R. v. McNevin Date:, 2013 BCPC 316

Citation: R. v. McNevin Date: 20131115 2013 BCPC 0316 File No: 77830-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Leah J. McNevin REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: Ann MacDonald Counsel for the Defendant: Victor Janiki Place of Hearing: Kelowna , B.C. Dates of Hearing: 2013: 25 September 25, October 6, November 5 Date of Judgment: November 15, 2013 Introduction

[ 1 ] Age 27 Leah McNevin is charged with theft of a water bottle from London Drugs in Kelowna on September 12, 2012. When leaving the store, it is also alleged that she assaulted three store employees with a weapon, that weapon being the vehicle she was driving when exiting the parking lot. [ 2 ] There are three issues:

a) Did the store personnel have reasonable grounds for arresting the accused?

b) Was any theft proven beyond a reasonable doubt?

c) Did the driving of the accused constituted an assault or was it a reaction in self defence? The Facts [ 3 ] On September 12, 2012 at 4:45 p.m. two very experienced loss prevention officers at London Drugs (Teresa Phelps in the camera surveillance room and Justin Martin on the store floor) independently began surveillance of the accused as a potential shop lifter. Both thought her behaviour was suspicious. [ 4 ] Using multiple remote control cameras and reverse mirrors, Ms. Phelps observed the accused carrying a large purse strapped over her shoulder.

She also had a jacket in one hand, partially covering her purse. The accused left isle one with an air freshener and a packaged flashlight in hand and went into isle three which had baskets and water bottles. She put her purse on the floor, spending over five minutes picking up and returning multiple water bottles and eventually picking up a red bottle. At some point she bent over into a crouched position directly behind an isle display with the red water bottle in hand (directly over where she had left her purse). Her jacket was over the top of the purse.

When she next stood, the red water bottle was no longer in her hand. Given the view was significantly obstructed by the display stand in the isle, Ms. Phelps did not believe she had reasonable grounds for arrest until after she heard from her co-worker that when he was on the floor, he had actually seen the accused put a water bottle into her purse. [ 5 ] Mr. Martin was observing from the floor some 20 feet away. In chief he testified that at some point he saw the accused put a purple Britta water bottle in her purse and cover the purse with her sweater.

He further testified that two minutes later, he saw her pick up a red water bottle and wrap her sweater around it and then place the purple bottle from her purse back onto the shelf. Mr. Martin then immediately went to the video camera room to speak with Ms. Phelps and at this point the two believed they had reasonable grounds to arrest the accused for theft of the water bottle if the accused left the store without paying. However, on cross-examination, Mr.

Martin conceded that he may not have been on the floor at the time he observed the accused return the purple bottle and take the red water bottle and he may have just been watching that on the security monitor. There is no doubt that at one time the accused had as many as three water bottles in her hand, one of which was red and one of which was purple. [ 6 ] The accused testified that she never stole any water bottle. She claims that eventually she took a blue water bottle to the front counter for purchase when she discovered she had left her wallet in her vehicle.

She gave the blue water bottle to the clerk and asked the clerk to hold it for her while she went back to her vehicle to get her purse. [ 7 ] The loss prevention worker testified that a few minutes after the alleged theft, a subsequent search of the area in question did not show the red bottles to be on the shelf in the area where the accused had been crouched. [ 8 ] The two loss prevention workers watched on camera as the accused exited the store, and they both ran out of their security office to the front door in pursuit of the accused.

There had been a code word broadcast so that all employees knew they were pursuing a potential shoplifter, and in response to this call, a third store employee, Todd Strew, also followed the two loss prevention workers to the parking lot. Both loss prevention workers were in plain clothes but Todd Strew was wearing blue clothing that clearly identified him as a store employee. [ 9 ] Just as the accused was unlocking the driver’s door of her vehicle, the store employees were exiting the front door of the store. From a distance, Ms. Phelps called out multiple times, “ Stop - Store Security ”. As both Ms.

Phelps and Mr. Martin got closer to the accused, she entered her vehicle. Mr. Martin arrived first at the vehicle near the driver’s window and said, “ Store Security –exit the vehicle ”. The accused looked at Mr. Martin and locked her doors and started the vehicle. Ms. Phelps put her hands on the front hood of the vehicle and said, “ stop—we are store security. You are under arrest for theft .” [ 10 ] The accused denies hearing either loss prevention officer identifying themselves as such and she denies Ms. Phelps saying anything about the accused being under arrest for theft.

In fact, the only thing the accused claims she heard was Mr. Martin banging his fists on her driver’s window and telling her to get the fuck out of the car. All three of the store employee witnesses deny any such words being spoken and I accept beyond a reasonable doubt that no such words were said. It does not ring true that she never once heard both of the loss prevention workers repeatedly telling her that they were store security and she needed to stop, yet she alone hears one of them telling her “get the fuck out of the car”. While Mr.

Martin had 13 years of loss prevention employment, he was just training that very day with Ms. Phelps at becoming a loss prevention officer with London Drugs. If he had conducted himself the way the accused claims, he wouldn’t have been making a very good impression on his supervisor. The third store employee also never heard such derogatory words spoken, yet that witness heard the loss prevention officers repeatedly identifying themselves to the accused as store security. [ 11 ] The accused stared at Ms. Phelps, before putting the vehicle in reverse and slowly backed out of the parking stall. At that moment Mr.

