Her Majesty the Queen - v. -, 2012 SKPC 180

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 180 Date: December 19, 2012 Information: 24485773 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Evan Lance Constant Appearing: Ms. L. O ’Connor For the Crown Mr. J. Bodvarson For the Accused JUDGMENT B. MORGAN , J INTRODUCTION [ 1 ] Mr. Constant initially faced four counts, all arising out of the events which occurred on July 23, 2012, at Melfort, Saskatchewan.

During the course of the trial, the Crown directed stays of proceedings on two counts, leaving the following charges against Mr. Constant: Count 1: In committing an assault on Cst. Daniel Redekopp carry a weapon to wit a knife contrary to s. 267 (

a) of the Criminal Code .

Count 2: In committing an assault on Cst. Reagan Uliski carry a weapon to wit a knife contrary to s. 267 (

a) of the Criminal Code . [ 2 ] The Crown proceeded by indictment, Mr. Constant elected trial by Provincial Court Judge, and the trial was held on November 19, 2012, with argument shortly thereafter. [ 3 ] The Crown called three witnesses, the above two named officers, as well as Cst. Kelly Sinnamon. There were inconsequential variations in some of the background matters, but all three officers are consistent with the general outline of what occurred. Of the three officers who have testified, I have relied mostly on the evidence of Cst.

Daniel Redekopp; of the three officers, he was the one the officers had agreed would take the lead, as it were, and he had contact with Mr. Constant throughout the entire incident. Cst. Sinnamon had initially gone with Cst. Redekopp, although she had stepped outside part way through the incident, in order to secure the scene, and Cst. Uliski came shortly thereafter. Both those officers’ evidence confirms the evidence of Cst. Redekopp in all material respects, and there really is no factual dispute on what happened. The issue is whether or not what did happen constitutes an assault under s. 265(1)(

b) which reads: A person commits an assault when (

b) he attempts or threatens, by

an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, the present ability to effect his purpose. FACTS [ 4 ] On July 23, 2012, at approximately 5:00 p.m., Constables Sinnamon and Redekopp were at the Melfort Detachment of the RCMP when a 911 call came in, a call which had been made by Mr. Constant. He had complained of a dispute at a residence, and he said that he was cutting himself. Constables Sinnamon and Redekopp went to that address in one vehicle, and Cst.

Uliski, who had either just arrived or was just arriving as the officers left the detachment, went in a separate vehicle. The first two officers at the scene were Constables Sinnamon and Redekopp. [ 5 ] The residence was a mobile home owned or rented by Ethelyn Moostoos. She was one of six or seven people who were in the area, one of whom was the accused, Mr. Constant, who was inside the kitchen area of the trailer, obviously in an agitated state. [ 6 ] As Constables Sinnamon and Redekopp entered, Cst. Redekopp noted that Mr. Constant had a sharp object in his hand, although he could not say it was a knife. Cst.

Sinnamon thought it was a small knife. Mr. Constant was slashing his wrists and/or forearms with the object, and was, in Cst. Redekopp’s words, “very agitated”. [ 7 ] Cst. Redekopp, who testified that he had developed somewhat of a rapport with Mr. Constant based on past dealings, was trying to convince Mr. Constant to drop the object he had. Mr. Constant was replying that he did not want the police to come in, and he was making comments such as “you’ll have to fight to get me out”, and that “if you don’t get out, I’ll kill myself”. In the officer’s words, Mr.

Constant was pacing around “like a caged lion”, was constantly telling the police to get out, that he insisted that the “white cops” leave, although he was prepared to talk to, in Cst. Redekopp’s words, “me, the brown cop”. I assume that meant that he was Aboriginal. Both Constables Sinnamon and Uliski appear to be Caucasian. Although no one testified as to Mr. Constant’s background, his address on the Information is given as James Smith First Nation. [ 8 ] The sequence of events was that this was going on for some period of time, and that, for obvious reasons, Cst.

Redekopp was not prepared to be alone in the residence with a man brandishing a knife. The actual sequence, I am satisfied, was as follows: 1) Eventually, at Cst. Redekopp’s urging, Mr. Constant dropped the sharp object he had. 2) Mr. Constant then put up a row of chairs between himself and the officers, in the nature of a barricade, such that Mr. Constant was in the kitchen area, and the police officers were in the dining room area. Cst. Redekopp referred to the area as one large room, divided into a dining area, and a kitchen that led off that area.

