Her Majesty the Queen - v. -, 2020 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 6 Date: January 31, 2020 Information: 991028665 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Patrick Chaboyer Appearing: Ms. Elizabeth Addabor For the Crown Mr. Patrick Chaboyer On His Own Behalf DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] Mr. Patrick Chaboyer stands charged that on October 5, 2017, he assaulted Mr. Mark Heidecker contrary to s. 266 of the Criminal Code . Mr. Heidecker was helping a landlord clean out an apartment that Mr.

Chaboyer was occupying at the time. A trial was conducted on January 7, 2020, during which the Crown called five witnesses, including Mr. Heidecker. [ 2 ] Mr. Chaboyer testified on his own behalf. In doing so, he acknowledged that an altercation occurred between he and Mr. Heidecker but stated that Mr. Heidecker was the aggressor and any force he applied during the altercation was done in self-defence. Because of the evidence I heard, I also considered whether or not the defence of property was a possible justification for Mr. Chaboyer’s actions.

[ 3 ] Having considered the evidence in these proceedings, I find that Mr. Chaboyer intentionally applied force to Mr. Heidecker on October 5, 2017. I find that Mr. Heidecker did not consent to the application of that force. Furthermore, I find no air of reality to Mr. Chaboyer’s assertion that he was acting in self-defence. Finally, while Mr. Chaboyer was understandably upset and frustrated as a result of being evicted and concerned about his personal property, defence of property is not available to him because the action he seeks to justify – the assault on Mr.

Heidecker - was not reasonable under the circumstances. [ 4 ] These are my reasons for coming to these various conclusions. THE EVIDENCE [ 5 ] Mr. Hong Cam testified that he owns a rental property located at 558 6 th Street East in Prince Albert, Saskatchewan. Mr. Cam testified that he had rented Unit #4 of that property to Ms. Ashley Primeau; that he had signed a lease with her; and that she and her children were the only permitted tenants under the terms of that lease. Mr. Cam further testified that (for undisclosed reasons) Ms. Primeau did not pay the lease fees directly to him.

Rather, the rent was paid by a “worker” on her behalf. Mr. Cam estimated that Ms. Primeau began leasing his property sometime in July or August of 2017. However, by October of 2017, Ms. Primeau’s lease payments were in arears. [ 6 ] Mr. Cam testified he had never met nor had any communication with Mr. Chaboyer prior to October 5, 2017. Their First Encounter – Crown Evidence : [ 7 ] On October 5, 2017, Mr. Cam was informed by the worker he had been dealing with that Ms. Primeau had left the province and would not be returning to the apartment. As a result, Mr.

Cam took the view that his tenant had abandoned the lease. He went to the property to inspect it and then clean it out. Prior to doing so, Mr. Cam asked Mr. Heidecker and Mr. Terrance (Terry) Jenkins to meet him at the apartment to help clean it and remove any remaining property. They both agreed and met him at the apartment that same day, each arriving separately. [ 8 ] Mr. Cam was the first to arrive. When he got there, he attempted to open the front door with his key but discovered that the door was blocked from the inside. Furthermore, someone was inside the property – that person was Mr.

Patrick Chaboyer. [ 9 ] A brief exchange occurred between Mr. Chaboyer and Mr. Cam through the blocked door. The essence of this conversation involved Mr. Cam saying that he was the landlord and that he was there to clean out the apartment. Mr. Chaboyer would not let Mr. Cam enter the property unless he could produce “eviction papers”. Mr. Cam indicated to Mr. Chaboyer that he did not have and did not need eviction papers because Ms. Primeau was the tenant and she was gone. [ 10 ] Mr. Chaboyer told Mr. Cam that he was Ms. Primeau’s boyfriend. Mr. Cam did not know who Mr. Chaboyer was and did not recognize him.

