. 23 . At around 1:30 or 2 o’clock in the morning, they left the camp to return home. They were again given a ride by Jeannie Duguay. During the trip, Mr. Mazerolle became angry. She could tell by his behaviour and by what he was saying. He was talking to himself and clapping his hands. He was agitated. 24 . Once they arrived home, he started to insult Ms. Mazerolle. His bad temper was caused by his spouse’s behaviour during their separation. During that time, Ms. Mazerolle, as well as Mr.

Mazerolle, had met other people with whom they had been intimate. 25 . Mr. Mazerolle started to talk about the past. He was angry that his wife had met another man. He punched the kitchen island and started to shout. His shouts got louder. He was becoming more and more frustrated. Ms. Mazerolle stated that it wasn’t the first time that her husband had become frustrated over past events. She expected him to become more violent, which made her very afraid. He hit a chair and it fell over. 26 . Ms. Mazerolle went up to her husband, touched him gently and told him to calm down. She was scared.

She felt this situation was worse than the other times when her husband had become violent as he was referring to her having been with another man. At that point, he was enraged. He picked her up, pushed her and threw her to the floor. She fell on her back. He placed himself over her and squeezed her arms, shouting very loudly. She could not remember another similar outburst when he had shouted that loudly. 27 . At that time, Ms. Mazerolle weighed 95 pounds. Her husband weighed around 180 pounds. 28 . She was terrified. While he was holding her, she begged him to let her go.

She shouted at him, [TRANSLATION] “Let me go, let me go, I’m going to call the police”. He replied in a mocking tone, [TRANSLATION] “Would you like me to call the police?” and he got hold of the handset. She did not remember if he had called 911 or not. He did not talk to the police and hung up. As a result, she did not know if he had placed the call or not, nor if he had reached the police. She struggled and managed to escape his grasp. She stood up. 29 . She tried to get out through the patio door, but he caught her again, this time by her hair. He pulled on it and threw her to the ground.

She struggled again, stood up, saw the car keys on the table, picked them up and left the house through the front door. She got into her car and escaped.

30 . She was afraid, alone, stressed out, and her heart beat, as she put it, at 100 miles an hour. She drove to the intersection with Chemin du Lac, which is very close to her home. There is only one house and Club Le Lexus between her home and Chemin du Lac. It took her less than a minute to get there. She parked on Chemin du Lac, the front of the car facing Route 134. Her intention was to hide from her husband. 31 . Ms. Mazerolle stayed there for about 45 minutes. The whole time, she feared the arrival of her husband. He had a Rhino which he himself had used to leave his home after a fight with his wife.

She was afraid he would find her and was in a state of panic. She wasn’t far from her house, her husband was intoxicated, he was angry at her, it was dark, she herself was under the influence of alcohol and she was alone in her car. Her cell phone was in her purse which she had left at home. As a result, she could not communicate with anyone. She debated what she should do. She was not sure. She considered some possibilities: sleep in her car, walk to the neighbours’ house, drive to her parents-in-law’s home, drive to her parents’ home or walk to one of these two residences. 32 .

Finally, she decided to drive to her parents’ house. She left because she thought her husband was going to find her where she was. To get to her parents’ house, she had to drive by her own. 33 . When she got on Route 134, the police cars passed hers in the other direction, and she parked at Club Le Lexus. 34 . She did not tell Constable Allaire the truth when he questioned her regarding the events at her residence. She told him her husband had not assaulted her physically, when that was not the case. She explained that she did not want her husband to be charged.

She had been trying to resume married life for only two months and she wanted her marriage to work. She did not have the courage to press charges against him. He is her children’s father. She wondered what people would think if she had her husband charged. 35 . I accept without reservations the explanations given by Ms. Mazerolle regarding her discussions with Constable Allaire. I am convinced that she was assaulted by her husband and that the events unfolded as she described them. 36 .

Later, at the police station, she showed her bruises to a police officer, but this was the officer who obtained the breath samples and not one of the two officers who testified at trial. She refused to have pictures taken of her injuries. ANALYSIS 37 . Counsel for the Attorney General suggests the Court should consider the three applicable factors as if there had been two separate incidents: what happened at home and what happened 45 minutes later at Chemin du Lac. I agree with this suggestion. If Ms.

Mazerolle was no longer in a situation of peril, or if she had other reasonable options available to her when she left Chemin du Lac 45 minutes after the incident at home, she should not be able to benefit from the defence of necessity. She would no longer be in a situation of peril. I draw this conclusion although the offence she allegedly committed was a continuing one – she had had the care and control of her motor vehicle and operated it during the entire time until the police arrived. Therefore, I will proceed with my analysis by considering the two distinct periods. I. THE EVENTS AT THE HOUSE A .

IMMINENT DANGER 38 . In my opinion, Ms. Mazerolle was justified in driving away from her residence, even in her intoxicated state. She was in imminent and obvious danger in that house. She was facing her husband who was intoxicated and angry about what he perceived as her infidelity. He was much stronger than she was. He was verbally and physically aggressive toward her. He was getting louder and angrier. She initially tried to leave the house without her keys, but he prevented her from doing so by pulling on her hair. In my view, there is no doubt that she had to leave the house to evade him.

Staying there would have led to an escalation of the violence. B . REASONABLE ALTERNATIVES 39 . Ms. Mazerolle’s parents and parents-in-law lived nearby, a few minutes’ walk away. The prosecution submits that she could have

walked to either house. I agree that this was an option, but was it a reasonable alternative in the circumstances? Walking is a much slower mode of travel than driving a motor vehicle. Her husband, who was violent, hostile, in an explosive mood and angry, was very close by. He could very easily have caught her and gone on abusing her. In addition, I must consider the fact that she was intoxicated. Her one idea would have been to flee at all costs. She would not have had the luxury of time to ponder her options calmly and reasonably. She was in the throes of an imminent crisis.

