R. v. Moulton, 2011 NSPC 48

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Moulton, 2011 NSPC 48 Date: 15/7/11 Docket: 2219032 2219033 2219034 2219035 Registry: Halifax Between: Her Majesty the Queen v. Wayne Moulton Judge: The Honourable Judge Castor H.F.

Williams Trial Held: July 13, 2011 Decision Read: July 15, 2011 Charge: 430(4); 264.1(1)(a); x 2; 266 CC Counsel: Christine Driscoll, counsel for the Crown Lee Seshagiri, counsel for the Defendant Introduction [ 1 ] The accused, Wayne Moulton, is charged with the offences that he wilfully committed property damage, knowingly uttered threats to cause bodily harm or death to Park Priest and Allan LaPierre and, in addition, he unlawfully assaulted Allan LaPierre. The accused has denied these allegations and has submitted that any alleged property damage that occurred was not wilful but accidental.

Likewise, any words that he uttered in the presence of the complainants were generic in nature. Moreover, the words were not directed at them specifically but were said in anger and frustration and not intended to be taken seriously.

[ 2 ] In addition, he has submitted that he was the victim of an unprovoked assault that he did not commence and, in the circumstances, as he feared for his safety from the violence directed at him by Priest and LaPierre when they honestly but unlawfully tried to restrain him. Consequently, and, as a result, he was justified in using counter-force to defend himself. [ 3 ] This case is therefore a determination of whether there is evidence, beyond a reasonable doubt, to sustain a conviction of the charges, as alleged.

Findings of Facts [ 4 ] On a consideration of the total evidence and after hearing counsel submissions, I accept and find that the accused suffered from a litany of medical and physiological complaints and conditions including chronic back pain, arthritis and breathing problems. Also, he was on pain medications that, in his opinion, did not relieve his pain. I accept and find that he went to the QE11 Emergency Department seeking to receive a stronger medication for his pain.

Further, I accept and find that the attending physician denied his request for a stronger pain killing medication other than which was prescribed by his own doctor, who was on vacation. This perfunctory denial made him angry, upset and frustrated. I so find. [ 5 ] Additionally, I accept and find that the accused, although not wheelchair dependent, was seated and using a wheelchair during his hospital visit.

Upon the denial to receive a stronger pain killing medication, I accept and find that the accused, in his angry and frustrated state of mind, wheeled himself out of the treatment room and with great force pushed open the semi-closed door with his foot that caused it to strike against the door stop on the adjacent wall. The force of the door striking the door stop caused it to collapse into the wall and, as a result, created a visible hole in the wall. [ 6 ] I accept and find that the accused neither saw nor was he aware that his actions had resulted in creating a hole in the wall.

Nonetheless, I accept and find that Priest and LaPierre, who were the attending paramedics, heard the banging noise and upon investigation discovered that there was a hole in the wall behind the door.

Likewise, I accept and find that one or both of them accosted the accused, who was still seated in the wheelchair and collecting his personal possessions from a bench in a nearby corridor, concerning the damage. [ 7 ] Furthermore, I accept and find that the accused denied causing any property damage, became agitated and w while reaching into his pocket, in a loud voice said: “ I am going to kill somebody. ” The paramedics, who were standing about four feet from him and fearing for their safety and that of other patients, rushed toward him to control his arms and to restrain him.

I so find. [ 8 ] Furthermore, I accept and find that a struggle occurred with the accused strenuously resisting and with the paramedics trying to control the movements of his arms. In this melee, the wheelchair, in which the accused was still seated, tipped backwards and collapsed to the floor with both paramedics still in close contact and still struggling to control him. LaPierre ’ s hand was around the accused face who was struggling to breathe. In those set of circumstances, I accept and find that the accused bit LaPierre on his right forearm. Analysis (

a) Property damage contrary to s. 430(4) [ 9 ] On my observation of the witnesses as they testified and on my assessment of their testimonies and on my finding of facts, I conclude and find that the damage to the property was not wilful. I say so as, in my opinion, the accused action neither was deliberate nor done on purpose. It was not done by his own choice or volitionally. In his anger and frustration, and while seated in the wheelchair, he forcibly pushed the door open, but, even so, it was not his intention to cause any damage to any property.

Furthermore, I conclude and find that, in his present state of mind, he was not even aware that his pushing the door open had caused the door to strike the wall with such a force that he created a hole in it.

(

b) Threats to cause bodily harm or death contrary to s. 264.1(1)(a) [ 10 ] In my opinion, the words uttered: “ I will kill somebody, ” accompanied by the gesture of putting his hand in his pocket, contextually and viewed objectively in the circumstances in which they were spoken would convey, to a reasonable person a threat of serious bodily harm. In my view, it is immaterial that he did not specifically name his intended victims as the paramedics. They, in my opinion, would be included in his unspecified group of intended victims. After all, he was speaking to them. He was four feet away, angry and screaming.