Furthermore, Mr. Chaboyer was not on the lease and Mr. Cam believed that his tenant - Ms. Primeau - had left the province. Furthermore, no one, including Mr. Chaboyer, had been paying the rent for the past two months. [ 11 ] The conversation ended with Mr. Cam closing the door and contacting the police. [ 12 ] Constable Brennan MacDonald testified that he was on duty on October 5, 2017, and was dispatched to Mr. Cam’s property. When the officer arrived, he spoke to Mr. Cam and was informed that his tenant had moved out and that no one was supposed to be in the apartment.

However, there was someone inside the apartment and that person had barricaded the door. Officer MacDonald tried to have a conversation with Mr. Chaboyer but was unsuccessful. No one from the apartment responded. As a result, Constable MacDonald and another officer used a battering ram to open the door. [ 13 ] Constable MacDonald testified that, upon gaining access to the property, he obtained Mr. Chaboyer’s name. The officer then decided to place Mr. Chaboyer in handcuffs (for officer safety) while he investigated the situation. The culmination of the officer’s

investigation was that Mr. Chaboyer agreed to leave the property. In doing so, Mr. Chaboyer was permitted to take some personal affects with him. The officer told him that he would have to make arrangements with Mr. Cam if he wanted to take any of the “big stuff”. All Crown witnesses agreed that Mr. Chaboyer left the apartment soon thereafter. The First Encounter – Defence Evidence : [ 14 ] Mr. Chaboyer testified that he was at the apartment doing dishes when he heard someone open the front door. Mr. Chaboyer went to see who it was. A man (Mr.

Cam) was at the door and he said he was there to clean out the apartment. Mr. Chaboyer asked the man (who he did not know) for “paperwork”. The man said he did not have any. Mr. Chaboyer testified that the man then closed the door and left. Mr. Chaboyer then relocked the door. [ 15 ] Mr. Chaboyer testified that about 5 or 10 minutes later the police came and, without warning, broke down the door. Mr. Chaboyer testified that four officers entered the apartment, that the officers pointed firearms at him, that they placed him in handcuffs, and that he was only given a few minutes to get his stuff and leave. Mr.

Chaboyer testified that he asked the officer “what about my stuff?” To which the officer replied that you will have to work something out with the owner. Mr. Chaboyer testified that he agreed to leave. He only took some of his belongings with him. He had to wait for a ride to come pick him up but he left as soon as his ride got there believing he could later return and get his stuff. [ 16 ] Mr. Chaboyer testified that his sister drove by the apartment 20 minutes later and that she told him she observed people throwing items off the balcony and/or removing property from the apartment and throwing it out.

As a result, Mr. Chaboyer asked his brother-in-law to give him a ride back to the apartment. The Second Encounter – Crown Evidence : [ 17 ] As indicted, Mr. Heidecker was at the apartment because Mr. Cam had asked him to help clean it out. Mr. Heidecker had been informed that the tenant was behind in her rent and that she had abandoned her lease. Mr. Heidecker testified that he arrived at the property in time to see Mr. Chaboyer leave. Soon thereafter and on Mr. Cam’s instructions, he and Mr. Jenkins began carrying various items from the apartment and placing them in a trailer belonging to Mr. Cam. [ 18 ] Mr.

Heidecker testified that, while they were working, Mr. Chaboyer arrived back at the apartment and began yelling as he walked up to them. At that time, Mr. Cam was upstairs in the apartment and he and Mr. Jenkins were outside having just thrown some items in Mr. Cam’s trailer. Mr. Heidecker testified that Mr. Chaboyer immediately began yelling when he got out of his vehicle. He was upset because they were removing items from the apartment. Mr. Heidecker acknowledged that he had a verbal exchange with Mr. Chaboyer but testified that it began because Mr. Chaboyer was yelling at him. In cross-examination, Mr.

Heidecker acknowledged that he said words to the effect that “you should pay your bills” or something to that effect but denied saying anything racist or provocative to Mr. Chaboyer. [ 19 ] Mr. Heidecker testified that, during this verbal exchange, Mr. Chaboyer punched him in the face. He said it was just one punch and that Mr. Chaboyer left soon after it happened. Mr. Heidecker denied doing anything to Mr. Chaboyer in response to being punched other than reporting the incident to the police. Mr. Heidecker denied consenting to a physical altercation with Mr. Chaboyer and denied punching back at Mr. Chaboyer.

