R. v. Gagne Date:, 2016 BCPC 415

Citation: R. v. Gagne Date: 20161220 2016 BCPC 415 File No: 39874 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOAN JEANETTE GAGNE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: B. Richardson Counsel for the Defendant: D. Marion Place of Hearing: Courtenay , B.C. Date of Hearing: December 6, 2016 Date of Judgment: December 20, 2016

The Issues [ 1 ] Ms. Gagne is charged with a single count of assault, contrary to

section 266 of the Criminal Code . Ms. Gagne admits that she punched the complainant, Ms. Nagy, 6 or 8 times in the course of a fight on November 18, 2015. On Ms. Gagne’s behalf, Mr. Marion advances three separate defences to the charge, each in the alternative: a. He says that the fight was consensual, and was initiated by Ms. Nagy: Criminal Code ,

section 265 . b. He says that Ms. Gagne was acting in self-defence: Criminal Code ,

section 34 . c. He says that Ms. Gagne was acting in defence of her property: Criminal Code,

section 35 . The Evidence Facts Which Are Not In Dispute [ 2 ] Ms. Nagy is 55 years of age and Ms. Gagne is 60. Ms. Gagne’s son, Henry Gagne, is 40. [ 3 ] Ms. Gagne’s sternum was removed for medical reasons in 2008, and was replaced by transplanted abdominal muscles. As a result, she is exceptionally vulnerable to a blow to the chest. It is likely that any such blow would cause her heart to stop beating and kill her. On and before November 18, 2015, Ms. Gagne, Ms. Nagy and Henry Gagne were all well aware of her vulnerability. [ 4 ] In the months preceding November 18, 2015, Ms. Nagy and Ms.

Gagne were close friends. During that period, Ms. Nagy spent much of her time at Ms. Gagne’s home. [ 5 ] On or shortly before November 18, 2015, Ms. Gagne came to believe that Ms. Nagy had developed a sexual relationship with Henry, and was very angry about that. [ 6 ] On November 18, 2015, Ms. Nagy had at her home a number of personal items belonging to Ms. Gagne. At the same time, Ms. Gagne was in possession of a book belonging to Ms. Nagy. The book was an item of some value, and Ms. Nagy was eager to have it returned to her. On the morning of November 18, 2015, the two women agreed by telephone that Ms.

Nagy would attend at Ms. Gagne’s home with Ms. Gagne’s personal items and that Ms. Gagne would leave Ms. Nagy’s book on the front porch for Ms. Nagy to pick up. Each woman intended that there would be no contact between them - the agreement was that Ms. Nagy would attend at the house, pick up her book, leave Ms. Gagne’s belongings and go. Beginning at about noon on November 18, 2015, Ms. Nagy and Ms. Gagne began to exchange text messages. Ms. Nagy’s text messages were calm and courteous. Ms. Gagne’s text messages were vulgar, abusive and threatening. [ 7 ] Ms. Nagy and Ms.

Gagne both formed the conclusion that their friendship was at an end. [ 8 ] Ms. Nagy arrived at Ms. Gagne’s home at about 2:00 p.m. on November 18, 2015, carrying Ms. Gagne’s belongings in a plastic bag. A fight ensued on Ms. Gagne’s front porch. [ 9 ] Ms. Nagy suffered bruises to her face, resulting from punches thrown by Ms. Gagne, for which she saw her doctor on the day after the altercation. The police took photographs of the bruises on November 18, 2015, and again about a week later when Ms. Nagy attended at the police station a second time to allow such photos to be taken.

The bruises on her face were still clearly visible in the photographs taken a week after the incident. Ms. Gagne incurred no visible signs of injury and did not seek medical attention after the affray. [ 10 ] Ms. Nagy complained to the police on November 18, 2015. Ms. Gagne made no complaint to the police. [ 11 ] After the altercation, Ms. Gagne sent a text message to Ms. Nagy in which she said: Ur book is on the bench outside. If u’d of looked u would have seen it. Don’t ever swing anything at me. I lose it when someone swings at me. Sorry. Facts Which Are In Dispute [ 12 ] During her evidence in chief, Ms.

