Court File and Parties
Court File No.: Dryden, Ontario: 1541 998 131112 00 Date: 2015-01-19 Ontario Court of Justice
Between: Her Majesty the Queen — and — Jerry Enns
Before: Justice Peter T. Bishop
Heard on: July 25, 2014 and December 8, 2014
Reasons for Judgment released on: January 19, 2015
Counsel:
- Peter Keen, for the Crown
- Mark Van Wallegham, for the accused Jerry Enns
BISHOP J.:
[1] Charge
[1] This matter comes before me by way of Jerry Enns being charged on or about the 28th day of October, 2013 did operate a vehicle with the blood alcohol concentration in excess of the legal limit and impaired driving contrary to Section 253(a) and Section 253(b) of the Criminal Code.
Evidence of Scott Williams
[2] Scott Williams is an Ontario Provincial police officer with approximately 7½ years of experience. On October 28, 2013 he was working a day shift on Highway 17 near Vermilion Bay, Ontario. He observed a motor vehicle travelling east bound with Manitoba plates and he suspected an impaired driver.
[3] He observed the driver in the oncoming lane and turned around and followed him and caught up with the vehicle at Eagle Junction. It was a GMC pickup. The vehicle was wandering in the East bound lane and veered to the shoulder.
[4] At approximately 4:30 p.m. the vehicle turned into a private road and he followed the vehicle as it ended up in a field.
[5] The elderly driver was dressed in working clothes with a lean build and he noticed a smell of alcohol coming from the vehicle. There was a Budweiser beer in the cup holder. The driver stated that he had a couple earlier and he did not stop for the police because he was looking for a place to go to the washroom.
[6] He identified himself as Jerry Enns, the person before the court. There was no issue with respect to all demands and cautions made by this officer.
[7] He was placed under arrest for drive with a blood alcohol limit greater than 80 milligrams per 100 millilitres of blood.
[8] He spoke to duty counsel was searched and eventually lodged at the Dryden OPP detachment.
[9] He appeared confused to the officer. He told the officer that he suffers from Fugue and Dissociative Amnesia.
[10] He stated that he had experienced this before. He would drive not knowing that he was driving and appeared confused. He was not now aware of where he was or how he got there.
[11] The first intoxilizer reading registered 147 milligrams of alcohol per 100 of millilitres of blood and the second 133 milligrams of alcohol per 100 millilitres of blood.
Evidence of Jerry Enns
[12] Mr. Enns is sixty one years of age and lives in St. Vital, Manitoba.
[13] He stated he vaguely recalls being stopped but doesn't remember whether it was a work day and doesn't really recall.
[14] He remembers being at home, got his tools ready to go to work, and then ended up in Dryden.
[15] He assumed that he drove from Winnipeg to Dryden but he has no recollection of going there.
[16] He stated that there were at least two other occasions when this scenario happened. On one occasion he left work to see his father and ended up in the St. Boniface hospital taken there by an ambulance. He spent overnight with Dr. Hughes a neurologist and was on no medication but also had dizzy spells. He had been on a medical disability for the last three months.
[17] He usually does not consume alcohol or drugs.
[18] On another occasion he recollects going to work, filled up his vehicle with gasoline and next remembered being on St. Anne's road in Moose Jaw, Saskatchewan. He ended up in the Regina hospital having blood tests and a MRI and no alcohol or drugs in his system.
[19] The third episode is the one that is before the court.
[20] There was a fourth episode where he was on the way to work, stopped at a gas station to get cigarettes, and 12 hours later he ended up in Northern Saskatchewan on Highway Number 6 near Flin Flon, Manitoba. He was travelling on a secondary road on a highway with ice and stopped at a road side support to ask where he was.
[21] He had been under the care of Dr. Peter S. Hughes of the Victoria General Hospital in Winnipeg, Manitoba and further under the care of Dr. A.N. Schroeder and recently Dr. Mandana Mordirrousta, the Director of Neuro Stimulation and Neuro Psychiatric Unit, Department of Psychiatry in Richter, Manitoba.
[22] While giving evidence in court the court observed a very severe tick similar to a spasm on three occasions. He stated that he had been taking medication for anxiety and the stress from his job may cause this condition.
[23] He still has anxiety and does not want to leave home and worked approximately four days in the last month. He had become hypoglycemic which is controlled by diet.
[24] He takes several medications, including lorazepam and does not recall buying a case of beer and does not remember drinking. He stated that his condition is a psychological problem and not neurological.
[25] He related that the first episode ended up having him travel to Morris, Manitoba; as well there is no reason why he, in his mind travelled to Moose Jaw, Saskatchewan.
Evidence in Cross Examination
[26] He stated that he had lost his license on two occasions since turning sixteen both in Winnipeg, Manitoba for drinking and driving offences, one in October 2001 and another in June 2013.
[27] After the fourth incident on December 30, 2014 his physician Dr. Peter Hughes had his license suspended.
[28] Two of these four incidents occurred when he was consuming alcohol.
