R v McNallie, 2023 ABCJ 135

In the Alberta Court of Justice Citation: R v McNallie, 2023 ABCJ 135 Date: 20230615 Docket: 210850970P1 Registry: Calgary Between: His Majesty the King - and - Taylor Michelle McNallie Decision of the Honourable Justice P.B. Barley [ 1 ] The accused is charged that she: COUNT 1: On or about the 5 th day of August, 2021, at or near Calgary, Alberta, did unlawfully assault Daryl Meek, contrary to

section 266 of the Criminal Code of Canada . COUNT 2: On or about the 5 th day of August, 2021, at or near Calgary, Alberta, did wilfully render property of a value exceeding $5,000.00, to wit: camera belonging to Daryl Meek, dangerous, useless, inoperative or ineffective, thereby committing mischief, contrary to section 430(1) (

b) of the Criminal Code of Canada . COUNT 3: On or about the 5 th day of August, 2021, at or near Calgary, Alberta, did willfully render property of a value not exceeding $5,000.00, to wit: glasses belonging to Daryl Meek, dangerous, useless, inoperative or ineffective, thereby committing mischief, contrary to section 430(1) (

b) of the Criminal Code of Canada . COUNT 7: On or about the 12 th day of August, 2021, at or near Calgary, Alberta, did in committing an assault upon Elena Cunningham, carry, use or threaten to use a weapon, to wit: megaphone or an imitation thereof, contrary to

section 267 (

a) of the Criminal Code of Canada . [ 2 ] The trial was heard over three days at the end of March, 2023. Both complainants testified for the Crown as did two Sheriffs. The accused also testified. [ 3 ] An Agreed Statement of Facts was filed. Videos of both incidents taken by fixed security cameras were filed. The videos of the incident covered by counts 1 to 3 were of limited value because of the distance between the camera and the event. The video of the other incident was very helpful, the camera being much closer and having close up capabilities.

Background [4] A demonstration in support of Black Lives Matter (BLM) had been taking place at the Calgary Courts Centre, startingaround July 26, 2021. The accused was an organizer with BLM. Daryl Meek was a photographer who was photographing the demonstration from the corner directly north of the Courts Centre, across 6th Street. Elena Cunningham was a Sheriff working at theCourts Centre who was off duty on her lunch break, returning from a run. Meek Incident [5] Daryl Meek was a photographer who had been at Prince’s Island Park earlier on August 5, 2021, practicing taking photographs of random subjects.

On his way home, he passed the Calgary Courts Centre, walking along 6th Avenue S.W. He saw thedemonstration and decided to take photographs of that. The purpose seems to have been practicing taking rapid fire shots. He wassitting or crouched down out of the way of pedestrians with his back near a pillar. [6] He realized that some people across the street at the demonstration were noticing him and then going to speak to theaccused, who was directly across the street from him. Eventually the accused and others crossed over the street to confront him.

Questions were asked about his purpose in taking photographs and the answer did not satisfy them. He said that the accused squirtedsome water from a 500-milligram water bottle that landed on him and his equipment. He moved his arm to cover his camera and hishand caught on the strap of the accused’s dress. The accused then grabbed his glasses of his face and crumpled them. A companion ofthe accused then pushed him to the ground and the accused poured the remainder of the water on his equipment.

The entire incidentwith the water from squirting to pouring took less than five seconds. [7] The accused then left, and the others did soon after. The complainant found that his glasses were crumpled beyond repair. The camera, which was electronic, and the lens were ruined by the water. [8] The glasses had been purchased a few years earlier for approximately $1,000.00. The camera and lens had been purchasedsecond hand a year earlier for just under $1,000.00 and $800.00 respectively. [9] The accused testified and denied pouring water on the accused or his equipment.

She admitted squirting a small amount ofwater on him and the equipment. She denied touching his glasses. She testified that the glasses must have been damaged when Meekwas pushed down by another and that she saw someone else pour water on the equipment. [10] She said that she was concerned that the photographs were being taken to embarrass the participants and to help identifythem. She told him that he wasn’t able to take pictures there, and then asked him not to take pictures of children in the area of theprotest. He refused to stop, and she squirted a little bit of water on him from a few feet away.

