Her Majesty the Queen - v. -, 2014 SKPC 161

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2014 SKPC 161 Date: August 7, 2014 Information: 44334083 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - K.R.B. Appearing: Ms. B. Herder For the Crown Ms. T.

Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT B.D WRIGHT , J _____________________________________________________________________________

I Introduction [ 1 ] The young person, K.R.B., is charged with committing mischief by wilfully breaking a window of the Northwoods Inn and Suites on January 5, 2014. [ 2 ] The trial was held on June 19, 2014. It is uncontradicted that K.R.B. intentionally broke the window in question; he acknowledged that he did so not only to the police officer who attended at the scene, but also in his testimony during the trial. However, at issue in these proceedings are the circumstances in which he broke the window, and whether those circumstances give rise to the defence of necessity. II The Evidence

a) Evidence of the Crown [ 3 ] Constable Aaron Parker testified that he was dispatched to a call of an injured person at the Northwoods Inn and Suites in Saskatoon, Saskatchewan. The dispatch included that a male had broken a window and was bleeding. An update to the dispatch indicated that the individuals were in Room 111 of the Northwoods Inn and Suites. [ 4 ] Constable Parker testified that when he arrived at Northwoods Inn and Suites, there were two individuals outside Room 111, K.R.B. and a female named S.B., both covered heavily in blood.

The window to the room was broken with blood smeared all over it and, in addition, there was blood all over the walls, the bed and the sheets in the room. [ 5 ] Constable Parker testified that as soon as he arrived he noticed that K.R.B. was covered in blood, head to toe, and that he had bad cuts to his hands and arms. He asked K.R.B. what happened, and K.R.B. told Constable Parker that he had broken the window and cut his arm on the window. [ 6 ] Constable Parker then called for an ambulance, and K.R.B. was subsequently transported to St. Paul’s Hospital after being treated at the scene.

Constable Parker attended to St. Paul’s Hospital as well, and, given the statement by K.R.B. that he had broken the window, Constable Parker arrested K.R.B. for mischief and gave him his Charter rights which K.R.B. indicated that he understood. He further said he did not want to call a lawyer. He was also then given the police warning, which he again said he understood. [ 7 ] Constable Parker then took a verbal statement from the young person.

He says K.R.B. told him that he had gone to Room 111 to hang out with friends, including S.B., his girlfriend J.W., and four other males who he would not identify to Constable Parker. He further told Constable Parker that he got into an argument with his girlfriend once they were in Room 111 and that he tried to leave the room but she blocked the door and was pushing and slapping him. As a result, he pushed her onto the bed and at that time the four males jumped up as if they wanted to fight him and protect his girlfriend.

He said he became scared and broke the window with his right arm, and tried to climb through the window to escape as he felt he could not get through the door. They pulled him back in, cutting his arms and hands. At that point, S.B. called the police and shortly after Constable Parker arrived. All of the other individuals left, and only S.B. and K.R.B. remained when Constable Parker arrived. [ 8 ] In cross-examination, Constable Parker noted that K.R.B. had been shaking and crying when he arrived on scene, appeared to have lost a lot of blood, and was possibly in shock. He was also hysterical and screaming.

b) Defence Evidence

[ 9 ] The young person testified on his own behalf. He testified that he was visiting with his aunt and uncle in a room upstairs at Northwoods Inn and Suites with his girlfriend J.W., S.B. and a cousin. While visiting, S.B. got a text inviting them to Room 111, and S.B. said they were going to have a few drinks. He testified that he knew it was going to get rowdy, and that something bad was going to happen.

He knew it would not be good as alcohol was involved and nothing good ever happens from alcohol. [ 10 ] He testified that he told his girlfriend that he wanted to go to his cousin’s on Avenue F because it was safer there, as there was no drinking at that residence, but his girlfriend wanted to have some fun so he agreed to go to Room 111. He says that when they got into Room 111 it was trashed.

He could see one boy in the back hitting the walls, and he testified that he told them they would get in trouble for damaging the room. [ 11 ] He testified that he then saw a boy that he knew (subsequently identified as A.M.), “that I was going to end up having altercations with, physically because of past troubles with him, like fighting, not agreeing with each other, disliking each other very much”. He also testified: “He was with his friends and I was like okay, this is not going to end up nice”. He says he turned and told his girlfriend, J., that she needed to leave.

In particular, he testified: “and then I tell J. to leave because like stuff wasn’t going to be pretty, you need to go home and go somewhere because - I’ll phone you later. I thought S. was going to go with her but then I turned around and it was face to face with this boy and it didn’t really turn out nice”. [ 12 ] K.R.B. was asked why - if he knew something was going to happen and he told J. to leave - he did not leave as well. His answer was: “I did not think of that”. [ 13 ] He then testified that a fight began between he and A.M., after A.M. “got into my face”.

