R. v. Olson Date:, 2017 BCPC 383

Citation: R. v. Olson Date: 20171023 2017 BCPC 383 File No: 83981-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRYAN HAROLD OLSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: R. MacGowan Counsel for the Accused: J. Stowe Place of Hearing: Abbotsford , B.C. Date of Hearing: May 15, 16, 17, 18, September 11, 27, 2017 Date of Judgment: October 23, 2017 INTRODUCTION [ 1 ] THE COURT: The accused, Brian Harold Olson, and the complainant, Timothy Dehard, were at one time the best of friends.

More recently, however, they were having a dispute over a Ford F150 pickup truck owned by Mr. Dehard but stored on Mr. Olson's property in Hatzic, B.C.

[ 2 ] In the wee hours of January 3rd, 2016 conflict between these men escalated and the Crown alleges that Mr. Olson shot at the car occupied by Mr. Dehard, with at least one bullet striking the vehicle on the rear door on the driver's side. [ 3 ] The friendship ended at that point and Mr. Olson faces serious charges which have proceeded by indictment. The charges include possessing a firearm dangerous to the public peace and using a firearm in a careless manner. More seriously, Mr. Olson is charged with discharging a firearm with intent to wound Mr. Dehard, being reckless as to whether Mr.

Dehard was present in the vehicle, and being reckless as to the life or safety of Mr. Dehard. [ 4 ] The issue is whether the Crown has proven these charges beyond a reasonable doubt. Furthermore, assuming there is an air of reality to self-defence and defence of property, the Crown is required to disprove those defences beyond a reasonable doubt. CASE FOR THE CROWN Timothy Dehard [ 5 ] Timothy Dehard is 39 years old and he has known the accused Brian Olson since he was 18 years old. Mr. Dehard considered Mr. Olson to be a very dear friend. He is very familiar with Mr.

Olson's residence on Miles Road on Hatzic Island in British Columbia. [ 6 ] Prior to the incident on January 3rd, 2016, Mr. Dehard had seen a black semiautomatic handgun on Mr. Olson's property. Mr. Olson referred to it as a "38" and he had told Mr. Dehard that he would throw it in the backyard in the event the house ever got raided. Mr. Dehard also saw a silver or chrome handgun on Mr. Olson's property, as well as many pellet guns. [ 7 ] In January of 2016, Mr. Dehard drove a Mazda Protégé, and his black Ford F150 truck was kept on Mr. Olson's property. Mr. Dehard had made two agreements with Mr.

Olson concerning the Ford F150. At first, the two men were splitting the truck payments and Mr. Dehard would use the truck when he was in town. Later, Mr. Olson took over the truck payments with the understanding that the truck would eventually be transferred to Mr. Olson. Mr. Olson was not supposed to be driving the truck because he did not have a driver's licence at the time. [ 8 ] Sometime before the incident, Mr. Dehard had discovered that Mr. Olson had been caught driving the truck and it had been impounded. Mr. Dehard had to travel to the impound lot to release the truck so Mr.

Olson could make arrangements to pick it up. Mr. Dehard was upset that a vehicle in his name was being driven by an unlicensed driver. He discussed this issue with Mr. Olson, and Mr. Olson said his girlfriend would be the primary driver. In cross-examination, Mr. Dehard agreed that the Ford F150 insurance had just expired. [ 9 ] On the Saturday night of January 2, 2016, Mr. Dehard was having dinner at the Dewdney Pub. He did not consume alcohol there. He called Mr. Olson to have a visit and learned that Mr. Olson was at the Mission Springs Pub with his girlfriend and other friends. [ 10 ] Mr.

Dehard went to the Mission Springs Pub and spent about one-and-a-half hours with Mr. Olson, his girlfriend Cassandra Frederstaff and her friend Alexa Olson (no relation). Mr. Olson was having a good time and according to Mr. Dehard, Mr. Olson was intoxicated. He saw Mr. Olson being boisterous and loud, and he saw him consuming alcohol. Mr. Dehard drank one double vodka with grapefruit juice, and Mr. Olson purchased this drink. [ 11 ] Mr. Olson and the two women were planning on attending a party. Mr. Dehard did not wish to go to the party, but he offered Mr. Olson a ride. It was Mr.

Dehard's intention to sleep at his parents' home nearby. Mr. Olson readily accepted the ride, and both Mr. Olson and Mr. Dehard were getting along well. Cassandra Frederstaff and Alexa Olson were going to Mr. Olson's residence in a separate vehicle. [ 12 ] Mr. Dehard drove Mr. Olson in his Mazda Protégé proceeding east to Hatzic. The two men began to talk about the Ford F150 and Mr. Dehard expressed concern about Mr. Olson's late and delinquent payments. The conversation became heated and both men were yelling and name-calling. Mr.

Dehard pulled his vehicle over on Lougheed Highway, just before Manson Street and not far from the Mission Inn Motel. Mr. Dehard told Mr. Olson to get out of the vehicle, and he did. Mr. Dehard proceeded east, but felt bad about the situation so he headed back towards Mr. Olson. [ 13 ] Mr. Dehard saw Mr. Olson walking, so he did a u-turn in order to pull up beside him. Mr. Olson kicked his car door a couple of times and both men swore at each other. Mr. Dehard parked his car up Manson Street to where a road leads to the motel and he got out. Mr.

