2018 QCCA 1069, 2018 QCCA 1069

R. c. Blanchard 2018 QCCA 1069 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006240-160 (405-01-031094-138) DATE: June 27, 2018 CORAM : THE HONOURABLE FRANÇOIS DOYON, J.A. JEAN BOUCHARD, J.A. ROBERT M. MAINVILLE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

KATHLEEN BLANCHARD RESPONDENT – Accused JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on August 5, 2016 by the Court of Québec, District of Drummond (the honourable Érick Vanchestein), which acquitted the respondent of one count of failure to comply with an order issued pursuant to s. 254 Cr.C . [ 2 ] For the reasons of Mainville J.A., with which Justice Bouchard concurs, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] REVERSES the trial judgment; [ 5 ] DECLARES the respondent guilty; [ 6 ] RETURNS the file to the Court of Québec for sentencing; [ 7 ] For his part, Doyon J.A., in dissent, would dismiss the appeal on the following grounds of law: 1) The defence of extreme intoxication was available in law; 2) The trial judge made no error of law in applying this defence.

FRANÇOIS DOYON, J.A. JEAN BOUCHARD, J.A. ROBERT M. MAINVILLE, J.A. Mtre Maxime Hébrard Counsel for directeur des poursuites criminelles et pénales For the appellant Mtre Giuseppe Battista Battista Turcot Israel Corbo For the respondent Date of hearing: November 7, 2017

REASONS OF MAINVILLE J.A. [ 8 ] The Crown appeals from a judgment rendered August 5, 2016 by the Court of Québec, District of Drummond (Judge Érick Vanchestein), which accepted the respondent’s defence of non-mental disorder automatism resulting from her advanced state of self- inducted intoxication against an indictment of refusing to comply with the order of a peace officer to provide a breath sample pursuant to subparagraph 254(3) ( a )(

i) of the Criminal Code , thereby committing the indictable offence set out at paragraphs 254(5) and 255(1) of the said Code . [ 9 ] The respondent is a notary. She admits that she frequently consumes alcohol and that she has a criminal record relating to driving while intoxicated, including two previous sentences for impaired driving, one for refusal to submit to a breathalyzer test and one for driving while prohibited from doing so. That the respondent self-intoxicated herself with alcohol on the day in question is uncontested.

Her defence is that she was so drunk that her state of intoxication was equivalent to non-mental disorder automatism. [ 10 ] I agree with the Crown that the judge made a determinative error of law in conflating, for the purpose of the said defence, the intentional and voluntary character of the offence.

Moreover, I am of the same view as the Crown that the defence of non-mental disorder automatism resulting from voluntary self-intoxication from alcohol is not available for the offence at issue. [ 11 ] I would therefore allow the appeal, overturn the judgment below, declare the respondent guilty, and return the matter to the Court of Québec for sentencing. BACKGROUND [ 12 ] On August 25, 2013, around 8:00 p.m., Ms. Chantal Rivard was driving on a country road near Saint-Germain-de-Grantham when she saw the respondent’s car coming directly at her. Ms.

Rivard barely averted a catastrophy by swerving into the left lane in order to avoid a head-on collision. The respondent’s car still clipped the rear rightside of Ms. Rivard’s vehicle, causing material damage and minor injuries to Ms. Rivard. The respondent’s vehicle continued its course, ultimately going off the road a little further along, where it stopped in a ditch. Ms. Rivard stopped her vehicle on the side of the road and called 911 for help. [ 13 ] Ms. Rivard’s husband, Mr. Jean-Denis Chénard, was far behind but ultimately caught up to her.

After having helped his spouse, he approached the respondent’s vehicle. He noted the strong smell of alcohol, that the respondent was confused and that she had difficulty expressing herself. He asked if she was alright and she responded yes. She insisted that he not call 911 or anyone else. [ 14 ] Mr. Gilles Pinard, head of the fire department, arrived on the scene several minutes later. He noted that the respondent’s car engine was still running and that it was in gear. He told the respondent to put the vehicle in park and to turn off the engine. She complied with his instructions.

Shortly afterwards, he turned her over to the police who arrived on the scene. [ 15 ] Officer Yan Pelletier asked the respondent what had happened. She responded that nothing had happened. The Officer could see that she was very intoxicated and he immediately arrested her for impaired driving. He asked her to exit the motor vehicle and he had to help her to do so. She was unable to walk alone and had to be supported to get to the patrol car. She resisted. The Officer informed her of her rights and she stated she had fully understood.

The Officer also informed her that she would have to go to the police station for a breathalyzer test. She responded that she did not wish to go to the station or take the test. She refused to identify herself, claimed not to be carrying any identification, and challenged her arrest. She denied that the vehicle was hers, even though the license plate was registered to Kathleen Blanchard. She denied being Kathleen Blanchard when the police officer told her about the information related to her license plate.

She challenged her arrest, arguing that the police could not arrest her or seize her license or vehicle. [ 16 ] Officer Yan Pelletier brought the respondent to the police station. On the way, the patrol car drove pass the respondent’s home, which she recognized. She asked to be dropped off at her home, but that request was denied. At the police station, she was offered an opportunity to contact a lawyer, which she declined. [ 17 ] Officer Véronique Pelletier, a qualified technician, was waiting for the respondent at the station.

Officer Veronique Pelletier noted that the respondent was walking slowly and had trouble expressing herself. She was visibly intoxicated. She continued to refuse to identify herself and asked the police to take her home so that she could get her driver’s license. Her identity would be confirmed by Officer Yan Pelletier using a photograph he found in the respondent’s record. [ 18 ] Over the course of a 30-minute period, Officer Veronique Pelletier tried to convince the respondent to blow into the breathalyzer to measure her blood alcohol level. The respondent systematically, and by all means, refused to comply.

Officer Veronique Pelletier explained the consequences of refusing, and asked the respondent to repeat what she had understood. Although the respondent stated that she understood, she refused to repeat what she had understood, arguing that she did not want this to be used against her. When Officer Veronique Pelletier gave her a mouthpiece to simulate blowing, the respondent put the mouthpiece on a table and refused the simulation. [ 19 ] The respondent physically resisted approaching the breathalyzer machine.

She tried various means of avoiding the test including sitting down on a bench and laying down on the floor and pretending to sleep. [ 20 ] The officers present believed that the respondent understood exactly what was happening and the implications of her refusal. Officer Yan Pelletier testified as follows: [TRANSLATION] Q: How many times, roughly, did you give her a chance to blow before getting to…

A: I would say at least ten times. Q: O.K. Did… did she always say the same thing to refuse? What… how… how was Ms. Blanchard behaving? A: From what she was saying, what she was doing, it was… it was clear that she didn’t want to blow, she said so. She kept saying that it wasn’t her that was driving, she was saying… Officer Pelletier explained to her how to, she explained… how did she say it to her, then? She explained the consequences of refusing, and asked her to explain back.

She, she wanted… She claimed that she understood, but she didn’t want to repeat back what she understood because she was afraid it would be used against her. But she categorically refused to come blow. […] Q: Did she seem to not really understand what was going on? A: Well, no, she told me she understood, but she refused to blow. If I had her I.D., I would have immediately arrested her for refusing. [1] [ 21 ] The testimony of Officer Veronique Pelletier, the qualified technician, was to the same effect: Q: Once, well, it seems Officer Pelletier was going to verify her identity in the end.

Once she was identified, what was… how did things unfold? What did you do? A: Once she was positively identified, as the technician, I went to the breathalyzer room – which actually is two (2) rooms from that location, it was very near. I went to do a visual verification of the breathalyzer at 21:40, and everything was set. Q: I’m sorry, at what time? A: At twenty-one forty (21:40). Everything was in order at that point. […] After that, I went back to see Ms. Blanchard in the room where she was.

I asked her if she wanted to speak with a lawyer, she refused to call a lawyer: “She’d never need a lawyer” was what she said. So that, that had already been offered by Officers Johnson and Pelletier. So, she refused her right to talk to a lawyer.

After that, really, she wasn’t cooperative, she wasn’t cooperative at all, she didn’t want to talk to a lawyer, she didn’t want… anything that we asked her, anything we asked her to do, she… she did the opposite. […] From her behaviour, I could already see that things were pointing towards a refusal, from her behaviour, what she was saying and all that, so I told her – even though I knew that Officers Johnson and Pelletier had already done it earlier, what the consequences of refusing were, basically another indictment, that it could be a spoken refusal, or by her behaviour, that she didn’t necessarily have to say it.

