2013 QCCQ 11330, 2013 QCCQ 11330

Unofficial English Translation R. c. Bélanger 2013 QCCQ 11330 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ST-FRANÇOIS LOCALITY OF SHERBROOKE "Criminal and Penal Division" No.: 450-01-074258-125 DATE: September 27, 2013 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

JENNIFER BÉLANGER Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Introduction [ 1 ] After a holiday cocktail party, the accused called on the services of a designated driver service to return to her residence. During the trip, she suddenly began to experience a serious panic attack and asked to be let off in front of a neighbour's home rather than her own. Believing herself to be alone and safe, she took her car and drove the last few hundred meters.

Seeing the car of the individuals who had driven her home, she moved her vehicle again and parked in another neighbour's driveway, where she remained hidden inside her car, leaning against the steering wheel, until police officers arrived. These officers proceeded to arrest her. [ 2 ] In her defence, the accused submits that she never intended to drive her car while intoxicated and that her conduct was involuntary. Issues in dispute [ 3 ] Was the accused's action of driving her vehicle while impaired by alcohol involuntary? [ 4 ] What was the cause of this involuntary conduct?

Was it due to a mental disorder or not? [ 5 ] If the Court finds that it was an involuntary act, is it a denial of mens rea defence and/or a defence of automatism? Relevant facts [ 6 ] The accused is a university professor. Around 6 p.m. in the evening of December 15, 2011, she drove her car to her faculty Christmas party. She fully intended to use the services of a designated driver service such as "Nez Rouge" on the return trip.

She had done just that the previous year, since she never risks driving her car after consuming a certain amount of alcohol. [ 7 ] Toward the end of the evening, the accused asked for "Nez Rouge" or a similar designated driver service to be called to take her home. [ 8 ] Mélina Désy Bédard, a volunteer with Nez Rouge, arrived at the party to drive the accused home.

Her first contact with the accused was warm; she found her to be enthusiastic and very happy. [ 9 ] Désy Bédard drove the vehicle of the accused, who was sitting in the back seat, while an assistant sat in the front passenger seat. [ 10 ] In the car, they asked for her address, but the accused refused, preferring instead to give them directions. On the way, when Désy Bédard asked for directions to the home, she noted a drastic change in the accused's attitude.

She became haughty with them and spoke slowly, over-enunciating her words, indicating that she felt that they lacked intelligence because they did not have university degrees. [ 11 ] After parking where the accused told them to, Désy Bédard saw the accused open the driver's side door of her vehicle. She asked

her if she needed anything but received no answer. She saw the accused get into her car and start it. She observed her backing into a low stone wall and leaving the scene. Seeing this, Désy Bédard called the police to report the commission of an offence. [ 12 ] She watched the accused drive about 100 meters, stop, start again, drive another 300 or 400 meters, and stop once again.

She observed the accused inside the car, leaning over the steering wheel as if hiding. [ 13 ] The accused explains that when the attendant asked for her address, she felt as though she had been asked for the personal identification number to her bank card. From that moment, she began to panic. [ 14 ] On the way, when she saw that they were heading toward her home, she panicked, became anxious, and then [ translation ] "lost it" when she saw that they were nearing her street. This is when she became arrogant with the attendants. She was panicking and did not know what to do.

All that she could think of was to ask them to let her off in front of her neighbour's house. The only thing she wanted at that moment was for the attendants to leave the scene as quickly as possible so that she could go home in peace. [ 15 ] After exiting her car, she got back in because she wanted to go home. When she backed up, she saw the attendants' car nearby. What occupied her thoughts at that moment was that they would know where she lived. On two occasions, she drove about 300 meters, staying near her home.

Once she had parked her car in a neighbour's driveway, she tried to hide by leaning forward, in which position the police officers later found her. She was in such a panicked state that she was unable to control her bladder and wet herself. [ 16 ] This behaviour is the result of several prior traumas related to home invasions by strangers, the first of which occurred when she was seven years old. She experienced an even more traumatic event when she was twenty-three years old and was assaulted in her home during the night.