Dehard was angry about the kicked door and a heated argument again ensued. [ 14 ] During the heated exchange, Mr. Olson picked up a six-inch round rock and told Mr. Dehard he would smash his head with it. Mr. Dehard could not recount the precise words spoken. Mr. Dehard felt threatened and angry and he told Mr. Olson not to be a "chicken shit", to drop the rock and put up his hands and fight. There was no violence, just yelling and screaming, and Mr. Dehard returned to his car and left. Mr. Olson headed east by foot. [ 15 ] In cross-examination, Mr. Dehard clarified that he did not have his fists up prior to Mr.

Olson picking up the rock. He also felt he could not easily defeat Mr. Olson in a fight. [ 16 ] Mr. Dehard drove to Mr. Olson's residence because he was concerned about the safety of his Ford F150. He wanted to document the state of the vehicle as he felt Mr. Olson may damage it. Mr. Dehard drove to Mr. Olson's residence on 8765 Miles Road and parked behind Alexa Olson's vehicle. The women had arrived first, and Mr. Dehard told Cassandra Frederstaff that she needed to retrieve Mr. Olson as they had been in a fight. [ 17 ] Mr. Dehard did not move his car until he had taken a video of the Ford F150.

The video was about 18 seconds in length. Either before or after the video was taken, Mr. Dehard heard Mr. Olson's voice over a Bluetooth device in Alexa Olson's vehicle. Mr. Olson was irate and requested to be picked up. Mr. Olson referred to Mr. Dehard as a "piece of shit" and the men argued via Bluetooth.

[ 18 ] The video was marked Exhibit 6. The first sequence is a view of the back of the Ford F150 pickup truck. Then the view spans over to a white vehicle. One then sees the front door of Mr. Olson's residence and a motion sensor light is triggered. A phone can be heard in the background. Mr. Dehard says on the video, "So what I'm doing is I'm at my friend Brian Olson's house whom (sic) my truck was in his care, in his possession and yeah . . ." [ 19 ] When the video is completed, Mr. Dehard moves his car and the two women leave, presumably to pick up Mr. Olson. Mr. Dehard drove from Mr.

Olson's residence down to the corner of Lougheed Highway and Shook Road when he then tried to contact a towing company in an effort to retrieve his Ford F150 from the property. It was late in the evening, so he was unable to contact a towing company. [ 20 ] It was around this time that Mr. Dehard sent a text to Mr. Olson as follows, "I just called the tow truck to grab the truck so we'll see you there, you fat fuck. And I have to say, I hope you act like an idiot because I'm ready to put you right on your ass, tough guy." [ 21 ] About four minutes later, Mr.

Dehard sends another text stating, "Not so tough without your toy lol, yore a fucking pussy coward goof, oh wow, the world is going to see how deep your bullshit runs. Everyone always laughed at me about how much you talked a big game and now I see why, you wimpy fat fuck, you better hope you're packing when I see you next cause I'm going to fuck your shit right up you pussy." [ 22 ] Mr. Dehard explained in court that "your toy" was a reference to Mr. Olson's gun. Mr. Dehard testified that his texts were dumb and they agitated the situation. [ 23 ] Mr. Dehard then saw Mr.

Olson and the two women drive up heading towards Mr. Olson's residence. Mr. Dehard decided to follow Mr. Olson back to his residence on Miles Road. Mr. Dehard admitted he was angry and wanted to make sure his Ford F150 was safe. [ 24 ] Mr. Dehard parked his car near the corner of Shook Road and Miles Road, about 30 metres from Mr. Olson's residence. He did not want to park closer because he did not want a fistfight. Mr. Dehard says he could see Mr. Olson's driveway, porch and house from where he was situated and the bushes did not impede his view. [ 25 ] Mr. Dehard saw Mr.

Olson exit a vehicle and walk up to the driveway to the porch and into his house. Car headlights illuminated the porch and Mr. Dehard assumed there to be a streetlight on the corner. Mr. Dehard never exited his vehicle, but his driver window was down. Heated words were exchanged. Mr. Dehard called Mr. Olson a "fat piece of shit" and said he was waiting for a tow truck. Mr. Olson told Mr. Dehard to "get out of there" and to "fuck off". [ 26 ] According to Mr. Dehard, Mr. Olson then came onto his front porch and lifted his arm. Mr. Dehard did not see anything in Mr. Olson's hand. Mr.

Dehard then heard a loud bang, followed by a ting sound at his rear passenger door on the driver's side. At first, Mr. Dehard did say he thought the bullet landed several inches from his head. Mr. Dehard was very upset, and he initially believed Mr. Olson shot a pellet gun at him. [ 27 ] Within seconds, Mr. Dehard drove away towards an RV park called Everglade Resort. The parking lot there was well-lit and he wanted to see what hit his car. Mr. Dehard located a hole the size of his pinkie finger on the rear passenger door on the driver's side. Photographs show the hole to be a few inches from the door handle. Mr.

Dehard then realized he had been shot at with a real gun, not a pellet gun. [ 28 ] Mr. Dehard called 9-1-1 and he was upset. He drove to his parents' home a few kilometres away on Shore Road. When he got there he had a stiff drink of vodka to calm his nerves. He estimated he "chugged" two ounces of vodka. [ 29 ] After the 9-1-1 call Mr. Dehard sent Mr. Olson a series of texts between 1:46 and 1:51 a.m. about the shooting. These are prior or post consistent statements of no probative value, but their timestamps may be significant. [ 30 ] Mr.

