R. v. Kiemele, 2011 ABPC 325

In the Provincial Court of Alberta Citation: R. v. Kiemele, 2011 ABPC 325 Date: 20011101 Docket: 110002169P1 Registry: Lethbridge Between: Her Majesty the Queen - and - Elaina Rose Kiemele Judgment of the Honourable Judge D.G. Redman Background [ 1 ] It is alleged that the accused, Ms. Kiemele bumped Mr. Young Pine with her car in front of his house while he was attempting to prevent her from leaving and again in a back alley and then drove with him on the hood of her car until he fell off while she was making a turn from the alley on to a street. [ 2 ] As a result of these events, Ms.

Kiemele is charged as follows: Count 1: On or about the 30 th day of December, 2010, at or near Lethbridge, Alberta, did, in committing an assault upon Colton Joe Jaye Young Pine, carry, use or threaten to use a weapon, to wit: vehicle or an imitation thereof, contrary to

Section 267 (

a) of the Criminal Code of Canada . [ 3 ] The evidence in the case at bar raises a number of issues including: 1. Credibility 2. Did the accused apply force to the complainant?

3. Did the complainant consent to the application of force? 4. Did the accused use her car as a weapon? 5. Were the context and circumstances of the events culpable and/or does the principle of De Minimis Non Curat Lex apply? 6. Was the accused justified in using force to defend herself or someone under her protection and if so, did she use no more forcethan was necessary within the meaning of s.37 of the Criminal Code? 7. Does the defence of necessity apply? 8. In the event the evidence does not support a conviction pursuant to s.267(

a) of the Criminal Code, should the Crown be permittedto amend the information pursuant to s.601(4) to a charge of dangerous driving contrary to s.249(1)(

a) of the Criminal Code? Presumption of Innocence - Reasonable Doubt [4] Although the principles of the presumption of innocence and reasonable doubt are well known to the Court and to counsel, itis helpful to restate them. Under Canadian law, everyone is presumed innocent until proven guilty. The obligation is upon the Crown toprove all the elements of an offence beyond a reasonable doubt, and only then can a Court convict. The burden remains on the Crownthroughout. Where reasonable doubt exists of any of the elements of the offence charged, the accused must be acquitted of that offence.

Reasonable doubt means a doubt that is based upon reason and common sense and is logically connected to the evidence or absence ofthe evidence: it is not based on sympathy or prejudice. This does not mean that the Crown is required to prove all elements to an absolutecertainty as this would be an impossibly high standard, however, the reasonable doubt standard falls much closer to absolute certaintythan to proof on a balance of probabilities: R.v.Liftchus (SCC), [1997] 3 SCR 320 and R.v.Starr, 2000 SCC 40, [2000] 2 SCR 144. [5] This does not make it incumbent upon the Crown to negate all conceivable defences.

A certain threshold must be met beforethe issue is “put in play”: R.v.Cinous, 2002 SCC 29 , [2002] 2 SCR 3(at para.52). Where, however, there is an evidentialfoundation based upon the particular facts of the case, which is referred to as the “air of reality” test, the issue is then “put in play”.

Adefence will be in play whenever a properly instructed jury could reasonably, on the account of the evidence, conclude in favour of theaccused: R.v.Fountaine, 2004 SCC 27 , [2004] 1 SCR 702 (at para. 74). [6] The threshold determination is not aimed at deciding the substantive merits of the defence nor to assess whether the defenceis likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether theevidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue: R.v.Cinous, (at para.54).

Credibility and W.(D.) [7] The Court often hears conflicting evidence on material matters. When this happens it must assess the credibility of thewitnesses who have testified to this conflicting evidence. [8] It is an error in law in cases of contradictory evidence to simply weigh the evidence of the accused against the evidence ofthe complainant.

The Court must weigh all of the evidence and must reject or accept some or all of the witnesses’ testimony after havingtaken into account a multitude of factors, including, but not limited to, appearance or demeanor, ability to perceive, ability to recall,motivation, probability or plausibility, and internal or external consistency. [9] There are two aspects to credibility. Firstly, whether the witness is lying or purposely misrepresenting facts, and secondly,whether the witness is factually accurate and reliable.

