This week’s top three summaries: R v Shire, 2023 ONSC 762: Corbett app #violence, R v Frank, 2023 BCSC 202: #obstruction, and R v Perignon, 2023 BCSC 147: #automatism via medications.
This week’s top case deals with admissibility of criminal records of an accused. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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R v Shire, 2023 ONSC 762
[February 1, 2023] Corbett Application: Exclusion of Offences of Violence for Similarity [Justice Boswell]
AUTHOR’S NOTE: Special rules apply to the admissibility of the criminal record of the accused for cross-examination by the Crown. This case provides a textbook application of the principles to exclude similar offences of violence in a murder case. The principles recognize that propensity reasoning is sometimes too powerful for a jury to ignore, even with appropriate judicial instructions.
RULING ON MR. SHIRE’S CORBETT APPLICATION
[1] Ryan Babineau and a number of his friends were gathered in a small apartment in downtown Barrie on the morning on November 16, 2019. The apartment was a drug house and they had been ingesting drugs all night long, including fentanyl and cocaine.
[2] Three men entered the apartment at roughly 7:00 a.m. It is agreed that those three men were Abad Shire, Cory Greavette and Tyler Wren. Within minutes, Mr. Babineau lay dead or dying from more than 60 stab wounds.
[3] …Mr. Shire proceeded to trial on a charge of second degree murder. The Crown asserts that he, or he and Mr. Greavette, inflicted the stab wounds that killed Mr. Babineau.
[4] The Crown’s case was completed as of January 17, 2023. Mr. Shire signalled a desire to testify. But he has a criminal record with some 36 convictions registered between December 13, 2011 and December 22, 2022. At least eight of those convictions involve offences of violence. He applied to the court for an order restricting the convictions that he could be cross-examined on by the Crown. An application of this nature is conventionally referred to as a Corbett application. See R. v. Corbett, [1988] 1 S.C.R. 670.
[5] By way of brief oral reasons delivered on January 18, 2023, I granted Mr. Shire’s application and I ordered that his criminal record be redacted as requested by the defence. I undertook to provide written reasons in support of my ruling. These are the reasons.
The Governing Principles
[6] …Where an accused has a criminal record, he or she may be cross- examined on it: Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, s. 12.
[7] The Supreme Court ruled in R. v. Corbett, [1988] 1 S.C.R. 670, that trial judges have the discretion to exclude prejudicial evidence of prior convictions of an accused person in an appropriate case, notwithstanding the provisions of s. 12 of the Canada Evidence Act.
[9] The prior criminal record of an accused person, including convictions for offences of violence, may have a direct bearing on the credibility of an accused person who chooses to testify. In other words, it may be relevant and probative evidence. In certain circumstances, however, the prior convictions of an accused person, while relevant, may be unduly prejudicial to his fair trial right. Where that is the case, the trial judge may restrict the extent to which the accused may be cross-examined on those prior convictions.
[10] To be clear, the direction from Corbett is that judges should start from the premise that juries should receive all relevant information, accompanied where necessary by an appropriate caution or limiting instruction. Orders restricting the jury’s access to information about the criminal record of an accused should be made only where there are clear grounds to do so: R. v. Mayers, 2014 ONCA 474, para. 5. That is not to say that the court’s discretion to restrict or limit cross-examination on the criminal record of an accused person should only be exercised in exceptional circumstances. The rule is that evidence of prior convictions is admissible in cross- examination of an accused person, subject to a discretion to exclude such evidence where its probative value is exceeded by its prejudicial effect: R. v. Charland, [1996] A.J. No. 819 (Alta. C.A.), at para. 19.
[11] While Justice LaForest dissented in the result in Corbett, he did not part ways with the majority on the governing principles to be applied in this type of application. He provided a number of factors that a court ought to consider in exercising its discretion. Those factors were set out at paras. 152-158 of the decision and include:
(a) The nature of the previous conviction(s). Keeping in mind that the limited use of the prior record relates to the assessment of the witness’s credibility, a conviction for perjury or other crimes of dishonesty are far more telling about a person’s honesty and integrity than is a conviction for assault;
(b) The similarity between the prior conviction and the index offence, having regard to the dangers of propensity reasoning;
(c) The proximity of the prior offence(s); and,
(d) Fairness to both the Crown and the accused. In this sense, where an accused attacks the credibility of Crown witnesses, he or she should not be insulated from his or her own criminal record, lest a distorted view be left with the jury.
The Anticipated Defence Evidence
[12] For obvious reasons, Mr. Shire had not yet testified at the time I heard his application. His counsel provided a brief overview of what she anticipated his defence would be. In particular, she indicated that he would testify that, while present at the scene of the killing, he did not participate in it. He would say that Mr. Greavette, and only Mr. Greavette, stabbed Mr. Babineau. His anticipated evidence would directly contradict that of one of the Crown’s principal witnesses who testified that Mr. Shire and Mr. Greavette participated equally in the stabbing.
