minicounsel

Between

Her Majesty The Queen

prosecutor

and

P. R. L.

defendant

Ontario Court of Justice

Brampton, Ontario

Before: Quon J.P.

Reasons for Judgment

Charges

Section 128 H.T.A. – Speeding: 105 k.p.h. in posted 60 k.p.h. zone
Section 216 H.T.A. – Fail to stop for a police officer and willfully continued to avoid police while a police officer gave pursuit pursuant to s. 216(2) and (3)
Section 142(1) H.T.A. – Fail to signal lane change
Section 7(5)(a) H.T.A. – Fail to surrender permit

Trial held: October 9, 2012 and March 5, 2013

Judgment rendered: June 11, 2013

Counsel

R. Prihar and J. Stinson, prosecutor

P. R. L., unrepresented

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Reference Material Cited

Bloom, H. and Schneider, R.D. Mental Disorder And The Law: A Primer for Legal and Mental Health Professionals (Toronto, Ontario: Irwin Law Inc., 2006)
Libman, R. Libman on Regulatory Offences in Canada (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) (in update 8 - November 2006)
Medical Review Section, online: Ontario Ministry of Transportation website
Roach, K. Criminal Law, 5th ed. (Toronto, Canada: Irwin Law Inc., 2012)

Exhibits Entered

Exhibit "1" – Letter dated March 1, 2013, on Trillium Health Centre letterhead, from Suzanne Legault, MD, FRCP(C), Consulting Psychiatrist, South Etobicoke ACT Team, regarding P. R. L., that certifies that P. R. L. suffers from a mental illness, namely Bipolar Disorder, and that this condition was first diagnosed in 2010, and that the infractions which occurred in March 2011 may have resulted from poor judgment arising from P. R. L.'s mental disorder. In addition, the letter also indicates that more recently, from June to December 2012, P. R. L. was ill with manic psychosis, and that this condition had interfered with P. R. L.'s appreciation of reality and led P. R. L. to engage in a number of actions, which were dictated by P. R. L.'s psychotic state of mind. In addition, the letter indicates that P. R. L. was hospitalized at Trillium Health Centre from December 31 to February 11, 2013 for treatment of P. R. L.'s Bipolar Disorder. As well, the letter indicates that P. R. L. is currently living in the community under a Community Treatment Order and the supervision of an ACT team (1 page).

1. INTRODUCTION

1"P. R. L.", the defendant, was charged with committing several traffic and parking offences in 2011 and 2012. However, in 2010, which is prior to the period when these offences were allegedly committed, the defendant had been diagnosed with having a bipolar mood disorder. Heartbreakingly, the defendant presently resides in a shelter, has no income, and has lost the custody of her child. She has also been hospitalized for her mental illness, but is currently living in the community under the supervision of a Community Treatment Order, which has been issued by a physician under s. 33.1(1) of the Mental Health Act, R.S.O. 1990, c. M.7. Community Treatment Orders, which usually last for six months and which may be renewed, provide persons who suffer from a serious mental disorder with a comprehensive plan of community-based treatment, care, and supervision, which is less restrictive than being detained in a psychiatric facility. Furthermore, these community-based treatment initiatives, which allow persons with a serious mental disorder to continue living in the community, is delivered to them by an Assertive Community Treatment (ACT) team, which is comprised of professionals with backgrounds and training in social work, rehabilitation, counselling, nursing, and psychiatry.

2For the present regulatory charges, the defendant had been operating a motor vehicle on March 21, 2011, in the City of Brampton, which resulted in her being charged with committing four Part III offences under the Highway Traffic Act, R.S.O. 1990, c. H.8, namely:

(1) for speeding 105 k.p.h. in a posted 60 k.p.h. zone, which is contrary to s. 128;

(2) for failing to stop for police officer and for willfully continuing to avoid police while a police officer gave pursuit according to s. 216(2) and (3), which is contrary to s. 216(1);

(3) for failing to signal a lane change, which is contrary to s. 142(1); and

(4) for failing to surrender a permit for the vehicle she had been operating, which is contrary to s. 7(5)(a).

3In response to these charges, the defendant has submitted a letter written by a psychiatrist from the Trillium Health Centre in Mississauga, which indicates the defendant is being treated for a bipolar disorder and that her actions in respect of the traffic offences may have been due to her mental disorder. Specifically, the letter from the psychiatrist confirmed the defendant had been diagnosed with the bipolar disorder in 2010 and suggested that the defendant's parking and Highway Traffic Act charges, which she had accumulated in 2011 and 2012, may have resulted from the defendant's poor judgment due to the defendant's mental disorder, and that she had been recently hospitalized for approximately 6 weeks between December 31, 2012 to February 11, 2013.

4However, the prosecution, in their reply to the mental disorder issue, raises concerns about the veracity of this particular defence and the use of the mental disorder defence in general, especially when the evidence of the defendant's state of mind at the time of the offence is being based on a medical letter that could be obtained and used by an accused person inappropriately.

5Ergo, the principal issue to be resolved in deciding whether the prosecution has proven the defendant committed the four offences beyond a reasonable doubt, is whether the defendant can rely on the mental disorder defence as an excuse for her actions on the day in question, which is based on a letter from a psychiatrist who did not testify at the trial of the four regulatory charges.

6Moreover, the trial of these four charges had been held on two separate days: October 9, 2012 and March 5, 2013. However, it was not until March 5, 2013, when the court had been first made aware of the defendant's medical condition and the possibility of the mental disorder defence and the issue of whether the defendant should be found not legally responsible for committing these four regulatory offences because of her mental disorder. However, no expert evidence about the nature and severity of the defendant's mental disorder had been called or presented to the court, especially as it would relate specifically to the defendant's actions on March 21, 2011. In addition, the only testimony about the defendant's mental illness came from the defendant's social worker, who had been working with the defendant for the last month, as part of the Assertive Community Treatment team that is overseeing the defendant's Community Treatment Order. Consequently, because of the defendant's mental disorder issue and its possible effect on the outcome of the trial, I reserved judgment and adjourned the matter until to June 11, 2013, to render my decision. These, therefore, are my written reasons for judgment:

2. THE CHARGES

7Under a Part III information sworn on April 11, 2011, the defendant had been charged with committing four Highway Traffic Act offences: (1) speeding 105 k.p.h. in a posted 60 k.p.h. zone; (2) fail to stop for police officer and willfully continue to avoid police while a police officer gave pursuit; (3) fail to surrender permit; and (4) fail to signal lane change. These four charges are specifically the following:

(1) Speeding

P. R. L. of [removed to protect privacy], Mississauga Ontario

on or about the 21st day of March 2011, at the City of Brampton in the Central West Region did commit the offence of did unlawfully drive a motor vehicle, license number [removed to protect privacy] on a highway to wit: Hurontario Street at a greater speed than the speed limit, to wit: at 105 km/hr in a posted 60 km/hr zone

Contrary to Section 128 of the Highway Traffic Act

(2) Fail to Stop for Police Officer

AND FURTHER THAT P. R. L.

on or about the 21st day of March 2011, at the City of Brampton in the Central West Region, being the owner of a motor vehicle, did unlawfully fail to immediately bring the said motor vehicle to a safe stop when required to do so by a police officer, who was readily identifiable as such in the lawful execution of his duties and responsibilities,

AND IT IS FURTHER ALLEGED PURSUANT TO SUBSECTION 216(2)(3) OF THE ACT DID WILFULLY CONTINUE TO AVOID POLICE WHILE A POLICE OFFICER GAVE PURSUIT

Contrary to Section 216(1) of the Highway Traffic Act

(3) Fail to Signal Lane Change

AND FURTHER THAT P. R. L.

on or about the 21st day of March 2011, at the City of Brampton in the Central West Region, being the operator of a motor vehicle, license number [removed to protect privacy] did operate the said motor vehicle on Hurontario Street at approximately 1:25 p.m., and before changing from one lane to another lane of traffic, did unlawfully fail to give a signal plainly visible to the driver or operator of another motor vehicle, of the intention to make such a movement,

Contrary to Section 142(1) of the Highway Traffic Act

(4) Fail to Surrender Permit

AND FURTHER THAT P. R. L.

on or about the 21st day of March 2011, at the City of Brampton in the Central West Region, did operate a motor vehicle, license number [removed to protect privacy] on a highway, to wit: Hurontario Street at approximately 1:25 p.m., and did unlawfully fail to carry the permit or a true copy thereof for said motor vehicle, and did unlawfully fail to surrender such copies for inspection on demand of a police officer,

Contrary to Section 7(5)(a) of the Highway Traffic Act

3. BACKGROUND

(a) SUMMARY OF EVENTS

8For the present traffic charges, the defendant had been driving a light-blue coloured two-door Toyota Echo motor vehicle southbound on Hurontario Street in the City of Brampton on March 21, 2011, at approximately 1:25 p.m. At the same time, Cst. Christine Judd, a police officer with the Peel Regional Police, who had been in her full police uniform and who had been situated in her low-profile police cruiser that had been parked and facing westbound on Pine Ridge Lane, which was on the northbound side of Hurontario Street in the City of Brampton. Cst. Judd had been specifically at that location doing speed enforcement and had been monitoring the speed of vehicles travelling northbound and southbound on Hurontario Street with a Laser Atlanta unit, which is a device that can accurately measure the speed of moving vehicles, as wells as determining the distance a vehicle is away from the laser device when a speed reading is done.

9In addition, the interaction between Cst. Judd and the defendant began when Judd first observed the defendant's light-blue coloured Toyota Echo motor vehicle approaching Cst. Judd's position and travelling at a high rate of speed in the passing lane of the southbound lanes of Hurontario Street. Judd then aimed the laser unit or speed measuring device at the front grill of the defendant's vehicle and obtained a reading of 105 k.p.h., which had exceeded the posted speed limit of 60 k.p.h. for the area the vehicle had been travelling in. There were speed limit signs or markers on Hurontario Street located approximately every 200 meters that indicated the speed limit was 60 k.p.h. for that area. The speed limit did not change to 80 k.p.h. until further south of where Cst. Judd had been situated.

10Once the laser device's reading had indicated that the speed of the defendant's vehicle had exceeded the posted speed limit by 45 k.p.h., Officer Judd then moved her cruiser to go into the southbound lanes of Hurontario Street, so she could follow and pursue the speeding vehicle. Shortly after she got into the southbound lanes of Hurontario Street, she turned on the cruiser's flashing lights and siren and then got behind the defendant's vehicle.

11Despite the police cruiser's lights and siren having been activated for signalling the defendant to pull her vehicle over, the defendant did not immediately stop her vehicle and had only brought her vehicle to a stop when the traffic in front of her vehicle had to come to a stop for a red light at the intersection of Sir Lou Drive and Hurontario Street. Once the defendant's vehicle had come to a stop, Cst. Judd exited the cruiser, walked to the driver's side window of the defendant's vehicle, and then looked at the female defendant, who had been the lone occupant in the vehicle and occupying the driver's seat. Judd then made several demands of the defendant to produce her driver's license, ownership, and insurance for the motor vehicle, as well as to pull over at the next exit.

12However, Cst. Judd said the defendant had refused to provide Judd, who had been in her full police uniform, with the requested license and documents. Then, when the traffic light for the southbound lanes of Hurontario Street had changed to a green light, Judd said the defendant just moved her vehicle forward and continued driving southbound on Hurontario Street, without pulling over at the next exit. Because the defendant had driven off when the light turned green, Cst. Judd had to get back into her cruiser and continue the pursuit of the defendant's motor vehicle.

13In addition, Cst. Judd said that she observed the defendant's vehicle drive in and out of traffic and changing lanes several times without signalling. Then, several kilometers later, the defendant's vehicle had to come to a stop for a red light at the intersection of Derry Road and Hurontario Street. Because of concerns about the defendant driving off again, Cst. Judd maneuvered her cruiser in front of the defendant's vehicle in order to block in the vehicle and to prevent it from driving off. Judd had also called for the assistance of other police officers at that point. In response to Judd's call, two other police officers in a police cruiser then arrived at the intersection of Derry Road and Hurontario Street.

14Cst. Judd then exited her vehicle once again and tried to talk with the defendant. She also made another request to the defendant to produce her driver's license, ownership, and insurance documents for the vehicle, but the defendant only rolled down her window about an inch. In addition, the defendant did not unlock or open her door until the other two police officers arrived at Derry Road. It was only then that Cst. Judd had been able to obtain the defendant's driver's license and determine the name on the driver's license was "P. R. L.", at which point Judd had been satisfied with the identity of the female driver of the Toyota Echo motor vehicle as the defendant. Judd then directed the defendant to pull into the gas bar at the southwest corner of the intersection of Derry Road and Hurontario Street.

15Once they were at the gas bar, Officer Judd then charged "P. R. L", the defendant, with committing four Part III offences under the Highway Traffic Act and personally served summonses on the defendant at that time to appear in court on May 19, 2011, at the Ontario Court of Justice at the Brampton Provincial Offences courthouse on Ray Lawson Boulevard in Brampton.

