Her Majesty the Queen - v. -, 2013 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 053 Date: March 20, 2013 Information: 44840687 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - E.B.K.

Appearing: James Fitz-Gerald For the Crown Corinne Maeder For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. _____________________________________________________________________________ JUDGMENT B. TOMKINS , J _____________________________________________________________________________

[ 1 ] E.B.K., who is 15 years old, is charged under the Youth Criminal Justice Act with assault causing bodily harm contrary to

section 267 (

b) of the Criminal Code . The charge arises from an incident that occurred on September 16, 2012 in Regina, Saskatchewan. FACTS [ 2 ] These are the facts as I find them. [ 3 ] On September 16, 2012, Kyle Klassen heard people outside the front of his home and looked out the window to see who was there. He saw two young men near and touching a boat trailer in the driveway. As he watched, one of the young men walked toward the house and looked over the gate. [ 4 ] That man walked back to the other and they started walking north on the city sidewalk in front of the house.

Curious, Kyle Klassen watched them and saw them turn onto the bay at the corner; this bay borders the side of the Klassen’s corner lot. [ 5 ] Mr. Klassen moved to a different room so he could continue to observe the two young men. He saw them take the path to the back yard gate, reach over to open the gate and then enter the back yard. [ 6 ] They walked up two steps onto the back deck and one began rummaging through bags of cans on the deck. The other - who he identified as E.B.K. - put his face to the glass and looked closely into the house through the double doors on the back.

Presumably to block the reflection of light and get a better view while doing this, he put his hands to the sides of his face. [ 7 ] Kyle Klassen then went down to the deck level of the home as he thought the young men might come in. As he walked toward the deck doors, the accused backed away. Mr. Klassen opened the door, yelled and both young men ran across the deck to the gate and back to the bay they had entered from. Mr. Klassen gave chase. [ 8 ] The two men went in different directions; Mr. Klassen chased E.B.K. The chase lasted for about two blocks. At that point, Mr.

Klassen caught E.B.K., grabbed him around the waist and they both fell to the ground. Mr. Klassen straddled E.B.K. They struggled. E.B.K. was trying to get away and Mr. Klassen was trying to hold him on the ground. [ 9 ] To this point, there is no significant disagreement between the evidence of Mr. Klassen and E.B.K. THE STRUGGLE [ 10 ] Here is where the evidence of these two witnesses diverges. [ 11 ] Mr. Klassen said that shortly the struggle ended. They got up and he took hold of the back of E.B.K.’s sweater and took him to the sidewalk. He made him sit down and continued to hold E.B.K.

Eventually, it appeared to Mr. Klassen that E.B.K. had given up and he loosened his grip on his sweater. E.B.K. turned and kicked Mr. Klassen, striking him in the head, mostly on his right temple. [ 12 ] At about this time, a neighbour came. Mr. Klassen asked Richard Eastland to hold E.B.K. so he could get his breath back. Mr. Eastland held him until the police came and took him into custody. Mr. Klassen was then taken to hospital by ambulance. [ 13 ] E.B.K. agrees he was chased by Mr. Klassen. He said that when Mr.

Klassen caught up, he grabbed E.B.K. by the waist and took him to the ground. (He got a bloody lip in the course of the incident and thinks this is likely when it was injured.)

[ 14 ] E.B.K. said Mr. Klassen pushed his face into and rubbed it in the dirt. While doing this, he said “How do you like that?” [ 15 ] E.B.K. rolled onto his back and kicked upward. He said he kicked instinctively to break Mr. Klassen’s hold and to get away. He agreed, in his words, that he “must have hit him”. He said he just wanted to get away, did not aim the kick and could not see where he was kicking. He said he “would have preferred to have kicked him in the chest”. [ 16 ] E.B.K. said he and his companion were simply cutting through the Klassen’s yard, he thought.

He did not know his friend was going to look through the bottles and that he did not think his friend intended to steal any. [ 17 ] He admitted he looked through the window and that he did this to make sure no one was coming since they were cutting through the yard. [ 18 ] On this evidence, E.B.K. is charged with assault causing bodily harm on Kyle Klassen. ARGUMENT [ 19 ] The Crown argued that E.B.K. and his companion were engaged in the commission of a criminal act - either committing mischief or attempting theft.

