Court File and Parties

Court File No.: Hamilton 15/5567 Date: May 8, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jennifer Desrosiers

Before: Justice George S. Gage

Heard on: February 21-23 and April 11 & 26, 2017

Reasons for Judgment released on: May 8, 2017

Counsel:

• L. Ellins for the Crown
• M. Wendl for the accused

GAGE J.:

Introduction

[1] On July 8, 2015 Jennifer Desrosiers was observed to be operating a motor vehicle in an erratic manner over an extended period of time from roughly 7 to 7:30 am on thoroughfares located in the south east quadrant of the City of Hamilton.

[2] She was stopped by Constable McKinney. Constable McKinney noted Desrosiers was displaying signs of impairment by alcohol.

[3] Kinney arrested Desrosiers at 7:45 am. Later that morning, at 8:43 am and 9:05 am respectively Desrosiers provided two samples of her breath that analyzed to blood alcohol concentrations of 267 and 288 mg. of alcohol in 100 ml. of blood.

[4] Ms. Desrosiers gave evidence. She testified that she has no memory of the night before July 8 or the morning of July 8 from the time she recalls falling asleep to the time that she woke up in a holding cell in a Hamilton police station.

[5] It is asserted on Ms. Desrosiers behalf that her consumption of alcohol and subsequent driving on July 8, 2015 were not the product of a fully conscious mind but rather that her actions were involuntary and a result of a state of automatism arising from sleepwalking or parasomnia.

Evidence

Civilian Witness – Suzanne Peters

[6] Suzanne Peters was driving her son to summer school sometime after 7 am on July 8, 2015 when she noticed that the vehicle in front of her was swerving off and on the travelled portion and shoulder adjacent to the right lane of the Lincoln Alexander Expressway nearing the Upper Gage Avenue exit.

[7] At the exit the vehicle failed to yield to through traffic on Upper Gage. Peters called 911. On several occasions Peters observed the vehicle veer into oncoming traffic and strike both curbs and medians.

[8] Peters followed the vehicle into the parking lot of the Food Basics store at Upper Gage and Mohawk Road where the vehicle stopped and the female driver appeared to be manipulating the windshield wipers and windshield washer fluid for no apparent reason while her head was bobbing up and down as if she was having difficulty keeping her head up.

[9] After stopping briefly the vehicle exited the Food Basics parking lot and returned to Upper Gage Avenue where it again swerved into oncoming vehicles and proceeded in a southerly direction toward Fennell Ave.

[10] At Fennell Avenue the vehicle executed a left turn but in so doing the vehicle mounted the median, struck a pole and had to be manoeuvred around the median to complete the turn.

[11] Peters saw the vehicle stopped on Fennell Ave. East by a police officer.

Arresting Officer – Constable Christa McKinney

[12] Constable Christa McKinney was the Hamilton Police officer who stopped the vehicle being followed by Peters. She was responding to a dispatch for an impaired driver operating a grey Honda with Ontario marker ANAX 214.

[13] McKinney sighted the vehicle as it approached Upper Wellington Street from the east on Fennell Ave. McKinney saw the vehicle proceed through the intersection and swerve into oncoming traffic as it did. McKinney pulled behind the vehicle and activated her roof lights and siren. The vehicle stopped abruptly in the center of the road while still straddling the center line.

[14] The driver was not responsive to hand gestures to pull over to the side of the road. The vehicle began to move. McKinney ran up to the driver side of the car and pounded on the window. The vehicle stopped. The female operator was staring straight ahead. When McKinney pounded on the driver door window the female turned her head very slowly to the left and looked at the officer. McKinney gestured the female to roll down the window which she did.

[15] The officer immediately noted an odour of alcohol. McKinney reached into the car, unlocked the door and directed the female to put the car in park. McKinney had to tell the female three times to put the car in park before she complied with the direction.

[16] When asked to exit the vehicle the female stumbled and almost fell down. The officer had to catch her. She seemed disoriented, "out of it", as if she did not understand who the officer was or what was happening. In cross examination she agreed that "out of it" in this context was something more, or different, than just intoxicated by alcohol.

[17] The officer noted that the female's hair was wet and she was dressed for work. McKinney formed reasonable and probable grounds and arrested the female at 7:45 am. She performed a pat down search, applied handcuffs and placed the female in the rear of the cruiser.

