R v. Spahan Date:, 2014 BCPC 180

Citation: R v. Spahan Date: 20140819 2014 BCPC 0180 File No: 96813-1 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN SPAHAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. William Burrows and Mr. Frank Caputo Counsel for the Accused: Ms. Genevieve Eliany Place of Hearing: Merritt , B.C.

Dates of Hearing: January 23, June 2, and June 16, 2014 Date of Judgment: August 19, 2014 [ 1 ] Kevin Spahan is charged with assaulting Raymond Oppenheim and with assault causing bodily harm to Raymond Oppenheim. Mr. Spahan does not dispute that he did assault Mr. Oppenheim but the nature and extent of that assault as well as his defence in answer to it are in question. Mr. Spahan said that he was defending both his property and himself and his family. [ 2 ] The offence is alleged to have occurred on July 28, 2013 so the new provisions of self-defence in the Criminal Code apply both with respect to defence of person and defence of property. Those sections read: 34.

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. 35.

(1) A person is not guilty of an offence if (

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (

d) the act committed is reasonable in the circumstances.

No defence (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law. (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 3 ] While Mr.

Spahan relies on both provisions, he only needs to meet the test under one for an acquittal. RAYMOND OPPENHEIM [ 4 ] This is largely a credibility case. Raymond Oppenheim is a 20 year old male who lives on the Coldwater Reserve. He admits that he was quite intoxicated on July 28, 2013 and so he does not remember much at all. He does not even remember giving a statement to the RCMP. He testified that all he really remembers is walking out of a house and walking down a street. In fact his memory was so challenged that it took several attempts in direct and cross-examination to sort out what he remembered.

Even so, much of his “memory” is based on what others told him later. [ 5 ] Mr. Oppenheim said he remembered seeing Kevin, being Mr. Spahan, coming off a trail “or something”. He said he remembers standing there and saying something like “I didn’t do anything”. He said “then I guess I got hit with a bat”. [ 6 ] Mr. Oppenheim was able to clarify that Mr. Spahan was coming from a trail at the back of his house. Mr. Oppenheim remembered being at a little intersection near the trail. He said the next thing he remembered was being hit with a bat and then he blacked out.

He does not remember too much after that except that Mr. Spahan hit him with the bat in his head and in the ribs. [ 7 ] Mr. Oppenheim was also able to recall that he was coming from “Ross and Leona’s house”. Then he clarified to say that was what Brandon (Brandon Andrew) told him. In other words, it is not Mr. Oppenheim’s recollection. He said he only remembers walking out of Ross’ house and walking the down the road a bit. [ 8 ] Mr. Oppenheim remembered saying to Mr. Spahan that he had not done anything. He does not remember what Mr. Spahan said back to him. Mr.

Oppenheim said there had been an incident with “Trevor, Devon (Devon Clark), Tyler (Tyler Collins) and Jackie (Jackie Spahan) that night”. He said Jackie Spahan hit Mr. Clark in the head with a bottle. He does not separately remember this. It is, again, what others have told him later. [ 9 ] Mr. Oppenheim remembered starting drinking at Brandon Andrew’s house with Mr. Andrew, Mr. Collins, Mr. Clark and Jackie Spahan. He does not remember when they left or where they went after that. The next thing he remembers is being on the road. [ 10 ] Mr. Oppenheim said that Kevin Spahan hit him in the head and ribs.

He said first he was hit when he was standing up and then he went to the ground and curled up in a ball. He was struck in the ribs and thinks he was hit in the head after he was on the ground. He believes he went unconscious but does not remember when he went unconscious.

[ 11 ] Mr. Oppenheim said he had no weapons that night, but he also cannot remember drinking that night. [ 12 ] After the incident, Mr. Oppenheim’s ribs were sore for a couple of months. He was pretty sure they were fractured but the medical evidence does not support this. He had a black eye for a while as well. [ 13 ] In cross examination, Mr. Oppenheim agreed there had been fighting that night, but he could not remember the details of those other fights. [ 14 ] Mr. Oppenheim testified that he had been struck on his left side but the photographs show injuries on his right side.

