R. v. Hass, 2019 BCPC 28

Citation: R. v. Hass 2019 BCPC 28 Date: 20190128 File No: 40664-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEREK RUSSELL HASS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: L. Fontaine Counsel for the Defendant: D. Marshall Place of Hearing: Duncan , B.C. Date of Hearing: January 28, 2019 Date of Judgment: January 28, 2019 [ 1 ] THE COURT: In this trial Mr. Derek Russell Hass pleads not guilty to one count of assault causing bodily harm, contrary to

section 267 (

a) of the Criminal Code . [ 2 ] MS. FONTAINE: Sorry, it's assault with a weapon, not causing bodily harm. [ 3 ] THE COURT: I'm sorry, assault with a weapon, sorry. [ 4 ] MS. FONTAINE: Yes, thank you. [ 5 ] THE COURT: Contrary to

section 267 (

a) of the Criminal Code .

[ 6 ] At issue in the trial is whether the Crown has proven beyond a reasonable doubt that Mr. Hass was not acting in self-defence when he struck the complainant, Robert Haslam, with a baseball bat in the early-morning hours of January 18, 2018, near Shawnigan Lake in British Columbia. [ 7 ] The defence of self-defence is raised firstly in the statement given by Mr. Hass to police within hours of his altercation with Mr. Haslam. The defence of self-defence is also evident and arises out of much of the testimony, although not all of the testimony, of Mr.

Haslam. [ 8 ] The parties' testimony is remarkably congruent but for a brief instance measured in mere seconds. To put matters in context, this incident, which I find was regrettable and entirely unnecessary, occurred largely because Mr. Hass took it upon himself not only to patrol his neighbourhood, but also to investigate the presence of Mr. Haslam in a public parking lot. It is the case, and I accept, that Mr. Hass, who lives in a secluded rural area, felt besieged by intruders.

He told police he was awoken in the early-morning hours of January 18th by an alarm that signalled a potential entry into his tool shed. He investigated and came upon a vehicle that eluded him. Mr. Hass found himself back on the road where he saw Mr. Haslam driving by. Mr. Hass followed Mr. Haslam's vehicle to the Kinsol Trestle parking lot. He stopped behind him, and the two quickly engaged. [ 9 ] The driver, Mr. Haslam, age 51 at the time, was employed by Mainroad South Island Contracting Limited. Mr. Haslam was working that evening, the 11 p.m. to 6 a.m. shift.

He testified that as part of his duties he checks the roads in his regions for potholes and dead animals and the sort. Mr. Haslam recalled pulling into the parking lot. It was for the purpose of taking his break. He testified that it was a good area to rest, that it included restroom facilities, and it was his custom to do so. Mr. Haslam also assumed that the truck that pulled in behind him was the vehicle of a co-worker, and he got out to visit with his co-worker. Instead, he met with Mr. Hass, who was still in his vehicle. [ 10 ] Both agree that Mr.

Hass had a flashlight, and was shining that flashlight into the face of Mr. Haslam. Mr. Hass wanted to know why Mr. Haslam was in the area. He wanted to know why he was in the parking lot, and Mr. Hass was not satisfied with Mr. Haslam's repeated replies that he was working. [ 11 ] Both agree that Mr. Hass called Mr. Haslam a crack addict. Mr. Hass accused Mr. Haslam of stealing the vehicle he was driving, and of stealing from homes in the area. Both agree that each of the men lost their patience with the other and both became angry. Both agree that Mr.

Hass eventually got out of his vehicle, and here is where the evidence diverges. [ 12 ] The question becomes whether ultimately Mr. Hass struck Mr. Haslam first, or whether Mr. Haslam struck or applied the use of force or the threat of the use of force against Mr. Hass. Whichever way it came about, both parties also agree that Mr. Hass hit Mr. Haslam, firstly on the legs with a bat. Mr. Haslam thought it was a stick. In any event, Mr. Haslam thereafter came after Mr. Hass. It is, I find, clear on the evidence that following that first strike, Mr. Hass was for the most part backing away from Mr.

Haslam, albeit with the bat still in his hand. Mr. Hass was saying in no uncertain terms to Mr. Haslam, "Don't come towards me or I'll kill you." He was trying to retreat. Mr. Haslam was frank in his evidence today and in his statements to police. At that point his position was that he was going to approach Mr. Hass, potentially to engage in a physical fight with him. When told by Mr. Hass that he would be killed if he continued to come toward him, Mr. Haslam frankly admitted he told Mr. Hass that he might be killed or severely injured if Mr. Haslam got to him first. In these circumstances, Mr. Hass hit Mr.

Haslam two times more. The last strike was on the side of Mr. Haslam's head causing Mr. Haslam to fall down, and enabling Mr. Hass to retreat. Before Mr. Hass was able to get out of the area entirely Mr. Haslam got his licence plate number, and thereafter made a call to police and police engaged in the investigation soon after. [ 13 ] I have noted that at issue in this case is the defence of self-defence, set out under

section 34 of the Criminal Code . The self- defence provision provides firstly that 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. Here the question is whether or not the Crown has negatived this first part of the test. [ 14 ] First of all, of course, Mr. Hass' position is that he had reasonable grounds to believe that a threat of force was being used. He told police, as I say, not long after the incident, that when he got out of the vehicle Mr.

