Her Majesty the Queen - v. -, 2012 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 071 Date: April 18, 2012 Information: 24439283 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Scott Wade Peeace Appearing: B. Bauer For the Crown J. Streeton For the Accused JUDGMENT M. M. BANIAK , J I. INTRODUCTION [ 1 ] Scott Wade Peeace stands charged that he did on December 5, 2011, at Melfort, Saskatchewan: Count #1: Break and enter a certain place to wit: a residence, situate at 109 Stovel Avenue East, Melfort, Saskatchewan and did commit

therein the indictable offence of Assault with a Weapon on Jordan Lundgren contrary to section 348(1) (

b) of the Criminal Code . Count #2: Break and enter a certain place to wit: a residence, situate at 109 Stovel Avenue East, Melfort, Saskatchewan and did commit therein the indictable offence of Assault with a Weapon on Bradley Lundgren contrary to section 348(1) (

b) of the Criminal Code . Count #3: Break and enter a certain place to wit: a residence, situate at 109 Stovel Avenue East, Melfort, Saskatchewan and did commit therein the indictable offence of Assault with a Weapon on Roxanne Lundgren contrary to section 348(1) (

b) of the Criminal Code . Count #4: Carry a weapon to wit a knife, for a purpose dangerous to the public peace contrary to section 88(2) of the Criminal Code . Count #5: Not being authorized under the Firearms Act to carry a concealed weapon, to wit: a knife did carry it concealed contrary to section 90(2) of the Criminal Code . Count #6: Being subject to a Youth Sentence imposed by a Youth Justice Court of Saskatchewan on September 8 th , 2008 did wilfully fail to comply with such order, to wit: that the young person shall keep the peace and be of good behaviour, contrary to

Section 137 of the Youth Criminal Justice Act . Count #7: Being subject to a Youth Sentence imposed by a Youth Justice Court of Saskatchewan on September 8 th , 2008 did wilfully fail to comply with such order, to wit: that the young person will maintain a curfew by remaining in the residence between the hours of 11:00 p.m. and 6:00 a.m. daily unless in the direct accompaniment of a parent or your uncle Nickolas Peeace, contrary to

Section 137 of the Youth Criminal Justice Act . Count #8: Being subject to a Youth Sentence imposed by a Youth Justice Court of Saskatchewan on February 19 th , 2009 did wilfully fail to comply with such order, to wit: that the young person shall keep the peace and be of good behaviour, contrary to

Section 137 of the Youth Criminal Justice Act . Count #9: Being subject to a Youth Sentence imposed by a Youth Justice Court of Saskatchewan on February 19 th , 2009 did wilfully fail to comply with such order, to wit: reside at a residence approved by the youth worker and abide by all house rules of the said residence (which may include a curfew) and not change that address without the express permission of the youth worker, contrary to

Section 137 of the Youth Criminal Justice Act . Count #10: Being subject to a Youth Sentence imposed by a Youth Justice Court of Saskatchewan on February 19 th , 2009 did wilfully fail to comply with such order, to wit: not possess any weapons in particular not to have any knives outside of residence, contrary to

Section 137 of the Youth Criminal Justice Act . II. FACTS [ 2 ] The accused, Scott Peeace, is the brother of Angel Peeace, the former girlfriend of Jordan Lundgren. Angel is expecting a child and Jordan is the father. Jordan is under a Court order not to have contact with Angel as a result of his assault on her prior to this incident on December 5, 2011. [ 3 ] Roxanne Lundgren is the mother of Jordan Lundgren and Bradley Lundgren. Ashley Opoonechow is Bradley Lundgren’s girlfriend.

Alysha Miller is a friend of the Lundgren family. [ 4 ] During the evening of December 5, 2011, Roxanne Lundgren and her family were fixing up and painting the house which they had just recently rented. Roxanne and her sons were being helped by Ashely Opoonechow and Alysha Miller.

