R v S (H), 2015 ABQB 622

Court of Queen ’ s Bench of Alberta Citation: R v S (H), 2015 ABQB 622 Date: 20151204 Docket: 130910565 Q 1 Registry: Town of Peace River Between: Her Majesty the Queen Crown - and - S (

H) Accused Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , sections 110(1) and 111(1). No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person. NOTE: This judgment is intended to comply with the restrictions so that it may be published.

Corrected judgment: A corrigendum was issued on December 4, 2015; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P.R. Jeffrey

_______________________________________________________ [ 1 ] HS (“ H ”) was charged with second degree murder. He shot his father, WS (“ W ”), with a rifle, twice and at fairly close range, in the early hours of August 5, 2013. The resulting internal and external bleeding led to the father’s death. H explained that he acted to prevent the death of his mother (“ E ”) and in self-defence. At the conclusion of trial I acquitted H with reasons to follow. These are those reasons. Facts [ 2 ] At the time of the shooting H had just finished grade 6 and was barely 13 years old.

In his pockets when arrested was bubble gum, among other things. [1] [ 3 ] At the time of trial H was fifteen years old. Yet he presented as a young 15 year-old. Physically he appeared small for his age and as having most of puberty still ahead of him. His hair fell loose and straight over his forehead and he would push his glasses up closer to his face by scrunching his nose. The Crown demonstrated in its cross-examination of H that at the time of the shooting H was quite a bit smaller than at the time of trial.

A constable responsible for transporting H after the shooting remarked that at the time H “was a child, you know, childlike mind and in custody.” [ 4 ] H is the fourth of six children born to W and E. They also were raising another boy (“ A ”) who is almost the same age as H. They all lived in a trailer on rural land near the northern Alberta community of Fox Lake. [ 5 ] H’s home life was nothing short of horrific. His father, W, ridiculed, demeaned and abused his wife and his children. It occurred when he was sober and when he was drunk.

He drank more days than not and when he drank, he almost always got violent. [ 6 ] W was controlling of E; he did not “let her do anything.” He told her to stay in the bedroom most of the time. As H described his home life in general, characterized by a lot of fighting and arguing and drinking, his top lip began quivering – and then his chin. [ 7 ] W violently and viciously beat E, H’s mother – repeatedly. On many occasions he beat her into unconsciousness. More than once she was hospitalized as a result. He choked her.

He kicked her, including in the head, many times. [ 8 ] Whenever H looked upon his mother he could see the visible scars of the abuse she had suffered at the hands of W over the years. A little over five years ago, W beat H’s mother with a belt buckle knocking out her front teeth. She had no replacements; she remained toothless across the entire front of her upper jaw.

Every time H would look up at her, and if she still had it in her to smile, he saw the visible reminder of his father’s abhorrent, brutal, criminal treatment of his mother. [ 9 ] On another occasion H’s mother was beaten so severely by W, including kicking her in the head, that she bears a permanent and large bump on the right side of her forehead. Every time H would look up at her, he saw another visible reminder of his father’s abhorrent, brutal, criminal treatment of his mother. [ 10 ] On another occasion, W’s violent beating tore open E’s upper lip. It still bears the permanent scar as a result.

Every time H would look up at her, he saw another visible reminder of his father’s abhorrent, brutal, criminal treatment of his mother. [ 11 ] On another occasion W’s violent beating of H’s mother broke the bridge of her nose. In fact, that occurred on three separate occasions. It too remains disfigured to this day. Every time H would look up at her, he saw another visible reminder of his father’s abhorrent, brutal, criminal treatment of his mother. [ 12 ] Just weeks before the shooting, W choked H’s mother so severely he almost killed her.

She was in a coma when admitted to the hospital and placed on life support. She remained there for some weeks, in part due also to her own excessive drinking. She remained weakened and jaundiced after her release and at the time of the shooting. [ 13 ] But H’s mother was not the only victim of W’s drunken and violent tirades. Also just weeks before the shooting, W was physically violent with H’s older sister (“ J ”) who was then pregnant. He knocked her down into the bathtub, causing her to miscarry.