The Convictions in Issue
[13] Mr. Shire’s criminal record begins with Youth Court entries in December 2011 and continues, more or less unabated, to December, 2022. There are, in total, 36 convictions on his record. They include convictions for breach of probation (x4), breach of recognizance (x12), failing to attend court, forcible confinement, forcible entry, being unlawfully in a dwelling house, possession of a Schedule I substance of the purpose of trafficking, possession of a Schedule II substance for the purpose of trafficking, conspiracy to commit an indictable offence, obstructing a police officer (x4), theft under $5,000, robbery (x2), assault, assault with a weapon (x2), and assault causing bodily harm (x3).
[14] Mr. Shire seeks to limit the Crown’s cross-examination by redacting some eleven offences from the record that will go before the jury. They are the convictions for forcible entry, forcible confinement, robbery (x2), assault, assault with a weapon (x2) and assault causing bodily harm (x3).
[15] The Crown concedes a number of the redactions sought. In particular: (1) Youth Court convictions for forcible confinement, being unlawfully in a dwelling house and assault with a weapon, all dating back to December 13, 2011; (2) a Youth Court conviction for robbery entered July 12, 2012; and (3) a November 12, 2013 robbery conviction.
[16] In the result, only six convictions are in issue: one for forcible entry, one for assault, one for assault with a weapon and three for assault causing bodily harm.
Discussion
[18] As former Chief Justice Dickson held in Corbett, as above, at paras. 35-36:
In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.
[19] Dickson, C.J.C., recognized, however, that an accused who testifies has a dual character. He is, like any other witness, subject to attacks on his credibility. At the same time, as an accused person, he is entitled to be shielded from evidence that does nothing more than blacken his character. A balance must be struck. That balance involves a weighing of the probative value of the evidence intended to be used to attack credibility against the prejudice likely to be occasioned by the introduction of such evidence.
[20] I will therefore begin with an examination of the probative value of Mr. Shire’s criminal antecedents.
Probity
[21] …To be fair, the attack on Ms. Rothon’s evidence was largely grounded in concerns about the reliability of her evidence. She is a recovering opioid addict, was high on fentanyl at the time of the incident, and suffered a stroke at some point prior to trial that has impaired both her short and long-term memory.
[22] Mr. Shire’s counsel also questioned Ms. Rothon about her not insignificant criminal record and a copy of it was marked as an exhibit at trial. That said, the cross-examination on Ms. Rothon’s record was minimal.
[23] As I noted, at the time this application was argued, Mr. Shire’s testimony was expected to directly contradict Ms. Rothon’s account of the events in issue. His credibility and reliability would be squarely in issue in the trial.
[24] This is a murder trial. The stakes are high. The Crown understandably wants to leave no stone unturned in challenging the credibility and reliability of Mr. Shire’s account of the events in issue. The Crown will be asking the jury to completely reject his account.
[25] The content of Mr. Shire’s criminal record is relevant to the jury’s assessment of his credibility. It is presumptively fair game…..
[26] Having said all of that, the Supreme Court recognized in Corbett that certain types of convictions are more significant than others in terms of the assessment of credibility. Crimes of dishonesty, for instance, may say more about a person’s veracity than do crimes of violence. That is not to say that crimes of violence are incapable of impacting on a witness’s credibility. To the contrary, a number of convictions for assaults and other offences may provide reasonable support for an inference that the accused witness has a general disregard for the laws and rules of society. Such a person may be more likely to lie.
[27] Mr. Shire has 36 prior convictions. If I redact all of the convictions for violent offences as requested by his counsel, there will remain 25 convictions on his record. Those include convictions for theft, obstruction of justice and sixteen breaches of probation orders and recognizances. In other words, even if the six violent convictions in issue are redacted, the remaining convictions will still leave a strong impression of an individual who has a demonstrated disregard for court orders and the rule of law in general. They will make a strong statement about his credibility.
[28] Undoubtedly, the addition of a further six offences would leave an even stronger impression about Mr. Shire’s lack of respect for law and order. But in my view, they will not substantially add to the equation….
…But in this case, even if the redactions are made as requested, the Crown will still have a good deal to work with in terms of Mr. Shire’s history of criminality.
[29] …In the result, the probative value of the impugned convictions is modest.
Prejudice
[30] The potential prejudice associated with the convictions in issue, however, cannot be described as modest. Mr. Shire is on trial for an extremely violent offence. The unlawful act that led to Mr. Babineau’s death was, indisputably, an assault with a weapon. Two of the six convictions in issue were for that very offence. Another three were for assault causing bodily harm. These convictions tend to strongly support an inference that Mr. Shire has a propensity for violence.