E.B.K., by looking in the window and standing watch - was a participant in those offences. [ 20 ] As such, Mr. Klassen could lawfully apprehend them pursuant to

section 494 of the Criminal Code . He could use reasonable force to do so. [ 21 ] For the defence, it was argued that E.B.K. was not engaged in the commission of a criminal act but only the provincial offence of trespass. Therefore, Mr. Klassen had no lawful authority to apprehend him and E.B.K. could lawfully use force to resist the unlawful arrest. [ 22 ] Alternatively, E.B.K. argued that if the arrest was otherwise lawful, Mr. Klassen used excessive force in making the arrest and E.B.K. might lawfully resist provided the force he used to resist was not excessive. He said it was not. ANALYSIS [ 23 ]

Section 494 of the Code reads as follows: 494.

(1) Any one may arrest without warrant (

a) a person whom he finds committing an indictable offence; or (

b) a person who, on reasonable grounds, he believes (

i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

(2) Any one who is (

a) the owner or a person in lawful possession of property, or

(

b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer. [ 24 ] Mr. Klassen was a person in lawful possession of the house and yard at the time of this incident. He lived there with his mother, his siblings and his niece. Thus, this case falls under section 494(2). [ 25 ] E.B.K. said he was not committing any criminal offence while or by being in the Klassen’s yard.

He said that he and his companion were simply cutting through the Klassen’s yard or that he thought that was their purpose in being there. [ 26 ] I do not accept E.B.K.’s evidence in this regard. While his evidence in chief was smooth, it did not stand up to cross- examination. Further, he did not explain why, if his purpose was to cut through the yard, he and his friend went directly onto the deck attached to the house; this is where they would not go if they were simply cutting through. [ 27 ] E.B.K. admitted that once in the back yard, he watched to make sure no one was coming.

He did not explain how this might relate to cutting through the yard. How long would he look through the window before he would be assured no one was coming and he could actually cut through the yard? His explanation for peering in the window has no air of reality. [ 28 ] Further, from the drawing filed as P1 and the map filed as D3, I cannot find anywhere to which one might gain access by cutting through the Klassen’s yard. [ 29 ] For these reasons, I do not accept E.B.K.’s evidence as to his purpose for being in the Klassen’s back yard.

Nor am I left in reasonable doubt on the matter. [ 30 ] The Crown argued that the young men’s purpose was to commit theft and that they were so engaged at the time Mr. Klassen observed them. I am not satisfied that this has been proven. [ 31 ] The evidence suggests that E.B.K.’s companion likely intended to and perhaps attempted to remove some of the cans from the deck. Whether or not E.B.K. intended to steal from the Klassen’s yard, his actions in standing watch assisted his companion in his likely attempt to do so. If so and as such, E.B.K. would be party to his companion’s offence.

However, the evidence does not establish beyond reasonable doubt that any theft was committed or attempted. [ 32 ] The Crown argued in the alternative that E.B.K. and his companion were committing the offence of mischief in that their conduct interfered with Mr. Klassen’s lawful use and enjoyment of the property. [ 33 ]

Section 430 of the Criminal Code reads as follows: 430.

(1) Every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[ 34 ] It is subsection 430(1)(

d) which is at issue in this case. [ 35 ] On behalf of E.B.K., it was submitted that for purposes of

section 430 , the interference with the enjoyment of property requires that there be interference with the enjoyment of possession of the property, not simply interference with one’s comfort or pleasure in and on the property. In this regard, I was referred to the case of Larocque v. The Queen. [1] In that case, the Court concluded that “enjoyment” in

section 430 refers to interference in relation to property or rights in property, not simply the pleasure, comfort or convenience of the person in possession. [ 36 ] On the other hand, the Saskatchewan Court of Appeal, in R. v. Godron [2] , held that swimming naked in a public pool interfered with the lawful use and enjoyment of other patrons of the pool. Although clearly not comparable on the facts, it is implicit in this decision that the accused’s actions could not have interfered with the possession, as defined by Justice Fish in Drapeau [3] , which was quoted and relied on by the Court in Larocque .