Moreover, I conclude and find that in his anger and frustration from the denial of his anticipated pain killing medication his words were intended to be intimidating. Thus, in my opinion, the paramedics reasonably concluded, given the overall set of circumstances including his agitation when combined with his overt conduct of reaching into his pocket, that his utterance was a threat to their own safety and took his words seriously. (

c) Unlawful assault contrary to s. 266 [ 11 ] Priest and LaPierre asserted that for safety reasons they rushed the accused to restrain him. In other words they asserted that they reacted in the belief that they were in reasonable apprehension of bodily harm. However, they were standing four feet away from the accused and he was seated in the wheelchair and had made no overt threatening movements towards them. Security and the police had been called. True, I accept and find that the accused may have been a potential threat.

But on the evidence, including a viewing of the security video, Exhibit 2, he was not, in my opinion, an imminent physical threat to anyone. He had just put on his hat and had retrieved his shoes and did not appear to make any movements toward the paramedics. It, however, would appear that at least one got into his pathway of an exit from the area. [ 12 ] The evidence suggests and it could reasonably be inferred that they did not want him to leave due to the alleged property damage and also that security and the police were called but had not arrived on the scene.

Thus, given their honest belief that he had threatened them, the paramedics, in my opinion, honestly but mistakenly felt that they had some justifications, in the dynamic set of circumstances, to apply force to his person in order to either disarm and neutralize him or detain him in the process until the police arrived. [ 13 ] However, on the evidence and in my opinion, the accused had not assaulted either of them to justify any application of force to his person subsequent to an assault to prevent him from causing grievous bodily harm to either of them.

Likewise, on the evidence that I accept, it was not established that they had reasonable grounds to believe that he had the present ability to effect his stated purpose. They neither warned him to take his hand out of his pocket nor that they would apply force to him if he did not remove his hand from his pocket. They surmised that he had some sort of device in his pocket that could cause them harm when in fact he did not. [ 14 ] Thus, without determining or ascertaining what if anything the accused had in his pocket, the necessity of preserving themselves from grievous bodily harm, in my opinion, did not arise.

Moreover, given their duties and training protocol, as revealed in evidence, in my opinion, they should have retreated away from the accused and kept him under surveillance until security or the police arrived on the scene. [ 15 ] In my view, being threatened does not necessarily justify one preemptively applying force to the person who uttered the threat. Here, it seems to be the case.

Also, in my opinion, this was not the case where the application of force, on reasonable grounds was reasonably necessary to prevent the commission of an offence that was likely to cause immediate and serous injury to the paramedics or any other person. Thus, I think that although the paramedics might have acted in good faith, they, however, in the set of circumstances, were honestly mistaken and, in law, not justified in applying force to the person of the accused. [ 16 ] In the result, I find that the accused was justified in repelling force with force.

He physically resisted when seated in a wheelchair that tipped over backwards while he was still seated that created, for him, a dangerous physical set of injurious scenarios that could have caused him grievous bodily harm or even death. I accept and find that reasonably, he feared for his physical safety. Likewise, I accept and find that he was highly agitated and was unable to breathe property. His hands were being controlled by the paramedics.

He panicked with fear of the reasonable apprehension of injury. [ 17 ] Thus, I accept and find that the only thing he could do, in those set of circumstances, was to bite at a hand that was restraining him in order to repel and to break the constrictive force being applied to his person. I further accept and find that he was under a reasonable

apprehension of grievous bodily harm occasioned by the force applied by the paramedics and others. Additionally, I accept and find that he bit the restraining hand as he believed, on reasonable grounds, that he could not otherwise preserve himself from grievous bodily harm. In the result, he is entitled to the defence of self-defence in the face of an aggression which he neither provoked nor intended to cause any grievous bodily harm to his aggressors. Conclusions [ 18 ] Therefore, on the evidence before me and on my findings of facts and on the above analysis, I conclude and find that: (

a) the Crown has not proved beyond a reasonable doubt that the accused willfully damaged property. In the result, I find him not guilty as charged and an acquittal will be entered on the record. (

b) in the set of circumstances, as presented, the Crown has proved beyond a reasonable doubt that contextually and objectively to a reasonable person, the words uttered by the accused: “ I will kill somebody, ” constituted a threat to cause bodily harm to the paramedics, Priest and LaPierre. In the result, I find him guilty as charged and convictions will be entered on the record. (

c) with respect to the charge of assaulting LaPierre, the testimony of the accused has raised, at least in my mind, reasonable doubt and he has satisfied me on the issue of the justifiable defensive action of self-defence. Consequently, I find him not guilty of the offence of assaulting LaPierre and an acquittal will be entered on the record.