Following that incident, she developed a series of issues including nightmares, hypervigilance, light sleep, and above all a strong feeling of insecurity in her own home. [ 17 ] In 2010, she confronted a burglar around her home and in March of 2011, she saw a burglar cross her property and shatter her neighbour's window. These events brought back the traumas she had experienced since childhood and caused her to have abominable nightmares and wake up in a sweat. [ 18 ] When at home, she is constantly vigilant.

Sometimes, she will get up twenty times a day to check who is going to collect mail at the communal mail boxes placed in front of her house. She has secured her home by installing video cameras. She has bought an escape ladder to exit through her second story window, and she always keeps an axe in her room. [ 19 ] In 2011 and 2012, she experienced significant symptoms and stress that made her downright sick. Her main fear is for her safety, and she has previously had panic attacks while at home. She has been seeing a psychologist for this issue since the events of 2011. [ 20 ] Dr.

Pierre Gagné, a psychiatrist and director of the University of Sherbrooke forensic clinic, met with the accused for the purposes of this case. He wrote a report that was filed during his testimony for the defence. [ 21 ] Dr. Gagné's diagnosis is specific and incontrovertible: The accused suffers from a clear and classic case of post-traumatic stress disorder (PTSD).

This disorder is part of the larger family of anxiety disorders, and Bélanger presents all the physical symptoms consistent with this issue. [ 22 ] Because of the incident experienced by the accused when she was twenty-three in particular, when she was assaulted in her home by an ex-boyfriend, she truly fears being attacked in her home. The moment her fear is triggered, she has a panic attack. In the incident at issue, the fact that her address would become known triggered her panic and reason flew entirely out the window.

Her panic created a state of thought paralysis, making her incapable of adequately analyzing the situation. Panic overtook her mind, and her only thought was to adapt her behaviour to protect herself. [ 23 ] In this case, she had to flee in the car to escape from a threat. At that moment, the accused did not have the intention or notion of driving. She was motivated only by a need to flee. [ 24 ] The conclusions in Dr. Gagné's report reveal the following: [ translation ] In

summary, Ms. Bélanger is a thirty-six year old woman, without a criminal record, facing charges of impaired driving and driving over 80. Prior to the event that occurred on December 15, 2011, Ms. Bélanger presented with symptoms of post-traumatic stress disorder characterized by, among other things, uncontrollable fear and feelings of distrust toward strangers. This distrust, which she felt on the night of her arrest, led her to ask to be dropped off at a neighbour's house instead of her own.

She was distrustful of the attendants and did not want them to know her address, fearing consequences from them because of the comments she had made to them earlier. When she moved her car from her neighbour's driveway, she decided not to go home immediately. She panicked when she saw that the vehicle was following her. She stopped at the first house where she saw lights and remained in her car, afraid, until police officers arrived on the scene. It appears obvious to me that she was acting to flee from imminent danger and that her mental state made any other solution impossible.

This episode is directly related to the post-traumatic stress disorder she has had for over a year and the panic attack she was having at the time. [1] [ 25 ] Finally, the evidence in the police report also demonstrates that the accused repeatedly communicated the fact that she was afraid and did not want any retaliation at her home from the persons she feared. Positions of the parties [ 26 ] Counsel for the accused submits that his client's version is corroborated by the civilian witness and the police officers who

intervened. The expert evidence is uncontradicted and clearly demonstrates that the accused did not intend to drive and that she did not have the mens rea required to commit the offence. Dr. Gagné clearly explained the accused's state of mind that night and alcohol had no bearing on the situation. [ 27 ] With respect to the accused's state of mind, her counsel refers to R. v.

Khoumsi , [2] a dangerous driving case in which my colleague, Champoux J.C.Q., acquitted Khoumsi because he did not have a blameworthy state of mind that should be criminalized, given the state of panic he was experiencing at the time of the events. [ 28 ] As for the Crown, its position is completely different. It argues that, when the arrogant comments she made to the attendants are considered, the accused did not exhibit the behaviour of a person who was scared. It is surprising that she would have been afraid of individuals who were there to help her.

Furthermore, it is not very credible that a person who claims to be afraid would take her car rather than ask for help. Finally, the accused invoked this situation in defence that same night, while at the police station; it is surprising that a panicked person would explain the nature of her defence to police officers the very night on which the events occurred. Analysis [ 29 ] In the present case, the fact that the accused was impaired and had a blood alcohol level above the legal limit is not contested.