[18] The officer was able to identify the female as Jennifer Desrosiers through a valid Ontario driver licence located in Ms. Desrosiers' purse. Officer McKinney read the standard caution and right to counsel recitations. She was not confident that Desrosiers understood these at that point.

[19] In the cruiser McKinney had a conversation with Desrosiers during which Desrosiers gradually became more coherent and responsive and in which she disclosed that she had been off work on stress leave, that her kids were not in her custody, that she had undergone a recent separation and that she had something to drink the night before.

Constable Laka

[20] Constable Laka saw Desrosiers and her vehicle at the arrest site at about 7:45 am. She noted that the vehicle had sustained damage. There were marks on both sides of the vehicle and a dent on the hood.

Breath Room Video

[21] The Court viewed the video tape of the breath room interaction. Ms. Desrosiers presented in that setting as extremely distraught. She demonstrated both awareness of the consequences of her situation and confusion about her circumstances.

Jennifer Desrosiers

[22] Ms. Desrosiers testified. She is 48 years old. She was born in Wisconsin in the United States. During her teen age years she suffered from anxiety and anorexia that was triggered by the divorce of her parents. During that time it was reported to her by her parents and brother that she would get up in the middle of the night and binge on food and leave a mess in the kitchen. She had no recollection of doing this. Her mother got up in the midst of one of these episodes and realized that her daughter was not with it and directed her back to bed. She experienced other episodes of reported sleep walking during her college years at times that she correlates to stressful and anxious times in her life – her parents' divorce, being in Finland on an exchange program and a suspension from her university program.

[23] Eventually Ms. Desrosiers earned a Bachelor of Science degree with a specialization in dietetics. The episodes of sleep walking subsided until after the birth of her first child.

[24] Ms. Desrosiers met her future husband after her graduation from university. He is a Canadian citizen. They lived and worked in the United States for a period of time after they met but eventually settled in Burlington Ontario where they got married. At the beginning of the relationship and up to the birth of their first child in 2004 Ms. Desrosiers is not aware of any episodes of sleep walking.

[25] After the birth of their first child Ms. Desrosiers' husband noticed that his lunch sandwich would go missing overnight. When asked about the missing sandwich Ms. Desrosiers would have no recall of eating the sandwich. When he thanked his wife for getting up to breastfeed the child Ms. Desrosiers would have no recollection of getting up in the night. She also found herself occasionally waking up on the couch in the living room with no recollection of how she got there. Just before the birth of her second son in 2006 Ms. Desrosiers lost her mother. Her mother had not been ill and the death was sudden. This and the complications of looking after 2 young boys resulted in an increase in the sleepwalking episodes.

[26] Due to her concern about these episodes and the fact that she was not getting a good night's sleep Ms. Desrosiers sought a medical consultation in 2008. She was referred to a sleep clinic and a sleep study confirmed the presence of sleep apnea. A CPAP machine was prescribed and obtained.

[27] The Desrosiers marriage began to deteriorate in 2010 and they began the separation process in 2011. They began living in separate residences in 2012. They live close to each other and have a co-parenting arrangement that is working well for both of them and the children.

[28] For the past five years Ms. Desrosiers has been employed as an outreach dietician at the North Hamilton Community Health Centre. Her work is very important to her. She finds her present job demanding but satisfying. Beginning in May and June of 2015 her situation at work was becoming increasingly stressful. She works off site and is dependent on internet connectivity to complete and file her chart notes. She was having difficulties connecting with the server. She was also having difficulties with completing charting due to arthritis and carpal tunnel syndrome. Her anxiety was ramping up. She was not coping well. On the recommendation of her family doctor and with the permission of her manager she took a four week leave from work. Her return date was July 8.

[29] In the week prior to July 8 Ms. Desrosiers travelled to Wisconsin with her two children to visit with her family. When packing for the trip Desrosiers forgot to include her CPAP machine. The first part of the trip was great. They saw the July 4th fireworks. The children were having a good time. Ms. Desrosiers brother agreed to take the children to California with him for an extended holiday.

[30] Towards the end of the week Ms. Desrosiers could feel herself getting more and more anxious about her return to work. Would she be judged by co-workers? Would she be able to complete the charting that she had been unable to attend to before? Will I be fired? She did not sleep well in the last two days before her return to Canada.