Nagy said that: a. When she arrived at Ms. Gagne’s home, her book was not visible on the porch. b. She knocked on the door and Ms. Gagne opened it. c. Ms. Nagy asked for her book. d. Ms. Gagne closed the door, with Ms. Nagy outside on the porch and Ms. Gagne inside, then reopened it a few moments later and emerged from the house, wearing leather gloves. e. Ms. Gagne then punched Ms. Nagy in the chest, causing her to fall backwards against a bench on the porch and lose balance. f. Ms. Gagne continued her attack, throwing many punches to Ms. Nagy’s head, which Ms.

Nagy attempted, unsuccessfully, to block with her hands.

g. She did not swing the bag toward Ms. Gagne or attempt to strike her in the chest with the bag, because she knew that a blow to the chest might kill Ms. Gagne. [ 13 ] During her cross-examination, Mr. Marion referred Ms. Nagy to a statement which she gave to the police on November 18, 2015. In her statement, she said that: a. When she knocked on the door, Ms. Gagne pulled aside a curtain and addressed her through a window in the door, directing her attention to a sign which had Ms. Nagy’s name and one other name on it below the legend “No Trespassing”. b. Ms.

Gagne then opened the door and came out throwing punches. c. “I was handing her the bag and she came out swinging”. It will be observed that, in her evidence in chief, Ms. Nagy said that Ms. Gagne opened the door, then closed it, and opened it again before the fight started. In her police statement, she said that Ms. Gagne opened the door only once, and came out swinging. Ms. Nagy acknowledged that her statement to the police was correct, and that her evidence in chief was incorrect in so far as it contradicted her statement to the police. [ 14 ] During cross-examination, Ms.

Nagy denied that she punched or kicked Ms. Gagne. She said that the first punch caused her to fall back against a bench on the porch and that, thereafter, she tried to fend off Ms. Gagne’s attack with her hands and feet as she struggled to regain her balance. [ 15 ] Ms. Gagne’s evidence was that: a. She left Ms. Nagy’s book under a cloth on a bench on the porch, so that it would not be stolen. b. She added Ms. Nagy’s name to the “No Trespassing” sign under the window in her door because she did not want Ms. Nagy in her house after Ms. Nagy had sex with Henry. c. She opened the door when Ms. Nagy knocked. d. Ms.

Nagy said “Where’s my bag, you [epithet]?”, to which Ms. Gagne replied “It’s right there”, pointing to the bench. e. Ms. Nagy then swung a bag at her, hitting her in the chest. f. She felt muscles in her chest tear as a result of the blow with the bag. g. Ms. Gagne responded with 6-8 punches, to which Ms. Nagy responded with 7 kicks to Ms. Gagne’s chest and several punches. h. She did not seek medical attention because: (

i) there is nothing more the doctors could do for her - it would not be possible to reopen her chest to remedy any new injury; (ii) “I’m not a cry baby. I don’t run to the doctor every time I get hurt”. i. During the altercation, Henry Gagne was standing on his uncle’s lawn across the street, and could hear and see the altercation. j. She did not call out for help, from Henry or the police, because she could handle the situation herself. [ 16 ] Henry Gagne said that: a. He was standing on his uncle’s lawn, about 15 metres from Ms. Gagne’s front door, when the fight broke out. b.

He had a clear view from where he stood to the front door. c. He saw Ms. Nagy knock on the door. d. He looked away for a moment, and, when he looked back, he saw the door open, Ms. Gagne standing in the doorway and Ms. Nagy swinging a bag at Ms. Gagne’s chest. e. Ms. Gagne turned red. f. His account of what happened next is contradictory. During his evidence in chief, he said that he then went into his uncle’s house so as to avoid witnessing any ensuing confrontation. During cross-examination, he said that he remained on the lawn, but looked away. g. He saw no punches thrown. h.