As a result of the punch he received, Mr. Heidecker experienced a cut to the bridge of his nose that was later recorded in photographs taken by officers of the Prince Albert Police Service. [ 20 ] Mr. Jenkins testified that he was also at the apartment because Mr. Cam had asked him to help clean out a vacant apartment. By the time Mr. Jenkins got there, Mr. Chaboyer and the police had already left. After he got to the apartment, Mr. Jenkins and Mr. Heidecker began removing the contents of the apartment and placing them in Mr. Cam’s trailer. While they were doing this, Mr.

Chaboyer returned to the apartment. [ 21 ] Mr. Jenkins testified that he and Mr. Heidecker were outside when Mr. Chaboyer returned and that he witnessed first the verbal exchange between Mr. Chaboyer and Mr. Heidecker followed by the physical altercation. Mr. Jenkins testified that he was about 10 feet away at the time and had a clear view of what happened. [ 22 ] Mr. Jenkins testified that Mr. Chaboyer began hollering the moment he got to the property and that he “got right up in Mark’s

(Mr. Heidecker) face”. Mr. Jenkins testified that both Mr. Chaboyer and Mr. Heidecker were yelling at each other. Mr. Chaboyer was angry because he had been evicted. Mr. Jenkins testified that there was an altercation between Mr. Heidecker and Mr. Chaboyer, that Mr. Chaboyer threw the first punch, and that Mr. Chaboyer made “one good contact” with Mr. Heidecker. The Second Encounter – Defence Evidence : [ 23 ] In direct examination, Mr.

Chaboyer testified that he returned to the property because he had been told that items were being removed from the apartment and that his stuff was being damaged and/or thrown out. Mr. Chaboyer testified that he called the police before he went to the apartment, but they said they were too busy to respond. [ 24 ] Mr. Chaboyer testified that, when he got to the property, he could see Mr. Heidecker throwing out a box of his stuff (containing hats, cds and video games). Mr. Chaboyer testified that he walked up to Mr. Heidecker and told him that the box he was holding belonged to him. Mr. Chaboyer testified that Mr.

Heidecker responded by telling him that the box was just garbage and that he should pay his rent. Mr. Chaboyer testified that Mr. Heidecker then became aggressive with him and pushed the box toward him. Mr. Chaboyer testified that Mr. Heidecker then began “swinging at me”. [ 25 ] While Mr. Chaboyer acknowledged getting into an altercation with Mr. Heidecker, he denied throwing the first punch. Rather, Mr. Chaboyer stated that Mr. Heidecker was the aggressor. In cross-examination, Mr. Chaboyer speculated that Mr. Heidecker did so because Mr. Chaboyer caught him stealing his stuff. Mr. Chaboyer’s assertion that Mr.

Heidecker was stealing his stuff was based on Mr. Chaboyer’s observation that Mr. Heidecker was putting some of the property being removed from the apartment into his truck rather than Mr. Cam’s trailer. [ 26 ] Mr. Chaboyer testified that, during his altercation with Mr. Heidecker, Mr. Jenkins began circling around behind him as if he was going to join in the fight. As a result, Mr. Chaboyer grabbed his box and left. Mr. Chaboyer did not take any of his other stuff that day. [ 27 ] In cross-examination, Mr. Chaboyer acknowledged that his name was not on the lease for the apartment. He also acknowledged that Ms.

Primeau was not present at the apartment on October 5, 2017. Finally, Mr. Chaboyer acknowledged that he had not paid any rent associated with the apartment stating that “rent” had nothing to do with him because he was not on the lease. ANALYSIS [ 28 ] Assault is defined in s. 265 of the Criminal Code . Of significance to these proceedings, ss. 265(1)(

a) states that a person commits an assault when, without the consent of another person, he/she intentionally applies force to that other person, directly or indirectly. Mr. Chaboyer does not dispute that he intentionally applied force to Mr. Heidecker. Rather, Mr. Chaboyer testified that he struck Mr. Heidecker in self-defence. As he put it, “what was I supposed to do, just stand there when he (Mr. Heidecker) started swinging at me?” Certainly, the photographic evidence of Mr. Heidecker’s nose would support the conclusion that Mr. Chaboyer landed at least one forceful punch to Mr. Heidecker’s face.