Olson responded by text stating, "I don't know what ur talking about, u juiced out loser". Mr. Dehard says he had not used steroids for a number of years. Mr. Olson later texted, "Fucking RAT," and Mr. Dehard responded by text. [ 31 ] Mr. Dehard provided the police with a statement in the driveway of his parents' home. The door with the apparent bullet hole had not been opened until the police arrived. [ 32 ] In cross-examination Mr. Dehard indicated he was aware Mr. Olson had been in a "horrific" motor-vehicle accident in 2004 but was not aware of all of Mr. Olson's injuries. Overall, Mr.

Dehard did concede that he perpetuated the aggression with Mr. Olson that evening. He also agreed that the gunshot was towards him, but he did not believe Mr. Olson would try to kill him or hurt him. Linda Ahman [ 33 ] Ms. Ahman is a neighbour of Mr. Olson and she lives to the west of his residence. She cannot see Mr. Olson's residence clearly from her residence because the land parcels are large and there are trees. [ 34 ] On the evening of January 2 into January 3 of 2016 she was home. Around 1:00 to 1:30 a.m. she heard a bang. She assumed it was a bear banger. Within 20 to 30 minutes or even less, Ms.

Ahman went into a great room and heard another bang. Later she heard voices and someone say, "Bryan, come out, nothing bad will happen." [ 35 ] After hearing the second bang, Ms. Ahman assumed the sound came from a gun and not a bear banger. Cst. Talvio [ 36 ] Cst. Talvio is with the Mission RCMP and on January 3rd, 2016 he was dispatched around 2:00 a.m. to Mr. Dehard's location

on Shore Road where his parents resided. Mr. Dehard appeared shaken up but he did not seem intoxicated. [ 37 ] Cst. Talvio observed what appeared to be a bullet hole on the driver's side rear door of Mr. Dehard's vehicle. Cst. Talvio opened the rear door with the hole, and on the ground next to the tire was a bullet. The rear door and the bullet were photographed and the bullet was marked Exhibit 10 in this trial. Cst. Katan [ 38 ] Cst. Katan is with the Mission RCMP and he also was dispatched to Mr. Dehard's location on Shore Road around 2:00 a.m. Cst. Katan met Mr.

Dehard, who appeared frazzled but not intoxicated. He did smell alcohol on Mr. Dehard. Cst. Katan also saw what appeared to be a bullet hole on the driver's side rear door of Mr. Dehard's car. [ 39 ] Either Cst. Katan or Cst. Talvio opened the rear door and Cst. Katan heard a ting and saw a spent round on the ground. He assumed the ting sound was from the spent round falling down the door well onto the ground. [ 40 ] Cst. Katan took a statement from Mr. Dehard. He also arranged for Mr. Dehard's vehicle to be towed to the Mission RCMP detachment for further analysis. Cst. Young [ 41 ] Cst.

Young was a member of the Mission RCMP dispatched to the Miles Road residence to relieve night officers on the scene. A search warrant was being executed on the premises the day of January 3rd, 2016. At 8:40 a.m. Cst. Young located a shell casing several feet in front of Mr. Olson's porch. The casing appeared to be a 9 mm or 40-calibre from a handgun. Cst. Young believed the casing had been fired from a gun recently because, unlike many other objects in the front yard, there was no frost on the casing. Cst.

Young did not touch the casing, but marked its location with an orange cone. [ 42 ] At about 1:00 p.m. the same day Cst. Young was involved in the arrest of Mr. Olson. A cab had started up Miles Road and was attempting to reverse when Csts. Young and Weisbeck told the cab driver to stop. Based on a booking photograph, Mr. Olson was identified in the rear seat of the cab. At that time Mr. Olson was arrested for attempted murder. Cst. Young placed Mr. Olson in handcuffs, and Cpl. Pauls read Mr. Olson his Charter rights. [ 43 ] In cross-examination, Cst.

Young said he did not come across any fireworks or firecrackers on the Miles Road property. He said he did not draw his sidearm when arresting Mr. Olson but he may have had his hand on the firearm so it was "at the ready". Cst. Young said that from the porch he could not see through the blackberries onto the street. Cpl. Matthews [ 44 ] Cpl. Matthews is a member of the RCMP assigned to the Forensic Identification Section. His role is to document the crime scene as found and to collect physical evidence. If there is a suspected shooting, he will collect and identify gunshot residue.

He has considerable experience with firearms. [ 45 ] Cpl. Matthews arrived at Mr. Olson's property on Miles Road around 10:30 a.m. on January 3, 2016. He took over 200 photographs marked as Exhibit 11 in this trial. These photographs include the search warrant, the Miles Road property and surrounding area and specific pieces of evidence. He photographed and seized the expended cartridge casing located by Cst. Young in the front yard. The casing was imprinted with the words "Federal 380 Auto". The 380 refers to the calibre of the bullet. [ 46 ] An intact cartridge consists of a primer, gunpowder and the bullet.

When a trigger is pulled on a loaded firearm, the firing device strikes the primer, ignites the powder and gasses propel the bullet out of the cartridge through the barrel of the gun. [ 47 ] Cpl. Matthews located a number of items in a camper located about 100 metres from the main residence. These items included a non-operational black rifle, a samurai sword, and unexpended and expended cartridge casings. An unfired Federal 380 Auto bullet was located in the second drawer of a dresser in the camper.

In the bottom drawer of the same dresser was a box labelled American Eagle 380 Auto 95 GR (grain) FMJ (full metal jacket). The box contained 36 cartridges with 14 missing. The head stamp on the cartridges was the same as the casing found in the front yard. The trailer had documentation in the name of Clifford Hannah Menning. [ 48 ] Inside the main residence, Cpl. Matthews located a Promise to Appear document directed to Mr. Olson.

