R. v. Bell, 2016 ONCJ 145

CITATION: R. v. Bell , 2016 ONCJ 145 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL RICHARD BELL Before Justice F. Crewe Heard on February 22, 2016 Reasons released on March 15, 2016 S. Magotiaux ............................................................................................................. for the Crown M. Fairney .............................................................................................................. for Michael Bell CREWE J.: A. Introduction [ 1 ] Mr.

Bell was charged in a 5 count information on January 5, 2016 with various offences arising out of an incident at his apartment on Lawrence Avenue East in the City of Toronto. [ 2 ] After a very brief trial on February 22, 2016, Crown counsel acknowledged a lack of proof on four of the five counts, and sought a finding of guilt only on count 4, which alleges that Mr.

Bell, “…did carry a weapon, namely a knife, for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code of Canada.” [ 3 ] The issue is whether it could be said that his stated purpose for possession of the knife, to kill himself, constitutes a purpose dangerous to the public peace in the circumstances of this case. B. Brief review of the evidence [ 4 ] The entirety of the evidence consisted of the in-chief testimony of Ms. Kimberly Lamoureux. She was not cross- examined, and no further evidence was called by either the crown or defence. [ 5 ] Ms. Lamoureux was living with Mr.

Bell at his apartment off and on from August of 2015 up to January 5 of this year. After Mr. Bell’s release from custody on December 21, 2015, they continued to reside together in common-law until the events of January 5, 2016. Nobody else resided with them, and no one else was present for the events of January 5. [ 6 ] Sometime on January 4, Mr. Bell left the apartment and attended at the apartment of a neighbour where Ms. Lamoureux believes he consumed liquor. He is “ not supposed to drink liquor, because it changes him ”. Ms. Lamoureux does not drink.

Upon his return, he was upset, “ screaming and yelling about respect …” and threw things around the apartment. The precise chronology of events which transpired next is not entirely clear, however at some point he telephoned Metro housing and demanded they change the locks on his apartment, otherwise he would “ go after people with a knife .” Evidently he was worried about theft of his belongings. Mobile security was sent to change the locks, and before their arrival, Mr.

Bell threw some of his possessions off the third floor balcony, including a bicycle and some glasses. [ 7 ] After the locks were changed and the new keys were given to Mr. Bell by security, Ms. Lamoureux tried to calm him down. He would not listen to Ms. Lamoureux, called her “ a cunt ” and grabbed her by the throat. (he was not charged with this assault.) [ 8 ] He armed himself with a knife, and was threatening to kill himself. At some point he put the knife, which was 8-9 inches in length, to his chest, saying he did not want to live. Ms.

Lamoureux tried to get the knife away from him and a struggle ensued, during which items “ went flying ”. These items included glasses, an ashtray and candle holders. Ms. Lamoureux received a cut on her cheek, she believes from one of the items that were flying through the air, although she doesn’t know with certainty. She does not believe it was from the knife, although the knife was pointed in her direction at one point. He had it in his possession in total for 6 to 8 minutes. [ 9 ] Ms. Lamoureux felt scared for Mr. Bell, and for herself. She felt sad to see him drink, as he becomes a totally different person.

[10] Sometime after the locks had been changed, perhaps an hour and a half later, police arrived and arrested Mr. Bell. Ms.Lamoureux had not called them; at some point he had calmed down. C. Positions of the parties [11] Mr. Fairney submits that the evidence does not make out the offence charged. Mr. Bell’s purpose, if indeed it was hispurpose to kill himself, is not dangerous to the public peace, particularly in the circumstances of this case, where the events happened inthe privacy of his home. Mr. Fairney relies upon R. v. Sibley [1978] O.J. No. 3743 (Ont.

P.C.). [12] He submits further that it may well be that Mr. Bell’s intent was not to kill himself, but to simply make Ms. Lamoureuxfeel bad, which is not a dangerous purpose. He submits this an available inference on the evidence. [13] Alternatively, Mr. Fairney argues that Mr. Bell was clearly intoxicated and incapable of forming the intent to commit aspecific intent offence. [14] On behalf of the Crown, Ms. Magotiaux submits that the intent to cause harm to oneself can constitute a purposedangerous to the public peace, and the issue must be analyzed on a contextual basis.

Circumstances requiring consideration include: (i)the type of weapon (eg.- Possession of a loaded firearm would be presumptively dangerous); (ii) the foreseeability of intervention by anyperson(

s) present; (iii) the location of the stated intent to commit self harm and: (iv) any accompanying words or conduct by the personpossessing the weapon. [15] In this case, Ms. Magotiaux submits, relying in part on authorities that decline to follow Sibley, that the words andconduct of Mr. Bell demonstrate a purpose that was objectively dangerous and therefore prove the offence charged. D. The legal framework [16] There does not appear to be any appellate authority directly on point, however there are several reported trial courtdecisions, mostly from Provincial Courts, one from a Superior Court.

In Sibley, the court allowed a motion for directed verdict on factssimilar to the instant case, holding that, at para. 13-14: “…there is no evidence to establish that this accused had this knife for anypurpose other than the commission of suicide” and “…it may be that other people intervened and prevented him from doing that, butthat is separate from his original purpose.” [17] The earliest reported decision to which I have been referred is R. v. Dugan (1974) (ON CJ), 21 CCC(2d) 45 (Ont. P.C.). Mr.

Dugan publicly declared his intent to commit suicide in court (by swallowing acid) in the event he was foundguilty in an ongoing trial. He attempted to drink the acid as threatened and thus engaged the intervention of court security. In finding Mr.Dugan guilty, the Court ruled: “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 causedfear and alarm in the minds of the persons in the court-room, but this is not the test to establish that the purpose of the accused wasdangerous 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 thecircumstances, to provoke physical resistance to his proposed conduct and that, in the process, persons in the vicinity would be exposedto serious physical injury if and when an attempt was made to frustrate his bizarre plan by the police’s endeavour of preventing him fromdrinking the acid and as he resisted.

