Her Majesty the Queen - v. -, 2013 SKPC 170

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: October 15, 2013 Citation: 2013 SKPC 170 Information: 24398839 Location: Moosomin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Peter John Arkinstall Appearing: B. Stricker For the Crown D. Hallvorsen For the Accused JUDGMENT P. KOSKIE , J [ 1 ] The Accused is charged with a number of offences, the first being an assault contrary to s. 266 of the Criminal Code . [ 2 ] I will deal with this charge first due to the interrelated nature of the other three charges.

[ 3 ] The evidence before me is straightforward. On the night in question, the Accused and his girlfriend were drinking after work. At around 10:30-11:00 they decided to go to bed and got into an argument. The Accused flipped out and cleared off the dresser causing a number of items to fall and crash to the floor. The Accused then grabbed his girlfriend by the throat, pushed her into the closet and onto the bed, where he choked her.

The Accused poured beer, lotion and lime green nail polish onto his girlfriend’s hair. [ 4 ] This evidence is undisputed and accordingly I find the Accused guilty of count one, the assault. [ 5 ] Immediately after assaulting his girlfriend, the Accused took a utility knife out of the tool kit and by action indicated he was going to cut his wrists and took off in a truck to accomplish this task. [ 6 ] The girlfriend and other friends located at the home contacted the police to let them know what was transpiring.

The police then attempted to find this vehicle in order to stop this gentleman from killing himself. [ 7 ] Further the Accused got a hold of his boss, John Roberts who then called the police and told them he had talked to the Accused who let him know how he had already cut his wrist and that he didn’t want the police involved or otherwise he would slit his throat or try to get killed by the police and advised he wished to kill himself. [ 8 ] Now armed with the proper cell number and vehicle the police were able to locate the general location of the vehicle from his cell phone and the tower that his call had used. [ 9 ] The ensuing chase and subsequent actions of the Accused make up the three remaining charges; operating a motor vehicle did fail to stop without reasonable excuse contrary to s. 249.1(1), dangerous driving contrary to s. 249(1) and lastly, possession of a weapon to wit utility knife contrary to

section 88 of the Criminal Code . [ 10 ] In the course of this police chase the Accused held his arm out the window where it was observed his wrist was cut and he was bleeding. Further, in the course of the Accused’s conversation with the police while the chase was on, he told the police he wished to be left alone to die. [ 11 ] The police on being advised of the Accused’s intention to commit suicide tried to locate the truck and using OnTrac they were able to locate his whereabouts. [ 12 ] Once the truck was located, a chase ensued.

There were a number of Crown witnesses called and the estimate of speed varied from 150-170 kms on the Trans Canada during the course of the chase. In addition, the duration of this period varied dramatically between police witnesses. Ultimately the evidence is clear that the police vehicles were governed to 170 kms and were able to catch up to the Accused and keep up with him.

Therefore, the Accused was travelling at a slower speed on divided highway. [ 13 ] Eventually, a spike belt was attempted without success and the Accused turned off onto gravel travelling at speeds of 110 kms to 120 kms on gravel. [ 14 ] Once the chase ensued the Accused was talking to the police advising them to leave him alone. A deal was struck that if the police turned off their emergency lights and slowed down he would slow down as well. This is exactly what occurred.

Although the police lost contact with the Accused as a result of the breach of trust they exhibited in attempting to use the spike belt. [ 15 ] The Accused eventually drove into a farmer’s field and was located by the police using a police dog. The Accused was found with both his wrists cut and in bad shape having lost a lot of blood and moving in and out of consciousness. [ 16 ] I observed a video of the police chase and note there was no other traffic except for the police vehicles and the Accused’s

vehicle. The Accused stayed in his lane of traffic and although the speeds exceeded the speed limit, nothing in the driving itself was unusual. [ 17 ] The Accused did not testify and in a nutshell the Defence suggests that it was not illegal for the Accused to commit suicide and as a result the police are not in execution of their duty and had no lawful authority to stop the Accused. [ 18 ] No police officer testified that the Accused was being stopped to check for sobriety or driver registration and licence. Issues

(1) Were the rights of the accused pursuant to

section 9 of the Charter violated?

