Her Majesty the Queen - v. -, 2015 SKPC 156

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 156 Date: November 20, 2015 Information: 45041702 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blayne John Edward Landry Appearing: Buffy Rogers For the Crown Jay Watson For the Accused DECISION B. SINGER, J Introduction [ 1 ] The Accused, Blayne Landry [Blayne] is charged that on August 2, 2014, he did by criminal negligence to wit: stabbing with a knife, cause bodily harm to Caitlin Schettler [Caitlin] contrary to

Section 221 of the Criminal Code and also with one charge of assault with a weapon.

[ 2 ] Both the Crown and the defence agree that Caitlin was stabbed with the knife by accident. The Crown suggests that a reasonable person in the place of the Accused would not have created the circumstances where this accident happened and he is, therefore, criminally culpable because what he did amounted to a wanton disregard of the safety of others. The Crown also alleges that by poking at Caitlin with the knife and touching her with it shortly before the accidental stabbing, he assaulted her with the knife.

Facts [ 3 ] The Accused and his friends Jonathon Theriault [Jonathon], Dallas Irvine [Dallas], Caitlin and a few others were drinking at a ‘pasture party’ near the trailer where the Accused, Jonathon and Dallas lived in the Asquith district. The occasion was a going away party for Jonathon, who was leaving to work fighting forest fires in the North. According to all, everyone, but Jonathon, was intoxicated. [ 4 ] Jonathon and Caitlin left the party and went to bed, in Jonathon’s room. About one hour later, the others made it back to the trailer to continue drinking and partying.

The Accused and his friends went into Jonathon’s bedroom, with the intent to rouse them and “bug them” to get them to continue drinking. [ 5 ] Caitlin testified that when the boys came into the room they were all very boisterous, joking and basically fooling around. They were trying to get her out of bed. They even pulled on the covers, which came off and she had to chase them out into the hall, to get the blanket back as she was naked. She got the covers and returned to bed. The activity continued, it was described by all the witnesses as horsing around, laughing or joking around.

During this activity Blayne picked up a knife that had been on a table in the bedroom, opened it and was playing with it - poking around with it, when Caitlin said that she got a small jab in her kneecap. She testified that “Blayne was goofing around” with the knife, he was “being super-immature”. Shortly, thereafter someone was chasing Blayne around this small bedroom when he stabbed her in the leg.

On the stand, she said “to this day – I don’t know if it was an accident or not”, however, on that night she told the doctor and nurse at the hospital, that she believed it was an accident. [ 6 ] As soon as she was stabbed, Caitlin testified, “Blayne dropped the knife and looked at his hands, which were shaking”. Everyone was very surprised. [ 7 ] Dallas was one of the young men involved. He confirmed that everyone, except Jonathon was drinking to excess.

He recalled that he and Blayne, Teddy and Bradon came into the bedroom, turned on the light, and were fooling around, trying to get Jonathon out of bed to come and drink with them some more. He saw the Accused playing with his knife, opening and closing it. During all that was going on, in this small bedroom, he saw Blayne try to jump on the bed. Blayne tripped. He then saw blood on the blanket. When Blayne fell, nobody realized at first, that Caitlin had been hurt.

Dallas agreed that the four of them were “acting like idiots and bugging Jonathon and Caitlin for sleeping together.” No one, including Blayne was angry or mad. He suggested that all that happened was that Blayne tripped while holding the knife. He thought what occurred was an accident. [ 8 ] Jonathon Theriault was the most sober of all and he testified that he and Caitlin were in bed in his bedroom, in the trailer, when the other boys showed up. They were joking about him and Caitlin seeing each other off and on.

He recalls the boys wrestling and fooling around. [ 9 ] He had purchased the knife for his new job and it was on the bedside table. Blayne picked it up and was “fooling with it” flipping it open and closed. He felt this was not abnormal as “everyone played with it”. He described the mood as happy and everyone, including Caitlin, was having a good time. [ 10 ] He saw Blayne pretend to poke Caitlin with the knife at least once. He said that he and Blayne did that to each other all the time.

