Her Majesty the Queen - v. -, 2012 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 064 Date: April 18, 2012 Information: 24402152 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dylan Head Appearing: T. Healey For the Crown R. Saretzky For the Accused JUDGMENT B. MORGAN , J I. INTRODUCTION [ 1 ] Mr. Head is charged as follows:

Count #1: Did commit mischief by wilfully damaging without legal justification or excuse and without colour of right the dwelling-house of Terrence MCKAY situated at 705 Red Earth First Nation by firing a shotgun through the window and thereby endanger the life of Terrence MCKAY contrary to section 430(2) of the Criminal Code . [ 2 ] Section 430(2) reads: Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life. [ 3 ] The issue in this case is whether or not the actions of Mr.

Head caused “actual danger to life” as required for a conviction under s. 430(2) . II. BACKGROUND [ 4 ] Exhibit P1 was an Agreed Statement of Facts, which reads as follows: The facts relevant to this matter all took place on the Red Earth First Nation, in the Province of Saskatchewan, on (sic) during the evening (The “Evening”) of October 3, 2011, or the early morning of October 4, 2011. At all times relevant to this matter, Terrance (sic) McKay and his family resided in a residence that was located very close to the residence of Dylan Head, on the Red Earth First Nation.

During the Evening the front window of the Terrance (sic) McKay residence was broken as a result of being hit by pellets that had been discharged from a shotgun. During the Evening, Dylan Head, Clinton Head, Marcus Flett and Davis Whitehead and a number of other individuals were drinking alcohol and partying together on the Red Earth First Nation. Dylan was drunk with alcohol during the Evening. During the Evening, while on the Red Earth First Nation, Dylan Head and Davis Whitehead both discharged shotgun shells from a shotgun on a number of occasions. [ 5 ] Terrence McKay was a Crown witness.

There is no doubt that he is the “Terrance” mistakenly referred to in the Agreed Statement of Facts. Earlier that evening, Mr. McKay had heard gunshots somewhere behind his house, and noted that the gunshots, by their sound, appeared to be coming closer. He saw Dylan Head, Marcus Flett and Davis Whitehead shooting the shotgun into the air, while they were at the Kathleen Head residence next door to Mr. McKay’s residence. Kathleen Head is Dylan Head’s mother. As Mr. McKay put it, “They were taking turns”, repetitively firing shots into the air. [ 6 ] Mr.

McKay had been in his home, with his wife, Evelyn Whitehead, and two small children, when he first heard the shots. His wife phoned the police, who showed up at the Head residence, where apparently their vehicle was fired upon. It appears that the police disengaged, to obtain assistance, at which time the individuals referred to in the Agreed Statement of Facts fled the house and ended up walking down the road outside Mr. McKay’s residence, still in possession of the shotgun. [ 7 ] At approximately 2:00 or 3:00 a.m. on October 4 th , Mr.

McKay was, while inside his house, looking out his front picture window, the one that was shot at. He said Dylan Head was with Marcus Flett and Davis Whitehead, and that Davis Whitehead had the gun. Mr. McKay stated that Dylan Head spoke in Cree to Davis Whitehead, asking for the gun, and then shot the gun toward the house. [ 8 ] Exhibits P2 through 4 respectively are photos of the area. P2 is an overhead photo that confirms the location of the houses.

P3 is a photograph that appears to have been taken at the foot of the McKay driveway, pointing towards the McKay residence, which shows the picture window at the left, a door roughly in the middle of the house, and kitchen windows on the far right side of the house. Exhibit P4 is a closeup of the window, showing clearly that the window has been hit by a shotgun blast.

[9] Mr. McKay testified that this was a new window that had been placed in the house approximately a month or so prior to thisincident. Although I am satisfied that he is mistaken on the cost (he said it was approximately $50.00 or so, so he may have beenreferring to some insurance deductible from another occasion), it is clear from both the photograph and the evidence, that the effect ofthe shotgun blast was to smash the outer pane of the two panes of glass.

The inner pane was not broken at any point. [10] There was an issue at the trial of whether or not it was in fact Dylan Head who fired the shotgun, or whether it was DavisWhitehead who did. I am satisfied that Dylan Head fired the shotgun, for the reasons that follow. [11] The point of dispute came about because Mr. McKay testified he was peeking around the window from the inside, and as onemight expect, when he saw Dylan Head point a shotgun at the window he was peeking through, pulled his head back. He stated that he“saw [Dylan Head] point the gun, but didn’t think he was going to fire”.