Nevertheless, the Court must determine whether the prosecution has proved the essential elements of the offence beyond any reasonable doubt. Has the accused raised a valid defence based on an involuntary act, resulting in a denial of mens rea , that is, the defence of automatism. [ 30 ] From the outset, the Court states that it believes the version of the accused without hesitation and without a shadow of a doubt. The accused is an intelligent person, without any criminal record whatsoever, who, according to the evidence adduced, is prudent and does not drive when she has been drinking alcohol.

How can this perspective be reconciled with the fact that this person called a designated driver service and, fifty meters from her home, took the wheel of her car and drove a few hundred meters farther. From the outside, this conduct appears completely irrational in the circumstances and inconsistent with the fact that the accused chose to be driven home knowing that she was in no state to drive. [ 31 ] Furthermore, the version of the accused is corroborated by the testimony of the attendant who very clearly noticed the accused's change of attitude when she was asked for more precise directions to her home.

This corresponds to the accused's testimony, which situates the appearance of the uncontrollable panic at a time when they were nearing her home. [ 32 ] According to Dr. Gagné, it is therefore obvious that on the night of December 15, 2011, because of her post-traumatic stress disorder, the accused was trying to [ translation ] "flee from imminent danger and that her mental state made any other solution impossible". [3] This expert evidence was uncontradicted and is entirely accepted by the Court.

Essential elements of the offence [ 33 ] In Khoumsi , my colleague the Honourable Judge Champoux stated the following on the subject of criminal intent: [ translation ] 41 In principle, behaviour can be considered criminally wrong only when two aspects are present: the actus reus and the mens rea . These are, respectively, the physical or material aspect of the act and the mental or intellectual aspect of this same act. 42 First, the act committed must be wrong, as it is understood by the law.

This act or action must be voluntary, as opposed to, for example, an action caused by a spasm or by a push or a shock received that causes an unforeseen and involuntary action or movement. 43 Second, this action must be coupled with a certain state of mind. The state of mind must be blameworthy.

The perpetrator of the action must know what he or she is doing and desire the consequences of his or her actions. [4] [ 34 ] According to the founding principles of our criminal law, it has always been distasteful to hold an individual liable for his or her actions when that individual is unconscious or when those actions were involuntary. [ 35 ] With respect to the offence of impaired driving, in R. v. Toews , [5] the Supreme Court defines the offence of impaired driving as follows: ... I am of the view that the intention of an accused charged under s. 234(1) [now section 253(1) Cr.

C. ] [6] is relevant in so far as it may contribute to the presence of the required mens rea for the offence or tend to exclude it. The mens rea for driving while impaired is the intent to drive a motor vehicle after the voluntary consumption of alcohol or a drug. The actus reus is the act of driving where the voluntary consumption of alcohol or a drug has impaired the ability to drive. [7] [ 36 ] According to the evidence adduced and accepted by the Court, considering Dr.

Gagné's expert report, it is clear that on the night of December 15, 2011, the accused did not use her vehicle with the intent to drive, but rather to flee from imminent peril and hide. She did this while her mind was in such a state of panic that it was paralysed and she could no longer form any intent whatsoever with respect to the situation. [ 37 ] In these very particular circumstances, the Court entertains a reasonable doubt as to the accused's intent to drive a motor vehicle after voluntarily consuming alcohol on the night of December 15, 2011.

Defence of automatism [ 38 ] The criteria for this defence were defined by the Supreme Court of Canada in Stone [8] and Fontaine , [9] and clearly summarized

by the Court of Appeal in R. v. Boivin . [10] The Court of Appeal stated the following: [ translation ] 19 Non-mental disorder automatism is a defence that, if accepted, allows an accused to receive an absolute acquittal of the charges laid against him or her. Automatism is defined "as a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action". 20 This defence is tantamount to denying the voluntary nature of the act that constitutes a component of the actus reus . 21 The law assumes that people act voluntarily. Since the defence of automatism boils down to arguing that

an act was involuntary, it is up to the accused raising this defence to rebut the presumption of the action's voluntary nature. 22 The accused who raises the defence of non-mental disorder automatism then bears a double burden of proof. [ 39 ] With respect to the evidence, the accused first bears an evidentiary burden. Once that step is completed, it then bears a persuasive burden. It is incumbent on the accused to prove the involuntary nature of the act on a balance of probabilities. [ 40 ] The defence of post-traumatic stress disorder was allowed in R v.