[31] Ms. Desrosiers left Wisconsin to return home on July 7 – she would have left on the 6th but her brother had arranged a flight to California on the 7th. She first drove her brother and her children to the airport in Chicago and thereafter drove all the way back to Hamilton arriving at her home in Hannon at around 9 or 9:30 pm. She purchased a bottle of Vodka at the duty free shop at the border. The drive was about 12 hours in duration. On the way home she was continuing to worry about how her return to work would go. At the same time she was going to have an opportunity to spend time with her new boyfriend and she was looking forward to that.

[32] When she got home she unpacked the car. She also texted her brother and boyfriend and phoned her step father to assure them that she had arrived safely She was anxious to get to sleep so she took a Trazadone pill to help her get to sleep. She lay down and dozed off. A short time later she woke up and started to worry again about returning to work. She took a sleeping pill called Imovane. She takes Trazadone on a regular basis but Imovane is a medication that she rarely took. She did not use her CPAP machine. She fell asleep and that is the last thing she remembers. Her next recollection is being in a holding cell in the police station.

[33] Watching the breath room video triggered some memories of being in a room and being asked to blow into a machine but otherwise her recollection is unclear.

[34] Ms. Desrosiers has regularly consumed alcohol on a social basis in the past. In the four or five years leading up to the date of the alleged offence her after work consumption was in the range of three to four glasses of wine.

[35] She has two documented incidents of drinking to the point of intoxication in her past. One occurring in October 2014 (9 months prior to July 8, 2015) the other occurring in October 2015 roughly 3 months after July 8, 2015.

[36] In both cases the consumption of alcohol was triggered by a feeling of depression and hopelessness. In October 2014 Ms. Desrosiers was feeling overwhelmed as a result of the breakdown of her marriage and more particularly the reaction of her children to the separation. In October 2015 Ms. Desrosiers feelings of depression were related to her arrest and driving suspension and the difficulties that created in terms of providing a stable home environment. Neither incident included driving or the contemplation of driving. Both occurred at home. Neither of the incidents were work related and neither impacted her employment.

[37] Ms. Desrosiers was cross examined at length about her drinking habits and about the two incidents of intoxication. Her answers to questions put to her struck me as fulsome and candid.

[38] When asked to compare her mood on July 7/8 to time surrounding the events in October of 2014 and 2015 Ms. Desrosiers noted that she was clearly anxious about her return to work but not depressed. She had started a new relationship. She was looking forward to spending more time with her new boyfriend – particularly while the children were in California. The holiday in Wisconsin was a happy one and the children were in a good frame of mind.

[39] She states that she did not voluntarily consume alcohol on July 7 or 8 and she did not voluntarily operate her motor vehicle.

Estranged Husband – Stephane Desrosiers

[40] Mr. Desrosiers attended and gave evidence. He confirmed the details of his marriage to Jennifer Desrosiers that she had provided in her evidence.

[41] He also confirmed that during the marriage Ms. Desrosiers had a history of sleepwalking that began after the birth of their first child. He described occurrences where Ms. Desrosiers had no recollection of breastfeeding the children. He described other occurrences where food was missing and Ms. Desrosiers had not recollection of eating it. Incidents of Ms. Desrosiers waking up on the couch with no recall of how she got there were also confirmed.

[42] Mr. Desrosiers also testified about sleepwalking by his son. He provided a video of a sleepwalking episode that was played in court. This ties in with the evidence from Dr. Gojer described below concerning the hereditary nature of sleep walking. There is no history of sleepwalking in Mr. Desrosiers' family.

Expert Evidence – Dr. Julian Gojer

[43] Dr. Julian Gojer was called by the defence as an expert witness. He was easily qualified as an expert in the field of forensic psychiatry with particular expertise in issues relating to neuropsychiatry and sleep disorders. His CV, filed with the Court as Exhibit 5 is impressive. Since 2008 he has been associated with the sleep disorder clinic at Toronto Western Hospital. He has been qualified as an expert in this field at several trials including R v. Luedecke and R v. Fracassi.

[44] Prior to the trial Dr. Gojer conducted an extensive review of the Crown disclosure materials, witness statements and medical records of Jennifer Desrosiers. He watched the breath room video. He interviewed Jennifer Desrosiers and Stephane Desrosiers. He produced a report dated March 17, 2016 in which he concluded that – due to several factors including: a prior history of and predisposition for sleepwalking; fatigue resulting from a long drive on July 7; anxiety about return to work; presence of a medical history of sleep apnea; disrupted sleep on July 7 coupled with failure to use her CPAP machine that night; and the ingestion of Trazadone and Imovane; – a defence of a state of automatism (sleep driving) "appears to be there". In his evidence at trial he clarified that as of the completion of his report he considered that automatism at the time of the offence was a "possibility".

