Her Majesty the Queen - v. -, 2014 SKPC 015

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 015 Date: January 29, 2014 Information: 24484253 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marvin Frederick Obey Appearing: Roger DeCorby For the Crown Andrew Hitchcock For the Accused DECISION ON

SECTION 752.1 APPLICATION B. TOMKINS, J [ 1 ] On July 18, 2013, at Fort Qu'Appelle, Saskatchewan, Mr. Obey was convicted of the offence of assault with a weapon contrary to

section 267 (

a) of the Criminal Code . Upon conviction, the Crown indicated its intention to commence proceedings to have Mr. Obey declared a long-term offender or a dangerous offender. [ 2 ] Those proceedings were commenced by way of a Crown application pursuant to

section 752.1 for an order remanding Mr. Obey for assessment by experts to be used in an application to declare Mr. Obey a long-term or dangerous offender.

[ 3 ] The defence resisted the Crown's application on the basis that Mr. Obey's offence is not a serious personal injury offence as that term is defined for purposes of

section 752 and that he is, therefore, not "eligible" to be declared either a long-term or dangerous offender. If so, the Court cannot and should not order remand for assessment. [ 4 ] This is my decision on that application. I. THE PREDICATE OFFENCE [ 5 ] The facts as I found them based on evidence I accept are these. [ 6 ] Mr. Obey lived in a common law relationship with Tanya Cappo. They resided in Fort Qu'Appelle with Ms. Cappo's brother, Arthur Campbell and Ms. Cappo's daughter, Celeste. On March 15, 2013, Mr. Obey and Ms. Campbell were "walking around and visiting"; during this time, Mr.

Obey consumed alcohol and became intoxicated. They arrived home in the evening and went to their room in the basement of the house. [ 7 ] Celeste, who was in her bedroom, heard them arguing. She was upset by demeaning words she heard Mr. Obey say to her mother, such as that her mother was useless. She told Mr. Obey to stop talking to her mother in that way and to get out. As or shortly after the time that Celeste intervened, she and her mother went upstairs and continued talking at the landing. [ 8 ] Mr. Obey called to them, challenging their conversation. Celeste opened the door and saw Mr.

Obey on his way upstairs. She pushed him downward, he lost his balance but did not fall. [ 9 ] Mr. Obey came upstairs and Celeste continued chastising Mr. Obey and at some point, he raised his fist to her. [ 10 ] In the meantime, Mr. Campbell was in his room on the main floor getting ready for bed. He heard yelling; specifically, he heard Celeste yelling for someone to "Get out". He heard a commotion and then a heavy bang like someone falling down stairs. Hearing this, he jumped up and went to see what was going on. [ 11 ] He saw his sister, Tanya, Mr. Obey and Celeste.

Tanya was yelling, trying to calm the situation and Celeste was still yelling. Mr. Campbell said all three were arguing back and forth. [ 12 ] Mr. Campbell saw Mr. Obey raise his fist to Celeste as if to "nudge her or to swing a punch" and at this point, Mr. Campbell went to the group and challenged Mr. Obey. He said "What are you doing?”, "That's my niece" and words to such effect. [ 13 ] Mr. Obey then took a backhand swing at Mr. Campbell but "stopped himself". Some or all of Celeste, Tanya and Mr. Campbell backed away as he swung. [ 14 ] Mr.

Obey then stood with his hands at his sides and it was at this point that Mr. Campbell saw that Mr. Obey had a large butcher knife in the hand that he had swung at him. Mr. Campbell did not see the knife in Mr. Obey's hand or at all until immediately after he swung his left arm. [ 15 ] Celeste, on the other hand, said that she first saw the knife "as soon as he swung it". It is not clear whether, by these words, she meant that she first saw the knife while he swung it or after it had been swung. [ 16 ] I was satisfied beyond a reasonable doubt, notwithstanding this uncertainty, that Mr.

Obey had the knife in his hand when he

swung at Mr. Campbell. [ 17 ] Mr. Obey's swing did not make contact with Mr. Campbell, though Mr. Campbell was within arms' length of him. He said that the swing came "pretty close" and "fairly close" to him. [ 18 ] After this, Mr. Campbell went to look for a golf club - presumably to protect himself. This did not take long but by the time he returned, Mr. Obey had left the house. [ 19 ] The police were called and Mr.

