ONTARIO COURT OF JUSTICE
DATE: 2022 06 28
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KEVIN LYONS-FOUGERE
Before: Justice J.F. Adamson
Reasons for Judgment released on: June 28, 2022
Counsel: A. Midwood & K. Buker................................................. counsel for the Crown D. Barrison........................... counsel for the defendant Kevin Lyons-Fougere
ADAMSON J.:
INTRODUCTION
[1] Alexis Stata was only 19 when EMS responded to a call that she was in medical distress at her boyfriend’s apartment. They were unable to resuscitate her and she was pronounced dead at hospital shortly thereafter. The cause of death was diabetic ketoacidosis. At issue before me is the role of her then boyfriend in the days and hours leading up to Ms. Stata’s death.
[2] Kevin Lyons-Fougere stands charged with failing to provide the necessaries of life, contrary to s. 215 of the Criminal Code. It reads as follows:
(1) Everyone is under a legal duty
(c) to provide necessaries of life to a person under his charge if that person:
(i) is unable, by reason of detention, age, illness, mental disorder or other cause to withdraw himself from that charge, and
(ii) is unable to provide himself with the necessaries of life.
(2) Every person commits an offence who, being under a legal duty within the meaning of sub-section (1), fails without lawful excuse to perform that duty if:
b) With respect to a duty imposed by paragraph 1(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
[3] There are no issues with respect to date, time, jurisdiction or the cause of death. Earlier rulings have also admitted into evidence statements made by Mr. Lyons-Fougere and anti-mortem statements of the deceased.
[4] The issues here are:
- Was Ms. Stata under the charge of Mr. Lyons-Fougere?
- Was Mr. Lyons-Fougere’s failure to obtain medical care earlier than he did a marked departure from the conduct of a reasonable and prudent person in similar circumstances?
- Was it objectively foreseeable that failing to obtain medical care in a more timely fashion would endanger Ms. Stata’s life, or permanently endanger her health?
A PERSON UNDER HIS CHARGE
[5] The phrase “to a person under his charge” describes the existence of a legal duty of care. For this element of s. 215 the Crown must prove beyond a reasonable doubt that this relationship existed, that the person “under his charge” could not withdraw (for one of the reasons enumerated), and that she was unable to provide herself with the necessaries of life.
[6] To determine whether Ms. Stata was under Mr. Lyons-Fougere’s charge I must first look to their relationship. They were only boyfriend and girlfriend. There was certainly no statutory or other legally recognized duty binding them. However, the duty under this section may arise from the surrounding circumstances if they create a situation of dependency in one party and control by the other. A major consideration is whether one person has explicitly assumed responsibility for the other. This has a heightened importance when it is proved that the dependent person is unable to care for themselves and unable to withdraw from the relationship.
[7] Mr. Lyons-Fougere and Ms. Stata had been seeing each other for about two weeks before she died. Of that time, only the second week could be characterized as a relationship. During that week Ms. Stata had stayed at the apartment Mr. Lyons-Fougere shared with his roommates at least once before the events in question. She came over again at about 7:00 p.m. on February 12, 2017 and was there continuously until EMS removed her in the early afternoon of February 14th.
[8] Mr. Lyons-Fougere knew Ms. Stata was a type one, insulin dependent diabetic. He had asked her early on if there was anything he needed to know about diabetes and she assured him that she knew how to take care of herself and he would never have to worry about her forgetting to eat and then “die or something”. Nevertheless, he told police that he was always worried about her and would “always ask her, like, if she was tired or anything, if her blood sugar’s right”.
[9] In his statement given to Detective Dellipizzi the same day as Ms. Stata’s death Mr. Lyons-Fougere admitted that he was worried that Ms. Stata wasn’t eating and he had offered her food that she refused on the grounds that she wasn’t hungry. In his second statement he described going out to the store to buy Alexis an Ensure because he knew it had vitamins and she “took those a lot”. When he gave it to her she drank only half and then appeared to fall asleep, dropping the rest.
