R. v. J.N.N. Date:, 2016 BCPC 471

Citation: R. v. J.N.N. Date: 20160111 2016 BCPC 471 File No: 2148-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. J.N.N. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: S. Patola Counsel for the Defendant: K. Wyllie Place of Hearing: Nelson , B.C. Date of Hearing: January 11, 2016 Date of Judgment: January 11, 2016

[ 1 ] This is a case about the line between stupidity and criminal negligence. [ 2 ] J.N.N. stands charged in the Youth Justice Court of British Columbia with one count of criminal negligence causing bodily harm. The Crown alleges that he fired a pellet gun and hit S.E. in the leg. The incident occurred in the kitchen of his father’s home near Harrop, British Columbia on August 4, 2015. Bodily harm has been admitted. The only question is whether J.N.N.’s conduct constituted criminal negligence. [ 3 ] On that date, J.N.N. had spent the afternoon in the company of a number of his friends.

They included his brother N.N., his friend F.D., and the complainant S.E. Ms. E. was Mr. D.’s girlfriend. They had gone swimming and then returned to the house owned by J.N.N.’s father. J.N.N.’s father was not there, but his father’s girlfriend was outside in the garden. [ 4 ] J.N.N. was 16 at the time of this incident. F.D. was the same age, and S.E. was a year younger. N.N. was 14 years old. [ 5 ] Neither J.N.N. nor his friends had consumed alcohol or drugs on the date of the incident. There was no acrimony or hard feelings amongst the four of them. [ 6 ] The four friends went into the kitchen. Mr. D. and Ms.

E. were together near a table, and N.N. was sitting facing them in a chair. J.N.N. went outside on the deck, where a pellet gun was lying on top of the barbecue. [ 7 ] The pellet gun had been a gift several years earlier from a friend of the N. family. It was used by J.N.N. and N.N., as well as by their father. F.D. had also used the pellet gun in the past. [ 8 ] J.N.N. testified that his father had taught him how to use the pellet gun.

He said that his father had told him to assume that a pellet gun was loaded when he picked it up, and never to point the muzzle at a person. [ 9 ] Constable Badry described the pellet gun in evidence. The gun could be loaded and fired in two different ways. One way was by placing pellets directly into the chamber through a port on the right side of the action, and then pumping the forestock to increase the air pressure. The other way was to load a number of pellets into the tubular magazine through a port on the left side of the action.

One pellet would be loaded from the magazine into the chamber when the operator pumped the forestock. Regardless of which way the pellet gun was loaded, the operator would fire one pellet when the trigger was pulled. [ 10 ] The pellet gun could be dry fired. If the pellet gun was pumped and the trigger was pulled with no pellet in the chamber, the pumped up air would be discharged through the barrel of the gun making a sound similar to the sound when a pellet was discharged. J.N.N. testified that about a week before this incident, Mr.

D. had pumped and fired the unloaded pellet gun at the feet of J.N.N. and his brother as a joke. Mr. D. was asked about that, but could not remember it. [ 11 ] J.N.N. testified that he picked up the pellet gun, opened the port on the right-hand side and checked that there were was not a pellet in the chamber. He did not see a pellet in the chamber. Then he pumped the forestock two or three times as he walked back into the kitchen. He was holding the pellet gun at his hip, with the muzzle ahead of him and pointing down. When he was a few feet from where Ms. E. and Mr.

D. were sitting at the table, he pulled the trigger. He said that he was not aiming at Ms. E. [ 12 ] The pellet gun fired a single pellet, which struck Ms. E. in the upper thigh. I infer that there had been at least one pellet in the magazine, and that this pellet was loaded into the chamber when J.N.N. pumped the forestock. J.N.N. testified that he did not know that the pellet gun had a magazine until he heard Constable Badry describe it during the evidence at the trial. N.N. and F.D., who were both also occasional users of this pellet gun, both also denied knowing that the gun had a magazine.

Every witness who had fired this pellet gun had loaded single pellets directly into the chamber through the port on the right side of the action. [ 13 ] Initially, Ms. E. does not appear to have realized that she had been shot. She laughed, but when she saw the hole made by the pellet and the blood beginning to flow, she became very upset. She was taken to the hospital by Mr. D. The pellet could not be removed by the medical staff in the emergency room, and it remained in her thigh until a successful surgery in March 2015. Ms.

E. still suffers recurring pain, although her mobility has almost entirely returned. [ 14 ] J.N.N. testified that he did not think there was a pellet in the chamber of the gun when he pulled the trigger. He said, “I just wanted to play a joke and have a laugh. I never meant to hurt anyone.” F.D. testified that immediately after he fired the pellet, J.N.N. said words to the effect that it was just air. S.E. said that right after he shot her, J.N.N. apologized, and asked if they were still friends.

LAW [ 15 ] The law that is engaged in this matter is not in dispute, although the result that an application of that law to these facts will lead to is. [ 16 ] First, the offence of criminal negligence causing bodily harm is governed by

section 219 of the Criminal Code . That

section provides: 219(1) Everyone is criminally negligent who (

a) in doing anything, or (

b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives of or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law.

[17] Second, in this case as in all criminal cases the burden of proof is on the Crown. The Crown must prove the essential elementsof the offence of criminal negligence beyond a reasonable doubt. [18] Third, for any particular act to be considered

an act of criminal negligence, the act must be a marked and substantial departurefrom the standard of a reasonable person in the circumstances. The assessment of the accused’s conduct is informed by the facts and bythe accused’s perception of those facts. The test requires behaviour that creates a risk and fault in going through with the behaviour whenthe accused ought to have known that the conduct would create the risk. I draw these principles from the decision of the BritishColumbia Court of Appeal in R. v.

