R v Verhaeghe, 2023 ABCJ 134

In the Alberta Court of Justice Citation: R v Verhaeghe, 2023 ABCJ 134 Date: 20230613 Docket: 211066279P1 Registry: Calgary Between: His Majesty the King - and - Joseph Russell Verhaeghe Verdict of the Honourable Justice B.C. Stevenson CHARGE [ 1 ] Joseph Russell Verhaeghe is charged with unlawfully causing the death of Gil Scott, thereby committing Manslaughter, contrary to s. 236(

B) of the Criminal Code . [ 2 ] The charge arose out of an incident that occurred on October 27, 2021 in Calgary, Alberta. THE LEGISLATION [ 3 ]

Section 34 of the Criminal Code was amended by Parliament in 2013, and came into force on March 11 th of that year. The

Section now reads as follows: Defence of Person [ 4 ] “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; and (

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 [ 5 ]

(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 any 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. Defence of Property [ 6 ] 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. THE MAIN ISSUE [ 7 ] Do the circumstances of this matter permit the accused to rely on the self-defence s. 34 of the Criminal Code ? BACKGROUND [ 8 ] Both the accused and the deceased were homeless individuals, often referred to as “street people”. [ 9 ] It is an unfortunate fact, and one of which I take judicial notice, that in our present society we have an abundance of persons who are homeless. The homeless are often described as “street people” and are often the cause of, or become involved in, incidents of social disorder.

[ 10 ] Many have issues relating to mental health and addiction to illegal substances. [ 11 ] A sad fact is that most, if not all, of these people carry lethal weapons, and in particular knives, for a purpose that is dangerous to the public peace. [ 12 ] Many of these individuals always carry with them their entire worldly possessions. [ 13 ] Such was the case of the accused in this case. [ 14 ] On October 27, 2021, Alex Christofferson, while driving north on 36 th Street in Northeast Calgary, and passing a stationary bus on his right, had to stop when two men stepped in front of him from the front of the bus. [ 15 ] He sounded his horn and the two men stepped back. [ 16 ] The two men were involved in an altercation, and appeared to be struggling over a bag. [ 17 ] Mr.

Christofferson further testified that the smaller of the two men (who was later identified as the accused), had a skateboard, and he swung it toward and struck the larger man, who fell back. [ 18 ] Mr. Christofferson then pulled his vehicle around the corner and returned on foot to where the larger man had fallen. [ 19 ] He saw a gash above the larger man’s left eyebrow. [ 20 ] Another person performed CPR on the fallen man. [ 21 ] Mr. Christofferson stated that while the fallen man had a pulse, he was non-responsive.

He applied pressure to a wound on the larger man’s torso to stop its bleeding. [ 22 ] Andin Skobey, a passenger on the bus, saw the fight going on between the two men in the middle of the street. He saw the larger man falling and saw the man with the skateboard running away. [ 23 ] He attended where CPR was being performed and heard one gasp. He called 911, and noted a stab wound on the right side of the fallen man’s body. [ 24 ] Allan McNaughten, the bus river, saw the two in front of his bus.

He saw the accused swing a skateboard at the face of the larger man. [ 25 ] McNaughton testified that he saw the accused reach into his pocket and pull out a black knife. He testified that the accused gave two thrusts of the knife toward the larger man, and then ran away toward the Marlborough Mall. [ 26 ] The larger man just lay on the road with blood running from the wound and did not seem to have any life. [ 27 ] Shortly thereafter the accused was arrested, and he appeared to be distraught and had bruises on his face.

He stated that he had been attacked and was defending himself. [ 28 ] He also expressed concern about the health of the larger man. [ 29 ] Following his arrest for Aggravated Assault, contrary to s. 268 of the Criminal Code , the accused gave a warned interview with Detective Bekkering of the Calgary Police Service on the evening of the day of the incident. [ 30 ] In the interview, the accused stated that the deceased had picked up his duffle bag and was leaving with it. He asked the deceased to give it back.