[10] As Alexis’ condition worsened Mr. Lyons-Fougere continued to be concerned. When they were alone in his bedroom, he repeatedly asked her if she needed anything, even specifically asking if she needed her insulin or an ambulance. His position is perhaps best summed up with this quote from the Dellipizzi interview: “I tried to watch her, take care of her”.
[11] It is clear Mr. Lyons-Fougere’s intention was to look after Ms. Stata. He clearly believed there was a need. There was also no one else assuming this duty. Up to that point Ms. Stata’s interactions with the roommates had been fleeting and sporadic and none had shown any sign of any taking any responsibility for her. When Ms. Stata and Mr. Lyons-Fougere went to bed the roommates were excluded completely. Taking her into his private room and continuing to inquire after her health made Mr. Lyons-Fougere’s intention explicit. Here it is unnecessary for me to look to Daniel Woodhouse’s evidence about Mr. Lyons-Fougere saying “he had it under control” to find that this point has been proved beyond a reasonable doubt. Mr. Lyons-Fougere’s actions and words otherwise speak for themselves. He took Ms. Stata under his charge.
[12] The evidence also proves beyond a reasonable doubt that Ms. Stata was unable to withdraw from this relationship, at least once they had retired to bed, and that Mr. Lyons-Fougere knew it. Dropping the Ensure bottle was a clear marker of weakness that followed from earlier signs. Her level of responsiveness on the videos taken by Mr. Lyons-Fougere during the night indicate that her level of somnolence had by then obviously overwhelmed any capacity for reasonable decision making. She was almost immobile and unable to articulate clearly. Mr. Lyons-Fougere himself made it clear that she was making no sense to him. He did not necessarily know why she was acting this way, but he knew that it wasn’t normal. It was also abundantly clear to Mr. Lyons-Fougere that if she needed anything, she wasn’t going to be able to get it for herself.
[13] The inescapable conclusion is that Ms. Stata was under Mr. Lyons-Fougere’s charge once they had entered his room for the last time.
MARKED DEPARTURE
[14] Having found that Mr. Lyons-Fougere was under a legal duty to provide Ms. Stata the necessaries of life the next question is whether the Crown has proved beyond a reasonable doubt that he failed to do so. Here the necessary of life in question was medical aid. It is not disputed that Mr. Lyons-Fougere did not summon medical aid until he woke up the following day and discovered Ms. Stata essentially beyond help.
[15] His actions are to be considered against an objective standard. The purpose of s. 215 is “establishing a uniform level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal standard of conduct” (R. v. Naglik, 1993 3 S.C.R. 122 para. 141). Thus the inquiry here involves what a reasonable person would have appreciated from the circumstances.
[16] In the recent case of R. v. Goforth, 2022 SCC 25, the Supreme Court of Canada held (at para. 27) that:
… The provision punishes conduct that is a marked departure from an objectively reasonable standard of care. More specifically the mens rea requirement for s. 215 is established when the Crown proves that the accused’s conduct constitutes “a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to the health of the child”. (Naglik, supra, at para.143…)
[17] It is abundantly clear from the evidence that Mr. Lyons-Fougere did not, subjectively, believe that Ms. Stata was in imminent danger that night. I have no doubt that his plans to enjoy the next day with her, and his shock and upset at her condition when he woke up were absolutely genuine. That is not the question here.
[18] The first question is whether his failure to see the risk and take steps to avoid it was a marked departure from what would be reasonable for someone in his shoes.
[19] Obviously, elements that would be beyond the capacity of a reasonable person to appreciate have no bearing. What factors would the reasonable person have been able to consider? It was known that Ms. Stata was an otherwise healthy, 19-year old, insulin dependent diabetic. It was known that she was very experienced with managing her diabetes and that she, at the very least, needed insulin if she was eating. It was known that she had not been eating, beyond half an Ensure, since she came over on the evening of the 12th.
[20] The text messages that have been admitted between Ms. Stata and Mr. Lyons-Fougere make clear that she told him that she was not feeling well before she came over and this was not attributed to diabetes. The evidence of the roommates who saw her throughout the day on the 13th indicate nothing unusual until the late evening of that day and the early morning of the 14th.
