ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-10420
DATE: 20121114

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – KIRK BLAIS Appellant

Riad Tallim, for the Respondent

Paul Lewandowski, for the Appellant

HEARD: October 31, 2012

on APPEAL FROM THE CONVICTIONS ENTERED BY MADAM JUSTICE C. KEHOE ON JUNE 7, 2011

C. McKINNON J.

Overview

1The appellant was convicted of dangerous driving and failing to stop his vehicle while being pursued by a police officer, both offences having occurred on April 30, 2009.

2On the day in question Mr. Blais was under intense pressure occasioned by his inability to pay certain sub-trades for work they had performed on a new home that he and his spouse were erecting. His lawyer telephoned Mr. Blais and informed him that threats had been conveyed to him by some creditors and that Mr. Blais and his spouse should “watch their backs.”

3Shortly after being informed of the threats, Mr. Blais was driving his vehicle with his spouse when he was pulled over by an Ottawa police officer for speeding. He was travelling 72 kilometres per hour in a 60 kilometre per hour zone. After being stopped and questioned by the police officer, Mr. Blais reportedly said “It wasn’t me” then said “Fuck this,” and “punched down the accelerator on the gas and took-off westbound on Pineglen.” A police chase ensued. There is no dispute that the manner of driving constituted dangerous driving nor that Mr. Blais did not stop his vehicle when directed to do so by police. On arrival at his home, Mr. Blais was vomiting. His spouse called 911. Paramedics concluded that Mr. Blais was suffering from a severe panic attack.

4The issue at trial was the mental state of Mr. Blais at the time of the incident. Defence counsel (not Mr. Lewandowski) submitted that Mr. Blais should be acquitted on the basis that at the time of the incident he was in a state of non-insane automatism. That defence was rejected by the learned trial judge on the basis that it had not been established on a balance of probabilities as required by R. v. Stone, 1999 688 (SCC) , [1999] 2 S.C.R. 290 and R. v. Fontaine, 2004 SCC 27 , [2004] 1 S.C.R. 702. The trial judge gave comprehensive oral reasons for her decision totalling 53 pages of transcript.

5No issue is taken with the sufficiency of her reasons, nor could it be.

Issue on Appeal

6The narrow issue on this appeal is whether the appellant should have been afforded an adjournment to enable him to call Dr. Shirley Brathwaite, a forensic psychiatrist, as a witness on a voir dire that was conducted to determine the admissibility of his utterances to the police upon being stopped.

7Some procedural background is necessary to appreciate the issue.

Procedural Background

8At a judicial pre-trial on August 19, 2009 defence counsel advised the court that medical evidence would be called at trial with respect to the appellant’s lack of mens rea. On September 21, 2009 a trial was set for August 16 and 17, 2010. The appellant did not qualify for legal aid and was having significant financial difficulties. Consequently, he was unable to retain Dr. Brathwaite and meet with her until July 20 and 28, 2010. On July 28, 2010, Dr. Brathwaite opined that based on the information given to her, there was a very strong possibility of a defence of non-insane automatism.

9On August 10, 2010, defence counsel brought an application to adjourn the trial on the basis that no expert report had been prepared and the expert witness was unavailable. This application was rejected by Madam Justice Maisonneuve in her capacity as the Administrative Judge for the Ontario Court at Ottawa, as there was no confirmation as to the possibility of a non‑insane automatism defence being available. She reserved the final decision with respect to the adjournment to the trial judge.

10On August 16, 2010, at the commencement of trial, defence counsel sought an adjournment of the case “at the close of the Crown’s case” stating that he had expert evidence available. A report had not yet been prepared and would have to be served upon the Crown so that the Crown would have an opportunity to dispute the report if advised. The trial judge indicated that she would take the request for adjournment “under consideration…I’m not making any decision on it yet…”

11The trial commenced. Very quickly into the evidence of the first witness, Constable Scheerder, the officer who stopped Mr. Blais, it became apparent a voir dire was necessary to determine the voluntariness of the utterances made by Mr. Blais to the officer. The accused testified on the voir dire . The argument made by defence counsel was that Mr. Blais did not have an operating mind at the time he made the utterances. In determining that the utterances were admissible, the trial judge, after referring to Mr. Blais’ evidence that he had no memory of the events in question, that he was in shock and in panic and fearing for his life due to threats made against him, held as follows:

Going to his state of mind, that he had received information of two threats, which were not described, but that he felt were-involved some kind of harm towards himself of his family, there was no medical or psychiatric evidence called on the voir dire. I find that the statements made to Constable Scheerder, at the roadside, were voluntary and that the result-and the result of an operating mind. (sic) [Emphasis added.]

12Specifically the trial judge found that the utterances themselves, namely “It wasn’t me” and “Fuck this” were consistent with an operating mind.

13At the conclusion of the Crown’s case, defence counsel once again renewed his application for an adjournment, which the judge refused suggesting that defence counsel obtain a report or summary of Dr. Brathwaite’s evidence for continuation the next day.

