R. v. Wheldon Date:, 2014 BCPC 119

Citation: R. v. Wheldon Date: 20140526 2014 BCPC 0119 File No: 77415 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN JASON EMERSON WHELDON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J. Kulla Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Dates of Hearing: March 19, May 26, 2014

Date of Judgment: May 26, 2014 [ 1 ] On the evening of September 22, 2013, Mr. Wheldon was at home. Sometime between 9:00 and 10:00 p.m., he received a visit from three acquaintances, each of whom has a criminal background. Mr. Wheldon is himself a career criminal with an extensive criminal record. Two of his three visitors came with hostile intent. They accused Mr. Wheldon of stealing from a friend of theirs, demanded compensation and threatened to beat Mr. Wheldon with an implement which they had brought with them for the purpose. They informed Mr.

Wheldon that a fourth confederate was waiting outside to intercept him if he attempted to flee. Mr. Wheldon was convinced, on reasonable grounds, both of their sincerity and of their capacity to implement their expressed intentions. [ 2 ] During the course of negotiations, an opportunity arose for Mr. Wheldon to escape from the house. He seized that opportunity and ran into the back yard. He picked up a 10-litre plastic jerry can which was about half-full of gasoline, splashed gasoline on a concrete pad in the back yard and set it alight.

He then circled the fire, continuing to splash gasoline onto the burning fire and shouting “Get out of my house”. [ 3 ] Mr. Wheldon explained that he is a trained marine deckhand and firefighter, and that an open fire is an internationally- recognized distress signal. His intention was to cause his visitors to fear that the house was on fire and that the authorities were likely to be attracted by the fire, either or both of which might cause the visitors to depart promptly. Mr. Kulla asked Mr. Wheldon why he did not simply run to a neighbour’s house or to a neighbouring convenience store and call 911. Mr.

Wheldon replied that he was subject to a probation order including a curfew which required him to remain at his home during night hours. I asked why he did not simply should “Help! Call the police”. He replied that anyone in his social stratum who seeks assistance from the authorities is branded as a “rat”, and is at risk of future assaults in consequence. I am unable to accept that rationale. If Mr.

Wheldon is to be believed, it was acceptable in his social milieu to set a fire for the twin purposes of driving the visitors from his home (for fear of being caught in the fire) and attracting the authorities to his home and so cause the intruders to flee (for fear of being apprehended), but not acceptable to shout for assistance from the authorities. That makes no sense. [ 4 ] Mr. Wheldon asserted that there was never any danger that the fire might spread because he poured gasoline only on the concrete pad in his back yard and the fire could not spread from there because of the absence of combustible material.

He offered no convincing riposte to my observation that, if one splashes gasoline from an open jerry-can onto an open fire, there is a high probability that: (

i) the jerry-can will explode in the hand of the incendiary; (ii) upon explosion, the incendiary will instantly throw the jerry-can from his hand; (iii) the fire will then spread elsewhere, depending on where the jerry-can lands. I observe that: (

i) the fire set and fed by Mr. Wheldon was about 5 - 10 feet from a wooden shed (wrapped in a plastic tarp) on Mr. Wheldon’s property; (ii) the shed was about 16 inches from a wooden fence dividing Mr. Wheldon’s property from the neighbouring property (occupied by Mr. Banner and Ms. Schwartz); and (iii) there was another wooden shed on the other side of the fence. [ 5 ] I conclude that Mr. Wheldon was recklessly indifferent to the effects of his actions upon his neighbours. [ 6 ] Mr. Wheldon’s next-door neighbours, Mr. Banner and Ms. Schwartz, were in bed when Mr. Wheldon started the fire.