[21] Sarah Stovin and Caleb Johnston occupied the room to one side of Mr. Lyons-Fougere’s. Sarah recalled hearing Alexis stumble near the bathroom and heard her breathing heavily through the wall. She thought only that Alexis had been drinking. Caleb Johnston made the same observations, adding only that he remembered Alexis saying once that she wanted to go home. Neither of them connected Alexis’ condition to diabetes.
[22] Daniel Woodhouse was much more explicit. He testified that after he got home at around midnight Alexis was inappropriately walking around in her underwear, staggering and at one-point dry heaving in the bathroom. I cannot put much weight on Mr. Woodhouse’s evidence. The above observations were relayed to Detective Dennis almost two years after the events. When he was interviewed by Detective Dellipizzi on the day of Alexis’ death Mr. Woodhouse reported that she looked fine and even specifically rejected suggestions that her symptoms were worse. His explanation: that his original statement was the product of the shock and trauma of his involvement in the day’s events, simply does not hold water. Viewing that interview reveals Mr. Woodhouse in full possession of his faculties and responding thoughtfully to the questions asked.
[23] However, it was clear that Alexis Stata was not well. Mr. Lyons-Fougere admitted to Detective Dennis that she had seemed “really out of it, in and out, like she had taken something, but she hadn’t.” A picture taken on Alexis’ phone on the evening of the 13th shows her perhaps droopy eyed and open mouthed though very definitely awake. However, Mr. Lyons-Fougere’s own actions indicate that his level of concern was rising and he chose to document Ms. Stata’s condition. He took three videos in the small hours of the 14th that are Exhibit 8 in these proceedings.
[24] Mr. Lyons-Fougere told Detective Dennis variously that he took the videos over either a one hour or three-hour period. He prefaced those remarks (made almost two years after the events) by stating that he is bad with times. I agree with defence counsel that I can reliably conclude nothing more than that the videos are taken between sometime very late on the 13th and very early on the 14th.
[25] In the first video Ms. Stata is visible (as the lights are on). She is lying on her stomach on the bed and appears excessively sleepy. She is breathing heavily and while she responds verbally to Mr. Lyons-Fougere she is clearly inarticulate. When he attempts to rouse her she raises her voice to say something like “shut up” and swings her arm weakly at him.
[26] The second and third videos are taken in the dark and Ms. Stata is not visible. The only observation of her condition available is that she continues to breath steadily and heavily, as if in a deep sleep. The only other insight into her condition comes from Mr. Lyons-Fougere’s contemporaneous voice over wherein he complains that “this is what I have been dealing with”, along with his references to her smashing items in his room and treating him (despite his trying to get her to take her insulin and generally look after her) as if he’s “the asshole”.
[27] As stated these videos were likely made at a time when most people would be long asleep. There is evidence of a late night the night before (the 12th into the 13th) and the night before that though Mr. Lyons-Fougere would have been unaware of that. Perhaps Ms. Stata was entitled to be very sleepy. However, Mr. Lyons-Fougere’s circumstances at that moment included the earlier thought that her behaviour was abnormal and that he was alarmed by her resistance to being roused.
[28] What would a reasonable person do in the circumstances? The Crown argues that the reasonable boyfriend would not do what Mr. Lyons-Fougere did, which was worse than nothing. It is not contested that Mr. Lyons-Fougere took a sleeping pill. He told Detective Dennis that he did this because he was exhausted and feared that he would not sleep ahead of a full day to follow. While he often only took a half dose of his sleeping medication, this time he felt he needed the full dose. He knew very well that this would render him basically insensible for several hours. He knew that he would be unlikely to hear any alarm despite that he had set one for every four hours at which times he hoped to urge Alexis to take her insulin. As the Crown points out; taking that pill was roughly equivalent to walking out the door.
[29] There were other options available. To name a few: he could have called an ambulance, called Alexis’ family, consulted his roommates, tried more vigorously to rouse her, tried to sleep without the medication, taken only a part of his medication, taken a moment to look up diabetes before doing anything else, or just stayed awake and kept watch. Any of those options may well have been reasonable in the circumstances. To check out completely was not.
