R. v. Nelson, 2018 BCPC 173

Citation: R. v. Nelson 2018 BCPC 173 Date: 20180710 File No: 82472-C-4 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GABRIEL STEPHEN NELSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: F. Dubenski Counsel for the Defendant: D.J. McKay Place of Hearing: Nanaimo , B.C. Dates of Hearing: March 22, June 6, 25, 2018 Date of Judgment: July 10, 2018 The Facts

[1] Mr. Lanty and Mr. Nelson live, each with his extended family, next door to each other in Whiskey Creek, British Columbia. The families are not on good terms. [2] On Christmas Day, 2016, Mr. Lanty and his extended family walked from their house to the head of their driveway, intendingto drive to a Christmas gathering at the home of another family member. The path is narrow, so they walked single-file, with Ms. Lantyin front, Mr. Lanty behind her, their son, C. behind him and Ms. Lanty’s parents bringing up the rear. As they approached Ms. Lanty’svehicle, they observed Mr.

Nelson standing in the driveway, and his vehicle parked behind Ms. Lanty’s vehicle, preventing anyone frombacking it out of the driveway. Mr. Nelson made a number of remarks in a sarcastic tone of voice, disparaging the Lanty family’sChristmas spirit. He confronted Ms. Lanty. Mr. Lanty stepped in front of his wife, and said to Mr. Nelson in a very assertive tone ofvoice “You need to leave now”. Mr. Nelson struck Mr. Lanty on the cheek with a snow globe which Mr. Nelson had in his hand. Astruggle ensued and both men fell to the ground. Punches were exchanged. Mr.

Nelson is significantly larger and stronger than Mr.Lanty, and quickly gained the upper hand. Mr. Lanty called on C. to assist him. Together, they were able to subdue Mr. Nelson andhold him down until the police arrived. In the course of the struggle, Mr. Lanty suffered injuries which he described in the followingterms: … my glasses were smashed up. I had a -- a mark on my face from that, but the gouge on my face from him trying to get at my eyeball,and my knees were completely raw and my elbows were raw, and my … hands were all cut up from the … pavement, I guess.

My rightshoulder is still bothering me and I had my right thumb was really bothering me for about a year, and it’s not too bad now, but theshoulder is still coming around. That description was not challenged on cross-examination. [3] At the time of the incident, Mr. Nelson was bound by the terms of a probation order which included, among other terms, anobligation to “… keep the peace and be of good behaviour ….” The Charges [4] Mr. Nelson is charged with assault and breach of probation. Assault [5] In response to the charge of assault, Mr. Nelson argues that he and Mr.

Lanty were engaged in a consensual fight, and thatparticipation in such a fight does not justify a conviction for assault. I reject that submission for two reasons: (

a) I am mindful that the Crown carries the onus of proving beyond a reasonable doubt that Mr. Lanty did not consent to a fight with Mr.Nelson: R v. Muise [1994] MJ No. 530. “Consent”, in this context, means a voluntary agreement to engage in a fight: R. v. Denny 2017NSSC 14; [2017] NSJ No. 14 @ paragraph 4. An agreement is comprised of an offer and an acceptance, which may be communicatedby words or conduct. Mr. Lanty was not asked whether he consented to a fight, either during his evidence in chief or during his cross-examination. However, his description of the start of the fight is of some importance.

During his evidence in chief, Mr. Lanty said: … my wife was up top and I’m worried about her, he’s going right over top of her to … come around the vehicle to get to me, so I’mmoving up very quickly to get to him to defuse that situation, and … I’m saying to him right up in front of the vehicle, at the front part ofour vehicle “You must get in that vehicle and leave right now. Go. Just get out of here”. And he was not leaving. He did not want togo.

He wanted to come at me … and he continued to push his way past to get to me, and we met in front of the vehicle. … he took thefirst swing and … it was a snow globe and smashed my glasses off my face …. … he coldcocked me with this snow globe …. That evidence was not challenged in cross-examination, nor was it contradicted by any other witness. In the rustic vernacular ofVancouver Island, to “coldcock” someone is to strike them, usually in the head, without prior warning or challenge. The technique isalso referred to as a “sucker punch”.