[31] In the context of Mr. Shire’s defence, in which he will point to Mr. Greveatte as the lone assailant, evidence that Mr. Shire had a propensity for violence is hugely prejudicial, particularly in light of the fact that the jury will have no evidence of Mr. Greavette’s propensity, if any, for violence.
[32] The risk that the jury may engage in impermissible propensity reasoning is palpable.
[35] In my view, evidence of the prior convictions for serious violent offences will unfairly prejudice Mr. Shire because they so strongly support the conclusion that Mr. Shire has a propensity for violence. Evidence of such a propensity will give rise to both moral and reasoning prejudice.
[36] …Courts can and do proceed on the assumption that juries accept and follow the instructions given to them by trial judges. See R. v. Suzack, [2000] O.J. No. 100, at para. 128. In the particular circumstances of this case, however, it would be difficult for the jury to disabuse themselves of the knowledge that Mr. Shire has a history of serious violent criminality when they are assessing his evidence that it was Mr. Greavette alone who stabbed Mr. Babineau.
[37] Even with a limiting instruction, the prejudice to Mr. Shire’s fair trial right remains, in my view, significant.
The Balance
[38] In the end, I find that the balancing of probity and prejudice favours the redactions sought by the defence. Given Mr. Shire’s substantial criminal record, evidence of a history of violent criminality is not necessary to establish that he has a demonstrated lack of respect for the law and the rules of society. In the result, the impugned convictions are not significantly probative of Mr. Shire’s credibility. At the same time, they are highly prejudicial in view of their strong tendency to support a propensity on Mr. Shire’s part to engage in serious violence.
[39] The defence application was granted for the foregoing reasons. Mr. Shire’s criminal record was redacted as requested.
R v Frank, 2023 BCSC 202
[February 10, 2023] Obstruction: Criminal act must be beyond de minimis [Justice Schultes]
AUTHOR’S NOTE: This case demonstrates through its facts how an act that is very likely meant to obstruct a peace officer can nevertheless fail to cross the threshold of a criminal act. Here, the mother of someone fleeing the police ran on an intercept course towards a pursuing officer. However, the officer did not slow down and in fact was not slowed in his pursuit despite noticing her attempt to interfere. The result was that on summary conviction appeal, the court found that the trial judge failed to address whether the accused’s acts interfered with the police officers ability to act in the execution of his duty. On this basis, the court ordered a new trial.
Introduction
[1] This is an appeal by Ms. Frank of her conviction for obstructing a peace officer, Cst. Duquette of the RCMP, on September 8, 2020. The trial judge found that Ms. Frank had interfered with Cst. Duquette’s efforts to arrest her adult son Riley Frank[1] outside of her home, by impeding his progress as he ran after her son.
Relevant Evidence at Trial
[3] On the evening of September 8, members of the RCMP went to Ms. Frank’s house to attempt to arrest Riley. They believed that he had committed a domestic violence-related mischief at another location, and there was a warrant outstanding for his arrest on another matter.
[4] The occupants did not allow the officers to enter the house to look for him, so the officers formed a perimeter around it to prevent him from escaping, and made arrangements to obtain a warrant authorizing them to enter it and carry out the arrest.
[5] After the warrant had been obtained, but before the officers entered the house, Riley fled out of the rear of the house.
[6] Cst. Duquette had been assigned to watch that area of the house. He began to chase Riley, who ran through a gap in the fence on the property. There was evidence that the property slopes downward toward this fence.
[7] Ms. Frank and her co-accused Ms. Alphonse, who was not dealt with in this trial, were outside of the house in the same area. A few minutes earlier, Ms. Frank had engaged in a verbal confrontation with the officers about their authority to be on her property (although she ended up giving the officers a key to the house so that they would not damage the door when they entered).
[8] Cst. Duquette said that as he was running after Riley, he saw Ms. Frank in his peripheral vision, running towards him. He described her as being on an “intercept course” with him, and that she was running at her “best possible speed”. In cross- examination he explained that this meant that Ms. Frank (and Ms. Alphonse) were proceeding at “[a]s best of a run as they could manage at the time, …considering their physical condition, level of intoxication.” In his view running involves the “moving of the legs as fast as your body will carry you”. Although he regretted his choice of words, he agreed that in his police report he had described Ms. Frank’s movement as “drunken waddling”. In explaining his use of the term “waddling”, he drew an analogy to speed walkers, who have “a bit of a waddle when they walk…as in the movement of the hips.”
[9] Ms. Frank managed to “get to” him as he was running through the gap in the fence, he said. She was in motion until he passed her. He was later told by another officer that he put his arm out to stop her, but he did not remember having done that – he “just kept running after Riley.”
[10] He said that he did not recall anything that had obstructed him in that interaction with Ms. Frank. However, he qualified this by explaining that it was his first foot pursuit of this kind, and that as a result “tunnel vision kicked in”. He was so focused on not allowing her son to escape that “a lot of things tuned out, basically”.