The former considers the truthfulness of the witness, whereas the latter considersthe trustworthiness of the witness in terms of their knowledge and powers of observation, judgment and memory. [10] In a case where the accused testifies, the Supreme Court of Canada proposed a model for instructions that a trial judge shouldpresent to a jury or that he should present to himself if there is no jury. The Supreme Court of Canada stated:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (R.v.W.(D.), (SCC), [1991] 1 SCR 742 para.28) [11] More recently the Supreme Court of Canada in R.v.S.(G.H.) 2008 SCC 30 , [2008] 2 SCR 152 expanded on the W.(D.) analysis when considering credibility and noted that it may be appropriate to add an additional instruction which logically would besecond in order, namely: If, after a careful consideration of all the evidence you are unable to decide whom to believe, you must acquit. [12] The W.(D.) model was never intended to be a precise formulation to be used at all times or to achieve a level of sanctity orimmutable perfection.

The main point is that the burden never shifts from the Crown to prove every element of the offence beyond areasonable doubt and the lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonabledoubt. It is not simply a matter of choosing between two versions of events, but rather carefully considering all of the evidence, bearingin mind the Crown’s burden throughout: R.v.S.(G.H.) 2008 SCC 30 at para.13.

Evidence [13] The Crown called two witnesses; the complainant, Colton Young Pine and Constable Jason Roth who testified in the voirdire, and entered a statement from Stephanie Jayne Law who came across the complainant after he had fallen from the accused’s vehicle,which statement was admitted for the truth of its content.

The accused testified in her defence. [14] In considering the evidence of the accused, I note that she had not consumed any alcohol on the night in question, appeared tohave a good memory of the events, gave her answers in both direct and in cross-examination in a straight forward and believable manner,was responsive, non-argumentative and her evidence was internally consistent. [15] The complainant, on the other hand, acknowledged consuming at least a quarter bottle of vodka, was evasive in his mannerand in his responses. [16] As a result of the significant differences in the evidence given by the complainant at trial and the statement he gave to thepolice on the night in question, the Crown made an application, s.9(2) of the Canada Evidence Act to cross-examine the complainant ona prior inconsistent statement in writing and was granted leave to do so.

These inconsistencies included how many times he was bumpedby the accused’s vehicle, how fast the accused was driving her vehicle in the alley, whether the accused stopped her vehicle in the alley,and how the windshield of the vehicle became broken.

In all cases, the complainant’s testimony at trial minimized the actions of theaccused on the night in question and became much closer to that of the evidence given by the accused. [17] Overall his evidence was not trustworthy and where it differs from the accused, I have rejected it. [18] After a careful consideration of the evidence of the accused and the complainant, I accept the following facts: 1. The accused and the complainant entered a relationship and from that relationship had one child, who was three years old at the

time. The complainant was also three months pregnant with a second child. Although they were in a relationship, they did not live together; the complainant lived at #1, 195 St. James Blvd., Lethbridge. 2. On December 20 th , 2010, the complainant and the accused attended with their daughter at a birthday party/Christmas dinner at the Eagles Hall on the north side of Lethbridge. While there, the complainant and a couple of his cousins consumed a 26 ounce bottle of vodka.

Shortly after 7:00 p.m., the complainant received a phone call wherein he was advised that his father was being transported by ambulance from Cardston to the Lethbridge Regional Hospital and the accused, and the complainant decided to leave their daughter at the party and travel to the hospital to meet the complainant’s father. The complainant’s cousin travelled with them. 3. Shortly after they arrived at the hospital, the ambulance arrived with the complainant’s father.

They spoke to his father for a few minutes and then went outside to wait in the accused’s car until his father had completed certain medical tests. While waiting in the car, the complainant fell asleep. 4. The accused was asked by the complainant’s cousin to drive to a liquor store, but upon arriving discovered he had left his wallet at the party so the three of them drove back to the party at the Eagles Hall. 5. When they arrived back at the Eagles Hall, the complainant was still asleep in the vehicle so the accused left him there and went into the hall to retrieve their daughter.

While inside the hall the accused received a rude text message from the complainant to hurry up. When she returned to the car with their daughter, she placed her daughter’s belongings in the backseat of the car and an argument erupted between the complainant and the accused. The complainant swore at her and demanded to know why they had left the hospital and insisted upon them returning. The complainant attempted to dislodge the key from the accused’s possession. As a result, the accused threw the key outside of the car.

The complainant then grabbed the accused by the neck and the two struggled until the complainant appeared to see a bystander watching, at which time he released her and she grabbed the keys and ran back into the hall crying. The complainant denied grabbing the accused by the neck and instead testified that he only grabbed for the keys. I reject his evidence in that regard. 6. Once back inside the hall the accused related events to the complainant’s mother and sister and they left the hall to speak to him. The accused then brought her daughter back to the car and discovered that the complainant had left. 7.