[45] On the day before he gave his evidence at trial Dr. Gojer listened to the audio recording of the evidence given by Constable McKinney. He expressed the opinion that Constable McKinney's description of Jennifer Desrosiers when she first encountered her – staring straight ahead, not responsive to pounding on the window, slow reaction to Constable McKinney's presence at the side of the car and an appearance of being "out of it"; the gradual emergence of awareness consistent with emerging from a sleep state to consciousness – was a key element in the overall picture that caused him to elevate his conclusion as to the presence of automatism (sleep driving in a state of parasomnia) from possible to probable.

[46] The evidence of Dr. Gojer on the issue of whether the state of automatism he finds to be probable is mental disorder automatism or non-mental disorder automatism is a good deal less clear.

[47] Dr. Gojer starts from the position that sleepwalking is an issue that originates in the brain and for that reason it should be classified as a mental disorder. He is however mindful that some courts have viewed the issue differently and cites the Parks decision as an example.

[48] In relation to Ms. Desrosiers, Dr. Gojer notes that there were several factors that coalesced at the same time to contribute to the sleepwalking. Some were external and some were internal. The external factors he identifies are: the long drive and resulting fatigue; the effect of the ingestion of Trazodone and Imovane; and the non-use of the CPAP machine. The internal factors would be her previously noted predisposition for sleepwalking and her long standing issues with anxiety.

[49] It is the opinion of Dr. Gojer that in her present condition the likelihood of sleep driving occurring again is "on the lower end of the spectrum". He reaches that conclusion because Ms. Desrosiers is now aware of the risk, she has stopped drinking, she is undergoing counselling, as a result of being in a positive and healthy relationship she is in a happier frame of mind, she is on different medication that is more effective in dealing with her anxiety, this is the only episode of sleep drinking and sleep driving, and, the incidence of sleep driving generally is rare.

[50] At the same time Dr. Gojer concedes that the internal factors of stress, anxiety and a predisposition to sleep walking episodes are factors that remain present and they are issues with which Ms. Desrosiers will likely contend in the future.

Legal Principles

[51] The leading case dealing with the defence of automatism is the decision of the Supreme Court of Canada in R v Stone. The principles to be derived from that decision can be summarized as follows:

• Automatism is defined as "a state of impaired consciousness, rather than a state of unconsciousness, in which an individual, though capable of action, has no voluntary control over that action"

• In cases involving claims of automatism the burden is on the defence to prove involuntariness on a balance of probabilities

• Initially the defence carries the burden of establishing a proper foundation for the defence of automatism by asserting the claim of involuntariness and providing the court with psychiatric or psychological evidence that the assertion is plausible assuming that a factual scenario advanced by the accused that identifies some evidence from which a jury could reasonably infer that the accused acted in a state of automatism

• With respect to the weight to be attached to expert opinion on this issue the court notes: "If the expert testimony establishes a documented history of automatistic-like dissociative states, it must be given more weight than if the expert is simply confirming that the claim of automatism is plausible." Whether there is a documented history of prior episodes or not the trier of fact should be mindful that the value of the opinion is very much dependant on the accuracy and reliability of the account of the events provided by witnesses including the accused.

• Evidence of a documented history of automatistic-like dissociative states will assist the defence in satisfying the initial burden. The more similar the pattern of dissociation is with the current claim the more persuasive the evidence will be on the question of involuntariness.

• Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy eyed, unresponsive or distant immediately before, during or after the alleged involuntary act will be relevant to the assessment.

• A motiveless act will generally lend plausibility to the accused's claim of involuntariness and conversely a motive to commit the crime will reduce plausibility. The court should examine whether or not the crime in question is explicable without reference to the alleged automatism.

• If the defence satisfies the initial burden of demonstrating on a balance of probabilities that the defence is plausible the issue may be left to the jury. It is then up to the jury to determine if, as trier of fact, it is satisfied that based on the evidence that it accepts the defence is established on a balance of probabilities. In the context of a judge alone trial the presiding judge performs both functions.

• If the trier of fact is satisfied that automatism is proven then the further step of determining if the automatism established is mental disorder automatism as opposed to non-mental disorder automatism.

