Court File and Parties

Court File No.: 11-002508

Ontario Court of Justice

Between:

Her Majesty the Queen (Crown)

— and —

Scott Farrington (Accused)

Before: Justice Robert S. Gee

Heard on: April 19, 2013

Reasons for Judgment

Counsel:

• R. Kindon for the Crown
• J. Renwick for the Accused

Introduction

[1] Scott Farrington is charged with assaulting his common-law spouse Slavica Holjevac on October 20, 2011. Much of the facts of this case are not in serious dispute. The assault occurred around 7:00 p.m. on the stairs and into the basement of the residence that was then shared by Ms. Holjevac and Mr. Farrington. Just before coming home Mr. Farrington had been at a bar and had just started drinking his first beer when Ms. Holjevac arrived and asked him to return home. Shortly after arriving home, Mr. Farrington was heading down the stairs to the basement of the house followed by Ms. Holjevac. As they were descending the stairs, Ms. Holjevac was asking Mr. Farrington if he had sent an e-mail they had previously discussed to one of Mr. Farrington's co-workers ending what Ms. Holjevac viewed as an inappropriate relationship between the two.

[2] During this discussion, when they were about three stairs from the bottom, Mr. Farrington turned, stated "stop following me", and commenced to punch Ms. Holjevac in the head. He then grabbed her by her arms and pulled her down the last few steps onto the basement floor, where he began kicking her. Pictures of Ms. Holjevac taken several days later show significant bruising to her head and eyes, her arms, and also her legs.

[3] Mr. Farrington admits to inflicting this beating to Ms. Holjevac and causing the injuries depicted in the pictures. However, he is diabetic and at times he, like other diabetics, will suffer low blood sugar episodes. In the early stages of one of these episodes, some of the usual symptoms a diabetic will experience are that they can become sweaty, have heart palpitations and suffer from dizziness. If not treated quickly, the symptoms can worsen to the point where they will lose consciousness and become comatose. At a point prior to losing consciousness and becoming comatose, the person, although still awake and in that sense conscious, is for a time, disoriented, confused and completely unaware of their surroundings and actions. These low blood sugar episodes are also described as hypoglycaemic shock. To recover from one of these episodes before losing consciousness, the person needs to quickly ingest sugar in order to raise the levels in the blood. Sugar pills or sugary drinks such as soda are often utilized for this purpose. Mr. Farrington claims he was in a state of hypoglycaemic shock, and in the stage of the episode where he was unaware of his surroundings and actions, when he inflicted the beating on Ms. Holjevac, and as such, his actions were not voluntary.

[4] The defence being raised by Mr. Farrington is a form of automatism. For legal purposes, there are two types of automatism and if accepted, the outcome of the case will differ depending on the form of automatism found by the Court. The first form is insane automatism. This form of automatism comes about as a result of a disease of the mind, and if accepted, will form the basis for a finding of not criminally responsible. The second form is non-insane automatism. This form manifests itself as a result of something other than a disease of the mind, such as by a blow to the head, a psychological blow, somnambulism, the ingestion of drugs or alcohol, or by a medical condition. If a defence of non-insane automatism is accepted by the Court, since it came about not through a disease of the mind, the accused is entitled to an acquittal.

[5] Mr. Farrington is putting forward a defence of non-insane automatism as it is contended by him that his automatism was brought about by a medical condition associated with his diabetes. If his defence is accepted Mr. Farrington would be entitled to an acquittal.

[6] The two issues the Court must decide in this case are first, whether or not in the circumstances of this case Mr. Farrington is entitled to raise the defence of non-insane automatism, and second, if he is entitled to raise this defence, whether it succeeds. I will deal with these issues in order.

Legal Framework

[7] The Supreme Court of Canada in the case of R. v. Stone, [1999] 2 S.C.R. 290, reviewed the circumstances under which a defence of non-insane automatism can be left with the trier of fact and the requirements necessary for the defence to succeed. Without reviewing the entirety of the case or the law in this area, suffice it to say, the Supreme Court found that before such a defence can be left with the trier of fact, something significantly more is required than the defence simply asserting the accused's actions were not voluntary.

[8] At paragraph 171 of Stone (supra), the Court started from the premise that the law presumes a person's acts are voluntary. As such, if an accused contends their acts were not voluntary they are required to rebut this presumption. In order to rebut this presumption, the Court stated in paragraph 179 that the accused must prove to the trier of fact, on a balance of probabilities, that their actions were involuntary.

[9] As stated earlier, simply asserting their acts were not voluntary is not sufficient. At paragraph 182 of Stone (supra), the Court stated that a proper evidentiary foundation must be established by the accused before the defence of automatism can be left with the trier of fact. To satisfy this threshold, the defence must establish that there is evidence upon which a properly instructed jury could find that the accused's acts were involuntary on a balance of probabilities. In order to meet this threshold, in paragraph 184 of Stone (supra), the Court stated the defence must call expert evidence.

Application to the Facts

Threshold for Raising the Defence

[10] Applying this framework to the case at hand, I find that Mr. Farrington has met the threshold for advancing the defence of non-insane automatism even though he did not call expert evidence. The Court heard evidence from a number of witnesses who are very familiar with Mr. Farrington and his diabetes and how it has affected him over the years, including his father, his sister, his former brother-in-law and his former spouse. They all testified that Mr. Farrington has a history of hypoglycaemic episodes since being diagnosed with diabetes some 35 years ago. They testified that during these episodes, if not treated soon enough by the ingestion of sugar, he would enter phases where he was disoriented, acting strangely, and when he ultimately recovered, would have no memory of what had happened during those periods. They also testified that during at least some of those episodes he would become aggressive and lash out at those around him, albeit never rising to the extent of the violence as displayed in the present case. Ms. Holjevac's testimony as well was consistent with much of this evidence from other witnesses concerning Mr. Farrington's history of low blood sugar episodes.