16A Part III information containing the four charges was then sworn on April 11, 2011, at which time the summonses that had been issued by Cst. Judd to the defendant, were also confirmed. However, the defendant did not appear at the courthouse May 19, 2011, and the defendant's four charges were then scheduled for an ex parte trial to be held on September 6, 2011. On September 6th, the ex parte trial did not proceed as the court had decided to issue a bench summons to the defendant to appear on October 27, 2011. On October 27th, someone representing the defendant appeared and the matter was adjourned to January 12, 2012, to be spoken to. On January 19th, the matter was adjourned again to March 1, 2012, to be spoken to. On March 1st, the matter was adjourned once more to April 19, 2012, to be spoken to and marked peremptory to set a trial date. On April 19th, the matter was finally set down for a trial to be held on October 9, 2012.

17On October 9, 2012, the trial of the four charges did commence. However, the defendant was no longer represented and the defendant proceeded to represent herself. In addition, the trial was held over two days: October 9, 2012 and March 5, 2013. At the trial, two witnesses testified. There had been one witness for the Crown and one witness for the defence: (1) Officer Christine Judd, the police officer who had charged the defendant with the four regulatory offences and (2) Merlanie Tapang, the social worker assisting the defendant under the Community Treatment Order.

(b) SUMMARY OF TESTIMONY

18The following is a summary of the testimony given by the two witnesses who had testified at the trial:

(1) Officer Christine Judd

19Cst. Christine Judd had testified she had been working the day shift in the Regional Traffic Unit on Monday, March 21, 2011. She also said for that particular day it had been overcast, mild, lightly raining, and that the roads had been wet.

20In addition, Cst. Judd said at approximately 6:00 a.m. she had signed out a Laser Atlanta Speed Laser 3, with Serial Number 22597. Also, at that time she said she had tested that laser unit according to manufacturer's specifications and that the laser unit had been found to be functioning normally.

21Then at approximately 8:20 a.m., Cst. Judd said she had attended to the location of Hurontario Street, north of Charolais Boulevard, in the City of Brampton, to conduct speed enforcement in that area. She also said she had been operating a low profile white-coloured cruiser and that she had been in full police uniform. Furthermore, she said that as she entered that area she had observed numerous speed markers north of Steeles Avenue. She further said that the speed markers were clear and visible to north and southbound traffic and were located approximately every 200 metres or so.

22In addition, Cst. Judd said she had set up her cruiser so that it was facing westbound on Pine Ridge Lane, which is located on the northbound side of Hurontario. She also said that from that setup she had been able to clearly observe north and southbound traffic on Hurontario Street. In addition, she said the traffic had been moderate to heavy. Furthermore, she said that she had been operating the laser unit from within her cruiser and that she had observed numerous vehicles in the area that were travelling at or below 60 kilometers per hour, which she said was the speed limit in that area.

23Then, later that afternoon, at approximately 1:25 p.m., Cst. Judd said she had observed a light blue two-door Toyota Echo motor vehicle, which had been southbound in the passing lane on Hurontario Street, travelling at a very high rate of speed. She then said she pointed her laser unit at this particular vehicle and the laser unit had registered a reading of 105 kilometers per hour in that zone. Furthermore, she said she had a continuous view of that Toyota Echo motor vehicle and that it had been passing other vehicles on the roadway at the time.

24In addition, Cst. Judd said she then immediately pulled out of her location because she had been lucky enough to have clear traffic, as there had been no northbound traffic at that time. She also said she had been able to pull in behind that Toyota motor vehicle that had the licence plate number of [removed for privacy]. In addition, she said she had then been able to position her cruiser behind the Toyota vehicle and had attempted to stop the vehicle by activating the cruiser's sirens and police lights, which had been a signal for the driver of the vehicle to pull over and stop. Furthermore, she said the driver of the Toyota vehicle did have some clear areas in which the vehicle could have been pulled over and stopped on the roadway. However, she said the vehicle did not stop. Instead, she said the Toyota vehicle continued on at a high rate of speed, which made Judd continued to follow that vehicle. However, she said the Toyota Echo did slow down, as it approached the intersection of Sir Lou Drive and Hurontario Street because it had no other alternative but to stop, due to the traffic immediately ahead of it being backed up at that point for the traffic lights, which had changed to a red light. Furthermore, she said the police lights on her cruiser were still activated at that point.

25Cst. Judd also said that when she was behind the Toyota Echo motor vehicle, she had only observed one occupant to have been in the vehicle. She also said that after the Toyota vehicle had come to a stop, she had exited her cruiser and then approached the driver's side of that vehicle. She then said she had observed a female person, which she then identified as the defendant.

26In addition, Cst. Judd said the defendant had been in the driver's seat and that there were no other persons in the vehicle. Judd then said she had made a demand of the defendant to provide Judd with a driver's licence and insurance. However, Judd said the defendant refused to comply with Judd's request. In addition, Judd said the driver had refused to pull over from that location after Judd had requested the defendant to drive forward once the lights had changed to green and pull into the next roadway exit located by the Ray Lawson courthouse.

27Furthermore, during the time when Cst. Judd had been having this conversation with the defendant during the red light phase in which Judd said she had been telling the defendant to turn off the roadway, the traffic lights then changed again to green and the defendant sped off from that location while Cst Judd had been standing beside the defendant's vehicle. Judd also said the defendant's vehicle continued southbound on Hurontario Street, but had refused to pullover as Judd had requested. Judd then said she turned and got back into her cruiser and went after the defendant.

28Cst. Judd also said the defendant's vehicle at that point had been going at a normal rate of speed, due to the amount of traffic in the area. She then said she had been able to pull up behind the defendant's vehicle once again and had made several attempts with the cruiser's police lights and siren to have the defendant pull over.

29Furthermore, in describing the second time she had attempted to stop the defendant, Cst. Judd said it had been at Ray Lawson Boulevard. However, she said the defendant did not pullover at that location, but had continued on down to Derry Road.

30Then, as Cst. Judd approached Derry Road in her cruiser, she said she had observed the traffic lights for southbound traffic at Derry Road just turning red. At that point, Judd said the defendant had stopped at the red light at Derry Road because there had been so much traffic on the roadway at that time. When Cst. Judd finally reached Derry Road, she said she then took the opportunity to pull beside the defendant's vehicle and then pull ahead of the defendant's vehicle and then drive into the crosswalk and traffic, and then pulled her cruiser back to block the defendant's vehicle from the front. She then said the defendant's was blocked in so that it could not move and that there would have been no way for the defendant to exit that location without hitting other vehicles.

31Cst. Judd also said she then exited her cruiser and then made a request of the driver of a transport trailer that had been behind the defendant to pull up slightly in order to block in the defendant, as Judd had not been certain whether the defendant would flee again. Judd further said she had been concerned about her safety and had wanted to make sure the defendant would not be going anywhere.

32Furthermore, Cst. Judd said there had been very heavy traffic in that area.

33In addition, Cst. Judd said she then approached the driver's side of the defendant's vehicle which had been stopped at Derry Road, and again made a request to the defendant for the defendant's driver's licence, insurance, and permit. However, Judd said the defendant had refused her request and had only rolled her window down approximately one inch.

34Cst. Judd then said she had continued to have a conversation with the defendant and had tried to explain to the defendant that the defendant had been required to provide these documents to Judd. Judd then said the defendant had refused to provide Judd with the requested documents.

35At this point, Cst. Judd said she had become quite concerned and had requested assistance from other police officers. She also said that shortly after she made her call for assistance, two other police officers then attended and stood by at the scene. In addition, Judd said that it had been only after the other officers had arrived was the point at which the defendant finally unlocked her vehicle and opened the door.

36Cst. Judd then said the defendant informed Judd that the defendant's driver's licence had been in the defendant's purse. When Cst. Judd obtained the defendant's driver's licence, Judd observed that it had been indeed the defendant's driver's licence, with the name "P. R. L." Judd also said the driver's license had been a valid Ontario photo card and that Judd had been satisfied with the identification of the defendant and that the driver of the Toyota Echo had been the defendant who was presently in the courtroom

37However, Judd said the defendant had not been able to provide her permit for the vehicle, but did provide Judd with an expired insurance slip. In addition, Judd said she later confirmed through the insurance company that the defendant had insurance for the vehicle.

38Cst. Judd also explained that once the documents had been obtained from the defendant, Judd had wanted to remove themselves from the roadway for safety concerns, due to the heavy traffic in the area where they were. Judd then said the defendant had calmed down at that point and Judd had directed the defendant to follow Judd southbound to the next exit, which had been the gas bar that was just to the southwest of Derry Road, off of Hurontario Street. She also said the other police officers had followed behind the defendant's vehicle to the next exit.

39Then, when they were at the gas bar, Cst. Judd said she then issued the defendant with four Part III tickets: one for the offence of speeding 105 kilometers per hour in a 60 kilometer per hour zone, one for driver fail to stop when directed by police, one for fail to signal lane change, and the final ticket was for fail to surrender permit for motor vehicle.

40In respect to the "fail to signal lane change" charge, Cst. Judd said that while the defendant's vehicle had been travelling southbound she had observed the vehicle change lanes numerous times, trying to travel through traffic, and did not make any signalling while accelerating.

41Then, at approximately 2:56 p.m., Cst. Judd said she had returned to her division where she had re-tested the laser unit and had found that it had been functioning normally. Moreover, she said that prior to returning to her division she had re-attended the area of Hurontario Street and had observed that the speed markers were still clear and visible in that area.

42In addition, Cst. Judd said she is a qualified laser operator and was last qualified in April of 2011. She also explained that the laser device would accurately measure speed and distance of a moving vehicle and that the laser unit is very precise, and that when the device is pointed directly at a single vehicle it will register only the speed of that particular vehicle. Moreover, she confirmed that had been what had occurred when she had aimed the laser unit at the defendant's vehicle.

43Furthermore, Cst. Judd said she did not lose sight of the defendant's vehicle. In addition, she estimated that the distance she had travelled from the moment she had activated her siren and lights to the point at which the defendant had actually pulled over, had been about five kilometers.

44Moreover, Cst. Judd described the appearance of the low-profile police cruiser she had been operating that day as being a white-coloured police cruiser with muted police markings on it that are white and reflective and is not like a typical police cruiser that is blue and white.

45Cst Judd also said she had tested her cruiser in the morning before she left the area of the station and said that both the siren and the lights for the vehicle had been working normally.

46In addition, Cst. Judd said she had been the one who had written the synopsis that had been provided in the disclosure.

47When questioned about the speed limits for Hurontario Street, Cst. Judd replied that the speed limit for Hurontario Street, north of Charolais Boulevard, in Brampton, is 60 kilometers per hour at that location. She also said there was a police station located south of that area at Sir Lou Drive and Hurontario Street.

48Cst. Judd also said she had requested assistance of other police officers once she had gotten to the intersection of Derry Road and Hurontario Street.

49In addition, Cst. Judd said she had identified herself to the defendant as Constable Judd.

50In explaining how the defendant had been identified in the moderate to heavy traffic that day, Cst. Judd said she had observed the defendant's light-blue coloured two-door Toyota Echo motor vehicle travelling in the passing lane at a very high rate of speed southbound on Hurontario Street. At that point in time, she said that the northbound traffic had subsided and that she had a clear view of the southbound lanes, and that the defendant's vehicle travelled southbound directly past Cst. Judd's location, which had been on the northbound side of Hurontario Street on Pine Ridge Lane. She further clarified that she had been parked on the northside of Pine Ridge Lane, off of Hurontario Street and north of Charolais Boulevard. She also said Pine Ridge Lane is a dead-end street and that she had been parked at the end of the street at Hurontario Street facing westbound. In addition, she said at that point and time she had been observing north and southbound traffic and that had been when she had observed the defendant's vehicle.

51Cst. Judd also said she had been in her cruiser, which had been stationary and parked, when she had observed the defendant's vehicle and when the laser had registered the speed of 105 k.p.h. She also said she had been using the laser unit from the vehicle in a handheld position and had pointed the laser at the defendant's vehicle from her cruiser. In addition, she said she did not look at her dashboard at that time, but only at the laser unit.

52In addition, Cst. Judd said she had also tested a radar device at the same time she had tested the laser unit, but had not used the radar device to register the speed of the defendant's vehicle.

53Also, once Cst. Judd had observed the defendant's vehicle go past her parked position, Judd said she had moved her cruiser into the southbound passing lane on Hurontario Street to go southbound.

54In addition, Cst. Judd said that when she had first observed the defendant travel past, Judd said she then had entered the third lane of three southbound lanes, which had been the passing or fast lane.

55Cst. Judd also said she had been following the defendant's vehicle down Hurontario Street and had activated her cruiser's lights north of Steeles Avenue, shortly after she pulled out from the Pine Ridge Lane location. However, she said the defendant did not make any attempt to stop and had continued to travel in and out of lanes, failing to signal, and continuing to travel through traffic up until the defendant had been forced to stop at Sir Lou Drive because of the traffic in front of the defendant's vehicle that had been stopped for a red light.

56Moreover, Cst. Judd said both officers who had attended at the intersection of Derry Road and Hurontario had been from the Regional Traffic Unit and had already been on the road at the time when they heard Judd's request for additional units.

57In responding to the question of whether a laser can detect another car in front of the defendant's vehicle that was speeding, Cst Judd said the laser unit is very precise, and that when the operator points the laser unit directly at the front of a vehicle, the band of that laser beam is very small in comparison to a radar unit. In addition, she said she had pointed the laser at the grill on the front of the defendant's vehicle.