And, also what the consequences could be, ok, it was… in fact, what she had to do, was that she had to blow at least two (2) times, two (2) tests, at least, when I asked. […] […] Q: So, how did she respond to that, when you explained that to her? A: She responded that she understood, so I asked her what she had understood, I wanted to know, in her words, what she had understood.

She refused to reply, so I said to her… in fact, I didn’t even ask her again, and she said to me: “I get it” so… twice, which to me… which to me meant that she understood, but she added that she wouldn’t give me… I don’t remember exactly what words she used, but she didn’t want me to use this against her. Because I had asked her to repeat in her own words what she had understood, so that I could ensure she had understood. She said: “I won’t say anything, I don’t want you to use it against me.” […] A: So, through her behaviour, but she refused to tell me.

She refused to tell me and so… I won’t say what I wanted to say, because I can’t say that in Court during a trial, but, really she knew exactly what she was getting into, and I knew it, which is maybe why there was a difference in our

interpretation, or in where things stopped, or my patience at that time. Q: And, you, you thought that she understood what was going on? A: Yes, absolutely. [2] [ 22 ] Two indictments were issued in connection with the events of August 25, 2013: one for failure to comply with an order given by a peace officer to provide a breath sample and another for impaired driving. For reasons unknown to us, the charge of impaired driving was withdrawned on May 25, 2015. THE DEFENCE [ 23 ] The trial for failure to comply took place on March 14, April 26 and June 20, 2016.

The respondent did not challenge the facts presented by the prosecution, claiming she remembered nothing of the events in question. Instead, she submitted a defence of non-mental disorder automatism. [ 24 ] The respondent testified that on August 25, 2013 she had started to drink around 11:00 a.m. She claimed to be an alcoholic since she was a teenager. She added that she is in the habit of drinking at home alone. She also stated that she had no memory of the events of August 25, 2013 and that she had a total blackout.

Moreover, she further stated that she regularly has blackouts while drinking which, for her, is often. When she returned home from the police station the next morning, she didn’t feel well, she was shaking, she was tired and she urinated in her own bed after going to sleep.

She didn’t know how much alcohol she had consumed, but in her home she found an empty 12-pack of Corona beer, at 4.6% alcohol, two other half-empty beer bottles, an empty 750 ml bottle of wine, at 13.5% alcohol, and another bottle of wine that was open but almost full, which she emptied in the sink. [ 25 ] Based on the information provided by the respondent’s lawyer concerning her alcohol consumption on August 25, 2013, her

weight, her height and the period over which she consumed, the defence’s toxicology expert, Mr.

Mohamed Ben Hamar, assessed therespondent’s blood alcohol level to be at 403 mg at the time of her arrest and at 373 mg when she refused to blow into the breathalyzer.In his opinion, the respondent’s observable symptoms (blackout, incontinence, and the hypothermia she experienced the next day) werecompatible with an advanced degree of intoxication. [26] In cross examination, he acknowledged the limitations of his calculations and that depending on different scenarios, the bloodalcohol level could have been considerably lower.

However, regardless of the scenarios, it was clear, in his view, that the respondent’sintoxication on the night in question was very serious and could be compatible with automatism. He acknowledged, however, that hiscalculations were purely theoretical and entirely dependent on the accuracy of the information provided by the respondent. [27] Dr. Pierre Gagné, a forensic psychologist, also testified for the defence. Taking as given the toxicologist’s calculationsconcluding that the respondent had a blood alcohol level between 300 and 400 mg on the night in question, he concluded that she wasseverely intoxicated.

In his view, the respondent’s degree of intoxication [TRANSLATION] “sufficiently affected her judgment to allowus to conclude that she was incapable of understanding the implications, the consequences of a refusal to comply with the order to take abreathalyzer test” and that as a result “it would be appropriate to say that she was unable to formulate the intention to refuse to submit tothe test.”[3] THE TRIAL JUDGMENT [28] After having reviewed the facts and the evidence, the trial judge acknowledged that the respondent’s only defence was self-induced intoxication akin to non-mental disorder automatism.[4] He highlighted the fact that this defence may be raised only in very rarecircumstances.[5] [29] Applying the defence of self-induced intoxication akin to non-mental disorder automatism to the case, the judge believed theaccused’s account of her personal situation and of her alcohol consumption on the day at issue.[6] Thus, he accepted the defencetoxicologist’s conclusion that the respondent had been in a very advanced state of intoxication.[7] He also accepted Dr.

Gagné’s report,drawing from it the following conclusions: [TRANSLATION] [104] Dr. Gagné, who met with the accused and reviewed the evidence as a whole, concluded in his report that “[…] the severe state ofintoxication in which Ms. Blanchard found herself sufficiently affected her judgment to allow us to conclude that she was incapable ofunderstanding the implications, the consequences of a refusal to comply with the order to take a breathalyzer test. It would beappropriate to say that she was unable to formulate the intention to refuse to submit to the test.” [105] In Court, Dr.

Gagné explained that, on the facts, the inability to formulate an intention to submit to the test corresponds toautomatism.

However, as an expert, he left the legal characterization of the medical situation he described to the Court. [106] As he explained during his testimony, automatism is unconscious conduct, without any reflection or analysis. [107] For the Court, the accused’s degree of intoxication corresponds to the third degree of intoxication, namely extreme intoxication asdescribed in Daley. [108] A global analysis of the evidence, combined with credible and un-contradicted expert evidence, convinces the Court on thebalance of probabilities that the accused’s state of intoxication on the night of August 25, 2013 corresponds to automatism and, as aresult, the accused was not in a state of voluntariness at the time when she formulated her refusal, which, in our law, is an acceptabledefence.

ANALYSIS (

a) The defence of self-induced intoxication by alcohol akin to non-mental disorder automatism relates to the voluntary, not theintentional, character of the offence [30] No one challenges that the defence of non-mental disorder automatism goes to the voluntary nature of an offence (a componentof the actus reus) rather than to the intentional nature of the offence (a component of mens rea). As Bastarache J. wrote in R. v.

Stone: [170] In Parks, supra, [ (SCC), [1992] 2 S.C.R. 871], La Forest J. classified automatism as a sub-set of thevoluntariness requirement, which he too recognized as part of the actus reus component of criminal responsibility (p. 896).

I agree andwould add that voluntariness, rather than consciousness, is the key legal element of automatistic behaviour since a defence ofautomatism amounts to a denial of the voluntariness component of the actus reus.[8] [31] However, here, the defence expert’s report filed in support of the automatism defence considers the intentional, rather than thevoluntary, nature of the respondent’s conduct,[9] the conclusion of the written report being the following: [TRANSLATION] Following my meeting with Ms.

Blanchard, and after reviewing the police report, it is my opinion that the severe state of intoxication inwhich Mrs. Vlanchard found herself sufficiently affected her judgment to allow us to conclude that she was incapable of understandingthe implications, the consequences of a refusal to comply with the order to take a breathalyzer test. It would therefore be appropriate tosay that she was unable to formulate the intention to refuse to submit to the test. [Emphasis added] [32] Thus, it is the respondent’s judgment and her ability to understand the consequences of refusing to comply that the expert

considered, that is to say, the intentional nature of her refusal to comply with an order to provide a breath sample. This moreover flows from the following excerpt of the cross examination of the defence’s expert: [TRANSLATION] Q: So, what you’re saying is… it’s always, as soon as someone refuses, in your view, that’s irrational? A: No. Q: What makes Ms. Blanchard different? A: No, there is an additional element in her case, because she was the person I examined. For me, Ms.

Blanchard is a woman, a professional in a domain with significant legal dimensions, who knows the law, for me, that’s a sign of poor judgment. Q: That’s the only reason? A: Well, that’s the only…! That she had driven is surely another. The fact that she decided to dress in an evening gown to… Q: So, for you, poor judgment is irrational? Always? A: Is poor judgment irrational? Well… Q: I asked you what was irrational, you said: “Ms. Blanchard’s poor judgment”?