MacInnes [11] for similar charges of impaired driving and having a blood alcohol level of over 80 mg while driving a vehicle. In that case, the accused was experiencing post-traumatic stress disorder after two tours in former Yugoslavia as a member of the Canadian Armed Forces.

The judge had also been presented with expert evidence confirming the accused's post-traumatic stress and, after analyzing the evidence and applying the criteria in Stone , the judge acquitted the accused because he found that his actions were the result of non-mental disorder automatism rendering his actions involuntary: There was no motive to the act, in the sense that the accused stood to gain something.

The crime in my view is not explicable without reference to the alleged automatism. … On all of the evidence, I am satisfied on a balance of probabilities that the accused was in a state of automatism at the relevant times, and as a consequence his actions were involuntary. [12] [ 41 ] In this case, it appears clearly from the evidence adduced that the accused, because of the post-traumatic stress disorder, acted only to flee and that driving the vehicle in such circumstances was involuntary.

As Wenden J. says in MacInnes , she had no motive to act as she did on the night of December 15, 2011, if not for the automatism. [ 42 ] In his Traité de droit criminel [13] Professor Hugues Parent says the following on the matter: [ translation ] By eclipsing individual conscience, automatism destroys the ability of individuals to act for themselves. Thus, automatism prevents individuals from acting voluntarily from a moral or normative standpoint.

Even though the proximity, or even the subordination, of the voluntary physical act to the voluntary moral or normative act must be acknowledged, we find it possible, even preferable, to maintain a close connection between automatism and the moral element of actus reus .

This conclusion rests solely on the present state of case law and the pointlessness of reversing a situation that, at first glance, does not pose any real theoretical problem. [ 43 ] The Court therefore accepts that on the night of December 15, 2011, the accused was triggered by the fact that, halfway home, she realized that strangers would know where she lived. From that moment, she could no longer control herself rationally because of the PTSD-related panic that set in. Her actions henceforth became unconscious and she had but a single goal, to flee from danger.

In this case, in her mind, this meant ensuring that those who represented a threat to her at that moment did not know where she lived. [ 44 ] The accused's insecurity and fear of being attacked are real.

Indeed, in her bedroom, she sleeps with an axe nearby as well as a ladder to escape from the second storey should she be attacked. [ 45 ] The Court considers that it has been presented with clear evidence establishing on a balance of probabilities that, at the time of the events on the night of December 15, 2011, the accused was in a state of automatism rendering her actions involuntary. [ 46 ] Second, the Court must also determine if this was automatism with or without mental disorder as defined by Bastarache J. in paragraph 161 of Stone . [14] The distinction is important because one instance would lead to an application of the prescriptions set out in

section 16 of the Criminal Code whereas the other would lead to an absolute acquittal. [ 47 ] Following his report dated October 17, 2012, Dr. Gagné answered a question put to him by counsel for the accused on November 5, 2012, regarding Ms. Bélanger's mental state on the night of December 15, 2011. He answered precisely and clearly that [ translation ] "... Ms. Bélanger's state of mind during the incident that occurred on December 15, 2011, cannot be considered a mental disorder within the meaning of

section 16 since the state of panic was produced by an external stressor, not a mental illness. [15] [ 48 ] Thus, the Court finds that the post-traumatic stress was caused by an external element and that in these circumstances, the accused presented a non-mental disorder defence of automatism and, consequently, she must receive an absolute acquittal. FOR THESE REASONS, THE COURT [ 49 ] ACQUITS the accused on the two charges stated in the information.

__________________________________ ÉRICK VANCHESTEIN, J.C.Q. Mtre Jessica Bergeron For the Director of Criminal and Penal Prosecutions Mtre Patrick Fréchette For the accused Date of hearing: September 3, 2013