Obey was arrested about two blocks away within a short time. [ 20 ] The evidence from the witnesses I found credible is consistent, for practical purposes, on matters which I have recounted above. [ 21 ] There were areas where the evidence was inconsistent and on which I was unable to reach conclusions. Most significantly, Mr. Campbell testified that after the incident, Mr. Obey went back to the basement briefly and then came upstairs and left the house. Celeste testified that he left the house after the incident and without first returning to the basement. [ 22 ] This became significant because Mr.

Campbell showed the police a knife set in the basement washroom and identified one knife from that set as the knife that Mr. Obey had used. If he had not returned to the basement, it would, of course, be impossible that he replaced the knife before he left the house. It would be impossible, therefore, that the knife seized from the basement and exhibited before me was the knife that was used in the incident. [ 23 ] I concluded that the issue before me was whether Mr. Obey had a knife in his hand when he swung at Mr. Campbell.

I concluded that he did and that it was not necessary that I determine whether the knife exhibited was the knife he held or not. II. THE APPLICATION [ 24 ] This application is made pursuant to

section 752.1, the relevant portions of which read as follows: 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence . . . might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1 , the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1 . [ 25 ] The section, in effect, sets out two criteria that must be satisfied before an order remanding the offender for assessment can be made. The first is whether the offence for which the offender has been convicted is serious personal injury offence and the second is whether there are reasonable grounds to believe that the offender might be found to be a dangerous offender or a long term offender. A. Serious Personal Injury Offence [ 26 ] "Serious personal injury offence" is defined in

section 752 as: (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more[.] [ 27 ] Mr. Obey's offence is an indictable offence for which he might be sentenced to ten years. [ 28 ] Thus, the matters at issue are whether the offence, on its facts, involved the use or attempted use of violence against another person or whether his conduct endangered or was likely to endanger the life or safety of another. [1] 1. Use or Attempted Use of Violence [ 29 ] In this case, it is not disputed that Mr. Obey did not actually strike Mr. Campbell or anyone else with the knife.

The defence argued that he did not, therefore, use or attempt violence in the course of his offence. If not, it is not a serious personal injury offence for purposes of a

section 752.1 application. [ 30 ] In R. v. Roy [2] , Mr. Roy was in possession of a baseball bat while being pursued by police officers. On what appear to be two occasions, he stopped and confronted the officers by raising the bat in a threatening manner and may have swung it, though he was far enough from the officers that contact could not occur. On these facts, the trial judge held that Mr. Roy's actions in threatening with the bat constituted an assault but that he did not use or attempt to use force against the officers. She declined to order the assessment. [ 31 ] The Court of Appeal upheld the trial decision. Madam Justice Jackson wrote: [31] Thus, the issue was whether Mr. Roy (

i) used violence against Cst. Kinzel; or (ii) attempted to use violence against Cst. Kinzel. Again, the sentencing judge's decision that Mr. Roy had not used "violence" against her cannot be seriously questioned. Courts are naturally reluctant to provide a definitive definition of a word like violence. The determination of whether a person has used violence will usually be intertwined with a consideration of the evidence.

I note however that s. 752 itself draws a distinction between "violence" and "attempted violence." Given this it would not do a disservice to the word "violence" to look at its traditional definition. Black's Law Dictionary defines violence to be "the use of physical force, usually accompanied by fury, vehemence, or outrage; especially, physical force unlawfully exercised with the intent to harm." Mr. Roy brandished a bat, he menaced Cst. Kinzel, but this does not amount to proof that he used violence in these terms.

He assaulted her, in the technical sense of the word, but he did not use force against her, and this, too, is what the sentencing judge found. [ 32 ] On this basis, the Court of Appeal held that the use of the words "use or attempted use of violence" in the definition of serious personal injury offence do not contemplate a threat of violence. [ 33 ] This conclusion was recently upheld by the Court of Appeal in R. v.

Simpson . [3] While the appeal was dismissed for procedural reasons and the Court did not consider the merits of the trial decision, the decision confirmed that Roy : defined violence for the purposes of s. 752(a)(

i) to mean the use of physical force. Thus, a threat to apply physical force would not fit within the definition of an SIPO as it relates to s. 752(a)(

i) under the

interpretation given to that term in Roy . The Court also confirmed that " Roy is the controlling authority." [ 34 ] The Crown submitted that applying the ratio in Roy , Mr. Obey's offence meets the definition in that Mr. Obey did attempt to strike Mr. Campbell. This is so irrespective of the fact that Mr. Obey stopped himself; at least during the time before he stopped, he attempted the application of force. [ 35 ] Mr. Obey drew the Court's attention to other cases that interpreted, applied and drew further conclusions from Roy . In particular, Judge Dyck, in R. v. Ben , [4] considered circumstances where Mr.

