Court File and Parties

Ontario Court of Justice

Date: 2016-05-19

Court File No.: Halton 14-1594

Between:

Her Majesty the Queen

— and —

Saulina De Frias

Before: Justice D.A. Harris

Heard on: March 1 & 2, 2016

Reasons for Judgment released on: May 19, 2016

Counsel:

• Sean Bradley, counsel for the Crown
• John Raftery, counsel for the defendant Saulina De Frias

HARRIS J.:

INTRODUCTION

[1] Saulina De Frias is charged with operating a motor vehicle in the Town of Milton on June 2, 2014 when (1) her ability to operate a motor vehicle was impaired by alcohol or drug, and (2) her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] Crown counsel elected to proceed summarily.

[3] Ms. De Frias pled not guilty and a trial was held.

[4] Brendan Bridge, and Halton Regional Police Constables Carson McAuley and Derek Andrews testified for the Crown. Ms. De Frias testified on her own behalf.

[5] It is clear from the evidence of everyone that Ms. De Frias was operating her motor vehicle in Milton on June 2, 2014.

[6] Prior to the close of the Crown's case, Crown counsel asked for and I granted leave to withdraw the "over 80" charge.

[7] With respect to the impaired driving charge however, I am satisfied beyond a reasonable doubt that her ability to operate a motor vehicle was impaired by alcohol or a drug.

[8] Mr. Bridge testified that she was driving at speeds that ranged from 30 to 60 km/hr. Her vehicle swerved from side to side, going as far as halfway into the next lane. Over time, both the swerving and the inconsistent speeds became even worse.

[9] She "rolled" four stop signs and made a wide turn driving over a curb into the Walmart Plaza parking lot.

[10] Constable McAuley testified that he had to repeat a request for her to turn down the music in her car. She then fumbled with the volume control.

[11] He asked for her driver's licence, ownership and insurance papers. She gave him her driver's licence only and then sat there staring at him. He waited a few moments and asked again for the other documents. She then pulled out a zippered document case but she was unable to open it.

[12] She had very watery eyes and her mascara was running. She appeared to be upset and had been crying.

[13] There was an odour of an alcoholic beverage on her breath.

[14] At the police station, after she was placed in a cell, she became unresponsive and police were unable to wake her. EMS personnel were called and they dealt with her at the police station. She refused to go to hospital despite their recommendation that she do so.

[15] I had a chance to observe the audio-video recording of her behaviour while in the breath room at the police station.

[16] At times she was simply babbling in her conversation with Constable Andrews. On these occasions she was nearly incoherent.

[17] Her emotional state ranged from being loud and argumentative to being extremely contrite and apologetic. These mood swings sometimes occurred in mere seconds.

[18] She appeared to me to be highly intoxicated.

[19] Constable Andrews, the breath technician, testified that her eyes were watery and blood shot. He smelled the odour of an alcoholic beverage on her breath. He agreed that there appeared to be mental health issues present.

[20] Ms. De Frias testified that she was drinking that night. She consumed maybe two Coors Light beers. She admitted they could have been "big" beers. She also admitted that she really did not know how much she had to drink.

[21] She also admitted to taking a sleeping pill that night.

[22] She did not recall much of that night's events. She was not sure where she had driven. She had no recollection of being at the Walmart Plaza or of telling Constable McAuley that she had been there.

[23] As I stated earlier, after considering all of this evidence, I am satisfied beyond a reasonable doubt that Ms. De Frias' ability to operate a motor vehicle was impaired by alcohol or drug that night.

[24] The real issue before me is whether the defence of necessity applies here.

THE DEFENCE OF NECESSITY

[25] The Supreme Court of Canada provided the following summary of the defence of necessity in R. v. Perka:

1. the defence of necessity could be conceptualized as either a justification or an excuse;

2. it should be recognized in Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code;

3. necessity as an excuse implies no vindication of the deeds of the actor;

4. the criterion is the moral involuntariness of the wrongful action;

5. this involuntariness is measured on the basis of society's expectation of appropriate and normal resistance to pressure;

6. negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity;

7. actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle;

8. the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law;

9. the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril;

10. where the accused places before the Court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.

[26] With respect to the onus, Dickson J. stated more particularly that:

Although necessity is spoken of 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 prosecution must prove every element of the crime charged. One such element is the voluntariness of the act. Normally, voluntariness can be presumed, but if the accused places before the Court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue. There is no onus of proof on the accused.

[27] In R. v. Latimer, 2001 SCC 1, the Supreme Court of Canada distilled this summary further into three requirements for the defence of necessity. They are:

1. there is the requirement of imminent peril or danger;

2. the accused must have had no reasonable legal alternative to the course of action he or she undertook;

3. there must be proportionality between the harm inflicted and the harm avoided.

