R v Nolan, 2023 ABCJ 238

In the Alberta Court of Justice Citation: R v Nolan, 2023 ABCJ 238 Date: 20231115 Docket: 220460042P1 Registry: Calgary Between: His Majesty the King - and - Ryan Wade Nolan Decision of the Honourable Justice L.W. Robertson Introduction [1] On March 8, 2023, Ryan Wade Nolan (the accused), pleaded guilty to one count of intentionally discharging a firearm whilebeing reckless as to the life and safety of another person, contrary to s 244.2(1)(

b) of the Criminal Code RSC 1985 c C-46 (the Code).The plea came after extensive discussions between counsel. An agreed statement of facts (ASF), was put before the court in written form.The ASF was amended during the plea and its content was confirmed by the accused and his counsel. The ASF and the representationsplaced on the record established that the accused discharged the firearm in the direction of the victim, Mr. Jason Hare wounding himseriously in the right leg. They also established that the accused spoke to Mr.

Hare in menacing terms immediately after the shooting. [2] Following the guilty plea, the court ordered a psychiatric pre-sentence report which included a risk assessment. Whendiscussing the offence with the forensic psychiatrist the accused denied elements of the ASF, especially the menacing nature of thestatements made by him to the victim. He also tried to characterize the incident as an accident. The accused made no attempt to formallywithdraw his plea.

The aggravating elements of the offence were the subject of a sentencing hearing under the procedure identified in R vGardiner, (SCC), 1982 Carswell Ont 90 (SCC). Legal Framework [3] The accused has been convicted, and is being sentenced, for one count of intentionally discharging a firearm contrary to s244.2(1)(

b) of the Code. That

section reads as follows:

244.2

(1) Every person commits an offence (

b) who intentionally discharges a firearm while being reckless as to the life or safety of another person. [ 4 ] The actus reus of the offence merely requires the discharge of a firearm. The mens rea requirement carries two components:

i) The intention to discharge a firearm, and ii) A simultaneous recklessness for the life or safety of another person. [ 5 ] The term “reckless” is not defined in the Code but has been the subject of much jurisprudence. It is distinguished from the term “intentional” through its diminished degree of moral culpability. I accept that the offence under s 244.2(1)(

b) carries a less serious culpability than the similar offence contained under s 244(1) of the Code which requires a specific “ intent to wound ”. “Reckless” is defined in the Canadian Oxford Dictionary as “... disregarding the consequences of danger ” ( Canadian Oxford Dictionary Second Edition, Oxford University Press, 2004).

The term was also described by McIntyre, J speaking for the Supreme Court of Canada, as having both a subjective and an objective element “ It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance ”. ( R v Sansregret , CarswellMan176 (SCC), at para 16). [ 6 ] I adopt those

definitions and focus my analysis on the subjective awareness of Mr. Nolan during his encounter with Mr. Hare. I must also examine on the degree to which he persisted in discharging the firearm despite the risks it posed to the life and safety of Mr. Hare in all the circumstances, both objectively, and as perceived by Mr. Nolan individually. I differentiate this approach from the duty to examine the more aggravating offence of deliberately intending to wound Mr. Hare by means of a firearm, had Mr.

Nolan been charged under s 244(1). [ 7 ] In regard to the Gardiner hearing, I acknowledge that the accused has a procedural right to dispute the aggravating facts alleged by the Crown. Where disputed these facts must be individually proven. The Crown has the burden of establishing the aggravating factors it wishes to rely on. The standard of proof remains that of proof beyond a reasonable doubt. Issues [ 8 ] There are two issues to be decided:

i) The circumstances involving the discharge of the firearm. Specifically, what led to the conflict between the accused and Mr. Hare and under what conditions was the firearm discharged. ii) The content of words spoken by the accused to Mr. Hare immediately following the wounding. Analysis [ 9 ] The accused and Mr. Hare each testified during the Gardiner hearing. I have the benefit of having assessed their credibility through their viva voce evidence and reviewing the written transcript of that procedure. I have also reviewed the exhibits tendered at the time the plea was entered and subsequently. These have included:

i) Exhibit S-1 , the ASF signed and filed by the accused and counsel on March 8, 2023. ii) Exhibit S-2, Photographs of the injuries to Mr. Hare’s right leg. iii) Exhibit S-3 , The Psychiatric Report of Dr. Magued dated June 23, 2023. iv) Exhibit S-4, Criminal Record of Mr. Hare, and,

v) Exhibit S-5, Photographs of the scene of the shooting, a rural farm in Rockyview County Alberta. [ 10 ] At the outset I identify one source of potential evidence that was not put before the court, that of the property owner, Mr. William Unsworth. The Court heard evidence Unsworth owned the farm where the incident occurred. Unsworth employed both the accused and Mr. Hare to work on the farm. Part of the dispute between the accused and Hare involved their relationship to their employment with Unsworth. Both men resided in separate rooms at the farmhouse property provided by Unsworth.

Each may have thought the other was lacking in skill or work ethic to complete the tasks assigned by the farm’s owner. It was clear that Unsworth was outside with both men and present for all of the relevant events. This included the period immediately before and following the shooting. Unsworth’s evidence may have assisted in resolving many of the disputed facts. No explanation as to Unsworth’s whereabouts was put before the Court. The Accused [ 11 ] I conclude I cannot accept the evidence of the accused on the two issues before the court. I reject his evidence on those points.

Nor does the evidence of the accused raise a reasonable doubt on those issues. Where the accused’s evidence conflicts with the ASF, the record of the guilty plea undertaken on March 8, 2023, and the evidence of Mr. Hare, I reject the accused’s evidence and prefer those other sources. I found the evidence of the accused to be contrived and focused on an attempt to minimize responsibility for his actions.

His evidence was internally inconsistent and defied common sense. It was also incompatible with the clear and methodical admissions placed on the record when the guilty plea was entered. My reasons for doing so follow. [ 12 ] To understand the accused’s evidence, it is necessary to first understand the context of his original guilty plea before me on March 8, 2023, and the admissions placed on the record verbally and in written form. Paragraph 3 of Exhibit S-1 details the comments made by the accused right after he shot Mr. Hare.

The paragraph, as amended reads as follows: 3. “After the Victim fell to the ground, the Accused approached him saying words to the effect of ‘you are not so tough now’ before retreating back inside his residence.” [ 13 ] The transcript of the proceeding reveals how that paragraph came to be amended. It is useful to set out the Court proceedings on that point in full, made in the presence of the accused. “ MR. HEPNER: So, my friend will read in paragraph 3 as amended, Sir. MS. CHAMBERS: Thank you, Sir.

What we are going to amend paragraph 3 to read after the victim fell to the ground, the accused approached him saying words to the effect of you are not so tough now before retreating back inside the residence. So, essentially we are deleting -- we are deleting the words pointing the gun directly at his face and then including words to the effect of after saying -- and we have amended the original. ” THE COURT: Okay. MS. CHAMBERS: Thank you, Sir. THE COURT: So, I think, Ms. Chambers, your signature is at the amendment and there is another signature at the amendment. Is that yours, Mr. Hepner? MR. HEPNER: Yes.

THE COURT: I think your client should sign that as well. MR. HEPNER: Okay. THE COURT: Does your client agree with this? MR. HEPNER: He does, yeah. THE COURT: So, the offending portions have been taken out and he now agrees with these facts. Is that correct, Mr. Nolan? THE ACCUSED: That is correct, Your Honour. THE COURT: Okay. I am going to have him sign the amendment with his initials. MR. HEPNER: Right at paragraph 3, he would just initial this. THE COURT: Right. Okay. I want to be clear, Mr. Nolan. THE ACCUSED: Yes.