She assumed that some landed on hisequipment. Meek then grabbed at her and ripped her dress, exposing her breast. Another demonstrator then pushed him to the ground. She returned the water bottle to the person who had given it to her when they were across the street, and tried to fix her dress. Theperson to whom she had returned the bottle dumped it on Meek a few minutes later. [11] The video of this incident is not clear enough to see when the water was poured, or by whom.

However, it shows that theaccused had herself picked up the water bottle from a table near the protest, taken off the cap and discarded the cap on the table. Shethen held the bottle behind a placard before she crossed the street towards Meek. Significantly, she never took a drink from it at anytime. [12] This last point is crucial, in my view, in determining the accused’s intent when she crossed the street with the water. Discarding the cap suggests that she intended to use up the water without needing to save it. She was not drinking it.

The only rationaleexplanation in my view is that she intended to use it in the confrontation with Meek. He describes it as being used to destroy his camera. This happened when the parties were within arms reach in the middle of the day, with no obstructions to his view. [13] The procedure for a trial judge when faced with conflicting testimony is fairly summarized by defence counsel in his brief: Where, as in the case at bar, the accuse testifies, the Court must address competing versions of events.

To assist in the properapplication of the burden of proof in such situations, the Supreme Court of Canada in the oft-repeated R v W (D) (SCC),[1991] 1 SCR 742 recommended that the issue be considered in three steps, as follows: 1. First, if you believe the evidence of the accused, obviously you must acquit. 2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. 3.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

In R v H(CW) (1991) (BC CA), 68 CCC 3d 146 BCCA the British Columbia Court of Appeal suggested an additionalinstruction be added to W(D)’s direction: I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after careful considerationof all the evidence you are unable to decide whom to believe, you must acquit.” [p. 155] [14] I also note the opinion of Mr. Justice Martin in R v Achuil 2019 ABCA 299 , 2019, ABCA299 Recently, in R v Ryon, 2019 ABCA 36, I discussed the three-prong test enunciated in W(D), and proposed it be clarified and expanded.

In the process I referred to the second prong of W(D) , the instruction that if the testimony of the accused is not believed but leaves the jury with a reasonable doubt, they must acquit. I suggested this was confusing in part because the concept of giving some weight to evidence that had already been rejected as unbelievable was a difficult concept for lay people to understand ( Ryon at paras 35-39 ).

I proposed instead that that the jury be told: In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such as an objective component discussed at para 31).

Subsequently it was noted that the phrase, “not confident they can accept the Crown’s version of events” is not a recognized legal standard and that it would be an error to tell the jury they should acquit on that basis ( R v Matthews , [2019] NJ No 39, at para 30 ).

On reflection, while the four-prong instruction in paragraph 51 of Ryon considered together should relieve the jury of any confusion on this point, it may be safer to revert to the wording proposed in R v Gray , 2012 ABCA 51 at para 42 , specifically: In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. (Again subject to defences with additional elements such as an objective component) [ 15 ] The totality of the evidence leaves me with no reasonable doubt that the accused’s intention was to use the water to prevent further picture taking, and that the evidence of Meek is the only logical and accurate description of events.

As such, I find the accused guilty of the lesser included offence of committing mischief of a value less than $5000. [ 16 ] Having found the accused to be untruthful in her account of how the water was dumped, I find that I can not rely upon her denial involving the glasses, which were damaged simultaneously with the camera. I do not believe it on this point. I am not left in reasonable doubt by it, and I am not left in reasonable doubt by the remaining evidence.

I accept the evidence of Meek that the accused snatched and crumpled his glasses, I therefore find her guilty of count 3. [ 17 ] I find the accused not guilty of count 1 – assaulting Meek. The Crown does not seek a conviction based on the squirting of water. The pouring of the water is the subject of another count. [ 18 ] The theory of the Crown is that the accused is responsible as a party to the assault on Meek by the other protestor.

This is based upon Section 21(2) of the Criminal Code of Canada , which provides: Section 21(2) states: Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [ 19 ] The Crown concedes that it must prove three things to rely upon this section: Pursuant to R v Cadeddu, 2013 ONCA 729 at para. 53 , to rely on s. 21(2) the Crown must prove three things: 1) That McNallie participated in the common unlawful purpose (harassment) 2) That the charged offence (assault) occurred in the course of carrying out the unlawful purpose (harassment); and 3) That McNallie knew or ought to have known that the charged offence (assault) was a probable consequence of the unlawful purpose (harassment). [ 20 ] The Crown’s theory is that the accused and others were acting in common to harass Meek.