She wanted to take her own life after that. [ 14 ] Also in the weeks prior to the shooting, it was understood that W threatened to kill H’s older brother (“ T ”) and almost did so when forcing him to ingest medication designed for diabetics. T was not a diabetic. T was also hospitalized. [ 15 ] H also suffered tragically at the hands of his father W. H was 7 years old the first time he remembers his father beating him. W hit H on too many occasions since for H to count. W beat H with anything in reach. He lashed H with cords and struck him with wooden objects. He thrashed H and a brother with an antenna.

W struck H all over his body with the antenna. In describing these experiences H had his head down in embarrassment and struggled to compose himself. [ 16 ] H was sniffling a few times and visibly shaking as he explained how through these beatings, such as the one with the antenna, that he and his brother were powerless to stop their father. [ 17 ] W beat H with a wire on another occasion, in uncontrolled anger, merely because H knocked to the floor something trivial that W had left on the sofa.

H was sent to his room where his father then started thrashing him with wire on his legs and on his body and on his arms. [ 18 ] W was mad almost every day. H’s mother was around but “couldn’t really do anything”. She would tell W to stop but it had no effect on him, other than at times to include her in his beating.

[ 19 ] One evening just weeks before the shooting, W attempted to run over H and a couple of his siblings with the truck he was driving, in the midst of another tirade. They avoided being hit only because they ran for cover behind a post nearby. [ 20 ] W often locked H in a room, at times for up to 2 days. He did this also with H’s mother and siblings. W removed the telephone so the family had no means of calling for assistance. They lived in constant fear.

He threatened them into silence. [ 21 ] This is a representative, not exhaustive, account of the violence that W visited upon the vulnerable in his charge, all of which H experienced personally, observed or became aware. [ 22 ] Some of W and E’s children reported the choking incident to the authorities. W was arrested. The status of that legal process at the time of the shooting was not disclosed to the court but it is clear he was subject to a recognizance as conditions of his release.

Those conditions included, it appears, that he have no contact with E and abstain from consumption of alcohol. [ 23 ] On July 25, 2013 H’s mother E was released from the hospital following the choking incident. The children had been placed in foster care. Upon release from hospital, E spent a week in a women’s shelter before ultimately returning to her home in Fox Lake. This was just days before the shooting. [ 24 ] W called frequently, insisting she come see him and to bring the kids. [ 25 ] E was aware of the conditions on W’s release but that did not deter her.

She said she feared what W would do if she did not comply and that he threatened to kill her parents if she did not. She also said she still loved him. [ 26 ] Following his release, W was staying in the home of E’s father (“ CW ”) in the remote northern community of John D’Or Prairie. E assembled the children, except the oldest daughter (then 18) and the oldest son (then 14), and they travelled to John D’Or Prairie to see W.

The rest of the children had no choice but to go. [ 27 ] In John D’Or Prairie E and her children stayed in the home of another of their relatives, about 30 minutes away from W in CW’s house. [ 28 ] The living room in CW’s house had a linoleum floor and no furniture, except a very large flat screen television angled in one corner with a few stacking chairs facing it a very short distance away. The four bedrooms on the main floor also had very little furniture but were cluttered with various personal effects, mostly on the floor.

They had mattresses in them, all but one laying flat on the floor. [ 29 ] On August 4, 2013, W and E drove to High Level and brought back large quantities of liquor. They began drinking around 5 p.m. E and some of her children, including H, were in CW’s house, as were both CW (I infer) and W. [ 30 ] In the early hours of August 5, W, E, H and A were in one of the bedrooms. By then W and E were both drunk. [2] [ 31 ] At approximately 4:30 a.m., on August 5, 2013, while all four were in the bedroom and conscious, the two boys (H and

A) began to do a bit of drumming on the floor. W demanded they cease. E intervened to suggest he let them be. She suggested something to the effect that he didn’t let them do anything and she grabbed his arm as she said this. At this W erupted. He grabbed E by her head and pushed her down to the floor. [ 32 ] A left the room. He went to the living room and there began to play games with one of H’s younger sisters. [ 33 ] There was conflicting evidence on whether before A left for the living room, H said to A that he was going to shoot his father. A said he heard H say that; no one else did and H denied saying it.