[11] Most significantly on this point, he had the following exchange with Ms. Frank’s counsel:
Q: And in fact on this particular day, although you have no recollection of her making any contact with you or you making any contact with her, she never impeded your movement towards [her son], to catching him…
A: Correct [Emphasis added]
[12] Cst. Martin,
[13] He described Ms. Frank as being in a “football stance waiting for [Cst. Duquette] to arrive”. He further defined this stance as “ready to a tackle” and “ready for someone to come at her”. Her feet were planted in a shoulder-wide stance and her hands were in front of her in a “grapple stage”. She was facing Cst. Duquette, who was running directly towards her, which was also in the direction of the gap in the fence. In other words, she was in Cst. Duquette’s way as he approached the gap. (Cst. Martin described this gap as the “gate” in his evidence.)
[14] He said that at that point that she “reached out” with both arms to Cst. Duquette, who “put his arm out and more move[d] her aside and continued pursuing after [her son]” Cst. Martin described her motion “more of a lunge and a stationary position towards [Cst. Duquette]” (by which he may have meant “from” a stationary position). Her arms had previously been at her side, at shoulder-width, and her movement was to bring them up to chest level. Cst. Duquette’s arm “put her off balance”, he added.
[19] Cst. Hogue-Denomnee
[21] With respect to Ms. Frank, he did not recall any physical contact between her and Cst. Duquette, but did see him “changing his direction very quickly to avoid her”. It was “possible” that Cst. Duquette had pushed her away with a straight arm.
Reasons for Judgment
[28] The trial judge’s essential reasoning leading to the conviction was:
[20]…I find that there is external consistency between all three that place Ms. Frank and the co-accused in the middle of the fray one way or another.
[23] I find that, although the officers had different versions of the method of obstruction, their evidence was internally and externally consistent with the elements of the offence. And again, I will repeat that she knew that Constable Duquette was a police officer; knew his duty or reason for being there; and she “foresaw with substantial certainty that doing the actions that she did would obstruct Constable Duquette.”
[24] On the evidence as a whole, I find her conduct was not accidental, reckless or careless, but purposeful and wilful. It is not like the example set out in [R. v.] Alsager, 2016 SKCA 91, where a parked vehicle in a narrow lane blocks a pursuit of police officers in pursuit of a subject. In my view, on the uncontroverted evidence, Ms. Frank went towards the action.
[25] I find that moving towards Constable Duquette while he was in pursuit of her son created an intentional barrier to Constable Duquette and, accordingly, I find Ms. Frank guilty of obstructing a police officer.
Discussion
[41] Dealing first with proof of the actus reus, Crown counsel is quite correct that it is not necessary for an accused’s actions to completely frustrate a peace officer’s execution of their duties for that element of the offence to be satisfied. The Khan decision, which was relied on by Ms. Frank’s counsel, analyzed the authorities and concluded that what is required is something more than a “fleeting or momentary diversion”, and that the de minimis principle applies to actions of an accused that do not produce such an effect: see paras. 24-25.
[42] The problem with the present decision however, is not with the degree of interference that was found. My conclusion is that the trial judge erred in her analysis of whether the actus reus had been committed, by failing to address and reconcile key evidence on the essential element of whether Cst. Duquette’s ability to act in the execution of his duty in arresting Riley was affected at all by Ms. Frank’s action.
[43] Her assertion that “all versions are compatible when observed at different viewpoints over time period of approximately 10 to 20 seconds” failed to take into account Cst. Duquette’s own evidence that Ms. Frank never impeded his movement towards Riley. It was essential, if the trial judge was to prefer Cst. Martin and Cst. Hogue-Denomnee’s descriptions of Cst. Duquette having to avoid Ms. Frank over Cst. Duquette’s own version of events, to explain how she was able to do so.
[44] …she found that what he and the officers described were all reconcilable as different perspectives on the same events over the period of time in which the interaction with Ms. Frank occurred, without addressing how Cst. Duquette’s own perspective might have affected that finding. This was an error.
[45] Although that conclusion is sufficient to resolve the appeal, I will also address the other grounds.
[46] I am not persuaded that the trial judge erred in identifying the presence of the required mens rea….
…This was the exact language used by the Saskatchewan Court of Appeal in the Alsager decision that she referred to:
(c) the accused either had an intention to obstruct the peace officer or foresaw with certainty or substantial certainty that doing the act in question would obstruct the peace officer.
[Emphasis added]
Conclusion
[52] The appeal is allowed.
[53] …I will order a new trial.
