Court Information

Ontario Court of Justice

Date: January 27, 2017

Court File No.: Region of Durham 998 15 34107

Parties

Between:

Her Majesty the Queen

— and —

Jenelle Mary Rushnell

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: January 8, 11, February 20, June 30, August 30, October 12, 14, November 9, December 6, and 17, 2016

Reasons for Judgment released on: January 27, 2017

Counsel:

• Ms. H. Cooke — counsel for the Crown
• Mr. E. Neubauer — counsel for the defendant

Judgment

De Filippis J.:

Introduction

[1] The defendant was tried on an Information alleging that she assaulted Mary Krohn and was in possession of methamphetamine. The offences are said to have occurred on July 8, 2015 at City of Oshawa.

[2] The defendant is a personal support worker. At the time of these events, the complainant was an elderly sick woman under her care. On the day in question, the defendant "went into medical distress" and was taken to hospital for three days. The Crown claims that the defendant's condition was caused by her use of illicit drugs and that she assaulted the complainant while intoxicated.

[3] A brief history of the proceedings will explain the delay in completing the trial and why it is not necessary to deal with all motions in these reasons. In November 2015, a two day trial was set to be heard on October 12 and 14, 2016. On January 8, 2016, the Crown brought a motion for commission evidence, pursuant to section 709(1) of the Criminal Code. The application was grounded in the fact that Ms. Krohn was unlikely to testify at the trial because she is 88 years old, in palliative care, and confined to a bed at her home. She resides there with her daughter, Ms. Bell. The Defence conceded the application and I granted the Order. With the cooperation of Ms. Krohn and Ms. Bell, the Court attended at their home on Sunday, February 20, 2016 in the afternoon. With difficulty, Ms. Krohn acknowledged that she had given a prior statement to the police and that it was true. However, she could not respond to further questions by the prosecutor. The parties agreed with my suggestion that there was no point in continuing and we departed not long after our arrival. The Defence did not have an opportunity to ask any questions.

[4] A motor vehicle associated with the defendant had been searched as an incident of arrest and police seized a quantity of methamphetamine. After the defendant was released from hospital, the police seized her medical records by means of a Production Order. The latter was granted on condition that the records remain sealed. On June 30, 2016 the Crown moved to obtain access to these hospital records. This motion was deferred pending a possible Defence motion to quash the Production Order and related Search Warrant. A hearing date was fixed for August 30, 2016. Shortly before this date, Defence counsel advised that he would not oppose the Crown application for access to the medical records. I agreed that the hearing date now be used to consider a section 8 Charter challenge to the search of the motor vehicle. After hearing evidence relevant to this motion, the Defence abandoned it.

[5] With these pre-trial matters resolved, the case was adjourned to the originally scheduled trial dates. Immediately before the trial was to commence, Defence counsel brought a motion to adjourn as his wife had just given birth. This happened earlier than expected and counsel had not fully prepared for trial. I granted the motion in part; I vacated the October 12 date and agreed to the cancellation of all witnesses for October 14, except for Dr. Anadebe. The latter had made plans to clear his schedule and I was not willing to inconvenience other patients by changing the date of his testimony. Defence counsel indicated he could proceed on this basis. At this time, the trial estimate was reviewed; the Crown intended to call six witnesses and apply to tender Ms. Krohn's statement to police as evidence at trial, without the possibility of cross-examination, pursuant to R v Khelawan 2006 SCC 57. It was agreed that the trial proceed as a blended hearing along with the evidence heard on the Defence Charter motion and Crown Khelawan Application. Also on consent, the Defence case was tendered in writing. All this evidence was heard over three days in the following three months.

Prosecution Evidence

[6] Mr. Michael Little is one of the paramedics who responded to the 911 call placed by Ms. Bell on July 8, 2016. He met the latter on arrival at the scene and also saw Ms. Krohn in a hospital bed set up in what was the main floor dining room of the home. He also observed the defendant in this room, on her knees and facing the wall. Mr. Little testified that he immediately squeezed her shoulder. The defendant turned in response. She was "sweaty" with "pupils that were pinpointed". This indicates "nervous system issues". The defendant could not speak and "appeared to be going into respiratory arrest". She was put into a stretcher.

[7] Mr. Little had been told by Ms. Bell that the defendant had kicked Ms. Krohn in the ribs. He examined this area of the elderly woman but found no marks or bruising. He confirmed that he did not observe the defendant acting aggressively and did not make such a report to the police.

