Her Majesty the Queen - v. -, 2013 SKPC 114

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 114 Date: July 17, 2013 Information: 36654832 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brent Lyle Caswell Appearing: Ms. S. Fillo For the Crown Mr. G. Curtis For the Accused JUDGMENT B.G. MORGAN , J Issue [ 1 ] On October 30, 2012, at his home in Saskatoon, Mr. Caswell struck the complainant Janelle Thomas, leading to a charge of assault under s. 266 of the Criminal Code , proceeded with summarily. The matter came to trial on June 12, 2013, and Mr.

Caswell’s defence is that he was protecting his personal property when he used reasonable force to prevent Ms. Thomas from destroying his personal property.

[ 2 ] At the time of the assault, the defence of property was dealt with under five different sections of the Criminal Code (see ss. 38 - 42 ).

The defence of person was dealt with under three different sections of the Criminal Code (see ss. 34 , 35 and 37 ). [ 3 ] Between the date of the occurrence, and the date of the trial, all of those sections were repealed and replaced by the Citizens Arrest and Self-defence Act , which came into force on March 11, 2013. [ 4 ] The first issue is to determine what sections of the Criminal Code apply to this trial; the ones in force at the time of the alleged offence, or the ones in force at the time of the trial. Once that is resolved, the applicable law has to be applied to the facts of this case to see if Mr.

Caswell is guilty. The Law [ 5 ] A basis tenet of

interpretation of new legislation is that it is presumed that Parliament did not intend new legislation to be given retroactive application, which would apply the new law such as to change the legal effect of a past situation. This is a strong presumption that can only be rebutted if the statute contains language clearly indicating that it, or some part of it, is meant to apply retroactively. [1] [ 6 ] A way to deal with that question was recently addressed in the case of R. v.

Dineley , 2012 SCC 58 , a case in which the Court was dealing with the issue of the effect of the amendments to the drinking and driving sections of the Criminal Code which affected the so called “ Carter defence”. The Court held that the long recognized practice is that: Where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively. . . .

However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases (see para. 10 citations omitted). [ 7 ] The Court then goes on to state: Not all provisions dealing with procedure will have retrospective effect. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately . . .

Thus, the key task in determining the temporal application of the Amendments at issue in the instant case lies not in labelling the provisions “procedural” or “substantive”, but in discerning whether they affect substantive rights. [ 8 ] Three recent cases have dealt with the question of the retrospectivity of the Amendments to the self-defence provisions of the Criminal Code in situations similar to the one at bar, that is, that the trial proceeded after the Amendments were proclaimed in force, dealing with an offence that was alleged to have been committed under the “old” law.

Although they all deal with the defence of person provisions, as opposed to the defence of property provisions at issue in this case, the reasoning is equally applicable to this situation. [ 9 ] In R. v. Evans , 2013 BCSC 462 , a judgment dated March 15, 2013, Fisher J. of that Court concluded that the new self- defence provisions effected a substantive change to the content of the defence, concluding that the amendments must be applied in a prospective manner only.

He held that there was nothing in the legislation which indicated a clear intent of Parliament that the amendments be applied retrospectively, with the result that the new legislation would only apply from March 13, 2013 forward. Thus, he instructed the jury under the old provisions of the Code , the alleged aggravated assault in issue having occurred March 6, 2011. [ 10 ] The next case in time, R. v. Parker , 2013 ONCJ 195 , was a situation with an alleged offence date of January 16, 2012, and a trial date of March 27, 2013.

Judge Paciocco of the Ontario Court of Justice, after considering both the Dineley and Evans cases,

rejected the Evans approach. He noted firstly that the “old” s. 34(1) had clear application to the facts of that case, and that he would consider it. He then, after analysing the situation, stated that he would also consider the new s. 34 dealing with self-defence of person, as in his view the new provisions were intended to reflect society’s views at the time they were passed, and on that basis, it made no sense to him to deny individuals tried after that date the benefit of those new defences. As he put it: There is, in my view, no public interest in convicting someone of

an act that is considered and declared by Parliament by the time of trial to have social approval and not to be wrong, even if that declaration occurred after the event in question. He went on to state: Since defences are used in criminal cases to prevent deprivations of liberty, the foundational rationale for non-retroactivity is in my view undermined when it comes to new defences. .....