Additional items seized included four pellet guns, a wireless security camera, a black body armour vest, a starter revolver, a black ballistic resistant jacket and some samurai swords. [ 49 ] An expended Federal 380 Auto casing was also found on the front porch in a Tim Hortons soup bowl with the same head stamp as noted previously. Cpl. Matthews also provided a diagram which indicated a distance of 45 metres from the corner of Shook Road and Miles Road to the casing found in the front yard. [ 50 ] In cross-examination he admitted that he was not aware of the precise location of Mr.

Dehard's vehicle when it was allegedly shot upon. [ 51 ] When Mr. Olson was arrested around 1:00 p.m. on January 3, 2016, Cpl. Matthews discussed with Cst. Sidhu the need to take samples from the suspect, Mr. Olson, to check for gunshot residue. Samples were taken from Mr. Olson's two hands and two sides of his face, using a gunshot residue kit. [ 52 ] Cpl. Matthews explained in some detail how he proceeded to take samples from Mr. Olson who was then outside the police SUV. He used a GSR or gunshot residue kit that came fully sealed, and he used gloves. [ 53 ] Cst. Young did adjust Mr. Olson's handcuffs, but Cpl.

Matthews did not believe Cst. Young touched the accused's hands.

[ 54 ] Cpl. Matthews also examined and photographed Mr. Dehard's vehicle. The hole in the rear passenger door on the driver's side was consistent with a bullet hole. Photograph 170 of Exhibit 11 is a close-up of the hole above the door handle on the driver's side rear door. It has a pinch point from first contact and then the hole elongates upwards from the pinch point. There was also a hole in the interior of the door where the bullet exited. Cpl. Matthews double tested the immediate area around the hole for lead and copper and he found those substances present.

Lead and copper are components of bullets. [ 55 ] Cpl. Matthews also measured the trajectory of the bullet after it hit the vehicle and he took a mould of the hole. He also examined the bullet found by Cst. Talvio on January 3, 2016 on the ground near the rear passenger door. The bent bullet was consistent with a bullet having gone through objects. Cst. Sametz [ 56 ] Cst. Sametz was with the Mission RCMP, and she was the crime scene manager responsible for documenting and seizing the exhibits on January 3, 2016. She had reviewed the search warrant and she was searching the Miles Road property with Cpl. Matthews.

She was the officer who first noticed the spent bullet casing in the Tim Hortons soup bowl. No handguns were located in the main residence, only the pellet gun. [ 57 ] She gave some further evidence about what was done with the gunshot residue test results and other pieces of evidence. Nigel Hearns [ 58 ] Mr. Hearns was qualified as an expert in the forensic examination, analysis and identification of gunshot residue. He was requested to examine the four gunshot residue sampling stubs containing samples from Mr. Olson's face and hands. Mr.

Hearns' lab actually provides quality assurance for the gunshot residue kits prepared by a local manufacturer. [ 59 ] He explained that gunshot residue is the chemical residue produced by a firearm after the ammunition in the cartridge is fired. Gunshot residue is a microscopic dust consisting of lead, barium and antimony. It can vent like a plume from different places, such as the muzzle or action of a gun. Gunshot residue is a dust and is not sticky. It is shed rapidly; however, such residue can be found on a shooter as long as 12 hours after a gun is fired.

Usually gunshot residue is shed within four to six hours. [ 60 ] A person can be indirectly exposed to gunshot residue without being nearby the shooter. A police officer could be a source of gunshot residue if he handled a firearm prior to arresting a suspect. A pellet gun cannot be a source of gunshot residue unless it has a primer. [ 61 ] Mr. Hearns also explained the quality control that occurs in the lab where the gunshot residue samples are analyzed. A scanning electronic microscope, coupled with an x-ray detector is used to analyze the sample.

Any report is reviewed by a second forensic specialist. [ 62 ] Mr. Hearns' report concludes that gunshot residue was found on the hands but not the face of Mr. Olson. Therefore, Mr. Olson fired a firearm or was in proximity to a firearm being discharged or was in contact with another source of gunshot residue. [ 63 ] It should be noted that Mr. Olson was alleged to have discharged a firearm around 1:30 a.m. on January 3, 2016 and the samples were not taken until 1:15 p.m. Cst. Sidhu [ 64 ] Cst. Sidhu was with the Mission RCMP and she became the lead investigator on this file on January 3, 2016.

She conducted a further interview of Mr. Dehard. She described Mr. Dehard as being very shook-up and in disbelief. She reviewed a Google map of the Miles Road area with Mr. Dehard, and this map has been marked Exhibit 20. [ 65 ] Cst. Sidhu later attended the scene of the alleged crime on Miles Road and she was involved with the arrest of Mr. Olson at 1:05 p.m. on January 3, 2016. She saw Cpl. Pauls approach the cab and arrest Mr. Olson, who was in the backseat. Cst. Sidhu followed Cpl. Pauls and her sidearm was drawn. She did not touch Mr. Olson. She could not recall if Cpl. Pauls had his sidearm drawn.

A cell phone in the back of the cab was seized for data extraction. She then discussed with Cpl. Matthews the need to take samples from Mr. Olson to test for gunshot residue. [ 66 ] Cst. Sidhu carried out further aspects of the investigation, including a custodial warned interview of Mr. Olson. She also met with Cassandra Frederstaff, Mr. Olson's girlfriend, and Alexa Olson. Ms. Frederstaff had no recollection of the key events and Ms. Olson provided inconsistent statements. No video evidence was able to be recovered from the Miles Road residence. Sgt. Pauls [ 67 ] Sgt.