They appear to be injuries not related to Mr. Spahan striking him with the bat. There are no photographs of injuries to his left side, suggesting Mr. Spahan’s strikes were not hard enough to leave marks, much less fractures. [ 15 ] Mr. Oppenheim also recalled that Mr. Spahan had a silver bat. The bat depicted in the exhibits is not silver but a red and black Louisville baseball bat. [ 16 ] On re-examination, Mr. Oppenheim was able to clarify that he was hit on both the left and right side while he was lying on the ground. He said he fell with his right side up and was hit on the side that was up.

This seemed to be a revelation arising from a persistent cross-examination. I do not believe Mr. Oppenheim recalls this occurring, but made it up after realizing the bat left no bruises. [ 17 ] I found Mr. Oppenheim’s evidence to be almost entirely unreliable. He was so intoxicated he cannot remember the fights he had been in earlier in the evening, whom he was with during those fights, or how he even got to the trail at Mr. Spahan’s property. I am also troubled that most of his recollection appears to be based on what others have told him and not on what he remembered happened.

Some of his evidence appears to be concocted after cross-examination. BRANDON ANDREW [ 18 ] Brandon Andrew testified that he, Mr. Oppenheim and Mr. Clark had all been drinking. They were at Mr. Andrew’s place at the Coldwater Reserve. He does not remember leaving the house. However, they went to his cousin, Ross Andrew’s house. When they left that house, they started walking up to Mr. Andrew’s house again. At that point, he saw his uncle Kevin Spahan running with a bat. He said his uncle was in the back path of his house. He said he and Mr. Clark and Mr. Oppenheim were beside the road. He said Mr.

Oppenheim and Mr. Clark started running and then Mr. Spahan hit Mr. Oppenheim with the bat. [ 19 ] Mr. Andrew said that Mr. Oppenheim had a food container in his hand and he was pretty sure that Mr. Oppenheim did not have a weapon. Mr. Andrew was severely intoxicated, had no clear recollection of the events of the evening and was occupied with vomiting during all these events. [ 20 ] Mr. Andrew said that Mr. Spahan hit Mr. Oppenheim in the ribs. Mr. Oppenheim fell. Mr. Spahan started chasing after Mr. Clark but could not catch him. He ran back to Mr. Oppenheim and starting hitting him with the bat again. Mr.

Andrew testified that Mr. Spahan hit Mr. Oppenheim in the leg and the head. He said Mr. Oppenheim was unconscious. [ 21 ] Mr. Andrew, whose evidence was also somewhat tortured, said Mr. Oppenheim was first hit in the stomach, then he fell, then Mr. Spahan came back and hit him in the leg. Mr. Clark came back with his bat and was right beside everyone as this beating was going on. Mr. Andrew said Mr. Clark had a bat, but when Mr. Spahan came, he turned and ran, but he did not run far. [ 22 ] Mr. Andrew did not hear what anyone was saying. He had no idea why Mr. Spahan was outside with the bat. In fact, Mr.

Andrew was engaged in vomiting a short distance away from these events. [ 23 ] Mr. Andrew did not intervene in the beating of Mr. Oppenheim. Mr. Spahan eventually left. Mr. Andrew ran over to Mr. Oppenheim who was unconscious. Mr. Oppenheim eventually came to as Mr. Andrew shook him awake. Mr. Andrew said he carried Mr. Oppenheim to Mr. Andrew’s house two blocks away. Mr. Oppenheim was crying. He had a goose egg on his head and his ribs were really bruised. The photographs taken by the police do not show a goose egg on Mr. Oppenheim’s head.

