R. v. Shannon Leigh McMichael Date:, 2017 BCPC 13

Citation: R. v. Shannon Leigh McMichael Date: 20170127 2017 BCPC 13 File No: 43277 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANNON LEIGH MCMICHAEL DECISION OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: Ann Lerchs Counsel for the Defendant: D. Skogstad Place of Hearing: Penticton , B.C. Date of Hearing: September 15, 2016 Date of Judgment: January 27, 2017

Introduction [1] Shannon McMichael is charged with driving while impaired, with a blood alcohol level over the legal limit and whileprohibited on July 31, 2015 in Penticton. [2] The central issue is whether the defence of necessity applies. Ms. McMichael acknowledges that she did drive with a bloodalcohol level over the legal limit when her licence was suspended, but relies on the common law defence of necessity.

She argues it wasnecessary for her to drive to escape her former boyfriend who had assaulted her. [3] Necessity is recognized as a defence when breaking the law is in a sense involuntary; that is, in cases where an accused had noreal choice but to break the law. The defence can be broken down into three essential elements. First, there is the requirement ofimminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook.

Third, there must be proportionality between the harm inflicted and the harm avoided. [4] In Latimer, the Supreme Court of Canada summarizes the defence and reminds us that its application will be rare. The courtstates at paras. 26-27: The leading case on the defence of necessity is Perka v. The Queen, (SCC), [1984] 2 S.C.R. 232.

Dickson J., later C.J.,outlined the rationale for the defence at p. 248: It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strictobedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelminglyimpel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they areexcusable.

Praise is indeed not bestowed, but pardon is… Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true “involuntariness” is present. The defence,he held, must be “strictly controlled and scrupulously limited” (p. 250). It is well established that the defence of necessity must be oflimited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J.,that necessity would “very easily become simply a mask for anarchy”: Southwark London Borough Council v. Williams, [1971] Ch. 734(C.A.), at p. 746. R. v.

Latimer, 2001 SCC 1 [5] The first two essential requirements are assessed on a modified objective standard, that is, the standard or perceptions of areasonable person taking into account the particular circumstances and frailties of the accused. The third requirement, proportionality, isassessed solely on an objective standard. [6] Finally, Ms. McMichael does not have to prove that the defence of necessity applies. The Crown must prove beyond areasonable doubt that it does not.

Therefore: • If I accept the evidence in support of the defence of necessity I must acquit. • If I do not accept the evidence in support of the defence of necessity, but I am left with a reasonable doubt by it, I must acquit. • Even if I am not left in a reasonable doubt by the evidence in support of the defence of necessity, I must still go on to determinewhether or not, on the basis of all the evidence, the accused is guilty. Issues 1. Did Ms. McMichael drive her vehicle while faced with an urgent situation of clear and imminent peril? 2. Was there any legal alternative available to Ms. McMichael? 3.

Was the harm inflicted by Ms. McMichael’s driving disproportionate to the harm she sought to avoid? Analysis 1. Did Ms. McMichael drive her vehicle while faced with an urgent situation of clear and imminent peril? [7] This requirement tests whether the actions of the accused were truly unavoidable. At a minimum, the situation must be onewhich cries out for action where it would not be prudent to wait and see if there is another way to deal with it.

In other words, was thedanger one which our society would not expect the average person, in the circumstances similar to the accused, to with-stand. [8] The situation must be a true emergency. In Latimer, the Supreme Court of Canada said, “Where the situation of peril clearlyshould have been foreseen and avoided, an accused cannot reasonably claim any immediate peril”. R. v.

Latimer, 2001 SCC 1 at para.29. [9] In other words if an accused actually contemplates, or if a reasonable person in the accused’s situation would havecontemplated, that her actions would likely give rise to the situation of imminent peril requiring the breaking of the law, then the accusedis not entitled to rely on the defence of necessity. Essentially, it cannot be said that the accused is confronted with a real emergencywhen s/he is responsible for putting themselves in the situation. [10] In V(CW), the court considered the issue of the contributory fault of the accused.

