Court File and Parties

Court File No.: 14-11211 Date: 2018/09/17 Ontario Superior Court of Justice (East Region)

Between: Her Majesty the Queen, Respondent – and – Deanna MacDougall, Appellant

Counsel: J. Lalande, for the Crown W. Murray, for the appellant

Heard: August 1, 2018 (Ottawa).

Summary Conviction Appeal

Reasons for Decision

C.T. Hackland J.

[1] This is an appeal from the Judgment of Justice Kehoe of the Ontario Court of Justice convicting the appellant of impaired driving, driving with a blood alcohol level in excess of .08 and failing to stop for police. The impaired driving count was stayed on the Kineapple principle.

[2] The appellant in this case suffers from Type 1 Diabetes. She put forward the defence of necessity in respect to these charges, saying that when she got into her car and began driving, she was experiencing hypoglycemia and as a result she believed she needed to drive urgently to her nearby home to get food in order to mitigate her symptoms. She had been told by a police officer several minutes before she began her drive, that she was showing signs of impairment and should immediately get out of her car and not attempt to drive. She complied with this advice at the time, but later returned into her car and drove very slowly to her nearby home. The police pursued her with lights and ultimately sirens deployed, but she declined to stop. She was immediately arrested in her driveway upon arrival at her home.

[3] The appellant’s testimony about her hypoglycemia and her resulting confusion was supported by the evidence of an expert witness, her treating endocrinologist, Dr. Silverman, who she consulted several days after these events. Dr. Silverman’s testimony was consistent with his written opinion, summarized in this excerpt from his report (Exhibit 5 at the trial);

On the day in question, she recognized the symptoms of hypoglycemia (blurred vision, palpitations, and sweatiness) and decided to drive home to treat it. Hypoglycemia may cause symptoms similar to those of intoxication. The American Diabetes Association identifies symptoms of hypoglycemia as shakiness, dizziness, clumsy or jerky movements, difficulty paying attention, and confusion. The latter clearly was her case, as is seen by the fact that rather than ask the police officers for assistance she opted to get in her car. She was not intentionally driving away from them or trying to escape, her concern was getting home to get a source of glucose. While this was not a wise decision, it is very much in keeping with hypoglycemia: she felt absolutely compelled to seek the glucose her body required. This is supported by the observations made by police over the course of this investigation.

[4] The trial judge did not find the appellant’s evidence to be credible, as discussed below, and also rejected Dr. Silverman’s opinion largely because it was based on the appellant’s self-report of her symptoms. In my respectful opinion, the trial judge’s outright rejection of the defence expert’s evidence was unreasonable. The evidence put forward by the appellant was worthy of careful consideration and its outright rejection placed the appellant effectively in the position of discharging an evidentiary burden that she did not have. The trial judge’s reasons for rejecting the hypoglycemia evidence and the expert’s supportive opinion are unsatisfactory.

[5] The trial judge’s reasons consist of 46 paragraphs. Paragraphs 2 to 36 are a recital of the written submissions of each counsel without any indication of whether the trial judge accepts the legal or factual assertions contained in the submissions. Her Honour’s findings and conclusions concerning the charges before the court are found in paragraph 41 and 42 of her Reasons.

[6] The appellant argues that the trial judge failed to make a finding as to whether she accepted that there was an air of reality to the defence of necessity. I do not accept this submission. The trial judge’s reasons specifically address the defence of necessity and in doing so impliedly accepted that there was an air of reality. However, nowhere does the trial judge state whether she accepts the appellant’s evidence that she was suffering from hypoglycemia at the time of these events.

[7] The trial judge did conclude that the Crown had proven beyond a reasonable doubt that there was no imminent or immediate risk to justify or excuse the appellant’s driving in the circumstances and “…there were reasonable legal alternatives and Miss MacDougall’s decision to re-enter the vehicle and drive while her ability to operate the motor vehicle was impaired by alcohol was not “inevitable, unavoidable or without reasonable opportunity for an alternative course of action that did not involve a breach of the law”. Accordingly, the trial judge concluded that the defence of necessity was not made out.