He went on to say that, although he did not see the actualdischarge of the gun (and hence cannot say with certainty that Dylan Head fired the gun), he did state that he saw Dylan Head pointingthe gun “right before the peek before the gun fired”. When questioned how long before the shot was this was, he estimated “maybe afew seconds”.

He said that he didn’t peek out again after the shot was fired, as he ran to his room, as that’s where his children were, andhe was concerned for their safety. [12] Testifying in his defence, Dylan Head stated that it was Davis Whitehead who was shooting toward the McKay house, andthat Davis Whitehead, in Mr. Head’s evidence, just kept on firing towards the house, apparently because Dylan Head said to him to stopthat. That explanation does not make sense. First, Mr.

Head agreed that his memory got fuzzy over time, and that he had consumed 30to 40 cups of Moosemilk (an alcoholic home brew concoction) over the course of the previous evening. Further, despite the clearadmission in the Agreed Statement of Facts that both he and Davis Whitehead “discharged shotgun shells from a shotgun on a number ofoccasions”, he remained adamant that he only fired the gun into the air on one occasion. Further, the evidence of Mr.

McKay is thatthere was one shot fired at his house, at the time the window was hit, not multiples shots at the house or in the air. [13] In assessing credibility, I am bound to apply the test in R. v. McKenzie (P.N.), (SK CA), [1996] 141 Sask.R. 221 (C.A.). Having done so, I do not believe Mr. Head. His evidence does not leave me in doubt. Based on the evidence I do accept,I find that he fired the shotgun. [14] I carefully observed Mr.

Head on the witness stand and noted that when he was pressed in cross-examination with thesuggestion that he was the individual who actually fired the gun, he became very evasive in denying having done so. I do not accept hisevidence; he would obviously have been in a rather intoxicated state after ingesting so much home brew, giving me cause to doubt hisability to accurately know what occurred at the relevant time. Not really knowing what went on, I do not believe he had the ability toaccurately recount, on the stand, what happened. His explanation that Mr.

Whitehead “kept on firing” at the house does not square withwhat Mr. McKay said occurred. I prefer and accept the evidence of Mr. McKay when it conflicts with the evidence of Mr. Head; Mr.McKay was sober at the time this occurred, and he was calm and reflective on the witness stand. [15] On these facts, I draw what I consider to be the reasonable inference that it was Dylan Head who in fact fired the gun. I amfully satisfied that he asked for the gun, it was given to him, and that Mr. McKay saw Mr. Head, a few seconds before the shot was fired,pointing the gun towards the window.

I find that he discharged that shotgun, with the result that the window of Mr. McKay’s house wasstruck. III. ANALYSIS [16] The starting point for this inquiry is the case of R. v. Nairn. In that case, the trial judge convicted the accused:[1] The facts are that after a long and heavy drinking bout, in which he was involved with others, the accused fired four shots with a .22 riflewithin the Airlines Inn at Goose Bay, there being people in the place, asleep and awake, at the time. One of the shots was fired in theroom of one Lush and broke a bottle of shaving lotion, which was used as a target.

The other shots made holes in the walls.

[ 17 ] Although the appeal was allowed for a number of reasons, the appeal court did note that all of the

definitions set out in the mischief

section of the then s. 372 comprise offences in relation to property. The Newfoundland Court of Appeal then concluded that, under subsection (2) “...the danger to life, if any, must be the physical outcome of the damage to the property and not merely incidental to the means.” [2] (My emphasis) [ 18 ] This focus on the danger being the outcome of the damage to the property was dealt with in the case of R. v. Humphrey .

In that case, the trial judge had taken the case from the jury on a charge under the then s. 387(2) of the Criminal Code , identical to the present s. 430(2) , as he concluded that there was no evidence that the mischief that the accused had done to a construction trailer caused actual danger to life.

In that case, the accused was charged with mischief by lifting up a construction trailer “with a back-hoe tractor and did thereby endanger the lives of construction workers in the trailer...”. [3] [ 19 ] The Court of Appeal, in ordering a new trial, interpreted Nairn as stating "no more than that ‘the actual danger to life must be the direct result of a deliberate act of mischief and not just merely incidental thereto’". [4] In the Court’s view, the trial judge had misinterpreted the wording of the section, holding that there was nothing in subsection 387(2) which required that “the actual danger to life” be caused by the damage as opposed to the act which caused the damage (my emphasis).