Pauls, then a member of the Mission RCMP, attended the Miles Road residence at 12:25 on January 3, 2016. His purpose was to get a picture of the crime scene and to see the type of evidence collected. At 1:05 p.m. Sgt. Pauls saw a yellow cab pull up, and as it was turning onto Miles Road, it stopped. He saw Sgt. Weisbeck walk up to the cab, and Sgt. Pauls believed Mr. Olson was in the back of the cab. [ 68 ] The arrest occurred with two uniformed officers. Sgt. Pauls did not have his sidearm out and the two uniformed arresting officers were Cst. Young and Sgt. Weisbeck. Cst. Young was handcuffing Mr.

Olson and Sgt. Weisbeck likely had a long gun. [ 69 ] Sgt. Pauls approached the cab and advised Mr. Olson of the reason for the arrest. Cst. Young searched Mr. Olson. Sgt. Pauls did not touch Mr. Olson's hands. Sgt. Pauls gave Mr. Olson a Charter warning. Later, Cpl. Matthews took samples from Mr. Olson to check for gunshot residue. According to Sgt. Pauls, no one other than Cst. Young ever touched Mr. Olson's hands.

[ 70 ] Mr. Olson was transferred from the scene. Mr. Olson had a grey plastic Walmart bag in the backseat of the cab and in that bag were the following items: a Mission Springs receipt, a small scale, a powder substance, small plastic bags and a metal skull for holding liquor.

The Mission Springs receipt is dated January 3, 2016 at 01:17 a.m. and lists the following purchases: "six Grey Goose Vodka SS", i.e., Spring-size or doubles; "four cranberry juice (mix)"; "six 151 rum" i.e., six single shots of Bacardi rum; "Thai chicken SS" i.e., Spring-size or double; "one Grey Goose Vodka SS" i.e., Spring-size or double; and "one pineapple juice (mix)". ADMISSIONS [ 71 ] In addition to the above witnesses, certain facts were agreed upon pursuant to s. 655 of the Criminal Code . Many of these admissions related to scene security at 8765 Miles Road.

As well, it was admitted that the fired bullet found near Mr. Dehard's vehicle was a 380/9 mm calibre with a weight of 95 grams consistent with having been originally loaded in a 380 automatic or 9 mm Luger calibre cartridge. The forensic report concludes that the two expended cartridge cases found on the Miles Road property were fired in the same firearm. These expended cartridge casings and the fired bullet considered together were probably fired from a 380 automatic calibre semi-automatic pistol. 1) First, has the Crown proven beyond a reasonable doubt that Mr.

Olson did discharge a firearm in the direction of Mr. Dehard and his vehicle? [ 72 ] I am engaging in this fact-finding mission first because it is essential whether or not I find Mr. Dehard's version of events to be true. If I find that the shooting did occur as set out in Mr. Dehard's testimony, only then am I required to analyze the issue of self- defence and whether or not the Crown has proven all of the elements contained in Counts 2 to 6. I will be acquitting Mr.

Olson of Count 1, as explained later in these Reasons. [ 73 ] I am satisfied that the Crown has proven beyond a reasonable doubt that on January 3, 2016 Mr. Olson did discharge a firearm from his porch in the direction of Mr. Dehard and his vehicle. [ 74 ] To begin with, I found Mr. Dehard to be both a credible and reliable witness as to the events which occurred. Although there is a significant amount of real evidence, the Crown's case largely rests on the testimony of Mr. Dehard. His testimony in both direct and cross was consistent and forthright.

In cross-examination he was not evasive and he made reasonable concessions. For example, Mr. Dehard agreed he played a role in perpetrating the aggression shown by both men that evening. He also agreed it was (in hindsight) a poor choice to follow Mr. Olson back to his residence. That being said, Mr. Dehard wanted to ensure his truck was safe and he did say he parked down on Shook Road to avoid a confrontation. [ 75 ] Mr. Dehard's evidence was detailed. He explained how Mr. Olson had possessed a black handgun referred to as a 38 in the past.

He also clearly testified about all the events on January 2 and 3, 2016 which led up to the shooting on Miles Road. He was precise as to when and what occurred at the Mission Inn Motel. He also provided many specific details when describing the shooting at Miles Road, and most importantly, this direct evidence is corroborated by many pieces of real evidence, as described later. [ 76 ] I find that Mr. Dehard did not embellish his evidence. For instance, he conceded that he did not see a gun in Mr. Olson's hand when he heard the loud bang.

Furthermore, he initially assumed he was shot by a pellet gun and not a real gun. [ 77 ] I further find that Mr. Dehard was not intoxicated when these unfortunate events occurred. Mr. Dehard admitted he had one Grey Goose double vodka at the Mission Springs and, after the shooting, he chugged some vodka at his parents' home. The Mission Springs receipt partly substantiates his account, but the testimony of Csts. Talvio and Katan is most important. They interviewed Mr. Dehard just after 2:00 a.m. and they found Mr. Dehard to be shaken but not intoxicated. I also listened again to Mr.

Dehard's voice on the video he took of his truck, and his voice is heightened but he does not sound in any way intoxicated or incoherent. [ 78 ] There were some minor inconsistencies in Mr. Dehard's testimony but they were not significant. At one point he said the sound of the bullet was several inches from his head, whereas he later said the sound was several feet behind him. His inconsistency there is not material. What is material is the bullet hole actually located in the rear passenger door on the driver's side. [ 79 ] Mr.

