R. v. Ball, 2013 BCSC 2371

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ball, 2013 BCSC 2371 Date: 20130802 Docket: 38126-2 Registry: Courtenay Regina v. Andrew Tavis Ball Before: The Honourable Mr. Justice B. MacKenzie Oral Reasons for Judgment Counsel for the Crown: R. Richardson Counsel for the Accused: E. Chesterley Place and Date of Trial/Hearing: Courtenay, B.C. July 24-26, 2013; and August 1-2, 2013 Place and Date of Judgment: Courtenay, B.C. August 2, 2013 [ 1 ] THE COURT: Mr.

Ball is charged on this indictment with five counts originating from the fact that he was found in possession of a loaded restricted firearm on the day in question. At the same time, located on his person was a quantity of cocaine which forms the subject matter of Count 6, and then on Count 7, possessing firearms whilst prohibited from doing so, pursuant to s. 117.01(1) of the Code . [ 2 ] At the outset of the trial, a voir dire was declared in order to deal with applications by the defence with respect to potential or alleged Charter violations as a result of the police arrest of Mr. Ball.

I went through the details of his arrest in some detail in my judgment on the voir dire and that can be read in conjunction with this decision vis-à-vis the facts that led up to Mr. Ball's arrest. [ 3 ] But having said that, briefly, on the night in question at about 8:00 - 8:30 p.m., police received a 9-1-1 call from a person who had just been speaking with Mr. Ball, wherein Mr. Ball advised the person on the other end of the line that he was discharging a firearm in the outskirts of Courtenay. As a result of that 9-1-1 call and other information, Mr.

Ball was arrested in the parking lot of a local drinking establishment / liquor store, pursuant to what the police term a Code 5 or high-risk takedown. [ 4 ] As I stated, at that time Mr. Ball had on his possession a .38 Special Smith & Wesson handgun in a holster strapped across his chest and buckled to his belt, along with the 11 small bags of cocaine and a small retractable baton. Mr.

Ball was cooperative with the police, in the sense that he complied with their demands and instructions. [ 5 ] It is in these circumstances that the defence submits that the new provisions of s. 34 dealing with self-defence, which came into force March 11th of this year, are applicable to these circumstances and provides a defence to Mr. Ball on the basis that he was entitled or justified to have in his possession the loaded .38 handgun while operating his motor vehicle, because of his belief that there were threats to his safety or threats of harm to his mother or perhaps his son.

As a result, the defence submits that Mr. Ball should be acquitted on all of the five charges relating to possession of the loaded handgun. [ 6 ] In advancing this submission, Mr. Ball testified that these threats to his safety or that of his mother first came to light to him in the late fall or early part of December 2012. At that time, Mr. Ball, who has acknowledged in the witness box of at least past involvement in the drug trade in this area, testified that he learned the son of a friend of his had been wounded by a gunshot when that young man answered the door of his father's residence. Mr.

Ball testified that the police apparently suggested to him and others their belief as to who might have been involved in this incident, but no arrests or charges apparently have been forthcoming. [ 7 ] Mr. Ball testified that in December he heard that three other persons in the local community that he was acquainted with, whether or not from past criminal activity or not, but at least one of whom was, according to Mr. Ball, actively involved in the trafficking of narcotics, were going to "bear spray" him. Mr. Ball testified he had words with this person, a Mr. Nguyen, who advised Mr. Ball that Mr.

Ball would be lucky if he did not get hurt and that Mr. Ball was in "hot water". [ 8 ] Mr. Ball testified that his response to Mr. Nguyen was, "Let's settle it now and just forget it." Mr. Ball testified he told Mr. Nguyen that, "If you have an issue, let's do it right now and get it over with." [ 9 ] Mr. Ball testified that Mr. Nguyen, because he was on bail for narcotic offences, said he did not want any trouble. That apparently was the end of their disagreement.