He further testified: “So I was like okay well, like if you want to fight I was like we can fight. We were throwing punches at each other and then those other boys jumped in. I tried to open the door. I noticed the door was locked.” [ 14 ] He testified that at least three other boys jumped into the fight against him, and when he was asked what he felt at that point, he said: “I don’t know. I was lost. I didn’t know who to hit, I didn’t know where the punches were coming from, I didn’t know what to do. All my thought was just to leave, like get away from this situation.” He added: “I didn’t know what was going on.

I lost my self in the middle of the fight.” K.R.B. then testified that he smashed the window to try to escape. He said he tried to open the door first, but was unable to do so because he was pulled back by the others and was being grabbed and thrown around, and was being punched and kicked. He then smashed the window and tried jumping out, but got pulled back in. He says his feet were on the window sill and he almost got out before he was pulled back in. [ 15 ] He sustained the cuts to his hands and arms as he was being pulled back into the room.

At that point, when S.B. saw that he was bleeding, she said she was calling the police. Everyone else then left. He further testified that the blood which was all over the room was from him trying to find something to stop his bleeding. [ 16 ] In examination-in-chief, the young person was asked if he remembered talking to the police officer. He testified: “I just remember telling them I smashed the window, it’s my fault, that he can charge me for it because I was the one who tried smashing it out. I told him why I smashed it out.

Then he called the ambulance.” [ 17 ] The young person was cross-examined extensively on his evidence. Of note, he was asked why he did not leave Room 111 when he first attended and saw the boy trashing the room. His answer was that he did not know, but that his girlfriend wanted to stay and have a good time. He was then asked why he did not leave when he saw A.M., whom he disliked and with whom he had previously fought. His answer, once again, was that he did not know. [ 18 ] K.R.B. was then cross-examined about whether he had been in a fight with his girlfriend on the night in question.

He denied that he had, and, as a result, he was cross-examined about his verbal statement to Constable Parker that he gotten into an argument with his girlfriend and had pushed her. He says he does not recall telling that to Constable Parker, but acknowledged that he did not tell the truth to Constable Parker if he said he was in a fight with his girlfriend. He also said he was not hit by his girlfriend, and instead volunteered that he was hit by S.B. He says his girlfriend was “long gone” by the time the fight started, because when he knew he was going to fight with A.M. he told his girlfriend to leave.

He was then asked why he did not also leave with her, and his answer was as follows: “Because I wanted to see what the hell this guy’s problem was.” He was then asked if he wanted to fight the boy, and his

answer was: “No, I wanted to see what was going on, I didn’t want to fight.” He was then asked: “But you knew you were going tofight”. His answer was: “Yes, I did”. III The Law [19] The Supreme Court of Canada discussed the defence of necessity at length in R. v. Perka, (SCC), [1984] 2S.C.R. 232.

At page 259 the Supreme Court of Canada summarized the considerations with respect to the defence as follows: It is now possible to summarize a number of conclusions as to the defence of necessity in terms of its nature, basis and limitations: (1)the defence of necessity could be conceptualized as either a justification or an excuse; (2) it should be recognized in Canada as anexcuse, operating by virtue of s. 7(3) of the Criminal Code; (3) necessity as an excuse implies no vindication of the deeds of the actor;(4) the criterion is the moral involuntariness of the wrongful action; (5) this involuntariness is measured on the basis of society’sexpectation of appropriate and normal resistance to pressure; (6) negligence or involvement in criminal or immoral activity does notdisentitle the actor to the excuse of necessity; (7) actions or circumstances which indicate that the wrongful deed was not trulyinvoluntary do disentitle; (8) the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must beinevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law;(9) the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril; (10)where the accused places before the Court sufficient evidence to raise the issue, the onus in on the Crown to meet it beyond a reasonabledoubt. [20] In R. v.

Latimer, [2001] S.C.R. 3, the Supreme Court of Canada noted that the defence of necessity must be of limitedapplication and restricted to rare cases where true involuntariness is present. The Court stated as follows: 27 Dickson, J insisted that the defence of necessity be restricted to those rare cases in which true “involuntariness” is present. Thedefence, he held, must be “strictly controlled and scrupulously limited” (p. 250). It is well established that the defence of necessity mustbe of limited application.

Were the criteria for the defence loosened or approached purely subjectively, some fear, as did EdmundDavies 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. 28 Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril ordanger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there mustbe proportionality between the harm inflicted and the harm avoided. [21] In R.v.