[8] The Supreme Court of Canada discussed the defence of necessity in R v Perka, [1984] 2 SCR 232 at page 259:

“It is now possible to summarize a number of conclusions as to the defence of necessity in terms of its nature, basis and limitations:

(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."

and, at page 261 of the Perka decision, the court suggests a number of questions that must be addressed relevant to the test for necessity:

“Was the emergency a real one? Did it constitute an immediate threat of the harm purportedly feared? Was the response proportionate? In comparing this response to the danger that motivated it, was the danger one that society would reasonably expect the average person to withstand? Was there any reasonable legal alternative to the illegal response open to the accused?”

[9] In her reasons, the trial judge accurately summarizes defence counsel’s essential argument in this case, that when considering a defence of necessity the objective standard of reasonableness of the accused’s actions must take into account the particular actor’s capacity and abilities and, in this case, her impaired judgment due to hypoglycemia. However it is unclear if this submission is accepted. The trial judge stated at paragraph 4 of her Reasons:

Mr. Murray submits that, applied to the circumstances of this case, if Ms. MacDougall had her thoughts together, she could have stopped at a store to get some sugar. He submits that Ms. MacDougall’s evidence was that in all her life she had never had this kind of experience. He submits that Ms. MacDougall’s evidence is corroborated by Dr. Silverman in that there was a perfect storm of circumstances: i.e. the recent weight loss, some alcohol, the difficulty judging how to adjust with the new body size and not having enough food, not being able to eat when she had planned to eat (due to the delay in her husband meeting her at the restaurant). Mr. Murray submits that Dr. Silverman testified that the “typical train of thought when experiencing hypoglycemia is a sense of impending doom, that they are going to die”. Although irrational, subjectively it cannot be helped because the mind is operating at low sugar. Mr. Murray submits that Dr. Silverman’s evidence is that he has seen patients who cannot put into words what is wrong with them and therefore difficult for them to ask for help or make competent decisions.

[10] Unfortunately the trial judge does not articulate why she apparently does not accept the above-described circumstances as raising a reasonable doubt as to the accused acting out of necessity when she drove her car on this occasion.

[11] The trial judge appears to have largely rejected the evidence of the endocrinologist Dr. Silverman. The Crown did not call any expert evidence to challenge Dr. Silverman’s opinion. The trial judge rejected the expert’s evidence for the following reasons:

“I agree that Dr. Silverman’s opinion is based on “typical” patient reactions as opposed to Ms. MacDougall’s mental and physical state that day, and therefore based on Ms. MacDougall’s self-report when she attended Dr. Silverman’s office a few days after the incident and not on testing or scientific analysis of Ms. MacDougall which would have been possible to complete.”

[12] Respectfully, the trial judge’s observations are problematic. The fact that the doctor did not examine the appellant on the date of the events may go to the weight to be attached to the doctor’s opinion. However, an expert medical witness is perfectly entitled to give an opinion based on the clinical information obtained from his patient and on his training and experience in the treatment of a medical condition such as diabetes. Moreover, the criticism of a lack of “testing or scientific analysis…which would have been possible to complete”, seems to lack any foundation in the evidence. Dr. Silverman was not present to test the appellant’s blood glucose levels at the time of the charges and the suggestion that such testing should have been carried out places a burden on the accused not justified by the law or the circumstances of the case.

[13] The trial judge also rejected Dr. Silverman’s evidence as to the relevance and significance of certain blood glucose readings taken by the appellant herself following her arrest. The trial judge stated at paragraph 42:

In addition, the glucometer readings do not support that Ms. MacDougall’s blood sugar was, at that point, such that she was hypoglycemic while still downtown and specifically when she made the decision the second time to get into her vehicle and drive. Dr. Silverman’s evidence that Ms. MacDougall or “typically” blood sugar can be as much as 1% lower due to stress is speculative as no testing was done. Ms. MacDougall tested her blood sugar at 19:40, shortly after her arrest, with the result of 4.9 when normal is between 4 and 8 according to Dr. Silverman. Later, at the station, her blood sugar at 20:12 and 20:15 was 3.7 and 3.1. Paramedics were called and at 20:30, and after eating 1-2 granola bars her blood sugar was normal and Ms. MacDougall refused transport to a hospital.