(2) Did the accused for the purpose of evading a police officer fail without reasonable excuse to stop his vehicle as soon as was reasonable in the circumstances contrary to

section 249.1(1) of the Criminal Code ?

(3) Did the accused operate his vehicle in a manner that was dangerous to the public contrary to

section 249 of the Criminal Code ?

(4) Did the accused have in his possession a weapon for a purpose dangerous to the public peace contrary to

section 88 of the Criminal Code ? Question 1 [ 19 ] The Defence argues that the pursuit and detention of the Accused was unlawful and in violation of his rights pursuant to

section 9 of the Charter . In assessing the merits of this argument, the following questions must be asked: (

a) was the Accused committing an illegal act while he was being pursued? (

b) if the answer to (

a) is “no”, do the police have any other powers which may justify the pursuit and detention of the accused? (

a) Is suicide an offence under the Criminal Code ? [ 20 ] The only reason for the pursuit cited by the arresting officer was that the accused had stated he was going to commit suicide. [1] This raises the question of whether attempting suicide is an offence at law. This question must be answered in the negative. In 1972, Parliament removed the offence of attempted suicide from the Criminal Code . [2] As it now stands, only counseling, aiding, or abetting someone to commit suicide is an offence under the Criminal Code . [3] (

b) Do the police have any other powers which may justify the pursuit and detention of the accused? [ 21 ] As suicide is not an offence, other reasons for the pursuit and detention must be offered. There are three ways in which the stop and detention may be justified. Only the third possibility, however, can be used on the facts in this case.

(

i) Traffic Safety Act [ 22 ] Under

section 209.1(1)(

a) of The Traffic Safety Act , “[a] peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities”. [ 23 ] In interpreting a similar section, the Supreme Court of Canada has interpreted this

section to mean that an officer only can stop an individual for legal reasons. These reasons have been restricted to “checking for sobriety, licences, ownership, insurance, and the mechanical fitness of the vehicle”. [4] None of these were cited as reasons for the stop and therefore the stop cannot be justified pursuant to the TSA . (ii) Mann Detention [ 24 ] An investigatory detention, commonly known as a Mann detention, could also be used to justify the stop.

This requires that the police have a reasonable suspicion that an accused has committed an offence. [5] However, as those following the Accused did not state that they were doing so because they suspected an actual offence had been committed, it is not possible to have detained the Accused legally in this matter. (iii) Ancillary Police Powers [ 25 ] The common law recognizes that the police have certain powers ancillary to their duties. These powers include “preservation of the peace, the prevention of crime, and the protection of life and property”. This was applied in Saskatchewan by Mr. Justice Walker in R. v.

Pashovitz . [6] The English decision of R. v. Waterfield , [7] adopted in Dedman v. The Queen , [8] sets out the test for determining the scope of powers ancillary to these duties where the police conduct, prima facie, interferes with a person ’ s liberty or property. Essentially, police conduct will be authorized by the common law if two criteria are met:

(1) The police were acting in the course of their duty when they effected that interference; and

(2) The conduct of the police did not involve an unjustifiable use of powers in the circumstances. [ 26 ] The police duty to “protect life” includes preventing death or serious injury. [9] As a result, it is fair to say that on the facts of this case the police were acting in the course of their duty as the pursuit and ultimate detention of Mr. Arkinstall was for the purpose of protecting his life. [ 27 ] The second branch of the Waterfield test asks whether the exercise of police power was justified in the circumstances. In R. v. Simpson , [10] quoted approvingly by the Supreme Court of Canada in R. v.

Godoy , [11] Justice Doherty described what is meant by a “ justifiable ” use of police power as follows: ... the justifiability of an officer ’ s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. [12] [ 28 ] In order to preserve the life of Mr.