THE COURT: Everything in this agreed statement of facts as it has now been amended is agreed to by you? This is what happened? THE ACCUSED: Yes, Your Honour. (Transcript, March 8, 2023 p 7, line 34-page 8, line 41) [ 14 ] The accused signed the amendment personally. I would describe the oral and written submissions regarding the facts, as well as the entire court proceedings as clear and methodical. Mr. Nolan was alert, attentive and represented by senior and experienced counsel. [ 15 ] The matter was then adjourned so that Exhibit S-3, the Psychiatric Report and Risk Assessment, could be prepared.

In discussing the offence with Dr. Magued the accused characterized the incident as an accident and revised the content of his words to the victim: “ Mr. Nolan stated, “It was an absolute accident, and I had no intention to shoot him”. He further stated, “I was in shock, and I said, ‘why do you always have to be the tough guy, Jason...you could have got killed. Mr. Nolan further stated, “The prosecutor said that I said to Jason, ‘You are not so tough now, and I’m going to kill you’...but what I said was ‘why do you always have to be the tough guy Jason, you could have got killed. ’” [ 16 ] To be clear Mr. Nolan’s

summary of the in-court submissions is inaccurate. It was never alleged in oral submissions or Exhibit S-1 that Mr. Nolan threated to kill Mr. Hare. [ 17 ] Mr. Nolan repeated the post-shooting dialogue in his viva voce testimony. He also downplayed his responsibility for the

events, describing everything as “accidental”. [ 18 ] During the Gardiner hearing the accused’s evidence focused on a narrative of fear and desperation. The accused testified that the night before the shooting he had heard Mr. Hare speaking about him in threatening terms. Mr. Nolan said he overheard a phone conversation that Mr. Hare was having with someone else. The accused said he occupied a room on a floor below that of Mr. Hare. He said the voice of Mr. Hare filtered through the farmhouse vent system so that the conversation was audible on his level. Mr. Nolan thought he heard Mr. Hare tell the recipient of the conversation that he would “ rip (Mr. Nolan’

s) skinny neck off ”. He also thought he heard Mr. Hare denigrate his work ethic around the farm. [ 19 ] The accused testified the conversation frightened him so much that he locked his doors and texted Mr. Unsworth to intervene in the dispute. He said he did not sleep well that night. [ 20 ] The following morning, the accused renewed his contact with Unsworth in an attempt to work the situation out. He described a conversation which he had with a person, which he thought was Mr. Unsworth, through his locked door. The accused was informed that it was best if he left. Mr. Nolan agreed that he would leave.

The accused never did positively identify the party he was speaking to. [ 21 ] Despite the tense situation the accused said he left the safety of his room and directly approached Unsworth outside to complain about Mr. Hare, specifically calling Mr. Hare “ dangerous and scary ”. The accused said that he told Unsworth that either Mr. Hare would need to leave, or he would leave himself. He said it was at this point that he encountered Mr. Hare who directly approached him in a threatening manner.

The accused testified that he felt very uncomfortable and retreated to his room to retrieve the 22-calibre rifle which was sitting loaded inside his doorway, as he thought it would “ control the situation ” (transcript, August 25, 2023 at p 61). The accused claimed that the gun was loaded and ready because he had planned to shoot gophers with his 6-year-old son who was staying overnight with him. [ 22 ] The accused claimed he went back outside and discharged the gun into the ground near Mr. Hare to prevent him from coming any closer to him. Despite this apparent warning shot the accused maintained that Mr.

Hare became even more aggressive. He said that Mr. Hare continued his charge towards him, angrily threatening him saying “... you better hope I don’t get that gun” (transcript, at p 63). This is when the accused fired a second “warning” shot at Mr. Hare, striking him in the right leg. Mr. Unsworth immediately fell to the ground. Despite the simultaneous actions of the discharge and Mr. Hare falling, the accused said he did not understand that Mr. Hare was hit by the second shot. He said he believed Mr. Hare had accidentally fallen while running down a hill towards him. He thought Mr.