[ 5 ] The Crown called seven witnesses. The accused testified in his own defence. THE CROWN WITNESSES

a) Cst. Sheila Cochrane [ 6 ] The Crown’s first witness was Cst. Sheila Cochrane, a three year member of the RCMP stationed in Melfort. Her testimony was that she and her partner, Cst. Shmyr, responded to a dispatch of a disturbance at 109 Stovel Avenue East. They arrived at 9:00 p.m. When they arrived, Roxanne Lundgren was outside, and Jordan Lundgren was being put in a car. An ambulance was on the way. All of the alleged assailants were gone. [ 7 ] As soon as Jordan left in the ambulance, she proceeded to take statements from Ashley and Alysha.

Later, at about 10:20 p.m. she took a statement from Roxanne Lundgren and Jordan Lundgren, at the Melfort Hospital. [ 8 ] She testified that none of the complainants had any signs of intoxication or impairment. [ 9 ] She later (just before 11:00 p.m.) found the accused in room 129 at the Melfort Inn Motel. The accused was arrested and taken to the RCMP cells. [ 10 ] She testified that the accused appeared sober and that she did not notice any injuries on him. [ 11 ] She seized the accused’s shoes. [ 12 ] Further, according to Cst.

Cochrane, the other individuals at the motel - Angel Peeace, Nicole Peeace and Terra Lafond - did not exhibit any signs of intoxication or drug impairment. [ 13 ] In cross-examination, she testified that she and her partner arrived at the scene within five minutes of the call; and, that all the statements were taken by her from the complainants within an hour and fifteen minutes.

b) Cst. Schmidt [ 14 ] The second Crown witness was Cst. Schmidt, an RCMP officer from Tisdale who was lending a hand to the Melfort RCMP members. After speaking with Cst. Cochrane, he joined two other RCMP members - Constables Shmyr and Redekopp - at the motel. He found a knife (P4) in a paper bag, and a bear spray cannister (P5) in a garbage bag which was inside a garbage can. [ 15 ] No alcohol or drugs were found in the motel room. He did not notice any injuries on the accused, but, as he acknowledged in cross-examination his involvement with the accused was limited.

c) Roxanne Lundgren [ 16 ] The third Crown witness was Roxanne Lundgren. Her testimony was that on the day in question, she, her two sons (Jordan and Bradley), Alysha Miller and Ashley Opoonechow, were doing some taping and painting at a house she had just recently rented. They

were on the second floor, which had three bedrooms and one bathroom. Out of nowhere, “A guy came to the top of the stairs...I didn’t see him before...I was standing on top of the stairs, within touching distance from him. I asked him what he was doing here. He didn’t reply, just looking around. My son Jordan came out and said ‘I know you’. The guy came up the stairs and starting fighting. He said to Jordan ‘You hit my sister’.” [ 17 ] According to her, the fight spilled into one of the bedrooms.

She noticed that the stranger pulled out a knife and held it in his right hand as he continued to wrestle with her son Jordan. She was yelling at him to stop and get out of her house but he did not respond. [ 18 ] Jordan managed to get away and started going down the stairs, but “The guy went after him and jumped on Jordan. They both went down. Jordan was on his back”.

At that point the accused started “Kicking and stomping” on Jordan who was still down. “He stomped him on the head, forehead and his body, his shoulders and just all over”. [ 19 ] She followed the two partly down the stairs all the while yelling at the accused to stop and get out. When she was about six or seven feet from him he held the knife up to her and said, “Don’t move or I’ll cut you”. Fearing for her safety, she did not interfere. [ 20 ] From what she recalled, Angel also ran up the stairs and there was a scuffle upstairs.

In addition to Angel, she also saw Angel’s mother and another person, whom she did not know, in the house. The “other person” was standing in front of the front door holding a black can, which Roxanne believed to be bear mace. [ 21 ] Roxanne’s other son, Bradley, apparently came out of the bedroom and hit the accused twice with his fist. She believed that when Bradley saw the knife he backed off. At around this time, Angel came downstairs and broke up the fight between the defendant and Jordan by yelling at the defendant to stop. Roxanne ran into the living room and called 9-1-1.