[30] Mr. Lyons-Fougere knew that there was something wrong with Alexis Stata. He knew that it was not attributable to alcohol or drugs. He knew that he didn’t fully understand it. His own words both at the time and afterwards made it clear that at least the possibility that she might need an ambulance was on his mind. In those circumstances his particular conduct of removing himself completely from the equation, of effectively renouncing any responsibility for Alexis’ care, represents a marked departure from what a reasonable and prudent person would do in the circumstances. That element of the s.215 offence has been proved beyond a reasonable doubt.
FINAL ELEMENT
[31] That Mr. Lyons-Fougere’s conduct was a marked departure from the objective standard is not the end of the inquiry here. Standing alone it does not fully make out an offence under s. 215. The section also requires that the failure to perform the duty endangers the life and health of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
[32] This last part of the section further imports the concept of reasonable foreseeability into the analysis. It is not enough that we know that Alexis’ death was, in fact, the result of the decision. I am not to reason backwards. To attribute liability under this section I must be satisfied beyond a reasonable doubt that this dire result would have been foreseeable to the reasonable person in the circumstances as they existed. This was made explicit in Justice Lamer’s reasons in Naglik, supra, where he wrote (at paragraph 37):
What parts of the offences must be reasonably foreseeable? …I would hold that s. 215(2)(a)(ii) punishes a marked departure from the conduct of a reasonable parent in circumstances where it was objectively foreseeable that the failure…would lead to a risk of danger to the life, or a risk of permanent endangerment to the health of the child. …this is not one of those offences described in Creighton in which the nature of an underlying act, unlawful in itself, was so inherently risky that it is presumed to involve objective foresight of the risk of the consequences which follow and which give rise to a separate offence.
[33] We can see this analysis applied in the cases that followed Naglik, supra. For example: In Doering, 2019 ONSC 6639 Justice Pomerance wrote at para. 131: “I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance…and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chisjohn’s life.” In R. v. Turley, 2012 BCSC 540, para. 193, Justice Stromberg-Stein wrote “Was it objectively foreseeable that the failure to obtain medical care would lead to a risk of danger to the life or risk of permanent endangerment to the health of Ms. Raymond? No.”.
[34] There are two elements to this part of the foreseeability analysis. The first is the aspect of the severity of Ms. Stata’s condition. Would the reasonable person have foreseen that such severe consequences would follow from the lack of care? Secondly, there is the question of timing. Would the reasonable person have foreseen that these consequences would occur in the timeframe affected by their failure to provide care?
[35] It is clear from the evidence before me that a major driver of Mr. Lyons-Fougere’s decision to go to sleep was his lack of knowledge about diabetes. Lack of knowledge in a specific area is obviously something peculiar to each individual. It is generally understood to be a subjective factor and therefore inconsistent with the objective reasoning I am to apply here.
[36] However, the law must account for the fact that not every reasonable person will have knowledge in specific areas that may affect their decision making.
[37] This issue was considered by the Supreme Court of Canada in Goforth, supra at paragraph 41. While the Court noted that using individual characteristics such as education or experience in this analysis undermines the purpose of the uniform, objective standard they also held that:
This is not to say that the reasonable person is placed in a factual vacuum. While the legal duty of the accused is not particularized by his or her personal circumstances short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care. The reasonable person is therefore placed in the relevant circumstances of the accused. These circumstances do not personalize the objective standard, they contextualize it.
[38] In Goforth the Court rejected Mr. Goforth’s claim that, as a secondary caregiver, he was less able to appreciate the emaciated state of his foster children. Essentially, they held that any reasonable person in his shoes would recognize their dire condition.
[39] With respect to diabetes the analysis is obviously more complicated. It is different from starvation, or a wound. Not everyone is going to recognize the signs of ketoacidosis. Any principled analysis must allow for the difference between a member of the general public and, for example, Dr. Catherine Kelly, who gave evidence in this case as an expert in endocrinology and metabolism as they relate to diabetes.
[40] Dr. Kelly gave evidence that the symptoms of ketoacidosis are extremely variable and that sometimes a person can confuse them with a bad flu. She said that people may appear more exhausted, sometimes vomit, may feel nauseous, there may be a loss of inhibitions. People may experience confusion that leads all the way to loss of consciousness but not necessarily. She said that sometimes people will have difficulty breathing, or a deep rate of breathing, or breathe quickly. She said loss of balance is not a typical symptom.