The deceased refused, stating that it was his, and the two kept arguing and struggling over the property for about two blocks. [ 31 ] The following excerpt from the transcript of the interview describes what the accused remembers leading up to his altercation with the deceased: Page 7, lines 7-18: “I was standing with my—with a gentleman by a garbage can, and he was going through grabbing some stuff, and I had my bag and a skateboard out front of the garbage bin, and when I went around the side and come back, they had taken the bag and the skateboard, and were taking it away, and I said, Well, where are you taking my stuff?

You know, why are you stealing my stuff? And he’s like, it’s my stuff. And I said, No, it’s not your stuff. And then he just kept taking my stuff”. [1] Page 7, line 25 – page 8, line 1: “For some reason. So, he was robbing my belongings”. [2] Detective Bekkering: Page 8, line 10-13: “It was? Okay. Okay. So, what happened after you came back and this male told you that the skateboard and this duffle bag was his?” [3] Accused: Page 8, line 14-page 10, line 22: “I—I tried—like, I grabbed the—my duffle bag and skateboard, and I tried to – fighting for it.

So, I took it, and he was fighting back for it, and then we fought like two blocks for it, or something like that, or a block, and I poked him with the skateboard to try to get him to stop too, and he wouldn’t. He just kept fighting, and saying it was his bag, and his stuff too, and –yeah. And I’m like, no, this is—wow, this is—please don’t steal my stuff. I need my stuff. And he just kept fighting me to take it. And it just got a little ridiculous. You know what I mean? It’s like, No. Please don’t take my stuff. Leave me alone. Right? And that’s – that’s—the idea. That’s it”. Detective Bickering: “Okay.

Anything else happen up to that point—up—after that point?”

Accused: “Well, we were—just that ugliness of—like, I was really scared, you know, that – ‘cause he’s bigger than me. He’s quite big – larger than me, right?” Detective Bekkering: “Mm-hmm”. Accused: “And he was – you know, that he was gonna take my stuff, and not just that, but he’s gonna take all my other belongings, like my shoes, or my wallet, or my clothes, or whichever, right? And so – yeah. I was worried. Didn’t know how – what else to do, how else to stop him, thought he was gonna hurt me, and was scared for myself, and my life, and my belongings, and it just got out of hand. And now I’m sitting in here.

I felt robbed and attacked, and – and now I’m sitting here feeling like that I did something – ‘cause I was defending myself, or protecting myself, now I feel like I did something wrong. It’s not right.” Detective Bekkering: “Well, yeah. Especially as – like, you – you live on the – in the street?” Accused: “Yeah. Very poor my whole life and everything.” Detective Bekkering: “Yeah”. Accused: “So, to lose things, to ---stuff, is a big deal for me. So, I don’t know where this guy is coming from, or what he does or anything, but he was trying to steal my stuff, and I don’t know why, and I was like, please.

I was begging him, don’t steal my stuff. And he just had to have it, you know? And I was scared, defended myself and my stuff, and now I feel like, you know, I’m being arrested and held ‘cause I was just trying to defend myself”. [4] The accused repeated in the interview his position that he was simply defending himself in the altercation with the deceased. Transcript, Page 12, lines 2-7: Accused: “Well, he’s bigger and stronger than me. I’m scared”. Detective: “Okay”. Accused: “And that he’s gonna get my stuff, and it’s gonna get worse. So, I have to defend myself.

That’s all I was thinking”. [5] Transcript, Page 13, lines 17 – 23: Accused: “And like I said, he was, like, bigger and strong, and I was scared and worried. So, I was just defending myself, and it could have been, like, a lot worse. It could have been like a lot worse things or whatever.

I just wanted him to let go of my stuff and let me go”. [6] Transcript, Page 16, line 2: Accused: “I was petrified”. [7] Transcript, Page 17, lines 2-3: Accused: “All I was doing was – was felt like I was being attacked and defended myself.” [8] Transcript: Page 18, line 18: Accused: “I was just defending myself”. [9] Transcript: Page 20, line 12 – Page 21, line 21: Accused: “Well, I ---I feel bad, I guess, but I—I was scared and I-yeah. And I—I didn’t really mean to. It was a complete accident. It was just mostly to scare him, I guess. And then—yeah.