[29] He has taken MRI tests and a CAT scan and his functioning and those tests turned out normal.
Evidence of Dr. Mandana Mordirrousta
[30] Dr. Mordirrousta gave her evidence and was cross examined by video from Winnipeg, Manitoba. She filed her biological sketch and was qualified as an expert witness to give evidence about Mr. Enns' medical condition and the linkage between his brain and behaviour.
[31] Dr. Mordirrousta has seen Mr. Enns regularly commencing November 21, 2013 and saw him in January 2014, May 2014 and September 2014. She observed that he's experienced amnesia like episodes with forgetfulness although he has a normal EEG and MRI. She has diagnosed him with anxiety disorder.
[32] She concludes that Mr. Enns amnestic driving lasts less than twenty four hours and possible explanations of his symptoms include:
Dissociative Fugue; this diagnosis is supported by normal EEG and MRI, the emergence of anxiety within the past year and overwhelming psychological stressors in the past year.
Atypical Anxiety Symptoms; Mr. Enns' anxiety symptoms do not fit into any of the typical axis 1 anxiety disorders (i.e. OCD, generalized anxiety disorder, panic disorder or social anxiety disorder). Its late onset and its atypical presentation raised a possibility of an underlying non psychiatric condition such as; cardio vascular, electrolyte imbalances, hypo or hyper glycaemia, hyper thyroidism, etc.
Neurodegenerative Disorders; Other causes of late onset psychiatric symptoms with no history or past psychiatric disorder, include neurodegenerative disorders including frontotemporal lobar degeneration which in many individuals begin with non-specific psychiatric symptoms with intact cognition.
[33] Dr. Mordirrousta's most recent impression included that he has anxiety disorder and that the type of symptoms and the age of onset are quite atypical for classical primary anxiety disorders. In particular the amnestic episodes (driving with no recollection) do not commonly occur at Mr. Enns' age. Having said that, the possibility of Dissociative Amnesia with Dissociative Fugue couldn't be ruled out especially because Mr. Enns had been under an enormous amount of work related anxiety over the past year because the initiation of anxiety symptoms are chronologically related to the dissociative amnestic episodes.
[34] Dr. Mordirrousta stated if the dissociative Fugue state is in existence Mr. Enns would not understand what he is doing and this cannot be diagnosed for certain.
[35] She has prescribed Sertraline and Clinozepan to assist him.
In Cross Examination
[36] Dr. Mordirrousta stated that Mr. Enns, when in a dissociated state would lose awareness of what he is doing and would lose his memory. Often, almost always when there is Dissociated Fugue there is travelling involved and the person would lose their personal identity. He would not know who he was or where he was.
[37] During these Fugue states he would not remember the episode and he would appear normal to an external observer. And when in that Fugue state he would not do what he was supposed to do.
[38] It was also important to remember that the assessor cannot know the when the Fugue state happens, it may be before or after the individual starts to drink. And that individual would not understand and not be fully aware that he is in one of those states.
Position of the Defence
[39] The defence submits that there must be a reasonable doubt as there are four occasions that Mr. Enns experienced this dissociated state. On two of those occasions he had been consuming alcohol.
[40] The defence equates this to automatism with him not being in control of his actions. This is a non-mental disorder with the external cause being stress. His anxiety disorder was demonstrated by his evidence that he couldn't go to work, couldn't leave his house and couldn't remember leaving and how he got to where he was going. This was repeated on four occasions. In a sense, Mr. Enns is acting without understanding and in almost every incident the Fugue state involves travelling.
[41] It was also Dr. Mordirrousta's evidence that one cannot determine when the Fugue starts or stops. She indicated that it is atypical for someone of his age and wishes to keep assessing and working with him.
Position of the Crown
[42] The Crown submits that first of all, in order to avail of this defence, the accused must on a balance of probability show that he is not criminally responsible because of a mental disorder.
[43] Dr. Mordirrousta simply states that there is a possibility of a Fugue dissociated state. The Crown opines that is not the case here, but simply a loss of memory.
Decision
[44] Having heard all of the evidence, I am finding that the evidence of Dr. Mordirrousta coupled with the evidence of the accused and Officer Williams create a reasonable doubt in the Court's mind whether Mr. Enns had the mens rea to commit the act of impaired driving or drive with greater than 80 milligrams of alcohol in his blood.
[45] On two occasions, Mr. Enns had consumed alcohol while driving. On the other two occasions he had not.
[46] It is impossible for Dr. Mordirrousta or the Court to determine whether or not he was in the Fugue state, but that remains a possibility.
[47] The Crown has not proven beyond a reasonable doubt, that both elements of the offense have been met. This is a case with very special circumstances and facts. There is no doubt that Mr. Enns committed the actus reus but there must be both the actus reus and the mens rea for a conviction. The evidence has raised a reasonable doubt with respect to the mens rea component.
[48] There will be a Not Guilty verdict.
Released: January 19, 2015
Signed: "Justice Peter T. Bishop"