After placing her daughter in the car, she drove to the complainant’s house in order to retrieve some of her belongings. 8. When she arrived at the complainant’s house, she discovered one of the complainant’s roommates in an intoxicated state and heard other persons upstairs in the house. She went to the complainant’s room, obtained her belongings and began to place them in a bag at which point she heard the complainant enter the home and begin to talk to someone. 9. As the accused left the room with her bag, the complainant saw her and began to hug and say goodbye to their daughter.

While waiting for the complainant to finish his goodbyes, the accused had a bit of a row with the complainant’s sister who had arrived with him. 10. After the complainant finished with his goodbyes with their daughter, he demanded to know where his brother’s shirt was and where his CD’s were. The accused replied that they were probably in her car. 11. The accused, complainant and their daughter then left the house and went to her car. The accused placed her daughter in the back seat of her car and the complainant looked through the car for his CD container and his brother’s shirt, which he located.

The complainant began to again swear at the accused calling her a “heartless bitch” and suggesting to their daughter that he did not know when he would see her again because “her mother was a heartless bitch”. 12. The accused then entered her vehicle and the complainant continued to swear at her suggesting no other man would want a knocked up bitch. When she replied that lots of guys would want her he “got that scary look” which she had seen in him before. She locked the doors of her vehicle, started it and attempted to back the vehicle up. Her intention was to leave as quickly as possible.

By the time she was in position to move the car forward, the complainant had left the sidewalk and placed himself in front of the vehicle so as to

prevent her from leaving. The accused waited but the complainant refused to move. 13. The accused then very slowly released her foot from the brake which permitted her vehicle to move ever so slowly forward until such time that it very slightly bumped the accused. After having done this on two occasions, she was able to manoeuvre the vehicle and drive away. Anticipating that the complainant would follow her, she proceeded down an alley. As she did so, he ran across the street and through an opening, intending to cut her off as she came down the alley. 14.

As the accused drove down the alley, she was again confronted by the complainant standing in the middle of the alley, preventing her passage. There was snow on the ground and she drove very slowly towards him, then came to a complete stop in front of him. She hoped that he would leave, but he did not do so. She repeatedly yelled at him to get out of the way, but he did not do so, so again she took her foot off the brake and slowly moved forward until her vehicle touched him at which time she stopped again. 15.

The complainant then jumped on top of the hood of her car holding the CD case that he had retrieved from her vehicle. She yelled at him to get off. He did not. She was becoming increasingly frightened by the complainant’s bizarre behaviour. She tried driving forward and stopping hoping this would cause the complainant to get off her car and let her go home. He remained on the vehicle, obscuring her view with the CD case that he was holding. Suddenly the complainant started punching the window with his hand. He did so three or four times and then the windshield broke. 16.

The accused testified that she became really scared for both herself and her daughter and thought the only thing she could do was drive away down the alley. She did so for a distance equivalent to about one block. Ultimately, when she turned out of the alley and entered on the street the complainant fell off of the hood and one of her tires ran over a leg of the complainant. Fortunately he was not injured. 17. The accused testified that she was scared and crying and immediately called 911 and agreed to meet the police at a local business as she was afraid to return to the complainant’s house. 18.

The accused testified that she did have her cell phone with her and did not consider phoning the police until after he had fallen off her car and did not think it would be advisable to leave her vehicle to either go back into his house or enter the alley as she had concerns about the people in his house and their willingness to assist and was also frightened of the accused.

Position of Counsel for the Accused [ 19 ] Counsel for the accused concedes that “force” was applied to the complainant “intentionally” when the accused bumped the complainant with her car, but submits that this did not constitute an assault as that concept is understood in the common law.

Counsel for the accused further submits that in any event the complainant consented to the touching by the accused of the complainant with her vehicle. [ 20 ] With respect to the accused driving her vehicle with the complainant on her hood, counsel submits that there was no application of force in that the complainant did this of his own volition and it was the complainant who was applying force such that the accused was within her lawful right to continue to drive her vehicle as she was defending herself within the meaning of s.37 of the Criminal Code . [ 21 ] Further, counsel for the accused submits that the motor vehicle was not a weapon within the meaning of s.2 of the Criminal Code . [ 22 ] Finally, counsel for the accused submits that it is not permissible or appropriate to consider whether the evidence presented during the trial supports a conviction under s.249(1) (

a) of the Criminal Code and no such amendment should be permitted.