The accused attended a party to recover a keg

of beer, despite knowing the ownership of the keg was in dispute. When he attended he was set upon by a group of people who began attacking his car. Fearing for his safety, he backed his car away from the crowd hitting two people. The trial judge was satisfied that the accused met the three-part test for necessity but determined that the defence was not available because the accused could not have gone to the residence without some thought of a “possibility” that doing so would result in problems. [ 11 ] The Alberta Court of Appeal overturned the conviction.

While it was open to the trial judge to find that the accused’s conduct negated the defence of the necessity, the judge could only do so if he found the accused actually foresaw or ought to have foreseen the situation of necessity. A mere possibility was not enough. R. v. V(CW), 2004 ABCA 208 . [ 12 ] According to Ms. McMichael, she arrived at her boyfriend’s apartment around 9 p.m. He was intoxicated and began verbally abusing her. Ms. McMichael had been in an abusive relationship in the past, but had never seen this side of her then current boyfriend.

She described him as “outrageous” and “wasted”. [ 13 ] He grabbed her by the shoulders and threw her onto the ground. A neighbour asked if she was okay and she said no. The neighbour called police. [ 14 ] When Cst. Caruso arrived, he could immediately tell that Ms. McMichael had been drinking and told her that she needed to leave. [ 15 ] While she was speaking to the officer, Ms. McMichael saw her boyfriend throw her backpack and laptop onto the patio. She called a friend and left without her backpack or computer. [ 16 ] In cross-examination Ms.

McMichael said that had she stayed, the arguing would have continued and he could have gotten violent again. She said she was afraid of him and the best course of action was to leave. [ 17 ] She stayed at her friend’s place approximately 3 to 4 blocks away from her boyfriend’s apartment. After her friend fell asleep, she decided to go back to her boyfriend’s apartment to retrieve her laptop. Ms. McMichael said it did not cross her mind to ask the police to assist her.

Although she said she did not expect her boyfriend to be at the residence, she did not explain why this was so except to say that is the way he is. [ 18 ] In cross examination she agreed it was not a good decision and knew if she met up with him, things would escalate and there would be trouble. However, she said she was hoping he had calmed down and that things would be fine. [ 19 ] When she arrived at the residence, she looked inside and could tell he was not at home. Although her laptop and backpack were outside, she used a key to go inside the apartment. While inside her boyfriend returned.

She described him as drunker than before. He was angry and pushed her against the wall. She managed to get free and ran to her car parked outside the apartment. [ 20 ] She said her intention was to simply put the laptop inside the car and not drive. When asked why she would be concerned about putting her laptop in the car and not running away if she felt she was in harm’s way, Ms. McMichael replied, “Because that is the way I am. I maybe do not react the same way some people might.” [ 21 ] When she was putting the laptop inside the vehicle, her boyfriend threw part of a bed frame at the vehicle denting it.

At that point, she decided to get into the vehicle and leave. [ 22 ] Ms. McMichael said she was afraid that she would be assaulted if she remained at the scene, cried out for help, or tried to run. In her eyes her only option was to get in the car and drive away. [ 23 ] Ms. McMichael testified that she has never seen this side of her boyfriend. She opined that his behaviour was likely the combination of alcohol and his use of steroids. [ 24 ] I do not accept that Ms. McMichael was truly afraid of her boyfriend. Her actions of returning to the apartment are inconsistent with that fear but furthermore, when Ms.

McMichael was stopped by Cst. Caruso, he described her as chatty, engaging, and never once mentioning anything about being assaulted or fleeing from her boyfriend. Although she would like me to believe she omitted telling the officer this because she still cared for her boyfriend and did not want to get him into trouble, I do not accept her explanation. [ 25 ] Even if I had a reasonable doubt about this, which I do not, she created the situation she found herself in. Despite having been assaulted earlier by her boyfriend, and warned by Cst. Caruso to go home or stay at a friend’s place, Ms.