3) Mr. Constant then grabbed what Cst. Redekopp thought was a large bread knife. Whatever type of knife it was, it had a blade of approximately eight to 10 inches, and was considerably larger than whatever item it was that Mr. Constant previously had. However, Mr. Constant stayed behind the barricade that he had erected. [ 9 ] By this time, Cst. Uliski was present, and had brought a conducted energy weapon with him.

Commonly referred to as a taser, this device works by discharging two wires with electric probes at a person whom the operator wishes to subdue; once the probes attach to the body, an electric charge courses through the subject’s body, resulting in strong involuntary muscle spasms that temporarily disable the subject. Although there has been controversy surrounding this weapon, it is common knowledge that these devices are intended for use as a non-lethal alternative to subdue an individual. [ 10 ] Upon seeing the large knife being brandished, Cst. Redekopp and Cst. Sinnamon pulled their sidearms.

As there were other individuals around, and as there were now three officers in a rather enclosed area, Cst. Sinnamon, who was somewhat blocked by the other two officers, started to get the other people out of the house and/or keep them outside. [ 11 ] At some point, Cst. Uliski deployed the taser (the first taser), although a firm connection was not made. As all officers testified (although Cst. Sinnamon heard some of this, as she was outside), this deployment of the taser seemed to escalate matters. As Cst. Redekopp put it, “I thought we’d be shooting him that day”. Cst.

Sinnamon testified that she heard lots of stomping around inside. Cst. Uliski said that Mr. Constant started screaming, pulled the prongs out (one of the prongs had hit a belt buckle, preventing there from being an effective connection) and started holding up a blanket as a screen, all the while staying behind the barricade. By this time, or shortly afterwards, Staff Sergeant Wouters had arrived on the scene, and was inside the trailer assisting the other two officers. [ 12 ] During this time, Mr.

Constant was waving the large knife around, and was pointing it at the officers at some points, although mostly holding it to his throat, constantly stating that the police were going to have to kill him, and that, as Cst. Uliski put it, “I’m going to make you guys shoot me”, and “I don’t want a white cop to kill me ... I want a brown cop to kill me”. He stayed behind the barricade he had erected throughout. [ 13 ] The use of the blanket as a shield prevented Cst. Uliski from deploying the taser a second time. Eventually, Mr.

Constant cut himself across his forearm or wrist with the large bread knife, causing a lot of blood to gush from his arm. After a few more moments, he turned aside to look down the back hall, at which point Cst. Uliski discharged the taser a second time, which had the effect of incapacitating Mr. Constant, who fell to the blood soaked floor. The officers immediately jumped on him, handcuffed him, and took him outside to a waiting ambulance. [ 14 ] Fortunately, except for the self-inflicted injury of Mr. Constant, no one was otherwise injured.

POSITION OF THE PARTIES [ 15 ] The Crown argues that the acts or gestures made by Mr. Constant, which include pointing the knife at the officers, plus the belief of the police, all of whom testified that they were convinced that they would either have to shoot Mr. Constant, or felt that he was going to attack them with a knife, meet the definitional

section set out in s. 265(1)(

b) referred to earlier. [ 16 ] Mr. Bodvarson’s position is that Mr. Constant may have been in a “suicidal state of mind” and states that, in context, Mr. Constant was, throughout the period of time, in a defensive mode, and the knife was used more as a pointer to emphasize his demands that the police leave than it was used to convey a threat. He points out that at no time did Mr. Constant say to the police that he would stab them, and that his entire demeanour was that they should leave and that they would have to kill him. Further, he argues there was no reasonable opportunity for Mr.

Constant to use the weapon that he held, thus there was no reason for the police to “believe on reasonable grounds that he has the present ability to effect his purpose”, as the

section is worded. ANALYSIS

[17] Both counsel have provided cases, and additionally, defence counsel has prepared a brief of law. I thank counsel for filingthose materials, which have been of assistance. [18] I have read and considered the following cases filed by Crown counsel: R. v. Horncastle, 1972 CarswellNB 5 (NB CA) R. v. Jorden, 2000 CarswellSask 464 (SK PC) R. v. Campeau, 2009 SKCA 4 [19] The defence relies on: R. v. Colp, (SKQB) R. v. S.T.S., (NL PC) R. v. North Peigan, 2008 ABPC 171 [20] Each case is of course authority only for that particular case, as each case has significantly different facts.

However, generalprinciples can be distilled. [21] In Horncastle, the defendant was acquitted at trial of an assault on the basis that the trial judge found he had no intention tocommit the assault. At paragraph 40 of that decision, Limerick J.A. stated what has become an oft-quoted principle: ... It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if hethreatens to do so and has a present ability to do so.