Position of the Crown [ 23 ] The Crown submits that the accused did apply force to the complainant without the complainant’s consent and that under the circumstances, the use of a vehicle was a weapon. Furthermore counsel for the Crown submits that the actions of the accused were something far more than de minimis and were culpable. [ 24 ] Counsel for the Crown further submits that the Court should consider whether the evidence presented during the trial supports a conviction on the charge of dangerous driving contrary to s.249(1) (

a) of the Criminal Code , and if so, Count 1 of the Information should be amended pursuant to s.601(4). Findings and Analysis [ 25 ] I have found that the accused applied force to the complainant when she bumped him with her vehicle in front of the house and again in the alley and when she drove with him on the hood down the alley. I further find that she did so without his consent.

I also find that a vehicle can be a weapon but that in the context and circumstances of the case at bar it was not, further, the application of force was not culpable, and the bumping of the complainant with her vehicle in front of his house and in the alley was de minimis, and that while she drove with the complainant upon her hood down the alley, she was acting in self-defence and from necessity. The reasons for my findings follow. [ 26 ] Assault is defined in the Criminal Code as follows: s.265(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly [ 27 ]

Section 267 of the Criminal Code provides as follows: s.267 - Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an invitation thereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 28 ] The word “weapon” is defined in s.2 of the Criminal Code as follows: 2.

Definitions - In this Act, “weapon” means anything used, designed to be used or intended for use

(

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm; [ 29 ]

Section 37 of the Criminal Code provides as follows: 37(1) Every one is justified in using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. Did the accused apply force to the complainant? [ 30 ] Counsel for the accused admits that the bumping of the complainant by the accused in front of his house and in the alley was an intentional application of force. I agree. Counsel for the accused submits however that driving down the alley with the complainant on the hood of her vehicle was not, as it was the complainant who jumped up on to the hood.

I agree that when the complainant jumped on the hood, the accused was not at that point applying any force as the vehicle she was operating was stationary. The situation changes when she is aware that the complainant is on her vehicle and moves it. [ 31 ] The elements of actus reus and mens rea are required to be present at the same time. It is not necessary for the mens rea to be present at the inception of the actus reus .

In Fagan v.Commissioner of Metroplitan Police [1969] QB 439 the Court considered a situation where a police constable wishing to question the defendant driver directed him to park his vehicle at a precise space against the curb where upon the defendant unknowingly drove his car on to the police constable’s foot. After the police officer had repeated several times “get off my foot”, the defendant reversed the car off the constable’s foot.

It was accepted that there was a reasonable doubt as to whether the initial driving upon the constable’s foot was intentional or accidental but it was satisfied beyond a reasonable doubt that the defendant knowingly allowed the wheel to remain on the police constable’s foot after he had been told to drive off and as such, an assault was proved. [ 32 ] In the case at bar, the accused did not intend, nor was she aware that the complainant was going to jump on her vehicle, but as soon as she became aware and permitted the vehicle to move forward, she was thereafter applying force to him.

Did the complainant consent to the application of force? [ 33 ] In the case at bar there is no doubt that the complainant voluntarily placed himself in front of the vehicle being driven by the complainant both in front of his house and again in the alley and on his own volition jumped on the hood of the accused’s car. Although the complainant was acting foolishly, this does not lead to the conclusion that he consented to the application of force. Consent must be informed.

Not even the accused testified that she believed the complainant was consenting to being bumped or to riding on the hood of her car and I find no basis for such a conclusion. I recognize that the Crown must negative consent and I accept that they had done so. Did the accused use her car as a weapon?

[34] It is clear on the cases submitted by counsel for the Crown that a motor vehicle can be a weapon within the meaning of theCriminal Code. In R.v.C.(N.) 1997 Carswell Ont 2247, (Ont.CJ) the Court did conclude that the accused, driving a bus at members ofthe police, with the intention of rescuing his friend from an assault he perceived the police were committing upon him, was using the busas a weapon. At para.21 the Court stated: I find that the bus was used for the purpose of threatening or intimidating the police and therefore was a weapon within the meaning ofthe Criminal Code.

I find C by using the bus in this manner, was attempting by threat or gesture to apply force within the definition ofs.265 of the Criminal Code. [35] The R.v.George, 2000 Carswell Ont 1728 (Ont.CA) case arose out of the same circumstances as R.v.C.(N.). In that case, theaccused was driving a car behind the bus being driven in the R.v.C.(N.) matter. The accused swerved to miss one officer and drove intothe ditch striking four other police officers who had taken cover.