W.(D.J.), 2011 BCCA 522. [19] Finally, since the accused has testified and the credibility of his evidence is important, I must remind myself that the principleof reasonable doubt applies to his evidence as well. In

summary, • If I believe the evidence of the accused, I must acquit. • If after a careful consideration of the evidence, I am unable to decide whom to believe, I must acquit. • If I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit. • If the accused’s evidence does not raise a reasonable doubt, if I reject his evidence, I must look to the whole of the evidence whichI do accept to determine whether, on the remaining evidence before the Court, the Crown has proven each of the elements of the offencebeyond a reasonable doubt. [20] The courts of this country have dealt with other incidents in which a prank went horribly wrong, and resulted in charges ofcriminal negligence.

Thirty years ago, in R. v. M.(C.G.), 1986 Carswell NS 548, the Nova Scotia Youth Court considered the case of a15-year-old charged with manslaughter after he shot his stepsister with a shotgun. He claimed he was trying to play a joke on her byscaring her with the shotgun while she was watching a horror movie. He was acquitted, but the analysis of criminal negligence predatesmany of the authorities that are binding on me, and the case is of limited usefulness. [21] In R. v. Barron (1985), (ON CA), 23 C.C.C. (3d) 544 (Ont.

C.A.), the Ontario Court of Appeal consideredthe case of a teenager who convinced a friend to go streaking with him at a party. The friend hesitated at the top of a flight of stairs, andthe accused gave him a slight push on the back. The friend lost his balance and fell, suffering injuries that led to his death. The accusedneither intended nor expected that his friend would lose his balance or be forced down the stairs. The Ontario Court of Appealoverturned the conviction, and substituted an acquittal.

The Court held that the combination of minimal force and momentaryinadvertence was sufficient to constitute a departure from the standards of a reasonable man in the circumstances and in that senseconstituted the civil tort of negligence. However, the court went on, for behaviour to constitute criminal negligence there had to be amarked and substantial departure from the standard of reasonable person, and the evidence failed to establish that. [22] In R. v.

Chalmers, 1984 Carswell Ont 2119 (Ont S.C.), two young men who had been drinking together to the point ofintoxication stepped out on the balcony of an apartment. The accused decided to give his friend a scare by pushing him towards therailing, but the friend lost his balance and fell 12 floors to his death. He was convicted of criminal negligence, but like the decision in R.v. M.(C.G.), the analysis of the conduct was made without the benefit of subsequent binding decisions and is for that reason of littleassistance to me. [23] Much more recently, in R. v.

Landry, 2015 SKPC 156, the Saskatchewan Provincial Court considered a charge of criminalnegligence arising out of a stabbing during a party. A number of young people were at a going away party for a friend. The friend and hisgirlfriend the complainant retired to his bedroom, and shortly afterward, the accused and others entered the bedroom in a jovial manner.The accused found a knife belonging to his friend on a table in the bedroom. He opened it and was playing with it. The accused trippedwhile holding the knife, and stabbed the complainant while falling.

The court found that the accused had been negligent, and that hisconduct was dangerous, but that it did not depart so far from the standard of care of a reasonable person that it could constitute criminalnegligence. He was found not guilty. ANALYSIS [24] The evidence in this case establishes that, at the end of a pleasant afternoon with friends, it occurred to the accused that heshould play a prank on Ms. E. and Mr. D. by dry firing a pellet gun. He intended to scare them the way that Mr. D. had scared him aweek previously. He picked up a pellet gun, and checked the chamber. He saw no pellet in the chamber.

He pumped the forestock two orthree times as he entered the kitchen. He was carrying the pellet gun at his hip with the muzzle pointed in the general direction of Ms. E.Without warning, he pulled the trigger, believing the chamber to still be empty. A pellet from the magazine had been loaded into thechamber, and was fired into Ms. E.’s upper thigh. [25] The Crown argues that the accused might be found guilty on the basis that he omitted to prove the pellet gun safe after hepicked it up from the barbecue. However, section 219 (2) makes it clear that the omission must be the omission of a duty imposed bylaw.

Although common sense calls for anyone using a pellet gun to know how to make it safe, it is not clear to me that any particular lawimposed a duty on the accused to do so in the circumstances of this case. [26] The Crown relies more heavily on the accused’s act of pointing the pellet gun in the direction of Ms. E., and pulling the trigger,as the act of criminal negligence. [27] The accused testified that he did not know that the pellet gun had a magazine, or that a pellet in the magazine would be loadedinto the chamber when he pumped the forestock. This evidence is critical.

Somebody with access to the pellet gun before the day of theincident must have known that there was a magazine, in order to have loaded at least one pellet into it. According to the accused, Mr. D.had dry fired the pellet gun a week previously, as a joke on the accused and his brother. Since Mr. D. must have performed the sameseries of steps in relation to the pellet gun the week before that the accused had performed on the day of the incident, but without loadinga pellet from the magazine, I infer that the pellet in the magazine on the date of the incident had been loaded into the magazine within

the last week. However, the accused, his brother and Mr. D. all denied knowledge of the existence of the magazine in the pellet gun. In the absence of any evidence to the contrary, I must accept the accused’s evidence that he did not realize that the magazine existed, and that he had no reason to think that a pellet would be fired when he pulled the trigger. [ 28 ] Pointing the pellet gun in the direction of Ms. E. and firing it was a stupid thing to do. If this were a civil trial for negligence, the accused would be found liable, because a reasonable person would have foreseen that an accident might happen.

However, this is a criminal trial, and the Crown must prove beyond a reasonable doubt that the accused showed a wanton and reckless disregard for the safety of others. Proof of conduct of that nature requires not just a departure from the standard of a reasonable person in the circumstances, but a marked and substantial departure. The evidence falls short of that, and I find the accused not guilty. The Honourable Judge Hewson