A: Yes, the decision she made was irrational, it was… and it is a reflection of poor judgment, of an incapacity, in my view, to analyse a situation and arrive at a reasonable conclusion. [10] [ 33 ] This understanding of automatism led the expert to conclude that the phenomenon is not rare. It happens to everyone every day. Moreover, according to this view, the respondent would have been in a state of automatism nearly every time she drank: Q: Would you be willing to say that automatism is rare? A: Well, is it rare…! I don’t know if it’s rare, but it should be [inaudible].

It is not rare in the sense that automatism… we all exhibit a certain degree of automatism. By definition, automatism is unconscious behaviour. So, there are lots of things we do in everyday life that are automatic – there is no thought required. Most of the time it’s… non-pathological automatism. It’s… Like walking, for example, we are not conscious of each step that we take that… there is a decision made each time, we put the left foot forward, we put the right forward, and repeat and all that.

Consciousness is required when we are learning to walk, but after that it disappears and it falls… it falls into automatism later on. Q: So, cases of automatism are not rare. Is that it? A: It’s not rare. It’s certainly not rare. Q: There are many? A: Well, yes. Q: In the case of Ms. Blanchard, it was at least… every week, you were saying earlier? A: That’s probable. [11] [ 34 ] Such a broad and accomodating understanding of automatism conflates the intentional and voluntary nature of an accused’s conduct.

Accepting this approach to automatism in the respondent’s case leads to the conclusion that she would always have a viable excuse to drink in excess before driving because she would be in a state of automatism nearly every time.

By accepting the defence’s expert report, the trial judge adopted this approach. [12] With respect, in my view, this approach is legally untenable and should not be adopted by this Court. [ 35 ] Contrary to the approach retained by the defence’s expert and adopted by the judge, “ genuine cases of automatism are extremely rare ”, including extreme drunkenness akin to automatism. [13] In the case of a refusal to comply with an order to provide a breath sample – to the extent that the defence of self-induced intoxication leading to non-mental disorder automatism would be an available defence, which in my view is not the case – it is the accused’s capacity to refuse to comply with the order that is at issue and not the accused’s ability to assess the implications and consequences of refusing.

The refusal must be the result of an involuntary act and not of a thoughtless act. [14] [ 36 ] It is this important distinction that the trial judgment glosses over by adopting an expert report that conflates the intentional and voluntary character of the offence. This is an error of law. [ 37 ] To the extent that the content of the defence’s expert report is unchallenged, along with all the other facts, it falls to us to determine whether the facts, taken as proven, give rise to a defence of non-mental disorder automatism. This is a pure question of law, as contemplated by subparagraph 676(1) (

a) Cr.C . [15] The

interpretation of a legal standard has always been considered a question of law. [16] In addition, the Supreme Court of Canada has held that the application of a legal standard is enough to make a question one of law. [17] [ 38 ] In R. v. S.H. , [18] the Court of Appeal for Ontario was seized with an appeal by the Crown challenging a judicial holding that the accused had successfully mounted a defence of non-mental disorder automatism. The Crown argued that, on the contrary, the facts

established a case of mental disorder. The preliminary question was whether the appeal raised a question of law alone in the sense of subparagraph 676(1) (

a) Cr.C . The Court of Appeal for Ontario intervened to quash the acquittal. Judge Watt, writing for the panel seized with the file, concluded that the question was one of law alone: “ The

interpretation of a legal standard or the application of a legal standard to an uncontroverted factual premise involve questions of law alone. ” [19] This principle was recently reiterated by the Court of Appeal for Saskatchewan in R. v.

Viterra Inc. : “ An appellate court can accept the facts as found by the trial judge and disagree with the judge’s legal conclusion without interfering with his or her fact-finding function: such situations involve a determination of a question of law alone […]”. [20] [ 39 ] This is sufficient for this Court to reverse the judgment below, declare the respondent guilty and return the file to the court below to render the appropriate sentence in accordance with the law. (

b) The defence of self-induced intoxication akin to non-mental disorder automatism is not available [ 40 ] Drawing on the decision in R. v. Mian , [21] this Court invited the parties to submit comments and arguments regarding the availability of the defence of self-induced intoxication akin to non-mental disorder automatism with respect to the offence set out at paragraphs 254(5) and 255(1) Cr.C . , which concerns the failure to comply with an order given by a peace officer to provide a breath sample pursuant to subparagraph 254(3) ( a )(i).

Indeed, this is the first time that this defence has been raised before this Court with respect to the offence in question and, given the position adopted by my college Doyon J.A., it would be the first time this defence would lead to an acquittal for a Criminal Code offence related to impaired driving. [ 41 ] The prosecution submitted that this defence was not available and that it was inadmissible in law with respect to this offence. I agree.

Here is why. [ 42 ] Sections 253 to 255 of the Criminal Code form a coherent scheme aimed at combatting a dangerous social scourge: the driving of motor vehicles while impaired by alcohol or drugs. The offence of driving while intoxicated was introduced to the Criminal Code in 1921; that of possessing or controlling a motor vehicle while impaired was established in 1925.

The invention of the breathalyzer in 1952, by Robert Borkenstein, finally simplified prosecution of this conduct through the introduction of the “.08” offence in 1969, which also led to the offence of refusing to comply with an order to provide a breath sample for a breathalyzer test. [22] [ 43 ] It has long been accepted that a defence of self-induced intoxication may not be held up against the offences set out in these provisions, including the offence of failing to comply with an order to provide a breath sample. [23] [ 44 ] For the reasons that follow, I am also of the view that the defence of self-induced intoxication akin to non-mental disorder automatism is neither a defence which may be held up against these offences. [ 45 ] R. v.

Penno [24] raised the question of whether an accused having the care or control of a motor vehicle while impaired by alcohol could raise self-induced intoxication as a defence.

A unanimous panel of seven Supreme Court judges concluded that the defence was unavailable. [ 46 ] For Chief Justice Lamer, the offence of having the care or control of a motor vehicle while impaired was of general intent; thus the defence of self-induced intoxication could not negate the mens rea of the offence. [25] Chief Justice Lamer also concluded that the exclusion of this defence was not contrary to the Canadian Charter of Rights and Freedoms (the “Canadian Charter ”).

He however specified that whether a defence of intoxication akin to automatism could be raised remained open. [26] [ 47 ] In his concurring reasons, Justice La Forest also concluded that self-induced intoxication was not an available defence, arriving at this conclusion through an

interpretation of the applicable statutory provisions rather than a broader theory of general intent. [27] He added that, “ [s]ince Parliament has made it an offence to commit

an act while impaired, it would be inconsistent, as McLachlin J. observes, for Parliament also to have considered that impairment (including intoxication) could be relied on by the defence .” [28] Ultimately, according to Justice La Forest, statutory exclusion of this defence complied with the principles of fundamental justice contemplated by s. 7 of the Canadian Charter because, first, it concerned only self-induced intoxication and, second, the public interest requires Parliament to be able to create efficient offences in matters regarding driving under the influence of alcohol or drugs. [29] [ 48 ] Justice McLachlin, writing for herself, Sopinka and Gonthier JJ., concluded that self-induced intoxication was not a defence because, in her view, the mens rea of the offence lies in intoxicating oneself volontarily, thereby rendering the distinction between general and specific intent irrelevant.

Consequently, to the extent that the evidence establishes that the intoxication is self-induced, no defence raised on the basis of intoxication will be available. She did not consider the legislative exclusion of the defence as a violation of ss. 7 and 11(

d) of the Canadian Charter because, in her view, the fact that the mens rea component of the offence was self-induced intoxication meant that exclusion of this defence did not deprive the accused of the opportunity to make full answer and defence: It is my conclusion that Parliament has stipulated that intoxication cannot be a defence to a charge under s. 234(1) [today s. 253(1) of the Code ] of the Code , rendering irrelevant the general intent - specific intent issue . This exclusion of intoxication as a defence does not, however, constitute a limitation on the right of the accused to make full answer and defence under ss. 7 and 11(

d) of the Charter , since the mens rea of the offence lies not in the intention to assume care or control of a motor vehicle, but in voluntarily becoming intoxicated. [30] [Emphasis added] [ 49 ] Justice Wilson, writing for herself and L’Heureux-Dubé J., agreed with Justice McLachlin that self-induced intoxication is not a defence against the offence in question, given that the impairment must result from a voluntary act, thereby uniting the mens rea (the intentional nature of the act) and the actus reus (the voluntary nature of the act) for this type of offence: […] He might then, due to the effects of alcohol, truly not know what he was doing.