Dehard did erroneously assume there was a streetlight on the corner of Shook and Miles Road, but he said he was not 100 percent sure. It was clear that there were car lights and a porch light on the Olson property. [ 80 ] The defence suggests that Mr. Dehard was agitated at the Mission Motor Inn incident and he would not leave the Ford F150 dispute alone. While that may be true, I do not find Mr. Dehard to be confrontational until after Mr. Olson picked up a six-inch rock. He initially returned to pick up Mr. Olson because he was concerned about Mr. Olson being out in the cold. [ 81 ] Much was made of Mr.

Dehard's sight line from his parked car at the corner of Shook Road and Miles Road to Mr. Olson's porch. Cst. Young had stated that from the porch he could not see through the blackberry bushes onto the street. Cst. Young's evidence is not conclusive as he did not know exactly where Mr. Dehard was parked. While it is true that Mr. Dehard's car was off on an angle from Mr. Olson's porch, Mr. Dehard was clear that he could see the porch. This accords with common sense, because Mr. Dehard wanted to park where he could still keep an eye on his truck in the front yard.

His purported sight line is consistent with some of the diagrams and photographs such as photograph 3 of Exhibit 11. Moreover, I accept that from where Mr. Dehard was parked, a bullet did

strike his rear door. Logically, his sight line was similar to the path taken by the bullet. [ 82 ] I return to my conclusion that Mr. Dehard's account of the shooting is corroborated by pieces of real evidence. Those pieces of real evidence are as follows: 1) A bullet hole is located in the rear passenger door above the door handle. I accept that the hole begins with a pinch point and then becomes elongated. Mr. Dehard said this hole did not exist prior to the incident. Cpl.

Matthews also indicated that the immediate area around the bullet hole tested positive for lead and copper, the components of a bullet. 2) Csts. Talvio and Katan locate the bullet itself which had fallen on the ground after the rear car door was opened. The bullet is marked Exhibit 10 and it is damaged from entering an object like the door. According to the forensic report at Exhibit 2, the fired bullet is consistent with having been originally loaded in a 380 automatic or 9 mm Luger calibre cartridge. 3) Expended bullet casings are found near the area where Mr. Olson was standing on January 3, 2016.

One expended casing is found in a soup bowl on the porch and another is found in front of the porch. The expended casing in front of the porch appeared to be freshly fired as it had no frost on it. The forensic report at Exhibit 2 indicates that both these expended cartridge casings were fired from the same firearm and they, together with the bullet, were probably fired from a 380 automatic calibre semiautomatic pistol. In short, although there is no "smoking gun" in this case, there is a bullet from Mr. Dehard's car which, combined with the expended casings, corroborate Mr.

Dehard's account. 4) Live ammunition including a box of American Eagle 380 Auto 95 FMJ cartridges was found in a camper near Mr. Olson's house. This ammunition is consistent with the expended casings found at the front of the property and with the bullet. I have no doubt Mr. Olson occupied the main residence, based on Mr. Dehard's evidence and the Promise to Appear found there. Documents in the name of another individual were in the camper, but those documents were quite old. I also take into account that Mr.

Olson had previously been seen with a .38 black handgun. 5) The neighbour heard a loud bang at 1:00 to 1:30 a.m., the time when Mr. Dehard said the shooting occurred. [ 83 ] The gunshot residue evidence is consistent with the Crown's case but it has some frailties. I accept that Cpl. Matthews collected the samples from Mr. Olson in an appropriate manner, and I found Mr. Hearns' testimony persuasive. Mr. Olson's hands did test positive for gunshot residue. However, there is a risk that Cst. Young could have contaminated Mr. Olson because he may have touched his sidearm before handcuffing Mr. Olson.

As well, the sampling was done 12 hours after the shooting incident, beyond the four to six hours when gunshot residue is usually shed from the body. [ 84 ] Again, I conclude that the gunshot residue evidence is consistent with the Crown's case, but it has some frailties. However, this gunshot residue evidence is not crucial to the Crown's case. I do not need to rely upon it to conclude beyond a reasonable doubt that Mr. Olson shot at Mr. Dehard in his vehicle. The key evidence comes from Mr.

Dehard and the real evidence described in the five points above. 2) Secondly, is there an air of reality to self-defence or a defence of property, and if so has the Crown disproven these defences beyond a reasonable doubt? Sections 34 and 35 of the Criminal Code read as follows: Section 34(1): 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.

(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. [85] I will not read in the next subsection for the purposes of this judgment. Section 35(1): 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. [86] Again, for the purposes of my judgment I will not read the other subsection. [87] In essence, s. 34 sets out three elements for self-defence: a belief on reasonable grounds that force or threat of force is beingused against the accused or another person;

an act to defend or protect the accused or another person from the use or threat of force; andthat the act committed is reasonable in the circumstances. [88]

Section 35 essentially sets out four elements for defence of property: a belief on reasonable grounds that the accused is inpeaceable possession of property (or lawfully assisting another whom they reasonably believe is in peaceable possession of property); abelief on reasonable grounds that another person is about to enter, take or damage the property;

an act to prevent the entering, taking ordamaging of the property; and that the act committed is reasonable in the circumstances. [89] If there is an air of reality to the defence under either s. 34 or s. 35, the Crown must disprove the defence beyond a reasonabledoubt. However, the air of reality standard applies to each element of the defence as outlined in R. v. Gill 2016 B.C.J. No. 510. [90] Even if there is an air of reality to the defence, the defence can only succeed if the court is left with a reasonable doubtregarding the existence of all the elements of the defence. See R. v.