Although the Court had some difficulty in accepting all of theaccused’s testimony, the accused did agree that he had intended to force the police to move back out of the concern for his friend.

TheOntario Court of Appeal dismissed the accused’s appeal, upheld the Trial Court’s decision stating: Notwithstanding the able submissions of counsel for the appellant, we are not persuaded that the trial judge misapprehended theevidence or that he failed to take account of all of the sometimes conflicting evidence when he considered the essential issue of theappellant’s intent to commit an assault with his car. (para.30) [36] In R.v.D.(M.) 2010 BCCA 162 , 2010 Carswell BC 776 (BCCA) the British Columbia Court of Appeal upheld a trialjudge’s determination that the accused’s act of driving on a sidewalk and revving his engine was a threat to apply force to people on thesidewalk and that it was not necessary to prove that the accused intended to hit anyone. [37] In order for the car to have been used as a weapon by the accused in the case at bar, it must have been used or intended tohave been used to cause death or injury to the complainant or for the purpose of threatening or intimidating the complainant. [38] The accused testified that she did not intend any harm and that she was initially simply trying to leave the area and latercontinued to drive down the alley after he had broken her windshield because she feared for her safety and the safety of her daughter. [39] The complainant, in cross-examination, conceded that he did not feel threatened at any time by the actions of the complainant,nor did he fear for his safety.

For example when referring to the incidents in front of his house, the complainant testified in examinationin chief as follows: Q. And she drove and the vehicle touched your legs? A. Yeah. Q. Any fear at that time, any injury to you at that time relating to that? A. No. Q. Yes or No. A. No. (page 11, lines 29-36) [40] In cross-examination the complainant confirmed his lack of fear as follows:

Q. All right, so, in your statement where it says that she was going 40 kilometres an hour and struck you, that wasn’t accurate; correct? A. No. Q. And did you feel threatened at any time by Ms. Kiemele? A. No. Q. Were you in fear for your safety at any time due to any of the actions of Ms. Kiemele? A.

No. (page 39, lines 2-11) [ 41 ] I accept that the complainant was not at all fearful for his safety as a result of the actions of the accused and I also accept the accused’s testimony that she only nudged the complainant softly and briefly in front of the complainant’s home and in the alley and that while she drove her vehicle with the complainant on the hood, she did so out of a reasonable fear for her safety and the safety of her daughter and simply to remove herself from the situation. As such I have not been persuaded that she at any time was using her car as a weapon.

Were the context and circumstances of the events culpable and/or does the principle of De Minimis Non Curat Lex apply? [ 42 ] Counsel for the Crown submits that the case at bar is not one of those exceptional cases of innocuous behaviour where the de minimis maxim has been found to be applicable and relies upon R.v. Wittke , 2007 Carswell Sask 217 (SaskPC) and R.v.Robart , 1997 Carswell NS 115 (NSCA) . [ 43 ] In R.v.

Wittke , the accused admitted that he was trying to rip the backpack out of the complainant’s hand and acknowledged that although the assault was at the lower end of the range, it did not fall within the de minimis category. [ 44 ] In R.v.Robart , the accused was convicted of assault when he intentionally applied force to the victim while trying to take her car keys away and prevent her from driving. In that case, the de minimis argument was not raised at trial.

The Nova Scotia Court of Appeal acknowledged the difficulties presented for an appeal court when a matter is not raised at trial in that they do not have the benefit of the trial judge’s assessment of the relevant evidence. [ 45 ] The Supreme Court of Canada considered this concept in R.v.Jobidon [1991] 2 SCC 714. In that case the Supreme Court discussed the absurd consequence if every form of contact was considered an assault. The Court stated: 65 Assault has been given a very encompassing definition in s.265 .

It arises whenever a person intentionally applies force to a person “directly or indirectly”, without the other’s consent. The definition says nothing about the degree of harm which must be sustained. Nor does it refer to the motives for the touching. If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault.

As just one of many possible examples, a father would assault his daughter if he attempted to place a scarf around her neck to protect her from the cold but she did not consent to that touching, thinking the scarf ugly or undesirable. (Even an argument for implied consent would not seem to apply in a case like this.) That absurd consequence could not have been intended by Parliament. Rather its intention must have been for the courts to explain the content of the offence, incrementally and over the course of time.

66 Furthermore, whereas the factors specified in s.265(3) are readily identifiable, and are generally applicable to all sorts ofsituation, that is inherently not true of limitations based on policy considerations, which are fact-specific by nature. It would have beenquite impractical, if not impossible, for Parliament to establish an adequate list of exceptions to apply to all situations, old and new. Policy-based limits are almost always the product of a balancing of individual autonomy (the freedom to choose to have forceintentionally applied to oneself) and some larger societal interest.