When she was on the phone she heard someone yell “She’s phoning the cops” and they all left. [ 22 ] She observed Jordan to be dazed and suggested to Alysha that he be taken to the hospital. [ 23 ] During cross-examination, Roxanne’s testimony was not seriously shaken. She maintained that the accused started the fight and that he pulled the knife out right away, and not at the bottom of the stairs. [ 24 ] She believed the whole incident took 10 to 15 minutes.

d) Jordan Lundgren [ 25 ] The Crown’s fourth witness was Jordan Lundgren. He testified that he heard his mom say, “Who are you?” and that she sounded anxious and surprised. He stepped out of the bedroom and stood between the accused and his mother. The accused said “You hit my sister”. He recalls pushing his mother out of the way and trying to grab the accused’s wrist to get the knife away, but he missed. After that point, his recollection of events is very sketchy. He believed there was some wrestling and then he fell down the stairs face first.

He remembers very little of the fight and his next recollection was of being in the ambulance. He characterized his injuries as “No severe ones, scratches, bump on the back of my head”. [ 26 ] He identified P3 as being his shirt. He also stated that he did not invite Angel to visit. [ 27 ] During cross-examination he acknowledged that he and Angel used to date and that she is now pregnant with his child. He further acknowledged that he was charged with assaulting Angel and that he was on conditions to have no contact with her.

He maintained that he complied with his conditions and that he did not contact Angel - as he stated, he did not even own a cell phone. [ 28 ] When it was suggested to him that he started the fight he responded with, “I didn’t hit him or start anything”.

[ 29 ] He also denied that he or his brother pulled a jersey over the accused’s head. He reiterated that his recollection of that night’s events were very poor: “I really don’t remember much after I saw the knife”. [ 30 ] He explained his poor recollection of events as follows: “I got some bad memory. I don’t go to school. I’m not a very smart kid. I’m trying to remember as best I can. It’s been some time”.

e) Alysha Miller [ 31 ] The Crown’s fifth witness was Alysha Miller. She described herself as a family friend who was there that night to help them paint. [ 32 ] She testified that she was in the hallway with Roxanne when she saw someone come up the stairs. Roxanne asked him “Who are you?” At this point Jordan came out and an argument ensued with the accused, but she did not believe that Jordan said anything to him. [ 33 ] She also saw Angel and another girl in the house - “Angel was yelling at me and Ashley”. When Angel started to come towards her, Ashley was trying to hold her back.

At that point, according to her, Roxanne had indicated that she was calling the cops and everyone scattered. [ 34 ] She was concerned about Jordan, “Jordan was just sitting on the ground. Slurring his speech, disoriented almost. His neck was bleeding. He was out of it, not right. He didn’t look good”. [ 35 ] Before she could get Jordan into the car and to the hospital the police arrived. [ 36 ] In cross-examination she stated that she did not see if Bradley was involved in the altercation. She did not see any punches being thrown.

She testified that she saw a struggle on the landing and that both tumbled down the stairs. She did not see a knife.

f) Ashley Opoonechow [ 37 ] The Crown’s sixth witness was Ashley Opoonechow, who is Bradley Lundgren’s girlfriend. She testified that she had seen Angel earlier that evening when she stopped by the house and asked to use a phone book. They advised her that they did not have one.

Angel walked around the house and left as she was told that she had to be gone before Jordan came back because he was on conditions not to have contact with her. [ 38 ] When Angel visited the house earlier that evening, only Ashley and Bradley were in the house, as Jordan and Roxanne had gone to get burgers. [ 39 ] She testified that Angel did not say anything about coming back, and that she was not invited to come back. [ 40 ] She next saw Angel later that night when she came into the house with some people. She briefly saw Jordan standing beside his mother and then Jordan and the other male went downstairs.

