R v Deverze, 2023 ABCJ 175

In the Alberta Court of Justice Citation: R v Deverze, 2023 ABCJ 175 Date: 20230801 Docket: 210473336P1 Registry: Calgary Between: His Majesty the King - and - Samuel Deverze Decision of the Honourable Justice B.C.

Stevenson BACKGROUND [ 1 ] In a ruling I delivered on January 11, 2022 on an allegation of a Charter breach during and following the accused’s arrest, the facts giving rise to the arrest were set out in paragraphs 1-6 of my ruling ( R v Deverze , 2022 ABPC 13 ). [ 2 ] Basically, the facts leading to the armed confrontation were that a van, occupied by two persons, followed the accused into an alley in downtown Calgary and fired shots at him in his car (a Ford Edge).

The accused then exited his car, armed with a handgun, and, using his car as a shield, fired several shots in the direction of the van. [ 3 ] The van retreated, and the accused followed it and fired four more shots at it. [ 4 ] As outlined in my Ruling mentioned above, Deverze then fled on foot in a northerly direction, secreted himself on the lower level of an apartment building next to the Lougheed House, and was finally apprehended by members of the Calgary Police Service with the assistance of their canine unit. [ 5 ] Following that Ruling, Ms.

Snukal, then Counsel for Deverze, applied to be removed as Counsel of Record. [ 6 ] Prior to being granted permission to withdraw as Counsel, however, Ms. Snukal filed an Application for a directed verdict on Counts 4 and 5 on the Information.

[ 7 ] Following Ms. Snukal’s withdrawal as Counsel, Mr. Jugnauth came on to assume conduct of the defence of Mr. Deverze. [ 8 ] When the Application came before me on June 14, 2023 I denied the Application filed by former defence Counsel Snukal, and adjourned the matter to set a date for argument. [ 9 ] The date set for argument was June 19, 2023. [ 10 ] On June 19 th , 2023 Mr.

Jugnauth took the position that there was sufficient evidence for convictions on Count 1- s 86 (2) (unsafe storage of a firearm) and Count 2- s 91 (1) (possession of a firearm not being the holder of a licence). [ 11 ] Both Counsel agree that there is insufficient evidence for a conviction on Count 3- s 108(1)(b) (possessing a firearm knowing that its serial number had been altered, defaced or removed). [ 12 ] As a result, Count 3 is dismissed. [ 13 ] With Counts 1, 2, and 3 now having been dealt with, the arguments before me focused on the balance of the charges, namely: [ 14 ] Count 4- s 244(1) – (discharging a firearm with intent), [ 15 ] Count 5- s 87(1) – (pointing a firearm), and [ 16 ] Count 6- s 86(1) – (careless use of a firearm) are all contested by the accused, and on his behalf Mr.

Jugnauth advanced an argument that all three should result in a not guilty verdict on the basis of self-defence as set out in s 34 of the Criminal Code . LEGISLATION [ 17 ]

Section 34 of the Criminal Code :

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.

i) any history of interaction or communication (

g) between the parties to the incident; (

h) the nature and proportionality of the person’s response to the use or threat of force; and (

i) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 18 ] [Note:

Section 34 of the Criminal Code was amended by Parliament in 2013, and came into force on March 11 th of that year]. COUNSEL’S SUBMISSIONS

DEFENCE [ 19 ] Mr. Jugnauth reviews s 34(1) and the three elements required to establish self-defence – reasonable belief that force is being used against them, the purpose of the action used by the accused, and that the action used was a reasonable response in the circumstances. [ 20 ] He submits that the Crown has the onus of disproving the presence of those elements beyond a reasonable doubt, if their presence is established. [ 21 ] He also submits that even if self-defence is not made out, the issue of intent remains a live issue.

He argues that as the offence is a specific intent offence, the Crown has to prove beyond a reasonable doubt that when the accused discharged the firearm he must have intended to endanger life. [ 22 ] He submits that the proper

interpretation of the actions of the accused in discharging a firearm was not to endanger life, but rather to put space between himself and those threatening him to enable him to escape. [ 23 ] Further, that his actions in discharging the firearm was a reaction in the heat of the moment to him being the victim of a crime and an attempt on his life. [ 24 ] And further, if I have a reasonable doubt on specific intent, the Crown will have to rely on the lesser included offence of reckless discharge of a firearm contrary to s 244.2(1)(b). CROWN [ 25 ] Ms.

Greenwood, Crown Counsel throughout the trial, begins by saying that while it is clear from the evidence that the first element – reasonable belief that force was being used against him - the defence has not satisfied the second and third elements required to establish self-defence beyond a reasonable doubt. [ 26 ] First, she argues that at a point in the confrontation between the accused and the two people in the van who initiated the gun play, he became the aggressor by choosing not to flee, but rather to run after the van and to continue to shoot at them. [ 27 ] Second, she submits that while Deverze could have immediately left the scene in his car, he chose to get out and shoot back.