That balancing may be better performed in the light of actualsituations, rather than in the abstract, as Parliament would be compelled to do. 67 With the offence of assault, that kind of balancing is a function of the courts are well-suited to perform. They will continue to befaced with real situations in which complicated actions and motivations interact, as they have in the past.

I do not accept the argumentthat by failing to enact a list of objects or forms of conduct to which one could not validly consent, Parliament intended to eliminate theirrole in the offence of assault and to rely only on the four factors specified in s.265(3). Such a major departure from well-establishedpolicy calls for more than mere silence, particularly as such a list would have been unduly difficult and impractical to prescribe, and wasunnecessary given their existing entrenchment in the common law.

The common law is the register of the balancing function of thecourts – a register Parliament has authorized the courts to administer in respect of policy-based limits on the role and scope of consent ins.265 of the Code. [46] Judge LeGrandeur in R.v.Morrow considered a circumstance where a driver of a school bus for children with special needsattempted to calm a child down and end his destructive behaviour which may have resulted in harming himself or other passengers,restrained the child by wrapping duct tape around his wrists and by putting a sock in his mouth secured by more duct tape.

The Courtaccepted that the accused’s intention throughout was to safeguard the interests of other children on the bus including the complainant andthe force used, however unusual, was reasonable. [47] After a thorough review of the law as it relates to persons in delegated parental authority and their right to use force and after areview of the law as it relates to the culpability of forceful actions it was stated as follows: The character of a man’s act is dependant upon the circumstances in which it occurred. There is a contextual aspect to every assaultcharge.

Not all touching is assaultive, not all application of restraint by one person on another is assault. It is always dependant uponthe circumstances that accompany the act. This has been recognized by the Supreme Court of Canada on more than one occasion. (para.49) [48] In considering the facts in R.v.Morrow, Judge LeGrandeur posed the following questions and gave the following answers: Would a man who restrains an out-of -control child from assaulting another child or person be guilty of assault? Of course not, providedhis restraint was not excessive in the circumstances.

So then, how can a man be guilty of assault in exercising restraint against a childwhen the purpose is to prevent the child from harm arising as a result of the uncontrolled actions of the child himself? The answer is, hecannot, because his purpose and his actions were not excessive and were without hostility. (para.66) [49] Counsel for the accused further relies upon R.v.LePage (SK KB), [1989] 74 CR (3d) 368.

Counsel notesthat this decision was rendered prior to R.v.Jobidon but arguably reaches a similar conclusion although with somewhat differentreasoning. [50] I agree with counsel for the accused’s characterization of the application of force as being both non-culpable and de minimisas it relates to the bumping of the complainant in front of his house and in the alley. These bumps were of a such low impact, clearlyanticipated by the complainant and which did not and could not in any way cause damage to him. In addition, the accused intended noharm, was not angry and otherwise exhibited no animus towards him.

I am aware in reaching this conclusion that it is highly unusualthat such a finding would be made when a motor vehicle is being used, particularly when one considers the havoc that a motor vehiclecan cause if used improperly. However, as directed by the Supreme Court of Canada in R.v.Jobidon, the determination as to whether ornot application of force is culpable is to be determined in light of actual situations and not abstract policy considerations. [51] With respect to the application of force by driving down the alley with the complainant on the hood of the car, I do not acceptthat this act was de minimis.

Although it was not possible to determine her exact rate of speed, she was moving with a sufficient amountof speed that when she turned her vehicle out of the alley, the complainant fell from the vehicle. In addition, the act of driving with

someone on your hood is inherently dangerous and could quite reasonably have caused harm to the complainant. As previously noted however, I have found the actions of the accused in this regard, to have been in self-defence and justified pursuant to the common law defence of justification.

Was the accused justified in using force to defend herself or someone under her protection and if so, did she use no more force than was necessary within the meaning of s.37 of the Criminal Code ? [ 52 ] There are a variety of sections in the Criminal Code that permit the use of force; s.34 (self-defence), s.35 (self-defence in case of aggression), s.37 (preventing assault), s.38 (defence of property) and others. Each

section is intended to respond to a particular set of circumstances although there may be overlap in the defences available in a particular case.