McMichael chose to return to the apartment. She returned in less than 40 minutes. She could not have expected her boyfriend to have sobered up, and cooled off. [ 26 ] When she returned, she did not simply go on the deck to retrieve the laptop but she used a key to enter her boyfriend’s apartment without his consent. By returning to the scene and going inside the apartment, she must have or ought to have foreseen the likelihood that there would be a further altercation causing the necessitous situation. 2. Was there any legal alternative available to Ms.

McMichael? [ 27 ] The second requirement for the defence of necessity is that there was no reasonable legal alternative to committing the offence. This requirement gives rise to the question whether a reasonable person faced with an urgent situation of clear and imminent peril, in circumstances similar to the accused, could realistically avoid the peril without committing the offence.

If there was a reasonable, alternative course of action that was open to the accused, the defence of necessity does not apply because it was not really necessary to break the law. [ 28 ] In determining whether or not there were reasonable legal alternatives or other safer avenues of escape, it is appropriate to take into account Ms. McMichael’s particular circumstances and human frailties, including her ability to perceive the existence of alternative courses of action.

[29] Furthermore, it is also not the task of the court to exhaust all of the potential possibilities which one can consider with thebenefit of hindsight. R. v. Costoff, 2010 ONCJ 109 at para. 26. [30] Ms. McMichael, through counsel, submits that she was upset and did not have the time or ability to carefully weigh her optionsand explore alternatives. [31] I do not agree. [32] When Ms. McMichael was stopped by police, although still upset, she was not crying and distraught.

Rather, she is describedas being calm, polite and responsive to questions, even chatty and engaging. [33] She told the officer she was on her way home and mentioned nothing about fearing for her safety or the alleged assault. [34] Neither her demeanour nor what she told the officer is consistent with someone who is in imminent peril, without no reasonablelegal alternatives. [35] When Ms. McMichael was stopped she already travelled several blocks, yet had not seen anyone pursuing her.

Despite this shesaid she was intent on driving all the way to her residence which was still several blocks away. [36] A similar situation arose in Brown. In that case, the accused testified that he was accosted after leaving a liquor establishment. He was able to get into his car and panicked because the individuals who accosted him were trying to get into his vehicle. He droveaway. He said he was planning on driving to a grocery store parking lot, where he planned to call a cab to get home safely.

He said thathe did not stop at the police station he drove past because he was intoxicated and panicky. [37] The Crown argued that Mr. Brown should not have driven but instead called the police from his vehicle. The trial judge did notagree. However, did agree that once the accused left the scene and shaken off the pursuers, he could have pulled into the police station. [38] On appeal, Mr. Brown argued that because he did not choose the best option he should not be disentitled to the defence ofnecessity. The appellate court did not agree.

The court pointed out that not only was there no evidence that the accused was still beingpursued (vehicle was being driven slowly), there was a reasonable legal alternative available to him; he could have turned into the policestation parking lot. Justice Brophy states at paragraph 30: Mr. Brown could have terminated his unlawful conduct of driving while impaired if he had sought police assistance at the first availableopportunity.

He did not do so, intoxication is not a valid reason for failing to recognize a reasonable legal alternative. [39] In another case, Sekhon, after being assaulted at a party by several individuals, the accused fled in his vehicle. Two or three ofhis attackers followed him in another vehicle. He was stopped by police a block and half away. The trial judge accepted the defence ofnecessity and found him not guilty. [40] On appeal, the court held that the trial judge erred by not addressing whether at the time of the arrest the accused was inimminent peril.

Justice Belzil states at paragraphs 39-45: It must be remembered that the Crown is not required to prove that at the time of arrest the Respondent was not facing any peril or someperil; rather, the Crown is required to prove that the Respondent was not in imminent peril. … In other words, there was no discussion of the lessening of the degree of peril which the Respondent faced once he was inside the vehicleand on a major arterial roadway in full public view.