The Court reiterated that “the actual danger to life must be the direct result of a deliberate act of mischief and not just incidental thereto”, citing an annotation in Martin’s Criminal Code which in itself cites the Nairn case for that proposition. [ 20 ] In R. v. Ferguson , an individual who had thrown his barbecue off the balcony of his 10 th floor apartment was committed for trial for the same charge that Mr. Head faces. There was no evidence of anyone being in the area where the barbecue landed. That committal was quashed.

For the present purposes, paragraph 4 of that decision is relevant here: [5] Nor is there any evidence that any individual was placed in "actual" danger as a result of Mr. Ferguson's act. Parliament intended the ordinary meaning of the word "actual" when it used that word in s. 430(2) of the Criminal Code . That word means "something existing in act", not something merely foreseeable, or theoretical, or possible.

There was no evidence of any such danger created by the applicant's action. [ 21 ] The Ferguson decision goes on to review the meaning of the word “actual” and notes at paragraph 18: [6] The case law illustrates that the word "actual" has been interpreted by the courts in the way in which the word is commonly used in everyday English: in every decision in which a conviction is registered, there is at least one individual whose life was put in danger by the actions of the accused.

No convictions can be found where a house was unoccupied when the dangerous activity directed towards the house occurred; convictions abound where a house was occupied by an individual who might have moved into the line of fire of bullets, or been trapped by a fire, or hit by a car, or injured when the building was lifted up, etc. [ 22 ] In this case, the evidence is clear, and the point is not argued by either counsel, that Mr. Head did not see Mr. McKay in the house. I accept that Terrence McKay was in danger, theoretically, as he was in the living room, by the window, when the shot was fired. Had Mr.

McKay been injured by either a shotgun pellet or a splinter of glass from the window, I would conclude that his injury would be the “physical outcome of the damage to the property” as stated in Nairn . [ 23 ] However, on the unique facts of this case, the reality is that no projectile from the shotgun penetrated into the house. Nor were any shards of glass from the inner (the undamaged) pane of glass projected into the house, for the obvious reason that that pane of glass wasn’t shattered.

In my view, the act of mischief did not “cause actual danger to life”. [ 24 ] It is argued that the Crown is required to establish an actual danger to life at the time the gun was fired in order to secure a conviction. That is, there was an existing risk to Mr. McKay when the gun was discharged. In my view, it is incumbent upon the Crown to establish that an actual danger to life existed as the direct result of Mr. Head’s act of mischief. In Ferguson , there was

an act of mischief (the lifting up of the trailer) that was in fact

an act that endangered the life of the people inside that trailer. In the present case, there is

an act of mischief (the firing of the shotgun) that is not in fact

an act that endangered the life of Mr. McKay as the pellets did not strike the glass with sufficient force to actually penetrate the inner pane of glass.

[25] The essential elements of the offence of mischief are present in this case, with the exception of an “actual” danger to lifereferred to in ss. 430(2); as Ferguson points out, the danger cannot be merely foreseeable, or theoretical, or possible. One would assumethat a shotgun fired from a distance of twenty feet or so, as this one was, would have blown out a picture window, two panes of glass orone. Fortunately for Mr. McKay, and Mr. Head, it didn’t. In my view, there can be no “actual” danger to life, on these unique facts,that flow from Mr. Head’s act of mischief. [26] I therefore find Mr.

Head not guilty of the charge under s. 430(2). However, that does not end the matter. He is clearly guiltyof the lesser included offence of mischief as set out in s. 430(1) (

a) as he wilfully destroyed or damaged property, being the window. Itherefore find him guilty of mischief under s. 430(4) of the Criminal Code. Dated at Nipawin, in the Province of Saskatchewan, this 18th day of April, A.D. 2012. B. Morgan, J [1] R. v. Nairn (1955), (NL CA), 112 C.C.C. 272,

(1955) N.J. No. 4 (NFLD C.A.), at page 273 C.C.C. [2] R. v. Nairn, supra, at page 273 C.C.C. [3] R. v. Humphrey (1986), 21 O.A.C. 36, [1986] O.J. No. 1247 (Ont. C.A.), para. 1. [4] R. v. Humphrey, supra, para. 4. [5] R. v. Ferguson, 2005 ABQB 156 , para. 4. [6] R. v. Ferguson, supra, para. 18.