Arkinstall, it was necessary for the police to require the Accused to pull over so that they could get Mr. Arkinstall the necessary medical attention. Concerning the detention, the Accused had stated that he would end his life by any means necessary, including doing unspecified conduct to have himself killed by the police. Given these circumstances, officer safety

required that Mr. Arkinstall be detained in order to protect the officers and the Accused’s lives. Given the importance of the duty being performed, and the nature and extent of the liberty interfered with being minimal in the circumstances, the police on these facts were acting within their ancillary power to protect both the life of Mr. Arkinstall, and their own lives. [ 29 ] As a result, application of the Waterfield test allows for the ancillary police power to pursue and detain an operator of a motor vehicle who is attempting to commit suicide. Question 2 [ 30 ]

Section 249.1(1) states that “[e]very one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances”. As such, the elements of the offence require the Crown prove beyond a reasonable doubt that the Accused: (

a) failed to stop the vehicle as soon as reasonable in the circumstances; (

b) did not have a reasonable excuse to stop his or her vehicle; and (

c) intended to evade the police. [13] [ 31 ] The first element is not contentious. The Accused had ample opportunity to pull his vehicle over. [ 32 ] The second element turns on whether or not the Accused was required to pull his vehicle over for the reasons stated by the officer. The Accused argues that the police were not acting within their duties when they requested that he pull over and as such that he has a reasonable excuse for not pulling over. I have found that the police did have a duty to protect life both of the Accused, the police and the driving public.

Therefore, this position has no merit. [ 33 ] Finally, given that the Accused asked the officers to “back off”, threatening to slit his throat if they did not comply, the Accused knew he was evading the police. As a result, all of the elements of the offence are made out. Question 3 [ 34 ] Section 249(1) (

a) of the Criminal Code states that “[e]very one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”. This offence, when charged in tandem with

section 249.1(1) , does not offend the Kienapple principle. [14] [ 35 ] In R. v. Beatty , [15] Justice Charron, writing for the majority, confirmed that the modified objective test as laid out in R. v. Hundal , [16] applies to charges of dangerous driving. Justice Charron summarized the applicable elements of the test as follows: (

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “ dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place ” . (

b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused ’ s objectively dangerous conduct was accompanied by the required mens rea . In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused ’ s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused ’ s circumstances.

Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. [ 36 ] In R. v. Graham , [17] Toth A.C.J. cited numerous appellate authorities for the proposition that speed alone could constitute dangerous driving. [18] However, the issue was not directly decided in that case. However, in R. v. Cooke , [19] Judge Matsalla decided the issue by following the Ontario Court of Appeal ’ s decision in R. v.

M.K.M. , [20] stating that “ at the end of the day, excessive speed , in certain circumstances, can be dangerous driving ” . [21] Whether or not speed alone is sufficient to convict an accused of dangerous driving will turn on the facts of each case. A number of decisions are illustrative. [ 37 ] In R. v. Lokken , [22] Judge Morgan found as a fact that the accused was travelling at speeds “ in excess of 200 kilometres per hour ” on a highway. [23] There were some vehicles travelling on the highway at that time, though the evidence suggested that traffic was sparse.

The accused was found not guilty of dangerous driving. [24] [ 38 ] In R. v. Strange , [25] Scheibel J. was faced with a situation where an accused operated a vehicle early in the morning on a divided highway in good condition at 155 km/hr in a 100 km/hr zone. It was held that he was not operating his vehicle in a dangerous manner. The decision was upheld on appeal. It is notable, however, that this case was decided before Hundal and Beatty . [ 39 ] In R. v. McCallum , [26] the accused was driving 143 kilometres an hour on a highway where the speed limit was 100 kilometres per hour.

The road conditions were poor, as two hours earlier there had been freezing rain. Expert evidence concluded that under these road conditions, it would have taken more than 400 metres for the vehicle to come to a stop. Judge Carter concluded that the conduct was “ extremely stupid but fell just short of being criminal ” . [ 40 ] The following evidence is the basis of the Crown’s argument concerning the dangerous driving charge: (

a) speed of the vehicle, which it is unclear on the evidence just how fast he was going, but speeds of 170 kilometres per hour are alleged; (

b) the fact that objects could have been on the road, namely wildlife or other vehicles; (

c) the road conditions were good; and (

d) there was a minimal amount of traffic. [ 41 ] Given the clear roads, small amount of traffic, and the speed, though very high, not matching top speeds reached in other cases, namely Lokken , I conclude that the speed alone in this case does not constitute dangerous driving. This is so despite there being some risk that an animal could jump out at them. Such risk is implicit in all the cases cited above as they all occurred on highways.