He did not want to intervene because: (

i) he feared that, if he became involved, he would become enraged and violent, and he feared being arrested and charged; and (ii) Ms. Gagne is a “tough girl”, who would “take care of it”. Henry Gagne has a criminal record, which includes a conviction for assault. Missing Evidence [ 17 ] As noted, it is common ground that, when she knocked on the door of Ms. Gagne’s home, Ms. Nagy had in her hand a plastic bag containing some of Ms. Gagne’s possessions. Ms. Gagne said that the bag contained a set of clips which she used to remove hair from her bathtub. However, the evidence includes no comprehensive description of the contents of the bag and no estimate of the weight of the bag and contents.

The Issue as Defined by Counsel [18] Mr. Marion and Mr. Richardson agree that the issue is whether: (

i) I am convinced beyond a reasonable doubt that Ms. Nagy’sevidence is accurate and complete; or (ii) the evidence of Ms. Gagne and her son raises a reasonable doubt as to the accuracy of Ms.Nagy’s evidence. [19] For the reasons given below, I disagree. In my opinion, Ms. Gagne is guilty of the offence charged even if her account of theincident is accurate and complete. Legal Principles Consensual Fight [20]

Section 265 of the Criminal Code provides that “… a person commits assault when, without the consent of another person, heapplies force intentionally to that other person …” (underlining added). Where the issue arises, the Crown carries the onus of provingthat the victim of the assault did not consent: R. v. Muise, [1994] MJ No. 530. However, the issue does not arise where the assaultcaused “… serious hurt or non-trivial bodily harm …” to the victim. For reasons of public policy, no one can consent to an assault whichcauses harm of that kind: R. v. Jobidon, (SCC), [1991] 2 SCR 714 @ paragraphs 110 -125.

Consent may vitiate theoffence where the assault causes “… only minor hurt or trivial bodily harm …”: Jobidon @ paragraph 129. Self-Defence [21]

Section 34 of the Criminal Code, in its present form, came into effect on March 11, 2013. The annotation to

section 34 inMartin’s Criminal Code asserts that it “… codifies the defence of use of force in defence of one’s self …” and “… replaces a number ofsections that had created a complex web of overlapping and confusing provisions”. [22] I am mindful of the admonition in Jobidon @ paragraphs 43 - 49, to the effect that one must construe the statute in light of theevolution of common-law principles relating to defence of self or property. [23] The leading authority on the predecessor to the present

section 34 is R. v. Hebert, (SCC), [1996] 2 SCR 272. The following passages are of significance: Under s. 34(2), the use of excessive force by the accused will not take away self-defence. In R. v. Ward (1978), (ONCA), 4 C.R. (3d) 190 (Ont. C.A.), it was properly found that it is not a requirement of s. 34(2) that the force used must be proportionateto the assault against which the accused is defending him- or herself. As well in R. v. Mulder (1978), (ON CA), 40C.C.C. (2d) 1 (Ont.

C.A.), it was correctly held that there is no requirement that the force be no more than is necessary to prevent deathor grievous bodily harm. (paragraph 16) … for the defence to be successful the jury must be left with a reasonable doubt as to the existence of all the elements of the defence. Namely, (

i) the accused was unlawfully assaulted; (ii) the accused did not provoke the assault; (iii) the force used by the accused wasnot intended to cause death or grievous bodily harm; and (iv) the force used by the accused was no more than necessary to enable him todefend himself. The trial judge was correct in stating that the defence would only succeed if a reasonable doubt was raised with respectto all of these elements. (paragraph 23) [24] Also of significance in relation to the predecessor of

section 34 are R. v. Deegan, 1979 ABCA 198 , [1979] AJ No.839; 49 CCC (2d) 417 and R. v. Docherty, 2012 ONCA 784 , [2012] OJ No. 5401; 2012 ONCA 784; 292 CCC (3d) 465, inwhich it was held that the victim of an assault is not necessarily required to retreat from an assault, particularly when the assault occursin the home of the victim. [25] It will be observed that the present requirements of the statute are different from those considered in Hebert, Ward, Mulder,Deegan and Docherty. Under

section 34, the defence pertains unless I am satisfied beyond a reasonable doubt that one or more of thefollowing is not true: a. Ms. Gagne believed that Ms. Nagy was using or about to use force against her. b. Ms. Gagne punched Ms. Nagy for the purpose of defending herself from an assault or threatened assault by Ms. Nagy. c. The punches thrown by Ms. Gagne were a reasonable response to the assault or threatened assault by Ms. Nagy. In considering the last question, I must have regard to the factors listed in section 34(2). Of those, two seem to me to be particularlypertinent: a. Section 34(2)(

b) requires me to consider “… whether there were other means available to respond to the potential use of force …”. b. Section 34(2)(

g) requires me to consider the “proportionality” of Ms. Gagne’s response. [26] Neither of those factors was specifically mentioned in the legislative predecessors to the present

section

Section 12 of theInterpretation Act RSC 1985, c I-21provides: Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures theattainment of its objects.