More of a –like a—like as a threat thing, or intimidation thing, and I figured he’d let go, and he didn’t really. So. I kinda had to, like close my eyes a little bit, and I was—it was scary for me too. Like, it was scary. And then —and then I closed my eyes, and –and then he let go of my stuff, and I took off runnin’, and then before I know it, I was being arrested by the police and stuff, and then was calm about because it was like I was being attacked, and, you know, threatened, and I just defended myself.

That’s why it was so easy to let myself get arrested, and –and come in here ‘cause I felt I was the victim. And now I’m not feeling like that. I’m feeling like uh-oh. Like this guy was really hurt, or – and all by an accident, and all because of my fear. Detective: “Okay. And that fear, what did that make you do? Did you have a weapon on you?” Accused: ‘Well, I had closed my eyes, and I have a little pocketknife.” Detective: “Okay. And that knife, was it just in your pocket?” Accused: “Yeah”. Detective: “Like a pocketknife, was it in your right pocket, left pocket?”

Accused: “It was in my left pocket.” [10] Transcript, page 24, line 14: Accused: “……..and I keep it for protection”. [11] Transcript, page 26, line 2: Accused: “I’m not – I closed my eyes in fear”. [12] Transcript, page 27, line 17 – page 28, line 1: Accused: “That’s why I kept asking you is he okay, what’s wrong, ‘cause – did he pass away, because I never felt if it was really deep, or did I, you know, like, cut him wide open, or is it just a little poke? Like, there was no blood. Detective: “Okay”. Accused: “No. There was no blood or anything. So, I figured I didn’t even cut him.

I figured I just scared him, and I let him go.” [13] Transcript, page 30, line 17-22: Accused: “And I was just – and I was just. defending myself. And he – I didn’t mean to cut him open, or hurt him, or put him in the hospital. And like I said, I didn’t feel the knife if it went –if something did happen, it was just a little poke”. [14] Transcript, page 40, line 7 – 18: Accused: “I was so scared and concentrated on him. I just (inaudible) into traffic. And that was when I got really scared and I closed my eyes, right? ‘Cause you could get run over. You don’t know what’s going on. Now we’re in traffic.

This guy’s wrestling me into traffic. I got a knife out, and he’s not letting go. You know what I mean? It’s just a big mess. It was just a fiasco, right? And I – and I got my stuff back, and I couldn’t believe it. [15] And later: Transcript, Page 42, line 1-2: Accused: “I was just trying to intimidate him to get – let go of my stuff”. [16] [ 32 ] The deceased, Gil Scott, died at 3:05 AM on October 29, 2021. [ 33 ] Dr.

Akmal Coetzee-Khan, of the office of the Chief Medical Examiner’s Office in Calgary, conducted an autopsy on that same day, and determined that the manner of death was homicide. [ 34 ] Evidence of fentanyl, methamphetamine, and cannabis use prior to death was shown from toxicology analysis. SUBMISSIONS OF COUNSEL [ 35 ] Jack Kelly, Crown Counsel, refers to the 1993 decision of the Supreme Court of Canada of R v Creighton (1993 Carswell 115) in relation to the test for the mens rea of unlawful act manslaughter.

Paragraph 12: “So the test for the unlawful act manslaughter in Canada, as in the United Kingdom, is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act – foreseeability of the risk of death is not required. The question is whether this test violates the principles of fundamental justice under s. 7 of the Charter ”. [ 36 ] Mr.

Kelly also referred me to the Supreme Court of Canada decision of R v Khill (2021), SCC 37 and the reform of the self- defence s. 34 (1) (2) and (3) of the Criminal Code . [ 37 ] The Crown also referenced to the reformed provisions now found in s. 35. (Ref: Citizen’s Arrest and Self-Defence Act, S.C. 2012, C. 9, S.2). Those revisions came into force on March 13, 2013. [ 38 ] Mr. Kelly refers to the New Brunswick Court of Appeal decision of R v Cormier , 2017 NBCA 10 . [ 39 ] At paragraph 40, the Court states: “Section 34(1) enumerates three criteria, all of which must be present for the defence to be available.