There is no visible mark to his head or face that would pass for a goose egg. [ 24 ] Mr. Andrew said he had been with his cousin, Jackie Spahan, earlier that evening. Jackie Spahan is the nephew of Kevin Spahan. They were all drinking and he thinks there was a fight with Jackie Spahan, but Mr. Andrew was not there. [ 25 ] Mr. Andrew said that he had later seen Jackie Spahan by the car at Kevin Spahan’s house. He was crying but Mr. Andrew did not know what made Jackie Spahan cry. He said it was just early morning, which he clarified was 10:00 a.m. This timing is entirely a guess and is inaccurate. [ 26 ] Mr.

Andrew also said he saw a broken window on Mr. Spahan’s trailer but did not see who broke it and did not hear it break. [ 27 ] Mr. Andrew admitted that he had been drinking quite a bit with his friends that evening. He also admitted that he was being sick behind his uncle’s house when Mr. Spahan arrived with the bat. He also acknowledged that if he had given his statement at 7:19 a.m., then these incidents must have happened much earlier than the 10:00 a.m. that he had stated in direct evidence. [ 28 ] As with Mr. Oppenheim, I found Mr. Andrew to be a largely unreliable witness.

He was severely intoxicated to the point that he was vomiting. He heard nothing of what was said between the parties and was otherwise occupied with his condition during the events in question. His recollection of the evening’s events was so disjointed and unclear as to be highly suspect. It would be dangerous to rely upon his evidence.

LEONA ANDREW [ 29 ] Leona Andrew testified that she was called to her window by a commotion she could hear in the street. She saw Mr. Clark standing by a tree and Mr. Spahan standing in the street. She saw Mr. Oppenheim on the ground and Mr. Andrew standing above him. Mr. Spahan was about 10 feet away and had a baseball bat. [ 30 ] Ms. Andrew said that she could not see Mr. Oppenheim move or tell if his eyes were open but she thought he was conscious. [ 31 ] An hour before this incident, Ms. Andrew had seen Mr. Collins, Mr. Clark and Mr.

Oppenheim trying to beat up Garrett Voght, who lives on the other side of them. She said she saw the three men run at Mr. Voght, who turned and defended himself. They all piled on him. Mr. Voght then went into his house and Mr. Collins followed him. [ 32 ] When Ms. Andrew first saw Mr. Oppenheim that night, he had blood on him already from fighting with Mr. Voght. Mr. Clark also had blood on his head from being bashed with a bottle but she was not sure if Mr. Collins had any injuries. [ 33 ] Even earlier in the evening, Ms. Andrew said that her son had been downstairs with Cecil Washington and Louie Oppenheim.

A loud bash woke her that time and her husband went to see what the boys were doing. [ 34 ] Later in the evening, Ms. Andrews said that she was wakened by the incidents outside and a baby in her house. She heard someone say that “they beat up Jackie”. That person then said “oh no there’s Kevin”. Ms. Andrew rushed to the window. She saw Mr. Clark swinging the bat and making threats, calling out Mr. Spahan. She saw Mr. Spahan on the road away from Mr. Oppenheim and Mr. Andrew. Mr. Oppenheim was getting up. Ms. Andrew grabbed the phone. Mr. Andrew was screaming for help and asking for someone to call the ambulance.

She said they were mostly crying loudly because they were really drunk and they were all staggering. Ms. Andrew was sober and had the best and clearest recollection of these events. [ 35 ] While Ms. Andrew was on the phone with the police, she could hear smashing sounds. She could not see what was going on. She had seen Mr. Clark and Mr. Collins leaving in the direction of Mr. Spahan’s place with bats. She had not seen Mr. Collins prior to that point but he did have a bat when she saw him. She could hear what she believed was them hitting glass and metal.

KEVIN SPAHAN [ 36 ] Kevin Spahan testified that he was sleeping and was wakened by sounds of hollering outside his home. He figured it was a bunch of people going by. The next thing he heard, something was hitting his house. He thought it was rocks. He lay there and listened for a while. His spouse, Joyce Andrew, went out to check on the noise. [ 37 ] Mr. Spahan heard Mr. Clark yelling at Ms. Andrew. He got up and went out to look. His wife was in the living room looking out. Mr. Spahan went out to see what was going on. Mr. Clark was in his carport and yelling. [ 38 ] Mr.