The issue in these proceedings is not whether Mr. Chaboyer intentionally applied force to Mr. Heidecker - the issue is whether or not his actions were justified at law. The Defence of Self-Defence: [ 29 ] The defence of self-defence is now codified in s. 34 of the Criminal Code . While this

section has broad application, the most common circumstance where the defence applies is where force is used to resist force. For example, a person who is the victim of an unprovoked assault is entitled to use force to defend themselves provided the force used is reasonable and for the purpose of defending themselves. Simply put, in relying on the defence of self-defence, an accused acknowledges the intentional application of force but takes the position that the force he/she applied was justified under the circumstances. See: R v Ryan , 2013 SCC 3 at para 26 , [2013] 1 SCR 14. [ 30 ]

Section 34 provides that a person is not guilty of an offense (such as in Mr. Chaboyer’s case - assault) if three essential elements are present: (1) the accused must have a reasonable belief that force is being used or threatened against them (or another person); (2) the actions of the accused must be for the purpose of defending themselves or protecting others from that force; and (3) the actions of the accused, including the degree of force used, must be reasonable in the circumstances. See: R v Pankiw , 2014 SKQB 381 at para 27 , 462 Sask R 217 [ Pankiw ].

[31] For the trier of fact, the accused’s perception of the threat and their belief that they are defending themselves (or another) isassessed on a subjective basis (from the subject’s perspective). However, the reasonableness of the subject’s response is measured on amodified objective basis (what would a reasonable person – a person with similar characteristics and experiences as the accused - havedone in those circumstances). See: Pankiw at para 27. [32] Mr. Chaboyer need not prove the application of this defence. If I find, based on the evidence before me, that there is an air ofreality to Mr.

Chaboyer’s assertion that he acted in self-defence, then s. 34 applies unless the Crown can prove beyond a reasonabledoubt that at least one of the required elements of the defence was not present. See: R v Deegan, 1979 ALTASCAD 19 , 1979ABCA 19 at paras 57 to 61. See R v Hebert, (SCC), [1996] 2 SCR 272 at para 25. [33] Subsection 34(2) sets forth a fulsome (but non-exhaustive) list of factors that must be considered in determining whether ornot

an act committed in self-defence is reasonable in the circumstances. I have determined that I need not review this list in detailbecause I do not believe Mr. Chaboyer’s testimony (nor does it raise a reasonable doubt) that Mr. Heidecker swung at him first.However, if he did, I am satisfied that the force used by Mr. Chaboyer would have been reasonable under such circumstances. While I donot believe that Mr. Heidecker started the altercation, if he did, there is no basis to conclude that the force applied by Mr.

Chaboyer (onepunch) in those circumstances would have been disproportionate or otherwise unreasonable. [34] The problem for Mr. Chaboyer is that I do not accept his testimony that Mr. Heidecker started swinging at him first. There area number of reasons why I reject Mr. Chaboyer’s evidence on this point. To begin with, I note that I heard two very different versions ofwhat happened on October 5, 2017. [35] The evidence of both Mr. Heidecker and Mr. Jenkins was clear, cogent and compelling. Each of these individuals was askedby Mr. Cam to help clean out what they understood to be a vacated apartment.

Neither had any ownership interest in the property.Neither were even present during Mr. Cam’s initial encounter with Mr. Chaboyer. Simply put, they were just the hired help.Furthermore, they didn’t even work full time for Mr. Cam. Rather, they were tenants of his whom Mr. Cam asked for assistance with thisparticular task. They had nothing to do with the dispute over the apartment. Furthermore, I find their testimony to be compelling. Theyboth testified that Mr. Chaboyer returned to the property and was angry because he thought they were throwing out his stuff. Mr.Chaboyer began yelling at them. Mr.