During the investigation, when asked by a detective why he didn’t leave, he did not say that the car wouldn’t start, as he stated later in his testimony. [ 28 ] Third, even if he is to be believed that the car wouldn’t start he had the option of escaping by running away from the scene, as he ultimately did.

Instead, he ran after the van and fired four more shots at it and its occupants. [ 29 ] Fourth, in his testimony Deverze stated that it did not cross his mind that the persons shooting at him were people whom he had been advised were looking for him as a result of a prior confrontation in Montreal several months earlier, so the factors set out in s 34(2)(

f) and (f.1) would not apply in assessing his motive/response. [ 30 ] Finally, Ms. Greenwood addressed the intent issue. She submits, as she did when the directed verdict arguments were discussed, that the evidence, even coming from the accused, clearly established that Deverze was aiming at the van’s driver’s side door, knowing that there was someone sitting in the driver’s seat, which is key to assessing his intent, and whether his discharge of the firearm was intentional, or simply careless. ANALYSIS [ 31 ] It clear from the decision of the Supreme Court in R v Khill , 2021 SCC 37 that the amended

Section 34 has made self-defence more accessible. [ 32 ] In that decision, Justice Martin, writing for the majority, at paragraphs 1 and 2, states: “The law of self-defence plays an important

part in the criminal law and in society. At the core of the defence is the sanctity of human life and physical inviolability of the person. Preserving life and limb operates to explain both why the law allows individuals to resist external threats and why the law imposes limits on the responsive action taken against others in its name. Life is precious. Any legal basis for taking it must be defined with care and circumspection. 1. The contours of our law of self-defence are tied to our notions of culpability, moral blameworthiness and acceptable human behaviour.

To the extent self-defence morally justifies or excuses an accused’s otherwise criminal conduct and renders it non culpable, it cannot rest exclusively on the accused’s perception of the need to act. Put another way, killing or injuring another cannot be lawful simply because the accused believed it was necessary. Self-defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances.

A fact finder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation.” [ 33 ] The facts in Khill involved a homicide perpetrated by the accused. He was acquitted at trial, a new trial was ordered on appeal, and the Supreme Court agreed. The error relied upon by both the Ontario Court of Appeal and the Supreme Court was that the trial Judge had not instructed the jury adequately on the role of the accused in the incident and that failure may have had a material impact on the verdict.

[ 34 ] In the matter before me, from the testimony of the accused, he advised Detective Ross of the reason he had a gun. He testified that he had been involved some months before in a fight at a house party in Montreal. [ 35 ] He further testified that in a matter of weeks before the incident he had received a phone call from Megan, a friend, advising him that a party known as Killabee knew his address and was out to do him harm. [ 36 ] When he didn’t take the matter seriously, he was advised by another friend, Tristan, that he should. Thereafter, Tristan became, in the submissions of Mr.

Jugnauth, his bodyguard, and would accompany him when he was in public. [ 37 ] He advised that on the morning of the incident he chose not to wake Tristan when he went out to pick up his boxing trainer, but he was sufficiently worried about the threat that he picked up Tristan’s gun to arm himself. [ 38 ] I conclude that the accused was aware that a confrontation was a possibility – a possibility that shortly thereafter took place. [ 39 ] As mentioned earlier, Ms.

Greenwood concedes that force was being used against the accused. [ 40 ] With respect to s 34(1)(b), the accused in his testimony argues that he was simply shooting at the van to give him time to escape the scene. He states that his actions were an appropriate response in the circumstances. [ 41 ] Mr. Jugnauth submits that the accused shooting back at the van was his only reasonable alternative. [ 42 ] He also submits that his client’s response was proportional to the threat and force being used against him. [ 43 ] Mr.

Jugnauth reminds me of the Ontario Court of Appeal decision of R v Cunha , 2016 ONCA 491 in respect of the proportionality of the response. [ 44 ] Cunha was charged with intentional discharge of a firearm with intent to would, contrary to s 244 and one count of aggravated assault, contrary to s 268. He was convicted at trial, where the Judge rejected the submission of self-defence, and the Court of Appeal ordered a new trial, holding that the trial Judge held Cunha to too high a standard of conduct when reviewing proportionality. [ 45 ] At paragraph 7 of their decision, the Court held: “7.

As for the objective element of the offence, it is accepted that in considering the reasonableness of the defendant’s use of defensive force, the Court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.” [ 46 ] Other decisions referenced by Mr. Jugnauth follow the same train of judicial thought on reasonableness and intent – R v R S , 2019 0NCA 832; R v Obong unreported, ABKB September 13, 2022; R v Tag El Din , 2019 ABQB 317 ; R v Effert , 2021 ABCA 388 . [ 47 ] In his submissions, Mr.

Jugnauth advises that his client’s actions in the incident were “heat of the moment” actions. [ 48 ] Ms. Greenwood, in her submissions, reminds the Court that the accused’s own testimony the van was backing up when Deverze was shooting at it. [ 49 ] Addressing the accused’s purpose in responding to the use of force, she refers to paragraph 60 and 61 in Khill (supra), where Justice Martin states: “60.