I find that H did not say that. A’s testimony was less reliable, for a number of reasons. His evidence had a number of contradictions in it. His evidence was interrupted by a close to 2 week break in the trial in circumstances in which some doubt shrouded all his testimony prior to that break. He had limited facility with English, testifying most of the time with the assistance of an interpreter. His testimony was very, very slow, spread out by extended pauses, was faint, and was equivocal.

His testimony was faint to indecipherable at times and it appeared to me that he did not understand the questions he was asked with precision. His head was down as he testified; he looked at the floor pretty much the entire time. His discomfort was obvious. He was 12 years old at the time of the shooting; a child’s concepts of time and detail are not necessarily as reliable. In other testimony A said that he left the room because of what W was doing to E. He did not say he left because H said he was going to shoot W.

Further, if H had said to A that he was going to shoot W, it is unlikely A would have just left for the living room, mere steps away. It is far more likely that he would have exited the house, as he did as soon as the shots were in fact fired. I found that A’s answers were somewhat reliable in this case but just on the main points and the sequence of those main points relative one to another. On those points there was confirmation from other evidence. [ 34 ] W continued his assault on E. [ 35 ] H was very concerned for his mother. She was still weak following her recent release from the hospital.

H thought she was still sick. Seeing his father beating his fragile mother both angered and frightened H. He thought his father would kill her. His father threatened to kill his mother. He said to her that she should be dead. [ 36 ] H felt powerless to stop his father. H became scared for her as the aggression escalated. He didn’t know what to do. H left to one of the other bedrooms. He was frantic. He paced. He heard his mother and father in the next bedroom. His mother was pleading with his father to stop, but the father would not.

H didn’t know exactly what the father was doing but was fairly certain he was continuing to beat on his mother. [ 37 ] H became increasingly worried that his father would kill his mother. He had almost done that before. The last time was just weeks ago. He put her in the hospital on life support. She was still weak from that. She should not have been drinking again. She should not have been with W again. But she was. And they were both drunk. And his father was again beating his mother. Just weeks ago W caused J to miscarry. Just weeks ago he almost killed T, putting him in the hospital.

Just weeks ago he tried to run over H. Now his father

was again attacking his mother. [ 38 ] H was the oldest of W and E’s children in the home at the time. He knew no neighbours and it was rural. The photographs showed no other houses near CW’s and there was no evidence of any neighbours close by. Plus it was around 4:30 in the morning. The rest of H’s family and relatives were some 30 minutes away. He could not contact police. There was no time. H felt helpless to protect his mother. [ 39 ] H did not leave the room in order to find a gun. I believe him on that point. He left with a sense of helplessness and in fear for his mother’s life.

He ended up looking under the bed in his grandfather’s bedroom. He found a box of .30-30 bullets. He took four of them from the box. He then sought out the rifle that those bullets would fit. He put some of the rounds into the rifle [3] , still pacing. He found himself into the hallway and then in the bedroom doorway where his father was seated on the mattress and his mother was now on the floor to the left of the doorway. [ 40 ] What H heard from the next room was, based on E’s testimony, W hitting E in the head. In his rage W said to E that he would kill E’s dad and the kids and her.

W kicked her in the back three times. She was flat on the floor by then. [ 41 ] The Crown argued that E’s evidence was exaggerated to favour H. I did find E’s evidence less reliable, but not driven by any motive on her part to exaggerate this point. With respect, I did not find her either astute enough to know what sort of answer would help H, or courageous enough to try. E was prone to agreeing to suggestions put to her, clearly not always understanding their nature. She avoided all eye contact. Her “yes” responses to the Crown’s cross-examination questions were very faint.

She appeared devoid of confidence or indeed any positive self-image. She moved slowly, was rather slouched, and she avoided eye contact even with her own son as she passed him on her way to the witness stand. She presented in every way as one might expect of a person who for 21 years had been demeaned, ridiculed, physically and emotionally abused and told in every other possible way that she was worthless. She said W would hit her for everything. [ 42 ] Therefore I am not certain that E’s description of the nature and number of times W struck her in that bedroom were accurate.