In the case at bar, counsel for the accused has only relied upon s.37 . [ 53 ] Counsel for the accused submits that the accused believed that she or her child were to be assaulted by the complainant, particularly after he broke the windshield on the vehicle and that her driving her vehicle with the complainant upon the hood was a use of force in response to that belief and was reasonable under the circumstances. [ 54 ] The only elements of a defence under s.37 are that the accused used force to defend herself, or in this case, her and her child from an assault, and that the force used was no more than was necessary: R.v.Grandin , (2001) 54 CCC (3d) 408 BCCA (para.36). [ 55 ] I accept that on the facts of this case, the accused reasonably believed that the complainant was going to assault her or her child and that she was simply attempting to prevent this from happening by driving away. [ 56 ] In addition the force she used was reasonable and measured.

She first attempted driving and then stopping the vehicle, and then drove the vehicle and stopped and only when that did not work, did she drive down the alley with the complainant on the vehicle. She did not drive erratically, she was not swerving or attempting to injure the complainant, but in all regards her actions were measured. Does the defence of necessity apply? [ 57 ] The general residual defence of necessity has been recognized in Canada as a common law defence, preserved by s.7(3) of the Criminal Code .

Although counsel for the accused did not specially make reference to the defence of necessity, the contents of his submissions included same. Counsel for the Crown did address it directly in the submissions he made. [ 58 ] There are three elements to the defence of necessity: 1. Urgent situation of clear and eminent peril 2. No reasonable legal alternative to breaking the law 3.

Proportionality between the harm inflicted and the harm avoided [ 59 ] The first and second elements are evaluated on the modified objective standard taking into account the personal characteristics that legitimately affect what may be expected of the accused. The third element is evaluated on a purely objective standard. Evaluating the gravity of the act is a matter of community standards infused with constitutional considerations of the accused and the victim. Criminal Pleadings and Practice in Canada , 2 nd Ed. Vol.3

Chapter 21: 3050. [ 60 ] In R.v.D.(M.) , a decision referred to by the Crown, the British Columbia Court of Appeal considered a situation where the accused followed by other men, left the bar and having been assaulted, got into his truck and drove on to the sidewalk where he struck another person who suffered bodily injuries. The trial judge found that the Crown had proven beyond a reasonable doubt that the defence of necessity did not apply. The Court dismissed the accused’s appeal challenging that.

[ 61 ] In doing so, however, the Court noted that the trial judge had found as a fact that once the accused was in his truck, he was safe and although there were people banging on the truck, there was no reasonable likelihood of anyone breaking a window or injuring him. [ 62 ] In the case at bar, the complainant had been consuming alcohol, was irrate, displaying aggressiveness and obtuseness in his behaviour which involved the complainant acting unreasonably while he stood in front of the accused’s vehicle in front of his house and then chased her as she left until such time as he was again in front of her vehicle as she came down the alley.

He maintained his position in the middle of the alley, notwithstanding that she stopped and then began to move slowly forward. After he jumped on to the hood, he was yelling and broke her windshield. She was fearful of him and what he had done to her that evening (choking her) and what he might do. By this point she was fearful for herself and her daughter and drove off at a reasonable rate of speed under the circumstances simply to get away and not to cause the complainant any harm.

Was this an urgent situation of clear and imminent peril? [ 63 ] I accept that the accused felt that her safety was in jeopardy and that the potentially the safety of her child was in jeopardy and I also accept that this was reasonable from an objective point of view. Was there any reasonable alternative available? [ 64 ] I acknowledge that the accused could have phoned a friend, family member or the police while she was in front of the complainant’s house, or in the alley. Once the complainant lept upon the hood of her car and then began smashing the windshield of her vehicle.

I accept that the accused felt the only course of action was to drive away and that that belief was reasonable under the circumstances. What was the proportionality between the harm inflicted by the illegal act and the harm avoided? [ 65 ] There is no doubt that the act of driving with a person on the hood of a car is potentially harmful. However, the accused minimized this potential harm by first driving and then stopping. The complainant however refused to get off the vehicle when she attempted that course of action.

She then placed her vehicle in motion again driving at a relative cautious rate of speed such that the accused did not fall off the vehicle until such time as she reached the end of the alley and then turned her vehicle. She did so with sufficient force that the complainant rolled off the hood, but I note that the complainant suffered no injuries of any kind, either from being driven or by being propelled from the vehicle, or even by the vehicle’s tire rolling over his leg.