[ 10 ] However, a short time later on the 20th or 21st of December, Mr. Ball testified that two members of the local RCMP Major Crime Unit advised him they had heard rumours that Mr. Ball was back in the drug business and that he might be "in danger". Mr. Ball testified that he advised the police that he was not involved at that time in illegal activities pertaining to the drug trade, and testified that the police gave him no further details about what kind of danger he might be in or from whom these threats were coming from. Mr.

Ball testified that he took the warning "seriously", but was "not exactly sure to what extent". [ 11 ] Mr. Ball testified he told his mother, with whom he was residing since returning in August 2012 from working in the Yukon, not to answer the door and that it would be best "just to be cautious." [ 12 ] Mr. Ball then testified he quite quickly started receiving text messages from a person he knew was in the business of trafficking cocaine. Mr. Ball testified this person inquired about what Mr. Ball's problem was with one of the three persons who reportedly were going to bear spray Mr. Ball. Mr.

Ball replied that he was confronting these persons because when people threaten him, he “sees them face to face.” [ 13 ] In any event, further text messages were received with comments such as, "Your days are numbered" or "I'll come to your mother's house." Mr. Ball testified that these messages got him "heated", but apparently shortly thereafter, according to Mr. Ball, things calmed down and he felt that was the end of these difficulties. [ 14 ] In fact, in the New Year, one of the three people Mr. Ball had had these problems with apologized to Mr. Ball when they ran into each other in a local bar. Mr.

Ball further confirmed that when that occurred there were no further problems, as far as he knew. [ 15 ] However, in early March, while Mr. Ball was at the friend's house where his friend's son had been shot sometime earlier, Mr. Ball happened to answer the front door and speak to the same police officers who spoke to him in December. According to Mr. Ball, the gist of that conversation involved one officer saying, "What would you do if your mother or son got hurt or the house was burned?" The officer then advised Mr. Ball that in the officer's opinion, Mr. Ball should return to work. Apparently Mr.

Ball was working in Alberta or planning to work in Alberta after his stint in the Yukon, once a broken hand had properly mended. [ 16 ] Mr. Ball testified that he was of the opinion that he could not do that and said, "What can I do? Leave my family unprotected?" [ 17 ] Mr. Ball testified he interpreted these statements from the police as a new threat to him or his family, because he "hadn't heard anything for months". [ 18 ] Mr. Ball further testified he had to "stick around town and deal with it", so, to use his words, he "put out the word, I needed some protection". [ 19 ] As a result, within a day or so, Mr.

Ball purchased for $600 the Smith & Wesson .38 Special that the police found on his possession on March 13th. In addition, he purchased two holsters and one and a half boxes of .38 ammunition. [ 20 ] Mr. Ball testified that he purchased the handgun about eight or nine days before he was arrested. He was arrested back in Courtenay after firing the handgun. Mr. Ball testified that that was the first time he discharged this firearm. [ 21 ] As I have stated, when Mr. Ball was arrested, he was cooperative. He followed the demands of the police during the high-risk takedown.

He testified he advised the arresting officer he had a gun on him, because he was concerned of some adverse consequences if that caught the police by surprise. He acknowledged the police asked him if it was loaded and Mr. Ball replied, "Of course it's loaded, it's not much fucking good if it's not." [ 22 ] Again, he advised the court that he said it was loaded in order to make sure everyone knew of the exact circumstances they were facing at that time, and to alleviate any unfortunate reaction to the presence of the loaded handgun.

He was quickly taken into custody and that was the end of the arrest. [ 23 ] So it is in these circumstances that the defence says Mr. Ball was entitled to rely on the present provisions of s. 34(1) of the Criminal Code . That

section now provides that: 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. [ 24 ] There are then, in subsection (2), several factors which the court shall consider in determining whether any particular act that is committed is reasonable in the circumstances. They are subsection (

a) through (h), and I do not plan to read them at this point in time. [ 25 ] The defence says that if I accept Mr. Ball's evidence that he believed this information from the police was a legitimate warning of a threat to his safety or that of his mother and/or son, then he was entitled to arm himself as he did with the loaded handgun, and that in the circumstances it was reasonable for him to do so. [ 26 ] Given the totality of the evidence, I am unable to agree that the new provisions in s. 34 can be read so as to provide a defence to Mr. Ball in these circumstances, even accepting all of Mr.