The motive provision also distinguishes self-defence from other situations that may involve the excusable or authorized application of force by an accused, such as preventing the commission of an offence (s 27), defence of property (s 35) or citizen’s arrest (s 494). Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point in time.

The range of reasonable responses will be different depending on whether the accused’s purpose is to defend property, effect an arrest, or defend themselves or another from the use of force. “61. An accused’s purpose for acting may evolve as an incident progresses or escalates.

Parliament’s decision to modify the law of defence of person, defence of property and citizen’s arrest under a single bill recognized this overlap, as each is “directly relevant to the broader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves and to others” ( House of Commons Debates, vol. 146, No. 58, 1 st Sess., 41 st Parl., December 1, 2011, at p. 3833 (Robert Goguen)). Initial steps taken to defend one’s property may transition into a situation of self-defence.

Likewise, separate defences may rightly apply to distinct offences or phases of an incident ( R v Cormier , 2017 NBCA 10 at para.67.) At the same time, great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their stated purpose. [ 50 ] Clarity of purpose is not meant to categorize the accused’s conduct in discrete silos, but instead appreciate the full context of a confrontation, how it evolved and the accused’s role, if any, in bringing that evolution about.

As recognized by the then-Parliamentary Secretary for the Minister of Justice at second reading, “all of these laws, any one of which may be pertinent to a given case, must be clear, flexible and provide the right balance between self-help and the resort to police. That is why all these measures are joined together in Bill C-26” ( House of Commons Debates, vol. 146, No. 58, at p. 3833 (Robert Goguen)).” [ 51 ] With respect to s 34(

b) Ms. Greenwood points out that while Deverze was the victim in the early seconds of the incident, he then became the aggressor. [ 52 ] In the matter before me the accused was aware for some time that there were individuals in Calgary who were intent on doing him harm as a result of an earlier physical altercation in Montreal. [ 53 ] The nature and manner in which others intended to do harm to him was not known.

[ 54 ] He had a friend accompany him as a guard when he was in public. [ 55 ] On the day of the incident he was in possession of a handgun for which he did not possess a licence. [ 56 ] He used the handgun in response to being shot at by persons in a van. [ 57 ] Ms. Greenwood submits that when it appeared that his motive to get those shooting at him to retreat was happening, he then became the aggressor by running after the van and continued shooting at it. Ms.

Greenwood states that at that point he was no longer defending himself; rather, at that point his motive was to endanger lives of the occupants of the van. [ 58 ] She submits that his actions at that point does not satisfy s 34(1)(b), and self-defence does not apply. [ 59 ] She then turns to s 34(1)(

c) and submits that the accused’s response was not reasonable in the circumstances, nor do those actions conform to community norms. [ 60 ] She submits that the accused had the option of leaving the scene, either in his car, or on foot. He could have called 911, even if he was illegally in possession of a handgun. But he became the aggressor and did neither at this point in the confrontation; rather, he ran after the retreating van, all the while continuing to shoot at the van’s driver’s side. [ 61 ] I conclude in all the circumstances that Deverze had a pretty good idea that the people shooting at him were the people he had been warned about by his friends. If that is so, then factors (

f) and (f.1) are relevant to my assessment. [ 62 ] Ms.

Greenwood again references Khill (supra), in her submissions: “89. (part) Self-defence is not meant to be an insurance policy or self-help mechanism to pro-actively take the law – and the lives of other citizens – into one’s hands. [ 63 ] My assessment is that the actions of the accused in response to the threat or use of force being used against him changed from victim to aggressor during the incident and were not reasonable in the circumstances. [ 64 ] Therefore, the accused cannot avail himself of the principles of self-defence on either the second or third subsections of s 34(1). [ 65 ] However, Mr.

Jugnauth submits that Count 4 is a specific intent offence, and the evidence does not support a finding of intent to endanger life on the part of his client. [ 66 ] I disagree. In my opinion the evidence shows that Deverze shot at the driver’s side door, knowing that there were individuals in both the driver’s seat and front passenger seat.

He did not point it at the ground, or into the air, or in any direction other than at the van. [ 67 ] Even in his own testimony, Deverze admitted that he was firing his handgun at the driver’s side of the van, knowing that there was someone in the driver’s seat. [ 68 ] In my opinion a reasonable person in a comparable situation would have immediately left the scene, either in his vehicle or on foot. [ 69 ] Also, individuals who carry handguns in public who are not licensed to do so do not in my opinion fall within the definition of a “reasonable” person, as contemplated by Parliament or the Supreme Court of Canada.

VERDICTS [ 70 ] I find the accused guilty of Counts 1, 2, 4, 5 and 6 on the information. Delivered orally on the 31 st day of July, 2023. Dated at the City of Calgary, Alberta this 1 st day of August, 2023. B.C. Stevenson A Justice of the Alberta Court of Justice

Appearances: Rosalind Greenwood for the Crown Derek Jugnauth for the Accused