58Cst. Judd also said she had been able to barricade the defendant in by travelling past the defendant's vehicle on the passenger side of the defendant's vehicle onto the pedestrian crossing area and then pulling up onto the pedestrian crossing area that was just ahead of the defendant's vehicle on Hurontario Street at Derry Road. She then said she reversed her cruiser and stopped at the front of the defendant's vehicle. She also said she then exited her cruiser and motioned to the driver of the transport truck behind the defendant's vehicle to pull up behind the defendant's vehicle, which then barricaded the defendant's vehicle in, so that the defendant could not get away from that location like the defendant had done so at the previous traffic stop at Sir Lou Drive.

59In addition, Cst. Judd said the traffic light at Derry Road had changed to red and that because of the east and west traffic, the defendant had not been able to travel through Derry Road, and had to stop her vehicle. Furthermore, Judd said the defendant's vehicle had been the first vehicle at the stop, which was when Judd had taken the opportunity to block in the defendant's vehicle.

60Merlanie Tapang testified she is the social worker for P. R. L., the defendant, and has been working with the defendant for the last month in respect to a "Community Treatment Order". In addition, Tapang said the defendant had been mandated to meet with Tapang, as ordered by a psychiatrist. Tapang also said the defendant is being monitored by Tapang to ensure that the defendant takes her medication.

61In addition, Tapang said that the defendant's Community Treatment Order is being supervised and monitored by the Assertive Community Treatment team, which she is part of, and which supervises people with severe mental health illnesses who are permitted to remain living in the community while being treated. Moreover, she said the defendant had undergone a thorough assessment.

62Furthermore, Tapang said that the defendant currently resides in a shelter, has no income, and has lost the custody of her son. In addition, Tapang said she helps the defendant deal with financing and housing, and also helps the defendant stick with her treatment in order to keep the defendant out of hospitals.

4. APPLICABLE LAW

63The "fail to surrender permit" offence is set out in s. 7(5)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, and provides that:

Permit to be carried

7(5) Subject to subsection (6), every driver of a motor vehicle on a highway shall carry,

(a) the permit for it or a true copy thereof; and

(b) where the motor vehicle is drawing a trailer, the permit for the trailer or a true copy thereof,

and shall surrender the permits or copies for inspection upon the demand of a police officer.

64In addition, the "speeding offence" is set out in s. 128(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, and provides that:

Rate of speed

128(1) No person shall drive a motor vehicle at a rate of speed greater than,

(f) the maximum rate of speed posted on a highway or portion of a highway pursuant to section 128.0.1.

65Furthermore, the penalty that can be imposed on the defendant if convicted of the "speeding" offence of "105 k.p.h. in a posted 60 k.p.h. zone" is based on the statutory fine set out in s. 128(14)(c) of the Highway Traffic Act, R.S.O. 1990, c. H.8, of $7 for each kilometre per hour that the motor vehicle was driven over the speed limit. In the defendant's case, she would be liable to pay a fine of $315, if convicted:

Penalty

128(14) Every person who contravenes this section or any by-law or regulation made under this section is guilty of an offence and on conviction is liable, where the rate of speed at which the motor vehicle was driven,

(a) is less than 20 kilometres per hour over the speed limit, to a fine of $3 for each kilometre per hour that the motor vehicle was driven over the speed limit;

(b) is 20 kilometres per hour or more but less than 30 kilometres per hour over the speed limit, to a fine of $4.50 for each kilometre per hour that the motor vehicle was driven over the speed limit;

(c) is 30 kilometres per hour or more but less than 50 kilometres per hour over the speed limit, to a fine of $7 for each kilometre per hour that the motor vehicle was driven over the speed limit; and

(d) is 50 kilometres per hour or more over the speed limit, to a fine of $9.75 for each kilometre per hour that the motor vehicle was driven over the speed limit.

66As for the "fail to signal lane change" offence, it is set out in s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, and provides that:

Signalling turns and stops

Signal for left or right turn

142(1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

67Moreover, for the offence of "fail to stop for a police officer and willfully continued to avoid police while a police officer gave pursuit" pursuant to s. 216(2) and (3), the penalty the court could impose upon conviction under s. 216 is a fine, imprisonment, or both a fine and imprisonment. For the range of fine, it would be a minimum fine of $5,000 and a maximum fine of $25,000. For the term of imprisonment that could be imposed, it would be a minimum term of incarceration of 14 days and a maximum term of incarceration of six months. In addition, the court could suspend the defendant's driver's license for five years:

Power of police officer to stop vehicle

216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),

(a) to a fine of not less than $1,000 and not more than $10,000;

(b) to imprisonment for a term of not more than six months; or

(c) to both a fine and imprisonment.

Escape by flight

(3) If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit,

(a) the person is liable to a fine of not less than $5,000 and not more than $25,000, instead of the fine described in clause (2)(a);

(b) the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2)(b); and

(c) the court shall make an order suspending the person's driver's licence,

(i) for a period of five years, unless subclause (ii) applies, or

(ii) for a period of not less than 10 years, if the court is satisfied on the evidence that the person's conduct or the pursuit resulted in the death of or bodily harm to any person.

Lifetime suspension

(4) An order under subclause (3)(c)(ii) may suspend the person's driver's licence for the remainder of the person's life.

Suspension in addition

(4.1) Except in the case of a suspension for the remainder of the person's life, a suspension under clause (3)(c) is in addition to any other period for which the person's licence is suspended and is consecutive to that period.

Notice of suspension

(4.2) Subject to subsection (4.3), in a proceeding for a contravention of subsection (1) in which it is alleged that the person wilfully continued to avoid police when a police officer gave pursuit, the clerk or registrar of the court, before the court accepts the plea of the defendant, shall orally give a notice to the person to the following effect:

"The Highway Traffic Act provides that upon conviction of the offence with which you are charged, in the circumstances indicated therein, your driver's licence shall be suspended for five years".

Same: death or bodily harm

(4.3) In a proceeding for a contravention of subsection (1) in which it is alleged that the person wilfully continued to avoid police when a police officer gave pursuit and that the person's conduct or the pursuit resulted in the death of or bodily harm to any person, the clerk or registrar of the court, before the court accepts the plea of the defendant, shall orally give a notice to the person to the following effect:

"The Highway Traffic Act provides that upon conviction of the offence with which you are charged, in the circumstances indicated therein, your driver's licence shall be suspended for not less than 10 years and that it may be suspended for the remainder of your life".

Idem

(5) The suspension of a driver's licence under this section shall not be held to be invalid by reason of failure to give the notice provided for in subsection (4.2) or (4.3).

Appeal of suspension

(6) An appeal may be taken from an order under clause (3)(c) or a decision to not make the order in the same manner as from a conviction or an acquittal under subsection (2).

Stay of order on appeal

(7) Where an appeal is taken from an order under subsection (6), the court being appealed to may direct that the order being applied from shall be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

68Furthermore, since the Highway Traffic Act is silent on what the penalty could be for contravening the two Part III offences of "fail to surrender permit" and "fail to signal lane change" upon conviction, then these two offences are governed by the general penalty section contained in s. 214(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which establishes a minimum fine of $60 and a maximum fine of $500 that could be imposed on the defendant upon conviction:

General penalty

214(1) Every person who contravenes this Act or any regulation is guilty of an offence and on conviction, where a penalty for the contravention is not otherwise provided for herein, is liable to a fine of not less than $60 and not more than $500.

5. ISSUES

69The following are issues that have arisen in this trial that need to be resolved in order to determine if the prosecution has met its burden of proving that the defendant has committed the four offences as charged beyond a reasonable doubt:

(a) For the four charges, what category of offence would each of the charges fall under in the R. v. Sault Ste. Marie classification of offences?

(b) Do the mental disorder or automatism defences apply to regulatory offences, especially when the offence is classified as an absolute liability offence?

(c) If the mental disorder or automatism defences do apply to regulatory offences, then how do these defences affect the voluntariness of the actus reus of the offence that had been committed by an accused person?

(d) If the mental disorder or automatism defences do apply to regulatory offences, does the defendant have the burden to prove these defences on a balance of probabilities?

(e) If the mental disorder or automatism defences do apply to regulatory offences and the defendant has the burden to prove these defences, has the defendant proven these defences on a balance of probabilities?

(f) If the defendant has the burden to prove the mental disorder or automatism defences, then what is required to be presented to the court to prove those defences?

(g) If the prosecution proves the defendant committed the actus reus of the four offences beyond a reasonable doubt, did the defendant's mental disorder put the defendant in a state of impaired consciousness or to behave as an automaton, which would result in the defendant's conduct being involuntary?

(h) For the purpose of determining whether the penalty provisions under s. 216(3) apply to the defendant, did the defendant wilfully continue to avoid police when a police officer gave pursuit?

6. ANALYSIS

70In this regulatory trial, the defendant was charged with committing four Part III offences contrary to the Highway Traffic Act in Brampton, Ontario, on March 21, 2011. In her defence to the charges, the defendant submitted evidence that she has a mental disorder and that she may have been inflicted with that mental disorder on the date she had allegedly committed those four traffic offences, and as such, may excuse and explain why she had acted the way she did on that day.

71Now, if the defendant were hypothetically facing criminal charges instead of these regulatory charges, then the consequence of the defendant's mental disorder affecting her mental state at the time the offences were committed, such that the defendant would have been rendered incapable of appreciating the nature and quality of her act or omission or knowing that it was wrong, could lead to the special verdict where the defendant would be found "not criminally responsible by reason of mental disorder": R. v. Chaulk, [1990] 3 S.C.R. 1303. However, a verdict of acquittal would not be available in this hypothetical scenario unless the defendant's actions were involuntary and the defendant had been acting as an automaton that had not been from a mental disorder, but had been from some other cause such as from receiving a blow to the head or from a condition such as sleep-walking: R. v. Parks, [1992] 2 S.C.R. 871.

72In addition, when this mental disorder defence is accepted as a valid defence for a criminal offence, then the accused person is given that special verdict of "not criminally responsible by reason of mental disorder", but is not free to go back to their life immediately, but is usually detained at an institution until they are no longer a danger to the public. This special verdict in the criminal law is codified in s. 16(1) of the Criminal Code in which an accused person could be found not to be criminally responsible by reason of a mental disorder because they had lacked the capacity to form the requisite mens rea or mental fault in respect to the offence being committed, even though it had been proven that the accused person had committed the actus reus of the criminal offence beyond a reasonable doubt.

73Furthermore, s. 16(1) of the Criminal Code provides that no person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. In addition, s. 16(2) provides for a rebuttable presumption that every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proved on the balance of probabilities. However, s. 16(3) specifies that the burden to prove the accused person had been suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue, which means either the prosecution or the defence can raise the issue that the accused had been suffering from a mental disorder:

Defence of mental disorder

16(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Presumption

16(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof

16(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

74In short, the mental disorder or automatism defences would apply to an accused person who has committed a criminal act while in a state of impaired consciousness that results in involuntary behavior by the accused person.

75Moreover, when an accused person raises the mental disorder or automatism defence, that proffered defence must meet the air of reality test or the evidentiary burden of proof before the defence can be considered by the trier of fact. Thus, if the accused person raises one of these defences then the accused person has the evidential burden or onus to meet the air of reality threshold.

76However, the defendant in the case at bar has not been charged with committing criminal offences, but with regulatory offences, so the special verdict under s. 16(1) of the Criminal Code would not apply to the defendant. Moreover, there is unfortunately no equivalent statutory provision in the Provincial Offences Act, R.S.O. 1990, c. P.33, which provides for that special verdict of "not criminally responsible by reason of mental disorder". As such, a review of academic commentary and the common law on the mental disorder and automatism defences will have to be undertaken to determine whether these defences would apply to regulatory offences. If these defences would apply in the regulatory sphere, then it will have to be determined who has the burden of proof, what is the degree and nature of the proof that is required to satisfy that burden, and what procedure should be followed to consider these defences.

(A) THE DEFENDANT'S MENTAL CAPACITY TO CONDUCT DEFENCE

77Since the defendant has provided evidence that she has a mental disorder, the question of her capacity to conduct a defence also arises. That issue is governed by s. 44 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which provides that if this court, at any time before a defendant is sentenced, has reason to believe that the defendant suffers from mental disorder, such that she would be unable to conduct her defence, which can be based on the conduct of the defendant in the courtroom or from the evidence of a legally qualified medical practitioner, then the issue of whether the defendant is unable to conduct her defence because of her mental disorder would then be referred to a judge for the determination of that issue:

Trial of issue as to capacity to conduct defence

44(1) Where at any time before a defendant is sentenced a court has reason to believe, based on,

(a) the evidence of a legally qualified medical practitioner or, with the consent of the parties, a written report of a legally qualified medical practitioner; or

(b) the conduct of the defendant in the courtroom, that the defendant suffers from mental disorder, the court may,

(c) where the justice presiding is a judge, by order suspend the proceeding and direct the trial of the issue as to whether the defendant is, because of mental disorder, unable to conduct his or her defence; or

(d) where the justice presiding is a justice of the peace, refer the matter to a judge who may make an order referred to in clause (c).

Examination

(2) For the purposes of subsection (1), the court may order the defendant to attend to be examined under subsection (5).

Finding

(3) The trial of the issue shall be presided over by a judge and,

(a) where the judge finds that the defendant is, because of mental disorder, unable to conduct his or her defence, the judge shall order that the proceeding remain suspended;

(b) where the judge finds that the defendant is able to conduct his or her defence, the judge shall order that the suspended proceeding be continued.