No doubt this most recent beating blurred together in E’s mind with so many other like incidents. And she was so drunk that an hour or two later she was found passed out in a chair in her father’s room, therefore her recollection was blurred. But if she distorted her report of the abuse she suffered that early morning I find she minimized it, not overstated it, just as she minimized early beatings resulting in all her permanent disfigurations.

In any event, I am satisfied based on all the evidence that she continued to be struck and kicked by W and this was known to H as it transpired. [ 43 ] His father saw H with the gun and yelled that he had three seconds to leave or “I’m going to kill you and your mom”. H believed him. In his panicked state, feeling he had no other choice or his mother would be killed, he pointed the gun at his father. His father looked back at him, again yelling “you have 3 seconds to leave!” H pointed the gun at his father’s leg, and pulled the trigger. [ 44 ] The bullet entered W’s left thigh, fracturing the femur.

As H described shooting his father his voice was cracking. He was shaking, looking down and struggling to regain composure. [ 45 ] H testified that his father then kneeled and started rolling around the bed, following which he kicked the door with his right leg. The Crown found this quite incredible and inconsistent with the photographic evidence of blood staining only on the very end of the bed, not anywhere else on the bed. The Crown argued that if H’s version was true then there would have been blood elsewhere on the bed where W was said to have rolled around.

The photographic evidence showed no such blood. [ 46 ] I have no doubt that young H recalls those panicked moments as he described. I find that W was not close to the far wall under the window as H first testified, but closer to the centre of the bed as he later said, after being pressed by the Crown in cross- examination. From H’s height and perspective, and in the brevity of the incident, H would not have been able to accurately perceive and now recall the distance between his father and the bedroom wall and window behind his father.

W was a large man and menacing at the time, seated on a mattress on the floor that extended towards the doorway where H stood. [ 47 ] I find that, upon being shot in the front of his upper thigh, fracturing his femur, W writhed and twisted. This is what H described as “rolling”. In those immediate fractions of a second after being shot, W’s jeans absorbed the initial blood. No blood would have been immediately leaking or soaking onto the bed underneath where W was sitting. W’s writhing motion, and angered state, became a lumbering motion – forward and towards the door.

He kicked the door with his right leg as he came towards H. His continued forward momentum rotated and positioned his bleeding left thigh face down on the end of the mattress, where the large blood stain was left. Only as he rotated forward towards the door would the top of his left thigh rotate under him, touching the surface of the bed and soaking blood into that spot. [ 48 ] H had been standing in the doorway. The door being kicked shut wedged the rifle between the door and the doorframe, momentarily.

With adrenalin rushing, heart beat pounding, and the violent enraged brute of a man now floundering towards him, H ejected the spent shell from the rifle by its lever action, thrusting the lever downwards to eject the shell and then pushed the lever back up against the rifle handle to place the next live round into the chamber. The ejected shell fell just outside the bedroom doorway. It landed close to the baseboard near the door frame. [ 49 ] The door bounced back somewhat, after being kicked against the rifle that H was still holding. W was still yelling at H, now closer to him and his mother.

H’s mother lay right there, flat on the floor, drunk and beaten down. To H, all appearances were that the aggressions of his enraged and now injured father were directed toward him. In fear for his safety H tried to shoot W again in the leg, and then retreated from the doorway. An infant that was also in the home at the time was by then coming down the hallway. H took her with him outside.

The second shot had struck W in the side of his abdomen. [ 50 ] I find that all of these events happened very quickly, based upon the proximity of H and his father, the location of W’s blood, that the grandfather had not come after the first shot and the second shot was already fired by the time H’s younger sister came down the hallway.

[ 51 ] I find that W was not dead at the time H left the room and the house. When he was found by the paramedics he was laying up against the bedroom door, holding it shut. Others had not been able to open the door enough to enter the room and check on W until the paramedics were aided by the police in pushing both the door and W, who was right behind it leaning up against it, into the room. However when they had done so, E was not in the room. Therefore after H fired the two shots and fled from the room and before W had barred the bedroom door shut with his body before expiring, E had exited the room.