But when a person voluntarily consumes alcohol to the point of impairment and has care or control of a motor vehicle while in that condition, it seems to me that there can be no doubt about the volitional nature of his or her act of becoming impaired. We are talking about self-induced intoxication to the point of impairment. It

cannot be open to an accused to argue that due to his impairment he was not aware of being impaired when he had care or control of themotor vehicle. The accused's impairment is the gravamen of the offence under s. 234(1). And it is this which must, in my opinion, be theresult of

an act of volition. Nor is there any need to resort to the dubious concept of "substituted" mens rea in such circumstances. Theact of having care or control and the state of voluntary impairment are undoubtedly required to be contemporaneous under thissection.[31] [Emphasis added] [50] She added, however, that if she was wrong on this point, she would conclude that refusing the defence of self-inducedintoxication would lead to a Charter violation in the case of extreme intoxication akin to automatism.

Nevertheless, in her view, such aviolation would be justified under s. 1 of the Charter: It seems to me, moreover, that if my colleague [Chief Justice Lamer] is speaking of impairment to an extent that could deprive theaccused's act of its volitional character, he must be speaking of a state of extreme impairment verging on automatism and, at most, thesection would violate the Charter only to the extent it deprived an accused in that condition of the defence of lack of volition. […] […] With all due respect to those who think differently, I am of the view that no viable defence to a charge under s. 234(1) is foreclosed bythe section.

To hold otherwise is to say that the legislature violates the Charter if it purports to make engaging in certain types of conductwhile impaired offences under the Criminal Code and must justify the creation of such offences under s. 1. I cannot accept that result. Ithink that Dickson C.J. was correct in indicating in [R. v. Bernard, (SCC), [1988] 2 S.C.R. 833] that crimes in whichintoxication is made an element of the offence, i.e. part of the actus reus, are in a different category from crimes in which intoxication isrelevant to the mental element only.

I find no unconstitutionality in the creation of the former type of offences. In the event, however, that I am wrong in my approach to the constitutional issue, I would find an infringement only in cases of extremeintoxication verging on automatism and would justify such infringement under s. 1 of the Charter for the reasons given by my colleague[Chief Justice Lamer]. […][32] [Emphasis added] [51] This final comment indicates that excluding the defence of self-induced intoxication for the offence in question implies theexclusion of the defence of self-induced intoxication akin to non-mental disorder automatism.

If this were not the case, there would be noneed to raise a subsidiary argument based on s. 1 of the Canadian Charter. [52] All things considered, in Penno, six out of seven judges on the panel held that a defence based on self-induced intoxication wasunavailable with respect to the offence of having the care or control of a vehicle while impaired by drugs or alcohol; they held this viewon the basis of statutory

interpretation, without relying on the distinction between offences of specific or general intent or s. 1 of theCanadian Charter.

Among these six judges, two were of the view that the exclusion was equally applicable to advanced and extremeintoxication, while the other four judges appear to have arrived at the same conclusion, albeit implicitly, because they drew nodistinction in their reasons between the various degrees of intoxication. [53] Indeed, it would be illogical and contradictory to assume that Parliament intended its objective of criminalizing impairmentresulting from self-induced intoxication by alcohol to be thwarted by a rule according to which this same impairment could serve as aviable defence against the very offences it seeks to repress, be it through the defence of simple self-induced intoxication or the defence ofself-induced intoxication akin to non-mental disorder automatism. [54] Not recognizing the intrinsic contradiction in holding that the precise mischief Parliament sought to remedy could also serve asa disculpatory circumstance would lead to an unacceptable outcome that could not have been what Parliament sought, given the verynature of the offences in question, which specifically seek to stamp out excessive voluntary consumption of alcohol while driving a motorvehicle.

This would lead to the conclusion, as it would in the case at hand, that the more impaired a person becomes, the more likely thatperson wil be likely to be acquitted of the offences set out in ss. 253 to 255 of the Criminal Code, including those targeting impaireddriving or refusal to comply with an order to provide a breath sample to verify the person’s degree of intoxication.

That a person could beacquitted of charges under ss. 253 to 255 because he or she is “too” incapacitated seems to me an entirely unacceptable proposal,contrary to the very purpose of these provisions. [55] In fact, with respect to an impaired driving offence, the tribunal in R. v. DeVingt,[33] refused to recognize the defence of self-induced intoxication by a drug akin to non-mental disorder automatism. [56] In that case, as in the case before us, the accused admitted the facts, subject to the defence of automatism. As here, the trialjudge accepted the defence.

On appeal, Judge Dambrot – after a meticulous analysis of R. v. Penno and a convincing rebuttal to thedefence’s argument that the teachings of that case had been subsequently overruled[34] - concluded that self-induced intoxication akin toautomatism was not an available defence because it could not be distinguished from self-induced intoxication simpliciter. To this end, hewrote: [47] Accordingly, it is my view that self-induced intoxication, even where it verges on automatism, is not a defence to impaireddriving.

In this case, however, the respondent raised a defence of automatism, and not a defence of intoxication. He led evidence that theconsumption of diphenhydramine in an excessive quantity is capable of inducing deep sleep that is accompanied by a dissociative state,during which the person who ingested the drug could become physically active. Activity that was second nature to the person could becarried out "in an automatic fashion." Such a person might even drive a car without awareness of what was happening, and without anyintention to do so.

The defence characterized this ingestion of drugs as a "pharmacological" blow to the head resulting in a lack ofconscious volition equivalent to automatism. [48] In my view, characterizing such a state as automatism rather than intoxication is nothing more than an exercise in selective

labelling. It matters not what name is given to it.

An accused person who, as a result of the voluntary ingestion of an excessive quantity of drug, drives a car while his or her ability to do so is impaired, has no defence to a charge of impaired driving flowing from the ingestion of drugs even if the accused is unaware of the driving and had no prior intention to drive. [Emphasis added] [ 57 ] Thus, if self-induced intoxication is not a defence against an offence because the offence seeks precisely to avoid such intoxication, it must follow that self-induced intoxication akin to automatism may not serve as a defence to that same offence either. [ 58 ] This, moreover, is the reasoning adopted by the Court of Appeal of Alberta in R. v.

Honish , [35] where it confirmed the unavailability of the defence of self-induced intoxication akin to automatism with respect to an offence of impaired driving causing bodily harm: […] if consumption of intoxicants is not a defence to a charge alleging consumption of intoxicants, consumption of powerful quantities of those intoxicants should similarly be no defence.

If this were not so, what it would mean is that the more blameworthy the accused, the more reckless an accused is when consuming intoxicating substances, the better the chance an accused would have of grounding a defence to impaired driving in automatism or insanity. The proverbial "I only had 2 beer" defence could conceivably become one of "I had at least 22 beer".

It would be ironic indeed if the person who displayed the most culpable conduct in terms of ingestion of alcohol or drugs were afforded a defence to a charge of impaired driving while the individual who stopped short of intoxicating himself to the point of "automatism or insanity" were criminally liable to the fullest extent of the law. [Emphasis added] [ 59 ] This reasoning has been consistently followed, notably in the recent decision R. v.

Liu , [36] where the Ontario Superior Court of Justice concluded that automatism following voluntary consumption of alcohol was not a viable defence against an impaired driving charge. The same conclusion was reached in R. v. Abad [37] and in R. v. Byers . [38] The Court of Québec reached the same conclusion, that self-induced intoxication akin to automatism may not be raised against such an offence, in R. c. Beaulieu , [39] R. c. Boivin , [40] and R. c. McEnroe , [41] just as the Municipal Court did in R. c.

Phaneuf . [42] [ 60 ] Though these decisions concern impaired driving, their underlying reasoning extends to a refusal to provide a breath sample for a breathalyzer test. It follows that if the defence of self-induced intoxication may not be held up against a charge of refusal to comply with an order to provide a breath sample, self-induced intoxication akin to automatism is likewise unavailable. [ 61 ] Indeed, paragraph 254(5) Cr.C . is at the heart of the federal scheme designed to combat driving while self-intoxicated.