Application for rehearing as to capacity

(4) At any time within one year after an order is made under subsection (3), either party may, upon seven days notice to the other, make a motion to a judge to rehear the trial of the issue and where upon the rehearing the judge finds that the defendant is able to conduct his or her defence, the judge may order that the suspended proceeding be continued.

Order for examination

(5) For the purposes of subsection (1) or a hearing or rehearing under subsection (3) or (4), the court or judge may order the defendant to attend at such place or before such person and at or within such time as are specified in the order and submit to an examination for the purpose of determining whether the defendant is, because of mental disorder, unable to conduct his or her defence.

Idem

(6) Where the defendant fails or refuses to comply with an order under subsection (5) without reasonable excuse or where the person conducting the examination satisfies a judge that it is necessary to do so, the judge may by warrant direct that the defendant be taken into such custody as is necessary for the purpose of the examination and in any event for not longer than seven days and, where it is necessary to detain the defendant in a place, the place shall be, where practicable, a psychiatric facility.

Limitation on suspension of proceeding

(7) Where an order is made under subsection (3) and one year has elapsed and no further order is made under subsection (4), no further proceeding shall be taken in respect of the charge or any other charge arising out of the same circumstance.

78In regards to the defendant's fitness to conduct her defence, the mental disorder issue did not arise until the second day of the trial. On the first day of the trial, the defendant had been self-represented and conducted her own cross-examination of Cst. Judd. It is noteworthy that during the first day of the trial, the defendant had displayed an awareness and sufficient knowledge of the information contained in the disclosure provided to her and a reasonable grasp of the evidence against her and a basic understanding of the factual issues, not unlike most lay people that are self-represented at their traffic offence trials.

79Moreover, the defendant's conduct during the two days of the trial did not demonstrate that she would be unable to conduct her defence because of her mental disorder. As such, based on her conduct during the trial the defendant's fitness during the trial was not a question that needed to be determined by a referral to a judge pursuant to s. 44(1)(d).

(B) THE MENTAL DISORDER OR AUTOMATISM DEFENCES

80On the other hand, the defendant having the capacity and being able to conduct her defence is not an impediment for her to also raise the mental disorder or automatism defences in respect to the four changes she is facing, considering it is the defendant's mental state on March 21, 2011, when she had been operating a motor vehicle at approximately 1:25 p.m. in the City of Brampton that is relevant in assessing her conduct and actions.

81Furthermore, in considering how the mental disorder or automatism defences operate, a good summary of these defences is found in the textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at pp. 279-280, in which Professor Kent Roach has classified both the mental disorder and automatism defences as an excusing defence, but with different outcomes or verdicts:

Like intoxication, the defences of mental disorder and automatism apply to accused who commit criminal acts, but who cannot be found criminally responsible because their mental processes were impaired. It has long been accepted that an offender who, because of a mental disorder, is incapable of appreciating the nature and quality of a criminal act, or of knowing that it is wrong, should not be convicted. The verdict is not a pure acquittal, but rather a verdict of not criminally responsible on account of mental disorder or what used to be called not guilty by reason of insanity. The accused does not automatically go free and can be subject to detention or release with conditions until he or she is determined no longer to be a significant danger to society. In Canada, the mental disorder defence is set out in section 16 of the Criminal Code, and has been revised by both the Supreme Court and Parliament to take into account various Charter concerns.

The defence of automatism is more novel, and applies to an accused who has committed a criminal act while in a state of impaired consciousness that results in involuntary behaviour. If that state is caused by a mental disorder, the accused will be held not criminally responsible by reason of mental disorder. If the cause of the automatism is some other factor such as a blow to the head, the present disposition is to acquit the accused. The defence of non-mental disorder automatism is a common law defence that is not codified. If the cause of automatism producing involuntary behaviour is self-induced intoxication by alcohol or drugs, then the provisions of the intoxication defence discussed in chapter 7 will apply.

82Moreover, under the criminal law, the prosecution is required to prove both the actus reus and the mens rea of a criminal offence in order to get a conviction. As such, the mental disorder or automatism defence, if accepted as a valid defence in a particular criminal trial, would nullify the mens rea element of the offence, so that the accused would lack the necessary intention or mental fault in committing the actus reus of the offence. Furthermore, when the mental disorder defence in a criminal trial is accepted as a valid defence by the trier of fact then the accused would receive the special verdict of "not criminal responsible by reason of a mental disorder." However, in the criminal law setting once the accused receives the special verdict of "not criminal responsible by reason of a mental disorder", the accused is not legally acquitted of the criminal offence or immediately free to leave, but is usually detained in an institution until the accused is determined to be no longer a danger to the public.

83An acquittal would not be the verdict if the accused person's actions resulted from a mental disorder. However, if the actions of the accused person were involuntary because of the lack of conscious control or mental awareness of the conduct, then in order for the accused person to receive a verdict of acquittal for the criminal offence, they would have to use the defence of automatism and prove on a balance of probabilities that the automatism is not the result of a mental disorder, but from some other cause. In other words, if the accused's automatic state is from a mental disorder then the special verdict of "not criminal responsible by reason of a mental disorder" would be the outcome, but if the automatism is not the result of a mental disorder, but from some other cause such as from a severe emotional shock or blow to the head, then the accused would receive a verdict of acquittal and be immediately free to leave and not be detained.

84In short, both the mental disorder and automatism defences excuse an accused of committing a criminal offence because of the lack of mens rea. For the mental disorder defence the focus is on the capacity to form the intent to commit a prohibited act or to make an omission while the automatism defence focuses on the actual intent. In addition, the mental disorder defence is now codified under s. 16(1) of the Criminal Code, while the non-mental disorder automatism defence is not codified, but governed by the common law: R. v. Parks, [1992] 2 S.C.R. 871 and R. v. Stone (1999), 134 C.C.C. (3d) 353.

(C) DO THE MENTAL DISORDER OR AUTOMATISM DEFENCES APPLY TO REGULATORY OFFENCES?

85However, since the defendant has not been charged with committing criminal offences, but regulatory offences then the issue is whether the mental disorder or automatism defences necessarily apply to all regulatory offences, especially since regulatory offences are comprised of all three category of offences established by the Supreme Court of Canada in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, of mens rea, strict liability and absolute liability, and it is not clear whether the mental disorder or automatism defences would apply to strict liability and absolute liability offences, considering that the prosecution is not legally required to prove any mental element or mens rea in order to get a conviction for strict liability and absolute liability offences.

86On the other hand, similar to criminal offences, the mental disorder and automatism defences should logically apply to regulatory offences that are of the mens rea category, although the special verdict of "not criminally responsible by reason of mental disorder", which is not a verdict of acquittal and which requires the accused person for a criminal offence to be detained usually in an institution until they are determined to be no longer a danger to the public, would not be an appropriate outcome for the regulatory sphere.

87And, despite there being some bemusement about the applicability of the mental disorder and automatism defences to regulatory or public welfare offences, especially for strict and absolute liability offences, there has been comment and belief in academic writing that such defences should logically be available in the regulatory sphere for strict and absolute liability offences. One such commentary is found in the textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at p. 222, in which Professor Kent Roach reasons that defences of automatism, mental disorder, or extreme intoxication could possibly apply to an absolute liability offence, because the nature of these defences would indicate that the accused acted in an involuntary manner that is inconsistent with proof of the actus reus:

A defence of honest or even reasonable mistake of fact will not be a defence to an absolute liability offence. Thus, an accused's subjective reliance on a faulty speedometer would not be a valid defence even if the reliance was reasonable. The defences of automatism, mental disorder, or extreme intoxication might possibly apply to an absolute liability offence, because they would indicate that the accused acted in an involuntary manner that is inconsistent with proof of the actus reus. …

88Additionally, in the leading treatise on regulatory offences in Canada, Libman on Regulatory Offences in Canada (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002), Justice Libman at p. 5-28 (in update 8 – November 2006) had also commented that such defences as insanity, automatism, or duress are available even for offences of absolute liability:

The term absolute liability is commonly used to describe offences in which it is not open to an accused to avoid criminal liability on the ground that he or she acted under a reasonable mistake of fact which, if the facts had been as the accused believed them to be, would have made his or her act innocent. Even in offences of absolute liability, however, other defences such as insanity, automatism or duress are available.

89However, Justice Libman in his textbook at p. 6-11 (in update 8 - November 2006) also commented that strict liability offences do involve a necessary mental element or a mental process connected to the actus reus or prohibited act, but that they do not require the prosecution or Crown to prove mens rea:

In R. v. Cooke, the court rejected the argument that the offence of careless driving could no longer be construed as an offence of strict liability, given the decision of the Supreme Court of Canada in R. v. Hundal. The court held that while Hundal, a dangerous driving case, provides clarification in understanding the nature of the mental element for driving offences, Highway Traffic Act offences are not crimes, and thus should not be categorized as part of those offences requiring proof of mens rea. Strict liability offences "do involve a necessary mental element or a mental process connected to the actus reus or prohibited act", but they do not require the Crown to prove mens rea.

90Moreover, in R. v. Daviault (1994), 93 C.C.C. (3d) 21 at 25 (S.C.C.), at paras. 7, 8, 9, and 11, Cory J. indicated that the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea and actus reus. He also provided an example of why a person could not be found guilty of committing a prohibited act if the person had not been consciously aware of committing the act, since the mental element involved in committing a willed voluntary act and the mental element of intending to commit the act would be absent. In addition, he commented that it had been long recognized that a person could not be found guilty if suffering from a mental illness that comes within the scope of what is now s. 16 of the Criminal Code, because of the inability of a mentally ill accused to form the requisite intention or that the nature and quality of the prohibited act had not been appreciated by the accused:

For my purposes it is sufficient to say that for a great many years it has been understood that, unless the legislator provides otherwise, a crime must consist of the following elements. First, a physical element which consists of committing a prohibited act, creating a prohibited state of affairs, or omitting to do that which is required by the law. Second, the conduct in question must be willed; this is usually referred to as voluntariness. Some writers classify this element as part of the actus reus, others prefer to associate it with mens rea; however, all seem to agree that it is required. (See, generally, J. C. Smith and B. Hogan, Criminal Law (7th ed. 1992), at pp. 37 ff.) If persons other than lawyers were asked what constituted willed or voluntary conduct they would respond that such an act or conduct must involve a mental element. It is the mental element, that is the act of will, which makes the act or conduct willed or voluntary. In R. v. Théroux, [1993] 2 S.C.R. 5, at p. 17, McLachlin J. had this to say concerning the actus reus:

The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent -- those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus.

Similarly, in R. v. Parks, [1992] 2 S.C.R. 871, at p. 896, La Forest J. quoted the following passage from the dissenting reasons of Dickson J. (as he then was) in Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522:

Although the word "automatism" made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.

The definition of actus reus is thus established. Yet I should add that, as will be seen later, the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea and actus reus. Finally, then there must be a contemporaneous mental element comprising an intention to carry out the prohibited physical act or omission to act; that is to say a particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs.

With this concept of a crime established it soon came to be accepted that in certain situations a person who committed a prohibited physical act still could not be found guilty. A number of examples come to mind. For instance, if a person in a state of automatism as a result of a blow on the head committed a prohibited act that he was not consciously aware of committing, he could not be found guilty since the mental element involved in committing a willed voluntary act and the mental element of intending to commit the act were absent. Thus neither the requisite actus reus or mens rea for the offence was present. The result would be the same in the case of a person who had an unexpected reaction to medication which rendered him totally unaware of his actions. Similarly, if an accused, during an epileptic seizure, with no knowledge of what he was doing, shot and killed a victim, he could not be found guilty of murder since both the ability to act voluntarily and the mental element of the intention to kill were absent. In all these instances the accused simply could not have formed the requisite intention to commit the prohibited act. Further, it was long ago recognized that a person suffering from a mental illness coming within the scope of what is now s. 16 of the Criminal Code could not be found guilty. That result may have arisen either from the recognition of the inability of a mentally ill accused to form the requisite intention, or from the realization that the nature and quality of the prohibited act was not appreciated by the accused.

It can thus be seen that with the development of principles recognizing constituent elements of crimes, particularly the need for a mental element, there came the realization that persons who lack the requisite mental element for a crime should not be found guilty of committing that crime. For centuries it has been recognized that both the physical and the mental elements are an integral part of a criminal act. It has long been a fundamental concept of our criminal law.

(D) HOW DOES THE MENTAL DISORDER OR AUTOMATISM DEFENCES AFFECT THE VOLUNTARINESS OF THE ACTUS REUS BEING COMMITTED?

91In Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409, Lord Denning in considering the defence of automatism had noted that an involuntary act by a person, such as an act which is done by the muscles without any control by the mind or an act done by a person who is not conscious of what he is doing, should not be punished for such act:

No act is punishable if it is done involuntarily: and an involuntary act in this context -- some people nowadays prefer to speak of it as "automatism" -- means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking.

92Furthermore, in R. v. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.), at para. 66, Cory J. noted that the actus reus requires that the prohibited criminal act be performed voluntarily as a willed act, and that a person in a state of automatism cannot perform a voluntary willed act, since the automatism has deprived the person of the ability to carry out such an act:

Should it be thought that the mental element involved relates to the actus reus rather than the mens rea then the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act. It follows that someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. Thus a fundamental aspect of the actus reus of the criminal act is absent. It would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily could be convicted of a criminal offence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault. To do so would violate the principle set out in Vaillancourt, supra. Once again to convict in the face of such a fundamental denial of natural justice could not be justified under s. 1 of the Charter.