Clark was yelling to get Jackie Spahan back out there “you fucking bitch” and similar such things. Mr. Clark spotted Mr. Spahan. Mr. Clark had a bat in his hand and ran around to the back of Mr. Spahan’s truck. He started hitting the top of Mr. Spahan’s box on his truck. He yelled at Mr. Spahan that he was going to burn down Mr. Spahan’s house and kill his family. He repeated this over and over. He could also hear Mr. Oppenheim behind his trailer but could not hear what Mr. Oppenheim was yelling. [ 39 ] Mr. Spahan was concerned when he found Mr. Clark in his garage that he was at risk.

The front door of his house would pop open if it was hit. He was concerned that the men would come in from that direction. He also knew that his nephew, Jackie Spahan, smoked in the carport so a threat to burn the house down was a real one. He did not call the police at that point because he wanted to get the men off his property first. It was not his intention to get into a fight with anyone. [ 40 ] Mr. Spahan went into his house to get his bat. When he went out, Mr. Clark was not in the carport any longer. He saw Mr. Oppenheim walking to the back corner of his property.

The trail he was following goes along side Mr. Spahan’s trailer and also on his property. He saw that Mr. Oppenheim and Mr. Andrew were with Mr. Clark. When they saw Mr. Spahan, Mr. Oppenheim ran to the road and Mr. Clark took off. Mr. Clark continued yelling and threatening to kill Mr. Spahan and burn his house down. [ 41 ] Mr. Spahan said he chased Mr. Clark down, who ran over to Mr. Voght’s house still yelling. Mr. Spahan kept his distance but was swinging his own bat around. Mr. Spahan began walking back when he encountered Mr. Oppenheim. Mr. Oppenheim came toward him and said he was going to “fuck me up”.

Mr. Oppenheim went toward Mr. Spahan. He had a rock in one hand and some take out chicken in the other hand. He clenched the rock in his hand as though he was going to punch Mr. Spahan with it. Mr. Spahan believed Mr. Oppenheim wanted to fight with him. His main concern was that the others would also gang up on him. Given the events of the earlier evening, that was certainly insightful of Mr. Spahan. [ 42 ] Mr. Spahan said that when Mr. Oppenheim came at him, Mr. Clark came running back toward him. He said he swung the bat at Mr. Oppenheim but was about a foot away. Mr. Oppenheim kept coming so Mr.

Spahan punched him in the throat and then hit him with the bat. Mr. Oppenheim went down and then apologized to Mr. Spahan. [ 43 ] Mr. Spahan said in cross examination that he swung the back, missed, and then punched Mr. Oppenheim in the throat. He denied hitting him in the face or the head. Mr. Oppenheim came at him again so he swung the bat and hit him in the side. Mr. Oppenheim fell and then Mr. Spahan hit him in the back of the leg. He conceded it was a full swing and hit him pretty hard in the side. He said Mr. Oppenheim appeared to be “out” once he hit him in the leg. He believes that if Mr.

Oppenheim was unconscious, it was because he was out of breath and not because of a blow to the head. He said he never hit Mr. Oppenheim in the head. [ 44 ] Mr. Spahan explained in cross examination that he struck Mr. Oppenheim in the leg after he was down to ensure that he would not get up to help Mr. Clark who was coming back at him with the bat. Mr. Oppenheim had been trying to get up so he hit him in the leg whereupon he rolled back down and stayed down.

[ 45 ] Mr. Spahan said that he did not strike Mr. Oppenheim after he apologized. The order of events was he hit him in the leg, Mr. Oppenheim apologized and then a couple of seconds later he was unconscious. Mr. Spahan was worried enough to check on him. [ 46 ] Mr. Spahan said he walked back over to Mr. Oppenheim and put his bat beside Mr. Oppenheim’s head to see if he was conscious. He denied hitting Mr. Oppenheim. He was making the gesture to see if Mr. Oppenheim was okay. In response, Mr. Oppenheim groaned, but Mr. Spahan conceded he was kind of unconscious. As Mr. Spahan walked back toward Mr. Clark, Mr.