Thus, in my view, our Court of Appeal gave the words “enjoyment of property”, for purposes of

section 430 , their ordinary meaning. [ 37 ] While that decision was made in regard to subsection 430 (c), I cannot see any reason that a similar

interpretation would not be applied to subsection (

d) which uses the same words in a similar context. [ 38 ] As such, I am satisfied that E.B.K. and his companion were engaged in the criminal offence of mischief at the time Mr. Klassen observed them and gave chase. Their actions interfered with Mr. Klassen’s lawful use and enjoyment of the property and went well beyond mere presence without permission, such as would constitute a provincial Trespass Act offence. Pursuant to section 494(2), therefore, Mr. Klassen was entitled to undertake pursuit and arrest E.B.K. and his companion. THE ASSAULT [ 39 ] E.B.K. argued that the kick to Mr.

Klassen was not directed at any particular part of Mr. Klassen’s body but was an instinctive reaction to break Mr. Klassen’s hold and to get away. He said he was still face first into the ground, rolled and could not see where the kick landed. [ 40 ] However, in cross-examination, E.B.K. said that while Mr. Klassen had him pinned down, he rolled over. Mr. Klassen then got up. It was after Mr. Klassen got up that E.B.K. levelled the kick. This makes sense as it would be difficult to kick in the manner Mr. Klassen and E.B.K. described if Mr.

Klassen was still on top of E.B.K. [ 41 ] Even if the kick was in response to having his face rubbed in the dirt, it occurred after Mr. Klassen got up and in that sense had retreated. Given that any force by Mr. Klassen had at least temporarily ended, the kick was necessarily excessive force, if it was made in self-defence at all. [ 42 ] Thus, whether I accept Mr. Klassen’s evidence that the kick occurred when he lessened his grip on E.B.K. while they sat on the sidewalk after the struggle had ended or E.B.K.’s evidence that the kick occurred after Mr.

Klassen got up off E.B.K., the kick was unlawful. [ 43 ] Given these conclusions, it is not necessary that I determine whether Mr. Klassen pressed E.B.K.’s face into the ground and said “How do you like that?” Were it necessary to decide, I am inclined to believe that he did not. [ 44 ] E.B.K. said his face was rubbed into the dirt yet neither Richard Eastland nor Constable Slatnik observed dirt on E.B.K.’s face. Mr. Eastland, who did not witness the take-down or struggle, said the E.B.K. had red cheeks and conceded that there might have been dirt on his face but the latter response was guarded and unconvincing.

[ 45 ] While I find Mr. Klassen to have testified in a straightforward manner without exaggeration or minimizing and while I do not accept E.B.K.’s evidence on this point, I cannot say that it does not raise a reasonable doubt. I have proceeded on the basis that the face rubbing did occur. ASSAULT CAUSING BODILY HARM [ 46 ] For the reasons given above, I am satisfied that E.B.K. assaulted Mr. Klassen. The final question is whether the assault caused bodily harm. [ 47 ] After the kick, Mr. Klassen said he immediately “saw stars” and developed a headache. He vomited three times; E.B.K. confirmed that he heard Mr.

Klassen vomit. [ 48 ] Mr. Klassen was taken to hospital and spent a few hours there. He said he suffered headaches, blurred vision, nausea and was unusually tired for about three weeks after the incident. He was off work for about a week and a half. [ 49 ] While the Defence took issue with Mr. Klassen’s evidence that he suffered a concussion, I think the actual diagnosis is unnecessary. The uncontradicted evidence is that Mr.

Klassen suffered symptoms that compromised his day-to-day life for a period of three weeks and that he missed a week and a half of work. [ 50 ] This is well beyond transient or trifling and it clearly, to use the words of

section 2 of the Criminal Code , interfered “with the health or comfort of the person”. CONCLUSION [ 51 ] For all of these reasons, E.B.K. is guilty of assault causing bodily harm. B. Tomkins, J [1] 1997 CarswellQue 3922 (Quebec S.C.) [2] 2000 SKCA 148

[3] (Q.C.C.A.)