Martins was near the back of the vehicle making a mental note of the licence plate number of the vehicle. The back bumper of the vehicle bumped into the lower legs of Mr. Martins. It did not injure him in any way, but it forced him to back up out of the way. She claimed she never even knew Mr. Martins was behind her vehicle and she never knew she had made any contact with him. That is a believable comment because at that very moment both Ms. Phelps and Mr. Strew were directly in front of the vehicle and telling the

accused to stop and she was staring right at Ms. Phelps. No doubt her attention at that very moment was more focused on the front of her vehicle even when backing up. [ 12 ] Once the accused was done backing up, she put the vehicle in forward and slowly, yet purposefully drove forward to leave the parking lot. At the very moment she started moving forward, both Ms. Phelps and Mr. Strew were still directly in front of the vehicle trying to get her to stop. It would have been impossible for her not to have seen them. They had their hands on the front hood.

As the vehicle pulled forward, the right front of the vehicle forced Mr. Strew up onto the hood before he rolled off the side of the hood. Fortunately, Mr. Strew suffered no injuries. Ms. Phelps was in the process of stepping to the side of the vehicle as it started moving forward. The front bumper touched one of her knees, but did not hurt her given she had sufficient time to step to the side of the vehicle. [ 13 ] The accused then drove out of the parking lot and went home.

Shortly after arriving home the police, who were able to find her residence based on her being the registered owner of the vehicle with the known licence plate number, arrived and spoke with the accused. At that time claimed she had no idea why the police were there. She voluntarily showed her purse, which contained no water bottle. Analysis [ 14 ] I have no doubt but what the loss prevention officers had reasonable grounds for arresting the accused for theft. Such reasonable grounds do not require proof beyond a reasonable doubt. The grounds were based on reason.

They had every right to arrest the accused for theft of the red water bottle. [ 15 ] I have seen the video recording of the surveillance. At the critical time of that recording, the accused was crouched behind an isle display such that it was impossible to see what became of the red water bottle. Based largely on the evidence of Mr. Martin in chief, I would have convicted of the theft. However his evidence on cross-examination leaves some room for a reasonable doubt.

On the balance of probabilities, I believe the accused stold the water bottle, but such a belief does not meet the criminal standard of proof beyond a reasonable doubt. Accordingly, on the count one theft, I acquit. [ 16 ] The accused was not charged with resisting arrest , although she was clearly guilty of that offence. She was not charged with driving without due care , although she is clearly guilty of that offence.

She was not charged with dangerous driving , although that may have been proven given her deliberate driving. [ 17 ] The accused is charged with assault with weapon when her vehicle made some minor contact with the three store employees. Her evidence that she never even realized that Mr. Martin was behind her vehicle is believable. He was directly behind the vehicle and likely bending over to be able to see the licence plate. All witnesses agree that the accused was actually not looking backwards when backing up. The mens rea for the alleged assault against Mr.

Martin is not proven beyond a reasonable doubt and accordingly I acquit on count 2. [ 18 ] The circumstances are different with the two store employees that were hit when the accused was pulling forward. I do not see this at all as

an act of self defence. It was

an act of resisting arrest. The claim of the accused that she was terrified by this group of store employees is not credible. The one worker was wearing the blue London Drugs uniform with a store nametag. She conveniently claims she never saw that individual, yet the other witnesses all three testify that Mr. Strew was standing directly in front of the vehicle when the accused pulled forward, thus forcing Mr. Strew to roll over the front right corner of the hood of the vehicle. It appeared to be like a game of chicken where Ms.

Phelps backed out of the way to the side of the vehicle such that there was almost no contact with her. Mr. Strew on the other hand did not move, and the accused deliberately, yet slowly, moved forward, forcing Mr. Strew to either step out of the way or else end up rolling onto the corner of the hood. [ 19 ] I am mindful that the law does not require proof of injury for an assault with weapon conviction. At what point can a resisting arrest be deemed an assault? That is the question. When a person resists arrest by pulling away from the arresting officer, it is not an assault.

However, when a person resists arrest by going towards and through the arresting officer, it can constitute an arrest. [ 20 ] Given Ms. Phelps primarily stepped out of the way, I do not believe it proper to convict the accused of assaulting Ms. Phelps. On count four I acquit. [ 21 ] The situation involving Mr. Strew was obviously potentially much more serious. He as a fully uniformed store employee was rightfully assisting the two loss prevention officers in the arrest of the accused for the alleged theft. I personally would not recommend his method of standing in front of a car that is starting to move forward.

However, the accused had no right to flee once she was told she was under arrest for the theft. It was wrongful for her using her vehicle as a plough to resist that arrest. Such a plough became a weapon under her control. She chose to drive forward, ploughing her vehicle into Mr. Strew, which action propelled him onto the hood as he then rolled off the passenger side of that hood. I find beyond a reasonable doubt that action constituted an assault with weapon. It is fortunate Mr. Strew was not injured. I convict on count three. ___________________ Judge R. R. Smith