I accept that. The assault occurred during the harassment. However, I can not accept that the actions of the protester in assaulting Meek was a probable consequence of the harassment. The assault happened only after the unexpected contact by Meek with the dress of the accused, which was not foreseeable or probable. The resulting assault can not be considered foreseeable or probable.

ASSAULT WITH A WEAPON [ 21 ] This incident was very well covered by CCTV footage which could be amplified for viewing and also downloaded as individual closeup photographs. [ 22 ] Elena Cunningham was an Alberta Sheriff stationed at the Calgary Courts Centre. On August 12, 2021, she went for a run on her lunch hour. She was wearing running gear with nothing to identify her as a Sheriff.

There is no evidence that the accused knew at any relevant time that Cunningham was a Sheriff. [ 23 ] When she returned from her run, she went to speak to two uniformed Sheriffs who were standing on the wide area between the front doors to the Courts Centre and the steps down to the sidewalk where the BLM demonstrators were. They were approached by the accused, who had a phone in her right hand that she was using to record the three Sheriffs and a megaphone that she was using to insult the Sheriffs. [ 24 ] The accused approached from Cunningham’s right side and to the front of the two uniformed Sheriffs.

She was holding her phone to record Cunningham’s face. Cunningham turned her face to the left. The accused then walked behind her and started recording

Cunningham’s face from the left side. Cunningham then turned her face back to face the other Sheriffs. The accused walked back to the right side of Cunningham, passing behind her and started filming her face from the right side. All filming was about an arm’s length from Cunningham and occurred within 10 seconds. [ 25 ] When the accused returned to Cunningham’s right side, Cunningham turned her head very briefly to her left but then turned it back. The accused was still filming her with her phone and Cunningham grabbed the phone with her right hand.

The accused reached for the phone with her right hand, but Cunningham blocked this with her left hand. The accused then brought her left hand, which held the megaphone, forward. The megaphone struck Cunningham in the head and then the other Sheriffs intervened along with a friend of the accused. The entire physical conflict lasted about 6 seconds. [ 26 ] Both uniformed Sheriffs testified. One described the accused as being polite whereas the other describes the accused as calling them Pigs and a waste of taxpayer’s money.

Both testified that Cunningham obviously did not want to be photographed and described her as initially directing the phone away. Sheriff Braich described the accused as being in Cunningham’s personal space, which given Covid, would be 2 metres. No one was masked. Neither perceived a physical risk until Cunningham reached for the phone. [ 27 ] Cunningham describes talking to both other Sheriffs when they were approached by the accused who was holding items in each hand at shoulder level. She describes the accused as being aggressive.

She described the accused as holding a phone and a speaker and using the phone to film her. She turned to her left thinking that she could create space from the accused and go through the building doors which I note would be about 25 feet to her left. [ 28 ] When Cunningham turned to her left, she found the accused there, screaming at her. She turned back to the right, only to find that the accuse was now there. She then thought that the accused would not let her walk away, so she decided to create a diversion. [ 29 ] She testified that she tried to push the phone away with her open hand using a block and a push.

She then felt impact on the left side of her face from the object in the accused’s left hand. At that point she closed her hand on the phone. Both she and the accused threw punches at each other and then the accused was arrested. Cunningham suffered a concussion with extensive bruising and a goose egg. [ 30 ] On cross-examination she testified that she was trying to leave but that the accused blocked her each time. She denied grabbing the phone initially, saying that she was trying to move it to create space to leave.

She said that she didn’t try to walk to her left to the doors when the accused returned to her right because she wasn’t sure if other protestors were there and that she was in a panic not understanding what was happening. [ 31 ] The accused testified that she approached the 3 persons wanting to record their faces because “they do it to us all the time” and because she thought that Cunningham was complaining about the protestors.

