Her Majesty the Queen - v. -, 2017 SKPC 51

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 051 Date: June 22, 2017 Information: 38284455 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chance Kenneth Dylan Halyk Appearing: Mr. Rob Parker For the Crown Ms. Suzanne Jeanson For the Accused JUDGMENT KOVATCH , J BACKGROUND [ 1 ] The accused, Chance Halyk, is charged with dangerous driving causing bodily harm to Aaron Halvorsen and with leaving the scene of an accident to escape civil or criminal liability.

The charges arose out of an incident on February 23, 2016 in Moose Jaw. There is little question but that the accused’s driving was a marked departure from the standard expected of a prudent driver; his driving was dangerous. The primary defence advanced was that of necessity. The defence argued it was necessary for the accused to drive in the manner that he did, in order to escape a dangerous situation and for his personal safety.

THE EVIDENCE Aaron Halvorsen [ 2 ] Mr. Halvorsen is 52 years of age, and lives in Moose Jaw. He has three children. Two of those children are Nathan Bradley and Stephanie Bradley. Stephanie was, for some time, in a relationship with Mr. Halyk and has a child by him. [ 3 ] Mr. Halvorsen testified that on February 23, 2016, he was hit and thrown from a vehicle operated by Chance Halyk.

He was rendered unconscious and taken to hospital and spent a few days in hospital recovering from his injuries. [ 4 ] He testified that earlier in the day, he received a text message from his daughter, Stephanie, advising that Chance Halyk took off with their infant daughter, Shylane. He advised that Stephanie was in a panic, and requested his assistance. [ 5 ] In the meantime, there was a further series of text messages between Stephanie and Mr. Halyk. By those text messages Stephanie agreed to meet with Chance Halyk at Getty Foods in Moose Jaw. Mr.

Halvorsen was advised of this. [ 6 ] Stephanie was picked up by her brother Nathan and driven to the parking lot at Getty Foods. Mr. Halvorsen drove there in his own vehicle. It was in the early evening hours, approximately 7:00 p.m. [ 7 ] Chance Halyk pulled into the parking lot and stopped his vehicle. Nathan arrived with Stephanie, drove his truck behind the accused’s vehicle and parked crossways. Mr. Halvorsen drove his vehicle in front of the accused’s vehicle, and parked roughly crossways. As such, Mr. Halyk’s vehicle was boxed between Mr. Halvorsen’s vehicle and Nathan’s truck. [ 8 ] Mr.

Halvorsen testified that they were intent on blocking Mr. Halyk in. They wanted to talk to him, and to stop him from taking the child. Mr. Halvorsen said he got out of his vehicle and approached the accused’s vehicle on foot. Mr. Halyk’s vehicle, however, was not completely blocked in. Mr. Halyk turned and attempted to exit the space that had been left when he was boxed. Mr. Halvorsen was then standing about four feet in front of the accused’s vehicle. Mr. Halvorsen said that as the accused’s vehicle approached him, it accelerated slightly. At this time Mr.

Halvorsen jumped up to avoid being struck and run over by the accused’s vehicle. He ended up on the hood of the accused’s vehicle. [ 9 ] At this time, Nathan Bradley opened the driver’s door of the accused’s moving vehicle. The accused accelerated quickly. Mr. Halvorsen was thrown from that vehicle. The next thing Mr. Halvorsen recalled was waking up in the middle of the road and a lot of people standing around him. He was taken to hospital and was in hospital for some four or five days. I gather he suffered a concussion or head injury. [ 10 ] Under cross-examination Mr.

Halvorsen agreed that the accused and Stephanie Bradley had been in a common law relationship and the child, Shylane, was their child. He also agreed that there had been no court determination regarding the custodial rights to Shylane. He also agreed that he did not like the accused, Chance Halyk. He agreed that on one occasion he and Chance Halyk had a physical fight. He also agreed that he was upset about the situation, particularly the possibility of Chance taking off with the child. However, he had not called the police about the situation. Mr.