At this point in time, the complainant at consumed alcohol, had assaulted the accused in front of the Eagles Hall, was using fowl and abusive language towards her and exhibited an intention to cause her harm by smashing in her window. [ 66 ] In

summary, I accept there existed a defence of necessity in the circumstances of the case. Application to Amend Information [ 67 ] I do not accept that dangerous driving is a lesser or included offence of assault with a weapon. The accused is entitled to know the crime with which she is charged in order that she can defend herself. There is nothing within the original charge that in any way suggests that the Crown was seeking a conviction for dangerous driving. The charges themselves are substantially different.

The requirements for conviction in each are entirely different and as such the case to be met by the accused varies substantially. The Crown also seeks to amend the Information pursuant to s.601(4) of the Criminal Code .

[68] Section 601(4) reads as follows: The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced on his defence by any variance, error or omission mentioned in subsection (2)or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [69] The test regarding an amendment is set forth in R.v.Graham, (AB CJ), 189 AR 53 at para.16:

(1) Does the proposed amendment affect the previously provided description of the alleged offence so that it might reasonably beexpected that, had the amendment been made before the trial began, the accused would have conducted his or her defence in a materiallydifferent way? The answer to the question will determine whether the proposed amendment would prejudice the accused in his or herdefence.

(2) If the answer to the first question is affirmative, then is there some remedy available which will sufficiently ameliorate theprejudice which would likely be suffered by the accused if the amendment were permitted. [70] Counsel for the accused submits that the answer to the first question is in the affirmative but that there is no remedy availablethat would ameliorate the prejudice.

Counsel for the Crown disagrees and submits that if the answer to question 1 is in the affirmativethen the accused should be permitted to re-open her case and call further evidence and make further submissions. [71] As noted by counsel for the accused, the existing charge and the proposed charge are from two vastly different areas of lawand the evidence to secure a conviction or to provide a defence varies. [72] I agree that it is quite reasonable to expect that had the amendment been made before the trial began, the accused would haveconducted her defence in a material different manner.

As submitted by counsel, the defence might quite properly have focussed on theactual roadway, the exact manner of driving, the rate of speed, the road conditions and the like. In addition, at this late stage of theproceedings, at a point when the accused has elected to testify to the present charge, I am of the opinion that it would be impossible toturn back the clock in some way, fashion or remedy so that the prejudice could be ameliorated. [73] As noted by the Supreme Court of Canada in R.v.

T.(M.B.) (1994) (SCC), 89 CCC (3d) 289 the keystoneprinciple in determining whether the Crown should be allowed to re-open its case has always been whether the accused will sufferprejudice in the legal sense - that is, will he or she be prejudiced in his or her defence. (para.20) The Court in that case noted that thecourts in Canada and in England have treated the stage reached in proceedings as correlative to prejudice and injustice to the accusednoting that there are three stages in a trial: 1. Before the Crown closes its case, 2.

Immediately after the Crown closes its case, but before the defence elects whether or not to call evidence, 3. After the defence has started to answer the case against it by disclosing whether or not it will be calling evidence. (para.21)

[ 74 ] With respect to the third stage, the Court stated as follows: Lastly, in the third phase, after the Crown has closed its case and the defence has started to answer the case against it (or, as in much of the case law, the defence has actually closed its case), a Court’s discretion is very restricted and far less likely to be exercised in favour of the Crown. It will only be in the narrowest of circumstances that the Crown would be permitted to re-open its case.

Traditionally, an eximproviso limitation was said to apply to this stage of the proceedings; that is, the Crown was only allowed to re-open if some matter arose which no human ingenuity could have foreseen.

At this late stage, the question of what “justice” requires will be directed much more to protecting the interests of the accused than to serving the often wider societal interest presented by the Crown, the latter being a more pressing consideration at the first and, to a lesser extent, the second phase. (para.24) [ 75 ] The Court concluded that it is only in special circumstances that a trial judge should entertain an application by the Crown to re-open after the defence has begun answering the case against it.

The two most common examples are where the conduct of the defence has contributed to the Crown’s omission, or where matters of form rather than substance are involved. (para.45) [ 76 ] There is no suggestion that the defence in any way contributed to the reason for the Crown’s application, nor is this a matter of form rather than substance and accordingly I would refuse the Crown’s application for an amendment to the Information. Conclusion [ 77 ] In conclusion, I find that the Crown has not proven beyond a reasonable doubt the charge as laid. Heard on the 3 rd day of March, 2011.

Dated at the City of Lethbridge, Alberta this 1 st day of November, 2011. D.G. Redman A Judge of the Provincial Court of Alberta Appearances: D. Ross for the Crown S. Hadford

for the Accused