Williams 2013 BCSC 1774 , 2013 B.C.J. No. 2133 atparagraph 66; or R. v. Cormier 2017 N.B.J. No. 61. [91] The reasonableness of the act that constitutes the offence (the shooting in this case) is to be assessed on an objective standard. (R. v. Reis 2017 O.J. 184) [92] I also note that the accused is not required to adduce evidence to establish a defence and he can rely upon the Crown's evidenceto establish an air of reality. In assessing the threshold question about air of reality, the court must take a view of the evidence mostfavourable to the accused. See again R. v.

Reis, paragraph 71. [93] Based on this analysis, I conclude that there is an air of reality to the first two elements of self-defence set out in subsections34(1)(

a) and (b). Under s. 34(1)(

a) no force was used against Mr. Olson but some threat of force could be construed from the textmessages sent from Mr. Dehard. Mr.

Dehard does text comments such as, "I'm ready to put you right on your ass, tough guy," and, "Youbetter hope you're packing when I see you next cause I'm going to fuck your shit right up." [94] I also put these texts in the context of the earlier confrontation near the Mission Inn Motel and the later events on Miles Roadleading up to the shooting. [95] Under s. 34(1)(b), viewing the evidence in a way most favourable to the accused, I can say that the shooting was committed forthe purpose of Mr.

Olson defending himself. [96] However, I agree with the Crown that there is no air of reality to the element under s. 34(1)(

c) that the shooting was objectivelyreasonable. Even if I take the most favourable view of the evidence, the shooting cannot be said to be reasonable, taking into account thefollowing factors under s. 34(2): [97] (

a) the nature of the force or threat. As I stated earlier, Mr. Dehard never applied force to Mr. Olson, and I am of the view heshowed great restraint when Mr. Olson picked up a rock in a threatening manner earlier in the evening. [98] The possible threats come from the text messages combined with Mr. Dehard's conduct. I consider the threats to be contingentand somewhat ambiguous. I also note that Mr. Dehard is simply sitting in his car at the time of the shooting. More importantly, there is

no evidence upon which I can conclude that Mr. Olson reasonably believed Mr. Dehard had any sort of weapon. Therefore, Mr. Olson'sresort to a firearm was objectively unreasonable. [99] (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potentialuse of force. Objectively viewed, the threat of use of force here was in no way imminent. Mr. Olson walked up his driveway to hisresidence. No evidence was presented that he was afraid. Mr. Olson had just heard Mr. Dehard say he was waiting for a tow truck. Mr.Dehard called Mr. Olson a "fat piece of shit" but made no oral threats. Again, Mr. Dehard remained in his vehicle at all times. He wasat least 30 metres away from Mr. Olson. Mr. Dehard made no attempt to approach or enter Mr.

Olson's property. I also find that Mr.Olson had other means to respond to any perceived threat. He had plenty of time to call the police if he wanted to. [100] (

c) Mr. Olson's role in the incident. Both men appeared to enjoy each other's company earlier in the evening. However, oncethey left Mission Springs, they each were aggressive and insulting to the other. From my review of all the evidence, there is nothing tosuggest Mr. Olson was ever afraid of Mr. Dehard. Mr. Dehard said in his testimony that he could not easily defeat Mr. Olson in a fightand Mr. Olson weighed more than he did. If anything, Mr. Olson displayed greater aggression than Mr. Dehard by holding up a rock atone point that evening. [101] (

d) whether any party to the incident used or threatened to use a weapon. There is no evidence that Mr. Dehard ever used orthreatened to use a weapon. It was Mr. Olson who used weapons, first a rock and later a gun. [102] (

e) The size, age, gender and physical capabilities of the parties to the incident. As stated above, Mr. Olson outweighed Mr.Dehard but Mr. Dehard appeared more physically fit. In my review of the evidence, I would not objectively consider either man to havegreat advantage over the other. [103] (

f) and (f.1) the nature, duration and history of any relationship between the parties to the incident, including any prior use orthreat of force and the nature of that force or threat; and history of communications between the parties. As I stated in the introduction,these two men were once the best of friends. The Ford F150 was a sore point, but even on January 2, 2016 the two men began theevening socializing at a pub. A confrontation first occurred near the Mission Motor Inn, but it was Mr. Olson who picked up a six-inchrock. Only then did Mr.

Dehard talk of fighting and even then he left the scene without there being any violence. Mr. Dehard may havemade things worse by going to Mr. Olson's property, but he wanted to document the state of his Ford F150 truck which was then likelyuninsured. [104] (

g) the nature and proportionality of the person’s response to the use or threat of force. Proportionality is a key factor indetermining whether Mr. Olson's actions were reasonable in the circumstances. As cited in R. v. Williams 2013 BCSC 1774 ,2013 B.C.J.

No. 2133 at paragraph 67: . . . the trial judge is to consider whether, from the perspective of a reasonable person in the circumstances of the accused, there is an airof reality to an accused's claim that the force used was objectively no more than necessary given the nature and quality of both the threatand the responsive force. [105] In my view, the shooting was completely out of proportion to the nature of any threat in this case. At the point of the shooting,Mr.