R v Perignon, 2023 BCSC 147
[January 27, 2023] Automatism: Non-mental disorder, Prescribed medications and alcohol [Justice Milman]
AUTHOR’S NOTE: This case follows in the the footsteps of R v Brown, 2022 SCC 18, to illustrate how a moderate amount of alcohol coupled with a volatile cocktail of prescription medication can lead to a successful automatism defence. Here, the defendant struggled with a combination of pain medication and sleep medication over an extended period of time. Some of those drugs appear, in the expert opinions, to have been over-prescribed. The key to the outcome was the court’s inability to locate a motive for the husband attacking his wife and his lack of history of violence. However, there are also elements in this case that the Crown will often cling to in an attempt to suggest lucidity (eg. the accused’s post offence statements about attempting to hurt his wife, not kill her; saying on the 911 call that he did something really stupid, and saying to 911 dispatch that inflicted a ‘not killing wound’). All these factors did not convince the trial judge that the accused was in fact in control of his faculties at the time of the offence.
I. Introduction
[1] The accused, Jean-Luc Perignon, stands charged with one count of aggravated assault, contrary to s. 268(2) of the Criminal Code, R.S.C. 1985, c. C-46. He does not dispute that on April 17, 2017, he stabbed his then wife in the back with a kitchen knife, as the Crown alleges.
[2] Despite what occurred, he asks the court to find him not guilty, on the grounds that he was not acting voluntarily at the time. In particular, he claims that he was in a state of automatism, unassociated with any mental disorder, as a result of having consumed a cocktail of prescription drugs and alcohol prior to the incident.
[3] …Because the law assumes that, in general, people act voluntarily and are responsible for their actions, Mr. Perignon bears a heavy burden to demonstrate that the ordinary presumption should not apply here. Nevertheless, he says that he has met that burden.
II. The Facts
[5] I will begin my discussion with a recitation of the background facts, which are generally not in dispute.
[6] Mr. Perignon was born in France in 1962. He moved to Canada at a young age. He eventually found his way to Montreal, where, after trying his hand at various careers, he worked as an IT consultant. He met his future wife, Debra Perignon, in 1990. They were married in 2007 and remained together until the incident that is the subject of this proceeding. They have three daughters, Rochelle, Kaitlin and Olivia. The older two daughters testified as part of the Crown’s case. Mr. Perignon has had no contact with his former wife or their youngest daughter, Olivia, who still lives with her, since that time.
[7] Mr. Perignon’s relevant medical history begins with injuries he sustained in two motor vehicle accidents, the first in 2002 and the second in 2007. The earlier of these occurred when he was still living in Montreal. He was struck by a motor vehicle while he was crossing a busy street in downtown Montreal as a pedestrian. As a result of that accident, he suffered a compression fracture in his spine.
[8] He was treated initially with physiotherapy and simulated cell regrowth. He soon became dependent on escalating dosages of opioids to control his pain. These issues exacerbated a problem he had been having for much of his adult life with insomnia. Since the 1980s, when he was in his late teens, he had been taking bromazepam, a drug in the benzodiazepine family, to help him sleep.
[10] They had not been living on the Sunshine Coast for very long before Mr. Perignon was involved in a second motor vehicle accident, which exacerbated his pre-existing injuries. Dr. Scott tried to reduce Mr. Perignon’s intake of opioid medications but Mr. Perignon did not respond well to the change. Dr. Scott referred him to Dr. White, a psychiatrist, for cognitive behavioural therapy. Mr. Perignon remained primarily under the care of Dr. White for the next ten years, until the incident that is the subject of this proceeding. Over those years, Dr. White attempted, with some success, to reduce Mr. Perignon’s opioid intake.
[11] In the meantime, Mr. Perignon’s consumption of bromazepam for insomnia continued unabated. That medication allowed him to sleep well. On June 1, 2016, however, the British Columbia College of Physicians and Surgeons amended its professional standards and guidelines to prohibit the prescription of benzodiazepines or sedative hypnotics together with opioids. After becoming aware of the new restriction, Dr. White told Mr. Perignon that he could no longer continue taking opioid medications together with bromazepam, but had to choose one or the other. Mr. Perignon decided to give up bromazepam, because his wife had just been laid off from her job and he thought it more important that he control his pain so he could continue working. Mr. Perignon’s PharmaNet records show that on July 14, 2016, he was dispensed bromazepam for the last time prior to the date of the alleged offence.
[12] The same document issued by the College ended with the following note of caution: “Benzodiazepine tapering should be gradual because of the significant risk of benzodiazepine withdrawal.” It appears that warning went unheeded in Mr. Perignon’s case. Soon after he stopped taking bromazepam, he began having withdrawal symptoms. His insomnia returned with a vengeance. He recalls having tremors. In consultation with Dr. White, he began experimenting with a variety of substitutes, including trazodone, clonazepam, quetiapine, cyclobenzaprine, duloxetine and pregabalin. None of these were successful in restoring a stable sleep pattern. Over the Christmas holiday in 2016, he tried yet another drug, baclofen, but it caused him to sleep through the whole of Christmas day. In his frustration, he says he tried, on one or two occasions, to force himself to sleep by consuming large quantities of vodka, but this made him nauseous rather than sleepy. He testified that he consumed no vodka on the date of the alleged offence, and indeed, he was not observed doing so.