[28] With respect to imminent peril or danger, "disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur."

[29] With respect to no legal alternative, "the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative."

[30] For these two requirements, a modified objective test applies. There must be an objective evaluation, but "one that takes into account the situation and characteristics of the particular person."

[31] With respect to the requirement for proportionality, "the requirement is not that one harm (the harm avoided) must always clearly outweigh the other (the harm inflicted). Rather, the two harms must, at a minimum, be of a comparable gravity. That is, the harm avoided must be either comparable to, or clearly greater than, the harm inflicted."

[32] Proportionality must be measured on an objective standard.

[33] Counsel for Ms. De Frias provided me with two decisions of the Ontario Court of Justice which state that the "harm inflicted" referred to in the requirement for proportionality must be actual harm rather than potential harm.

[34] Keast J. states in R. v. Desrosiers that:

The third requirement is there must be proportionality between the harm inflicted and the harm avoided. This is measured strictly on an objective standard. The public interest in drinking and driving offences is considerable. The carnage of drinking and driving is well known. Some three people a day die in Canada from drinking and driving. Countless more are injured. The misery index is incalculable. However, the third requirement does not take into account potential harm. Actual harm is the barometer. In this case, no harm was done to the public. This is good luck more than good management, but it does not matter. The bottom line is the public was not harmed, fortunately. On the other hand, the harm avoided could not be higher, being the preservation of life. The house was the location of the intended suicide, either by carbon monoxide poisoning or the use of a skill saw. He made an instant decision to leave the house, in his vehicle. It probably saved his life. I am satisfied the third requirement has been met.

[35] Bourque J. adopted this principle in R. v. Costoff.

[36] On noting up these two decisions, I found three more decisions by Judges of the Ontario Court of Justice.

[37] Rose J. refers to both R. v. Desrosiers and R. v. Costoff in R. v. Hunt, but I am unclear as to whether the distinction between actual and potential harm had any bearing upon his final decision in that case.

[38] In the other decisions that I found however, there was no actual harm in the form of property damage or personal injury and both Judges considered the risk of harm associated with impaired driving in their assessment of proportionality.

ANALYSIS

[39] The first requirement before the defence of necessity applies is the presence of imminent peril or danger.

[40] Ms. De Frias testified that she had gone to her home in Georgetown, put on her pyjamas and taken her sleeping medication because she wanted to sleep. She had consumed some alcohol earlier. She did not think it was very much, maybe two Coors Light. During cross-examination about how much she had to drink, she stated, "I couldn't tell you. I don't know. I didn't count or anything."

[41] She testified that she began feeling suicidal. This had happened before. On some occasions, she had called 911 and had been taken to hospital. That night however, neither her cell phone nor her land line worked. She decided to drive to a hospital or a police station to get help.

[42] She drove until she saw a police car and then she pulled over and spoke to the police officer inside it.

[43] There are a number of significant problems with her explanation of her actions that night.

[44] She knew that there was a hospital in Georgetown but did not know where the hospital was. She knew that there was a police station in Georgetown but she did not know where the police station was.

[45] She did know her nearest neighbour but did not want to bother him.

[46] She knew where the nearest Tim Horton's was but did not want to go there or to any other place of business that might have been open along the route that she travelled that night.

[47] As for that route, she was unable to say where she had driven.

[48] She was seen driving northbound on Bronte Street/Road 25 in Milton up to Steeles Avenue where she turned right and headed east on Steeles Avenue. She turned onto the James Snow Parkway and a short time later stopped for the police. She had no idea how she got there or what she was doing up until the point when she saw the police car.

[49] There was no evidence to suggest that she was ever near either a hospital or a police station during this time. She was certainly nowhere near Georgetown. Somehow she had driven in what was almost the exact opposite direction from downtown Georgetown. The only logical inference I can draw from the evidence was that she had no idea where she was going and she was driving around aimlessly.

[50] She repeatedly told the Court that the sole purpose of driving around in this fashion was to get help. However, when the opportunity arose, she did not ever tell a police officer that she was suicidal. She told Constable Andrews that she was depressed and that she went for a drive. She did not use the word "suicidal" or the words "I want to kill myself" or anything even remotely like that. She did not say that she needed to go to hospital or even that she wanted to go to hospital. She did say, on a number of occasions, "I should be in hospital" but that was as close as she got. Then, when police officers suggested to her that she should go to hospital and be checked out after she lost consciousness briefly at the police station, she expressly declined that option.

[51] Although she constantly repeated throughout her testimony her mantra "I was suicidal," she never explained what she meant by that.

[52] She testified that she had felt that way "many, many times" before. She repeated that. Later she said that, "I called them so many times, it was constant. It was pretty much every day."