Parliament can and should be taken to intend that when a new defence is created, accused persons yet to be tried for previous alleged offences should have access to that defence where it operates more generously for them than the prior law” (see para. 5). He therefore considered both defences, the “old” and the “new”. [ 11 ] The most recent decision is from the Ontario Superior Court of Justice in R. v. Pandurevic , 2013 ONSC 2978 . In that case, the accused was charged with first degree murder alleged to have occurred on July 31, 2010.

On April 8, 2013, before his trial, he raised the issue with the trial judge, MacDonell J. as to which provisions of the Code should be applied to his trial: the “old self-defence provisions, or the new one”.

It was clear from a reading of the case that self-defence was a central issue in the trial and accordingly, prior to commencing the trial, both counsel wanted to know what instructions would be given to the jury respecting self-defence. [ 12 ] The trial judge started by noting that the applicable overall rule is that Parliament was presumed to have intended that legislation affecting substantive rights would not be applied retroactively or retrospectively, although that presumption is rebuttable.

In looking at whether or not that presumption would be rebutted in this case, it was noted that the purpose of the legislation, the mischief that the legislation was intended to cure, and the consequences of applying that legislation one way or the other need to be looked at. [ 13 ] The judge noted that for years, academics and courts of various jurisdictions had been critical of the confusing and sometimes contradictory self-defence rules, ultimately concluding that the intent of Parliament was to address that defect in the law.

Citing reports and/or comments made by Parliamentarians or committees looking into the then-proposed amendments, he noted that “the new defences extract from the old provisions the common core elements of each defence, and codify those core elements in a single simple framework that is capable of assessing a defence claim in any situation” (see para. 22). [ 14 ] The judge specifically held that Parliament’s aim in enacting the amendments ...“was not to alter the essential nature of the defence of self-defence.

The intention, rather, was to put an end to a situation that was an embarrassment to the rule of law” (see para. 23, emphasis in quote). The judge went on to take the view Parliament intended judges to “immediately begin to assess claims of self- defence under the amended provisions regardless of whether the allegedly defensive acts occurred before or after March 11, 2013.

That is, it points towards a retrospective application of the amendments” (see para. 24). [ 15 ] In my view, s. 25 of that judgment contains the single best rationale for applying the legislation immediately: To hold otherwise would put the remedial goals of the legislation on hold, and would leave the evils that the legislation was intended to cure to linger, perhaps for years, continuing to damage the repute of the administration of justice. It would leave the criminal trial courts with two versions of self-defence, one of which has been almost universally labelled as unsatisfactory.

Further, it would leave those whose claim to self-defence involved conduct preceding March 11, 2013 but whose trials occurred after that date in the anomalous position of being unable to claim the benefit of amendments designed not to alter the essential nature of their defence but to clarify and foster more reliable assessments of it.

[ 16 ] This theme that the legislation was intended to clarify and simplify the law came through in each of the decisions in Evans , Parker and Pandurevic .

Whereas each case came up with a different conclusion as to how to apply the amendments, all three judgments note that the old law required judges or juries to try to pigeon hole a defence into a certain specific section, whereas Judge Paciocco noted in Parker , “[S]ome of the things that were firm preconditions in some self-defence situations are now simply factors to be considered at arriving at a more generic assessment of reasonableness...” (see para. 2 of Parker, supra ). [ 17 ] MacDonnell J. concluded Panduveric by holding that the jury would be instructed to consider the new s. 34 in its deliberations. [ 18 ] I agree with both the rationale and the result in the decision of MacDonnell J. and have determined that, in the case before me, I will apply the new defence of property provisions. [ 19 ] I note that s. 27 was also raised by the defence, a

section of the Code that allows for the use of force by an individual to prevent the commission of an offence. That

section was not affected by the amendments, and although it remains in force, in light of my decision on this preliminary issue, I will not consider it. The Facts [ 20 ] The background facts themselves are not in dispute and were attested to by the sole Crown witness, Ms. Thomas, and the sole defence witness, Mr. Caswell. As might be expected, some details of the evidence are in dispute, and I will deal with that conflicting evidence in due course. However, by way of background, I am satisfied of the following facts. [ 21 ] Mr. Caswell and Ms.