He testified that when Blayne was poking a second time, Blayne tripped on the corner of the bed and stumbled into Caitlin with the knife in his hand. Caitlin said “Oh my God” and he saw Blayne’s face turn ghostly white. Blood appeared on the blanket near Caitlin’s knee, and she looked surprised. [ 11 ] Jonathon candidly testified that he now realizes he should not have had the knife lying around because “accidents happen”. To him it appeared to be an accident and Blayne was clearly as surprised as everyone else that it had happened. [ 12 ] The Accused testified as well.

It should be noted that he seemed to have a clear recollection of most of what occurred in spite of the drinking that had gone on. He indicated that he is now 20 years of age, has a grade XI education and at the time was employed. On

August 2, 2014, he lived in the trailer with Jonathon and Dallas and Bradon. They had been outside at a ‘pasture party’, drinking to wishJonathon well as he was starting a new job up north. [13] He and his friends got back to the trailer in the early hours of the morning and went into Jonathon’s bedroom to try and rousehim so that they could continue to drink. In the bedroom they were horsing around, pushing each other and wrestling with each other.

Herecalls pushing on Jonathon to get him out of bed, while Teddy and Bradon were pulling on Caitlin’s legs and the blanket, when theblanket came off, she chased after them to get it back. She then went back into the bed under the covers. [14] He recalled the knife being on the table and picking it up and playing with it. Someone was chasing him around the bedroom. He testified, “I went to jump over the bed and slipped off the mattress.” He fell and indicated that the next thing he knew, there wasblood on the bed.

He says at that point he went blank. [15] The Accused insists he did not mean to stab Caitlin and that the stabbing was accidental. He has apologized many times forhis actions and agreed that playing with the knife in these circumstances showed very poor judgment, even if he had not been drinking. He does not recall poking with the knife on her knee prior to falling on her. He says at the time, he thought that what they were doingwas a joke and that what happened was a “stupid accident”.

Position of the Parties [16] The Crown says that it has proven beyond a reasonable doubt the stabbing with a knife was the fault of the Accused. Sheindicated that the circumstances amount to criminal negligence, as it showed a wanton and reckless disregard for the safety of others. Shealso indicated that the accused cannot be forgiven criminal liability because of his intoxication, as the evidence does not show that hiscapacity to consciously control his behaviour was lost through intoxication. [17] The defence argues the Accused’s actions fell short of wanton disregard for the safety of others.

Law [18] The Criminal Code defines criminal negligence as follows: 219(1) Everyone is criminally negligent who (

a) In doing anything, or (

b) In omitting to do anything that it is their duty to do, Shows wanton and reckless disregard for the lives or safety of other persons. [19] The Crown relies upon the poke with the knife that struck Caitlin’s kneecap as the action that amounts to an assault with aweapon. There is no doubt that he poked her with the knife. Pictures of a small cut on her kneecap were filed. The issue to be determinedis whether the Crown has proven beyond a reasonable doubt that he intended this act. [20] The test for criminal negligence is mostly developed in cases involving dangerous or impaired driving.

These cases are oflimited value as they involve a licensed activity for which a degree of training and experience is required and there is a lesser criminaloffence of dangerous driving. Thus a reference to these cases is for guidance only. For instance, in R v Beatty, 2008 SCC 5 ,[2008] 1 SCR 49, the Supreme Court considered the requisite mens rea and actus reus of dangerous driving. The Court determined that amodified objective standard is appropriate, requiring a marked departure from the standard expected of a reasonably prudent person insimilar circumstances.

The question between a departure in civil negligence and a marked departure in criminal negligence is a questionof degree. As the Court said in Beatty: …If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding

as criminals persons who are not morally blameworthy [21] In R v Alves, 2014 SKCA 82 , 2014 SJ No 433 (CA), the Court said: At para. 36 in Roy, (2012 SCC 26) the Supreme Court set out a helpful two-step approach for a trier of fact to approach the mens rea ofdangerous driving: first ask whether, "in light of all of the relevant evidence, a reasonable person would have foreseen the risk and takensteps to avoid it if possible." Second, ask "whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was amarked departure from the standard of care of a reasonable person in the accused's circumstances." [22] Beatty and Roy were cases of dangerous driving.