Oppenheim came around. This accords with Ms. Andrew’s evidence. [ 47 ] Mr. Clark continued to threaten that he was going to get his family to come and help him kill Mr. Spahan and his family. He said that the Spahans were not going to be safe. [ 48 ] Mr. Spahan went back to his house. At that point, Mr. Andrew was just getting back to Mr. Oppenheim. Mr. Spahan called 911 for Mr. Oppenheim. [ 49 ] After he had returned home, Mr. Spahan heard a window break. He thought it was the truck windows. Joyce Andrew was on the phone with the police and Mr. Spahan was standing at his gate. He saw Mr. Clark and Mr. Collins.

Mr. Clark had a pool cue and was threatening to kill the Spahans and burn the house down. He slammed the pool cue on a table and held the broken piece while he called out to Mr. Spahan. Mr. Collins appears to have been bemused and was simply trying to sort out what was going on. He was not engaged in Mr. Clark’s actions. [ 50 ] Joyce Andrew came out and said that the police were on the way. She told the young men to go home and sleep it off. Mr. Spahan then discovered that his van had been damaged. He believed Mr. Collins may have hit the van with a bat but did not see it happen.

There was also a broken window in his trailer and a dent in its back corner. He did not see who did this damage. [ 51 ] Mr. Spahan said that from the past history with these “boys” he was not going to take his chances. He recognized them as young people up to no good. This was the basis for his approach to these males on that evening. [ 52 ] In cross examination, Mr. Spahan agreed that no one ever teaches these young men a lesson, and agreed that his actions would ensure the young men would not bother him again. [ 53 ] I found Mr. Spahan to be credible and forthright.

He did not evade the ancillary benefit that Crown proposed: this incident would teach these young men a lesson and encourage them to leave Mr. Spahan alone. However, I do not find that his actions were motivated by vigilantism. Rather, he was faced with a real and credible threat to his property and his family. JACKIE SPAHAN [ 54 ] Jackie Spahan testified that he had been drinking with Mr. Andrew, Mr. Oppenheim and Mr. Clark at Mr. Andrew’s house. He also does not remember much of the evening because he drank quite a bit. He “kind of remembers” fighting that night but really just remembers Mr.

Clark running at him. Mr. Clark took some swings at him and got Jackie Spahan close to the ground. He got Jackie Spahan in the head with his knee a couple of times. In trying to defend himself, Jackie Spahan swung the bottle and smashed it over Mr. Clark’s head. At that point, Jackie Spahan ran home. It should be noted that Mr. Spahan did not see Jackie Spahan that evening before the incidents involving Mr. Spahan. ALVIN ANDREW [ 55 ] Alvin Andrew is Leona Andrew’s husband. He heard a big bang downstairs that night and his wife told him to run down and check it out. He did so. He found Mr. Oppenheim and Mr.

Clark beating on Louis Oppenheim. Mr. Collins was standing by. He yelled at the group of men who then settled down. Mr. Oppenheim looked like he had already been beaten up with a gash on his cheek and one above his forehead. He had a welt on his arm and his knees looked like he had fallen down. This accords with Ms. Andrew’s evidence. [ 56 ] Mr. Clark was drunk but mostly looked like he was dusty from rolling around on the ground. [ 57 ] Ross Andrew took Louis Oppenheim home. Alvin Andrew then said he saw the others (Mr. Clark, Mr. Collins, and Mr. Oppenheim) coming back. Mr.

Oppenheim was lagging behind the other two who had bats. Alvin Andrew told Leona Andrew that the men were coming back with bats. Ultimately, Brandon Andrew also showed up. [ 58 ] After the fight at Alvin Andrew’s house, Mr. Collins, Mr. Clark and Mr. Oppenheim ran after Mr. Voght. After a short tussle, it was over. Jackie Spahan came into view while that fight was going on. Alvin Andrew yelled at Jackie Spahan not to go over where the men were all beating each other. About 10 minutes later, Mr. Clark came into Mr. Andrew’s house with a “cracked head”. [ 59 ] Awhile later, the same people were arguing outside.