Halvorsen said he simply wanted to get Shylane from Chance. [ 11 ] Mr. Halvorsen agreed he was advised that Shylane and Chance were to meet at Getty Foods. He also agreed that he and Nathan went there intent on confronting Chance and wanted to prevent him from leaving with Shylane. He denied that they went there to assault or to intimidate the accused. He also denied that he jumped on the hood and again stated that he jumped to avoid being hit and run over by the vehicle. He also denied that he was on the roof of the car at any time. He said he did not see Nathan punch Chance Halyk.

[ 12 ] Finally, Mr. Halvorsen agreed that in 1985, he was convicted of dangerous driving. Nathan Bradley [ 13 ] Nathan testified he is 21 years of age. On February 23, he got a telephone call from his father asking for his assistance. He was advised that Chance had taken Shylane, and was refusing to return her. [ 14 ] Nathan picked up his sister, Stephanie Bradley at their grandmother’s house. Stephanie was communicating with Chance Halyk by text.

Stephanie wanted to meet Chance to get Shylane back; they agreed to meet Chance at Getty Foods. [ 15 ] At Getty Foods, Chance stopped his vehicle and Nathan drove behind the accused’s vehicle and parked behind him. His dad then drove in front of Chance’s vehicle and parked crossways. [ 16 ] Nathan testified he got out of his vehicle and approached the accused’s vehicle. When he was a few feet from Chance’s vehicle, it started to move. He looked and saw his father in front of Chance’s vehicle, about five feet from it.

He saw his dad end up on the hood of the accused’s vehicle but was not exactly sure how that happened. At that point, he got up to the side of the accused’s moving vehicle and opened the door. He said when he did, the accused “full out accelerated”. Nathan said his dad lunged toward him and pushed him away. Nathan was knocked from the side of the vehicle, and slid along the pavement. His father was thrown from the vehicle.

Nathan said he had relatively minor road rash type injuries, and no lasting physical injuries. [ 17 ] Under cross-examination, Nathan said his dad or Stephanie asked him to help, and Stephanie told him that Chance would not return Shylane. He agreed that the accused did not know that he or his dad would be at the Getty Foods meeting. He agreed that his dad told him to box in Chance because they wanted to talk to him. They did not want Chance to take off or run away. Nathan said he did not speak to Chance before opening the door, and that Chance’s vehicle was moving when he opened the door.

Nathan denied taking a swing at or attempting to punch the accused and denied that he tried to pull the accused out of the vehicle. He said Chance’s car accelerated very quickly and he held on. He said his dad was on the hood and was able to push Nathan out of the way. Stephanie Bradley [ 18 ] Stephanie testified that she is Shylane’s mother and Chance Halyk is the father. Shylane was born in June 2015. She and Chance ended their common law relationship in November of 2015. [ 19 ] On February 23, 2016, she had just gotten out of rehabilitation.

Chance picked up Shylane, on the evening of the 22nd or earlier in the day on February 23; she could not recall which. Chance was to bring Shylane back after supper. He did bring Shylane back but while they were still in the car, Stephanie got in. They argued. Chance told her to get out and to take Shylane. Stephanie got out but before she could open the back door or unbuckle the baby, Chance took off. She said she “was freaked out”. She then called her dad to tell him what had happened and to request assistance.

Her brother came and picked her up. [ 20 ] During that time, she was texting Chance, and they agreed to meet at Getty Foods. She said that Chance pulled up and stopped, and Nathan pulled up behind him. Her dad pulled in front of Chance, stopped his car, and got out to approach Chance’s vehicle. As her dad approached Chance’s vehicle, Chance started moving. She said her dad had to put his arms up and jump. He went up onto the car. Her brother then went running after the car and opened the door. Chance was now out of the parking lot, and whipped around the corner.

Her brother fell off the vehicle first and then her dad. She ran to her dad. He was making gurgling noises and she thought he was dead. [ 21 ] Stephanie said that very shortly after this occurred, she received a telephone call from Chance. He said he was taking Shylane and Stephanie was never going to see her again.