They observed an orange glow through their bedroom window. They looked out the window and observed Mr. Wheldon splashing gasoline on the fire and shouting irrationally. They called 911. Police and fire officers arrived. The blaze was extinguished and Mr. Wheldon was arrested. [ 7 ] Before the events in issue, Mr. Banner and Ms. Schwartz had planned to move to another house, owned by Mr. Banner’s father. Their plan had been to remain in their existing home (next door to Mr. Wheldon) for a few months while they completed renovations to Mr. Banner’s father’s house. However, they were frightened and disturbed by Mr.

Wheldon’s behaviour. As a result, they decided to move to their new home much earlier than they had planned, and to complete the renovations while in residence there. This they did. [ 8 ] Mr. Wheldon is charged with mischief, contrary to section 430(1) (

c) of the Criminal Code , which provides: Everyone commits mischief who wilfully … obstructs, interrupts, or interferes with the lawful use, enjoyment or operation of property. This provision has spawned an extensive debate over the question whether the word “enjoyment”, in this context, is to be given: (

i) its meaning in ordinary English usage; or (ii) the more restricted meaning described in the jurisprudence considering the covenant for “quiet enjoyment” commonly found in commercial leases. A scholarly discussion of the authorities on the point is to be found in R vs Anderson 2009 ABPC 249 ; 10 Alta LR (5 th ) 377. Fortunately, I am relieved of the obligation to contribute to the debate by the judgment in R vs T.W. [1993] B.C.J. #2031, which is binding upon me. In T.W., Cowan, J said that the word is to be given its meaning in ordinary English usage, and that “… by using the term enjoyment in the

section Parliament made it an offence to wilfully disturb a person’s pleasurable enjoyment of property, such as, in this case, by noise sufficiently excessive so as to prevent the enjoyment of sleep.” [ 9 ] Accepting, as I must, the meaning of “enjoyment” established by R vs T.W ., it necessarily follows that Mr. Wheldon wilfully interfered with Mr. Banner’s and Ms. Schwartz’ lawful enjoyment of their property, and so committed the actus reus of the offence with which he is charged. [ 10 ] The next question is whether Mr. Wheldon possessed the necessary mens rea. Mr. Wheldon had no intention of disturbing Mr.

Banner or Ms. Schwartz. He was inexcusably indifferent to their comfort and safety, but he did not set out to disturb them. He did intend to disturb his visitors. However, they were not lawfully enjoying any property. Indeed, they had entered, and were in possession of, Mr.

Wheldon’s property for criminal purposes. [ 11 ] In R vs Lee 2011 BCPC 367 ; [2011] BCJ #2471, Challenger, PCJ held that a person may not be convicted of an offence under section 430(2) of the Criminal Code unless that person, subjectively, intended to endanger the life of another person, and that reckless behaviour, in the absence of actual intention, was insufficient to establish the mens rea necessary for conviction. [ 12 ] I can discern no logical basis upon which I could apply a process of reasoning different from that adopted in Lee to a charge

under section 430(1), and so am bound to reach the same conclusion in relation to such a charge. It follows that the Crown has notestablished the mens rea necessary to support a conviction on the offence with which Mr. Wheldon is charged. [13] However, in Lee, Judge Challenger concluded that recklessness on the part of the accused was sufficient to support a convictionon the lesser included offence established by section 430(5.1). Applying Her Honour’s reasoning to the evidence before me, I reach thesame conclusion in relation to Mr. Wheldon. [14] Mr. Hertzberg makes the point that: (

i) Lee is founded upon the decision of the Newfoundland Court of Appeal in R vs S.D.D.[2002] N.J. #79; 2002 NFCA 18 , 164 CCC (3d) 1; and (ii) in S.D.D., the lives and property threatened were on the premiseswhere the actus reus was committed. He points out that, in this case, the lives and property threatened were on a neighbouring property,and that Mr. Wheldon remained throughout on his own property. In order to give effect to the distinction proposed by Mr.

Hertzberg,one would have to conclude that Parliament considered neighbouring lives and property to worthy of less legal protection than those onthe property where the actus reus was committed. No reasoned basis for such a conclusion was suggested, and none occurs to me. [15] The actus reus and mens rea of an offence under section 430(5.1) being established, I must consider whether Mr. Wheldon hasestablished a defence of necessity.