Even if there was a higher risk of animal presence in the particular region, I would note that in Lokken , there was some traffic on the road, and this still was insufficient to find that the driver was driving dangerously under section 249(1) (a). Further, in reviewing the video of the driving, I did not find the driving dangerous. [ 42 ] The Crown did not argue the Accused was severely injured and bleeding out during the drive, which would have made the situation much more dangerous. When the Accused was eventually detained, he was severely debilitated from these injuries.

However, there is direct evidence of the Accused driving by video which did not exhibit any problem with his driving as a result of his injuries which presumably got worse after he stopped.

[ 43 ] Further the Crown did not argue the Accused was intoxicated and we don’t know the level of intoxication of the Accused, and there appears to be no or very little driving evidence to suggest that the Accused was in fact impaired. Question 4 [ 44 ]

Section 88 of the Criminal Code states that “[e]very person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence”. As committing suicide is not an offence, it must be asked if: (

a) the accused possessed a weapon, that being the box cutter; and (

b) if (

a) is answered affirmatively, if the possession was for a purpose dangerous to the public peace. (

a) Is the box cutter a weapon? [ 45 ] The defence argues that box cutters do not meet the definition of weapon under

section 2 of the Criminal Code . That

section defines weapon as “any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person…”. [ 46 ] In R. v. D.A.C. , [27] Judge Dalton of the Alberta Provincial Court conducted an extensive review of the case law concerning the definition of weapon. Although this case has not been cited in Saskatchewan, it appears to be the most extensive review of the law in this area and it does cite multiple Saskatchewan authorities throughout. I choose to cite it due to its comprehensive and thorough overview of the law at issue. [ 47 ] In D.A.C. , the Court held that in determining whether an item is a weapon pursuant to

section 2 of the Criminal Code , one must ask the following three questions: i. Did the accused in fact use the object to cause death or injury, or to threaten or intimidate any person? ii. Did the accused intend to use the object to cause death or injury or to threaten or intimidate any person? iii. Was the object being carried by the accused designed to be used in causing death or injury to any person, or for the purpose of threatening or intimidating any person? [ 48 ] If the answer to any of these questions is in the affirmative, the Crown has proven that the object was a weapon. [28] As the Accused intended to cause death to himself, the object must be concluded to be a weapon. (

b) Was the possession for a purpose dangerous to the public peace? [ 49 ] The Supreme Court of Canada in R. v. Kerr [29] set out a two-step approach for determining whether possession of a weapon was dangerous to the public peace. First, one must determine the accused ’ s subjective intention. The determination of an accused ’ s subjective purpose may however involve consideration of objective indicia.

Next, it must be asked whether, objectively speaking, that purpose was, in all of the circumstances, dangerous to the public peace. [30] In making this determination, “ actual use of a weapon in a manner which is dangerous to the public peace does not establish that the weapon was possessed for a purpose dangerous to the public peace. Actual use is but one factor to be considered ” . [31]

[ 50 ] In defining the word “purpose” the Court stated that “ a person who consciously performs

an act knowing the consequences that will (with some degree of certainty) flow from it ‘ intends ’ these consequences or causes them ‘ on purpose ’ , regardless of whether he or she desired them ” . [32] “ Public peace refers generally to a state of order or to the normal state of society ” . [33] “ Possession ” is defined, in relevant part, in s. 4(3) of the Criminal Code as when a person “… knowingly has [the object] in any place, whether or not that place belongs to or is occupied by him …” .

Given the vast array of circumstances that may be “ dangerous ” , the Court found that defining the word was unwarranted. [34] [ 51 ] Finally, it is important to note that the possession and proof that the purpose of that possession was dangerous to the public peace must at some point in time have met in time. [35] [ 52 ] The Accused’s purpose was to commit suicide. The question then is whether or not this purpose was dangerous to the public peace in the circumstances. [ 53 ] In R. v.