[ 22 ] Under cross-examination, Stephanie agreed that she was to meet Chance at Getty Foods, and they were to go for supper and discuss matters. She agreed that Chance did not know that her dad or brother would be there. [ 23 ] She denied that her father voluntarily went onto the hood of the car. She said that he had no choice. He had to go over or under the vehicle. She did say that at first her dad was on the hood. Later, he either rolled onto the roof or somehow got onto the roof of the vehicle. Chance Halyk [ 24 ] Chance testified that he and Stephanie had dated for about four years.

He, of course, knew Aaron Halvorsen throughout this time. He said they had confrontations previously. [ 25 ] Chance said that prior to February 23, 2016, he and Stephanie had been in an “on again and off again” relationship. He had moved to Edmonton, but was back in Moose Jaw on February 23. He said that on the 23rd he had Shylane for the day, and did not want to give her back. He met Stephanie at her grandmother’s house. He testified that he told Stephanie to take Shylane and leave. When Stephanie got out of the car, he took off.

Later, they agreed to meet at Getty Foods “to figure something out”. [ 26 ] Chance testified that he drove into the Getty Foods lot and stopped. Stephanie texted that she was inside. He did not expect that anyone else was there with her. At this time Aaron Halvorsen drove in front of him and a truck drove behind him. He said he kept driving slowly and Aaron went up onto the roof of the vehicle. Nathan opened the driver’s door and started punching him. He heard Aaron yelling, “Stop”. Chance said that when Nathan opened the door, he was driving approximately three to five kms/hr.

As soon as he saw fists, he turned the wheel and hit the gas. He said that he reached by or past Nathan onto the roof and was successful in pulling Aaron off of the roof. [ 27 ] Chance testified that it was a fight or flee situation. He was boxed in and did not notice who was in the truck. He also said that he previously had an altercation with Aaron, where they fought. He testified that Aaron was injured and received broken ribs from that incident. [ 28 ] Chance agreed that he and Stephanie argued and that he did say he would take Shylane to Edmonton.

He stated that when he saw Aaron coming towards him, he knew it would be a fight and decided to take off. [ 29 ] Under cross-examination he stated that his relationship with Stephanie was toxic. Both of them would use their daughter to get at the other. Both were using drugs and had drug problems. Stephanie went to rehabilitation and then he was supposed to go. He agreed that he got Stephanie out of the car and then he took off with Shylane. [ 30 ] Chance said that Nathan opened the door and hit him three times. He had his left hand on the wheel.

He switched hands, placing his right hand on the wheel, and used his left arm or hand to block the blows. He then reached by Nathan onto the roof and grabbed Aaron. At the same time, he hit the gas. He stated that Aaron fell onto Nathan and they then hit the pavement. He agreed that the doors on his vehicle all could be locked. He also agreed that he had a cell phone with him, and could have called police. I suggested he could have leaned on the horn and attracted a lot of attention. I do not know if he made a comment about that. Under re-examination, he said he did not think of using the horn. ANALYSIS

THE DANGEROUS DRIVING CHARGE [31] There is abundant case law to the effect that dangerous driving involves operation of a vehicle in a manner that is a markeddeparture from the standard of care of an ordinary prudent driver. There can be no question that operating a vehicle with an individual onthe hood and another hanging from the side of the vehicle is a marked departure. There can be no question that operating the vehiclewith people on top and on the side is dangerous to them and members of the public. [32] The accused testified that he grabbed at Aaron and attempted to pull or throw him from the vehicle.

I doubt it was possiblefor the accused to use his left hand and to physically throw Aaron Halvorsen from the vehicle. However, the accused’s statement standsas clear evidence of his intent to throw Mr. Halvorsen from the vehicle. Chance also testified that he stepped on the gas hard to get out ofthere. He clearly did so knowing the men were on the vehicle, and with the intent that they be thrown from the vehicle. Under all of thecircumstances, there can be no question but that his driving constituted dangerous driving. [33] The evidence is also very clear that Mr.

Halvorsen suffered significant injuries by reason of being thrown from the accused’svehicle and hitting the pavement. As a result, all of the elements of the offence of dangerous driving causing bodily harm have beenmade out. The only defence presented was that of necessity. THE DEFENCE OF NECESSITY [34] In R v L.S., 2001 BCPC 462, the Court pointed out that necessity is not really a defence per se but an excuse.