They beat up Jackie Spahan and then came in. Mr. Clark was all bloody at this point. Mr. Oppenheim and Mr. Clark were holding each other up. [ 60 ] While standing at his window, Alvin Andrew saw Mr. Spahan walking in his direction. Mr. Oppenheim was walking down the road. He saw Mr. Spahan hit Mr. Oppenheim and Mr. Oppenheim go down. Mr. Clark was on the road and started swinging his bat and taunting Mr. Spahan. Mr. Andrew was with Mr. Oppenheim while Mr. Oppenheim was on the ground. [ 61 ] He heard Mr. Clark saying that he was going to burn down Mr.

Spahan’s house as he swung his bat. [ 62 ] Alvin Andrew disputed that Mr. Spahan hit Mr. Oppenheim with a punch. He said no punch was thrown. I believe Mr. Spahan’s evidence in this regard. Alvin Andrew only saw Mr. Spahan hit Mr. Oppenheim with the bat once. The rest of the time Mr. Spahan was hitting the ground and threatening Mr. Oppenheim. [ 63 ] Alvin Andrew said that Mr. Oppenheim hit the ground. He was still “saying stuff” while he was on the ground. Alvin Andrew

could not be sure if Mr. Oppenheim “went out” or not. [64] Alvin Andrew said he heard Mr. Clark and Mr. Collins threatening but mostly from Mr. Clark. In fact, Mr. Collins was notpresent for this incident. Mr. Andrew is mistaken in this regard. [65] Alvin Andrew did not see Mr. Oppenheim go at Mr. Spahan or square up to fight. He did not see Mr. Oppenheim raise his hand.Mr. Spahan hit him with the bat and Mr. Oppenheim landed on his side. He was not unconscious when he landed. Mr. Spahan hit theground beside him with one hand on the bat saying to leave his family alone.

He said the others were running back and forth at Mr.Spahan. He was standing away from Mr. Oppenheim and reaching out with one hand and hitting the ground. [66] Alvin Andrew’s evidence was confused and disjointed and extremely hard to follow. I find that he otherwise attempted to relatethe evidence as well as he could recall them. I treat his evidence with caution. I accept his evidence as it relates to what happened afterMr. Spahan hit Mr. Oppenheim with the bat. It accords with the evidence of both Ms. Andrew and Mr. Spahan, and was less confusedthan the balance of his testimony. ARGUMENT [67] Ms.

Eliany argued that Messrs. Clark, Andrew and Oppenheim were engaged in various fights that morning. They causeddamage to Mr. Spahan’s property both before and after the incident with Mr. Spahan. Two of the men in the party had baseball bats. Mr.Spahan felt threatened by them because he knew them to get drunk and cause trouble. [68]

Section 34 of the new self-defence of person provisions lists factors to be considered. Ms. Eliany argued that the court need notput more emphasis on one factor over any others. Section 34(1)(

c) only requires that the act be reasonable. Proportionality is a factor tobe considered under s. 34(2). [69] Ms. Eliany referred to R. v. Moore, [2001] B.C.J. No. 1148 which involved an accused becoming upset when a woman ran on agolf course. The accused yelled at her which attracted the attention of the complainant. He demanded to know why the accused wasbothering the complainant’s wife at which point the accused punched the complainant and broke his jaw. On appeal, the court said thatthe trial judge ought to have considered the large group of angry people in context. In this case, Mr.

Spahan was scared for his familyand his property. There were three men involved who were drunk. One had a bat. They had already been to Mr. Spahan’s property,hitting his vehicle and making threats to his house and family. [70] At this point, Mr. Spahan was not obliged to measure his force. The force used was a hit to the ribs which did not leave a mark,and a punch to the throat which also did not leave a mark. Even if he were required to measure his force, it was not excessive in thecircumstances. [71] Ms.