She said that Cunningham had given the protestors dirty looks as she walked by them. [ 32 ] She admitted using the megaphone to complain that they were Pigs and a waste of taxpayer’s dollars. She denied wanting to start a confrontation. [ 33 ] She testified that the phone was grabbed by Cunningham who then grabbed her wrist. She lunged for the phone with both hands and the left hand held a small megaphone. She said that she did not intend to hit Cunningham at all, let alone with the megaphone.

It happened as she was lunging to retrieve her phone. [ 34 ] She was 5’10” and 220 pounds at the time. [ 35 ] I have watched the video of the incident numerous times. There does not appear to be any reason why Cunningham could not have moved to the left toward the doors when the accused moved back to her right. It appears that the phone was grabbed before the accused hit Cunningham with the megaphone. [ 36 ] The video also shows that Cunningham was holding the phone in her right hand, which was by her waist, and that her left hand and the accused’s right hand were at their waist.

At that time, the accused’s left arm was straight down from the shoulder to her elbow which was bent at a 90 degree angle with the megaphone in the left hand roughly at the level of Cunningham’s shoulder. The accused then raised the megaphone to the level of her shoulder and extended her lower arm so that the megaphone was hitting Cunningham’s face.

The accused’s left hand is nowhere near her phone, which was now at Cunningham’s hip level. [ 37 ] As a result, I find that the striking of Cunningham’s face was a deliberate act by the accused. [ 38 ] I must now consider if the actions of the accused are excused by sections 34 and 35 of the Criminal Code , defence of person and defence of property. [ 39 ] These sections provide: 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.

No defence (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. [ 40 ] There is no doubt that Cunningham took the property of the accused and blocked her right hand when she tried to retrieve it. The accused can claim to be using force to protect herself from further assault and to be attempting to recover the property.

The only remaining question is ‘Was the act committed reasonable in the circumstances?’ [ 41 ] In relation to the factors set out in section 34(2), I note: a. The force by Cunningham was minor, only holding the accused’s right wrist. b. The availability of other means to respond to the grasping of the wrist will be discussed later. c. The persons role in the incident will be discussed later

d. Cunningham did not use a weapon. The accused did. e. The accused was larger than Cunningham but the latter was very fit and trained in self defence. f. There were no prior relationship between the parties. g. The nature and proportionality of the response will be discussed later. h. Cunningham’s actions were not lawful. [42] The accused tried to justify her actions before the grabbing of the phone by saying that Cunningham and the uniformedSheriffs had been pointing at them and laughing. The video shows none of that. She wanted to photograph the Sheriffs standing there,not doing anything.

She did not know that Cunningham was a Sheriff. Despite that she continued to film Cunningham from close rangeeven when Cunningham had moved her head twice to avoid being filmed. The accused had told Meek a week earlier that he was notallowed to film the protesters, but she felt entitled to film at close range, a person that she believes to be a civilian. That, plus thelanguage describing the Sheriffs as Pigs and a waste of taxpayer’s money seem calculated to raise tensions and aggravate Cunningham.

She should not have been surprised when she succeeded. [43] In the case of R v Khill, 2021 SCC 37, the Supreme Court of Canada considered the relevance of an accused’s conduct in anincident when claiming self defence. [44] Among the rulings were these: ...the nature and proportionality of the accused’s response to the use or threat of force is but one factor (s. 34(2)(

g) that inform, theoverall reasonableness of the accused’s actions in the circumstances (para. 42). ...the proportionality of the accused’s actions in response to a threat is always a discrete factor to be considered under s. 34(2)(g).

It maybe a deciding factor even where the accused was an innocent victim of circumstance. (para. 45 [45] The role of the conduct of the accused prior to the force being defended against is set out in paragraphs: [85] This broad temporal frame allows the trier of fact to consider the full context of the accused’s actions in a holistic manner.Parliament made a choice not to repeat the freeze-frame analysis encouraged by such concepts as provocation and unlawful assault.Rather than a forensic apportionment of blows, words or gestures delivered immediately preceding the violent confrontation, the“incident” extends to an ongoing event that takes place over minutes, hours or days.

