R. v. Murray, 2010 ABQB 784

Court of Queen ’ s Bench of Alberta Citation: R. v. Murray, 2010 ABQB 784 Date: 20101207 Docket: 090585100P1 Registry: St. Paul Between: Her Majesty the Queen Respondent - and - Darrell Philip Murray Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Background [ 1 ] Darrell Philip Murray (the “Appellant”) was found guilty by the Provincial Court Judge of operating a motor vehicle after having consumed alcohol in such a quantity that his blood alcohol reading exceeded 80 milligrams of alcohol in 100 milligrams of blood contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] The Appellant’s defence at trial was that he drove out of necessity due to the particular circumstances on the night in question. He argues on appeal that the learned trial judge erred in law in failing to properly consider this defence.

Facts [ 3 ] Four witnesses testified at the trial including RCMP Constable Bullock, the Appellant, Curtis Braakman (“Braakman”) a co- worker of the Appellant, and Cain Miller a resident of Elk Point Alberta. The Crown agreed that there were no credibility issues with respect to the testimony of these witnesses. [ 4 ] Cst. Bullock testified that at around 1:30 a.m. on April 25, 2009 he received a 9-1-1 call that there had been an altercation at a bar in Elk Point, and that the driver of a cube van had left, while driving erratically and had almost hit some people.

He located the cube van and saw it swerve twice across the centre of highway 41 before it made a left hand turn on to 57 th Avenue and then turn into the Fort George Hotel (the “Hotel”) parking lot. The Appellant was the driver of the cube van and was taken to the Elk Point detachment where he provided breath samples. [ 5 ] The Appellant resided in Edmonton and was employed by a company that did mold and asbestos removal. The company had a job to complete at a bank at Elk Point Alberta.

On April 24, 2009 the Appellant left Edmonton for Elk Point at about 3:00 p.m. with his co-worker Braakman, who drove the company vehicle described as a cube van. They arrived at Elk Point at around 5:30 p.m. and proceeded to the job site. His boss and another co-worker, Frank, arrived at the job site in a separate vehicle and the four of them worked there until about 9:00 p.m. when they quit for the day and checked into the Hotel.

It was anticipated that it would take a couple of days to complete their work at the bank. [ 6 ] The boss then drove the crew to a liquor store where they purchased liquor which they consumed back at the Hotel. Later in the evening the Appellant and his two co-workers decided to go to a pub which they had spotted on the way into town. The pub was approximately one kilometer from the Hotel . Frank drove the company cube van to the pub. They arrived at about 11:00 p.m. and proceeded to order beer and play pool. [ 7 ] At about 1:00 a.m.

Frank got into an altercation with an Elk Point resident whose name was James, sustained a fairly serious beating and was knocked unconscious. The fight occurred right by the pool tables where they had been playing pool. There were approximately 30 to 50 people in the pub at the time. [ 8 ] Immediately after the altercation a young lady who was working at the pub came back to where the pool tables were situated and ordered Frank and Braakman to leave. They exited through the back door of the pub.

The Appellant followed them out the back door after picking up Frank’s belongings, including the keys to the cube van, off the floor and was about 15 or 20 feet behind them when he exited the pub. He did not have a cell phone with him. [ 9 ] There were about 10 to 12 people outside the pub, a mixture of men and women all of whom were strangers to the Appellant. The cube van was parked about 50 feet from the back of the pub. [ 10 ] The Appellant gave the following testimony with respect to the events that occurred just before and after he exited the pub and why he chose not to re-enter it: Q.

Are there any management or bartenders around? A. There was a young lady that was working there, and after Frank had gotten knocked out, she had noticed that there was an altercation back there. She come back there immediately and asked Frank and - - and Curtis, who we were with to leave. I was at that time, picking up Frank’s stuff, I’d already had him on his feet and I was picking up his stuff, she didn’t ask me to leave but when I went to the back door, there was a big crowd of people there, and I had to squish through them, and ask her to let me out. [p. 28 ll. 31-38] Q.

They weren’t in danger inside the bar from what you’ve told us, they were in danger outside in the alley?

A. They were asked to leave, they had to leave out the back door, the lady had a hold of them and asked them to leave, so, they, had no choice but to go outside where the problem was. Q. And you didn’t think about going back in and saying, look, you know, that’s a little too dangerous for me, I’m going back in the bar, you didn’t think about anything like that? A. I’m not going to leave my friend to get beat up, no. [p. 32 ll. 26-35] Q. Okay. So, what happened as a result of that fight? A.