At the time she exited the room W was still alive. If he was dead he could not have thereafter pinned the door shut with his body. Also, after E awakened some hours later, from the flurry of activity in the house (paramedics and police, as well as family and some extended family), she asked one of the constables “if W was okay”. Therefore when she exited the room he was still alive and probably moving.

After she exited the room his further movement was towards the doorway; he ended up rolling up against the door holding it shut by his body. [ 52 ] H left the house with the rifle in one hand and the young child escorted by the other. A was there outside the house, with H’s younger sister, on the front steps. He asked A to take the rifle before he shot himself.

He was serious about killing himself because as soon as he was outside the house he once more operated the lever action to the rifle, ejecting the second shell casing (which fell to the ground beside the front steps to the house) which would simultaneously transfer a further bullet into the rifle chamber. [ 53 ] I find that H did not intend to kill his father. I believe him in this regard. He intended only to stop him from killing his mother. Also, H did not bring with him from Fox Lake to John D’Or Prairie the means to kill his father.

Rather, he found the bullets first and then sought out the rifle that would hold those particular bullets. H did not continue shooting until he could see his father motionless and dead but rather fled. By that time his fear and adrenalin was supplanted by confusion and remorse. He cried as he told an aunt, later that morning, what he had done. [ 54 ] When H testified in cross-examination he responded with “yes” to a number of questions of the Crown, but his manner was very subdued. It was clear to me H was not fully understanding what the Crown was putting to him.

H thought certain questions put to him to seem correct, and so said yes or words to that effect, but he clearly did not appreciate the Crown’s meaning of the question and certainly not the connotation. H had limited understanding of what was happening and what was being asked. [ 55 ] For example, H agreed in cross-examination that after shooting his father the first time, in the leg, he knew his father could not then hurt anybody. But I understood H to be saying he understands now that after the first shot in the leg his father could no longer hurt anybody.

I find that H did not know in those harried fractions of a second between the two shots that the second shot was not needed because his father was already rendered incapacitated. In fact I’m not satisfied that that was even true. That was merely a theory the Crown put to young H. After the first shot, I have found, his father was writhing and lumbering toward H, still yelling, still uncontrollably drunk and angry and still threatening. I am satisfied that H did not know that after being hit the first time his father was incapacitated.

H was not always appreciating the distinction between what he knew when testifying and what he knew at the time of the shooting. When H testified that he “knew [W] couldn’t hurt anybody” after that first shot to his thigh, H’s testimony was slower and less convincing. This reinforces my perception that he was struggling to understand just what was being asked, not appreciating the nuanced time difference within the Crown’s cross-examination question. [ 56 ] I am convinced that H believed his mother’s life would end that evening if he didn’t do something.

I’m further convinced that after taking the first shot and W flailing towards him kicking the door continuing to yell at him that he thought his own life was at risk. W had in fact threatened to kill them both. Analysis [ 57 ] H admitted to shooting his father but said he should be found not guilty because he was acting in self-defence and in defence of his mother. This defence has three elements, found in subsection 34 (1) of the Criminal Code , RSC 1985, c C-46, as amended: 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. [ 58 ] The Crown must prove beyond a reasonable doubt that H was not acting in self-defence or in defence of his mother. Since this defence has three elements, the Crown need only prove the absence of any one of them beyond a reasonable doubt for the defence to fail. [ 59 ] The first element of the offence is subjective. It turns on the accused’s belief. The second element asks the court to determine the accused’s true or actual purpose for his actions.

The third element is objective, inquiring into whether the act was reasonable in the circumstances. [ 60 ] The phrase “in the circumstances”, amplified by subsection 34(2), makes it clear that the third element, though objective, is assessed with regard to a reasonable person having similar experiences and characteristics as the accused. It is not so contextual that it becomes in effect subjective.

The Crown suggested in this case that the Court should assess reasonableness of the act with regard to a “reasonable 13-year old” (and that “any person above the age of discretion, for which a 12-year old is, knows not to shoot other people)”. [ 61 ] Subsection 34(2) amplifies that third element as follows: 34

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 62 ] With respect to the first element, I have no doubt that H believed that force was being used against his mother. He saw it happening right before his eyes. He heard it continue from the next room. He had lived through countless such beginnings of beatings before; he knew this one was headed similarly to an assault on his defenseless mother.