She didn’t pay much attention to what was happening downstairs because she was holding onto Angel who was trying to get at Alysha, after having already punched her. [ 41 ] When Angel went downstairs, she and Alysha stayed upstairs. She believes that Bradley may also have stayed upstairs.

[ 42 ] In cross-examination she agreed that she saw the person downstairs with his shirt off. In response to a question of whether she saw an altercation between Bradley and the accused, she answered, “He was trying to stop him”.

g) Bradley Lundgren [ 43 ] The Crown’s seventh witness was Bradley Lundgren. He, like his girlfriend, testified that he had seen Angel earlier that evening when she stopped by the house. She stayed about three to four minutes and left. He did not invite her to come back. [ 44 ] With respect to the events later that night, his evidence was at odds with that of the other witnesses. He testified that he heard some commotion and heard his mom shout “Stop”. He proceeded to go downstairs and by the time he got there his mother was already calling the cops.

Here are his answers to some direct questions: Q: Did you hit anyone that night? A: No. Q: Did you see anyone with a knife that night? A: No. Q: Did anyone threaten you with a knife? A: No. [ 45 ] During cross-examination, when asked if he saw any scuffling or fighting he answered that he did not. THE DEFENCE WITNESS [ 46 ] The accused testified in his own defence. On December 5, 2011, he came from Saskatoon with his mother to visit his sister Angel. They checked in at the Melfort Inn Motel and he made contact with Angel. She came to see them at the motel.

Angel then suggested that they go to a friend’s house - “Angel’s idea to go to this house”. [ 47 ] When they arrived, they did not see anyone downstairs so the accused proceeded to go upstairs. When Jordan’s mother asked him, “Who are you?” he responded with: “...I said I was Angel’s brother and that we came for a visit...next thing I know Jordan came at me; Brad started hitting me. I got pushed into the far corner room. I got kneed in the face. You see a flash, then I got jerseyed. I threw off my jacket and shirt.

That’s when I heard the knife hit the ground and I picked it up”. [ 48 ] He testified that he was in the upstairs room for about five minutes, doing his best to avoid being hit.

He did not intend to use the knife, but believed that having the knife, “Kind of scared them off”. [ 49 ] At the bottom of the stairs, he kicked Jordan a couple of times after which, “Me, my sister, my mom, and my girlfriend just left the house and went back to the motel”. [ 50 ] During cross-examination, the accused testified that it was at the motel that he first found out about Angel being assaulted by Jordan and that it angered him, but that it did not induce him to confront Jordan about it.

[ 51 ] As far as the knife was concerned, he testified that he had it for hunting purposes. He further offered that he had brought it from Saskatoon for his uncle, but he forgot that he even had it in his pocket. [ 52 ] He testified that he is about 6'2" and 220 lbs, whereas he would estimate that Jordan is about 5'11" and 160 lbs. [ 53 ] He maintained throughout that the fight was started by Jordan and that Bradley joined in.

He was simply defending himself. [ 54 ] The following questions and answers were provided with respect to what happened at the bottom of the stairs: Q: You end up on top of Jordan at the bottom of the stairs, you start stomping on him? A: I thought I’d kick him. Q: You were stomping on him, correct? A: Yeah. Q: You also kicked him a few times in the head? A: Yeah. Q: All this so that he wouldn’t get up? A: Yes. Q: Did you threaten Roxanne? A: No. Q: You never heard anything about someone calling the cops?

A: No. [ 55 ] When asked if he saw his girlfriend with the spray can he acknowledged that the can was a mace can and that she carried it for protection. [ 56 ] When questioned if he asked Angel for an explanation as to what just happened in the house when they were on the way back to the motel he answered that he did not. III. ARGUMENT DEFENCE POSITION [ 57 ] Defence argues that as soon as Roxanne asked the accused who he was, Jordan immediately came out and started fighting with the accused.

He soon was joined by his brother Brad who also attacked the accused. [ 58 ] Defence further submits that the evidence from Bradley is not very credible and that Jordan was a confused witness who did not remember very much. [ 59 ] At the end of the day, only two witnesses saw the knife and three did not.