Eliany argued that the new provisions for defence to property in s. 35 are much broader than defence of person. Noproportionality needs to be considered. The accused need only show he was in peaceable possession, the property must be underimminent threat and the act must be reasonable. The property was Mr. Spahan’s and he was clearly in peaceable possession. Given thecircumstances, the property was under imminent threat as was Mr. Spahan’s family. Ms. Eliany argued that he was therefore justified inrunning out with the baseball bat to chase away Messrs. Oppenheim, Clark and Andrew. [72] In R. v.

Sonmor, [2000] S.J. No. 575, there was a troublemaker at a house party. When one other attendee of the party tried toreason with the troublemaker, he refused to leave. The accused went after the troublemaker with a bat. The court found there was noreasonable opportunity to retreat and the action was justified. It is questionable whether there is any duty to retreat under either newsection. [73] Ms. Eliany argued that it is easy to look back and dissect what happened, but the events unfolded very quickly. In R. v. Abdalla,[2006] B.C.J.

No. 946, the court found there is no requirement to retreat where the person’s home is concerned. The accused is also notrequired to hide in his home and call the police. [74] I was also referred to R. v. Proulx, [1998] B.C.J. No. 1708, and R. v. Forde, 2011 ONCA 592 , [2011] O.J. No. 4049,on the issue of retreat. These cases fall under the old legislation and do not address whether any such duty persists under the newsections. [75] Mr. Caputo addressed the dichotomy between ss. 34 and 35. Section 35(1)(

d) requires the response to be reasonable.

Section 34defines what reasonable is. He argued that it is tacit in s. 35 that proportionality be read in. He also referred to Bill C-26 which indicatesthe proportionality is still expected. [76] Notwithstanding that, Mr. Caputo argued that this was not a case of defence of property but of defence of person. Mr. Spahanmay have thought his property was in danger and that threats were made to him and his wife but, in relation to self-defence of person, itwas when Mr. Oppenheim came at Mr. Spahan that self-defence was triggered. [77] I find that the threat to property never ended even after the threat to Mr.

Spahan and his family emerged. [78] Mr. Caputo conceded that the witness testimony was quite varied. He pointed to the difference in size between Mr. Oppenheimand Mr. Spahan, with Mr. Spahan having a size advantage. However, he concedes that Mr. Spahan testified he was fearful of the othersganging up on him. This was a very real fear in the circumstances. [79] Mr. Caputo argued that Mr. Spahan’s evidence should not be accepted with respect to the assault. He said Mr. Oppenheimshould not have been unconscious based on the strike Mr. Spahan admitted to. Yet, Mr. Oppenheim was unconscious even according toMr.

Spahan. However, Mr. Oppenheim had no visible signs of injury from the blows he received from Mr. Spahan. I am not satisfied onthe evidence that Mr. Oppenheim was unconscious. If he was, it was not as a result of a blow to his head but a combination of hisextreme intoxication, and the blow to his ribs and punch to his throat.

[80] Mr. Caputo argued that this was not defence of a person or of property, but Mr. Spahan teaching these young men a lesson. Even conceding the air of reality to the self-defence, Mr. Caputo urges me to consider that Mr. Spahan took a full swing at a diminutiveMr. Oppenheim. Once Mr. Oppenheim was on the ground, the threat was dispelled and any further action was gratuitous andindefensible. I do not agree. Even as Mr. Clark approached Mr. Spahan with the bat, Mr. Oppenheim was attempting to rise. Mr. Spahanstruck him in the leg to keep him down but did not otherwise strike Mr. Oppenheim once he fell. [81] Mr.

Caputo argued that if Mr. Spahan did strike Mr. Oppenheim once he was on the ground, the Crown made out its case. Mr.Caputo referred to R. v. Knott, 2014 CarswellMan 145, and R. v. Paskimin, 2014 SKQB 78 , 2014 CarswellSask 202 andsubmitted that it is a matter of statutory application and proportionality. [82] While the threats and actions leading to Mr. Spahan’s response are part of one continuous event, I must assess self-defence anddefence of property individually to determine whether either or both defences are available to Mr. Spahan. [83] I find Mr.

