R v Nickerson, 2021 ABQB 104

Court of Queen’s Bench of Alberta Citation: R v Nickerson, 2021 ABQB 104 Date: 20210208 Docket: 170433676Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Ray Charles Nickerson Accused Corrected judgment: A corrigendum was issued on February 16, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision on Application to Leave s 27 Instruction with Jury of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction

[1] Ray Charles Nickerson is charged with two counts of second-degree murder. The evidence has concluded save and exceptfor the tendering of some evidence by the defence before it closes its case. It will then be time for counsel to address the jury followingwhich I will be providing the jury with instructions. [2] Mr. Nickerson has advanced the defence of self defence under s 34 of the Criminal Code of Canada and provocation under s232.

He asks that the jury instructions include a specific instruction under s 27 of the Code which provides a justification for the use offorce which is reasonably necessary to prevent the commission of an offence. [3] Mr. Nickerson has taken the position that his actions in shooting the two victims in this case were justified as he believedthat force was being used against his wife and a threat of force was being made against him. He says that his actions were committed forthe purpose of defending and protecting himself and his wife as well as his son.

He further argues that his actions in shooting the twovictims were reasonable in the circumstances. [4] Mr. Nickerson also takes the position that the actions of the two victims immediately prior to his shooting them provoked hisresponse. On his evidence, they were committing the offences of assault causing bodily harm on his wife as well as break and enter withthe intent of committing an indictable offence. [5] The two defences of self defence and provocation will be left with the jury to decide. Mr.

Nickerson argues, however, that s27 should also be left with the jury as it provides another basis upon which his actions may have been justified. Analysis [6]

Section 27 of the Criminal Code falls under a general

section entitled “Protection of Persons Administering and Enforcingthe Law”. It was recognized by the Supreme Court of Canada as a

section of general application and the person asserting the justificationneed not be a peace or public officer or a member of a restricted class of persons. However, the Court noted that the

section was clearlydesigned to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent the offencefrom occurring. While the Court was referring to a case involving a personal assault, it noted that if s 27 applied, it would make the selfdefence provisions redundant. In its proper context, the

section applies to force used in general law enforcement: R v Hebert, at paras 10 and 12. [7] In R v Kong, 2005 ABCA 255 (rev’d on other grounds at 2006 SCC 40), the Court followed Hebert and confirmed that s 27is one of the sections aimed primarily at law enforcement officials and the right to use force in the execution of their duties.

The Courtrecognized that it is not limited to those in law enforcement and said that it would be illogical to classify a personal assault, such as theone at issue in that case, as an offence which triggered the use of s 27 (para 139). [8] In Hebert, the Court stated that an unnecessarily confusing charge can constitute an error of law. Including instructions unders 27 with instructions on self defence under s 34 was unnecessary and led to confusion.

In R v Feng, 2014 BCCA 71, the Court notedthat the trial judge included instructions on the elements of self defence under the self defence provisions (at that time, including ss 37and 34(2)) together with instructions on the elements under s 27. The Appellant was convicted and, on appeal, did not take issue with theinstructions having included s 27 as he had acquiesced to them. Nevertheless, the Court referred to the comment in Hebert about “anunnecessarily confusing charge” and found that the cumulative effect of the trial judge’s instructions led to “an inadequate and confusingcharge” (para 61). [9] Mr.

Nickerson distinguishes these cases on the basis that they involved defences to personal assaults being committed by theultimate victim whereas, in this case, he was not only reacting to a personal assault of his wife and the threat of an assault against him butalso a break and enter with intent to commit an indictable defence. In my view, this is a distinction that does not alter the directions andreasoning of the Supreme Court of Canada. As the Court emphasized, the

section was “clearly designed to permit an innocent bystander,who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring.” Conclusion [10] In short, the inclusion of a s 27 instruction in this case would add nothing in terms of the defences being advanced by Mr.Nickerson and, to his possible detriment, would lead to an unnecessarily confusing charge. [11] The application by Mr. Nickerson to include instructions to the jury regarding the applicability of s 27 of the Criminal Code isdismissed. Heard on the 25th day of January, 2021.

Delivered Orally on the 25th day of January, 2021. Dated at the City of Edmonton, Alberta this 25th day of January, 2021.

Eric F. Macklin J.C.Q.B.A. Appearances: Katrina Stewart-Lund and Christopher Williams for the Crown Akram Attia and Jacqueline Leblanc Attia Reeves for the Accused, Ray Charles Nickerson _______________________________________________________ Corrigendum of the Reasons for Decision on Application to Leave s 27 Instruction with Jury of The Honourable Mr. Justice Eric F.

Macklin _______________________________________________________ • Analysis and Conclusion have been added as Headings; • in paras 6, 7 and 9, the word “Court” has been capitalized; • in para 3, the word ‘was’ is replaced with ‘were’: He further argues that his actions in shooting the two victims were reasonable in the circumstances; • in para 3, ‘a’ has been removed before bodily hard: On his evidence, they were committing the offences of assault causing bodily harm on his wife as well as break and enter with the intent of committing an indictable offence; and • in para 5, the word ‘is’ is replaced with ‘his’: Mr.

Nickerson argues, however, that s 27 should also be left with the jury as it provides another basis upon which his actions may have been justified.