Heidecker engaged in a heated verbal exchange with him. Mr. Chaboyer’s frustration and angerescalated to the point that he punched Mr. Heidecker in the face. Albeit describing an unfortunate series of events, their testimony wasinternally and mutually consistent. Furthermore, it was plausible and logical. Finally, the Crown’s evidence was consistent with thephotographic evidence in these proceedings – depicting an obvious injury to Mr. Heidecker’s nose. [36] On the other hand, Mr. Chaboyer’s testimony was confusing, fluid and self-serving. The thesis of Mr. Chaboyer’s testimonythat Mr.

Heidecker started the fight was based on the claim that Mr. Heidecker was stealing his personal belongings. However, Mr.Chaboyer only offered this evidence in response to the Crown’s question as to why Mr. Heidecker (who was just the hired help) wouldstart an altercation with Mr. Chaboyer. During Mr. Chaboyer’s cross-examination of Mr. Heidecker, he never asked or asserted that Mr.Heidecker was doing anything other than placing the items from the apartment in Mr. Cam’s trailer. He never asked nor asserted that Mr.Heidecker had a truck at the property. He never asked nor asserted that Mr.

Heidecker aggressively pushed a box of his belongingstoward him. Furthermore, when questioning Mr. Heidecker and Mr. Jenkins, Mr. Chaboyer never asked nor asserted that Mr. Heideckerthrew the first punch. While I do not expect Mr. Chaboyer (who was self-represented) to understand the rule in Browne v Dunn (1893),1893 CanLII 65 (FOREP), 6 R. 67 (UKHL), it is illogical in the extreme that, when he finally got a chance to challenge his accusers, hedidn’t mention anything to the effect that Mr. Heidecker started the fight by throwing the first punch. In making this observation, I notethat Mr.

Chaboyer appeared not to have any difficulty challenging or questioning the witnesses. He asked each of them a number ofprobing questions. [37] In direct examination, Mr. Heidecker was very clear that Mr. Chaboyer started the fight by punching him in the face. Yetwhen Mr. Chaboyer asked him questions in cross-examination – when he finally got to challenge the persons falsely accusing him ofCriminal conduct – he never asked him anything about placing items in his own vehicle (rather than Mr. Cams) nor did Mr. Chaboyeraccuse him of stealing his stuff or of swinging at him first. If Mr.

Heidecker started the fight, I find it improbable in the extreme thatanyone (legally trained or not) would forget to even mention this in cross-examination. [38] Simply put, I find Mr. Chaboyer’s testimony that Mr. Heidecker started the fight by swinging at him first to be unbelievable.It was illogical and self-serving. More importantly, this evidence was wholly overwhelmed by the clear, cogent and compelling evidenceof both Mr. Heidecker and Mr. Jenkins. In my opinion, there is no ring of truth – no air of reality - to Mr. Chaboyer’s assertion that hewas acting in self-defence.

Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Heidecker did not startswinging at him first.

[39] For the foregoing reasons, I find that s. 34 of the Criminal Code does not apply. [40] The compelling inference from the whole of the evidence is that Mr. Chaboyer was upset (maybe rightfully so) that hisproperty was being removed from the apartment and possibly being damaged and thrown out. Earlier that day, Mr. Chaboyer had been inquiet possession of the apartment and (and irrespective of his rights, if any, with respect to that apartment) there is a compelling inferencethat at least some of the property in the apartment belonged to him.

The Defence of Property: [41] Defence of property has long been recognized as a limited defence in Canada. This defence is codified in s. 35 of the CriminalCode. The defence applies to a wide range of offences and to any type of property. The defence is triggered when a person subjectivelybelieves that the actions of another person are threatening the peaceable possession of the subject’s property. See: Cormier v R, 2017NBCA 10 at paras 37 & 47, 348 CCC (3d) 97 [Cormier]. [42]

Section 35 provides that a person is not guilty of an offense (including in this case - assault) if four essential elements arepresent: (1) the person must have peaceable possession of property or alternatively they reasonably believe they are entitled to suchpossession; (2) the person must have a reasonable belief that their property is threatened by trespass, theft or vandalism; (3) the person’sactions must be for the purpose of retaking or preserving that property; (4) the person’s actions must be reasonable under thecircumstances. See: Cormier at para 47.