[15] Because of the pharmacological similarity between zopiclone and the benzodiazepines, the same dangers arise when either are combined with opioids. In light of these and the various other risks it poses, it is not recommended that patients take zopiclone more than ten days in a row.
[17] Strange as it may seem, Mr. Perignon’s account is confirmed to some extent by the PharmaNet records. They show that on April 6, 2017, 11 days before the date of the alleged offence, he was dispensed 30 tablets of zopiclone at the increased concentration of 7.5 mg per tablet. Mr. Perignon says that in keeping with Dr. White’s instructions, he took one tablet on April 12, 1.5 on April 13, two on April 14, 2.5 on April 15, three on April 16 and 3.5 on April 17. At 7.5 mg per tablet, the latter dose would have amounted to a total of 26.25 mg. According to Dr. Kolchak, one of the psychiatrists who testified at trial, this was “well beyond the recommended range of prescription for this medication.”
[18] While experimenting in this way with zopiclone, Mr. Perignon also continued to take a dangerously high dosage of opioids, the equivalent of 400 mg of morphine per day. Dr. White had already reduced Mr. Perignon’s opioid intake from a previous peak at the equivalent of 1650 mg. Dr. Lu, another of the psychiatrists who testified for the defence, put those quantities into perspective by explaining that a dose of 200-300 mg is enough to be fatal for someone naïve to opioids. Current guidelines suggest that any dose greater than 90 mg is considered high-risk….
[19] So matters stood with Mr. Perignon’s prescription drug regimen when, on the Easter weekend in April 2017, he and Ms. Perignon hosted their three daughters in their home for the holiday. Also staying with them that long weekend was Kaitlin’s then partner, Russell Dunsford.
[21] Although, as I have already noted, Mr. Perignon did not consume vodka on that date, he did have three or four drinks of pastis, an anise-flavoured liqueur, which he mixed with water, around or just before dinner time. The dinner ended at around 7:30 or 8 pm.
[22] After dinner, Ms. Perignon and Olivia went into the living room to watch a movie. Mr. Perignon came into the room while they were doing so and wanted to discuss his latest plan to replace the opioids with lighter medications. Ms. Perignon told him that she did not want to have that discussion with him at that particular time. After a second unsuccessful attempt to speak to her, he returned to his bedroom.
[23] After the movie ended at around 10 pm, Ms. Perignon sent Olivia to bed and went to the front door to let the dog out before retiring to bed herself. As she was doing so, she heard Mr. Perignon’s footsteps on the stairs behind her. She never saw him, nor did she hear him say anything. She felt a “thump” in her back and realised she had been stabbed. She reached behind her back for the knife and pulled it out herself, cutting her thumb badly in the process. She recalls screaming and having trouble breathing as Kaitlin and Mr. Dunsford came to her aid a few minutes later.
[24] Mr. Perignon’s testified that his memory of the events that occurred on that day blended into one another. He recalls having dinner with the family and retiring to his home-office to watch a movie. As was his routine at the time, he took trazodone, an antidepressant, and his usual mix of opioids three times that day. Approximately ten minutes before retiring to bed, he also took the 3.5 tablets of zopiclone that I have already mentioned. After that, he remembers taking off his shoes and socks before getting into bed. He remembers feeling pain in his back.
[25] His next memory is standing over his wife while she was lying on the floor in front of him, screaming in pain. He remembers seeing the kitchen knife on the floor near her. He was in shock. He did not know how he had got to the front door on the ground floor – his bedroom was on the second floor. He recalls running back up the stairs to his bedroom to retrieve his cell phone in order to call 911. He locked himself in the bedroom because he feared he might pose a danger to the others present in the house.
[26] According to the 911 call log, he reached the dispatcher at nine minutes past 10 pm. He stated that his wife was badly injured and needed an ambulance. When asked what was going on, he responded that he had just stabbed her. He was then asked where his wife was at that moment. His response was that, “she’s okay, … it wasn’t a killing wound …” After asking several times where the ambulance was, and as he was heading back downstairs, he stated to either the dispatcher, his other family members, or the police officer who had just arrived, that he “just did something really stupid.”
[28] Mr. Perignon has only sporadic memories of the ride to the police station. He remembers sleeping soundly in the cells that night. On April 19, 2017, he gave a lengthy statement to the police that was, with some minor exceptions that I will discuss later, generally consistent with his testimony at trial.
[29] By the end of following month, Mr. Perignon had stopped taking opioids altogether. Soon after that, he resumed taking bromazepam and has had no difficulty sleeping since then.