Ben ran from a police officer who was attempting to serve a warrant. The officer called to Mr. Ben to stop and he did, about 25 feet from the officer. Mr. Ben moved toward the officer with his fists raised in a sort of combative stance. The officer cautioned him to stop and when he did not, the officer discharged his taser. This stopped Mr. Ben but only briefly. Instead, Mr. Ben picked up a tree branch and swung it at the officer. The officer backed away and drew his sidearm. The branch was long enough that it would have come very close to the officer.

[ 36 ] On these facts, Judge Dyck concluded that a serious personal injury offence had been committed. She distinguished Roy and an Alberta Provincial Court decision, R. v. Otter , [5] on the basis that while Mr. Roy and Mr. Otter did not intend to assault and were too far distant to do so, Mr. Ben took possession of the tree branch with the intention of using it against the officer and he in fact swung it at the officer so closely that the officer had to back away. She found that Mr. Ben intended to strike the officer with the weapon. [ 37 ] Counsel for Mr.

Obey noted that in Roy , there was no intention to strike and in Ben there was; while there was no contact in either case, the assessment of the offender's intent explains the appearance of inconsistency between the two decisions. Thus, he argued, intent is a factor in determining whether or not a serious personal injury offence was committed. [ 38 ] He says the facts show that Mr. Obey did not have an intent to strike Mr. Campbell or anyone else with the knife. This is evident in Mr. Campbell's evidence that he thought Mr.

Obey was going to strike him but stopped himself. [ 39 ] As to that matter, there is no evidence as to what Mr. Campbell meant when he said he thought Mr. Obey was going to hit him but stopped himself. There is no evidence as to how Mr. Obey "stopped himself". Did he abort the swing? If so, at what point in the swing did this occur? Did Mr. Obey pull his arm back at some point in the course of the swing so as to increase the distance between himself and Mr. Campbell? [ 40 ] Mr. Obey is entitled to the benefit of the doubt on this issue. Through counsel, Mr.

Obey advanced the position that his intent changed at some point during the swing and that he literally stopped swinging at Mr. Campbell. I agree that this is the most favourable view one might take but it is inconsistent with the evidence of Mr. Campbell and Celeste who both testified to and demonstrated a completed swing. I therefore conclude that Mr. Obey completed the swing but at some point during it, decided against striking Mr. Campbell or anyone else and conducted himself in some manner so as to prevent contact. [ 41 ] Counsel drew my attention to the fact that, after the aborted swing, Mr.

Obey stood with his hands at his side while Mr. Campbell went in search of a weapon. He said this shows that any intent to strike had been abandoned. Mr. Obey took no action to continue or recommence the assault. I am prepared to accept this view of the evidence. [ 42 ] However, this argument presumes that there was at some time and for some period of time during the swing, an intention to strike Mr. Campbell; otherwise, there would be no intention to abandon. Thus, I must consider that Mr. Obey, by his actions, for some period of time, swung a knife at Mr.

Campbell with the intention of striking him. [ 43 ] In my view, this goes beyond menacing or threatening and shows that Mr. Obey committed

an act where violence was attempted. It is therefore an offence which meets the criteria in section 752(1)(a). 2. Conduct Endangering or Likely to Endanger the Life or Safety of Another Person [ 44 ] In the event that my conclusion above is incorrect, I turn now to the second of the bases upon which an offence will be found to be a serious personal injury offence - conduct that endangers or is likely to endanger the life or safety of another person. [ 45 ] Mr.

Obeys’ counsel argued that the difference in the wording of the two parts of the definition is significant; while the portion dealing with actual or attempted violence speaks to "the offence", the second part speaks to "conduct". He argued that this is a broader term and I agree. I believe that this portion expands the circumstances I must consider to include those which are corollary to the offence. [ 46 ] In this case, these will include the nature of the weapon used and Mr. Obeys’ state of intoxication.

[ 47 ] In this respect, counsel considered Roy and Ben , supra , as well as R. v. Wright . [6] [ 48 ] Mr. Wright was a resident at a half-way house under supervision pursuant to a long-term offender order. On the day in question, he found a loaded, sawed-off rifle and took it into the half-way house. Another inmate called the police. [ 49 ] When police arrived, they found Mr. Wright in his room, sitting on the bed holding the rifle. After they observed the firearm, the police left the room but a Commissionaire stayed behind. The police encouraged Mr.