93Therefore, in the situation where the actus reus of offence has not been voluntarily committed or willed, but is an involuntary act in which the mental element involved in committing a willed voluntary act is absent and that the nature and quality of the prohibited act had not been appreciated by the accused because of a mental disorder, then the defendant should not be found to be responsible for committing the regulatory offence by reason of a mental disorder, and an acquittal should be the result.

(E) DOES THE DEFENDANT HAVE THE BURDEN TO PROVE THE MENTAL DISORDER OR AUTOMATISM DEFENCES APPLY TO HER ACTIONS?

94In the textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at p. 9, Professor Roach has noted that a few defences, such as, mental disorder and automatism must be established by the accused on a balance of probabilities, even though this violates the presumption of innocence by allowing a conviction even if there is a reasonable doubt about the existence of a defence:

The Crown must, subject to exceptions justified under section 1 of the Charter, also prove beyond a reasonable doubt that the accused did not have a relevant defence. An accused will, for example, be acquitted of murder if there is a reasonable doubt that he or she acted in self-defence as defined by the Criminal Code, or if there is a reasonable doubt that intoxication prevented him or her from knowing that the victim was likely to die. A few defences, most notably mental disorder and automatism, must be established by the accused on a balance of probabilities even though this violates the presumption of innocence by allowing a conviction even if there is a reasonable doubt about the existence of a defence. If the Crown proves the prohibited act and fault element beyond a reasonable doubt, and there is no defence, then the accused will be convicted.

95Moreover, Professor Roach, at p. 19 of his textbook, reiterated that the accused now has the burden of establishing both the mental disorder and non-insane automatism defences on a balance of probabilities:

Defences related to mental disorders are also influenced by concerns about the appropriate disposition of the accused. The insanity or mental disorder defence applies to those who, because of a mental disorder, cannot appreciate the physical consequences of the prohibited act they commit or know that it is legally or morally wrong. Such a person, although not convicted, would be detained and examined to determine if further detention was required to protect the public from a significant threat of danger. Automatism refers to involuntary behaviour that may prevent the Crown from proving the fault element or even the prohibited act of a crime. An accused found to be in such a state will not be convicted. If the automatism is caused by a mental disorder, however, the accused can be subject to detention as a person held not criminally responsible by reason of mental disorder. If the automatism is caused by a factor that is not a mental disorder, such as a blow on the head, the accused is simply acquitted. The accused now has the burden of establishing both the mental disorder and non-insane automatism defences on a balance of probabilities.

96Furthermore, at p. 284 of his textbook, Professor Roach referred to the Supreme Court of Canada's decision in R. v. Chaulk, [1990] 3 S.C.R. 1303, in which that court had upheld the statutory requirement of an accused person having to prove the mental disorder defence on a balance of probabilities, as being justified under section 1 of the Charter because of the difficulties that the Crown would have in proving that an accused was sane beyond a reasonable doubt:

In R. v. Chaulk, the Supreme Court found that the requirement that an accused prove the defence of insanity on a balance of probabilities violated the presumption of innocence under section 11(d) of the Charter, because it allowed the conviction of an accused in spite of a reasonable doubt as to a factor essential to guilt, namely sanity. Lamer C.J. reasoned:

Whether the claim of insanity is characterized as a denial of mens rea, an excusing defence or, more generally, as an exemption based on criminal incapacity, the fact remains that sanity is essential for guilt. [The section] allows a factor which is essential for guilt to be presumed, rather than proven by the Crown beyond a reasonable doubt. Moreover, it requires an accused to disprove sanity (or prove insanity) on a balance of probabilities; it therefore violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.

The Chief Justice went on, however, to find that the statutory requirement that an accused prove the insanity defence on a balance of probabilities was justified under section 1 of the Charter because of the difficulties that the Crown would have proving beyond a reasonable doubt that an accused was sane. Wilson J. dissented and held that, as in some American jurisdictions, once the accused produced some evidence of insanity, the prosecutor should bear the burden of proving beyond a reasonable doubt that the insanity defence did not apply.

The Court did not consider the burden of proof if the prosecutor raises the mental disorder defence. Section 16(3) suggests that the prosecutor, like the accused, would have to prove the defence on a balance of probabilities. Normally, however, the prosecutor must prove its case against the accused beyond a reasonable doubt. Given this general principle and the fact that the prosecutor would only be required to establish a mental disorder defence against an accused who did not wish to rely on such a defence, it would be best if the prosecutor was required to establish a mental disorder defence by proof beyond a reasonable doubt.

97Also, in R. v. David (2002), 169 C.C.C. (3d) 165, at paras. 52 to 54, the Court of Appeal for Ontario explained that the proper procedure to follow was for the trier of fact to first consider whether the prosecution has proven beyond a reasonable doubt that the accused person had committed the act or made the omission in respect of the offence, before having to decide whether at the time of the offence the accused person had been suffering from a mental disorder that rendered the accused person incapable of appreciating the nature or quality of the act or omission, or of knowing that it was wrong:

It was accordingly crucial that the jury understand that the verdict of not criminally responsible was available only if the jury were satisfied beyond a reasonable doubt that the appellant "committed the act" forming the basis of the offence that was charged or an included offence.

… Moreover, Lamer C.J.C. rejected the argument that "the issue of insanity arises only after both actus reus and mens rea have been proved by the Crown" in R. v. Chaulk. He said:

[I]f the accused's insanity puts the existence of mens rea for the particular offence into question, it cannot be said that mens rea has been proved by the Crown before the issue of insanity arises. The Crown cannot be said to have proved anything beyond a reasonable doubt until the end of the trial.

As for any concern that "it would be manifestly' wrong if evidence of insanity were to influence the jury's decision on whether [an] accused committed the alleged act", Lamer C.J.C. also specifically rejected the premise that an accused person can lead evidence of his mental condition so as to negative mens rea without first having the issue of criminal responsibility determined. He said:

What if an accused's mental condition is such that it operates to negate mens rea in the particular case? ... In such a case, if the accused were to raise evidence of his mental condition (thereby putting his mental capacity in issue), the trial judge would be entitled to charge the jury on s. 16. In these circumstances, it is only when the trier of fact has rejected the defence of insanity that it may consider the evidence of his mental condition solely with respect to mens rea; this, in turn has only been allowed in cases where an accused is seeking to deny either the element of planning and deliberation or the specific intent for murder, and to instead be found guilty of a lesser, included offence (i.e., second degree murder or manslaughter). Thus, it is not true that evidence of insanity can be raised by an accused simply to deny mens rea for an offence independent of the insanity defence.

(F) FOR EACH OF THE FOUR CHARGES, WHAT TYPE OF OFFENCE WOULD THE CHARGE BE UNDER THE SAULT STE. MARIE CLASSIFICATION OF OFFENCES?

98Even though most regulatory or provincial offences are classified as strict liability offences under the R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, categorization of offences in Canada, there are some regulatory offences that fall in the mens rea category and some that fall in the absolute liability category.

99Furthermore, Dickson J., as he was then, writing for the Supreme Court of Canada in R. v. Sault Ste. Marie, explained what elements of proof are required for the three categories of offences:

The correct approach, in my opinion, is to relieve the Crown of the burden of proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility in most regulatory cases of proving wrongful intention. In a normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with the evidence of due diligence. This is particularly so when it is alleged, for example, that pollution was caused by the activities of a large and complex corporation. Equally, there is nothing wrong with rejecting absolute liability and admitting the defence of reasonable care.

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully" "with intent" "knowingly" or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

100For the four offences the defendant is facing in this proceeding:

(1) the "speeding" charge under s. 128 is an absolute liability offence: R. v. Hickey (1976), 70 D.L.R. (3d) 689, 30 C.C.C. (2d) 416;

(2) the "fail to surrender permit" charge under s. 7(5)(a) is an absolute liability offence: R. v. Fox (2003), 2003 BCPC 346, 45 M.V.R. (4th) 199;

(3) the "fail to signal lane change" charge under s. 142(1) is a strict liability offence: R. v. Dillman, [2008] O.J. No. 1120 (QL) (O.C.J.) and R. v. Cummings (1995), 159 N.B.R. (2d) 218; and

(4) the offence under s. 216 of "fail to stop for a police officer and willfully continued to avoid police while a police officer gave pursuit" has two different burdens of proof. For the "fail to stop for a police officer" offence under s. 216(1) it is a strict liability offence. However, s. 216(3) does not contain an offence, but a penalty provision that can apply if the defendant is found to have "willfully continued to avoid police while a police officer gave pursuit", which according to the Court of Appeal for Ontario in R. v. Dilorenzo and Bancroft (1984), 45 O.R. (2d) 385, 11 C.C.C. (3d) 13, at paras. 19 to 21, imports a mens rea element:

I agree that the burden of proof required to justify a conviction under s. 189a(1) and (2) [now s. 216(1) and (2)] is lower than that required to justify the imposition of the penalty prescribed by s. 189a(3) [now s. 216(3)]. The offence created by s. 189a(1) [now s. 216(1)] unquestionably falls into the category of "strict liability offences" in which there is no necessity for the prosecution to prove the existence of mens rea. The doing of the prohibited act, namely, the failing to come immediately to a safe stop in the circumstances specified in s-s. (1) [now s. 216(1)], prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care: R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299.

However, unlike s. 189a(1) [now s. 216(1)], s. 189a(3) [now s. 216(3)] does not create a specific offence -- it relates to penalty and specifies circumstances in which a three-year licence suspension must be ordered. But before the order may be made the court must be "satisfied" that the person convicted of contravening s. 189a(1) [now s. 216(1)] engaged in a particular type of aggravated conduct, that is, that he "wilfully continued to avoid police while a police officer gave pursuit". The word "wilfully" used in this context means with the intention of avoiding the police and, in my opinion, must be construed so as to import mens rea: see R. v. City of Sault Ste. Marie, supra, at p. 1326 S.C.R., p. 374 C.C.C.; R. v. Buzzanga and Durocher (1979), 25 O.R. (2d) 705, 49 C.C.C. (2d) 369, 101 D.L.R. (3d) 488; Strasser v. Roberge, [1979] 2 S.C.R. 953, 50 C.C.C. (2d) 129, 103 D.L.R. (3d) 193; and R. v. Orr, Ont. Prov. Ct., January 12, 1983 (Langdon Prov. Ct. J., unreported [summarized 9 W.C.B. 57]). The use of the word "satisfied" in the context of this subsection does not detract from the wilful nature of the conduct against which the subsection is aimed and cannot be read as having the effect of providing for a test on the balance of probabilities. It is manifest that very serious consequences can flow from the suspension of a driver's licence for a period of three years. In my view, s. 189a(3), properly construed, requires the prosecution to prove mens rea beyond a reasonable doubt as a precondition to the mandatory licence suspension prescribed by the subsection. In this regard, I am obliged to note my disagreement with the contrary conclusion reached by the learned county court judge in R. v. Worth (1983), 21 M.V.R. 89.

101Interestingly, the four charges the defendant is facing do happen to cover the ambit of the three types of offences in Canada: mens rea, strict liability, and absolute liability.

102In addition, for an absolute or strict liability offence, mens rea or the fault or negligence of the defendant is not an element of the offence that the prosecution has the burden to prove and is only obligated to prove the defendant committed the actus reus of the offence beyond a reasonable doubt: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.

(G) HAS THE PROSECUTION PROVEN THE ACTUS REUS OF THE FOUR CHARGES BEYOND A REASONABLE DOUBT?

103I am satisfied, based on the observations of Cst. Judd, that the prosecution has proven beyond a reasonable doubt that the defendant, P. R. L., had been driving or operating a light-blue coloured Toyota Echo motor vehicle on March 21, 2011, at approximately 1:25 p.m., southbound on Hurontario Street in the City of Brampton. In addition, I am satisfied that Cst. Judd had been able to identify the defendant, P. R. L., through a driver's license that Cst. Judd had obtained from the defendant, which had been a valid Ontario photo card with the name "P. R. L.", and that Cst. Judd had been satisfied with the identity of the driver of the light-blue coloured Toyota Echo motor vehicle as P. R. L. and that the driver of the Toyota Echo vehicle had been the defendant who was presently in the courtroom.

104Furthermore, for the "speeding" charge and the "fail to surrender permit" charge the prosecution only has the legal onus to prove the actus reus of these two offences beyond a reasonable doubt, since both offences are classified as an absolute liability offence.

105Similarly, for the "change lanes without signaling" charge the prosecution only has the legal burden to prove the actus reus of the offence beyond a reasonable doubt, as the offence is classified as a strict liability offence. However, if the prosecution meets its onus of proving the actus reus of the "change lanes without signaling offence", then the onus is on the defendant to prove she had been acting with due diligence in order not to be convicted of committing that particular offence.

106However, the "fail to stop for a police officer" offence under s. 216(1) and (2) is a strict liability offence, while the penalty provision in s. 216(3), which could apply to the defendant if the defendant is found to have "willfully continued to avoid police while a police officer gave pursuit" carries a mens rea element.