[8] Mr. Michael Cooke is a paramedic superintendent. He arrived on scene soon after Mr. Little. He testified that it was difficult to move the defendant out of the home. She was flailing about and not following commands. Her breathing was compressed and it stopped when she was put in an ambulance. Accordingly, she was ventilated. Mr. Cooke attended upon Ms. Krohn. He noted that she was awake, oriented, and able to speak. He said that she denied being injured and declined to go to hospital.

[9] P.C. Bryce, and her partner, arrived at the complainant's home after the defendant had been taken to hospital by the paramedics. She testified that Mr. Bell reported that her mother had told her she was struck twice in the ribs by the defendant. P.C. Bryce testified that she observed Mr. Cook examine Mr. Krohn for injuries and that he did not locate any marks or bruises. Having been apprised of the circumstances, the officer decided to search the defendant's pick up truck for anything that might provide an explanation for her medical distress. In the centre console, she found a plastic prescription bottle in a man's name. Inside this bottle she found a small quantity of a crystal substance that later was tested and found to be methamphetamine.

[10] The following day, P.C. Patrick took statements from the complainant and her daughter. P.C. Bryce returned to the residence several months later, on November 20, 2015, to follow up with a videotaped interview with Ms. Krohn. As will be described in more detail later, the complainant reported that the defendant had pulled her hair and punched her in the side of her body. P.C. Bryce was surprised to hear that the defendant had pulled Mr. Krohn's hair because this had not been reported before either to her or P.C. Patrick. Ms. Bell was present in the house during this interview.

[11] Dr. Anadebe is a psychiatrist at Lakeridge Hospital and spoke to the defendant when she was brought there. He has limited recollection of the meeting and relied on notes he made at the time to refresh his memory. He testified that he reviewed the results of a urine sample obtained from the defendant the day before and that it revealed the presence of methamphetamine and a prescription drug called Ativan. He said that in speaking to the defendant about her condition, she "endorsed using crystal meth and Ativan" but did not say when and that what caused her to pass out was heat exhaustion.

[12] Ms. Tara Kay is a registered nurse at Lakeridge Hospital. She has little recollection of her conversation with the defendant but made notes of it. The Crown and Defence agree that these notes are admissible as "past recollection recorded"; see: R v Richardson, (2003), 174 OAC 390.

[13] Ms. Kay's report is as follows:

Writer spoke to patient at patient's bedside. Presents as settled and calm. Told writer she is hopeful to be discharged as soon as possible. Patient admitted to hospital on Wednesday night. EMS and police were called when patient became unresponsive. Assisted breathing with EMS en route to hospital before being intubated. Patient had finished work on Wednesday as a PSW when she received a request from her place of employment to make one last house call to visit a client. Patient reports she had taken a drug called "GHB" which she describes as being a "date rape drug" just prior to picking up her last client of the evening. Patient thought she was finished work for the day and believed she would be able to complete the last house call before the drug would take effect. Patient told writer that she arrived at the client's house and the last thing she remembers is changing her client's brief. It is reported that patient became aggressive during her visit with her client. Patient told writer that she is in disbelief that she acted in an aggressive manner and has no recollection of behaving this way. Denies any feelings of wanting to hurt others. Patient denies that she made a deliberate attempt to self-harm and denies ever having made a self-harm attempt in the past. Patient denies any suicidal ideation currently or in the past. Denies ever having been assessed by a psychiatrist or formally DX with having a mental illness. No previous psychiatric admissions. Reports some issues with anxiety in the past and was at one time prescribed Ativan by her family physician. Patient denies taking any prescription medication including Ativan at this time. Although Methamphetamine were found to be present in patient's drug toxicity screen, patient adamantly denies taking such a drug and believes that it is possible it may have been incorporated in the "GHB" that she ingested. Denies alcohol abuse. HX of abusing OXYS and was affiliated with Pinewood for Methodone Program and counselling in the past. States was being prescribed OXYS from her family physician for back pain due to a curvature of the spine. Denies any criminal record or police involvement in the past for violent behavior. Currently living with her boyfriend in a house that she inherited from her deceased father. Patient is estranged from her mother and brother. States has supportive friendships. Lists her boyfriend as her next of kin (289)928-0035. Reports she has been sleeping well lately and that her appetite is fine. Told writer that she has gained approximately ten pounds in the last three months. Oriented to unit. Utilizing the phone for several calls at this time. No voiced concerns.