III. The Psychiatric Evidence
[31] Dr. Kolchak noted that Mr. Perignon’s behaviour at the material time, if one accepts his account of what occurred, resembled complex sleep behaviour. However, it was unclear to Dr. Kolchak precisely what was going on in Mr. Perignon’s mind at the time. Dr. Kolchak considered the possibility that the stabbing was triggered in part by anger towards his wife, perhaps as a result of an argument they may have had just before. Even if that were so, however, in Dr. Kolchak’s view, it is likely that Mr. Perignon was intoxicated by the prescription medications he had consumed and that he was experiencing adverse effects attributable to them. As a result, in Dr. Kolchak’s view, it is likely that Mr. Perignon’s ability to foresee the consequences of his actions was at least to some degree impaired by the effects of those medications.
[32] Dr. Lu was more categorical in his opinion. His report contains the following assertions:
… [Mr. Perignon] was certain to be in a state of impaired mental awareness, and more likely, he was [in] an altered sleep state. More likely than not, he was in a state of complex sleep related behaviours. As such, Mr. Perignon would not be aware of his actions nor be able to form basic intent.
[33] Dr. Lu added that his opinion in that regard was bolstered by the fact that Mr. Perignon’s condition had stabilised after he discontinued his opioid consumption and went back on bromazepam. That sequence of events was, in his view, “highly consistent” with the conclusion that Mr. Perignon was suffering from severe sleep disorder at the time of the alleged offence.
[34] The Crown adduced no expert evidence.
IV. The Legal Framework
[35] There is also no dispute between the parties about the applicable law. Although not contentious, the legal framework is complicated by the fact that, after the evidence was concluded, but before I received closing arguments, the Supreme Court of Canada struck down former s. 33.1 of the Criminal Code as unconstitutional: see R. v. Brown, 2022 SCC 18. That provision had operated, in cases involving crimes of violence of the kind in issue here, to render the defence of automatism unavailable in certain circumstances. Since then, Parliament has enacted a replacement provision, but the parties agree that it does not apply retroactively to this case.
[36] The outcome of this case therefore turns on whether Mr. Perignon has satisfied the common law test for automatism. The nature of and rationale for the defence was explained by Kasirer J. writing for the court in Brown, as follows at paras. 46-8:
[47] Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or “external” shock, or conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey, at p. 523). Physical voluntariness is a principle of fundamental justice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morally innocent (Daviault, at p. 74; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46-47; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 45). Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt (R. v. Théroux, [1993] 2 S.C.R. 5, at pp. 17-18). This is distinguished from moral involuntariness, which describes scenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act (Ruzic, at para. 44).
[48] In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where an accused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts. Imposing criminal liability in the absence of proof of fault also offends the principles of fundamental justice (Motor Vehicle Reference, at pp. 513-15).
[38] With respect to the former, before the accused can raise the defence before a jury, he must:
a) assert that his act was involuntary; and
b) adduce logically probative evidence from a qualified expert supporting the claim, upon which a properly instructed jury could find that the impugned act was involuntary.
[39] In assessing whether the accused has met the second branch of that test, the court is to consider all of the relevant circumstances. Some of the factors that will bear on the analysis were listed by Bastarache J., writing for the majority, in R. v. Stone, [1999] 2 S.C.R. 290, as follows, at para. 192:
a) the severity of the triggering stimulus;
b) corroborating evidence of bystanders;
c) corroboratingmedicalhistoryofautomatistic-likedissociativestates;
d) whether there is evidence of a motive for the crime; and
e) whether the alleged trigger of the automatism is also the victim of the automatistic violence.
[40] In this case, the Crown concedes, and I agree, that Mr. Perignon has met the threshold burden so as to justify putting the defence to a jury. Because I am sitting in this case as a judge alone without a jury, I will consider those factors and others in greater detail when I consider whether Mr. Perignon has met his persuasive burden to show that his act was indeed an involuntary one.
[41] Before addressing that question, a second preliminary issue arises as to whether it is “mental disorder automatism” or “non-mental disorder automatism” that should be left with the trier of fact in the circumstances of this case. That issue turns on whether the condition asserted by Mr. Perignon to explain his conduct can be identified as a mental disorder, in which case different consequences will follow: Stone at paras. 193-222. There are two principal considerations that bear on the analysis in that regard:
a) the “internal-cause” factor (that is, whether an otherwise normal person might have entered into an automatonic state in similar circumstances); and
b) the “continuing danger” factor, which focuses on the risk to public safety.
[42] Here too, the Crown concedes, and I agree, that the question to be answered in this case concerns non-mental disorder automatism exclusively….
[43] The only issue upon which the parties disagree, and on which the outcome of the case therefore turns, is whether Mr. Perignon has met his legal or persuasive burden to demonstrate that his conduct was indeed involuntary, due to non-mental disorder automatism. It is to that ultimate question that I now turn.