[52] The leading appellate authority dealing with the question of the determination of non-mental disorder versus mental disorder automatism is the decision of Justice Doherty of the Ontario Court of Appeal in R v Luedecke. The legal principles to be derived from that decision may be summarized as follows:

• The distinction between non-mental disorder automatism and mental disorder automatism depends on whether the automatistic state is the product of a "mental disorder". That term is defined in section 2 of the Criminal Code as a "disease of the mind". That phrase describes a legal and not a medical concept.

• Canadian courts have adopted a very broad definition of what will constitute a mental disorder.

• The fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry is whether society requires protection from the accused and the risk of recurrence is central to that inquiry.

• The trial judge begins from the premise that the automatism is caused by a disease of the mind and looks to the evidence to determine whether it convinces him that the condition is not a disease of the mind.

• In evaluating the risk of repetition and hence the danger to the public, trial judges must not limit their inquiry only to the risk of further violence (driving while impaired) while in an automatistic state. The trial judge must examine the risk of recurrence of the factors or events that triggered the accused's automatistic state.

• At the pre-verdict state, social defence concerns dominate. Those concerns focus on the risk posted by the potential recurrence of the conduct in issue.

• A genetic predisposition is the epitome of an internal cause which increases the risk of recurrence.

• The Stone decision directs the trial judge to look to the likelihood of recurrence of the triggering events and not just the likelihood of the recurrence of the criminal acts in issue (here, driving while impaired) while in an automatistic state.

Legal Principles Applied

Has the defence established on a balance of probabilities that the accused was in a state of automatism when driving while impaired?

[53] Ms. Desrosiers has a prior history of episodes of parasomnia that have been noted by others beginning in her teenage years. These episodes are generally associated with periods of increased stress and decreased restful sleep – parental separation, suspension from university studies, birth of children and work place stress. Her evidence of prior episodes is corroborated by her estranged husband and by the videographically established existence of her son's parasomnia. Based on this evidence which was not compromised by cross examination and which I accept as credible I find that Ms. Desrosiers had a pre-existing disposition to parasomniac episodes or dissociative states.

[54] Fatigue and lack of restful sleep can be precursors to episodes of parasomnia. Ms. Desrosiers had spent the day before making a long drive from Wisconsin. She did not use her sleep apnea device. She was worried about her return to work. These factors lend plausibility to her claim of automatism.

[55] The observations of Constable McKinney concerning the actions and condition of Ms. Desrosiers when directed to stop – abrupt stop in middle of the road, initially unresponsive to commands, staring straight ahead, "out of it" in a way that was more than just intoxicated by alcohol – are, as noted by Dr. Gojer, supportive of the existence of a dissociative state. Ms. Peters observation of the curious actions in the parking lot relating to windshield wipers and washer fluid is also supportive.

[56] Although Ms. Desrosiers had recently encountered stress at her workplace she loved her job. Although she had a documented history of drinking to excess on two prior occasions she has no prior history of drinking and driving, no prior history of intoxication at work and no prior history of drinking in the morning. She is an intelligent and conscientious person. It logically makes no sense for her to drink to excess on the morning that she was scheduled to return to work and then persist in presenting herself to her employer in a state of intoxication. These circumstances suggest that the criminal conduct is not explicable in the absence of a state of automatism.

[57] The uncontradicted expert opinion of Dr. Gojer is that it is more probable than not that Ms. Desrosiers was in a state of automatism when she operated her motor vehicle on July 8, 2015 at a time when she was impaired.

[58] In light of the foregoing I am satisfied on a balance of probabilities that Ms. Desrosiers was in a dissociative state of automatism when she drove her vehicle on July 8, 2015.

Mental Disorder Automatism or Non-Mental Disorder Automatism?

[59] Ms. Desrosiers has a clear and documented history of frequent episodes of parasomnia. The activities undertaken in the course of these parasomniac episodes has varied – eating, breast feeding, walking within the home, drinking alcohol, dressing and driving. Future episodes cannot therefore be said to be predictable. The triggers for her episodes include stress and anxiety, fatigue, lack of restful sleep, failure to use sleep apnea device, and ingestion of sleep medication and psychotropic medication. It cannot be said that these triggers are unlikely to recur in some combination.

[60] In these circumstances the presumption of mental disorder automatism has not been overcome.

[61] The automatism existing in this case is a disease of the mind.

Verdict

[62] The resulting verdict is: Not Criminally Responsible.

[63] Ms. Desrosiers is remanded to May 17 for the purpose of hearing submissions as to the appropriate forum for disposition.

Released: May 8, 2017

Signed: "Justice George S. Gage"