(i) Speeding: 105 k.p.h. in posted 60 k.p.h. zone

107For the speeding charge, Cst. Judd had on March 21, 2011, signed out a Laser Atlanta Speed Laser 3 at approximately 6:00 a.m. and at which time she had tested that laser unit according to manufacturer's specifications and had found that laser unit to be functioning normally.

108Then at approximately 1:25 p.m. Cst. Judd had been inside her police cruiser that had been facing westbound on Pine Ridge Lane, on the northbound side of Hurontario Street, which is north of Charolais Boulevard, in the City of Brampton. She had been at that location conducting speed enforcement. Furthermore, prior to Cst. Judd entering that area she had observed numerous speed markers north of Steeles Avenue. She also said the speed limit is 60 kilometers per hour in that area of Hurontario Street, north of Charolais Boulevard, in Brampton, and that the speed markers were clear and visible to north and southbound traffic and that they were located approximately every 200 metres or so apart.

109Cst. Judd also said that from her location on Pine Ridge Lane she had been able to clearly observe north and southbound traffic on Hurontario Street, which she said had been moderate to heavy at that time. Furthermore, Judd had been operating the laser unit from within her cruiser in a handheld position.

110In addition, at approximately 1:25 p.m., Cst. Judd said she had observed the light blue two-door Toyota Echo motor vehicle, which had been driven by the defendant, travelling southbound at a very high rate of speed in the passing lane of Hurontario Street. Judd then pointed her laser unit at the grill on the front of that particular vehicle and the laser unit had registered a reading of 105 kilometers per hour in that zone. Furthermore, Judd said she had a continuous view of that Toyota Echo motor vehicle and that it had been passing other vehicles on the roadway at the time.

111Moreover, Cst. Judd said that when the northbound traffic had subsided, she had a clear view of the southbound lanes and had observed the defendant's vehicle travel southbound directly past Cst. Judd's location.

112In addition, Cst. Judd said she then immediately pulled out of her location because she had been lucky enough to have clear traffic, as there was no northbound traffic at that time. She also said she had been able to pull in behind that Toyota motor vehicle that had the licence plate number of [removed for privacy]. Furthermore, Cst. Judd said she did not lose sight of that vehicle.

113In addition, Cst. Judd said she is a qualified laser operator and had been last qualified in April of 2011.

114Cst Judd also said the laser unit is very precise, and that when the operator points the laser unit directly at the front of a vehicle, the band of that laser beam is very small in comparison to a radar unit. She further explained that the laser device can accurately measure the speed and distance of a moving vehicle and that when the device is pointed directly at a single vehicle it would only register the speed of that particular vehicle.

115Then, at approximately 2:56 p.m., Cst. Judd had returned to her division where she re-tested the laser unit and had found that it had been functioning normally. Moreover, she said that prior to returning to her division, she had re-attended the area of Hurontario Street and had observed that the speed markers were still clear and visible in that area.

116Therefore, I am satisfied that the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence of speeding 105 k.p.h. in a posted 60 k.p.h. zone, contrary to s. 128 of the Highway Traffic Act.

(ii) Fail to Surrender Permit

117I am also satisfied that Cst. Judd had made a demand of the defendant at both the intersection of Sir Lou Drive and Hurontario Street when the defendant had been stopped for a red light and at the intersection of Derry Road and Hurontario Street when the defendant had stopped for the second red light, to produce the permit or ownership for the Toyota Echo motor vehicle that the defendant had been driving on March 21, 2011, at approximately 1:25 p.m. and that the defendant had failed to produce to Cst. Judd the permit for that Toyota Echo motor vehicle. However, the defendant had provided her driver's license and an expired insurance slip for the Toyota Echo motor vehicle to Cst Judd, which Cst. Judd later confirmed with the defendant's insurance company that there had been valid insurance for the Toyota Echo motor vehicle.

118Therefore, the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the "fail to surrender permit" offence, contrary to s. 7(5)(a) of the Highway Traffic Act.

(iii) Change Lanes Without Signalling

119For the change lanes without signaling charge, Cst. Judd had testified that she had observed the defendant's vehicle drive in and out of traffic and changing lanes several times without signalling, while the defendant's vehicle had been travelling southbound on Hurontario Street. Judd had also testified that she had observed the defendant's vehicle change lanes numerous times without signaling, while accelerating and trying to travel through traffic.

120Furthermore, before a motorist or a driver of a vehicle is permitted to move from one lane of traffic to another lane of traffic on a highway, the motorist is legally obligated by s. 142(1) to first see that the lane change or movement can be made in safety and if the operation of any other vehicle may be affected by that movement or lane change, then the motorist is required to give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement or lane change:

142(1) The driver … of a vehicle upon a highway before turning … from one lane for traffic to another lane for traffic … shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

121However, Cst. Judd did not testify about whether the operation of any other vehicle on Hurontario Street between Sir Lou Drive and Derry Road may have been or had actually been affected by the defendant's lane changes, which would then have legally obligated the defendant to signal her intended lane change to those other drivers. Furthermore, although the evidence from Cst. Judd had been that the traffic was moderate to heavy and that the defendant had been going in and out of traffic and changing lanes without signaling, there is no evidence that the defendant's vehicle had been too close to other vehicles when the lane change or changes had been made, or that the other drivers of those vehicles had been affected by the defendant's lane changes, which would have been manifested by their reactions in honking their horns or making evasive actions or suddenly applying their brakes, which would have been evidenced by the rear brake lights of those other vehicles suddenly coming on in reaction to the proximity of the defendant's vehicle and the respective lane change by the defendant's vehicle. These manifestations would have been objective evidence confirming that the defendant's vehicle had been making lane changes that would have affected other vehicles, necessitating the defendant to then signal her intention to change lanes before actually making the lane change.

122In addition, although Cst. Judd had testified that Hurontario had three southbound lanes in which the defendant's vehicle had been travelling in, Judd did not testify about how those lanes were demarcated, which is required to prove there has been a lane change or movement made from one actual lane to another actual lane. In other words, there is no evidence that the lanes were demarcated by painted lines on the roadway.

123Therefore, the prosecution has failed to prove beyond a reasonable doubt that the defendant committed the actus reus of the offence of "fail to signal lane change", contrary to s. 142(1).

(iv) Fail to Stop for Police Officer

124For this charge, there are two stages of determination in s. 216. First, it has to be determined if the defendant had failed to stop for a police officer under s. 216(1) and (2), and if that proscribed act has been proven beyond a reasonable doubt, then for the second or penalty stage under s. 216(3), it has to be determined beyond a reasonable doubt whether the defendant had the requisite mens rea for the act of "willfully continued to avoid police when a police officer gave pursuit", in determining if the penalty under s. 216(3) is available to be imposed on the defendant:

Power of police officer to stop vehicle

216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),

(a) to a fine of not less than $1,000 and not more than $10,000;

(b) to imprisonment for a term of not more than six months; or

(c) to both a fine and imprisonment.

Escape by flight

(3) If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit,

(a) the person is liable to a fine of not less than $5,000 and not more than $25,000, instead of the fine described in clause (2)(a);

(b) the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2)(b); and

(c) the court shall make an order suspending the person's driver's licence,

(i) for a period of five years, unless subclause (ii) applies, or

(ii) for a period of not less than 10 years, if the court is satisfied on the evidence that the person's conduct or the pursuit resulted in the death of or bodily harm to any person.

125Therefore, based on Cst. Judd's testimony that she had tested her cruiser in the morning before she left the area of the station and had said that both the siren and the lights for the vehicle had been working normally, I am satisfied that when Cst. Judd had engaged her cruiser lights and siren to signal the defendant to stop her vehicle, that the cruiser's lights had been operational and observable by the defendant and that the cruiser's siren had been operational and discernible by the defendant, and that the defendant, who had a driver's license, would have known the rules of the road, which had required her to stop for a police officer when signalled to do so.

126And, even though Cst. Judd had described the appearance of the low-profile police cruiser she had been operating that day as being a white-coloured police cruiser with muted police markings on it that are white and reflective and unlike a typical police cruiser that is blue and white, which may not have immediately made the defendant aware that it had been a police cruiser, the lights and siren would have nonetheless indicated to the defendant that the low-profile cruiser was indeed a police vehicle.

127In addition, Cst. Judd had actually stood beside the defendant's driver-side window in her full police uniform and had directed the defendant to pull over at the next exit. The defendant at that point would have observed a police officer in full police uniform standing beside her driver's side window, who had also been directing her to stop, and she should have also observed a vehicle stopped behind her with flashing lights, which should have made her realize that a police officer had been trying to get her to stop her vehicle.

128Furthermore, Cst. Judd also testified about a second attempt by Judd to get the defendant to stop at the intersection of Ray Lawson Boulevard and Hurontario Street by using her cruiser's siren and lights to signal the defendant to stop and pull over.

129Moreover, Cst Judd had estimated the distance that Judd had travelled from the moment she had activated her siren and lights to the point at which the defendant had actually pulled over at the intersection at Derry Road and Hurontario Street had been about five kilometers. She also said the cruiser's lights and siren and been engaged during that distance of travel. Therefore, the cruiser's siren and lights being engaged during that five-kilometer distance would have also provided sufficient signalling and notice to the defendant that the defendant had been directed and required to stop for a police officer. In addition, Cst Judd said there had been many locations along Hurontario Street in which the defendant could have pulled over and stop her vehicle safely, after Cst. Judd had begun signalling the defendant to stop with her cruiser's lights and siren.

130Ergo, based on the estimated five kilometers of signalling by Cst. Judd's cruiser's lights and siren for the defendant to stop, and the defendant not pulling over and stopping when there had been locations that she could have stopped safely, is evidence beyond a reasonable doubt that the defendant had failed to come to a safe stop for a police officer when signalled or requested to stop by a police officer who had been readily identifiable as such, contrary to s. 216(1) and (2).

131In addition, I am not satisfied on a balance of probabilities that the defendant had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that she had taken all reasonable steps in the circumstances in avoiding committing the actus reus of the "fail to stop for a police officer" offence under s. 216(1) and (2).

132Ergo, the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the "fail to stop for a police officer" contrary to s. 216(1) and (2).

(H) HAS THE DEFENDANT MET HER BURDEN IN PROVING THE MENTAL DISORDER DEFENCE ON A BALANCE OF PROBABILITIES?

133Since the Provincial Offences Act does not define what a mental disorder is, then it would be helpful to consider the mental disorder definition in s. 2 of the Criminal Code, which defines a mental disorder "as a disease of the mind".

134Furthermore, in R. v. Daviault (1994), 93 C.C.C. (3d) 21 at 25 (S.C.C.), at paras. 130 to 132, Sopinka J. confirmed that the term "disease of the mind" is not capable of precise definition and that it is a legal term and not a medical term of art, although the legal concept of a disease of the mind does contain a substantial medical component as well as a legal or policy component. Furthermore, he reiterated that the legal or policy component of a disease of the mind relates to the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state, and that the medical component of the term, generally, is medical opinion as to how the mental condition in question is viewed or characterized medically:

In order to support the defence of insanity an accused must show that he was suffering from a disease of the mind. Consumption of alcohol or drugs may give rise to conditions such as delerium tremens and certain other psychoses which qualify as diseases of the mind. This is made clear by Lord Birkenhead's first proposition in Beard, supra, as well as by the decisions in cases such as R. v. Malcolm (1989), 50 C.C.C. (3d) 172; R. v. Mailloux (1985), 25 C.C.C. (3d) 171, aff'd , [1988] 2 S.C.R. 1029, and R. v. Hilton (1977), 34 C.C.C. (2d) 206. However, as a general rule the term "disease of the mind" does not include self-induced states caused by alcohol or drugs: Cooper v. The Queen, [1980] 1 S.C.R. 1149, at p. 1159, per Dickson J. (as he then was).

This aspect of Dickson J.'s reasons in Cooper was obiter dicta but I do not doubt its correctness. Since that decision was rendered this Court has acknowledged that the question of whether a condition should be treated as a disease of the mind has a substantial policy component. In Rabey v. The Queen, supra, the majority endorsed the reasons of Martin J.A. in the Court of Appeal, reported at (1977), 37 C.C.C. (2d) 461. At pages 472-73 of those reasons Martin J.A. stated:

Although the term "disease of the mind" is not capable of precise definition, certain propositions may, I think, be asserted with respect to it. "Disease of the mind" is a legal term, not a medical term of art; although a legal concept, it contains a substantial medical component as well as a legal or policy component.

The legal or policy component relates to (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state. The medical component of the term, generally, is medical opinion as to how the mental condition in question is viewed or characterized medically. Since the medical component of the term reflects or should reflect the state of medical knowledge at a given time, the concept of "disease of the mind" is capable of evolving with increased medical knowledge with respect to mental disorder or disturbance.

This passage was quoted with approval by La Forest J. in R. v. Parks, supra, at pp. 898-99. Also pertinent are Dickson J.'s comments from Cooper, supra, at p. 1159. There, in discussing the definition of disease of the mind, Dickson J. said:

Underlying all of this discussion is the concept of responsibility and the notion that an accused is not legally responsible for acts resulting from mental disease or mental defect.

135In sum, the Supreme Court of Canada has construed a "disease of the mind" to be any illness, disorder or abnormal condition that impairs the human mind and its functioning, but does not include normally a self-induced condition caused by alcohol or drugs or transitory mental states such as hysteria or concussion. Moreover, before considering the mental disorder defence, there has to be an air of reality about that proffered defence before a trier of fact can consider the defence.