V. Analysis
[45] …Crown counsel argues that the preponderance of the Stone factors tilts in favour of conviction. In urging that conclusion, Crown counsel emphasized the following factors:
a) Mr. Perignon was not a credible witness, inasmuch as his capacity to remember important details was suspiciously selective; and
b) assuming Mr. Perignon consumed the zopiclone tablets at 10 pm, as he testified, there would not have been enough time between then and the stabbing for the effects of the zopiclone to be felt, given that the stabbing had already occurred by 10:09, when he made the 911 call.
[46] One difficulty I have with the Crown’s submission is that the Stone factors are not intended to be exhaustive, nor are they intended to be a tally, with the outcome turning on how many of them favour one result or the other. Each factor will assume different degrees of importance in different cases.
[47] Here, the lack of both a motive and an obvious trigger figures prominently in the analysis. I say this because Mr. Perignon’s act is very difficult to explain in any way other than as the defence urges. Not only was there no argument between Mr. and Ms. Perignon in the leadup to the incident, they had their children staying with them in the house that weekend. I am left with no explanation as to why
Mr. Perignon, if he was indeed acting intentionally, would have chosen that moment in particular to attack his wife. Conversely, the fact that he immediately called 911 and was evidently anxious for help to arrive quickly, tends to negate the suggestion that he consciously intended to cause her harm at any stage.
[50] Having regard to some of the other Stone factors, it is noteworthy that Ms. Perignon thought that Mr. Perignon’s behaviour and appearance was particularly strange at dinner that evening. On the other hand, Mr. Perignon had no previous history of complex sleep behaviours or dissociative states. That being said, there was evidence of his having slept through Christmas day after taking baclofen in 2016. More importantly, the medical evidence suggested that the side effects of zopiclone were capable of being idiopathic – that is, they could well have appeared out of nowhere, especially if, as was claimed to be the case here, the medication was being taken in escalating doses. What is equally important here, in my view, is the fact that Mr. Perignon had no history of violence either.
[51] Another line of evidence that is argued by the Crown to undermine the defence theory arises from some of the remarks that Mr. Perignon is recorded to have made that night, suggesting that, contrary to his testimony at trial, he had in fact been awake throughout. Dr. Kolchak himself was troubled by Mr. Perignon’s statement to the police, when told that he was being held for attempted murder, that he did not intend to murder his wife but only to hurt her. He told the 911 dispatcher that what he had inflicted on his wife was “not a killing wound.” Towards the end of the 911 call, Mr. Perignon can be heard, as he was being taken into custody, stating to those present that he “just did something really stupid.” How could he have said those things, Crown counsel argues, had he not been fully aware at the time of his actions and intentions.
[52] I accept that these statements could be taken to connote an intact memory and intentional conduct. However, it was never put to Mr. Perignon in cross- examination that he acted intentionally. In any event, the more compelling inference to be drawn is that he was, in making those statements, reconstructing events to explain what had occurred, without having actually experienced it consciously. One of the most important pieces of evidence supporting that exculpatory inference arises from the response he gave when he was asked by the 911 dispatcher where the knife was. He answered that he had thrown it on the floor. What he could not have known at the time was that Ms. Perignon would later remember removing the knife from her back herself. Indeed, she had, in doing so, sustained a cut to her thumb that later required stitches. That evidence strongly suggests that Mr. Perignon, in his confusion, was trying to weave together a coherent narrative to explain what had just occurred, rather than relating real memories.
[53] As Crown counsel argues, the defence theory is also undermined to some extent by the apparent timing of Mr. Perignon’s consumption of zopiclone in relation to the stabbing. The psychiatric evidence was that zopiclone would have to have been the essential ingredient in bringing about a somnambulistic state, with the opioids and alcohol contributing but not capable of doing so on their own.
Dr. Kolchak noted in his report that it was surprising that the medications, if indeed they had had that effect, would have worn off sufficiently to render Mr. Perignon as alert as he appeared to be when he was taken into custody. However, both psychiatrists testified in cross-examination that it was possible, if unlikely, for the zopiclone to have taken effect in the few minutes available, assuming the timing was indeed as reconstructed by Crown counsel.
[55] Taking the evidence as a whole, as I must, I have concluded that Mr. Perignon was, at a minimum, operating in a severely impaired state of mind at the material time. Although it is possible that he acted intentionally despite that impairment, the more likely explanation for his conduct is that it was entirely involuntary because it occurred while he was effectively asleep. In other words, I am satisfied on a balance of probabilities that the offence with which Mr. Perignon stands charged was not a voluntary act but was committed while he was in a state of non-mental disorder automatism.
VI. Summary and Conclusion
[56] Having been satisfied that Mr. Perignon did not act voluntarily when he committed the act of which he is accused, I find him not guilty.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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