It is a form of surprise attack intended to disable the victim before he has an opportunity to defendhimself. Before the blow with the snow globe, Mr. Lanty had no opportunity to grant or withhold his consent to the fight - there was nochallenge or invitation, by words or conduct, to which he could respond. After the blow with the snow globe, Mr. Lanty had noopportunity to grant or withhold consent. He was urgently engaged defending himself from Mr. Nelson’s onslaught. I am satisfiedbeyond a reasonable doubt that this was not a consensual fight. (

b) As a matter of law, no one can consent to an assault in which an attempt is made to inflict more-than-trivial injuries and such injuriesare inflicted. I stated the governing principle in R v. Gagne [2016] BCJ No. 2710; 2016 BCPC 415 @ paragraph 20, as follows:

Section 265 of the Criminal Code provides that "... a person commits assault when, without the consent of another person, he appliesforce intentionally to that other person ...". Where the issue arises, the Crown carries the onus of proving that the victim of the assaultdid not consent: R. v. Muise, [1994] MJ No. 530. However, the issue does not arise where the assault caused "... serious hurt or non-trivial bodily harm ..." to the victim. For reasons of public policy, no one can consent to an assault which causes harm of that kind: R. v.Jobidon, (SCC), [1991] 2 SCR 714 @ paragraphs 110 -125.

Consent may vitiate the offence where the assault causes"... only minor hurt or trivial bodily harm ...": Jobidon @ paragraph 129. Mr. McKay submits that Gagne was wrongly decided. The only injuries suffered by Ms. Gagne’s victim were facial bruises whichcontinued to be visible a week after the altercation. Mr. McKay submits that those injuries were comparable to those suffered by Mr.Lanty, and that neither set of injuries was sufficiently serious to vitiate consent to a fight. [6] The severity of injury sufficient to invoke the Jobidon principle has been variously described in the jurisprudence.

The mostcommonly used phrases are “non-trivial bodily harm”, “serious bodily harm” and “grievous bodily harm”. The authorities werereviewed in detail by Justice Tysoe in R v. Oldford 2002 BCSC 800; [2002] BCJ No. 1986. At paragraph 14, Justice Tysoe decided thatthe correct phrase is “non-trivial” bodily harm. Oldford was followed and expanded upon by Justice Powers in R. v. C.L. 2011 BCSC

857; [2011] BCJ No. 1214. [7] The Oxford English Dictionary provides several alternate

definitions of “trivial”. The applicable definition from that source is“… of small account, little esteemed, paltry, poor, trifling, inconsiderable, unimportant, slight …”. I would not use any of those words todescribe the injuries suffered by Ms. Gagne’s victim or by Mr. Lanty. It follows that their injuries were “non-trivial”. [8] Mr. Nelson struck Mr. Lanty in the face with a snow globe. Such a blow was very likely to cause a non-trivial injury. I inferthat Mr. Nelson intended the natural and probable result of his action. In the result, Mr. Lanty did suffer a non-trivial injury.

Even if thefight was consensual, Mr. Nelson is guilty of an assault because he intended to cause, and did cause, non-trivial injuries to Mr. Lanty. [9] Accordingly, I convict Mr. Nelson of assault. Breach of Probation [10] The facts alleged in support of the charge of breach of probation are identical to those alleged in support of the charge ofassault. However, a “… conviction for breach of a recognizance or probation order based on the commission of another substantiveoffence is not subject to the doctrine of res judicata (the "Kienapple" principle) …: R v. D.R. (NL CA), [1999] N.J.No. 228 @ paragraph 48.

As a result, Mr. Nelson may be convicted of both charges. [11]

Section 732.1(2)(

a) of the Criminal Code requires that every probation order include an obligation to “keep the peace and be ofgood behaviour”. It might be argued that

section 732.1(2)(

a) infringes the following constitutional principle, articulated by JusticeLamer in Reference re Sections 193 and 195.1 of the Criminal Code (SCC), [1990] 1 SCR 1123 @ paragraph 34: … there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationaleunderlying this principle is clear.

It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee theconsequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted withlaw enforcement is limited by clear and explicit legislative standards …. This is especially important in the criminal law, where citizensare potentially liable to a deprivation of liberty if their conduct is in conflict with the law. I observe that:

a) In R. v. D.R., the Newfoundland Court of Appeal needed 52 paragraphs of detailed scholarly analysis to define those kinds ofbehaviours which do, or do not, constitute a failure to keep the peace and be of good behaviour.

b) If that were not enough to confuse the lay reader, it has been said that the phrase has a different meaning in criminal law than itdoes in immigration law: R. v. Smith [2014] NSJ No. 399; 2014 NSPC 44 @ paragraph 6. Having spent some time reading the jurisprudence, I think it fair to describe it as impenetrable to the ordinary literate citizen. That beingso, I am left in some doubt as to whether

section 732.1(2)(

a) conforms to the principle stated by Justice Lamer. However, I do not thinkthat the issue arises in this case, because I think that any ordinary citizen would recognize a fist fight, consensual or not, as both a breachof the peace and bad behaviour. [12] Accordingly, I convict Mr. Nelson of the offence of breach of probation. July 10, 2018 ____________________________ T. Gouge, PCJ