Well Frank was knocked out on the floor, he was kind of coming to as Curtis and myself were helping him to his feet, and Curtis - - I told Curtis to, you know, direct him to being outside, the door was right there at the back of the - - pub. Myself, I reached down and picked up his belongings that he had lost out of his pockets or wherever they fell from, the keys for the van being one of them, and I walked out the back myself and when I exited the back of the building, there was a lot of people out there.

I noticed one in particular had his shirt off, bouncing up and down, chanting that they wanted to kick the shit out of us. [p.20 ll. 23-31] Q. Okay. And so when you got outside, where was Curtis and Frank? A. They were[n’t sic] very far from the back door because Curtis is a very small person and Frank has a little bit of weight to him, so I had to run up to them and grab a hold of Frank also, and we had to drag him out of there. [p. 21 ll. 22-25] Q. All right, and these individuals that were looking to fight, how did you - - did you think that they were going to fight? A.

Well, I’ve never really been in that situation before, but, yes I - - I felt very threatened at that time yeah. [p. 21 ll. 36-39] [ 11 ] The Appellant was asked the following questions on cross examination and gave the following answers as to why he elected to drive the vehicle after he and his co-workers reached the cub van: Q. You could have stayed in the van, once you go in the vehicle, you could have stayed in the vehicle, you didn’t have to drive? A.

True enough, I could have stayed in the van but windows are easy – easily broken and then we’d really be vulnerable, especially being that - - that close together. Q. You hadn’t seen anyone damage any property or damage the van up to that point. A. No, when I did drive out of there, they were attacking the van, they were punching the side of it and trying to climb onto it to get to us. [p.35 ll. 24-31] [ 12 ] Further the Appellant was asked the following questions and gave the following answers as to why he elected to drive the cube van from the pub to the Hotel: Q. Okay. And where were you going to? A.

I was going to the hotel, that was in my mind, the hilltop hotel, that was a safe point for me, so that’s where I thought to go. [p. 24 ll. 5-7] Q. Did you consider whether you had any alternatives to driving the cube van to get away from these people? A. My only alternatives at that time, going through my mind, running was a definite - - we’re not going to get away from these - - these angry people. Why they’re angry, I don’t know personally, but I didn’t want to stick around and find out.

I could have left my friends, but I’m not that type of person, and I knew that if we did get in the van, we had a better chance of getting away from them, ... [p. 25 ll. 29-35]

Q. Now, you told us that you drove away from the bar in order to get away from those people that - - that you saw. Why didn’t you just drive around the corner and stop then once you - - once these - - once these people, whoever they were, once they were out of site, why didn’t you just stop? A. Well, when I left the - - pub, they were actually running after me on foot, they were chasing the van. Elk Point, I don’t know if you’ve been there, but it’s a very small town.

You can hear a vehicle, whether it had shut off from not too far away, and my - - my concern was to get to a safe point, a safe zone, as you would say and the only place I knew of that was at the hotel. [p. 37 ll. 33-41] Q. Now, along that - - drive, the constable said that he saw that your vehicle, or the vehicle you were in, swerved over the centre line? A. That’s correct. At that time, I - - when I looked in my mirror, I seen some headlights, and I thought that the people from the bar were following us, I was really nervous and trying to get to a destination without having any more problems.

I may have looked in my mirror and might have went across the line, I don’t know, I was nervous and scared at the time. [p. 24 ll. 15-21]] [ 13 ] Braakman testified that he is five feet nine inches tall and weighs 140 pounds. He stated that the pub had no bouncers or security and that the only employee he saw was the lady that told him and Frank to get out and stay out. He stated he was afraid for his safety once they were outside the pub. On cross examination he was asked the following: Q.

In your sober state now do you - - when you have a chance to think about it, would you think that going back in and calling the police would have been a good idea? A. Maybe if there was some - - some other place open I’d go there, but I don’t think going back into the same bar would have been a good idea, I don’t think we would have been allowed back in. Q. Because the lady had told you to leave? A. Yes. Q. There was no one physically barring the door? A.