Murray, 2010 ABQB 784, the Alberta Court of Queen’s Bench provides a review of the law of necessity and the onusof proof, as follows: 21 In R. v. Perka, (SCC), [1984] 2 S.C.R. 232, Dickson J. explained at p. 248 that the defence of necessity rests on arealistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience oflaws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impeldisobedience. Such acts are still wrongful, but are excusable in the circumstances.

He further stated at pp. 257-258: Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of provinga voluntary act. The prosecution must prove every element of the crime charged. One such element is the voluntariness of the act.

Normally, voluntariness can be presumed, but if the accused places before the Court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent thatfailure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then theCrown must be prepared to meet that issue. There is no onus of proof on the accused. 22 The Supreme Court in R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3, at paras. 26 to 34, confirmed that the defence of

necessity is restricted to those rare cases in which true “involuntariness” is present, and that the defence of necessity requires: 1) a requirement of imminent peril or danger; 2) no reasonable legal alternative to the course of action he or she undertook; and 3) proportionality between the harm inflicted and the harm avoided. 23 The peril must be on the verge of transpiring and virtually certain to occur, such that normal human instincts cry out for action and make a counsel of patience unreasonable.

The second requirement of no reasonable legal alternative involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable. 24 The first two criteria are assessed on a modified objective basis. This is an objective evaluation, taking into account the situation and characteristics of the particular accused person, including his or her reasonable perceptions of the existence of alternative courses of action.

Proportionality is measured on an objective standard. [ 22 ] In discussing whether a case is one in which “true involuntariness” is present, the Supreme Court of Canada in Perka , supra, at pp. 255 - 257, discussed the notion that if an accused’s own “fault”, including negligence or recklessness, is responsible for the events giving rise to the necessity, he may not rely on the necessity defence. [ 23 ] At p. 256 of Perka the Court stated as follows: In my view the better approach to the relationship of fault to the availability of necessity as a defence is based once again on the question of whether the actions sought to be excused were truly “involuntary”.

If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency.

His response was in that sense not “involuntary”. [ 24 ] At p. 257 the Court continued as follows: If the accused’s “fault” consists of actions whose clear consequences were in the situation that actually ensued, then he was not “really” confronted with an emergency which compelled him to commit the unlawful act he no w seeks to have excused. In such situations the defence is unavailable. IV Analysis [ 25 ] The first requirement is there must be an urgent situation of clear and imminent peril.

In assessing this requirement on a modified objective standard, I must objectively evaluate the circumstances of the case, taking into account K.R.B.’s situation and characteristics. [ 26 ] In the circumstances of this case, and accepting the evidence of K.R.B. given at trial, I am unable to conclude that the situation confronting K.R.B. “...was in the relevant sense an emergency.” [ 27 ] I am mindful that the obligation remains on the Crown to prove, beyond a reasonable doubt, the voluntariness of the actions of the accused.

In this case, I am satisfied that the Crown has met that burden, and I am satisfied that the actions of K.R.B. were, indeed, voluntary. In my view, this is not one of “those rare cases in which true ‘involuntariness’ is present”, and therefore the defence of necessity does not apply. [ 28 ] In coming to this conclusion, I note that there were at least four occasions where K.R.B. testified that he knew the situation would be bad if he went to Room 111, and yet he still did so.

In particular, when S.B. first got the text with the invitation to Room 111 for drinks, K.R.B. testified that he knew the situation would get rowdy and that something bad would happen because alcohol was

involved. He testified he wanted to go to visit his cousin instead, because it would be safer. Furthermore, he testified that when they arrived at Room 111 he noted one of the boys already there to be trashing the room, and yet he did not withdraw himself from the situation at that point. Thirdly, he testified that when he saw the boy he had previously had trouble with, A.M., he did not leave Room 111 despite the fact that he knew he would have a physical altercation with him. He also testified that when he saw that A.M. was with his friends, he knew it would not end up well.

He then told his girlfriend to leave, but he chose to stay. He acknowledged that he stayed even though he knew he and A.M. were going to fight. [ 29 ] In my view, the situation which ultimately arose was not only clearly foreseeable to a reasonable observer, but in my view, was also clearly foreseeable to K.R.B. himself. He acknowledged as much on at least four separate occasions, as I have referred to above.

As was stated in Perka , supra : “If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency.

His response was in that sense not ‘involuntary’.” The defence of necessity is unavailable. [ 30 ] Given my conclusions above, it is unnecessary for me to consider the second and third requirements of the defence of necessity. [ 31 ] In conclusion, and given all of the above, I am satisfied beyond a reasonable doubt that the defence of necessity has not been made out in this case. As a result, I find K.R.B. guilty as charged. _____________________________ B.D. Wright, J