Hare had rolled his ankle or suffered some other injury. When the accused ultimately understood that Mr. Hare had been struck by the second discharge, he said he felt immediate remorse. He told Mr. Hare “ You know this was an accident. You know that I didn’t mean to shoot you. Can you please say that ?” (transcript, August 25, 2023 at p 64). [ 23 ] The accused’s account is not credible on several points. First, there is the incongruity between his apparent fear of Mr. Hare and the actions that Mr. Nolan took on the day of the shooting. Mr.

Nolan asks the court to believe that he was so terrified that he locked his door and couldn’t sleep the night before. Yet he left his residence and marched outside, unarmed, to loudly complain about Mr. Hare. He did so in an environment where he must have known his comments would be overheard by the very person he was so afraid of. In so doing he left the safety of his room, the weapon he freely employed at Mr. Hare later, the ready access to his vehicle and all other means of assistance to cope with the situation. [ 24 ] Mr. Nolan’s conversation, with who he presumed was Mr.

Unsworth, occurred through the locked door of his residence. This conversation had already delivered the news to Mr. Nolan that he should leave. Yet he nevertheless left the safety of his room to discuss the very same subject with Mr. Unsworth. Further, Mr. Nolan saw Mr. Hare coming towards him in a threatening manner. Instead of retreating to his room and locking the door, which he clearly had time to do, he retrieved a ready loaded weapon and went back outside to directly engage Mr. Hare. [ 25 ] Mr. Nolan’s account of how the gun was discharged, and the ensuing actions of Mr. Hare, is patently unbelievable.

It defies common sense that Mr. Hare would charge angrily at Mr. Nolan, having observed that the accused held a firearm pointed in his direction. I far prefer the evidence of Mr. Hare that he “... stopped in (his) tracks ” once he perceived the weapon (transcript, August 25, 2023 at p 9). It is still more unbelievable that Mr. Hare would continue to charge towards his certain doom once the gun had actually been fired at him, narrowly missing. No one would do this. I reject Mr. Nolan’s account of this and the words he said Mr.

Hare threatened him with while running towards a man that had already demonstrated his willingness to use a loaded firearm. Mr. Hare [ 26 ] I prefer the evidence of Mr. Hare on all these points. Mr. Hare was not a perfect witness. He was clearly angered by the shooting and the effects it had on his health. These included a loss of sensation in two of the toes of his right foot and other parts of that appendage. It also included a lengthy recovery. He confirmed that he can still walk without too much discomfort.

The photos in exhibit S-2 reveal a gaping wound and very serious swelling in the area just below his right knee. This was not a minor injury. [ 27 ] After his evidence concluded, Mr. Hare returned to the courtroom to observe the evidence of Mr. Nolan, who testified directly after him. Mr. Hare inappropriately interrupted the proceedings and had to be removed from the courtroom as Mr. Nolan tried to give his evidence. Mr. Hare also appeared combative while testifying, especially while being cross-examined by counsel for Mr. Nolan. The questions put to him by Mr.

Hepner were fair, reasonable, and properly probing of his evidence. I would describe Mr. Hare’s demeanor as occasionally difficult. He was challenging of many questions put to him. He may have even been rude at some points. However, I would not describe his evidence as evasive or vague. Ultimately, he fulfilled his duties as a witness and answered all questions put to him. [ 28 ] Mr. Hare’s account of the events was direct, logical, and reasonable in all the circumstances. He testified that he did indeed have a heated conversation the night before while on the phone. He accepted that Mr.

Nolan may have overheard this. He absolutely denied speaking about the accused or threatening him. I accept that evidence.

[ 29 ] The following morning, Mr. Hare said he was outside and attending to some of the duties that Mr. Unsworth had assigned him. He was in the process of hooking up a small tractor when the accused came outside, clearly in a very agitated state. He said the accused had the firearm with him already. He described the gun as a 22 calibre Winchester long-barrel firearm in a military green colour. He also said that there was a scope attached to the firearm. He said that the gun was held at Mr. Nolan’s side and that Mr. Nolan pointed it at him but did not look through the scope to aim the gun. Mr.