Haslam firstly knocked the flashlight out of his hand. It caused him then to reach quickly into his vehicle to grab a bat and to use that as a method of self-defence to fend off what he considered or what he suspected was the approach of Mr. Haslam for the purpose of causing him harm. [ 15 ] Mr. Haslam for his part testified, as I have said, that the parties argued, that lots of words were being used. I believe Mr. Haslam's evidence was something like, he decided at a certain point that matters were not going to resolve, that he was never going to convince Mr. Hass that he was there legitimately engaging in work.

So he decided to leave, turned to go to his vehicle, heard Mr. Hass behind him, turned back, and that is when he was struck by the baseball bat. It is Mr. Haslam's evidence that he was struck first, and of course it is Mr. Hass' statement to police that it was Mr. Haslam who was the aggressor. [ 16 ] All of this evidence was evidence called by the Crown. In this case it is the Crown that bears the burden of negativing the defence of self-defence beyond a reasonable doubt. The difficulty here, at least for the Crown, is that the Crown has presented contradictory evidence in its own case.

There is evidence in the trial that supports Mr. Hass; that is his statement to police that he thought that force was going to be used or was being used against him. At the same time there is evidence supporting the testimony of Mr. Haslam, and that is the testimony of Mr. Haslam, which is that he was turning to leave when he was struck with no provocation by Mr. Hass. [ 17 ] As I say, it is important to bear in mind that the Crown bears the onus of proof beyond a reasonable doubt. I do not, for example, have to disbelieve Mr.

Haslam, but I have to be satisfied beyond a reasonable doubt on all of the evidence that was admitted in this trial, that Mr. Hass was not acting in self-defence, and in that regard I cannot be satisfied beyond a reasonable doubt on all of the evidence. As I have indicated earlier, Mr. Hass gave a statement to police that was given very close after the incident. It is a statement that is closely aligned with the evidence of Mr. Haslam. As I say, the parties are apart with respect to an instance that can be measured in seconds. [ 18 ] There was little time for either party to make up a story, so to speak.

It is, in my view, how each of the parties perceived

events. I am unable to determine beyond a reasonable doubt which recollection of the events that occurred is the accurate recollection. For that reason firstly, I do not find that the Crown has established beyond a reasonable doubt that Mr. Hass did not believe on reasonable grounds that the use of force was being used against him, or a threat of force was being made against him when he says that he struck Mr.

Haslam with a baseball bat. [ 19 ] The Crown submits also that the strike in the head particularly was a disproportionate response in all of the circumstances with respect to the nature of the threat that was being faced by Mr. Hass. That brings into play section 34(2) of the Criminal Code . To step back for a moment, section 34(1), as I say, provides that a person is not guilty of an offence if they believe on reasonable grounds that force is being used against them, and I find that that is entirely possible on the evidence before me.

Secondly, that the act that constitutes the offence is committed for the purposes of defending or protecting themselves or another person from that use of threat or force, and that applies in this particular case. Thirdly, whether or not the act committed is reasonable in the circumstances, and that really raises the issue of proportionality at the end of the day. [ 20 ] To determine whether the act committed is reasonable in all of the circumstances, subsection 34(2) sets out a number of factors.

They are not exhaustive, but there is a list of factors that the court has to take into consideration in determining whether the act committed was reasonable in the circumstances. Again I note that the submission in this case is that the strike or the blow to Mr. Haslam's head with the bat was unreasonable in the circumstances relative to the threat that was posed by Mr. Haslam knocking the flashlight out of Mr. Hass' hands. [ 21 ] The factors to consider include firstly the nature of the threat. At the point of the strike on Mr.

Haslam’s head, in my view the nature of the threat is well past the nature of the threat that may have existed in respect of the first blow. That is to say, what occurred before the first blow, being the flashlight being pushed out of the hand. At that point, as Mr. Hass told police at least, in his view it became necessary to reach into his vehicle, quickly grab the baseball bat and use that as a defensive weapon to fend off what he thought was a threat of Mr. Haslam's approach. [ 22 ] By the time Mr. Haslam is struck on the head, Mr. Haslam has already been struck twice. In Mr.

Haslam's own testimony, after that first strike, it is he who is moving towards Mr. Hass. Mr. Haslam makes no apology for that. I make no finding one way or the other in that regard. I think Mr. Haslam was very clear as to his views at that particular point in time, but it is the case that just prior to Mr. Haslam being struck in the head by Mr. Hass with the baseball bat, Mr. Hass had backed up some distance, had urged Mr. Haslam not to come anywhere towards him lest he be dealt a blow, and Mr. Haslam, as I say, despite that, was coming towards Mr. Hass. There is no question of that. As Mr.

Haslam testified, at that point he saw Mr. Hass as a coward. He knew at that point, by his own admission, that Mr. Hass was in way over his head, and he was determined if he could, first of all to shorten the distance between himself and Mr. Hass such as to limit any blows with respect to the weapon that Mr. Hass had in his hand, but also if the opportunity arose, to put his hands around Mr. Hass' neck and cause him significant bodily harm, if not death. [ 23 ] It was in those circumstances, where Mr.

Hass had already delivered two blows with the baseball bat, and yet those blows did not have the effect of discouraging Mr. Haslam from coming toward Mr. Hass, and continuing to threaten bodily harm if not worse, that Mr. Hass struck Mr. Haslam on the head. I find in those circumstances that the blow to the head, although extremely unfortunate, cannot be said to be disproportionate. It is for those reasons that I find that the defence of self-defence has been made out. It has not been negatived beyond a reasonable doubt. Mr.

Hass is entitled to the defence of self-defence and he is entitled to an acquittal on Count 1 of this information. (REASONS CONCLUDED)