The Oxford English Dictionary defines “remedial” as: affording a remedy; tending to relieve or redress Put another way,

section 12 of the

Interpretation Act is a statutory articulation of the common-sense proposition that, when Parliamentamends a law, it does so because it considers a change in the existing law to be necessary or desirable. I conclude that the purpose of the2013 amendments to

section 34 was to remedy what Parliament considered to be deficiencies in the law as it was prior to thoseamendments. More specifically, I conclude that a purpose of the new subsection 34(2)(

b) was to effect a change in the law as stated inDeegan and Docherty, and that a purpose of the new subsection 34(2)(

g) was to effect a change in the law as stated in Ward. Defence of Property [27] Section 35(1) of the Criminal Code had no close analogue in the provisions in effect before 2013. The annotation in Martin’sCriminal Code for

section 35 is the same as the annotation for

section 34, quoted in paragraph 21, above. It is useful to quote thepresent subsection 35(1) in its entirety: A person is not guilty of an offence if

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, orlawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the propertyfrom that person; and

d) the act committed is reasonable in the circumstances. It will be observed that subsections (a) – (

d) are conjunctive - section 35(1) applies if and only if at least one element from each ofsubsections (a) – (

d) is present. Applying the Principles to Ms. Gagne’s Version of Events [28] I now proceed to apply the principles to Ms. Gagne’s version of the altercation, assuming, without deciding, that it is true andcomplete. So, it is to be assumed that Ms. Nagy swung the bag at Ms. Gagne’s chest and that the bag struck Ms. Gagne there. [29] In this case, the bruises to Ms. Nagy’s face would be sufficient to support a conviction for assault causing bodily harm, if thatoffence had been charged: R. v. Moquin 2010 MBCA 22 , 2010 MJ No. 46, [2010] MBCA 22; 253 CCC (3d) 96.

I do not thinkthat they could be described as minor or trivial. For that reason, the issue of consent does not arise. [30] In this case,

section 34 applies unless the evidence shows beyond a reasonable doubt that Ms. Gagne’s response to Ms. Nagy’s(assumed) assault with the bag was unreasonable. In answering that question, I must have regard to the factors identified in sections34(2)(

b) and 34(2)(g). [31] Section 34(2)(

b) requires me to consider whether there were other means available to Ms. Gagne to respond to Ms. Nagy’s(assumed) assault with the bag. If so, that may lead to the conclusion that her response was unreasonable. Clearly, there were othermeasures which Ms. Gagne could have taken. She could simply have taken one step back, and shut and locked her door, leaving Ms.Nagy on the porch. [32] In my view, section 34(2)(

b) represents a clear rejection by Parliament of the social and legal mores represented by the “standyour ground” laws enacted by a number of American states. In Canada, citizens are expected to avoid violent confrontations whenever areasonable non-violent option is available, as it was to Ms. Gagne. I conclude that her decision to respond to Ms. Nagy’s (assumed)assault with a flurry of punches to Ms. Nagy’s face was unreasonable, with the result that

section 34 does not apply. [33] Section 34(2)(

g) requires me to consider whether Ms. Gagne’s response was proportionate to the (assumed) assault by Ms.Nagy with the bag. In considering that point, it is important to bear in mind that Ms. Gagne was unusually vulnerable to such a blow,and that Ms. Nagy knew of her vulnerability. In my view, it is not possible to answer that question without knowing what was in the bag. If it contained a bowling ball, Ms. Gagne’s response might be thought to be proportionate. If it contained only tissue paper, it clearlywas not.