This sheme rests upon the use of mechanisms to test the blood alcohol levels of drivers, namely approved roadside tests ( s. 254(2) Cr.C. ) and breathalyser tests at a police station ( s. 254(3) Cr.C. ) used to determine, objectively and precisely, the blood alcohol level of a driver. As LaForme J.A. noted in R. v. Degiorgo , [43] “[t]he deaths and substantial societal costs associated with drinking and driving fully justify the existence of this extraordinary criminal offence.” [ 62 ] The offence of refusing to provide a breath sample ( s. 254(5) Cr.C . ), that of impaired driving ( s. 253(1) (

a) Cr.C. ) and that of driving with a blood alcohol level exceeding the legal limit (s. 253(1)(

b) Cr.C. ), all share the same legislative objective: combatting drunk driving. This objective would be frustrated if the same intoxication became a defence to be held up against such criminal charges. [ 63 ] Though it may be true that intoxication is not directly mentioned in paragraph 254(5) Cr.C . , which sets out the offence of refusing to comply with an order to provide a breath sample, intoxication is nevertheless an underlying essential element of that offence because one of its elements is the validity of the order to comply issued pursuant to paragraph 254(2) or 254(3) Cr.C.

Thus, under paragraph 254(3) Cr.C. , a peace officer must have “reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol”. [ 64 ] This is was clearly what the Court of Appeal for Ontario decided in R. v. Degiorgo : [43] I read the text itself of s. 254(5) as requiring the Crown to prove the following constituent elements of the offence : 1. The preconditions set out in s. 254(2); 2. A demand that the individual "provide forthwith a sample of breath"; 3. The individual of whom the demand was made understood the demand; 4. The individual refused to comply with that demand; and 5.

The individual did not have a reasonable excuse for failing to comply with the demand. [44] [Emphasis added] [ 65 ] This observation was taken up by this Court in R. c.

Nolet : [TRANSLATION] [8] To this end, the judge below returned to Re Degiorgio , 2011 ONCA 527 in which the Court of Appeal for Ontario described the essential elements of the offence set out at s. 254(5) of the Criminal Code : (1) the preconditions of 254 Cr.C. , (2) a demand that the individual immediately provide forthwith a breath sample, (3) that the individual of whom the demand was made understood the demand, (4), the refusal to comply and (5) that the refusal was made without a reasonable excuse. [45] [Emphasis added]

[ 66 ] An objective observation of intoxication is therefore one of the underlying essential elements of the offence set out in paragraph 254(5) Cr.C . The opposing view, expressed by my colleague Justice Doyon, seems to me in conflict with the state of the case law on this question.

In this context, it would be paradoxical if the intoxication validating the order to comply could also serve as an excuse not to submit to that order. [ 67 ] Moreover, the case law confirms the exclusion of the defence of self-induced intoxication for the offence of refusing to comply with an order to provide a breath sample. [ 68 ] In R. v. Warnica , [46] a three-justice panel of the Nova Scotia Supreme Court Appeal Division concluded that the defence of self-induced intoxication could not be held up against the offence of refusal to comply with an order to provide a breath sample for a breathalyzer test.

In addition, Chief Justice MacKeigan clearly specified that, for this purpose, there was no reason to distinguish between drunk driving and a refusal to provide a breath sample for a breathalyzer test: [28] […] Normally, a person accused of an offence must be acquitted if the evidence casts doubt on the existence in him of the kind of guilty intent presumed from his words and acts. The policy of the law, however, prohibits acquittal on this ground if the lack of mens rea results from voluntary intoxication by alcohol or drugs.

Accordingly, the respondent, to whom a demand was made, and who appeared to understand it, cannot be heard to say that he did not in fact understand it because of self-induced drunkenness. [29] I also cannot agree that the respondent's lack of understanding in this case can in law be a "reasonable excuse" for his failure to comply with the demand. What can be an excuse arises only after an offence and all its elements, including any necessary mens rea , have been proved by presumption or otherwise.

The excuse, be it reasonable or not, must be an excuse for having committed the offence of refusal. [30] If, for example, Mr. Warnica had shown that his failure to comprehend the demand was due to drugs given him by a dentist without warning that he should not drive, as in The Queen v. King , he, like Mr. King, could not have been convicted not because he had or needed to have any "reasonable excuse", but because the Crown had failed to establish mens rea and thus had failed to prove commission of the offence.

It would indeed be paradoxical, and in my view contrary to the clear policy of the law, if self-induced drunkenness, discarded as evidence of absence of guilty intent, could "excuse" an offence otherwise proven with the help of the King presumption. [47] [Emphasis added] [ 69 ] This analysis was taken up by this Court in the recent decision R. c.

Nolet : [11] It is common sense that an individual ordered to submit to a breathalyzer test because the officer has reasonable and probable grounds to believe that person is impaired by alcohol may not invoke this same intoxication to avoid a charge of refusal pursuant to paragraph 254(4) of the Criminal Code . […] [48] [ 70 ] While R. v. Warnica and R. c. Nolet do not directly address the defence of self-induced intoxication akin to automatism, they are nevertheless applicable.

The logic of these decisions remains the same whether they are applied to self-induced intoxication negating the ability to form the requisite intention (the mens rea of the offence) or to self-induced intoxication akin to non-mental disorder automatism negating the voluntariness of the offence. In both cases, the defence is unavailable because the offence in question is part of a legislative scheme which seeks to sanction driving a motor vehicle following self-induced intoxication.

Consequently, because self- induced intoxication is not an available defence against the offence of refusing to provide a breath sample for a breathalyzer test, self- induced intoxication akin to non-mental disorder automatism cannot be either because, I underscore again, allowing such a defence would be contrary to the very purpose of creating the offence at issue, which forms part of a legislative scheme which seeks specifically to sanction the driving of a motor vehicle following self-induced intoxication. This is what R. v. DeVingt , R. v. Honish , R. v. Liu , R. v. Abad and R. c.

Beaulieu , supra , teach us when read in light of R. v. Warnica and R. c. Nolet , also cited above. [ 71 ] My distinguished colleague Justice Doyon is of the view that this conclusion is precluded by s. 33.1 Cr.C . , which provides that an accused, by reason of self-induced intoxication, may not raise a defence that he lacked the general intention or the voluntariness required to commit an offence that includes as an element an assault or another interference or threat of interference by a person with the bodily integrity of another person.

The approach taken by my colleague would leave the defence of self-induced intoxication available for any offence not specifically contemplated by s. 33.1 Cr.C. For the following reasons, I cannot adopt his analysis. [ 72 ]

Section 33.1 was introduced into the Criminal Code in 1995, in response to the decision of R. v. Daviault [49] which accepted, for the first time, the use of the defence of self-induced intoxication to negate general intent in a case of a sexual assault. [50] A brief historical review is required to understand the context in which this provision was adopted. [ 73 ] Since the House of Lords decision of 1920 in Director of Public Prosecutions v.

Beard , [51] the defence of self-induced intoxication has been available to acquit an accused charged with an offence of specific intent or, depending on the nature of the offence, to convict the accused of a lesser included offence requiring only general intent. [52] In the 1977 decision Leary v.

R. , [53] the question of whether an accused could also submit a defence of self-induced intoxication to raise a reasonable doubt with respect to an offence requiring only general intent was answered in the negative, based on the principle that the indifference displayed by an accused who becomes voluntarily intoxicated may serve as the wrong required for the perpetration of a crime of general intent. [ 74 ] In the 1994 decision R. v. Daviault , a Supreme Court majority (6:3) nevertheless overturned Leary v. R. in the context of a sexual assault offence requiring only general intent.

The decision was accompanied by a forceful dissent by Sopinka J. (also writing for Gonthier and Major JJ.). The majority’s decision gave rise to a significant controversy that led to the adoption of s. 33.1 Cr.C . less than a year following publication of the decision. [54] The provision denies the opportunity to raise the defence of “ self-induced intoxication

that renders the person unaware of, or incapable of consciously controlling, their behaviour” where one “voluntarily or involuntarilyinterferes or threatens to interfere with the bodily integrity of another person” and is accused of a federal offence “that includes as anelement an assault or any other interference or threat of interference by a person with the bodily integrity of another person.” [75] Consequently, while R. v. Daviault is still the law in Canada, the defence of self-induced intoxication that it sets out may not berelied upon by an accused if a federal statute does not allow it.