[14] The trial judge was of course not obliged to accept Dr. Silverman’s opinion that the appellant was in a hypoglycemic state during the events. However her analysis of the significance of these readings is in opposition to the conclusions offered in evidence by a trained endocrinologist, and are not supported by evidence or by any form of judicial notice.

[15] Further, the trial judge makes a number of references to the appellant having a “mental awareness” or “operating mind” and her actions being “not involuntary”, in reference to her driving. The appellant submits that she was not advancing a defence of automatism or lack of mens rea and her “operating mind” ought not to be a relevant consideration in assessing her defence of necessity. I accept that submission. However, I consider these observations to be relevant if the trial judge was relying on such findings to assess the credibility of the appellant’s evidence as to her level of confusion when she entered and drove her vehicle.

[16] As noted, the trial judge convicted the appellant on the charge of impaired driving. This occurred notwithstanding considerable evidence the impairment resulted from hypoglycemia rather than alcohol consumption. In the Crown’s submissions, referred to by the trial judge: “Mr. Tallim (the trial Crown) recognizes that Constable Caldwell testified that “the impaired might not be the strongest”. And a further reference: “concerning the impaired driving, Mr. Tallim concedes that the driving evidence undermines the onus on the Crown to prove that her ability to operate the motor vehicle was impaired by alcohol, but submits that R v Stellato applies and extreme intoxication is not the test”.

[17] There was significant evidence that the appellant was driving in an impaired state, as the trial judge properly observed. But, considering the evidence as a whole, particularly that of the appellant and Dr. Silverman, there would appear to have been cogent evidence that the impairment was not due exclusively to alcohol consumption. This was acknowledged in the Crown’s written submissions referred to in the previous paragraph. In this case it was essential that the trial judge make a clear finding as to whether she accepted the defence evidence that the appellant was suffering from hypoglycemia at the relevant time. This was not done and the result is an incomplete consideration of the appellant’s defence that her impaired driving resulted from her medical condition and not alcohol consumption.

[18] Further, the trial judge explained the impaired driving conviction on this basis:

“Dr. Silverman ultimately testified that the hypoglycemia may have been worsened by the alcohol consumption and with no alcohol the risks are much less. If she is not drinking alcohol, then all the issues of how alcohol and hypoglycemia interact are off the table. Ultimately Dr. Silverman testified, “it (alcohol) may have played a role in preventing her body from recovering from the low blood sugar, definitely. That’s all I can say because it can do that”.

I would observe that this could not reasonably be viewed as proof beyond a reasonable doubt of impairment by alcohol, unless the totality of Dr. Silverman’s evidence was rejected.

[19] With respect to the “flight police” charge, section 249.1(1) of the Criminal Code provides that “everyone commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.”

[20] The Ontario Court of Appeal has specified that this offence requires proof beyond a reasonable doubt that an accused “1) knows a police officer is in pursuit, 2) must have no reasonable excuse for failing to stop and 3) fails to stop in order to evade the police officer,” see R v Kulchisky, 2007 ABCA 110 affirmed in R v McLean, 2016 ONCA 38.

[21] These authorities establish that the trier of fact must consider whether the accused specifically failed to stop, as soon as reasonable, in order to evade the peace officer who is in pursuit of the accused. The trial judge’s apparent conclusion that the appellant was attempting to evade the peace officer is not clearly explained and must have been premised on a complete rejection of the appellant’s evidence of why she entered the vehicle and also of the opinion evidence of Dr. Silverman.

[22] In summary I am of the opinion that the trial judge’s rejection of the expert opinion evidence of the endocrinologist, Dr. Silverman, because he relied on the appellant’s self report and failed to engage in testing was unreasonable. This led to the unwarranted conclusion that there was no reasonable doubt as to the appellant’s impaired driving being the result of a serious medical condition causing her to believe she had to urgently drive to her home. The appellant did not receive a full and fair consideration of the defence of necessity or the issue of the cause of her impairment, due to the unwarranted rejection of the expert evidence. This constitutes a palpable and overriding error.

[23] I would set aside the convictions on all 3 charges and order a new trial.

Mr. Justice C.T. Hackland Released: September 17, 2018