McKenzie , [36] the Defence argued that “ since neither suicide, nor the attempt to commit suicide, is illegal … that carriage of a weapon for that purpose is not for ‘ a purpose dangerous to the public peace ’” . [37] Judge Tucker of the Saskatchewan Provincial Court rejected this argument citing numerous authorities in support thereof. A number of these authorities are directly applicable to the case at hand and are outlined below. [ 54 ] In R. v.

Dugan , [38] the accused had stated to some local newspapers that he intended to kill himself in the courtroom by drinking acid if he was convicted of a particular charge. After being convicted he attempted to drink the acid. Security intervened to stop the attempted suicide. The Court held that: It is patently clear from the evidence that the accused was determined to bring about his own self-destruction by swallowing the acid and there was no intention expressed by him to injure any member of the public.

He may have caused fear and alarm in the minds of the persons in the courtroom, but this is not the test to establish that the purpose of the accused was dangerous to the public peace. The test is the purpose and intention of the accused: see R. v. Flack , 65 W.W.R. 35 , supra , at p. 61.

However, the accused ought to have realized and did in fact realize that the drama he intended to portray in Court was likely, in the circumstances, to provoke physical resistance to his proposed conduct and that, in the process, persons in the vicinity would be exposed to serious physical injury if and when an attempt was made to frustrate his bizarre plan by the police ’ s endeavour of preventing him from drinking the acid and as he resisted. As a matter of fact, this is exactly what happened as disclosed by the evidence.

I therefore hold that the Crown has proved beyond reasonable doubt the offence as charged. [39] [ 55 ] In R. v. Sibley , [40] the accused was attempting to commit suicide with a knife inside his home. When people tried to stop him, a struggle ensued. No one other than the accused was hurt. The accused was held to not have possessed the weapon for a purpose dangerous to the public peace. [ 56 ] In so holding in Sibley , Judge Marshman distinguished the Dugan case. He stated as follows: I think that that case is distinguishable from the one which I have before me.

I think that this is simply a case where the facts disclose that the accused attempted to commit suicide with this knife and there is some indication of that. I do not think that the facts go any farther than that. That there is no evidence to establish that this accused had this knife for any purpose other than the commission of suicide. [41] [ 57 ] In R. v. Sanneh , [42] Judge Brien of the New Brunswick Provincial Court further detailed how the two cases may be distinguished:

While I agree that Sibley and Dugan are distinguishable from one another on the facts, I do not agree with the position taken in Sibley that the intervention of others and the resultant exposure to risk such would bring is not a factor to be considered. On the facts it is clear that in Sibley there was no evidence that the accused, previous to or at the time of possession of the weapon, notified anyone who might be expected to respond and intervene, of his intention to commit suicide.

Also, it is clear that the accused in Sibley intended to commit suicide in the privacy of his own home and not in a public place where others might be expected to respond or be injured.

Accordingly, it can be inferred that the accused did not intend intervention. [ 58 ] Further deducible from this quote is that the reasonableness of any expectation that others will interfere with an attempt to commit suicide is a factor to consider in deciding if the possession was for a purpose dangerous to the public peace. [43] Although this goes against the rationale in Sibley , both Sibley and Sanneh are Provincial Court decisions from other jurisdictions. Neither therefore is binding in Saskatchewan.

In my respectful opinion, the Sanneh decision is better reasoned, as it connects the likelihood of public interference with suicide attempts to the definition of “ possession for a purpose dangerous to the public peace ” . [ 59 ] In Sanneh , after forming the intent to commit suicide, the accused telephoned the police concerning this intention. The accused soon after proceeded to leave the apartment with a knife. The police confronted him with a knife in hand in the stairs of the apartment building. No struggle occurred as the accused followed police instructions.

Nevertheless, the accused was found to have possessed the knife for a purpose dangerous to the public peace. [ 60 ] The Accused’s case is factually closer to Sanneh and Dugan than it is to Sibley . This is so as the Accused warned the victim of the assault that he was going to commit suicide and proceeded to attempt to do so in a public place. From this it is reasonable for the Accused to assume that someone would try to intervene. When the officers inevitably tried to stop the Accused, and later when they arrested the Accused, the officers were in a dangerous situation.