Thomas had been in an on again, off again relationship for approximately two years prior to the alleged offence date of October 30, 2012, although the parties never lived together. Prior to that date, for at least a few weeks, the relationship had been marred by increasing acrimony between the parties; it is clear that the relationship was in its final stages. [ 22 ] At that time, the parties had one child, eighteen month old Sarah, and Ms. Thomas had a five year old daughter, Shirley, from a previous relationship. Both those children were in the custody of Mr. Caswell. [ 23 ] On October 30, 2012, Mr.

Caswell contacted Ms. Thomas and asked her if she wanted to come to his house in Saskatoon to carve a pumpkin, this being the day before Hallowe’en. Ms. Thomas accepted that invitation, and Mr. Caswell picked her up at work and brought her back to his house. Each party has a different recollection of what time this was, but I am satisfied that the events that followed occurred in the early evening. [ 24 ] According to both parties, some verbal sparring was going on. Ms.

Thomas took both children into the bathroom to bathe them, the argument being unresolved. [ 25 ] At some point, either in the bathroom or in the adjacent living room, Mr. Caswell lit a cigarette, which according to Ms. Thomas was against the rules that they had in the house. Ms. Thomas testified that Mr. Caswell came into the bathroom with the cigarette, and she demanded that he immediately get out, as Ms. Thomas did not want the children exposed to cigarette smoke. This smoking incident exacerbated an already tense situation, and Ms. Thomas was insisting that Mr.

Caswell get the cigarette, and/or himself, out of the house. Nothing turns on these particulars: what did happen, I find, is that Ms. Thomas told Mr. Caswell that she was going to break his television if he did not leave the house with the cigarette, and picked up and brandished a microwave tray that was sitting on a table in the living room. She was at this point within a few feet of a large screen television, the object of her threat. Mr. Caswell immediately grabbed the other end of the tray, both parties then tugging at it, trying to loosen the other’s grip. [ 26 ] I find that Ms.

Thomas grabbed the microwave tray in order to make good on her threat, and I am satisfied that Mr. Caswell

grabbed the other end of the microwave tray to prevent that threatened event occurring. [ 27 ] I am also satisfied that during this struggle, Mr. Caswell let go of the tray with his right hand, and struck Ms. Thomas on her left shoulder/upper arm area, in an effort to have her loosen her grip. She did so, the tray was put down, and Mr. Caswell’s cigarette somehow ended up outside. [ 28 ] A main conflict in the evidence deals with the type of blow struck. According to Ms. Thomas, the blow was in the nature of a punch with a closed fist, and this caused some bruising to occur for three or four days.

According to Mr. Caswell, the blow was more of a “thump” on her shoulder delivered with his arm extended such that he struck her with the meaty part of the underside of the hand, that is, the area immediately next to his little finger, and was definitely not a punch. [ 29 ] In any event, as indicated, that blow seemed to end the struggle for the tray, and Ms. Thomas immediately went to the phone to call 911. As she was placing that call, Mr. Caswell did pull the phone cord out of the wall, effectively terminating the call, an action which he acknowledged at trial was a mistake.

As he put it in his examination-in-chief, he was “trying to diffuse the situation”. [ 30 ] During cross-examination, Ms. Thomas candidly admitted that she had destroyed property in Mr. Caswell’s home in the past, possibly three or four times, which I infer relates to the period of time they were together. She agreed that she “supposed she had a temper” and acknowledged that she had damaged his coffee table and his door in the past, those being the only two incidents she could specifically remember. [ 31 ] Mr. Caswell’s evidence was that he struck Ms.

Thomas based on his past knowledge of what she had done, and as he put it “if I hadn’t done what I did I would lose the TV”. [ 32 ] Mr. Caswell had testified that he was sitting on the couch in the living room when Ms. Thomas came flying out of the bathroom, and that he wasn’t in the bathroom with a cigarette. It was apparent to me as a result of the verbal argument he had been in with Ms. Thomas, he was quite frustrated, and decided to light up a cigarette for whatever salutary effect that might have on his mood.

He said he had been sitting on the couch for perhaps five seconds when she came running out and “I knew she was going to do something”, causing him to pick up the other end of the microwave tray that she had grabbed in order to prevent her from doing so. [ 33 ] These details are immaterial, and a discrepancy in the evidence of each party is not of any consequence. The essential details are as I have laid them out above. [ 34 ] Although I found Ms.