[14] Ms. Suzan Bell is Ms. Krohn's daughter. She confirmed that her mother was bedridden at the time of these events. She testified that a personal support worker came each morning and evening to assist in the care of the elderly patient. This care was not given by same person. The day of these events was the second time the defendant had come to the home. However, she was late in doing so and, at 9:30 PM, Ms. Bell telephoned the service provider to report this fact. At 10 PM, the defendant arrived. Ms. Bell observed that she was driving a pickup truck and parked it in the driveway in a "crooked manner"; that is, across the sidewalk. Ms. Bell went outside and asked the defendant to park on the street or she might be ticketed for blocking the sidewalk. The defendant said that nobody would be walking at this time of night and did not move the truck.

[15] Ms. Bell noted that the defendant was "wobbly on her feet" as she entered the home and bumped into the wall. She asked the defendant if she felt ill. The latter replied that she had worked 16.5 hours without a break. Ms. Bell was in the kitchen while the defendant attended to Ms. Krohn. She testified that she heard her mother cry out – "ow, ow, you are hurting me". She went to the adjoining room and saw the defendant pulling on her mother's disposable underwear "so hard it was cutting into her groin". Ms. Bell asked the defendant what she was doing and when the latter failed to reply, she called 911 for assistance. She returned to her mother and was told, "She punched me and pulled my hair". As the defendant continued to hold onto her patient, Ms. Bell told the dispatcher to, "please come, she's hurting her".

[16] Ms. Bell agreed she did not see the defendant strike her mother and that she did not report this to the 911 dispatcher. What she said is that, "she's hurting my mother" but did not believe she was injured. When the dispatcher asked if the PSW was being violent, Ms. Bell responded, "she put on the underwear [too hard]. She did not mention that her mother reported having her hair pulled and being punched. Ms. Bell asked for an ambulance for the defendant who was, she said, "acting crazy".

[17] Ms. Bell testified that by the time the paramedics arrived, the defendant was "slumped completely over" her mother. She was removed from the home and transported away by ambulance. When police arrived, Ms. Bell reported that there were red marks on her mother's side and that she had complained it was sore.

[18] Ms. Bell stated that early next morning, the defendant telephoned to ask that she retrieve her cellular phone from the pick up truck so she could locate her boyfriend's number and arrange for the truck to be taken away. Ms. Bell told her to call back later. The defendant did not do so but, by 9 AM, the truck was gone. Later in the day, a man – "the defendant's boyfriend" – came to get the keys for the truck that had been left at the home.

[19] Ms. Bell confirmed that, early in 2016, her mother has been diagnosed with dementia but resisted the suggestion she suffered from this disease the preceding July, when these events occurred, or the following November when the complainant was interviewed again.

[20] On November 20, 2015, several months after these events, a police officer visited Ms. Krohn and obtained a videotaped statement. Ms. Krohn swore an oath to tell the truth and said the following: "She came to wash me…she was funny somehow…she was swinging her arms. It seems like she was everywhere. Ms. Krohn added that at first she thought the defendant was playing but realized otherwise "when she pulled my hair". When asked to clarify this, she stated that the defendant pulled her hair first and then punched her on the side of her body and then fell on top of her. Ms. Krohn reported that the defendant said nothing during these events and that she had not been injured.

Defence Evidence

[21] On July 19, 2015, about 10 days after the defendant was arrested, Mr. Paul Craine, was arrested and charged with several offences, including possession of methamphetamine. The Crown and Defence agree to the following facts: The police, responding to a report about a suspected impaired driver, followed Mr. Craine in a pick up truck registered to the defendant. This is the same vehicle that she drove to the home of Ms. Krohn 11 days earlier. Mr. Craine was followed to a residence and, after exiting the vehicle, was observed to be "unsteady on his feet and staggering". He fled on foot after an officer told him to stop. He was apprehended a short distance away. The truck was searched and one-half gram of crystal methamphetamine was found in a plastic bag in the centre console. Mr. Craine told the police the truck belonged to his "girlfriend – Jenelle Rushnell" and that he did not have a licence to drive. When asked about the illicit drug, Mr. Craine said he had forgotten it was there and he had "not smoked meth for the past three weeks". Almost one year later, on June 16, 2016, Mr. Craine pled guilty to possession of methamphetamine and failure to comply with probation (for not keeping the peace and being of good behaviour) as a result of these events.