Namely, the dangerous driving (in the regular meaning of the words, not the criminal law meaning), as well as the implicit threat from the Accused that he would have the officers kill him to accomplish his suicide goal (it is implicit that he was willing to do

an act—presumably a violent act—that would force the officers to kill him), created dangers to the public peace, as that term is defined. By itself, this constitutes a danger to the public peace. [ 61 ] Given the broad definition of “possession”, the Accused no doubt possessed the box cutter during the incident in question. As such, any argument concerning whether or not the Accused possessed the weapon at the time he posed a danger to the public peace is of no merit. [ 62 ] As a result, I conclude that the purpose of committing suicide was dangerous to the public peace in these circumstances.

Conclusion [ 63 ] I find the Accused guilty of the s. 266 charge of assault. [ 64 ] I have concluded that the pursuit and detention of the Accused was lawful.

As a result, the Accused did not have a lawful excuse for evading the police, and therefore is guilty on the charge of s. 249.1(1) by evading the peace officer without reasonable excuse. [ 65 ] Concerning the dangerous driving charge, I conclude that the evidence falls short of dangerous driving and I find the Accused not guilty of the s. 249(1) charge. [ 66 ] Finally, I conclude that the Accused did possess a weapon for a purpose dangerous to the public peace and I find him guilty of

the s. 88 Criminal Code charge. P. Koskie, J [1] Trial transcript at page 45-46. Other officers also agreed with this reason at pages 66 and 98, although Constable Moar stated that hisdriving abilities and state of mind were reasons for the pursuit at page 136-137. [2] Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 SCR 519 at para. 73. [3] See

section 241. [4] See R. v. Ladouceur, (SCC), [1990] SCJ No. 53 at page 1287; R. v. Mellentin, (SCC), [1992] 3 SCR615 at para. 26. [5] 2004 SCC 52. [6] R. v. Dedman, (SCC), [1985] 2 S.C.R. 2. Also the Crown cites, R. v. Pashovitz, (SK KB), 58 Sask.R. 34. [7] [1964] 1 Q.B. 164. [8] (SCC), [1985] 2 SCR 2. [9] See R. v. Godoy, (SCC), [1998] SCJ No. 85 at para. 8. [10] (1993), (ON CA), 79 CCC (3d) 482. [11] Godoy, supra, note 9 at para. 18. [12] Simpson, supra, note 10 at page 499. [13] R. v. Kahmahkotayo, 2008 SKQB 317 at para. 11. [14] Ibid at para. 12. [15] 2008 SCC 5 , [2008] S.C.J.

No. 5. [16] (SCC), [1993] 1 S.C.R. 867. [17] 2009 SKPC 25. [18] R. v. Cowan (2004), 9 M.V.R. (5th) 8 [ABCA]; R. v. Richards (2003), (ON CA), 174 C.C.C. (3d) 154 [ONCA];R. v. S.M.B., [2004] B.C.J. No. 330 all of which appear to be cited approvingly by Toth A.C.J. in Graham, supra. [19] [2001] S.J. No. 535. [20] (1998), (ON CA), 35 MVR (3d) 319. [21] Cooke, supra, note 25 at para. 22. [22] 2012 SKPC 100. [23] Ibid at para. 21. [24] Ibid at para. 36. [25] (1985), (SK KB), 38 Sask. R. 124, [1985] S.J. No. 88.

[26] [1999] S.J. No. 322. [27] 2007 ABPC 171. [28] Ibid at para. 75. [29] 2004 SCC 44 , [2004] 2 SCR 371. [30] Ibid at paras. 25 and 29. [31] Ibid at para. 37. [32] Ibid at para. 26-27. [33] Ibid at para. 36. [34] Ibid. [35] R. v. Cassidy, (SCC), [1989] 2 SCR 345. [36] 2007 SKPC 36. This case involved a firearm that was ultimately discharged, in a situation where he knew that someone couldintervene. As such, it is factually distinguishable. [37] Ibid at para. 4. [38] (ON CJ), 21 CCC (2d) 45. [39] Dugan, supra, note 43 at para. 12. [40] [1978] O.J. No. 3743. [41] Ibid at para. 13. [42] [1993] N.B.J. No. 357. This case was not cited in McKenzie. [43] Sanneh, supra, note 47 at para. 18.