Ball's testimony. [ 27 ] In my view, it is important to note that the new self-defence provisions replace the old sections in order to provide clear and simple provisions, as opposed to what many of the cases underline was a sense of confusion and lack of common sense in the old

self-defence sections. [28] On this point, even though the court in R. v. Pandurevic, 2013 ONSC 2978, noted and was dealing with retroactivity orprospectivity of the legislation, the comments there are instructive and useful with respect to the submission before me today. [29] The court there at paragraph 19 stated: The Citizen’s Arrest and Self-defence Act repealed ss. 34 to 37 of the Code and replaced them with a single section, s. 34, which providesa framework within which to assess all claims of self-defence.

The amended defence contains three essential elements: • A reasonable perception of force or a threat of force against the accused or another person – s. 34(1)(a); • A defensive purpose for the accused’s act – s. 34(1)(b); and • An objective determination of the reasonableness of the accused’s act – s. 34(1)(c). [30] The court then went on to state that concurrent with the coming into force of the Act, the Department of Justice published atechnical guide for practitioners, a document that apparently was developed jointly by officials from the federal Department of Justiceand their provincial and territorial counterparts. [31] The court in the Pandurevic case went on to state at paragraph 22: The Guide states that Parliament’s intention was “to enact defences that express the fundamental principles that animate the laws of self-defence … so that the law itself corresponds to the approach taken by juries in deciding those cases.” It continues: To achieve this objective, the new defences extract from the old provisions the common core elements of each defence, and codify thosecore elements in a single simple framework that is capable of assessing a defence claim in any situation.

The guide then went on to state: The intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles ofself-defence without substantively altering those principles.

Finally the guide states: Overall, it is Parliament's intention to give effect to established self-defence principles in a more transparent and consistent way. [32] I pause to note that it is important to acknowledge that the new provisions were passed without substantively altering thefundamental principles of self-defence or the established self-defence principles. [33] As a result of that conclusion, I agree with Crown counsel when he submits today that there must be evidence of a present useof force or a threat of force that is imminent.

This factor has been codified in the new s. 34 in subsection (2)(b), which requires the court,when considering whether the act committed is reasonable in the circumstances, to consider "the extent to which the use of force wasimminent" or the threat of force. In this regard, I noted several

definitions of "imminent" which incorporate words such as "about tohappen", "likely to occur at any moment", or "liable to happen soon". [34] In the circumstances of the present case, there is no evidence, in my view, of force or a threat of force that was going to beimminent. In my view, traditionally this was the primary purpose of the codified rules regarding self-defence. On this point, the decisionof Justice Charron in the Ontario Court of Appeal in R. v.

Currie, (ON CA), 159 O.A.C. 290, are instructive and ofsignificant assistance. [35] In considering whether the accused in that case could have reasonably believed he was about to be attacked by a person whohad shot him a year earlier and, as a result, shot that person, the court in Currie noted the defence there submitted that under the old s. 34self-defence provisions, 34(2), an assault could be equated to a "reasonably based fear of a future physical attack". [36] After acknowledging that Chief Justice Lamer in R. v.

Pétel noted that imminent danger is only one of the factors indetermining whether there is a reasonable apprehension of danger, Charron J.A. then said at paragraph 49: Based on this jurisprudence, the appellant submits that the trial judge erred by suggesting that the appellant was precluded from relyingon self-defence because he did not expect to be attacked “before the day was out”. The appellant submits that the immediacy of thefeared attack, or lack thereof, is irrelevant on this first element of the defence. I disagree [she says].

While it is clear that imminence of attack is not a formal requirement to the claim of self-defence, the SupremeCourt of Canada in Cinous, in reiterating the principles in Lavallee and Pétel, confirmed that it is still a factor to be taken intoconsideration “in determining the reasonableness of the accused’s response”. [37] At paragraph 51, she again cites the Supreme Court in Cinous and says: The Supreme Court in Cinous aptly reminds us of the intended purpose of the s. 34(2) defence: Self-defence under s. 34(2) provides a justification for killing.