Section 33.1 Cr.C. sets out such a prohibition with respect to federaloffences that include as an element an assault or any other interference or threat of interference by a person with the bodily integrity ofanother person. However, s. 33.1 is not a complete code. Other federal offences might implicitly or explicitly exclude such a defence.This is the case for offences linked to driving while intoxicated because the very nature of these offences is incompatible with a defenceof self-induced intoxication in any form, including self-induced intoxication akin to non-mental disorder automatism.

In other words, itwould be illogical if the mischief Parliament seeks to remedy through these offences could be raised as a defence against those sameoffences. [76] In this respect, while it is obvious that the offence of impaired driving (s. 253(1) Cr.C.) is not one “that includes as an elementan assault or any other interference or threat of interference by a person with the bodily integrity of another person” as provided in s.33.1 Cr.C., Canadian courts have not hesitated to set aside the defence of self-induced intoxication for this offence, including self-induced intoxication akin to non-mental disorder automatism, given the fundamental incompatibility between the infraction and thedefence: see R. v.

DeVingt, R. v. Honish, R. v. Liu, R. v. Abad, R. c. Byers, R. c. Beaulieu, R. c. Boivin, R. c. McEnroe, R. c. Phaneuf,supra. In light of our Court’s decision in R. c.

Nolet, as well as that of the Nova Scotia Supreme Court (Appeal Division) in R. v.Warnica, there is no principled reason to approach differently the offence of refusing to comply with an order to provide a breath sample(s. 254(5) Cr.C.), given that offence is intimately related to the suite of offences which seek to punish driving in a self-induced state ofintoxication. [77] According to Justice Doyon’s reasoning based on s. 33.1 Cr.C., all of these judicial decisions would have been wrongly decidedbecause they would have failed to consider s. 33.1.

Thus, they would all be decisions in which the courts “act[ed] as legislators”, asJustice Doyon suggests, because the offences that they deal with are clearly not contemplated by s. 33.1. But this is obviously not thecase. [78] The exclusion of the defence of self-induced intoxication akin to automatism flows from a statutory

interpretation that thedefence is patently incompatible with the legislative scheme related to driving while in a self-induced state of intoxication. As such, s.33.1 Cr.C. is irrelevant to the case at hand.

Section 33.1 excludes the defence of self-induced intoxication with respect to some offences,but it may not serve to extend the defence it precludes to an offence with which that defence is patently incompatible. [79]

Section 1 of the Canadian Charter is also irrelevant. Indeed, the exclusion of the defence based on self-induced intoxicationakin to automatism with respect to driving related offences does not infringe upon the constitutional rights of the accused for preciselythe same reasons set out by Justices La Forest, McLachlin and Wilson in R. v. Penno, described above.

Section 1 is thus irrelevant to ouranalysis. [80] I conclude, therefore, that the defence of non-mental disorder automatism arising from self-induced intoxication from alcoholmay not be held up against the offence of failing to comply with an order to provide a breath sample for a breathalyzer test.

CONCLUSION [81] For these reasons, I propose that the Court allow the appeal, overturn the judgment below, declare the respondent guilty of thecharge of having failed to comply with an order given by a peace officer to provide a breath sample, and return the file to the Court ofQuébec so that the appropriate sentence may be rendered in accordance with the law. ROBERT M. MAINVILLE, J.A. REASONS OF DOYON J.A. [82] Courts interpret the law. This does not, however, give them the right to act as legislators.

Yet this is precisely what mycolleague Justice Mainville invites us to do. [83] The Supreme Court has recognized that the Canadian Charter of Rights and Freedoms permits the defence of extremeintoxication to be raised against all offences because it goes to the physical core of any offence – the actus reus: R. v. Daviault, (SCC), [1994] 3 S.C.R. 63. However, pursuant to s. 1 of the Charter, a rule of law may limit this protection. This is what thelegislator did, in response to Daviault, when it adopted s. 33.1 Cr.C., a clear provision which does not lend itself to

interpretation. [84] Moreover, and this is fundamental, it was only after this case was taken under advisement and after the Court questioned theparties to this end, that the appellant pleaded that the defence was not available in law. Indeed, during the trial and even at the hearing onappeal, the prosecution admitted that the defence was available, notably in light of s. 33.1 Cr.C. Consequently, the parties led noevidence and made no arguments relating to s. 1 of the Charter.

It seems to me entirely unfair to the respondent for this Court to restrict aCharter-protected right without undertaking any analysis of the reasonable nature of this restriction, as required by s. 1 of the Charter. [85] Indeed a common law rule that restricts a Charter right is not exempt from the s. 1 requirement that any such restriction be

“demonstrably justified in a free and democratic society.”: R. v. Swain, (SCC), [1991] 1 S.C.R. 933; R. v. Clayton,2007 SCC 32 , [2007] 2 S.C.R. 725. In the absence of a full record, and without the consent of the parties, it is inappropriate forthis Court to make a determination regarding s. 1: R. v. K.R.J., 2016 SCC 31 , [2016] 1 S.C.R. 906, the result being that even ifmy colleague is right as to whether the defence is allowed, we may not find the respondent guilty.

The most we could do would be toorder a new trial so that the question may be appropriately considered. [86] It has to be noted that this question is at issue because the appellant withdrew the charge of driving while impaired by theeffects of alcohol, leaving only the charge for failure to comply with the order of a police officer.

THE DEFENCE OF SELF-INDUCED EXTREME INTOXICATION ISAVAILABLE [87] At trial, the appellant was right not to argue that this defence was unavailable. [88] I believe that my colleague does not sufficiently consider s. 33.1 Cr.C. which, in my view, is incompatible with his conclusion.Having come into force after the decision in R. v.

Penno, (SCC), [1990] 2 S.C.R. 865 (and the opinion of Wilson J. uponwhich he relies [and which was obiter dictum]), this provision was enacted specifically in order to exclude the defence of extremeintoxication, but only where one of the elements of the offence is “an assault or any other interference or threat of interference by aperson with the bodily integrity of another person / est l’atteinte ou la menace d’atteinte à l’intégrité physique d’une personne, ou touteforme de voies de fait” (s. 33.1, para. 3 Cr.C.). [89] As my colleague emphasizes, historical analysis of this provision is in order. [90] In Daviault, Cory J., at paragraph 67 of the online judgment, wrote for the majority: In my view, the Charter could be complied with, in crimes requiring only a general intent, if the accused were permitted to establish that,at the time of the offence, he was in a state of extreme intoxication akin to automatism or insanity.

Just as in a situation where it issought to establish a state of insanity, the accused must bear the burden of establishing, on the balance of probabilities, that he was in thatextreme state of intoxication. This will undoubtedly require the testimony of an expert. Obviously, it will be a rare situation where anaccused is able to establish such an extreme degree of intoxication. Yet, permitting such a procedure would mean that a defence wouldremain open that, due to the extreme degree of intoxication, the minimal mental element required by a general intent offence had notbeen established.

To permit this rare and limited defence in general intent offences is required so that the common law principles ofintoxication can comply with the Charter. [Emphasis added] [91] In sum, this defence must be permitted in order to respect the rights protected by the Canadian Charter of Rights and Freedoms(primarily s. 11(d)), given the effects of extreme intoxication, which are incompatible with the voluntary nature of the actus reus. [92] To condemn a person who acts involuntarily would be contrary to the principles of a free and democratic society, unless a ruleof law, enacted within reasonable limits, excluded such a defence.

This is the conclusion that flows from Daviault, and to whichs. 33.1 Cr.C. responds. As is true of any Charter-protected right, this right may be restricted by law, as provided by s. 1 of the Charter. Irepeat: this was precisely the objective sought by s. 33.1 Cr.C. and this is what the Minister of Justice highlighted during the debatesbefore the House of Commons on March 27, 1995 (House of Commons, House of Commons Debates, 35th Parl., 1st Sess., vol. 133, p.1205), as did the Supreme Court in R. v. Bouchard-Lebrun, 2011 SCC 58 , [2011] 3 S.C.R. 575, at paragraph 35.

Such arestriction of a Charter-protected right may not be created by a court under the pretext that an offence “is part of a legislative schemewhich seeks to sanction driving a motor vehicle following self-induced intoxication”, as my colleague proposes.