Thomas to be a very good witness generally, very fair and obviously willing to admit to suggestions put to her in cross-examination that she had previously damaged property, I am not satisfied that the blow delivered by Mr. Caswell was a punch. However, as in some of the other matters, not a lot turns on the exact mechanics of the blow that was struck. I am satisfied the blow, however it mechanically came about, was not overly hard, and I am satisfied that it was struck in an effort to discourage Ms.

Thomas from continuing what I find to be her settled intention to hurl the microwave tray into the adjacent television set. [ 35 ] With respect to Mr. Caswell, he presented as a very agitated and a self-righteous witness. He obviously didn’t like Ms. Thomas, and he seemed somewhat preoccupied with his theory, which was not put to Ms. Thomas in cross-examination, that the reason she called the police was to assist in her goal to acquire custody of the children, custody of both of whom he had by agreement with Ms. Thomas. Mr. Caswell volunteered that he thought Ms.

Thomas was still mad at him as he wouldn’t agree to give her custody of their child, and he stated as well that she had specifically asked him to give him custody “on paper” so that she could make a fraudulent claim to Social Services for support for that child. I am satisfied that Ms. Thomas had no such intent, whereas she may well have been wanting to get custody of her children back, she’d also indicated that she was content with the situation, and I certainly don’t attribute any dishonest motives to Ms. Thomas. [ 36 ] What that leaves me with, then, is a fairly straightforward situation: accepting that Mr.

Caswell did in fact strike Ms. Thomas for the purpose of protecting his property, does he have a defence under s. 35 of the new amendments?

[ 37 ] In my view, s. 35 does afford a defence to Mr. Caswell. The relevant portions of s. 35 read as follows: s. 35(1) A person is not guilty of an offence if

a) they either believe on reasonable grounds they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

b) they believe on reasonable grounds that another person . . . is about to damage or destroy the property, or make it inoperative, or is doing so;

c) the act that constitutes the offence is committed for the purpose of . . . preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

d) the act committed is reasonable in the circumstances. [ 38 ] With respect to the first factor, Mr. Caswell was in peaceable possession of his personal property contained in his real property. Peaceable possession merely means property that ownership of which is not in issue. [ 39 ] With respect to the second factor, I find Mr. Caswell had reasonable grounds to believe that Ms. Thomas was about to smash his television.

By her own admission, she had done damage to his property in the past, she had a temper, and irrespective of that, she had specifically said that is what she was about to do, and to further that end, she had picked up a microwave tray to do precisely what she was threatening to do. [ 40 ] With respect to the third factor, I am equally satisfied that Mr. Caswell did what he did for the specific purpose of preventing Ms. Thomas from carrying out her intended purpose of destroying his personal property. [ 41 ] With respect to the fourth factor, I am satisfied that the blow Mr. Caswell directed at Ms.

Thomas was reasonable in the circumstances. It was not an overly hard blow, even though Ms. Thomas claims it caused some bruising. However, I do not accept that to be the case. [ 42 ] Further, Mr. Caswell only struck one blow, and made no efforts to continue the fight once he had disarmed, if you will, Ms. Thomas, and dissuaded her from making good on her threat to damage or destroy his property. The blow was a proportionate response to actions of Ms. Thomas, and no more. [ 43 ] One could infer that Mr.

Caswell was still angry from the fact that he ripped the cord for the phone out of the wall, and perhaps draw the inference that his anger was such that his blow was intended to be an assault, not a measured response to a threat to his property. On the facts of this case, I am not able to draw that inference. Although ripping the phone cord out of the wall was an improper thing to do, this was overall an inflamed situation, and Mr. Caswell took no other aggressive steps that evening. [ 44 ] I am satisfied that the actions of Mr.

Caswell throughout that evening do not meet the constituent elements of an assault in these circumstances, and that the protection offered by s. 35 is applicable to these facts. I dismiss the information against him. Conclusion

[ 45 ] I prefer the analysis under s. 35 of the new law, as it more accurately reflects the relevant considerations and societal values at stake. The end result is that Mr. Caswell is not guilty. ________________________ B.G. Morgan, J [1] Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes , 4 th ed., (Markham: Butterworth Canada Ltd., 2002) at p. 546.