Wright to allow the Commissionaire to leave the room and offered him the comforts of cigarettes, coffee and perhaps cocaine. Eventually, after about 25 minutes, the Commissionaire left the room. [ 50 ] Mr. Wright continued to sit in the room with the rifle but would not surrender the rifle or come out. After about an hour and a half, during which Mr. Wright indicated that he might wish to die at the hands of the police, Mr. Wright put down the weapon and came out of the room. [ 51 ] On these facts, Mr.

Wright pleaded guilty to possession of a prohibited firearm without authorization or licence. [ 52 ] Justice Gunn found that Mr. Wright's actions endangered or were likely to endanger the life or safety of another person and that the offence was, therefore, a serious personal injury offence. [ 53 ] On the other hand, in R. v. Roy , the Court of Appeal confirmed the trial judge's conclusion that Mr. Roy's conduct did not endanger the life or safety of another person.

On this issue, Madam Justice Jackson wrote: [30] I do not think there can be any question that the brandishing of the bat, if we call it that, cannot be "conduct endangering or likely to endanger the life or safety of another person." While brandishing a weapon like a gun may constitute endangerment, the judge's conclusion that brandishing a bat, in the face of unknown intent and at a distance of eight feet could not, in and of itself, endanger or likely endanger the life or safety of someone, is a reasonable conclusion. [ 54 ] Counsel for Mr.

Obey argued that the Roy decision supports the proposition that where no contact is made and where there was no intention to make contact, the conduct will not endanger the life or safety of another and it is not likely to do so. In this respect, I note that Justice Jackson, in the quoted passage, made mention of Mr. Roy's "unknown intent". I take this to mean that intent is a factor for my consideration regarding the whole of Mr. Obey's conduct and whether it constituted or was likely to constitute a danger to others.

I do not believe that intent, from the quotation above, however, is decisive of the issue. [ 55 ] The matter of intent does not explain the differing conclusions in Roy , Ben , Simpson and Wright which were all cases where no contact was made and no one was injured. Ben was distinguished by Judge Dyck on the basis that Mr. Ben was in a position to inflict injury, attempted to do so and intended to do so whereas Roy and Simpson were found not to have intended, attempted or actually inflicted injury and Mr.

Roy, at least, was not in a position to do so. [ 56 ] In Wright , the difference lies, I believe, in the nature of the weapon. While Mr. Roy could not have inflicted injury with a baseball bat at a distance of 8 feet from the officer, for example, a firearm constitutes an entirely different risk. A firearm may be discharged quickly and may inflict damage from a significant distance.

Factoring in the volatility of the situation involving an apparently desperate man (who invited, in effect, the police to shoot him), who had ingested some amount of cocaine, who refused to allow an innocent party (the Commissionaire) to leave his room and who refused to comply with commands from the police SWAT Team, Madam Justice Gunn was easily able to conclude that the situation was one where people were likely to be endangered. [ 57 ] This is consistent with Madam Justice Jackson’s words, quoted in paragraph [53] above that “While brandishing a weapon like a gun may constitute endangerment” as she then goes on to distinguish the situation in Roy . [ 58 ] In this case, the weapon used had a limited range but was used within that range.

It is implicit in Mr. Campbell's statement - "I thought he was going to hit me but then he stopped himself" - that had Mr. Obey not stopped himself, Mr. Campbell was at risk of being hit. Similarly, Celeste indicated that "we" stepped back as Mr. Obey swung the hand with the knife.

[ 59 ] I am satisfied that Mr. Obey's conduct endangered or was likely to endanger other persons. He was very agitated and angry and, by the evidence of Celeste, Mr. Campbell and the police officers who arrested him, very intoxicated. In addition, he swung from an awkward, backhand angle. While it is fortunate that no one was injured, there was a real risk that Mr. Obey would not be able to control his actions with nicety and even once his intention was abandoned, it was as likely as not that he might have made contact with Mr. Campbell. [ 60 ] In any event, Mr. Obey did attempt to strike Mr.