(1) Is There An Air of Reality To The Defendant's Mental Disorder Defence?

136Before the mental disorder or automatism defence can be considered, the defendant is required to establish an evidentiary basis for the defence so that a properly instructed trier of fact could find that the defendant had acted involuntarily on a balance of probabilities. Furthermore, Professor Roach in his textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at pp. 304-305, noted that the air of reality test is also now required for the defence of automatism, as the Supreme Court had been concerned that the automatism defence could be easily faked. He also indicated that in order to satisfy this threshold air of reality burden, the accused would not only have to assert involuntariness, but also produce collaborating psychiatric evidence, such as the severity of the triggering stimulus, the corroborating evidence of bystanders, the corroborating evidence of the accused being in states of automatism at other times, whether there was a motive for the crime, and whether the alleged trigger of automatism was also the victim of the crime:

As late as 1992, the Supreme Court held that an accused who raised a defence of non-insane automatism was entitled to an acquittal if the evidence presented at trial raised a reasonable doubt as to whether the accused acted in a voluntary or conscious manner. This was because such evidence would raise a reasonable doubt as to whether the accused acted with the required fault element (including the capacity to live up to an objective fault element) or, alternatively, whether the accused consciously and voluntarily committed the actus reus.

In the 1999 case of Stone, however, the Supreme Court held that an accused claiming a non-mental disorder defence of automatism must establish on a balance of probabilities that he or she acted in an involuntary manner. The majority of the Court was concerned that an automatism defence might easily be faked under the traditional law that allowed the defence to go to the jury so long as the accused pointed to some evidence, that if believed, would raise a reasonable doubt about the voluntariness of his or her actions. The Court was also concerned about consistency in allocating burdens of proof given that the accused had the onus to establish on a balance of probabilities the Daviault defence of extreme intoxication producing a state akin to automatism and the mental disorder defence under section 16(3) of the Criminal Code.

The Court in Stone also concluded that the new persuasive burden on the accused to establish the automatism defence on a balance of probabilities also influenced the threshold decision by trial judges about whether there was a sufficient air of reality to justify instructing the jury about the defence. On the facts in Stone, the Court held that a trial judge was justified in not instructing the jury on the defence of non-mental disorder automatism because there was no "evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities." The Court indicated that even to satisfy this threshold air of reality burden, the accused will not only have to assert involuntariness, but also produce collaborating psychiatric evidence. Even these two factors will not necessarily suffice. Other relevant factors that should be considered include the severity of the triggering stimulus, the corroborating evidence of bystanders, the corroborating evidence of the accused being in states of automatism at other times, whether there was a motive for the crime, and whether the alleged trigger of automatism was also the victim of the crime. Finally, if the crime could be explained without reference to automatism, this suggested that the automatism defence should not be put to the jury. The Court not only imposed a novel persuasive burden on the accused to establish non-mental disorder automatism, but also raised the threshold air of reality burden considerably.

137In deciding if this evidentiary requirement has been satisfied, I find that there is evidence that has been adduced at the trial that satisfies the air of reality threshold. This evidence is from Dr. Suzanne Legault's letter dated March 1, 2013, which indicates that the defendant had been diagnosed with the bipolar mood disorder in 2010, that the defendant is currently under a Community Treatment Order, that the defendant had been hospitalized recently for treatment of her mental disorder, and that the defendant is assisted by a social worker from the Assertive Community Treatment team. There is also a suggestion from Dr. Legault that the defendant's actions on March 21, 2011 were the result of bad judgment caused by the defendant's mental disorder. In addition, the defendant's actions related to not stopping for Cst. Judd for a significant time and distance and the defendant only rolling down her window an inch for Cst. Judd appear to be enigmatic or peculiar actions, for which the existence of a mental disorder may be a reasonable and logical explanation for this unusual behaviour.

(2) The Defendant's Bipolar Mood Disorder

138The letter dated March 1, 2013, from Dr. Suzanne Legault, a consulting psychiatrist with the South Etobicoke ACT team, marked as Exhibit 1, is reproduced below:

139Moreover, Dr. Legault confirms in her letter that the defendant suffers from a mental illness referred to as Bipolar Disorder and that the defendant's condition had been first diagnosed in 2010. In addition, Dr. Legault writes that the defendant was ill with manic psychosis from June to December 2012, which is a condition that would have interfered with the defendant's appreciation of reality and which led the defendant to engage in a number of actions that were dictated by the defendant's psychotic state of mind. Furthermore, Dr. Legault also mentioned in her letter that the defendant had been hospitalized at the Trillium Health Centre from December 31, 2012, to February 11, 2013, for treatment of the defendant's Bipolar disorder and that the defendant is currently is living in the community under the supervision of a Community Treatment Order and an Assertive Community Treatment Team (ACT).

140More important, Dr. Legault opines that the infractions which had occurred in March 2011 had been the result of poor judgment of the defendant that arises from the defendant's mental disorder and further believes that the defendant's mental illness should be taken into account in assessing the defendant's level of responsibility or guilt with regard to the driving and parking infractions.

141However, Dr. Legault did not indicate that she had been treating the defendant in March 2011 or provide medical information about the nature or severity of the defendant's mental disorder at that particular time.

142Furthermore, in H. Bloom and R. D. Schneider's textbook, "Mental Disorder And The Law: A Primer for Legal and Mental Health Professionals" (Toronto, Ontario: Irwin Law Inc., 2006), at p. 8, the authors describe a "bipolar mood disorder" as a condition in which an individual experiences either depression or elation as the predominant mood and that there may be no evidence whatsoever of the disorder during disease-free intervals or remission:

Bipolar Mood Disorder: In this condition (formerly known as manic-depressive disorder), the individual experiences either depression or elation as the predominant mood. There may be no evidence whatsoever of the disorder during disease-free intervals (remission).

143Also, in H. Bloom and R. D. Schneider's textbook, "Mental Disorder And The Law: A Primer for Legal and Mental Health Professionals", at p. 32, the authors describe medications that are used to treat the "bipolar mood disorder" by settling the symptoms of mania and then promoting stability of mood. In addition, they note that the primary use of both of these groups of drugs mentioned is to keep the individual's mood from elevating towards mania or from declining into depression:

Mood Stabilizers: There are essentially three classes of drugs within this group: lithium, anticonvulsants, and antipsychotics. The oldest and best-known mood stabilizer to treat bipolar disorder is lithium carbonate. Anticonvulsants such as carbamazepine (Tegretol®); valproic acid (Epival®); lamotrigine (Lamictal®); gabapentin (Neurontin®); and topiramate (Topamax®) have become increasingly useful in recent times. Even more recently, newer generation antipsychotic medications, such as olanzapine (Zyprexa®); risperidone (Risperdal®); and quetiapine (Seroquel®) have proven to be particularly helpful in first settling the symptoms of mania, and then promoting stability of mood. The primary use of both of these groups of drugs is to keep mood from elevating towards mania or from declining into depression.

144Hence, based on this information provided in H. Bloom and R. D. Schneider's textbook the defendant's mental disorder could be stabilized by medication and that there may also be periods in which there would be no evidence whatsoever of the disorder during disease-free intervals or remission.

145Furthermore, in Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342, at para. 39, the Court of Appeal for Ontario in considering the constitutionality of a treatment order issued under the Criminal Code against an accused person, who had been found unfit, for the purpose of restoring the fitness of that accused person as expeditiously as possible to enable the trial process to proceed, recognized that accused persons who received these treatment orders include persons with a bipolar disorder:

The purpose of the treatment order regime in the Criminal Code is to restore an unfit accused's fitness to stand trial as expeditiously as possible, thus enabling the trial process to proceed in a timely fashion and, in turn, enhancing both the accused's fair trial and other Charter rights and society's interest is seeing that criminal matters are disposed of on their merits. Experience shows that the majority of accused who are the subject of treatment orders suffer from a serious psychotic illness, such as schizophrenia, schizo-affective disorder, or bipolar disorder. Experience also shows they can often achieve a return to fitness for trial through the administration of anti-psychotic drug treatment for a period of 30-60 days: hence, the 60-day limit on a s. 672.58 order.

146Unfortunately, in the case at bar, there had been no expert evidence provided to the court about the nature and severity of the defendant's bipolar mood disorder and whether she had been actually suffering from the disorder on the date for which the charges arose or whether she had been in a period of remission. In other words, had the defendant on March 21, 2011, been having a manic psychotic episode of the nature that had impaired the defendant's judgment so severely that the defendant's actions would have been involuntary or that the defendant had been acting recklessly without thinking about the consequences of her acts or omissions, or had the defendant had unrealistic or grandiose beliefs about her abilities or powers while she had been operating her motor vehicle, or had the defendant's mental disorder on March 21, 2011, been so severe that the defendant had been having delusions and hallucinations?

147In any event, there has been evidence provided by the defendant's social worker, Merlanie Tapang, on March 5, 2013, that indicates that the defendant is currently under a Community Treatment Order, as well as evidence from Dr. Legault's letter (Exhibit 1) that the defendant had been hospitalized in a psychiatric facility for manic psychosis between December 31, 2012 and February 18, 2013. However, there is no evidence which indicates whether the defendant had been under such a treatment order on March 21, 2011, or that the defendant had been suffering from an episode of manic psychosis on March 21, 2011, when the defendant had been charged with committing the four traffic offences. On the other hand, a review of s. 33.1 of the Mental Health Act, R.S.O. 1990, c. M.7, may provide some insight on the severity of the defendant's mental disorder based on the legal criteria that a physician has to consider before issuing a Community Treatment Order to the defendant:

Community treatment order

33.1(1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

Same

(2) The community treatment order must be in the prescribed form.

Purposes

(3) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person's condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

Criteria for order

(4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person's treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15(1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

Exception

(5) Clause (4)(e) does not apply in any of the following circumstances:

If a rights adviser has made best efforts to locate the person subject to the order, the person could not be located and the rights adviser so informs the physician.

If the person subject to the order refuses to consult with a rights adviser and the rights adviser so informs the physician.

If, for the renewal of the order, the Public Guardian and Trustee is the substitute decision-maker for the person subject to the order.

Content of order

(6) A community treatment order shall indicate,

(a) the date of the examination referred to in clause (4)(c);

(b) the facts on which the physician formed the opinion referred to in clause (4)(c);

(c) a description of the community treatment plan referred to in clause (4)(b); and

(d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person's substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations.

148Ergo, before the physician who had issued the Community Treatment Order to the defendant could have issued this treatment order, the physician had to first determine that the defendant had during the previous three-year period been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or had been the subject of a previous community treatment order and to also conclude that if the defendant did not receive continuing treatment or care and continuing supervision while living in the community, then the defendant would likely, because of the defendant's mental disorder, cause serious bodily harm to herself or to another person or to suffer substantial mental or physical deterioration or serious physical impairment.

149Furthermore, even though the current Community Treatment Order would logically indicate or infer that the defendant during the three years before the current Order had been issued to the defendant that the defendant had been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period or had been the subject of a previous community treatment order, the issuance of the current Order does not imply that the defendant had been under a Community Treatment Order on March 21, 2011, or that the defendant had been suffering from manic psychosis on March 21, 2011, that required hospitalization.

150Moreover, if the defendant had been acting psychotically or displaying a diminished mental state in which the defendant could have caused serious bodily harm to herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person during her interactions with Cst. Judd on March 21, 2011, then Cst. Judd could have taken the defendant in custody to an appropriate place for a psychiatric assessment by a physician under s. 17 of the Mental Health Act, if Cst. Judd had observed or believed the defendant had been in such a mental state that required a psychiatric assessment:

Action by police officer

17. Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

(3) Medical Suspension of Driver's Licenses Under the Highway Traffic Act

151Under s. 203 of the Highway Traffic Act, every legally qualified medical practitioner is required to report to the Registrar of the Ministry of Transportation the name, address and clinical condition of every person sixteen years of age or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle:

Report of medical practitioner

203(1) Every legally qualified medical practitioner shall report to the Registrar the name, address and clinical condition of every person sixteen years of age or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle.

No action for complying with subs. (1)

(2) No action shall be brought against a qualified medical practitioner for complying with this section.

Reports privileged

(3) The report referred to in subsection (1) is privileged for the information of the Registrar only and shall not be open for public inspection, and the report is inadmissible in evidence for any purpose in any trial except to prove compliance with subsection (1).

152Furthermore, from the Medical Review Section on the Ontario Ministry of Ontario website, online: Ontario Ministry of Transportation website, the Ministry has indicated that high risk medical conditions are conditions that are chronic, deteriorating, unstable or progressive such as psychiatric disorders with symptoms of suicidal thoughts, extreme agitation, impulsive or violent behaviour, while low risk conditions are deemed to be those that do not pose an immediate or serious risk to road safety; conditions that are stable and/or temporary, such as reactive depression or stable psychiatric disorders.