Oppenheim and his colleagues were out causing a significant amount of disruption to the community and engaging inviolent acts leading up to the encounter with Mr. Spahan. They were severely intoxicated to the point that I cannot accept their evidencewhere it is contradicted by any other witnesses. Mr. Oppenheim was already covered in bruises and injuries from the earlier fights. Hewas with Mr. Clark and Mr. Andrew. Mr. Clark made real and disturbing threats to Mr. Spahan, putting his family and his home at risk.Mr.

Spahan sought to chase these men off his property for fear that they would harm his wife or burn his house. [84] In the process, he was threatened by Mr. Clark with a baseball bat and Mr. Andrew who was admittedly incapacitated withillness. I accept that Mr. Oppenheim did approach Mr. Spahan with a rock in his hand. It was reasonable to fear he was reinforcement toMr. Clark’s threats against Mr. Spahan. I find that Mr. Spahan was acting in self-defence against this risk. He struck Mr. Oppenheim inthe throat with his fist and then struck him in the side with the bat. Mr.

Oppenheim, once on the ground, attempted to get up again, atwhich time Mr. Spahan struck him with the bat in the leg. This is entirely within the factors set out in s. 34 and was proportionate to therisk Mr. Spahan faced. The threat from Mr. Oppenheim was imminent. Mr. Spahan used as much force as was necessary to prevent thethreat. Mr. Oppenheim was one of three aggressors who were posing an immediate threat not only to Mr. Spahan but to his home andfamily. One of the aggressors had a bat and had already used it to destroy property. Mr. Oppenheim had a rock in his hand and wasapproaching Mr.

Spahan in a threatening manner. Mr. Spahan knew these young men and had already witnessed acts of violence by oneof them that evening. All of the factors of s. 34 are met. [85] I am not satisfied that the Crown has proved Mr. Spahan struck Mr. Oppenheim in the head. There are no injuries to his headconsistent with a strike as alleged by the Crown or at all. There is no evidence before me to suggest that Mr. Oppenheim was knockedout by anything other than a combination of intoxication, the blow to the ribs and throat, and relenting to Mr. Spahan’s efforts to keephim down.

I find the response was proportionate to the threat. [86] Neither the court nor the community encourages people to take the law into their own hands. The Criminal Code affords adefence to a person who assaults another in defence of that person’s property, family or self. [87] Mr. Spahan believed his property was also threatened when he went to chase off these young men. I find that s. 35 requires thecourt to read in proportionality where defence of property is concerned. The legislative intent of these amendments was to makeunintelligible sections clearer.

If Parliament had intended to include the factors set out in s. 34 in the assessment of reasonableness in s.35, Parliament would have made it clear this was to be so. Parliament specifically codified those factors under s. 34 only. However,proportionality must be a part of any assessment of reasonableness. “Reasonable in the circumstances” means that there isproportionality in the response when compared to the threat or perceived threat.

In this case, the threat had already been carried out inphysical violence to property and further threats persisted. [88] I assess the proportionality on the basis of the circumstances Mr. Spahan found himself in on that morning. With respect to thedefence of his property, I find that Mr. Spahan acted entirely proportionately and reasonably in defence of it. [89] With respect to the defence of person, Mr.

Spahan was surrounded by people who were engaged in a direct threat againsthimself and his family, who had caused damage to his property, and who were wielding a bat in a threatening manner while Mr.Oppenheim came at Mr. Spahan with a rock. Being thus surrounded, Mr. Spahan acted entirely in self-defence when he struck Mr.Oppenheim the blow to his throat and his ribs to bring him to the ground, and again when he struck him in the leg to keep him down. [90] I acquit Mr. Spahan of both charges. _______________________________ S.D. Frame Provincial Court Judge