No, they were standing in front of it though. [p. 57 ll. 9-19] [ 14 ] Cain Miller a resident of Elk Point testified that he was at the pub with his brother-in-law and a group of friends as it was his brother-in-law’s birthday on the day in question. He said he had about three beer that evening. He witnessed the fight between Frank and a person he knew as James where Frank was knocked unconscious. He stated that before the fight started he had tried to act as a peacemaker. When asked about security in the pub he stated the following: Q. There was a barmaid there, were there any bouncers there or - - A.

No bouncers, no. Q. Is there security at that bar? A. Not that I am aware of, no. [p. 66 l. 41 - p. 67 ll. 1-4] [ 15 ] Miller stated that James was also at the pub with a group of his friends. He testified that James took off after the fight. He described James’ friends as five local boys, ages 18 to 25. He stated that they were uttering threats, being very aggressive and getting hyped up to fight. On cross examination he was asked the following: Q. And so it’s your evidence that it was only once these three individuals got outside that you heard anything of an aggressive

nature? A. Yeah, that’s when the local boys had realized what had happened, the fight had ensued, my friend James had taken off out of the scene, they didn’t know where James was at the time, so then they just assumed that he was being beat up and stuff like that I believe. [p. 73 ll. 40-41, p. 74 ll. 1-4] [ 16 ] He testified that in his view the Appellant and his co-workers could not have safely left on foot. When asked about the condition of Frank after he exited the pub he testified as follows: Q. He was walking? A.

He was barely walking, he’d had quite a few drinks in him, you could tell, and plus he was knocked out, so he was delirious. [p. 73 ll. 8-10] [ 17 ] With respect to whether he felt the Appellant should have driven the cube van his evidence was as follows: Q. In your mind, do you think that the person should have driven away or gone away or ran away? A. Yes, I do. Q. And why do you say that? A. They were about to be beaten up. Q. That was your view? A.

Yeah. [p. 70 ll. 18 - 26] [ 18 ] Miller testified further that some of the people were standing on the road yelling and had to move quickly out of the way of the cube van when it exited the area. Standard of Review [ 19 ] In R. v.

Burns , 1994 CanLII 127 (SCC) , [1994] 1 S.C.R. 656, the Court defined the powers of a court of appeal: 14 In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes , 1987 CanLII 17 (SCC) , [1987] 2 S.C.R. 168; R. v. W. (r).) , 1992 CanLII 56 (SCC) , [1992] 2 S.C.R. 122.

Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [ 20 ] In Housen v. Nikolaisen , 2002 SCC 33 (CanLII) , [2002] 2 S.C.R. 235, at para. 8 , the Court held that the standard of review on questions of law is one of correctness. Further, at para. 10, the Court held that trial judges are entitled to substantial deference on findings of fact. The Law on the Defence of Necessity [ 21 ] In R. v.

Perka , 1984 CanLII 23 (SCC) , [1984] 2 S.C.R. 232 , Dickson J. explained at p. 248 that the defence of necessity rests

on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. Such acts are still wrongful, but are excusable in the circumstances . He further stated at pp. 257-258: Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act. The prosecution must prove every element of the crime charged.

One such element is the voluntariness of the act. Normally, voluntariness can be presumed, but if the accused places before the Court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue. There is no onus of proof on the accused. [ 22 ] The Supreme Court in R. v.

Latimer , 2001 SCC 1 (CanLII) , [2001] 1 S.C.R. 3 , at paras. 26 to 34 , confirmed that the defence of necessity is restricted to those rare cases in which true "involuntariness" is present, and that the defence of necessity requires: 1) a requirement of imminent peril or danger; 2) no reasonable legal alternative to the course of action he or she undertook; and 3) proportionality between the harm inflicted and the harm avoided. [ 23 ] The peril must be on the verge of transpiring and virtually certain to occur, such that normal human instincts cry out for action and make a counsel of patience unreasonable.

The second requirement of no reasonable legal alternative involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable. [ 24 ] The first two criteria are assessed on a modified objective basis. This is an objective evaluation, taking into account the situation and characteristics of the particular accused person, including his or her reasonable perceptions of the existence of alternative courses of action. Proportionality is measured on an objective standard. [ 25 ] In R. v.

Sekhon , 2007 ABQB 315 , appeal dismissed 2008 ABCA 171 , Belzil J. after considering the above passage in Perka stated: 31 Given that the Respondent admitted the offences, the Crown therefore would meet its burden of proving voluntariness if it proves beyond a reasonable doubt that the defence of necessity is not established. Trial Judgment [ 26 ] In his oral judgment the trial judge noted that the Appellant and his co-workers were strangers to Elk Point. He noted that the Appellant did not have a cell phone and that the only person the Appellant had seen tending the pub was a young lady.