He also was threatened with death personally, followed by his father’s writhing movement towards him in seeming realization of that threat after the first shot was fired. [ 63 ] With respect to the second element, I find that H’s first shot of W was solely for the purpose of protecting his mother. H believed it necessary to protect his mother from probable if not certain death to restrain his father by shooting him in the leg. [ 64 ] With his second shot, in the heat of the moment, H was continuing to try to protect his mother, but mostly at that point trying to protect himself.

The first shot did not restrain his father. In the frantic and chaotic moments after he fired it, H was not given reason to believe that it accomplished his purpose of protecting his mother. But at that point his paramount fear became for himself. I am satisfied that H believed another shot from the rifle was necessary to protect his mother from his father and also now to protect himself. [ 65 ] The Crown suggested H’s purpose was retribution not protection, that he acted out of revenge and hatred.

One could readily understand such emotions welling up in a victim of such repeated abuse, but the theory was entirely speculative. It was also contrary to the only evidence directly on the point. And I believed both H and E when testifying that H did not hate his father and I believe H when he said that he was not shooting to get back at his father for the past. I find H was not waiting for a chance to get even. He did not bring the weapon and bullets with him from Fox Lake. He did not plan the shooting before the evening of drinking commenced.

He did not discharge all four rounds that he took from under the bed into his father. He did not stop at two shots because he knew that he had killed his father. He did not know that would be the ultimate effect of the two shots when he left the room. When he left the room his father was still alive.

After he left the room his mother left the room and when she left he was not dead. [ 66 ] The Crown further suggested that if H was truly intending protection of his mother not retribution against his father, then he would not have left his mother on the floor in the room with W after taking the second shot. [ 67 ] I find H believed his actions succeeded in preventing further harm to his mother. I find that the small 13-year old fled the room quickly, having repelled his father’s forward advances, in the heat of moment, in fear and with heart still pounding, distraught over what he had done.

In exiting the house he expelled the second shell casing from the rifle and said to A that A should take the rifle or H would kill himself. I do not consider, therefore, H’s departure from the room where his mother still lay to demonstrate that his purpose was retribution not protection. [ 68 ] Regarding the third element of the defence, whether the act committed was reasonable in the circumstances, the Crown has failed to prove beyond reasonable doubt that H’s shooting was not reasonable in the circumstances.

My reasons are structured around the factors enumerated in s-s. 34(2), except for paragraph (h), which does not apply to this case. (

a) The nature of the force or threat [ 69 ] The nature of the force was physical violence and threat of death. (

b) The imminence of the force and whether other responses were available [ 70 ] The use of force by W against E was not just imminent, it was occurring. W was again assaulting H’s mother, by physical violence knocking her to the floor and kicking her. H saw the start of this and heard the rest. Emotions had escalated; their anger was obvious. W was drunk and out of control. W threatened death to both E and H. Previously W had almost killed E. H saw the violence and signs of peril for his mother. [ 71 ] The Crown suggested that H could have just walked away when his father told him he had 3 seconds to leave.

But of course that would have left his mother behind to suffer again W’s monstrous brutality, probably being killed. [ 72 ] There were no other means available for H to use that were accessible to him in time to avoid the probable death of his mother – even if he were an adult. It was not H’s house nor even the community with which he was familiar, therefore he did not know of any other adults or neighbours nearby. Plus it was between 4 and 5 a.m. in the morning and in rural Alberta.