The Court statedthat: The law recognizes that what the person did is wrong and contrary to the law but excuses their action because of the urgent situation inwhich they found themselves at the time. [35] Further, that necessity is only available “to avoid urgent situations of imminent peril” where there is no real choice. Becausean accused person must have no real choice in order to utilize necessity, it is rarely available. [36] In R v Latimer, 2001 SCC 1, [2001] 1 SCR 3 the Court stated in the head note: The defence of necessity is narrow and of limited application in criminal law.

The accused must establish the existence of the threeelements of the defence. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonablelegal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and theharm avoided. [37] The Court further stated that a “modified objective test” must be used to determine whether these three elements have beenestablished.

It defined the modified objective test in paragraph 33 as follows: While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused,those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe,on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open.

There must be areasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affectthe accused person’s ability to evaluate his situation.

The test cannot be a subjective one, and the accused who argues that he perceivedimminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given hiscircumstances and attributes. . . . [38] Lastly, in the case of R v Hendricks (1988), (SK KB), 69 Sask R 248 (QB), the Court said that the defenceof necessity was not available to the accused where he voluntarily created the facts that led to the situation of necessity.

Other casessince then have stated that where the accused set the facts in motion leading to the situation of necessity, the Court may hold that the

defence of necessity is not available. [ 39 ] I have determined that the defence of necessity is not available to the accused in this case. Firstly, he very arguably committed a criminal offence by taking off with his infant daughter and stating that he would take her to Edmonton. He certainly ought to have anticipated that would cause a panic situation and reaction. [ 40 ] Mr. Halvorsen, Stephanie and Nathan all testified to the effect that their only purpose was to confront the accused and to prevent him from taking off with the child.

In my view, the victim, Aaron Halvorsen and his children were entitled to do that and to do so in the manner they undertook that evening. [ 41 ] In addition and as a result of that, I conclude that the accused was not in imminent danger or peril when they confronted him. I do not accept that Nathan Bradley was punching him, and conclude that that did not occur. I do not see how it would be possible for an individual like Nathan Bradley, of fairly slight build, to hang on to a rapidly moving car and at the same time punch the driver of the vehicle.

The victim and those with him had no weapons and made no threat to the accused. They did no damage to his vehicle. They only asked him to stop. [ 42 ] I also conclude that there were a number of options available to the accused and for that reason the defence of necessity is not available. These were public store hours. Getty Foods was open. It was in the early evening hours. He could have locked his car doors. He could have leaned on the horn. He could have called police.

It was not necessary for him to drive dangerously to get away. [ 43 ] Moreover, I would conclude that the accused was not attempting to escape a dangerous situation. Rather, he realized that he was in a position of power and controlled the situation with Stephanie Bradley so long as he was in possession and control of their child. His motive was to preserve that situation of power, as opposed to escaping a dangerous situation. In this regard, I note the evidence of Stephanie Bradley that very shortly after leaving, the accused called her on his cell phone.

There is no evidence that he questioned why her father and brother were there, or expressed surprise about that. Stephanie testified that he again told her he was taking Shylane to Edmonton and Stephanie would never see her again. I interpret this as a warning that he still had this power, and she had better act appropriately. [ 44 ] For all of the above-mentioned reasons, the accused must be found guilty of the charge of dangerous driving causing bodily harm. THE CHARGE OF LEAVING THE SCENE [ 45 ] In my view the accused drove dangerously in leaving the scene at the Getty Foods parking lot.

As a result of that dangerous driving, Aaron Halvorsen was injured and the accused is properly convicted of the charge of dangerous driving causing bodily harm. [ 46 ] It is not the situation, however, that the accused became aware of injuries to Aaron Halvorsen, and then left the scene of the accident. For this reason, the second charge of leaving the scene of the accident must be dismissed. Dated at the City of Moose Jaw, Province of Saskatchewan this 22nd day of June, 2017. ______________________________ Kovatch, J