R v Bonick, 2023 ABCJ 146

In the Alberta Court of Justice Citation: R v Bonick, 2023 ABCJ 146 Date: 20230705 Docket: 230254534P1 Registry: Vermilion Between: His Majesty the King Crown - and - Dyson Bonick Accused Decision of the Honourable Justice R.C. Shaigec Introduction [ 1 ] Dyson Bonick is charged with break and enter, theft, and possession of stolen property. He entered a locked compound to steal tires that he then intended to sell, trying to raise money to pay-off members of a criminal gang who had threatened him. [ 2 ] Was Dyson Bonick acting under duress?

Facts [ 3 ] The Crown’s case proceeded by Agreed Statement of Fact. [ 4 ] The accused was the only person to testify. I accept his evidence. [ 5 ] In November of 2022, Dyson Bonick was staying with an acquaintance who had ties to a criminal street gang from Onion Lake. When a gun and money went missing from this home, Mr. Bonick was wrongly accused of stealing the same. The next morning, he woke up to four gang members standing over him with guns pointed at his head. [ 6 ] He was tied up and beaten. $1500 cash was demanded. Hours later he was released to retrieve the money.

Instead, he ran to a friend’s home, who then rushed him to the hospital.

[7] Mr. Bonick suffered serious injuries. He remained in hospital for several days. [8] When the RCMP came to see him, he cooperated. He provided a statement, “named names,” and is now scheduled to appear inCourt to testify about these events. [9] In the months that followed, Mr. Bonick struggled to get his life back on track. Eventually, he found employment and a newplace to live in Lloydminster. [10] Then on March 16, 2023, as he was walking through town, a truck pulled up. Members of the same gang that had assaulted himin November were inside.

They pointed guns and forced him into the vehicle. [11] He was told to find a way to pay the $1500 that he owed, or they would kill him. [12] Mr. Bonick has not always been law-abiding. He has sold stolen property in the past, and his immediate reaction to beingthreatened was to hatch a plan to steal and then sell some tires. He knew where he could get the tires, and to whom he could likely sellthem. [13] He explained this scheme to his captors. They agreed. But one of the armed assailants demanded to go with him. The twotraveled to the accused’s workplace where they stole a truck.

They then drove to Fountain Tire. While his accomplice stayed in the stolenvehicle, Mr. Bonick jumped the fence, entered the compound, and started gathering tires. But the owner of the tire shop wasunexpectedly present. He yelled at the accused and called the police. [14] They fled. Some blocks later the gang member exited the vehicle and told the accused to leave town. Mr. Bonick drove away,stopping eventually at an unoccupied farm outside of Lloydminster. He abandoned the vehicle and ran. Hours later he was apprehendedby police. Test [15] Duress is an excuse-based defence.

What would “otherwise be criminal conduct” is excused if the acts were committed inresponse to a threat of death or bodily harm: R v Hibbert, (SCC), [1995] 2 SCR 973 at para 47 (Hibbert).

Courts haveread elements into (and out of) s 17 of the Criminal Code, making the statutory and common law versions of the defence largely thesame. [16] The elements of the defence are: (1) a threat of death or serious bodily harm; (2) reasonable belief that the threat will be carriedout; (3) no safe avenue of escape; (4) a close temporal connection; (5) proportionality between the harm threatened and the crimecommitted; and (6) that the accused is not a party to a conspiracy or association whereby he knew that coercion to commit the offencewas a possible result: R v Ryan 2013 SCC 3 at para 81 (Ryan). [17] The air of reality test is met.

Accordingly, the Crown must disprove at least one of the above elements beyond a reasonabledoubt: R v Ruzic, 2001 SCC 24 at para 100 (Ruzic). [18] Given that I accept the accused’s evidence, counsel agree that only one issue remains: has the Crown disproven that DysonBonick had no safe avenue of escape? No Safe Avenue of Escape [19] The Crown argues that duress is negatived because it was Mr. Bonick’s idea to steal tires, and he was alone while inside thefenced compound, and then ultimately ran from police. [20] I disagree. [21] First, necessity and duress are not the same.

While necessity applies to “a victim of circumstance,” duress “finds its origin inman’s wrongful acts”: Ruzic at para 64. Serving as a “concession to human frailty ...the law [of duress] is designed for the common man,not for a community of saints or heroes”: Ruzic at para 40. The fact that Dyson Bonick’s moral compass pointed him directly tocommitting property crimes in response to threats, does not disentitle him to the protection of our law.

He was threatened, he perceivedthe threat to be real, it was closely connected in time, and the crimes committed were much less serious than the harm he sought to avoid.The defence of duress is available, even though the accused chose what crime to commit. [22] Second, a modified objective test is employed. Mr. Bonick’s “personal circumstances ... are ... important” in measuring thereasonable person: Hibbert at para 62. My assessment must therefore include both “the circumstances of the act,” and the accused’s“personal capacity to avoid it”: Ryan at para 40.

It is difficult to conceptualize what a reasonable person’s expected resistance would beto committing property crime in the face of a pointed gun. Then add that Mr. Bonick was previously confined, beaten, and hospitalizedby the same threatening group. [23] Third, the elements of close temporal connection and no safe avenue of escape are “linked”: Ryan at para 48. The facts are clear.The threat was ongoing. The link is strong. [24] Fourth, the law does not require that the accused seek police protection before the defence of duress can succeed: Ruzic at para98.

And running from police is not inconsistent with having committing crimes in response to threats of bodily harm or death.

Conclusion [ 25 ] Dyson Bonick is not guilty. Heard on the 24 th day of May, 2023. Dated at the City of Lloydminster, Alberta this 5 th day of July, 2023. R.C. Shaigec A Justice of the Alberta Court of Justice Appearances: E. Mosley for the Crown D. Smith for the Accused