In my opinion, the situation was so urgent and the danger so pressing that no one could fault Ms. Mazerolle for her decision to flee in her car. 40 . Counsel for the Attorney General suggests she could have driven to her parents-in-law’s house, where her children were, or to her parents’ house. I agree that she could have driven to either of these places, but no matter where she drove, she was committing the offence of impaired driving. The wrong to avoid was that of impaired driving. She would have committed this offence wherever she drove.

She chose to drive to a place where she thought her husband would not find her. In her state, considering the situation she was facing at the time, I deem her decision rational, logical and reasonable. 41 . When she fled, her intention was to hide from her husband. She would not have achieved this if she had driven to her parents-in- law’s or her parents’ homes. It would have been easier for her husband to find her, which could have led to more violence. But again, I note that one needs to place oneself in the actual situation that was hers when she got into her car.

At trial, she testified about the difficulties, complications and obstacles facing her if she had gone to her parents’ or parents-in-law’s homes, but I am convinced that, in actuality, she was not thinking of all this when she got into her car. She was in a panic, she had to flee the violence exhibited by her husband and she wanted to hide from him. She decided to park on Chemin du Lac. This was not a thought-out decision, but rather a quick, hurried one. C . PROPORTIONALITY 42 . There is no doubt that the offence of impaired driving is serious and can have grave consequences.

However, in my view, operating a motor vehicle while impaired over a short distance for less than 60 seconds late at night, when there is no traffic on the road, is not as serious an offence as an assault in the context of domestic violence. The two offences are at least comparable. One cannot expect a woman to allow her husband to beat her simply because she has consumed alcohol and her ability to drive is impaired as a result. II. THE EVENTS ON CHEMIN DU LAC A . IMMINENT DANGER 43 . Ms. Mazerolle was subjected to a serious assault by her husband in her home. She had to struggle with him twice to escape him.

She fled because of her honest belief that he was going to keep beating her and that he would use even more force doing it. She was unable to defend herself. No one else could help her. 44 . When she left the house to go to Chemin du Lac, she left her purse and her cell phone behind. She stayed there for 45 minutes. During that time, she was still afraid that he was going to pursue her and catch her, that she had not chosen a good place to hide. She was in a panic because she knew he had the means to find her.

She was trying to calm down, but she was alone in a car at 3 in the morning, without any means of communicating with anyone. She was intoxicated, and this would probably have affected her ability to reason in a sensible manner. 45 . I consider that she was in an ongoing situation of imminent peril on Chemin du Lac. The peril she was facing did not end or cease. Her husband was intoxicated when he abused her. He was no less intoxicated 45 minutes later. He could have found her using his all- terrain vehicle. She was not far from her home. It is true that Mr. Mazerolle did not follow her, but she could not know it.

In her mind, confused and disorganized as a result of consuming alcohol, she was at all times in a situation of peril. In the end, it was this belief that she was in danger that convinced her she had to go to her parents’ house to avoid a confrontation on Chemin du Lac. 46 . The Crown suggests that her perception of imminent danger was unreasonable. I do not agree. Her husband had beat her several times in the past. She had been subjected to incidents of violence. He had left on his all-terrain vehicle after a fight with her before. She had not gone far from her home.

Therefore, in my view, the situation of peril had not abated. B . REASONABLE ALTERNATIVES 47 . The Crown submits that there were alternatives to Ms. Mazerolle driving her motor vehicle to her parents’ home. Among others,

counsel suggests she could have walked to the neighbours’ house or walked to her parents’ or parents-in-law’s houses. 48 . In my view, Ms. Mazerolle, as any reasonable person would have done in similar circumstances, chose to stay in her car because she felt somewhat protected in it. We must keep in mind that Ms. Mazerolle had been subjected to a physical attack on the part of her husband and that this was not an isolated incident. She had the right to protect herself. Her only real protection was the car. Outside of it, she would be more vulnerable. Her situation would be even more precarious.

This was a woman alone in a rural area, in the dark, at 3 in the morning, who had fled a man who had beaten her while intoxicated. She could walk to her neighbours’ house or she could walk to her parents’ or parents-in-law’s homes. But each of these options involved a certain degree of risk and uncertainty. She did not know her neighbours. Walking to her parents’ home or to her parents-in-law’s home would have forced her to pass her own home, and her aggressor could be there. She would also have had to leave her car in which she probably felt safe. 49 . Ms.

Mazerolle’s decision, that which justifies operating a motor vehicle while impaired, must seem reasonable to the public, taking into consideration the circumstances and the personal characteristics of the accused who faced a situation of peril. In my opinion, a reasonable person would not have made a decision to increase her level of peril. Her decision to stay in her car and to drive the short distance to her parents’ home was reasonable, in my view. C . PROPORTIONALITY 50 . I find that the above comments on this point apply as rigorously.

Avoiding a beating by a furious husband is proportional to the offence of impaired driving. The two are at least of a similar seriousness. CONCLUSION 51 . I conclude that Ms. Mazerolle had no other choice than to commit the offence. She was fleeing a husband who beat her. She did not drive very far. She did not endanger anyone’s life. She had no other reasonable alternative than to drive to flee her husband in order to protect herself. Her behaviour was reasonable considering all the circumstances. I therefore find her not guilty of the offence. Signed at Bathurst on this 5 th day of November 2013.

Ronald LeBlanc Judge of the Provincial Court