[11] In relation to the necessity for expert evidence, the Crown was prepared to concede, and rightfully so in my opinion, that for the purposes of this case, a diabetic in the latter stages of hypoglycaemic shock can enter a state where although conscious, they are unaware of their surroundings or actions, and as such their actions while in that state could be involuntary.

[12] With this evidence and this concession on behalf of the Crown, and the unique circumstances of this case, I find that Mr. Farrington has met the threshold for raising a defence of non-insane automatism, notwithstanding the lack of expert evidence.

Whether the Presumption of Voluntariness Has Been Rebutted

[13] The next issue is whether or not Mr. Farrington has rebutted the presumption of voluntariness on a balance of probabilities. The position of the Crown is that he has not and points out that much of what occurred on the evening of March 20, 2011 comes from the testimony of Ms. Holjevac, as Mr. Farrington denies memory of the events. The Crown points out that a significant number of the actions of Mr. Farrington that evening appeared to have been deliberate and as a result of conscious decision making. For example the Crown notes that Mr. Farrington was able to drive home from the bar apparently without incident. He was communicative with Ms. Holjevac for some period of time. He walked down the stairs and seemingly turned towards Ms. Holjevac in response to a comment made by her. He then comments to her to stop following him and then almost immediately punches her in the jaw and then the eye. He then pulled her to the ground at the bottom of the stairs and continues to kick and beat her. This is all done in the context, the Crown points out, of Ms. Holjevac raising the issue of Mr. Farrington's suspected infidelity or inappropriate relationship with his co-worker, which Ms. Holjevac was asking him to end. These are not acts of a person acting in an involuntary state according to the Crown; they are acts of a person who was angry and lost control.

[14] The defence relies first on the evidence of Mr. Farrington. Mr. Farrington testified he has no memory of the incident between the point when he was in the residence and Ms. Holjevac was yelling at him, until his next memory, which comes when he was drinking a large glass of Kool-Aid with a police officer standing over him. The defence suggests this evidence is consistent with his history of hypoglycaemic episodes as testified to by those mentioned earlier.

[15] The defence also notes that two officers attended the residence that night in response to Ms. Holjevac's 9-1-1 call. One of the officers spoke to Ms. Holjevac while the other spoke to Mr. Farrington. Of these two officers, the only one who testified at trial was the one who spoke to Ms. Holjevac. However, notwithstanding his lack of direct involvement with Mr. Farrington, the officer made note of and recalled discussions concerning issues with Mr. Farrington's blood sugar levels at the time.

[16] Also, in the cross-examination of Ms. Holjevac, the defence pointed to a series of e-mail exchanges between Mr. Farrington and Ms. Holjevac that took place on the day after the incident. During these exchanges, the couple were discussing ways of mending their relationship and recommitting themselves to each other. During one of the e-mail messages Ms. Holjevac sent to Mr. Farrington, she discussed the incident from the night before. In this message, she described the terror she felt when Mr. Farrington was assaulting her. However, she also told Mr. Farrington that she knew it was not the "real you" and that this is what he was like when he was "not there in your mind." This, the defence contends, is consistent with Mr. Farrington's position to being in a state of hypoglycaemic shock and his actions being involuntary at the time, coming from the only other person present during the incident.

[17] The Crown suggests that an explanation for Ms. Holjevac's statement in her e-mail was that she was trying to cover for Mr. Farrington and save their relationship, as she had done in the past. For example, she had lied to the police the evening of the incident when they arrived in response to her 9-1-1 call. She stated to the police at the time that she in fact had not been assaulted by Mr. Farrington as she had initially claimed to the 9-1-1 operator. She stated, in order to keep Mr. Farrington from getting into trouble, she told the responding officers she had exaggerated and it had been nothing more than a verbal argument. Other incidents where she covered for Mr. Farrington were also testified to by Ms. Holjevac. The Crown contends the e-mail is just another example of her trying to protect Mr. Farrington. However, Ms. Holjevac was never asked to explain what she meant in her e-mails in re-examination, and as such it would be speculation on my part for me to accept the Crown's explanation for the e-mail.

[18] Based on the totality of the evidence, and keeping in mind the burden imposed upon Mr. Farrington in this case, I find that he has rebutted the presumption of voluntariness. This is a close case. The Crown made many strong and persuasive points. However, I also have the evidence of Mr. Farrington's history, combined with the evidence from the officer who testified as to discussions about Mr. Farrington's blood sugar level, and Mr. Farrington's testimony. I also have the evidence given in court by Ms. Holjevac and the apparent contradictory statements made by her in her e-mail to Mr. Farrington the following day. I find that based on the evidence I heard, I do not have a basis for reconciling this contradiction between Ms. Holjevac's in-court testimony and her e-mail statement the next day.

Conclusion

[19] In conclusion, I would first like to thank Mr. Kindon for the Crown and Mr. Renwick for the defence for their presentations and arguments in this case. As for the disposition of the matter, as stated I find that Mr. Farrington has, on a balance of probability, rebutted the presumption that his actions on the night of March 20, 2011 were voluntary, and as such he is entitled to be acquitted of the charge and it will be so noted.

Dated at Brantford, Ontario

This 19th day of April 2013.

The Honourable Mr. Justice R.S. Gee