[ 60 ] In contrast, the accused was presented as a credible witness who did not attempt to diminish his role. He simply went along with Angel who said that she was going to visit a friend and once at the house he was set upon by the Lundgren brothers. He was simply defending himself. The fact that he produced a knife is not a bar to self-defence. There is no evidence of the accused ever using the knife and the knife was for hunting at any rate. CROWN ’S POSITION [ 61 ] The Crown argued that the accused’s testimony has to be considered in the context of the Supreme Court decision in R. v.

W. (D.) . [1] [ 62 ] In support of its contention that the accused should not be believed, the following is submitted. [ 63 ] Firstly, the accused testified that he was not angry about the assault on his sister, but, in cross-examination, he admitted that he was. [ 64 ] Secondly, he testified that he did not know that the knife was in his pocket; yet, the size and weight of the knife was such that it would have been impossible not to notice it. [ 65 ] Thirdly, he testified that they were going to the house as invited guests; yet, he brought a knife and his girlfriend brought mace. [ 66 ] Fourthly, he testified that he kicked Jordan a few times; yet, in cross-examination he admitted that he stomped him repeatedly. [ 67 ] Finally, he denied that anything was discussed in the car after they left the Lundgren house, yet, in cross-examination he admitted that Angel did speak about Jordan. [ 68 ] In contrast, Roxanne Lundgren gave her testimony in a straightforward manner and she was not shaken in cross-examination.

IV.

ISSUES AND ANALYSIS [ 69 ] This case hinges on two aspects: 1) Credibility of the accused; and 2) The overall sufficiency of the evidence to establish his guilt beyond a reasonable doubt on the 10 count Information # 24439283. [ 70 ] At the conclusion of its submissions, the Crown acknowledged that no evidence was led on count #9 and that, accordingly the accused cannot be found guilty on that count. [ 71 ] Similarly, since the accused was with his mother, he cannot be found guilty on count #7. [ 72 ] Where there is conflicting, or contradictory evidence, particularly between an accused who gives exculpatory evidence, and

one or more witnesses who contradict and call into question the accused’s credibility, the direction given by the Supreme Court in R. v. W. (D.) is instructive. When a Court is faced with a case, such as this one, where credibility is an issue, the test is as follows: [2] 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 73 ] When assessing the accused’s credibility in this case it is necessary, firstly, to consider all the evidence. [ 74 ] The accused testified that while visiting with his sister, Angel, in the Melfort motel room she suggested that they should visit a friend and that is why they went to the Lundgren residence.

If Angel was invited to visit a friend, that invitation would not automatically extend to three other people whom the friend did not know. Moreover, there is no evidence that Angel herself was invited by anyone to the Lundgren residence. In fact, if anything, the evidence suggests that she was told earlier in the day when she stopped by the house to be gone before Jordan comes back because he was under a Court order not to have contact with her.

Both Brad Lundgren and Ashley Opoonechow, the only people in the house when Angel earlier stopped by, testified that they did not invite her to come back. [ 75 ] There is no evidence that they were knocking on the door or that they attempted in any way to announce their presence before they proceeded to enter the house. [ 76 ] Upon entering the house, and not seeing anyone on the main floor, they proceeded upstairs. The accused engaged Jordan Lundgren and his sister Angel confronted Alysha Miller punching her once before she was restrained by Ashley Opoonechow.

The accused’s girlfriend was holding a cannister of bear mace. [ 77 ] The accused testified that he was attacked by Jordan Lundgren and that he was merely defending himself. The large knife in his pocket just fell out and he picked it up during the fight with Jordan. This testimony does not have an air of reality about it and I find it quite incredible. [ 78 ] According to Roxanne Lundgren’s testimony, which I accept, the accused pulled the knife out as soon as he saw Jordan. Jordan stepped in between her and the accused and the confrontation began, spilling from the landing into one of the bedrooms.