In other words, self- defence is not applicable if the prosecution proves beyond a reasonable doubt that one of these criteria has not been met. They are: 1) Reasonable belief: the accused must reasonably believe that force or threat of force is being used against him or someone else (the subjective perception is objectively verified); 2) Defensive purpose : the subjective purpose of responding to the threat must be to protect oneself of others (this is a subjective state of mind); and 3) Reasonable response : the act committed must be reasonable in the circumstances (this is objectively assessed).

[40] In relation to the issue of proportionality, and the Court’s statement, quoting Professor Kent Roach, at paras. 49-51: 49.“Professor Kent Roach, in his article, laments the fact that Parliament was silent on the issue of proportionality in s. 35, although itmade it a consideration in self-defence cases by listing it as one of the factors to be considered under s. 34(2). Recall that “the nature andproportionality of the person’s response to the use of threat of force” is listed as a factor in s.34(2)(g). Professor Roach opines that “courts should read in such a proportionality requirement in the absence of clear legislation displacing theextensive proportionality jurisprudence”. In the

summary portion of his article, Professor Roach notes that absence of proportionality as acriterion in s. 35 opens up the “disturbing possibility that intentional killing in the defence of property could result in an acquittal”. 50. “Frankly, it is difficult to conceive how the killing of an individual solely to defends one’s property could ever be found to be areasonable response in the circumstances. What usually occurs is that the force used to prevent interference with one’s property isresisted, and the aggression of the trespasser turns the situation into one of self-defence.

Professor Roach makes this point: The old defence of property provisions provided that a trespasser who resisted an attempt to protect personal or real propertywould be deemed to have committed an assault. These complex provisions are not present in the new

section 35. Nevertheless, this doesnot preclude frequent overlap between defence of property and self-defence provisions. For example, a person who is protecting propertymay also be able to claim self-defence if they have a reasonable belief that force or a threat of force is being used against them”. (Article: “A Preliminary Assessment of New Self-Defence and Defence of Property Provisions 2012, 16 Canadian Criminal Review275)”. 51. For the reasons laid out below, we believe the present case is one in which there was in fact an overlap defence of property and self-defence.

In our view, it would have been open for the jury to conclude that what began as a defence of property situation quicklyescalated into a defence of the person case”. [41] In Khill (supra) at paragraph 37, the Court states (in part) on the subject of “reasonableness”: “Section 34(2) sets out nine non-exhaustive factors that shall be taken into account when considering if the accused’s act was reasonablein the circumstances under s. 34 (1)(c). [42] Mr.

Kelly quotes from paragraph 39 of the decision: “Even if one accepts that the new unified framework in s.34 was built upon the foundation of the old provisions and case law, it changedthe law of self-defence in significant ways by broadening the scope and application of self-defence and employing a multifactorialreasonableness assessment.” [43] Mr. Kelly submits that the fact situation here was only about protecting property, and that self-defence is not available to theaccused. [44] He submits that the accused is guilty of manslaughter. [45] Mr.

Edgett, counsel for the accused, submits that the only issue is self-defence, and that the circumstances it is available andappropriate. [46] In his

summary of the facts, he agrees that the law as set out in Khill,but submits that the role of the accused in the incident isdeterminative with respect to the availability of self-defence. [47] He is critical of the reliability of the evidence of Alan MacNaughton, arguing that his evidence was inconsistent with thevideo evidence, and that the inconsistencies may be due to the passage of 15 months since the incident. [48] In particular, while on the day of the incident he simply stated that the accused “used the knife”, when he gave evidence at thetrial he testified that the accused made two distinct thrusts with the knife toward the deceased. [49] The accused had a lengthy interview with Detective Bekkering following his arrest on the day of the incident.