When the authorities came later to respond to the reported shooting, they needed to follow the lead of someone from the community who helped them find CW’s house. In fact there was no evidence of anyone else residing very close. None of his older siblings were in the house. He was so much smaller than his father (I estimate less than a third of his father’s size) that a weapon in the nature of a gun or rifle was the only logical option in

the circumstances. H had to act at a distance from W or he would have been overpowered by W. The Crown’s suggestion that H should have gone for a less lethal weapon from among those found in the residence by the police after the shooting, was fanciful given the circumstances. It was not his house therefore he was unfamiliar with whether other guns (and bullets for them) were in the house, or other sorts of weapons were in the house. If any of them were in the house, he was not familiar with where they were kept. H used the weapon that would hold the .30-30 bullets he found. (

c) H’s role in the incident [ 73 ] H’s only “role” in precipitating this incident was doing a little drumming on the floor with A. An innocuous activity. It was actually E’s intervention on behalf of H that triggered W’s incensed rage and then assault on E. Then H fired the rifle. (

d) Whether any party to the incident used or threatened to use a weapon [ 74 ] H brought the weapon into the incident. (

e) The size, age, gender and physical capabilities of those involved [ 75 ] As indicated above, I estimate W was at least three times the size and weight of H. H had just finished grade six and was barely thirteen years old. On his own, in the crucible of those frantic moments as he felt helpless to prevent the fatal beating of his mother, H had no hope of restraining his father, other than by use of a firearm. [ 76 ] At H’s age people do not reason as adults, as many of the Crown’s arguments assumed. Their emotional and psychological maturation, like their physical, is in process only. In H’s case I strongly doubt it was even underway. (

f) The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; and (f.1) any history of interaction or communication between the parties to the incident [ 77 ] The duration and history of the relationship between the accused and the deceased encompassed the entirety of H’s life and was characterized by relentless horrific, monstrous treatment. Most recently H’s mother was almost killed. Most recently W had attempted to drive over H. Most recently W had caused the miscarriage of J’s unborn child.

Most recently W had almost killed T. At that moment W threatened to kill H and E. [ 78 ] The Crown suggested W’s threats were empty and that H knew they largely turned out to be empty. I disagree. W’s threats were not idle. There was no hyperbole or exaggeration. W’s bullying was backed up by despicable physical force. He followed through on his threats. W had almost killed H’s mother before. H saw that. H knew that W had threatened T and then almost killed him. W had threatened H and two siblings and a boyfriend of one of them, and then attempted to run them down with his truck. H was there.

On the morning of August 5, W threatened to kill H and his mother, then proceeded to beat and kick his mother. (

g) The nature and proportionality of the response to the use or threat of force [ 79 ] The Crown argued that instead of using a rifle H should have gone for help, that he could have contacted the police, or enlisted help from some other adult, pointing out that he had done that before.

This seems oblivious to the facts that it was before 5 a.m., distant from any other homes in which there might potentially have been an adult that would assist in a timely manner, that he was not familiar with that community having grown up a long distance away, and that use of force by W was under way not just a threat of possible future action. [ 80 ] The Crown argued there was no evidence of how far the grandfather’s house was from the others. But there was evidence that it was rural, that H and his siblings didn’t know anybody in the area, and the authorities needed help finding it later in the morning.

Furthermore, none of the efforts to seek assistance of others, including the police, had proven effective over the long term. W was again battering E, with apparent impunity. The evidence was silent on where CW was at the time, other than being asleep in his room the next morning when the authorities arrived – with E asleep (or passed out) in a chair beside him. [ 81 ] The Crown argued that the amount of force used was disproportionate to the danger presented.

More specifically, the Crown suggested that the calibre of rifle selected by H was far greater than was necessary if H’s purpose was as he represented – not to kill W – and that H knew it. He admitted knowledge of the power and magnitude of a .30-30 rifle. He had seen its effect on wild game. H had a .22 clip on him when arrested within hours after the shooting. The Crown suggested if H had not intended to kill W that H would have used a much less lethal weapon like a .22 rifle. [ 82 ] The Crown argued that the first shot could not have been in self-defence since H was outside the room and safe.

H was the one bringing the rifle into the incident, loaded. The Crown argued further that the first shot could not have been in defence of his mother, either, because she was across the room from W, on the floor. The Crown further argued that H could not have been acting in protection of his mother because after firing the second shot he left the room with his mother laying on the floor. [ 83 ] The Crown further argued that H firing the second shot from the rifle was entirely inconsistent with a proportionate response to W’s use of force.