At one point, Jordan managed to escape the accused’s grasp and started running downstairs with the accused in hot pursuit. The accused grabbed Jordan and they tumbled down the stairs. Once downstairs, the accused proceeded to stomp Jordan repeatedly when the latter was on the ground. [ 79 ] If the accused had believed himself to be in danger, and he was defending himself, then he should have left the house once Jordan ran away from him.

Instead, he pursued Jordan and proceeded to stomp him, and left only when he was told by Angel to stop and in response to someone saying that Roxanne was calling the cops. [ 80 ] While it is true that a person is allowed to defend himself, even using a weapon if necessary, the evidence here, taken in its totality, does not support self-defence. I find that the accused, who was much bigger and stronger than the 16 year old Jordan Lundgren, and who was in possession of a weapon, was the aggressor throughout. He was upset that Jordan had assaulted his sister Angel and he was eager to settle the score as it were.

Relevant Provisions of the Code

[ 81 ] Section 348(1)(

b) of the Code reads as follows: Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, or ... is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, ...

(2) For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or [ 82 ] The term break is defined in s. 321, which reads as follows: In this part “break” means: (

a) to break any part, internal or external, or (

b) to open any thing that is used or intended to be used to close or to cover an internal or external opening; [ 83 ] The term enter is defined in s. 350: (

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and (

b) a person shall be deemed to have broken and entered if (

i) he obtained entrance by a threat or an artifice or by collusion with a person within, or (ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening. [ 84 ] Section 265(1) of the Code reads as follows:

A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; [ 85 ] Section 88(1) of the Code reads as follows:

(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) is guilty of an offence punishable on

summary conviction. [ 86 ]

Section 2 of the Code , states: “weapon” means any thing 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; [ 87 ] Taking into account all of the evidence, I find the accused guilty of count #1. [ 88 ] With respect to count #2 of the Information, I find the accused not guilty. Although I’m somewhat sceptical of Bradley Lundgren’s testimony, he was, after all, the Crown’s witness and the alleged victim. He testified that he was not in any way assaulted and insisted that he did not have, or play, any role in the incident that night. His testimony was not challenged by the Crown.

It is conceivable that he did not see the knife even if others did. Accordingly, I cannot conclude that he was assaulted with a weapon. [ 89 ] I find the accused guilty of count #3. According to Roxanne Lundgren’s testimony, which I prefer to that of the accused, when she followed her son Jordan and the accused as they tumbled down the stairs she was stopped in her tracks when the accused brandished a knife and told her to stay away or he would cut her: “I was probably on the fourth step from the bottom, just kept yelling at him to stop and get out. He held the knife up to me so that I didn’t move”.

Q: How far were you away from him? A: Six or seven feet. He said don’t move or I’ll cut you. I didn’t move because I didn’t want to get cut. [90] I find the accused guilty of count #4 of the Information. [91] The crucial element here is the purpose for which the accused had the weapon. Carrying a weapon, or even using it in adangerous manner is not sufficient to establish guilt under this section.

On the evidence, however, I find that the accused brought theknife with him either to use it to injure or, in the alternative, to intimidate the residents of the house. [92] His testimony that he had it for hunting, and that he had in fact brought it from Saskatoon for his uncle, does not stand up toscrutiny. He pulled the knife out even before he started the fight with Jordan Lundgren, and, the sight of the knife prevented others fromcoming to Jordan’s assistance. In short, he possessed the knife for a purpose dangerous to the public peace. [93] I also find the accused guilty of count #5.

While it is true that an object such as a knife could be used for a peaceful purpose(hunting, eating) the Crown in this case has established that the knife was concealed for an unlawful purpose in that it was intended to beused as a weapon. [94] Having found the accused guilty on counts 1, 3, 4 and 5, he is accordingly found guilty on counts 6, 8 and 10. [95] Dated at the City of Prince Albert in the Province of Saskatchewan this 18th day of April, A.D. 2012. ___________________________________ M. M. Baniak, J [1] R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. [2] R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, page 20.