153Ergo, if the defendant's mental disorder had been so severe or high risk that the defendant had lost touch with reality or could have been dangerous to herself or others at a time before March 21, 2011, then if the defendant had been under the care of a psychiatrist or physician, the defendant's physician would have been legally obligated to notify and report to the Registrar for the Ministry of Transportation that the defendant was suffering from a medical condition that may make it dangerous for the defendant to operate a motor vehicle, so that the Ministry could assess and decide whether the defendant's driver's license should be suspended for medical reasons. However, there is no evidence that the defendant's driver's license had been suspended on March 21, 2011, for medical reasons; otherwise, Cst. Judd would have also charged the defendant with the offence of "driving while under suspension". In other words, there is no evidence that when the defendant had been diagnosed with the bipolar mood disorder in 2010, that the physician who had diagnosed the defendant's mental disorder had found it necessary, because of the quality or severity of the disorder, to report to the Registrar of the Ministry of Transportation that the defendant's medical condition may make it dangerous for the defendant to operate a motor vehicle, which would have required that the driver's license of the defendant be suspended for medical reasons.

(4) Evidence Adduced Does Not Prove That Defendant Could Not Appreciate The Consequences Of The Prohibited Acts She Had Committed Or Know That It Is Legally Or Morally Wrong

154In addition, the defendant's action in driving away and not pulling over at the next exit, after Cst. Judd had directed the defendant to pull over at the next exit while standing beside the defendant's driver's side window at the intersection of Sir Lou Drive and Hurontario Street, as well as not pulling over and stopping for Cst. Judd's signalling with her cruiser's lights and siren for a distance of approximately five kilometers, may appear to be an unusual or atypical act in respect to what most motorists would normally do, when confronted or signalled by a police cruiser's lights and siren to stop, except for those drivers who intend to or deliberately escape from police pursuit. However, the defendant's peculiar actions on March 21, 2011, in respect to her interaction with Cst. Judd make more sense when considered in light of the defendant's mental disorder.

155On the other hand, except for the high rate of speed in which the defendant had been driving her motor vehicle, which had been imprudent and not lawful, her driving manoeuvres did not reach a significant level of erratic or dangerous driving. Furthermore, even if Dr. Legault's letter indicates that the defendant's mental disorder had caused the defendant to have bad judgment in her driving that violated provisions of the Highway Traffic Act, there is no evidence that has been adduced that the defendant's driving actions on March 21, 2011, were involuntary actions resulting from her mental disorder.

156Therefore, even though the defendant has been diagnosed with the bipolar mood disorder, which may affect or diminish in some degree or at certain times her capacity to make rational decisions, especially in regards to the defendant operating a motor vehicle properly on a highway, the defendant's diminished mental capacity by reason of her mental disorder had not been proven on a balance of probabilities to be so severe as to prevent the defendant from appreciating the physical consequences of the prohibited act she committed or know that it is legally or morally wrong, which would then excuse the defendant from being held legally responsible for her actions on March 21, 2011.

157Moreover, there is no evidence that after the defendant had been issued the summonses for the four Highway Traffic Act charges that the defendant had not been permitted to drive the Toyota Echo motor vehicle away from the area of Derry Road and Hurontario Street and that the defendant's motor vehicle had to be towed from that location. This would further show that the defendant had not reached a diminished mental state on March 21, 2011, in which her actions would have been involuntary or that Cst. Judd had felt that because of the defendant's mental state that the defendant should not be operating a motor vehicle or that the defendant had to be taken in custody to a facility for a psychiatric assessment.

158Consequently, as the legal burden is on the defendant to prove the mental disorder defence on a balance of probabilities or that her actions in operating a motor vehicle on March 21, 2011, at approximately 1:25 p.m., were the result of involuntary actions, I find that the defendant has not met that burden in proving that her actions while driving the Toyota Echo vehicle southbound on Hurontario Street were involuntary actions as a result of her mental disorder and that she should not be held legally responsible for her actions by reason of a mental disorder.

(I) FOR THE PURPOSE OF DETERMINING WHETHER THE PENALTY PROVISIONS UNDER S. 216(3) APPLY TO THE DEFENDANT, DID THE DEFENDANT WILLFULLY CONTINUED TO AVOID POLICE WHEN A POLICE OFFICER GAVE PURSUIT?

159However, since the defendant had been found to have committed the actus reus of the offence of "failing to stop for a police officer" under s. 216(1) and (2) beyond a reasonable doubt, then the next determination is whether the defendant had the necessary mens rea in respect to the act of "wilfully continuing to avoid police when a police officer gave pursuit" for determining the applicability of the penalty provisions contained in s. 216(3).

160Despite having concluded that the mental disorder defence had not been proven on a balance of probabilities, there still may be reasonable doubt about the defendant having the necessary mens rea in respect of s. 216(3). Moreover, Professor Roach noted in his textbook, Criminal Law 5ed. (2012) (Toronto, Canada: Irwin Law Inc., 2012), at p. 301, that the mental disorder defence focuses on capacity whereas the mental element focuses on actual intent and is rebutted by any evidence that raises reasonable doubt:

Evidence of a mental disorder may fall short of establishing a mental disorder defence but may raise a reasonable doubt as to whether the accused had a subjective mental element required for a particular offence. The insanity defence focuses on capacity and has to be proven on a balance of probabilities, whereas the mental element focuses on actual intent and is rebutted by any evidence that raises a reasonable doubt. Thus, it should not be surprising that evidence of mental disturbance, short of establishing a full section 16 defence, could still raise a reasonable doubt about some forms of mens rea.

161Moreover, at p. 310 of his textbook, Professor Roach discusses the idea that courts should consider the diminished responsibility of an accused based on evidence of the accused's mental disturbance or illness in determining whether the accused had the required mens rea, even though there is no defence of diminished responsibility recognized in Canadian criminal law:

Some judges have confused the relevance of evidence of mental disturbance to the determination of mens rea with the separate issue of Parliament's choice not to create a defence of diminished responsibility to reduce a killing from murder to manslaughter. Although there is no defence of diminished responsibility in Canadian criminal law, the growing consensus is that evidence of mental disturbance or illness should be considered when determining whether the accused had the required mens rea. Such evidence may prevent the Crown from proving that the accused had the subjective foresight of death required for a murder conviction. In such a case, an accused could be acquitted of murder but could still be found to have the mens rea necessary for manslaughter. This would occur through ordinary mens rea principles and not through the recognition of a separate defence of diminished responsibility.

162Accordingly, even though I have found that the defendant's actions while driving her Toyota Echo motor vehicle southbound on Hurontario Street on March 21, 2011, were voluntary actions and that the mental disorder defence had not been proven by the defendant on a balance of probabilities, I nevertheless find that based on the defendant's unusual interactions with Cst. Judd, which may be a result of the defendant's bipolar disorder, the evidence of the defendant being diagnosed with a mental disorder in 2010, and evidence that the defendant's driving had not been extremely erratic or highly dangerous at the time in question, that in determining the applicability of the penalty provisions under s. 216(3), I find there is reasonable doubt that the defendant had the necessary mens rea in respect to the act of "wilfully continuing to avoid police when a police officer gave pursuit".

163As such, the penalty provisions under s. 216(3) do not apply to the defendant.

7. DISPOSITION

164Accordingly, based on the totality of the evidence, I find that the Crown has met their burden of proving beyond a reasonable doubt that the defendant, P. R. L., has committed the three Highway Traffic Act offences of speeding: 105 k.p.h. in posted 60 k.p.h. zone, contrary to s. 128; fail to stop for a police officer, contrary to s. 216(1) and (2); and fail to surrender permit, contrary to s. 7(5)(a). Furthermore, the defendant's mental disorder did not cause her actions to be involuntary or to create reasonable doubt about the defendant's actions in respect of the three offences under s. 128, s. 216(1) and (2) and s. 7(5)(a), but I did find that there was reasonable doubt that the defendant had "willfully continued to avoid police when a police officer gave pursuit" for the purposes of the applicability of the penalty provisions contained in s. 216(3). As a consequence, I find the defendant to be legally responsible for her actions and convictions for those three offences will be entered against the defendant, P. R. L.

165However, for the fourth charge, the prosecution failed to prove the actus reus of the "fail to signal lane change" offence under s. 142(1) beyond a reasonable doubt, and therefore, an acquittal will be entered for that charge.

Dated at the City of Brampton on June 11, 2013.

QUON J.P.

Ontario Court of Justice

Charges

Counsel

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Reference Material Cited

Exhibits Entered

1. INTRODUCTION

2. THE CHARGES

3. BACKGROUND

(a) SUMMARY OF EVENTS

(b) SUMMARY OF TESTIMONY

(1) Officer Christine Judd

(2) Merlanie Tapang, the Social Worker for the Defendant

4. APPLICABLE LAW

5. ISSUES

6. ANALYSIS

(A) THE DEFENDANT'S MENTAL CAPACITY TO CONDUCT DEFENCE

(B) THE MENTAL DISORDER OR AUTOMATISM DEFENCES

(C) DO THE MENTAL DISORDER OR AUTOMATISM DEFENCES APPLY TO REGULATORY OFFENCES?

(D) HOW DOES THE MENTAL DISORDER OR AUTOMATISM DEFENCES AFFECT THE VOLUNTARINESS OF THE ACTUS REUS BEING COMMITTED?

(E) DOES THE DEFENDANT HAVE THE BURDEN TO PROVE THE MENTAL DISORDER OR AUTOMATISM DEFENCES APPLY TO HER ACTIONS?

(F) FOR EACH OF THE FOUR CHARGES, WHAT TYPE OF OFFENCE WOULD THE CHARGE BE UNDER THE SAULT STE. MARIE CLASSIFICATION OF OFFENCES?

(G) HAS THE PROSECUTION PROVEN THE ACTUS REUS OF THE FOUR CHARGES BEYOND A REASONABLE DOUBT?

(i) Speeding: 105 k.p.h. in posted 60 k.p.h. zone

(ii) Fail to Surrender Permit

(iii) Change Lanes Without Signalling

(iv) Fail to Stop for Police Officer

(H) HAS THE DEFENDANT MET HER BURDEN IN PROVING THE MENTAL DISORDER DEFENCE ON A BALANCE OF PROBABILITIES?

(1) Is There An Air of Reality To The Defendant's Mental Disorder Defence?

(2) The Defendant's Bipolar Mood Disorder

(3) Medical Suspension of Driver's Licenses Under the Highway Traffic Act

(4) Evidence Adduced Does Not Prove That Defendant Could Not Appreciate The Consequences Of The Prohibited Acts She Had Committed Or Know That It Is Legally Or Morally Wrong

(I) FOR THE PURPOSE OF DETERMINING WHETHER THE PENALTY PROVISIONS UNDER S. 216(3) APPLY TO THE DEFENDANT, DID THE DEFENDANT WILLFULLY CONTINUED TO AVOID POLICE WHEN A POLICE OFFICER GAVE PURSUIT?

7. DISPOSITION

Charges

Counsel

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Reference Material Cited

Exhibits Entered

1. INTRODUCTION

2. THE CHARGES

3. BACKGROUND

(a) SUMMARY OF EVENTS

(b) SUMMARY OF TESTIMONY

(1) Officer Christine Judd

(2) Merlanie Tapang, the Social Worker for the Defendant

4. APPLICABLE LAW

5. ISSUES

6. ANALYSIS

(A) THE DEFENDANT'S MENTAL CAPACITY TO CONDUCT DEFENCE

(B) THE MENTAL DISORDER OR AUTOMATISM DEFENCES

(C) DO THE MENTAL DISORDER OR AUTOMATISM DEFENCES APPLY TO REGULATORY OFFENCES?

(D) HOW DOES THE MENTAL DISORDER OR AUTOMATISM DEFENCES AFFECT THE VOLUNTARINESS OF THE ACTUS REUS BEING COMMITTED?

(E) DOES THE DEFENDANT HAVE THE BURDEN TO PROVE THE MENTAL DISORDER OR AUTOMATISM DEFENCES APPLY TO HER ACTIONS?

(F) FOR EACH OF THE FOUR CHARGES, WHAT TYPE OF OFFENCE WOULD THE CHARGE BE UNDER THE SAULT STE. MARIE CLASSIFICATION OF OFFENCES?

(G) HAS THE PROSECUTION PROVEN THE ACTUS REUS OF THE FOUR CHARGES BEYOND A REASONABLE DOUBT?

(i) Speeding: 105 k.p.h. in posted 60 k.p.h. zone

(ii) Fail to Surrender Permit

(iii) Change Lanes Without Signalling

(iv) Fail to Stop for Police Officer

(H) HAS THE DEFENDANT MET HER BURDEN IN PROVING THE MENTAL DISORDER DEFENCE ON A BALANCE OF PROBABILITIES?

(1) Is There An Air of Reality To The Defendant's Mental Disorder Defence?

(2) The Defendant's Bipolar Mood Disorder

(3) Medical Suspension of Driver's Licenses Under the Highway Traffic Act

(4) Evidence Adduced Does Not Prove That Defendant Could Not Appreciate The Consequences Of The Prohibited Acts She Had Committed Or Know That It Is Legally Or Morally Wrong

(I) FOR THE PURPOSE OF DETERMINING WHETHER THE PENALTY PROVISIONS UNDER S. 216(3) APPLY TO THE DEFENDANT, DID THE DEFENDANT WILLFULLY CONTINUED TO AVOID POLICE WHEN A POLICE OFFICER GAVE PURSUIT?

7. DISPOSITION

Cited By (3 cases)

R. v. E.L., 2024 ONSC 2819

R v Wyminga, 2019 ONCJ 621

R. v. Ko, 2013 ONCJ 451

Cited By (3 cases)

R. v. E.L., 2024 ONSC 2819

R v Wyminga, 2019 ONCJ 621

R. v. Ko, 2013 ONCJ 451