The trial judge accepted the Appellant’s version of what he observed when he exited the back door of the pub stating: ... one of the men of the 10 or 12 people outside the door had his shirt off and was bouncing up and down, and voicing threats, saying how he would - - using vulgar language, said how he would beat these people up, that he wanted to fight. Others of that group of 10 or 12 were also voicing threatening or provocative words. [ 27 ] He considered the case law with respect to the defence of necessity.

He stated that the accused must point to evidence that give the three necessity factors an air of reality.

If the accused succeeds in doing so, then the burden switches to the Crown to establish beyond a reasonable doubt that at least one of the factors does not apply. [ 28 ] In rejecting the defence he stated in part the following (transcript, p. 109-111): So, in other words, in applying the three fundamental factors of necessity, even if the court finds there was a situation that falls within a necessity, one has to be careful to assess whether or not the action that was prima facie criminal continued for a time when that action was no longer excusable on the basis of necessity in the legal sense.

In the present case, I find there is an air of reality to the first criterion, that is, a situation of peril, and in the case of the accused, it existed when he stepped outside and saw the crowd and heard them. He made a decision there was no way he was going to leave his friends. I find there at that point in time, when he was still in proximity to the pub, there were a couple of reasonable alternatives available to him to deal with what was a perilous situation. One, it was open to him to go back into the pub and see if he could enlist the help of someone there.

Now, he testified that he didn’t know where the police were, he didn’t have a cell phone, but I find, clearly, it was open to him to simply go back into the pub and say to the lady who was seemingly running the place, look, an ugly situation has developed outside concerning my friends, we need help. He did not utilize that option. Granted, it would have meant leaving his two friends outside potentially vulnerable for a little while, but I find that was certainly open to him and a reasonable alternative.

The second reasonable alternative the court finds that he had on the evidence, before actually making the decision to drive, was once he got into the cube van with his two coworkers, he could have waited briefly to see whether indeed an attack was going to be actually perpetrated.

Now, he did say in his evidence that, well, glass can easily be broken out, and I accept that to be the case, but at the time no one had weapons, no one had attacked him in or outside the pub, the threatening crowd outside the pub of 10 or 12 people, I find, had the opportunity to attack the three men before they reached the van, but they didn’t.

The evidence was Frank was a large fellow, he was quite intoxicated, he injured -- had his knee injured inside the bar, he was in -- travelling at no speed with the accused and his coworker, Curtis, helping Frank, the threatening crowd outside could easily have attacked them even before they got in the van had they chosen to do so.

So I find in that context, although there was urgency to the situation and threat, it wasn’t so high that the accused should not have considered and used that second reasonable alternative, that is, to see momentarily -- to see momentarily whether or not these people were truly serious. Now, if they started to smash out windows on the van, that may well have been a different matter, but it didn’t come to that. So those were, I find on the evidence, two reasonable alternatives available that were not utilized.

In addition to that, I am mindful once the accused drove away from the proximity of the bar with the cube van, and the proximity of the crowd who were outside the back door of the bar, it was incumbent on him then to drive no further than the circumstances required. In this case, there was a distance of approximately a kilometer between where the peril existed at the back door of the pub, and where he was staying with his coworkers at the Hilltop Hotel, adjacent to Highway 41.

I find, therefore, that another reasonable alternative he had was once he got halfway between the pub and the hotel where he was staying, he could have and legally was obliged to stop the driving, at least stop it long enough to -- to see whether anybody was following him that looked to be a threat, and he didn’t do that, he continued to drive. ...the court finds...the reasonable alternative of going back into the bar to seek assistance, which means two of the three fundamental requirements for necessity were not present, and I’m satisfied that’s established in the evidence, beyond a doubt, that he had that option and he didn’t take it.

The second one was...once he got into the cube van and before he engaged in that dangerous act of driving whilst under the influence of alcohol, he could have waited momentarily to see and assess just how serious the attack was or if there was going to be one, and that in the context that to that point in time no weapons were brought out, to that point in time, although the crowd was ugly, they did not launch an attack when they could have.