Campbell with the knife for some time before he abandoned that intention and this conduct clearly endangered Mr. Campbell. [ 61 ] Therefore, Mr. Obey's conduct constitutes a serious personal injury offence pursuant to this aspect of

section 752(a)(ii). 3. Inflicting or Likely to Inflict Serious Psychological Damage [ 62 ] The Crown has not sought to establish that Mr. Obey's conduct caused or was likely to cause severe psychological damage to any person. On the evidence before me, I would not have found that it did. B. Might Mr. Obey be found to be a Long-Term or Dangerous Offender? [ 63 ] In order to be found to be a dangerous offender, a Court must be satisfied that the offender has been convicted of a serious personal injury offence and: the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint[.] [ 64 ] In order to be found to be a long-term offender, a Court must be satisfied that: (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 65 ] The test as to whether an offender might be found to be a long-term or dangerous offender was set out by our Court of Appeal in R. v. Fulton [7] where Mr. Justice Cameron wrote: 21 . . .

section 752.1 does not call upon the court to consider whether the offender will probably be found, or is likely to be found, a dangerous or long-term offender. It does no more than call upon the court to consider whether there exist reasonable grounds to believe the offender might be found to be a dangerous or long-term offender; and it does so for no other purpose than that of deciding whether to order an assessment. The word "might" speaks to possibilities: Is the prospect of the offender being found to be a dangerous or long- term offender within the realm of possibility or beyond it? (Italics in the original.)

[ 66 ] Justice Popescul (as he then was) considered the Court of Appeal's decision in Fulton in the course of his decision in R. v. Peters . [8] He wrote: It is evident from the precise wording of s. 752.1(1), and the jurisprudence that has interpreted this section, that the threshold is low. The Court must consider the totality of the record of evidence and the other information presented in support of the application in order to decide whether there are reasonable grounds to believe that the offender might, not will, be found a dangerous offender or a long-term offender.

This would appear to be a burden far less than the criminal burden of proof and even less than the civil burden of proof. In order to require any more at this stage of the proceedings would run the risk that the Court is being asked to make findings on incomplete and imprecise information and without the benefit of the assessment proposed under s. 752.1. Consequently, my task is to consider the prospect of whether the offender being found to be a dangerous or long-term offender is "within the realm of possibility or beyond it." [ 67 ] Mr.

Obey comes before the court with approximately 46 convictions on his record, between 1994 and 2013; there is no significant gap in his record. Seven of these were incurred while Mr. Obey was a youth and the balance as an adult. [ 68 ] The record includes 14 convictions for violence between 1998 and the predicate offence which occurred in March 2013. These include common assaults, assault causing bodily harm, assault with a weapon and sexual assault. [ 69 ] Details as to the circumstances of most of Mr. Obey's convictions for violence show that the offences frequently took place when Mr.

Obey had overindulged in alcohol, commencing with an offence on November 27, 1998 and continuing until the predicate offence. Almost all of his violent offences involve members of his family and women with whom he was in a relationship as his victims. Some have resulted in serious injury. [ 70 ] In addition, Mr. Obey's record includes five convictions for threatening and a number of convictions for various offences of non-compliance.

The balance are driving, drug and property related matters. [ 71 ] Given his record and its nature and given his continued offending to his current 34 years of age, it is clearly within the realm of possibility that Mr. Obey might be found to be a dangerous or long-term offender. The order for assessment will be granted. [ 72 ] In so concluding, I am mindful that there may be objections raised to Mr. Obey's eligibility to be found to be a long-term offender and the impact, if any, such ineligibility might have on a Court's ability to thereafter find him to be a dangerous offender.

In my view, however, these questions are better left to be argued in depth and determined in the course of the dangerous offender hearing, should same proceed after the parties have had an opportunity to consider the assessment report. [ 73 ] Similarly, counsel for Mr. Obey raised issues as to the nature and extent of the Court's gate-keeping role in applications of this nature. I believe that is a matter better argued and considered in the context of a dangerous offender hearing, should same proceed. III CONCLUSION [ 74 ] For the reasons set out above, I conclude that the offence for which Mr.

Obey was convicted on July 18, 2013 is a serious personal injury offence and that there are reasonable grounds to believe that Mr. Obey might be found to be a dangerous or long-term offender. [ 75 ] I make the following orders: 1. An order for an assessment of Marvin Frederick Obey, as contemplated by

section 752.1 of the Criminal Code , for use as evidence in an application under

section 753 or 753.1; and

2. An order requiring the assessor to prepare a written report regarding the assessment and the conclusions reached, including a list of all materials considered in the course of the assessment. [ 76 ] The Crown has proposed that the assessment be undertaken and completed by Dr. Roger Holden of Red Deer, Alberta. Mr. Obey, through counsel, has neither accepted nor objected to Dr. Holden being designated as the assessor. [ 77 ] I am prepared to hear counsel further on this point. Failing objection, the assessment will be undertaken by Dr. Holden and the Order will so read. [ 78 ] Pursuant to

section 752.1, Mr. Obey will be remanded pending preparation of the assessment report. _________________________________ B. Tomkins, J