Dehard is sitting in his vehicle over 30 metres away. [106] Based on my comments above, I conclude there is no air of reality that the shooting here was objectively reasonable in thecircumstances, and accordingly there is no air of reality to self-defence under s. 34. [107] As to the defence of property, if I take a view of the evidence that is most favourable to the accused, I conclude there is an air ofreality on the first three elements of the defence under subsections 35(1)(a), (

b) and (c). Mr. Olson undoubtedly believed on reasonablegrounds that he was in peaceful possession of his property and even the Ford F150 truck. He was not the registered owner of the truck,but he had possession of it under a verbal agreement. [108] Under s. 35(1)(

b) Mr. Olson had reasonable grounds to believe that Mr. Dehard may enter his property to tow away the FordF150. As well, there is some air of reality to him shooting at Mr. Dehard to prevent Mr. Dehard from entering the property or taking thetruck. [109] However, I conclude that there is no air of reality that Mr. Olson shooting at Mr. Dehard was a reasonable defence of property inthe circumstances as set out in s. 35(1)(d).

I base that conclusion on the same factors I discussed above concerning s. 34(1)(c). [110] Furthermore, I accept the Crown's general proposition that the exercise of potentially deadly force is not reasonable to prevent acrime directed only against property. This is really an extension of the reasoning in R. v. Cormier 2017 NBCA 10 , 2017 N.B.J.No. 81 at paragraph 48 and following. [111] In

summary, the defence of person under s. 34 and the defence of property under s. 35 do not apply because there is no air ofreality to the reasonableness element. 3) Thirdly, has the Crown proven each and every element of the charges under Counts 2 to 6? [112] I am acquitting Mr. Olson of Count 1, the uttering threats charge. The Crown concedes that Mr. Dehard could not recountprecise words uttered when Mr. Olson picked up the large rock near the Mission Motor Inn.

As well, there was a trading of insultsbetween the men at that point in the evening. [113] I am satisfied beyond a reasonable doubt that the Crown has proven Count 2, which charges that Mr. Olson had in his possessiona firearm for a purpose dangerous to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the CriminalCode. Based on my earlier analysis, I have already found that Mr. Olson was in possession of some form of firearm, likely a 38-calibresemiautomatic pistol, and he used that firearm to fire a bullet at Mr. Dehard's vehicle while Mr. Dehard sat in the driver's seat. The

firearm was never found but the bullet found in Mr. Dehard's rear door and the expended casings on Mr. Olson's property were all likelyfired from the same pistol. Mr. Dehard had previously seen Mr. Olson with a black .38 handgun. [114] In any event, I am satisfied beyond a reasonable doubt that Mr. Olson held the firearm, he fired it at Mr. Dehard's vehicle andthe bullet in the rear door came from that firearm. Clearly, Mr.

Olson's use of the firearm was dangerous to the public peace, and I inferthat he intentionally discharged the firearm and foresaw that the discharge of the firearm would be dangerous to the public peace. [115] Likewise, I am satisfied beyond a reasonable doubt that the Crown has proven Count 3, which charges that Mr. Olson used afirearm in a careless manner or without precautions for the safety of other persons, contrary to s. 86(1) of the Criminal Code. Clearly,firing a gun towards an occupied vehicle is careless at the very least. Again, I infer that Mr.

Olson intentionally used the firearm andwas careless or acted without reasonable precautions. [116] Counts 2 and 3 are quite similar offences so I propose to enter only one conviction using the Kienapple principle. Subject tosubmissions, I propose to enter a conviction on Count 2. [117] I am also satisfied beyond a reasonable doubt that the Crown has proven Counts 4, 5 and 6. Count 4 charges Mr. Olson withdischarging a firearm with intent to wound, maim or disfigure Mr. Dehard contrary to s. 244(1) of the Criminal Code. This crimerequires proof of specific intent to wound, maim or disfigure Mr. Dehard.

The mens rea here cannot be established by recklessness. Iappreciate that Mr. Dehard could not believe that his friend Mr. Olson would actually intend to harm him. However, individualsgenerally intend the natural and probable consequence of their actions. See R. v. Gill 2016 B.C.J. No. 510 at paragraph 226. Specificintent can be and is inferred in this case. As stated in R. v. Blackwell 2007 BCSC 1240 , 2007 B.C.J. No. 1826 at paragraph172: It is logical to infer that an individual who shoots at another intends to endanger that person’s life. [118] Count 5 charges that Mr.

Olson did intentionally discharge a firearm into or at a place, a motor vehicle, knowing or beingreckless as to whether another person is present in the place, contrary to s. 244.2(1)(

a) of the Criminal Code. Here mens rea can beestablished by recklessness. I am satisfied beyond a reasonable doubt that Mr. Olson shot at and struck Mr. Dehard's vehicle and that heknew Mr. Dehard was in the vehicle. Mr. Olson was at the very least reckless when he fired the gun, and in fact I have already foundthat he intended to endanger Mr. Dehard's life. [119] Count 6 charges that Mr. Olson intentionally discharged a firearm while being reckless as to the life or safety of another person,i.e., Mr. Dehard, contrary to s. 244.2(1)(

b) of the Criminal Code. My analysis for Count 5 applies here, but I acknowledge that theKienapple principle again applies. Counts 4, 5 and 6 are similar and I invite submissions as to entering the conviction for only one ofthose three charges. (SUBMISSIONS BY COUNSEL) [120] Having heard submissions from Crown and defence on the Kienapple principle, I do agree that really Counts 3, 5 and 6 can besubsumed within Count 4.

When I look at Count 2, it does very much appear to have distinctiveness to it from the other counts in thesense that it speaks about possessing a weapon for a purpose dangerous to the public peace. I accept that you could commit a s. 88offence as worded in Count 2 without committing a s. 244 offence in Count 4. [121] All that is to say that, Mr. Olson, I am going to register convictions on Count 2 and Count 4. At this time there will beconditional stays for Counts 3, 5 and 6. There is an acquittal on Count 1. G.J. BROWN Provincial Court Judge