14On the next day, August 17, 2010, defence counsel provided copies of Dr. Brathwaite’s report to the court and the Crown. However, the doctor herself was unable to attend. After a recess to review the report Crown counsel advised the court that she was prepared to consent to an adjournment. The date of November 18, 2010 was set aside to hear the evidence of Dr. Brathwaite.

15On November 18, 2010 defence counsel filed additional records from Mr. Blais’ personal physician and called other defence evidence, including the real estate lawyer who had knowledge of the threats made against the appellant. The spouse of the appellant testified as to his bizarre mental state during the time in question. The case was further adjourned to March 7, 2011 when Dr. Brathwaite testified, following which submissions were made. During the course of submissions, it is clear that the learned trial judge was mindful of the utterances made by the accused to the investigating officer and referred to those utterances during the course of argument.

Analysis

16At no time did anyone suggest that the decision on the voir dire be re-visited, based upon the evidence of Dr. Brathwaite.

17The trial judge reserved her decision, which was rendered on June 7, 2011. Of particular significance is para. 4 of her reasons for decision which state:

The first issue to be dealt with was the voluntariness of two statements made to Constable Christie Scheerder when she approached Mr. Blais’s vehicle after she mad motioned him to stop for a speeding violation. A voir dire was held and Constable Scheerder and Mr. Blais testified. The statements were admitted into evidence as voluntary. Separate reasons were given at the time and I do not intend to repeat them in this decision.

18The trial judge then proceeded to describe the issue in the case as being “… whether the accused has met the evidentiary burden such that a defence of non-insane automatism should be put before the trier of fact. If the burden has been met, does the defence raise a reasonable doubt as to the meas rea .” The trial judge thoroughly reviewed the evidence and concluded that the evidentiary burden was not met. In convicting the accused at paragraph 173 the learned trial judge stated:

Mr. Blais responded to Constable Scheerder immediately upon being directed to and pulling over for the speeding. His response was appropriate in the circumstances he found himself in i.e. “It wasn’t me” as Constable Scheerder showed him the laser reading of 72 kilometres per hour in a 60 kilometre zone. When asked twice to produce his licence and vehicle documents, he again responded to the circumstances although in a vulgar manner, in a responsive manner “Fuck this” and punching down on the accelerator. His demeanor was angry and aggressive according to Constable Scheerder. (sic)

19In the very next paragraph the learned trial judge said “I therefore find that the evidence that formed the basis of Dr. Brathwaite’s opinion is not credible or reliable and I reject it.”

20While fully reviewing all other evidence, it is clear that part of the evidence that led the learned trial judge to reject the evidence of Dr. Brathwaite were the utterances made by the accused. In the penultimate paragraph of her decision the learned trial judge stated:

I find that Mr. Blais was under stress but lost his temper when he was pulled over. It is evident in his words i.e. “It wasn’t me” and “Fuck this”.

21It is elementary that in order to prove an utterance made by an accused is admissible, the Crown must prove the utterance was voluntarily made. The onus of proof is beyond a reasonable doubt: see most recently R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3. In determining whether a statement was freely and voluntarily made, a trial judge must decide whether the statement represented the operating mind of the accused: see R. v. Ward, 1979 14 (SCC) , [1979] 2 S.C.R. 30. A confession is inadmissible if made under circumstances that raise a reasonable doubt about voluntariness: Oickle.

22There is a significant difference in the onus upon an accused in challenging the admissibility of an utterance made by him or her and the onus on an accused when advancing the defence of non-insane automatism. In the former, the accused must only raise a doubt. In the latter the accused need satisfy the court of the merit of the defence on a balance of probabilities.

23In the case at bar, it is clear that the argument made by defence counsel in an attempt to render inadmissible the utterances made by the accused was rejected by the trial judge because “there was no medical of psychiatric evidence called on the voir dire. ” It is further clear that in her reasons for decision the trial judge relied upon the utterances to convict the accused. It is impossible to divine whether the utterances provided a “tipping point” in the mind of the trial judge. All that can be stated is that the utterances were in play in arriving at her ultimate decision.

24Had defence counsel been granted an adjournment to allow Dr. Braithwaite to testify on the voir dire, and considering the evidence of Dr. Brathwaite that she believed in the circumstances known to her that a defence of non-insane automatism might be available to the accused, it is arguable that such evidence would have raised a doubt on the voir dire as to the admissibility of the utterances, namely whether the utterances were those of an operating mind.

25While it is true that defence counsel did not specifically seek an adjournment of the voir dire, a review of the transcript reveals that Crown counsel, defence counsel and the trial judge wished to fill in the time allotted for the hearing of the case. It seems apparent that the relevance of Dr. Braithwaite’s evidence as it might have effected the decision of the trial judge on the voir dire, as opposed to the trial itself, got lost in the shuffle.

26I am persuaded that had Dr. Brathwaite testified on the voir dire , it is quite possible, if not likely, that the utterances would have been ruled inadmissible. Had they been ruled inadmissible, it is plausible that the trial judge might have arrived at a different decision than she did in the light of all the remaining evidence.

Conclusion

27In the result, the appeal is allowed, the convictions are set aside and a new trial ordered.

The Hon. Mr. Justice Colin McKinnon