Criminal negligence is a more serious offence. As such, the departure fromthe standard of care of a reasonable person must be more marked in both the actus reus and mens rea of the offence of criminalnegligence in the operation of a motor vehicle as compared to dangerous driving (R v Palin (1999), (QC CA), 135CCC (3d) 119 (Que CA), R v Dunford, 2015 SJ No 552 (QB)). The marked departure of the care that one might expect of a reasonableperson must be a wanton and reckless disregard for the safety of others. [23] In Dunford, the Court reviewed the meaning, over the years assigned to wanton and reckless.

The learned justice determinedat paragraph 138, “The term wanton, as previously noted, has been defined in the jurisprudence as "heedless", "ungoverned","undisciplined" or "an unrestrained disregard for the consequences". Reckless has been defined as "heedless of the consequences,headlong, irresponsible". "Heedless" has been equated with a “complete disregard” for the consequences of one’s action.” Analysis [24] To play around with an open knife in a crowded room, after drinking alcohol, when the room was full of boisterous and activeyouth was dangerous.

The Accused opened and closed the knife; he and others had done this before. He poked with it, pretending to stab;something he and others had done before. It was still in his hand and open when others in the room were chasing him around and heslipped and fell. No harm would have occurred but for the unfortunate accident of falling with the knife onto Caitlin Schettler. [25] Everyone who was in that room was surprised when the accident happened including the victim and the most sober personthere Mr. Jonathon Theriault.

As he said the mood was happy, they were all just playing around and they were having a good time. [26] If this were a civil trial for negligence, he would be liable, as a reasonable person would have foreseen that an accident mighthappen in the circumstances. If this were a trial to determine if the Accused’s activities were dangerous, he might be found guilty, ascarrying an open knife in that crowded room, full of boisterous, alcohol fueled youth, was not prudent and was a departure from thestandard of care a reasonable person would have for the safety of others.

However, in this case the Crown must satisfy me that theAccused acted in a way that was not only a marked departure from the standard of care a reasonable person would have had for the safetyof others but that he also heedlessly disregarded the consequences, or that he had a complete disregard for what happened. I am notsatisfied that is the case. If it was that dangerous, someone in that room would have thought so. No one in that room said, put the knifedown; no one in the room worried about the danger that might be caused. No one even foresaw that an accident might occur. Even thesober person was not concerned.

They were there, I was not. Indeed if just carrying an open knife in these circumstances was criminalnegligence, then those chasing him around the room, were equally guilty of the damage that was caused. It was stupid and the dangerwas foreseeable, but it was not likely that he would fall on Caitlin, and it did not amount to a wanton and reckless disregard for the safetyor lives of others. He is not guilty of that charge. [27] The Accused is also charged with assault with a weapon. He was pretending to poke the knife at Ms. Schettler and it struckher kneecap as it went through the blanket over her leg.

He testified that he does not remember doing this. Mr. Theriault testified asindicated by my notes “that Blayne was flipping the knife around ... everyone was near Caitlin ... he was pretending to poke her with theknife (me and him always did that to each other) … I saw maybe once, maybe twice he poked at her.” I accept that evidence. There isnothing in the Crown’s case that convinces me that the Accused was doing anything more than pretending to act and talk tough like hewas going to do harm.

By accident he poked the blanket over her leg touching her with the knife. [28] That this was an accident is confirmed by all the circumstances, including the victim’s belief that the Accused was just jokingaround and the similar evidence of all those present. [29] Accident is a defence to a charge of assault. If in pretending to assault an Accused actually does assault, because the Accuseddid not intend to do a criminal act, the Crown cannot establish that the Accused had the necessary mens rea to commit the crime of

assault. In all of the circumstances, it is clear that the Accused did not intend to poke Caitlin with the knife. His actions were as Caitlin said “super-immature” but he did not have the intent required to be convicted of the criminal charge of assault with a knife. He is not guilty of that charge as well. Dated at the City of Saskatoon this 20 th day of November, 2015 _________________________ B. Singer, J