As mentionedearlier in these reasons, the accused repeatedly described his fear of the deceased, his concern about the condition of the accused, that hedidn’t intend to hurt him, that he only pulled the knife to intimidate him by waving it toward the deceased and to get his property back,and that the deceased was pushing him into traffic while struggling over the duffel bag. [50] He denied lunging at the deceased and stated that he closed his eyes while doing that.

He stated that he didn’t realize that thedeceased was stabbed until someone told him. [51] Mr Edgett submits that the circumstances here are such that the accused was a victim throughout the incident. Throughout theincident he was being robbed by a larger person. [52] Toward the end of the incident he was being wrestled into traffic by the deceased. [53] Mr. Edgett references the Ontario Court of Appeal decision of R.v. Budhoo 2015 ONCA 912 , 2015 343 O.A.C. 269(CA), and quotes paragraph 5: “The appellant stated that he brandished the knife to protect his friend and then continued to hold it to protect himself.

He said that henever intended to stab the man; rather, he claimed it was an accident”. [54] The trial Judge in the case did not leave self-defence with the jury, holding that there was no air of reality to the self-defencesubmissions. He found that “self-defence” and “accident” were incompatible defences.

[55] On the issue of compatibility, Mr. Edgett quotes the Court from paragraphs 50: “By determining that self-defence and accident could not co-exist, the trial judge misapprehended the defence position. The appellanttestified that he held out the knife at first to protect Bishop and then kept it out to protect himself. The subsequent stabbing was anaccident. This sequence of events allowed the two defences to co-exist”. [56] And further, at paragraph 52: “Likewise, in this case, the defences were closely related and compatible.

The appellant had a two-pronged defence – he acted in self-defence by brandishing the knife and continuing to hold it out. He then accidentally stabbed Burns”. [57] Mr. Edgett also referred to the Supreme Court adopting (2006 2006 SCC 40 , 2 S.C.R. 347) Justice Wittman’s dissentin the Alberta Court of Appeal’s decision of R.v. Kong

(2005) ABCA 2005 ABCA 255 , 371 A.R. 90. [58] That decision addressed the “air of reality” standard. “The evidential standard a judge must apply in determining whether a defence possesses an air of reality was reviewed in Cinous. Thetwo-pronged question for determining whether there is an evidential foundation warranting thatbe put to a jury is whether there is 1)evidence, upon which a properly instructed jury, acting reasonably, could acquit if it believed the evidence to be true.

The second partrequires asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused’. [59] Mr. Edgett submits that if we accept the statements made by his client in the interview with Detective Bekkering that he neverintentionally stabbed the deceased, then an air of reality exists, and the Court is entitled to draw the inference that s. 34(1) has been madeout. [60] Mr.

Edgett then reviews the nine factors under s. 34(2). [61] He also submits that the Court in Cormier (supra) at paragraph 51, supports the position of his client – what started as adefence of property escalated into a self-defence situation – and the two can co-exist.

FINDINGS − The accused stabbed the deceased; − I accept the version of the incident provided by the accused to Detective Bekkering; − I accept the accused’s description of his state of mind as the incident developed; − The accused has reasonable grounds to believe that the deceased was using significant force against both himself and his property; − The force being used against him and his property by the deceased was imminent and ongoing, and life-threatening; − The accused was the victim throughout, and the deceased was the aggressor; − The deceased was much larger than the accused; − The deceased had no prior relationship with the accused; − The stabbing was accidental, and the knife produced by the accused was meant by the accused to intimidate the deceased torelease the property to the accused; − The accused’s response was to an unlawful act by the deceased.

CONCLUSION [62] In the circumstances that I have found to have existed at the time of the incident, I am satisfied that the response by theaccused to the life-threatening violence he was facing by the conduct of the deceased was proportionate. VERDICT [63] The accused is Not Guilty. Delivered Orally on the 23rd day of May, 2023. Dated at the City of Calgary, Alberta this 13th day of June, 2023.

B.C. Stevenson A Justice of the Alberta Court of Justice Appearances: Jack Kelly for the Crown J. Edgett for the Accused