The Crown argued H knew that W had been shot already with a powerful weapon, one that would have caused W significant bodily harm, and that therefore H knew W was no longer a risk. Nevertheless, the Crown underscored, H then very consciously – deliberately – holding the rifle in his left hand, put his right hand on the lever, thrust it down to expel the spent shell casing and then thrust it back up towards the butt of the rifle to transfer the next live round into the rifle chamber, reloading the rifle. He then raised the rifle and shot the second time. The effect, said the Crown, was to kill W.

The Crown said H admitted that he knew the second shot would likely kill his father. [ 84 ] H struck me as trying very hard to be accurate to what happened as he testified. Yet his testimony was, as I referred to earlier,

often oblivious to precisely the nature and nuance of the questions the Crown put to him in cross-examination. Some of H’s relatives were unable to testify without translation; I am satisfied that H was not so competent in English as others his age are.

Therefore I was not persuaded that some of the admissions of H in cross-examination were representing his agreement with the Crown’s actual questions, but rather were admissions only of what he thought the Crown had asked, often mistakenly. [ 85 ] Further, the Crown’s ‘disproportionality’ argument assumes that H was aware of all of the firearms within the household from which he might have chosen, that he was aware of their location, and that he was aware of the location of ammunition for them.

It further assumes that, even if H was aware of all of the firearm choices and locations, that he had the luxury of moments of quiet consideration to weigh the pros and cons of each option against his objective. In reality, everything happened extraordinarily quickly. In reality, H was barely thirteen years old. In reality, he was seeing his mother brutally beaten, then hearing it continue despite her calls for him to stop, after he left the room.. H had seen this exact sort of scenario many times before; this time he feared his mother’s condition would be unable to survive were the assault to continue.

In reality, if H had laying before him the full array of firearms all loaded, from which to choose for his task, he very well may have considered it necessary to use the high powered .30-30, given the imposing, erratic and uncontrollable hulk of a man that had bullied, overpowered and domineered his entire family for most of his life. He very well may have reasoned, in that hypothetical situation, that anything smaller than the rifle he chose would have been pointless.

The fact is, however, that H found first the bullets, then sought the weapon that those bullets would fit, not the other way around. [ 86 ] Regarding the .22 clip found on H when arrested, it appears that was for a gun back at his house in Fox Lake; there is no evidence that it would fit any of the guns at his grandfather’s house. [ 87 ] When the second shot was fired, H feared for his own life. He would not have known the true condition of his mother in those fleeting moments. With the second shot, H intended to again hit W in the leg. Further, W was alive when H retreated.

H did not continue shooting until the father was motionless and clearly dead. The father was alive when H left the room. H may have been of the view his father could no longer hurt his mother, but at that point his paramount concern was self preservation. [ 88 ] I find that H did not intend to kill his father, intending only that his father would stop what he was doing before killing his mother. Had he intended to kill his father, the first shot taken (when H was mere feet away from W, plus steadier in aim and purpose), would not have been aimed at W’s leg.

I believe H’s testimony that he did not intend to shoot his father in the abdomen. Upon firing the second shot, H did not know where it hit his father. By then he was retreating out the door with the youngest child in the house. [ 89 ] I find, in all the circumstances, H had no other choice if he was to intervene to save his mother. In the circumstances, his actions were reasonable or, at a very minimum, he has raised more than a reasonable doubt that his acts were reasonable in all the circumstances.

Conclusion [ 90 ] For all these reasons, I concluded that the first shot taken by H was in defence of and to protect his mother, to avoid her imminent murder if he did not intervene. I find the second shot was in defence of himself and also his mother, because the first was insufficient to restrain his father’s aggression, by that time headed towards him. There is far more here than a reasonable doubt having been raised. The Crown has not proven beyond a reasonable doubt that H’s actions were not taken in defence of his mother and the second shot taken in defence of both his mother and himself.

Heard in Peace River and High Level, Alberta, on the 8 th , 9 th , 21 st , 22 nd and 23 rd days of September, 2015. Dated at the City of Calgary, Alberta this 5 th day of October, 2015 . P.R. Jeffrey J.C.Q.B.A. Appearances: James D. Brydon

for the Crown Douglas N. Majaesic for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ Correction on page 8, paragraph [53], line 5: replace “supplemental” with “supplanted”