The evidence discloses that the bag contained some clips, but not what they weighed, nor what else, if anything, was in the bag. I cannot conclude, beyond a reasonable doubt, that the response was disproportionate. [34] Referring to section 35(1), it is clear that Ms. Gagne was in peaceful possession of her home. However, there is nothing in theevidence to suggest any basis for a belief that Ms. Nagy had unlawfully entered Ms. Gagne’s property, or intended to do so, or intendedto take or damage any of Ms. Gagne’s property. Mr. Marion very properly conceded that Ms. Gagne had given Ms.

Nagy a license tocome on her porch for the purpose of getting her book and returning Ms. Gagne’s belongings. He says, however, that Ms. Gagne had not

given her a license to knock on the door, and that the “No Trespassing” sign ought to have warned her not to. The act of knocking on a door is generally recognized as a request for the occupant to open the door. It does not generally signify an intention to enter, although it frequently signifies an intention to request permission to enter. When the FedEx driver rings my doorbell, he does not intend to enter my house. Ms. Nagy was clearly in a similar position. [ 35 ] I am satisfied beyond a reasonable doubt that: (

i) Ms. Nagy had no intention of entering Ms. Gagne`s house; (ii) Ms. Gagne had no reason to believe that Ms. Nagy had such an intention; and (iii) Ms. Gagne did not believe that she had any such intention. [ 36 ] The evidence makes it clear that none of the three elements of section 35(1)(

b) were present in this case. For that reason, Ms. Gagne is not entitled to a defence under

section 35 . Equally, Ms. Gagne’s evidence makes it clear that her punches were not thrown for the purpose of removing Ms. Nagy from the property or for the purpose of preventing Ms. Nagy from taking or damaging property. The punches were thrown (as Ms. Gagne expressed it) because “I lose it when someone swings at me”. [ 37 ] Neither of the elements of section 35(1) (

c) were present in this case. For that additional reason, Ms. Gagne is not entitled to a defence under

section 35 . Assessment of the Conflicting Evidence [ 38 ] The line of reasoning set out above leads me to the conclusion that Ms. Gagne is guilty of the offence charged even if her version of events is true and complete. I am, however, mindful that an appellate court may take a different view. I therefore consider it my duty to set out the findings of fact which I would have made if it were necessary for me to decide between the several versions of events found in the evidence. [ 39 ] I conclude that Ms. Nagy was a truthful witness.

However, the divergence between her statement to the police and her evidence in chief at trial causes me concern as to the reliability of her recollection. In the flurry of the moment, it is not unlikely that she would have thrust or tossed the bag toward Ms. Gagne, with the innocent intention of passing it into Ms. Gagne’s possession, and accidentally brought the bag into contact with Ms. Gagne’s chest. I cannot be satisfied beyond a reasonable doubt that that did not happen. [ 40 ] If Ms. Nagy did strike Ms.

Gagne in the chest with the bag, I am satisfied beyond a reasonable doubt that it was unintentional. [ 41 ] I did not find Ms. Gagne to be a credible witness. She said that she felt muscles tearing in her chest as a result of Ms. Nagy’s (alleged) attack, but that she did not seek medical attention after the affray. For a woman in her condition, that seems incredible. She acknowledges that she was furious with Ms. Nagy for sleeping with her son. She had every reason to report Ms. Nagy’s (alleged) attack to the police, but did not do so. [ 42 ] I did not find Henry Gagne to be a credible witness.

He would have me believe that he witnessed, from a distance of 15 metres, an attack upon his mother which, given her condition, could easily have killed her, but that he made no effort to intervene, instead averting his eyes, because he feared arrest and prosecution if he intervened. I don’t believe a word of it. [ 43 ] Having so assessed the evidence of the witnesses, I am left in a state of doubt as to whether Ms. Nagy struck Ms. Gagne in the chest with the bag before Ms. Gagne threw her first punch. If the Crown were required to prove that she did not, I would be obliged to acquit Ms. Gagne.

Disposition [ 44 ] Each of the three defences advanced by Ms. Gagne having failed, I convict her of the offence with which she is charged. T. Gouge, PCJ