[53] She would call the crisis line or the distress line and they would tell her to call 911. She would say "I need help. I'm a nervous wreck. I'm worried. I'm suicidal." Someone would come. They would check her blood pressure. They would take her to hospital where she would be seen by a psychiatrist and she would be sent home, usually a few hours later. She never suggested that there was ever an occasion when the authorities held her for an extended period of time.

[54] She never testified that she had ever actually tried to kill herself.

[55] It is clear from the evidence that she did not try to kill herself that night.

[56] I received nothing from a doctor or any other health care provider regarding her mental health condition, her previous trips to hospital or anything about her being suicidal.

[57] All I heard were her repeated assertions that she was suicidal that night. She needed help. She was simply attempting to get that help.

[58] After considering all of the evidence, I did not believe Ms. De Frias when she said that she was driving to get help in dealing with any suicidal ideation. Further, her evidence did not leave me with a reasonable doubt as to her intentions that night.

[59] I note again the comments in R. v. Latimer supra stating that to meet the imminent peril requirement, "disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur."

[60] There was no evidence upon which I could base such a finding here.

[61] That alone puts an end to the defence of necessity. However, just in case I am wrong, I will address the other two requirements.

[62] The second requirement is that the accused must have had no reasonable legal alternative to the course of action that she undertook.

[63] I have no hesitation in finding that she could have gone to a neighbour's house and called 911 from there. She could have stopped at Tim Horton's or a gas station or some other place of business and called 911 from there. Those were objectively reasonable alternatives to what she did do.

[64] In that regard, I note here that Ms. De Frias did not undertake to drive to a known place of safety. She chose to drive aimlessly about in the hope that maybe, perhaps, hopefully, somewhere along the way she would find the police station or a police officer or a hospital. That was not an objectively reasonable course of action.

[65] Further, I find that she cannot rely on her self-induced state of intoxication to justify her not making a reasonable decision. In that regard, I note that she stated that she had felt suicidal or depressed on "many, many" previous occasions. She was seeing a doctor who had prescribed antidepressants and sleep medication for her. She knew, or at the very least ought to have known that she ought not to be consuming alcohol at all let alone in combination with taking these drugs. In addition, she ought to have been better prepared to respond in a reasonable fashion when these suicidal thoughts reoccurred yet one more time.

[66] The third requirement is that there must be proportionality between the harm inflicted and the harm avoided.

[67] Now, I am not necessarily prepared to agree that I can only consider actual harm as opposed to potential or even likely harm.

[68] I agree that this makes sense on a strict reading of the words used in R. v. Perka, supra and R. v. Latimer, supra.

[69] It does not however make sense on a more visceral level. Why should the defence apply where, purely by chance, a drunk driver does not damage any property or injure any person but not apply where luck is absent and such damage or injury does not occur. I find it even more difficult to resolve this question when I alter it slightly to ask why the defence might apply to someone who deliberately fired a gun at someone else and missed the target, but would not apply to someone who succeeded in hitting their target. In both of those cases the intention of the shooter would be the same.

[70] I am satisfied however that I do not have to resolve that issue here because both harms, the harm to be avoided and the harm inflicted are potential harms rather than actual harms.

[71] This is not a case like R. v. Desrosiers supra, where the accused had in fact tried to kill himself and was driving to hospital to ensure that he would survive that earlier attempt and not take further steps to finish himself off. I heard no evidence that Ms. De Frias had ever actually tried to kill herself on any of those many, many prior occasions when she had felt suicidal. She certainly did not try to kill herself that night.

[72] This is also not a case like R. v. Costoff, supra where the accused was driving another, already injured, person to hospital.

[73] In those cases, there was actual harm to someone and the accused was attempting to mitigate that harm and prevent it from becoming any greater.

[74] In this case, taken at its highest, Ms. De Frias' explanation is that she was attempting to avoid the possibility that she might actually do something to harm herself this time.

[75] In that regard, I note again what I stated earlier, that Ms. De Frias did not undertake to drive to a known place of safety. She chose to drive aimlessly about in the hope that maybe she would eventually find the police station or a police officer or a hospital. Quite frankly, I am satisfied that driving around for an unspecified period of time while impaired to the degree that she was, the risk that she would cause harm to herself in a motor vehicle accident was at least equal to if not greater than the risk that she would do harm to herself if she remained at home.

CONCLUSION

[76] There is no air of reality to the defence of necessity in this case. There is no evidence supporting a finding that any of the three requirements have been met.

[77] Based on the evidence that I did accept, I am satisfied beyond a reasonable doubt that the Crown has displaced the defence of necessity.

[78] Accordingly I find Ms. De Frias guilty of impaired driving and enter a conviction for that offence.

Released: May 19, 2016

Signed: "Justice D.A. Harris"