...And the third one is that once he was halfway back, it was incumbent upon him to stop driving, at least to see whether indeed there were any pursuers, and he didn’t do that. Analysis [ 29 ] The Appellant submits that the trial judge erred in finding that the Crown had proved beyond a reasonable doubt that the defence of necessity was not established. [ 30 ] The trial judge found the Appellant and his friends were in peril, but that the Appellant had three legal alternatives. The first was to return to the bar.

This would have entailed leaving his impaired friends, one of whom was injured, in that very situation of peril. Further, there was evidence that the aggressors were blocking the doorway and that the friends had been kicked out of the bar. The defence of necessity is available in emergency situations where normal human instincts of self-preservation and/or altruism overwhelmingly impel disobedience.

In my view, the Crown failed to prove beyond a reasonable doubt that the defence of necessity was not established on the basis of the first speculative alternative. [ 31 ] The second alternative cited by the trial judge was to wait in the van until the aggressors started to smash out the windows. There was evidence that the aggressors were attacking the van, punching the side of it and trying to climb onto it to get to the Appellant and his friends, as they drove away.

Viewing the matter on a modified objective basis, it would be unreasonable to require that the flight would only have become necessary once the windows were actually smashed. As Tomkins Prov.Ct.J. held in R. v. S.R.M. , 2010 SKPC 93 at para. 67 , the law does not require a Catch-22 situation where one is required to take a chance of remaining in peril to see whether he remains in peril or not.

I find that the Crown failed to prove beyond a reasonable doubt that the defence of necessity was not established on the basis of the second speculative alternative. [ 32 ] The third alternative considered by the trial judge was to stop driving at some mid-point between the bar and the hotel. The trial judge did not identify where that safe mid-point might have been. There was evidence that the Appellant saw the aggressors chasing after the van, and while driving to the hotel he saw headlights in the rear view mirror and believed they may well have given chase in a vehicle.

The Appellant and his friends did not know anyone in town. It was a small town. The Appellant did not have a cell phone. He testified that he feared that the aggressors would hear the engine shut off if he stopped the vehicle a short distance away. [ 33 ] In some cases, it has been held that the defence of necessity was not available where the driver drove longer than was necessary in the circumstances. In R. v. Drake , 1998 CarswelMan 232 (Prov.Ct.), the accused drove 24 km and passed a police station, hospital and gas station. In R. v.

Brown , 2998 CarswellOnt 788 (Sup.Ct.Just.) , the accused also drove past a police station. The Court in R. v. S.R.M. found that the flight in a vehicle did not exceed what was necessary.

The drive was less than one kilometre, taking around three minutes. [ 34 ] Viewed on a modified objective basis, given what the Appellant had accurately perceived and reasonably feared, as well as the lack of familiarity with the town and the distance to the hotel, I find that the Crown failed to prove beyond a reasonable doubt that the defence of necessity was not established on the basis of the third speculative alternative . [ 35 ] As Bourque J. noted in R. v.

Costoff , 2010 ONCJ 109 at para. 26 it is not the task of the court to exhaust all of the potential possibilities which one can consider with the benefit of hindsight. In my view, the trial judge correctly enunciated the test and the shifting burden. However, as outlined above I find that the judge erred by, in effect, lowering the Crown’s burden of proving beyond a reasonable doubt that the defence of necessity was not established. [ 36 ] Because of the conclusion on the reasonable alternative, the trial judge did not assess proportionality. The Court in R. v.

Desrosiers , 2007 ONCJ 225 opined that although the public interest in drinking and driving offences is considerable, the third requirement does not take into account potential harm, but rather actual harm. In this case, there was no harm resulting from the flight. What was the harm avoided? The Appellant’s friend was injured. The evidence, which neither party challenges, is that the crowd outside the bar were intent on engaging in a fight. The Appellant and Braakman were clearly outnumbered, had no friends or acquaintances nearby, and would have had little success in defending themselves while protecting Frank.

On an objective view, while there may well be some notional harm by virtue of the mere fact of acting illegally, the harm avoided in this case clearly weighed more heavily in the balance.

Conclusion [ 37 ] T he appeal is allowed, the judgment of the Provincial Court convicting the Appellant of an offence under s. 253(1) (

b) is set aside, and a judgment of acquittal shall be entered. Heard on the 12 th day of November, 2010. Dated at the City of Edmonton, Alberta this 7 th day of December, 2010. Gerald A. Verville J.C.Q.B.A. Appearances: Jeff Rudiak for the Crown Theodore H. Kantor for the Appellant