Mens rea lies in the intention to threaten not in the intention to carry out that threat. (emphasis in quote) [22] In Jorden, Kolenick J. of this Court acquitted an individual on a factual situation in which the evidence was not sufficient toestablish beyond a reasonable doubt the necessary intention to threaten. In that case, the defendant had a hammer in his hand, with hisback turned to a police officer who was approximately five feet away, the judge noting that the officer was not in immediate strikingdistance. The defendant immediately dropped the hammer when told to do so.

The judge noted that the officer did regard the situationas a threat, and was prepared to fend it off in the event there was an assault. [23] In Campeau, two individuals had charged into a house, clearly intent on mayhem. A resident had taken refuge in a bathroom,and one or perhaps both of the individuals was or were kicking at the bathroom door, exhorting the resident to come out. The Court ofAppeal held that those actions of kicking and threatening established beyond a reasonable doubt the attempt or threat to apply force.

Itwas also noted that those actions caused the resident to believe on reasonable grounds that Mr. Campeau had the present ability to effecthis purpose. [24] In Colp, the matter was set back for a new trial, as it appeared the trial judge did not direct his mind to whether or not thedefendant had the requisite mens rea. [25] S.T.S. is a case in which a youth was found guilty of assault with a weapon under s. 265(1)(

b) of the Code in a situation inwhich he took a knife out of his pocket, opened it so that the blade was visible to the complainant, and had the “present ability to effecthis purpose”. That case contains a useful

summary of a number of other decisions.

[ 26 ] In North Peigan , the Court again considered s. 265(1)(

b) and ruled that the “attempt to achieve a specific purpose ... requires an intent directed at that specific goal”. Put another way, “... any threat within the meaning of s. 265(1)(

b) is only culpable if intended as a threat to apply force to the person”. The case does review the concept of an assault by threat, which is the situation in the present case; that is, if there is an assault in this case, it is an assault by threat. [ 27 ] The Crown has specifically relied on s. 265(1)(b), and it seems to me that this case turns largely on whether or not in fact there was an attempt or a threat, by

an act or a gesture, and whether there was an intention to make the threat. Equally, there are questions as to whether or not Mr. Constant had the present ability to effect his purpose, or whether he caused the officers to believe on reasonable grounds that he had the present ability to effect his purpose. For the reasons that follow, I am satisfied beyond a reasonable doubt on all of the essential elements of the offence, and I find Mr. Constant guilty on both counts. [ 28 ] I will start with the threat. Although Mr.

Constant mostly held the large knife towards himself, there were occasions in which he pointed it directly at the police officers. In context, that can only be interpreted as a threatening gesture towards the police. [ 29 ] As to whether or not he intended to make that threatening gesture, I note that Mr. Constant was the one who called the police. His motive in doing so may have been to induce “the brown cop” to shoot him. But his motive, if that was in fact his motive, is not to be confused with his intention.

I infer his intention from his actions, and on the only evidence before me I am satisfied that he intended to make that threatening gesture. As Horncastle notes, it is not necessary that he intended to actually carry out his threat. [ 30 ] I am also satisfied that Mr. Constant had the present ability to effect his purpose. Although the police were not at any point within arm’s length, they were being held at bay by Mr. Constant’s actions; one mere stride forward by Mr. Constant, a barricade of chairs notwithstanding, would have closed the gap.

Further, based on the evidence, it was entirely reasonable for the officers to believe that Mr. Constant had the present ability to effect his purpose. [ 31 ] I note that, at the time the call came in, the police were aware that Mr. Constant had called the police with a specific complaint that he was cutting himself. Cutting oneself is not the act of a rational person. Further, each of the officers was questioned at length as to their dealings with persons with mental health issues, and Cst. Sinnamon specifically stated that, in her view, Mr. Constant was clearly in breach of The Mental Health Act .

I take that to mean that the officer was clearly aware at the time that there was a significant mental health issue that she was being presented with, and I am satisfied that all three officers knew that this individual was exhibiting clear signs of being in a state of mental distress. However, that does not exonerate Mr. Constant, nor would it make it any less likely, in any of the officers’ minds, that Mr. Constant would not make good on his threat towards the police. [ 32 ] The police showed remarkable restraint, and they acted commendably throughout this very difficult time. Fortunately for Mr.

Constant, the police elected to try to dissuade him from continuing with his irrational behaviour, as opposed to taking more aggressive steps that could have resulted in his injury or death. But the distress Mr. Constant may have been in does not absolve him from criminal culpability. B. Morgan, J