I pause here to note that I appreciate the difference between the circumstances in Cinous and the circumstances here. However, the courtgoes on to state:

A person who intentionally takes another human life is entitled to an acquittal if he can make out the elements of the defence. This defence is intended to cover situations of last resort. In order for the defence of self-defence under s. 34(2) to succeed at the end of the day, a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment . [Emphasis added.] [ 38 ] In my view, there is the necessity for there to be a threat of imminent danger. As such, in the circumstances of this case, I am not satisfied that Mr.

Ball's response to the apprehended threats that the police advised him of is, at law, justifiable. [ 39 ] In my view, in these circumstances, not only was there no imminent danger of force being applied or a threat of force being applied, but Mr. Ball's own evidence undermines the submission that he was acting reasonably in the circumstances. On this point, Mr. Ball testified that for the eight or nine days between purchasing the handgun and his arrest he was carrying on in a normal, everyday fashion, according to his testimony.

He was repairing his motor vehicle, dating his girlfriend, going to the bar and, in his own words, partying. He was clearly not concerned of any imminent threat when he acknowledged he did not even bother to ascertain whether or not the handgun he had purchased for protection was even operable, until he tried it out the night of his arrest. [ 40 ] Moreover, I agree with the Crown that to accede to the defence submission in these circumstances would be contrary to the traditional role the defence of self-defence has played in our jurisprudence.

For example, if this defence was to succeed in these circumstances, there would be no limit on when a person, who felt he needed a handgun or other weapon for protection, would be able to carry it, concealed or otherwise, or for how long. For example, when would an alleged threat become stale or no longer justification for possessing a loaded handgun?

Surely that could not have been Parliament's intent in incorporating the old self-defence sections into the new s. 34 provisions. [ 41 ] Given all of the factors that were outlined in 34(2) of the new provisions, I am not satisfied that the act of possessing the handgun was reasonable in these circumstances. [ 42 ] As a result, I am satisfied the Crown has proven beyond a reasonable doubt the defence of self-defence is not available to Mr.

Ball in these circumstances. [ 43 ] Given the totality of the evidence that is before me, I am also satisfied the Crown has proven beyond a reasonable doubt all of the essential ingredients on Counts 1 to 5 and there will be findings of guilty on each of those five counts. [ 44 ] I will hear submissions in due course, gentlemen, with respect to the principles enunciated in Kienapple and whether conviction should flow on which particular count. [ 45 ] Turning to Count 6, the possession of cocaine, the defence has quite properly acknowledged that there is no issue there and there must be a finding of guilty on Count 6. [ 46 ] With respect to Count 7, Mr.

Ball was frank and forthright with respect to his testimony that he would take his two rifles that are particularized in Count 7 for the legitimate purpose of hunting, as he was allowed to do pursuant to the amendment of the s. 109 prohibition. But he clearly testified that he had knowledge and control of those rifles when he would return them to the safe at his mother's residence. I accept her evidence that she had the key and that she opened it for Mr. Ball, and then locked the safe again when he put the rifles in the safe, but it is clear he had knowledge and control, and therefore had possession.

He was precluded from stowing these two rifles at any place he was residing, as outlined in the conditions to the amended prohibition.

Even though he did not own that home, it was owned by his mother, he was living there at the time when he was not working and he had not been working, according to his own testimony, from late August, early September, through to his arrest in March. [ 47 ] I am satisfied, given the totality of the evidence, he was residing there, he was not permitted to store the rifles where he was residing, and for those reasons there is a finding of guilty on Count 7 as well. [ 48 ] Alternatively on that point, as I pointed out to Mr.

Chesterley, the special conditions that attach to the amended prohibition would only allow Mr. Ball to store them at another person's residence if that person had a licence to do so, and it is acknowledged again that Mr. Ball's mother did not have a licence. So alternatively, he would be guilty beyond a reasonable doubt on that basis, as well, on Count 7. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. MacKenzie