Moreover, is it necessaryto recall that the essential elements of this offence in no way include the consumption of alcohol (or drugs), unlike the offence ofimpaired driving or driving with a blood alcohol level exceeding the legal limit, the two offences for which some courts have refused toaccept defences of extreme intoxication precisely because the perpetration of an offence may not, at the same time, constitute a defenceto that offence. [93] In this sense, it is incorrect to state, as the appellant suggests in its supplemental memorandum that it would be[TRANSLATION] “paradoxical for the intoxication justifying the order [to provide a breath sample] to simultaneously constitute areason to refuse to comply with that order.” The conditions required to justify the legality of the order are one thing; those which allowan accused to lead evidence denying the voluntariness of the act are another.

The existence of reasonable grounds to believe that theinfraction set out at s. 253 Cr.C. has been committed in the three preceding hours has nothing to do with the defence of extremeintoxication. Moreover, it cannot be argued that [TRANSLATION] “intoxication is nevertheless an underlying essential element of theoffence because one element of this offence is the validity of the order to comply”.

First, the validity of the order is not an element of theactus reus of the offence, just as the existence of reasonable grounds to believe that an offence has been committed in the three precedinghours requires no formal evidence of intoxication.

Second, even if the existence of reasonable grounds to believe an offence has beencommitted is an essential condition for the legality of the order, that does not render intoxication an “underlying” essential element of anoffence which may be committed whether the offender is intoxicated or not. [94] Although driving a motor vehicle while impaired by the effects of alcohol may fall within the ambit of s. 33.1 Cr.C. (one of theessential components being interference or the threat of interference with the bodily integrity of another person, a question which isunnecessary to answer here because the prosecution chose to withdraw this accusation), the offence at issue here does not.

When thisprovision was adopted, the legislator was well aware of the state of the case law, and it is not our place to intervene with its choices.“Assault or any other interference or threat of interference with the bodily integrity of another person” is clearly absent from the elementsof the offence set out at subparagraph 254(3)(a)(

i) Cr.C., and thus the defence of extreme intoxication akin to automatism (the thirddegree of intoxication described in R. v. Daley, 2007 SCC 53 , [2007] 3 S.C.R. 523, paras. 41 to 43) is not excluded.

[95] As Bastarache J. wrote at para. 43 of Daley, this defence exonerates the accused from all criminal liability but, “by operation ofs. 33.1 of the Criminal Code”, only in the case of “non-violent types of offences.” Failure to provide a breath sample certainly cannot becharacterized as a violent offence. [96] Moreover, it is indisputable, as my colleague highlights, that “advanced” self-induced intoxication (the second degree ofintoxication set out in Daley) may not be held up against offences of impaired driving or driving with a blood alcohol level exceeding thelegal limit.

Everyone agrees on this point, notably because such intoxication may only be used as a defence against offences of specificintent (Daley, paras. 41-42), and alcohol consumption is at the very heart of these offences. But this is not the question posed by the casebefore us. [97] I would add that no link may be made between the case law regarding this type of intoxication and the rules applicable toextreme intoxication akin to automatism, and that the case law applicable to one or the other is not interchangeable. These are twoentirely different regimes requiring completely different approaches.

To this end, I note that the judgments in R. v. Penno; R. v. DeVingt,[2001] O.J. No. 521 (ON S.C.); R. v. Honish, 1991 ABCA 304 , [1992] 3 W.W.R. 45, 68 C.C.C. (3d) 329 (Alta. C.A.); R. v.Liu, 2017 ONSC 4133; R. v. Abad, [2009] O.J. No. 2515 (ON S.C.); R. v. Byers, (Prov. Ct. Sask.); R. c. Boivin,[1996] R.J.Q. 1445 (C.Q.); R. c. McEnroe, [2001] J.Q. No. 2280 (C.Q.) and R. c. Beaulieu, [2004] J.Q. No. 8822 (C.Q.), cited by mycolleague, all deal either with cases of impaired driving or driving with a blood alcohol level exceeding the legal limit. [98] As for R. v. Warnica, (NS CA), [1980] N.S.J. No. 512 (S.C.

N.S., appeal division) and R. c. Nolet, 2014QCCA 866, which he also cites, these concern charges of failure to provide a breath sample, but the defence raised was that of advancedintoxication, and not extreme intoxication akin to automatism, and we may not simply affirm, as he does, that “because self-inducedintoxication is not an available defence against the offence of refusing to provide a breath sample for a breathalyzer test, self-inducedintoxication akin to non-mental disorder automatism cannot be either”.

By making this affirmation, he negates the fundamentaldistinction between the two types of intoxication and, in my view, wrongly conflates the two. [99] In short, the “unacceptable outcome” my colleague observes (“[t]hat a person could be acquitted of charges under ss. 253 to 255because he or she is ‘too’ incapacitated”) is a spectre. Moreover the Supreme Court, at para. 59 of Daviault, specifically rejected thisreasoning. [100] In

summary, extreme intoxication akin to automatism does not only go to intent (or to mens rea), as does advanced intoxication,but rather to voluntariness (or to the actus reus), and the case law applicable to the former is not necessarily applicable to the latter. Thedefence of extreme intoxication is available for all types of offences unless it is excluded by a rule of law, the only such rule here beings. 33.1 Cr.C., and refusal to provide a breath sample is absolutely not captured by this provision.

I am certainly not ready to thwart theclear intent of the legislator by restricting the rights of an accused by literally creating a new exclusion. While this offence may form“part of a legislative scheme which seeks specifically to sanction the driving of a motor vehicle following self-induced intoxication”, asmy colleague emphasizes, this does not justify judicial limitation of the fundamental rights of the accused where the legislator hasrefused to do so. Existing defences must be given effect, whether we agree with them or not: R. v. McIntosh, (SCC),[1995] 1 S.C.R. 686.

ISSUES ON APPEAL [101] This being so, I will now turn to the grounds of appeal initially raised by the appellant, which I shall regroup under twoheadings: (1) the absence of probative evidence of automatism, given the facts retained by the judge below and his failure to apply theanalytical framework laid out in R. v.

Stone, (SCC), [1999] 2 S.C.R. 290; (2) the confusion, in the judgment underappeal, of the concepts of automatism and alcohol-induced amnesia. [102] A reminder that the present appeal may only consider questions of law is in order. [103] I will begin with the second issue on appeal. [104] It cannot seriously be argued that the trial judge confused alcohol-induced amnesia and automatism.

As can be seen in thefollowing excerpt, he clearly distinguished the two concepts in his judgment: [TRANSLATION] [62] At this very advanced, even serious, blood alcohol level, an individual may experience memory loss or amnesia; as well as actunconsciously or in a state of automatism. Some specific symptoms described in the evidence confirm this state, such as the accused’sincontinence in her home many hours later and the hypothermia she felt in her cell that morning. […] [69] By definition, alcohol-induced amnesia is the absence of memory whereas automatism is related to conduct.

This may beexplained by the fact that the brain cells responsible for judgment are more sensitive to alcohol than those responsible for motorfunction, thus automatism is unconscious conduct, without reflection or analysis. […] [97] For Mr. Ben Hamar, it is clear, according to his research on the topic and his expertise, that at this level of intoxication, amnesiais certainly possible, and so is automatism. [Emphasis added] [105] There is no error of law in these passages: they demonstrate, to the contrary, that the judge correctly distinguished the two

concepts. The rest is a question of weighing the evidence and, if there is an error, it would be an error of fact or a mixed error of fact and law – neither of which the appellant may invoke on appeal. [ 106 ] I turn now to the first ground of appeal. For the appellant, the decisions in Stone and Daley , cited above, as well as R. v. Daviault , require courts to [TRANSLATION] “approach this defence with great care”. This is not entirely correct.

While Daviault did hold that the defence “will only be [advanced] on rare occasions” (para. 60) and Daley took the same position (para. 43), it remains that in Stone , Bastarache J. reminds us that caution is required where an expert relies uniquely on the accused’s version of the facts (para. 46): […] In the latter case, however, the expert is simply providing an opinion about the circumstances surrounding the allegation of automatism as they have been told to him or her by the accused.

Trial judges must keep in mind that an expert opinion of this latter type is entirely dependent on the accuracy and truthfulness of the account of events given to the expert by the accused. [ 107 ] In such circumstances, the trial judge must therefore be sensitive to the probative value of the accused’s testimony before making a determination based on the expert’s testimony.