As a matter of fact, this is exactly what happened as disclosed by the evidence…”. [18] The trial judge in Sibley referred to the Dugan decision but declined to apply it, noting that: “…it may be that otherpeople intervened and prevented him from doing that, but that is separate and apart from his original purpose.” And further, as notedabove: “…there is no evidence to establish that this accused had this knife for any purpose other than the commission of suicide.”Several trial courts have considered these decisions and some have attempted to reconcile their reasoning. In my view they areirreconcilable.

I have not been pointed to any case which adopts and applies the reasoning in Sibley. [19] The Supreme Court of Canada addressed the mens rea of s. 88 of the Criminal Code in R. v. Kerr 2004 SCC 44 ,[2004] 2 SCR 371, albeit not in the context of an intended suicide.

The Court adopted a hybrid subjective-objective approach to themental element of the offence, whereby the trial court must first determine the accused’s purpose, a subjective determination. “The trierof fact must then determine whether that purpose was in all the circumstances dangerous to the public peace; this is an objectivedetermination.” (para 25) The Supreme Court cites Dugan with apparent approval at para 34. [20] The reasoning in Kerr was applied in the context of an intended suicide in R. v. Arkinstall [2013] S.J. No. 624. (SaskP.C.) Mr.

Arkinstall had been drinking, assaulted and choked his girlfriend, then took a utility knife and indicated that he intended to cuthis wrists, leaving in his truck to do so.

His girlfriend called the police, who intervened and, after a high speed chase, the accused wassubdued. [21] Justice Koskie determined, in accordance with the two-stage test set out in Kerr, that the subjective intent of the accusedwas to commit suicide. “The question then is whether or not this purpose was dangerous to the public peace in thecircumstances.”(para. 52) At para. 58, Justice Koskie held that the reasonableness of any expectation that others will interfere with anattempt to commit suicide is a factor to consider in deciding if the possession was for a purpose dangerous to the public peace.

Havingregard for the fact Mr. Arkinstall set out to do so in a public place, the court held that it was reasonable that the accused would assumesomeone would try to intervene, and the purpose was therefore dangerous to the public peace. (para 60) [22] A similar result, prior to the Supreme Court’s decision in Kerr, was reached in R. v. Sanneh [1993] N.B.J. No. 357 (N.B.Prov.

Ct.) Justice Brien held, at para. 17-18, that “…I do not agree with the position taken in Sibley that the intervention of others andthe resultant exposure to risk such would bring is not a factor to be considered….In my opinion, the likelihood of intervention by othersto prevent the attempt at suicide is a factor to be considered in the determination of the purpose for which a weapon is possessed.

Itseems to me that should an accused decide to alert others of his intent to commit suicide and chose a place and means by which thepublic could be exposed to his attempt, then it is open to the court to infer that by such conduct the accused intended intervention or, at

the very least, would be taken to know that intervention and resulting potential danger to the public may occur. E. Analysis [ 23 ] Having regard for the first determination, the subjective intent of Mr. Bell, the only evidence I have of that is the testimony of Ms. Lamoureux that he expressed an intent to kill himself and held the knife to his chest. Mr. Bell did not testify, and I have no firm basis upon which to found any conclusions as to his true intent. Ms. Lamoureux was sufficiently alarmed by his words and actions that she intervened and was injured as a result.

She was clearly concerned that his expressed intent was genuine. [ 24 ] In my view it is not necessary that I reach a firm decision as to whether Mr. Bell intended to kill himself. In R. v. Maciocia [1991] O.J. No. 2583 (Ont. G.D.) , the accused had been drinking in his home and retrieved a firearm from the basement for the stated purpose of killing himself.

Justice Hawkins ruled that “…One will never know whether he actually intended to commit suicide or not, but it is clear that he intended to tell his wife he intended to commit suicide, and I find that to be a purpose contrary to the public peace.” One could certainly argue that this is a rather concise application of the Supreme Court’s subsequently enumerated two stage process in Kerr , and in my view informative on the facts of this case. [ 25 ] In any event, I am unable to conclude whether Mr. Bell actually intended to kill himself, only he knows that, however that does not end the analysis.

He certainly communicated that intent with sufficient sincerity to cause his spouse to believe him, and to be spurred into action. In my view, Mr. Bell was well aware from Ms. Lamoureux’s comments to him that she was unhappy with his alcohol consumption and his behaviour, and he used the knife to stoke the fire, so to speak. Whether he simply meant to evoke sympathy as suggested by counsel, it would have been painfully obvious to him that she was concerned and that she would probably try to stop him from killing himself, which is precisely what she did, at great risk to herself.

I am satisfied that he turned his mind to this possibility before arming himself with the knife. [ 26 ] Stage two of the analysis is not in my view determined by the fact this incident took place in Mr. Bell’s apartment. If person(

s) other than himself are present, and he communicates his intent to them, the concerns raised in Dugan , Sanneh, Arkinstall, Maciocia and other cases with respect to potential intervention and the resultant danger to those intervenors (and others) is triggered. [ 27 ] As far as the issue of intoxication sufficient to negative specific intent, I have been provided no evidence upon which to base such a finding. I have no evidence as to how much Mr. Bell drank, or what type of alcoholic beverage(

s) he consumed, other than Ms. Lamoureux’s conclusion that he must have consumed liquor. To the limited extent that a finding is available to be made, I decline to do so. I am satisfied beyond a reasonable doubt that the Crown has proved possession for a purpose dangerous to the public peace, and I find Mr. Bell guilty on this count. Released: March 15, 2016 Signed: “Justice F. Crewe”