Consistent with the new approach to self-defenceunder s. 34, judges and juries are no longer expected to engage in a step by step analysis of events, artificially compartmentalizing theactions and intentions of each party at discrete stages, in order to apply the appropriate framework to the facts (see, e.g., R. v. Paice,2005 SCC 22, [2005] 1 S.C.R. 339, at paras. 17-20). For example, where both parties are engaged in aggressive and confrontationalbehaviour, s. 34(2)(

c) does not demand a zero-sum finding of instigation, provocation, cause or consent (paras. 21-22). Parliament hasnow selected a single overarching standard to weigh the moral blameworthiness of the accused’s act in context: reasonableness. Thisreflects the complexity of human interaction and allows triers of fact to appropriately contextualize the actions of all parties involved,rather than artificially fragmenting the facts. [86] This

interpretation is consistent with the guidance on s. 34(2)(

c) in the Department of Justice’s Technical Guide, at p. 26: This factor in part serves to bring into play considerations surrounding the accused’s own role in instigating or escalating the incident.Under the old law, the distinction between

section 34 and 35 was based on the defender’s role in commencing the incident, creatinghigher thresholds for accessing the defence where the accused was the provoker of the incident, as opposed to an innocent victim. As thenew law contains only one defence that does not distinguish between conflicts commenced by the accused and those commenced by thevictim, this paragraph signals that, where the facts suggest the accused played a role in bringing the conflict about, that fact should betaken into account in deliberations about whether his or her ultimate response was reasonable in the circumstances. [Emphasis added.] Section 34(2)(

c) therefore draws attention to a key question: who bears what responsibility for how this happened? The extent to whichthe accused bears responsibility for the ultimate confrontation or is the author of their own misfortune may colour the assessment ofwhether the accused’s act was reasonable. For example, an accused’s reckless or negligent decisions preceding a violent encounter mayshed light on the ultimate reasonableness of their acts (H. Parent, Traité de droit criminel, t.

I, L’imputabilité et les moyens de défense(5th ed. 2019), at p. 778) [87] Parliament intended decision makers to turn their minds to causation when asking whether the accused played a “role” in theunfolding of events. The ultimate reasonableness of the act will be coloured by whether the accused caused or contributed to the verycircumstances they claim compelled them to respond. This is not the same as a simple “but for” causative test, as Mr. Khill suggests. Thesame framework is applied even if the accused initiated the assault or manufactured the crisis they sought to escape (Bengy, at paras. 45-48; R. v.

Borden, 2017 NSCA 45, 349 C.C.C. (3d) 162, at para. 101; R. v. Mateo-Asencio, 2018 ONSC 173, at paras. 172-73 ). [88] There are clear and convincing policy rationales for ensuring the accused’s role in bringing about the conflict is before the trier offact in determining whether the accused’s conduct should be sheltered from criminal liability.

I agree with Justice Paciocco that therationale underpinning the former law is still compelling: . . . accused persons should not be able to instigate an assault so that they can claim self-defence. . . . [T]hose who provoke an assault arecausally responsible in a real sense for the violence that ensues even if they did not intend to provoke an attack and . . . this shoulddiminish their right of response. (Paciocco (2014), at p. 290) 2021 SCC 37 But while those rationales are most obvious and pressing where the accused played a role as a provocateur or initial aggressor, they alsounderlie the need to consider other conduct that falls short of provocation and contributes to the development of the crisis.

[ 46 ] In the present case, the accused was behaving in a manner that seems calculated to inflame tensions. As indicated, she could not have been surprised after Cunningham reacted angrily. [ 47 ] The force used against the accused was minimal. The use of a megaphone strike to the head leading to a concussion was greatly in excess of what was needed to protect herself or recover the phone. If the accused had struck Cunningham with a bare fist, she might well be entitled to claim self defence. If she had grabbed at the phone to retrieve it, she could claim defence of property.

However, striking Cunningham in the face with a hard object with no attempt to use the left hand to take the phone back is not reasonable under sections 34 or 35 . [ 48 ] The decision to strike with a weapon instead of a bare hand was greatly disproportionate to the minor force faced by the accused. [ 49 ] As a result, I find that subsection 2 (b), (c), (d), and (

g) together disentitle the accused from relying upon

section 34 and subsection (

d) prevents her reliance on

section 35 . As a result, I find her guilty of count 7. Dated at the City of Calgary, Alberta this 15 th day of June, 2023 P.B. Barley A Justice of the Alberta Court of Justice Appearances: James Pickard for the Crown Chad Haggerty for the Defence