This, however, is precisely what the judge did here when he wrote at paragraph 91 of his judgment that he believed [TRANSLATION] “ beyond the shadow of a doubt the accused’s version of her personal circumstances and her alcohol consumption on the day of August 25, 2013 .” On that basis, he could confidently rely upon the experts’ opinions. [ 108 ] It goes without saying, as the appellant pleads, that judges must consider all of the evidence and not expert evidence alone.

But, it adds, certain factual elements established at trial but not described by the judge indicate that there was no automatism here. [ 109 ] In my view, the appellant makes a very common mistake here by confusing questions of fact and questions of law. [ 110 ] This is how the judge summarized the evidence – he certainly cannot be criticized for having failed in this task: [TRANSLATION] [2] On August 25, 2013, around 8:00 p.m., Ms. Chantal Rivard was driving in the right-hand lane of Route 8 in Saint-Germain-de- Grantham. [3] Entering a sharp curve, she saw a vehicle coming directly towards her.

She had time to swerve into the left lane but the car made contact with the rear right-hand side of her car. The car that had run into her was found stopped in a ditch, near the site of the impact. [4] Shortly thereafter, Mr. Jean-Denis Chénard, Ms. Rivard’s husband, arrived on the scene. After checking on his wife, he went to see the driver of the other vehicle. [5] He noted that she was out of sorts and had difficulty expressing herself. She was shocked when he told her she had hit another vehicle. Later, she turned the radio on in the car.

She had difficulty speaking and the vehicle was filled with the strong smell of alcohol. [6] Mr. Gilles Pinard was one of the first responders at the scene. He is the director of the fire service. He knew the accused. When he got close to her, he noticed that she didn’t seem normal. He noted that she was in a very advanced state of drunkenness and that her behaviour – both her gestures and her words – was abnormal. [7] Around 8:19 p.m., Officer Yan Pelletier received a call regarding an accident including injured parties.

He arrived on the scene at 8:28 p.m. [8] After speaking briefly with the witnesses at the scene, he went over to the driver of the car in the ditch. [9] He asked her what had happened and she responded that nothing had happened. He noted that she was visibly intoxicated. He immediately put her under arrest for driving while impaired by alcohol. [10] The accused had difficulty getting out of her car and staying upright. She was unable to walk alone. The police had to support her in order to get her to the patrol car.

Her dress was torn and she seemed lost. [11] Once she was out of the ditch and moving towards the patrol car, the accused tried to turn back because she did not want to follow the police. They grabbed her and had to handcuff her because she started to be aggressive. [12] In the patrol car, Officer Yan Pelletier read the accused her rights using the provided card. The accused responded that she had understood but that she did not want to go to the police station and did not want to blow.

Moreover, she would not cooperate and refused to identify herself. [13] Consulting the licence plate registry established that the accused was the owner of the vehicle. Despite this, she mentioned that it was not her vehicle. [14] Officer Yan Pelletier tried in vain to find identification in the accused’s vehicle. [15] Once the accused informed him that she didn’t want to blow, Officer Pelletier re-explained to her the consequences of refusing. [16] They left the site around 9:13 p.m. and arrived at the station at 9:30 p.m.

During transport, the accused’s mood went up and down, she babbled on about nothing, about her dog inside her house, etc. [17] When they passed in front of her house, she started yelling and wanted to stop the patrol car to get out at her place. [18] At the station, she was placed in a room near the breathalyzer room.

[19] Officer Yan Pelletier stayed with the accused nearly the whole time, except for a brief moment when he did a [criminal record search] to find a photo of the accused that would allow her identity to be confirmed. [20] Officer Véronique Pelletier is a qualified technician and the officer in charge of the file. She arrived at the station around 9:30 p.m. She waited for the accused in the hallway.

When the accused arrived, she noted that she was walking very slowly and had red eyes. [21] Because she was a woman, she went into the room where the accused was to be searched. [22] The accused refused to stand and be searched. She was still handcuffed and announced that she could remove the handcuffs herself. [23] Officer Pelletier took a step back and waited. After a few seconds, the accused accepted that Officer Pelletier remove the handcuffs and search her.

However, she still refused to identify herself and asked the police to drive her home so that she could get her driver’s licence. [24] Shortly thereafter, Officer Yan Pelletier came back with confirmation of the accused’s identity.

On her end, Officer Véronique Pelletier prepared the breathalyzer test and did a first practice test at 9:42 p.m. [25] She returned to the room where the accused was being held – the accused was still refusing to cooperate or to speak to a lawyer. [26] In fact, the accused did the opposite of whatever was asked of her. [27] Seeing the accused’s behaviour, the qualified technician understood that the file would probably end with a refusal.

She again explained the consequences of a refusal to the accused who said she understood. [28] When Officer Véronique Pelletier asked her to repeat what she had understood, the accused refused to do so because she did not want it to be written down and used against her. [29] Shortly after, the qualified technician gave her a mouthpiece to practice how to blow into the machine. [30] The accused took the mouthpiece and put it on the table. She refused to practice. [31] The qualified technician wanted to bring her in front of the machine so that she could formally refuse once she was at the machine.

She took her by the arm to help her stand. The accused fought her and she let go. [32] The accused refused to go into the room where the breathalyzer test was. Because she was sitting on a rolling chair, the qualified technician rolled her into the breathalyzer room. [33] At that moment, the accused finally stood up and entered the adjacent room where the breathalyzer test was. When she was three or four steps away from the machine, she refused to go any closer. [34] When the accused wanted to leave the room, the police held her by the shoulders.

She stiffened, they tried to sit her down and had to take her to the floor. [35] Once she calmed down, the accused still refused to say the words “that she refused”, opting instead for all manners of avoidance. She sat on the bench, she went back to the floor where she turned on her side and pretended to sleep.

Later, she got up, walked towards the room where the breathalyzer test was and then returned again to sit on the bench saying “that she didn’t want to go in there and if that’s what it takes, I don’t want to go home.” [36] She had difficulty expressing herself and articulating her words. [37] At 9:56 p.m., the technician asked her again if she wanted to take the test. The accused replied that her position was the same.

When asked what her position was, she finally clearly refused at 9:57 p.m. [38] The qualified technician specified that she preferred to take her time and to gather sufficient evidence before declaring an official refusal, so that there would be no doubt in court. This is why, she advances, she asked the accused 10 times if she was refusing to blow.

She truly wanted her to say the word “refuse” so that it would be clear. [39] For the qualified technician, the accused understood exactly what was happening and the implications of her refusal. [40] The technician observed that the accused had slow, hesitant reflexes and spoke incomprehensibly. The smell of alcohol was present during the entire intervention as were the accused’s mood swings – she was sometimes calm, sometimes aggressive. [41] The accused has been a member of the Chambre des notaires since 1998.

At the time of the events, she had just ended a difficult romantic relationship, marred by physical violence and financial troubles. This relationship ended in May 2013. [42] The accused has been a heavy drinker since the age of 13. She has a drinking problem and calls herself an alcoholic.

In her family, her father and her brother are also alcoholics. [43] Since 1997, she has had four psychiatric evaluations confirming a diagnosis of bipolar disorder. [44] On the morning of August 25, 2013, she went to buy two cases of beer – one of 24 bottles, the other 12. [45] She began drinking around 11:00 a.m. and continued until the events in question.

[46] She has absolutely no memory of leaving the house. The only image that remains in her mind is having put on her evening gown. After that, she woke up the next morning in the cell at the police station. [47] She vomited in the taxi on the way back to her home. Once she arrived, she slept until noon. She had urinated in her bed while she slept. [48] Because she had no previous memories, she established how much alcohol she had consumed by counting the empty bottles. There was a case of 12 empty beer bottles as well as two other open bottles on the counter.

In addition, she counted two open wine bottles – one was completely empty and the other had some wine left, but she couldn’t say how much. She emptied the bottle in the sink. [49] The 750 ml bottle of Ménage à Trois wine contained 13.5% alcohol. The 330 ml Corona beers she drank contained 4.6% alcohol. [50] At the time, she was a daily drinker, drinking more intensely on the weekends. The accused mostly drank beer and very rarely drank wine. [51] Her habitual consumption was five to six beers a day during the week. She generally drank at home alone, although sometimes she drank with friends.

She wasn’t in the habit of going to bars. [52] She handles beer very

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