[41] As for the timeframe: ketoacidosis generally takes 12 to 24 hours to become critical with variation depending on the timing and type of earlier insulin injections and other factors. She would expect a person to become more lethargic, somnolent and less able to respond but that it is difficult to know when, in this process, “you would start to see symptoms” and that it can happen very quickly.
[42] It seems clear that even Dr. Kelly would face some challenges in knowing exactly what was going on with Alexis Stata that night if she just going off her symptoms. Her evidence, and that of the other medical professionals, made it clear that testing Alexis’ blood sugar is what needed to be done. There is no reliable evidence before me that there was even a glucometer in the apartment and none at all that Mr. Lyons-Fougere would have known how to use it.
[43] I have very limited tools to assess what the reasonable person would know of the nature, symptoms and consequences of ketoacidosis. I can observe that Dr. Kelly’s evidence pointed to no absolutely clear markers. I can also observe that much of what Dr. Kelly said on the subject was news to me – a reasonably well educated 60-year old who’s only law partner for many years was a very poorly managed diabetic. It would also obviously be news to all of the four young adults who were with Alexis Stata that night.
[44] However, the best evidence I have came from Dr. Kelly’s lifetime of experience in the field. Her observations were that it is generally quite unusual for people to understand “about ketoacidosis” and that “these hyper symptoms are not well understood”. She said that most people would provide sugar, which would be exactly the wrong thing. She outlined how important it is for the loved ones of type one diabetics to take courses to understand these issues so they can recognize a problem for what it is. She said that even experienced diabetics themselves can confuse the symptoms with a bad flu. Her evidence also underscored the variability of the timing of the progression of the condition. She also made it clear that even a very late intervention can save someone from serious harm.
[45] Kevin Lyons-Fougere was repeatedly questioned about his knowledge of diabetes. It’s also clear that his level of knowledge was concurrent with what I would expect from a reasonable person. With the onset of ketoacidosis as the issue that night his reasonable ignorance robbed him of the capacity to appreciate the true level of danger. At the time Mr. Lyons-Fougere made his fateful decision the circumstances were that Alexis was excessively somnolent and difficult to rouse. When she was roused, she was capable of both lashing out and expressing her displeasure with Mr. Lyons-Fougere. While she was diabetic, and there was no other apparent reason for her condition, there were few symptoms. She was expressing that she just needed to sleep, it was very late, and she appeared to be breathing steadily and sleeping comfortably.
[46] Would a reasonable person have foreseen that death was a probable consequence of her condition, and that it would essentially happen before Mr. Lyons-Fougere could expect to wake up?
[47] I appreciate the Crown’s argument that the failure to summon care is not dependent on an appreciation that diabetes was the issue. However, in this part of the analysis, an appreciation of the terrible and precipitous nature of ketoacidosis is essential to appreciating both the extent and the imminent nature of those consequences.
[48] I also accept the Crown’s argument that it is no answer to these charges that Ms. Stata was resistant to assistance. Her resistance is just one of the circumstances at play and would have to be interpreted by the reasonable person in the light of her otherwise abnormal behaviour. In those circumstances I don’t see how it could provide a reason not to act.
[49] However in this last part of the analysis the foreseeability of the extent and imminence of the consequences is the issue. I must be satisfied beyond a reasonable doubt that Alexis’ death or permanent endangerment was reasonably foreseeable before Kevin would wake up and again try to help. The concept of reasonable doubt is a touchstone of our criminal law and the onus is on the Crown to dispell it. They need not prove each element to absolute certainty, but there must be more than probable guilt. Here I cannot find beyond a reasonable doubt that the reasonable person in the circumstances that obtained that night would have foreseen the dire consequences occurring as they did and when they did. Alexis Statas’ death always was and remains a tragedy, but Mr. Lyons-Fougere’s role in it does not attract liability under s. 215.
Released: June 28, 2022 Signed: Justice Adamson