Analysis

[22] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A).

[23] The defendant is charged with two offences. To prove possession of the controlled substance, the Crown must establish knowledge and control over the item. Control is not an issue in this case. The question is whether she knew it was in the vehicle. It would be reasonable to infer knowledge because the methamphetamine was found in a motor vehicle registered to the defendant and one that she had operated on the day in question. However, there is other evidence to consider.

[24] Eleven days after the events in question, the defendant's boyfriend, was arrested after driving the defendant's vehicle in an erratic manner and police seized a small amount of methamphetamine from the same centre console in which P.C. Bryce had previously found this drug. The man, Mr. Craine, later pled guilty to possession of the controlled substance. I note that the methamphetamine the Crown argues was possessed by the defendant was found in a prescription pill bottle "in a man's name". This Defence evidence would at least raise a reasonable doubt about the defendant's guilt but for the statement she made to Dr. Anadebe.

[25] There is no admissible evidence before me that the defendant had methamphetamine in her system. Two hospital officials, neither of whom apparently conducted any such test, testified that they read a report to this effect. This testimony is hearsay. What is admissible is the defendant's reaction when apprised of such a report. She told Ms. Kay, the nurse, that she had consumed another illicit drug – "GHB" – and adamantly denied ingesting methamphetamine; she speculated it may have unknowingly been placed in the date rape drug. However, according to Dr. Anadebe, when he raised the test result, the defendant "endorsed using methamphetamine". Whether this means she merely approved of it or had also consumed it was not explored by counsel. However, the reliability of the evidence given by the doctor was not challenged. I find that the defendant said the words and conclude the defendant had knowledge of the methamphetamine found in her car. To further explain why the Defence evidence does not raise a doubt, I also note that possession does not necessarily equate with ownership or consumption. As already pointed out, it means knowledge and control.

[26] In determining the assault charge, the Crown points to the evidence that the defendant pulled the complainant's hair, punched her in the side, and aggressively pulled up the complainant's disposable underwear. With respect to the first two acts, the Crown asked me to consider the videotaped interview with Ms. Krohn. The Defence concedes that the requirement for necessity is met on this Khelawan application, but contests reliability. Counsel also argued that, even assuming the evidence is admitted, it does not prove the assault as described by Ms. Krohn. I agree with this submission. Accordingly, I need not consider the otherwise helpful legal submissions by both parties with respect to the Application.

[27] The videotaped statement was given four months after the events by an elderly frail woman in a palliative state. This, in itself, points to the need for caution. In addition, nobody saw the defendant pull the complainant's hair or punch her in the ribs. Moreover, there are some inconsistencies to consider. Ms. Bell testified that while waiting for the paramedics and police to arrive, her mother told her the defendant had pulled her hair and punched her in the side. She told one of the paramedics that the defendant had kicked her mother in the ribs. Ms. Krohn told the paramedics that she was not injured and neither they, nor the police, observed marks or bruises. Several months later, she reported her hair had been pulled and she was punched once. P.C. Bryce noted that this was the first time the police had learned about hair being pulled. In all the circumstances, I cannot conclude with the requisite certainty that the defendant pulled Ms' Krohn's hair or punched her in the ribs.

[28] What is clear is that the defendant was in a disordered state of mind while caring for Ms. Krohn. She arrived late for her duties, improperly parked her vehicle, was unsteady on her feet and bumped into a wall on entry into the home. It is also clear why the defendant was in this state; by her own admission she had consumed GHB, the so-called date rape drug. This eventually caused her to go into respiratory arrest such that she had to be ventilated.

[29] Before Ms. Bell called 911, during the encounter between patient and care giver, Ms. Krohn yelled, "ow, ow, you are hurting me". This was heard by Ms. Bell from the adjoining room and she rushed to her mother and saw the defendant aggressively pulling up her disposable underwear. Rather than roll the patient from side to side while lifting the underwear, the defendant pulled it up fast and hard. There can be no doubt that this is why Ms. Krohn cried out in pain. This act was unnecessary and hurtful. That the defendant may have done so because of her disordered state does not excuse her conduct; the voluntary consumption of the intoxicating drug means she is guilty of assault.

[30] The defendant is found guilty of both offences – and with respect to the assault, on the limited basis I have explained.

Released: January 27, 2017

Signed: "Justice De Filippis"