Thus, by the time of his arrest, the peril faced by the Respondent had lessenedconsiderably and could no longer be considered imminent peril. … Quite aside from the issue of the lessening of peril faced by the Respondents, there is no evidence that the Respondent re-assessed his alternatives to continued driving once he entered onto 137th Avenue.

Surely it follows that if the circumstances facing the Respondenthad significantly changed, the Respondent was obliged to reconsider whether he had legal alternatives to continued driving at that point. … In my view, the trial judge erred in not addressing the issue of whether or not the Respondent had legal alternatives once he entered onto 137th Avenue.

At a minimum, the Respondent had with him an operable cell phone which could easily have been utilized if he had simply stopped his vehicle on 137th Avenue and dialled 9-1-1 and where he would be in full public view. … Notably, the Respondent did not testify that he considered any alternative course of action other than continuing to drive. R. v. Sekhon, 2007 ABQB 315, upheld 2008 ABCA 171, leave to appeal refused [2008] SCCA 297 [41] Justice Belzil concluded that the defence of necessity could not be relied upon and entered a conviction.

This finding wasupheld by the Alberta Court of Appeal and leave to appeal refused by the Supreme Court of Canada. [42] Ms. McMichael relies on L.S., a decision by Judge Bayliff from our court. The case is distinguishable in that some of theoptions available to Ms. McMichael were not reasonably available to L.S. because L.S. was also protecting her young child. In addition,

L.S. was stopped less than one block, not several, from where the assault occurred. R. v. L.S. , 2001 BCPC 462 . [ 43 ] Like Mr. Sekhon, even if I accept Ms. McMichael was in imminent peril when she left the scene, she was not in any peril when she was stopped by the police. Like Mr. Sekhon, Ms. McMichael had a duty to reassess her situation and look for reasonable legal alternatives. [ 44 ] During her testimony, Ms. McMichael did not deny she could have driven and stopped at either the Bad Tattoo or the Lakeside Resort which were a short distance away.

When asked why she did not, she said she was “embarrassed and did not want to bring anyone else into her life.” [ 45 ] At a minimum, after travelling a few blocks, she could simply have stopped her vehicle and called her friend or police. 3. Was the harm inflicted by Ms. McMichael’s driving disproportionate to the harm she sought to avoid? [ 46 ] The third requirement is that there be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. In some cases, evaluating proportionality can be difficult.

The law does not require that the harm avoided must clearly outweigh the harm inflicted. Rather the harm must be of comparable gravity, or of greater gravity, than the harm inflicted. [ 47 ] Although in a number of cases judges have considered potential harm, in Desrosiers , the court opined that the third requirement only takes into account actual harm. The judge stated: The third requirement is that there must be proportionality between the harm inflicted and the harm avoided. This is measured strictly on an objective standard. The public interest in drinking and driving offences is considerable.

The carnage of drinking and driving is well known. Some three people a day die in Canada from drinking and driving. Countless more are injured. The misery index is incalculable. However, the third requirement does not take into account potential harm. Actual harm is the barometer. In this case, no harm was done to the public. This is good luck more than good management, but it does not matter. The bottom line is the public was not harmed, fortunately. On the other hand, the harm avoided could not be higher, being the preservation of life. R. v.

Desrosiers , 2007 ONCJ 225 [ 48 ] Given my findings with respect to the first two requirements, a resolution regarding the proper

interpretation can be left for another day. Conclusion [ 49 ] To allow Ms. McMichael the benefit of the defence of necessity on these facts would substantially lower the legal threshold, which for sound policy reasons must remain high. Even I accepted that Ms. McMichael found herself in imminent peril, she created the peril she found herself in.

Furthermore, to suggest that once she decided to drive while impaired that she could continue driving until she decided it was safe to stop would ignore the objective part of the analysis that requires the court to consider whether there were other reasonable legal alternatives that she could have taken to stop driving sooner. [ 50 ] I find Ms. McMichael guilty on all three counts. The Honourable Judge G.W. Koturbash Provincial Court of British Columbia