See also: Pankiw at para 34. [43] For the trier of fact, the subject’s belief in their entitlement to peaceable possession in certain property and their perception ofa threat to that property is assessed on a subjective basis (from the subject’s perspective). However, the reasonableness of the subject’sresponse to that threat is measured on an objective basis (what would a reasonable person have done under the circumstances).

See:Cormier at para 47. [44] Much like the defence of self-defence, “reasonableness” is the principle filter for the application of the defence of property tojustify an action that would otherwise be an offence. Assuming the other elements are present, if the actions of the accused areobjectively reasonable under the circumstances, they are justified at law and the subject is not guilty of the concomitant offense. [45] Finally, Mr. Chaboyer need not prove the application of this defence.

If I find there is an air of reality to the defence arisingfrom the evidence, then s. 35 applies unless the Crown can prove beyond a reasonable doubt that at least one of the elements of thedefence was not present. See: R v Caswell, 2013 SKPC 114 , 421 Sask R 312. [46] I am satisfied that on October 5, 2017, Mr. Chaboyer subjectively believed that he was in peaceable possession of certainproperty located in Mr. Cam’s apartment (if not the apartment itself). I am also satisfied that on October 5, 2017, Mr. Chaboyersubjectively believed that Mr. Heidecker and Mr.

Jenkins were interfering in his peaceable possession of that property by removing itfrom the apartment and throwing it away. However, I am not satisfied that Mr. Chaboyer’s response to that threat – punching Mr.Heidecker in the face – was objectively reasonable under the circumstances. Mr. Chaboyer’s actions were misdirected and ineffectiveand the force he used in response to the perceived threat to his property was wholly disproportionate to the threat. [47] I make no comment as to whether or not Mr. Chaboyer was lawfully evicted from the apartment that Ms. Primeau had beenleasing from Mr. Cam.

That is a question best answered by the Office of Residential Tenancies. However, given the haste with whichMr. Chaboyer was required to leave the apartment and his subsequent observation that property from the apartment was being removed(possibly even thrown out), he was rightfully and understandably concerned about any property from the apartment that may have beenhis. But Mr. Chaboyer’s concerns should have been directed at Mr. Cam. At least, they should have been directed at securing the safestorage of the property from the apartment until its ownership could be determined. The act of punching Mr.

Heidecker was whollydisproportionate under the circumstances and was largely unproductive in securing the safe storage of his property. Certainly, other morepractical options were available to Mr. Chaboyer, including monitoring the removal of property from the apartment and demanding thatit be safely stored until ownership could be determined. It may even have been justified to physically intervene to prevent Mr.

Heideckerfrom damaging property (if that’s what he believed was happening) – but it was not necessary and, in fact, it was wholly unreasonable topunch him in the face. [48] Based on the evidence before me, I am satisfied beyond a reasonable doubt that Mr. Chaboyer’s actions were not reasonableunder the circumstances. As such, I find that s. 35 of the Criminal Code does not apply.

CONCLUSION [ 49 ] I find that Mr. Chaboyer intentionally applied force to Mr. Heidecker on October 5, 2017. I find that Mr. Heidecker did not consent to the application of that force. Furthermore, I find that Mr. Chaboyer did not act in self-defence. Finally, while Mr. Chaboyer was understandably upset and frustrated as a result of being evicted and having his property removed from the apartment, the defence of property does not apply because the action he seeks to justify – the assault on Mr. Heidecker - was not reasonable under the circumstances. [ 50 ] For the foregoing reasons, I find Mr.

Chaboyer guilty of the charge of assaulting Mr. Heidecker on October 5, 2017, contrary to s. 266 of the Criminal Code . Dated this 31 st day of January, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J