That defence, and the closely-related defences of duress and self-defence, are concerned with thefollowing question: In what circumstances is a person justified in committing a criminal act where such

an act is reasonably necessary toprotect that person’s safety? In answering that question, courts are conscious that most actions defined as criminal are so definedbecause they pose threats to the safety of others. Legal principles which excuse such actions in the interest of self-protection mustprovide due recognition of and protection for the safety of others. [16] The defence of “necessity” was explained by the Supreme Court of Canada in Perka vs The Queen (SCC),[1984] 2 SCR 232, R vs Hibbert (SCC), [1995] 2 SCR 973 and R s Ryan 2013 SCC 3 , [2013] 1 SCR 14.

Thecourt held that the availability of the defence: … rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strictobedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelminglyimpel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they areexcusable.

Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle inthe Nicomachean Ethics … "overstrains human nature and which no one could withstand". The defence of necessity is available only in limited circumstances, defined in the following terms by Dickson, J in Perka: If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognized, be strictlycontrolled and scrupulously limited to situations that correspond to its underlying rationale.

That rationale, as I have indicated, is therecognition that it is inappropriate to punish actions which are normatively "involuntary". The appropriate controls and limitations onthe defence of necessity are, therefore, addressed to ensuring that the acts for which the benefit of the excuse of necessity is sought aretruly "involuntary" in the requisite sense. In Morgentaler, supra, I was of the view that any defence of necessity was restricted to instances of non-compliance "in urgent situationsof clear and imminent peril when compliance with the law is demonstrably impossible".

In my opinion this restriction focuses directlyon the "involuntariness" of the purportedly necessitous behaviour by providing a number of tests for determining whether the wrongfulact was truly the only realistic reaction open to the actor or whether he was in fact making what in fairness could be called a choice. Ifhe was making a choice, then the wrongful act cannot have been involuntary in the relevant sense. * * * The requirement that compliance with the law be "demonstrably impossible" takes this assessment one step further.

Given that theaccused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Wasthere a legal way out? I think this is what Bracton means when he lists "necessity" as a defence, providing the wrongful act was not"avoidable". The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonablelegal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond thedictates of "necessity" and human instincts.

The importance of this requirement that there be no reasonable legal alternative cannot be overstressed. Even if the requirements for Urgency and "no legal way out" are met, there is clearly a further consideration. There must be some wayof assuring proportionality. No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greaterharm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from actingillegally.

If he cannot control himself we will not excuse him. … I would therefore add to the preceding requirements a stipulation ofproportionality expressible, as it was in Morgentaler, by the proviso that the harm inflicted must be less than the harm sought to beavoided. [17] In my judgment, the defence of necessity is not open to Mr. Wheldon for two reasons: a. He had a legal way out of his predicament. Mr. Wheldon could simply have shouted “Help! Call the police!”.

Even if he werecorrect in the assertion that he would thereafter be branded a “rat”, that consequence would be so remote as to be an insufficientjustification for exposing his neighbours to the risk of a fire. b. His response was disproportionate. In my view, an accused who advances a defence of necessity carries the onus ofdemonstrating that he chose the least serious, and least dangerous, of the available options to extract himself from a situation of danger. If Mr. Wheldon is correct in his assertion that it would have been a breach of probation for him to run to a neighbouring house or store to

call the police, that would have been a much less serious crime than setting a fire. Indeed, it is most unlikely that a breach charge would have been laid in the circumstances which he described. If a breach charge had been laid, a defence of necessity would have had a high likelihood of success. [ 18 ] The defence of necessity having failed, it follows that Mr. Wheldon is guilty of an offence under section 430(5.1) of the Criminal Code , and I convict him of that offence. May 26, 2014 ______________________________ T. Gouge, PCJ