Hare agreed that he spoke briefly to Mr. Nolan. To paraphrase Hare’s evidence, he challenged Mr. Nolan to put the gun away and to go back inside. He said that it was not appropriate to include the weapon in such a trivial dispute. He allowed that he may have taken a step towards Mr. Nolan, but not aggressively so. I believe his evidence on all these points. [ 30 ] Mr. Hare said that the accused was about 15 metres away from him when the accused fired the first shot (transcript, at pp 29- 31). Mr. Hare said that the shot hit the ground a few feet to the right of him. As previously mentioned, Mr.

Hare testified that he immediately stopped after the first shot. Mr. Hare described that the second shot, which hit him, came almost immediately after the first: Q: And in those five or ten seconds did you continue to walk towards him? A: After he—once he shot the ground? No, I stopped dead in my tracks. Somebody just shot at me. Q: Did you say anything at that point? A: I don’t think after the first shot I had a chance to say anything. The second shot came all of a sudden and my leg buckled . (transcript, August 25, 2023 at p 38, line 1-7). [ 31 ] Mr.

Hare said the accused approached him after the second discharge while still holding the firearm. When asked if he remembered the words the accused spoke to him right after the second shot Mr. Hare said: A: “Yeah I do, he said something in the lines of, ‘ oh, you’re not so f’ng tough now, how about I f’ng kill you ’ ” (transcript, August 25, 2023 at p 39) [ 32 ] Mr. Hare agreed that after saying those words the accused softened his tone to a more conciliatory and remorseful one. He said Mr. Nolan went inside the house to get towels for him. When he came out Mr. Nolan attempted to apologize for his actions. Mr.

Hare said the accused also tried to convince him to tell others that the incident had been accidental. Mr. Hare declined to do this. [ 33 ] I would summarize Mr. Hare’s evidence as credible and reasonable. While it is true that he was upset by the shooting incident, and its effects on him, he did not appear to embellish his evidence. It was self-evident that he was still angry at Mr. Nolan and the effects of the entire incident over a year later. This is understandable. Much of what Mr. Hare testified to was logical and accorded with common sense and human experience.

It also accords with the physical evidence concerning the layout of the property and the photographs of the scene. Mr. Hare’s evidence is much more credible than Mr. Nolan’s, especially concerning the effect that the first shot had on Mr. Hare’s subsequent actions. I believe Mr. Hare when he said he stopped advancing on the accused after the first shot, that he effectively froze in his tracks. This is what almost anyone would do. [ 34 ] Mr. Hare’s account matches the agreed statement of fact, entered as exhibit S-1, which the accused agreed to verbally and in writing when the plea was entered.

Of course, I decline to consider the additional threat to kill Mr. Hare, which was not part of the facts entered during the guilty plea, but I accept the remainder of Mr. Hare’s evidence. I especially accept Mr. Hare’s account of how the shots occurred, how far away the accused was when the gun was discharged, the sequence and timing of the two shots, and that Mr. Hare immediately fell to the ground following being struck by the second discharge. Where Mr. Hare’s evidence differs from that of the accused on these points I reject the accused’s evidence and prefer Mr. Hare’s account. I also accept that Mr.

Nolan taunted Mr. Hare right after the shooting, exactly as Mr. Nolan agreed to in his original guilty plea, saying “...words to the effect of ‘you’re not so tough now ’” (exhibit S-1, at para 3). Conclusion [ 35 ] For the reasons previously discussed I accept the original facts put before the court on March 8, 2023 when the plea was entered before me. Where Mr. Nolan’s evidence differs from those facts, and the evidence of Mr. Hare I reject that evidence and prefer the original source information for the plea (the ASF) and the evidence of Mr. Hare.

Dated at the City of Calgary, Alberta this 15 th day of November, 2023.

L.W. Robertson A Justice of the Alberta Court of Justice Appearances: L. Chambers for the Crown A. Hepner KC for the Accused