Docket: CACR2352 Her Majesty the Queen Appellant - v. -, 2014 SKCA 103

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 103 Date: 2014-10-01 Between: Docket: CACR2352 Her Majesty the Queen Appellant - and - Brett Maxie Respondent Coram: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Counsel: W. Dean Sinclair for the appellant Brett Maxie appearing on his own behalf Appeal: From: 2013 SKQB 451 Heard: June 24, 2014 Disposition: Dismissed

Written Reasons: October 1, 2014 By: The Honourable Madam Justice Ryan-Froslie In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Ryan-Froslie J.A. I. Introduction [ 1 ] On October 24, 2010, Brett Maxie struck Elaine Maxay with his vehicle injuring her. As a result, Mr. Maxie was charged with (

i) impaired driving causing bodily harm, contrary to s. 255(2) of the Criminal Code , (ii) driving over .08 causing bodily harm, contrary to s. 255(2.1) of the Criminal Code , (iii) dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code , and (iv) leaving the scene of an accident, contrary to s. 252(1) of the Criminal Code . [ 2 ] Mr. Maxie was acquitted of all charges except leaving the scene of an accident. In rendering his decision, the trial judge found Mr.

Maxie’s use of alcohol did not contribute to the accident, other than on a “ de minimis ” basis, and that the defence of necessity applied. [ 3 ] The Crown appeals Mr. Maxie’s acquittals arguing the trial judge erred in law when determining Mr. Maxie’s “impairment” was not a contributing cause to the accident and in applying the defence of necessity. [ 4 ] For the reasons set out herein the Crown’s appeal is dismissed. II.

Background [ 5 ] In the early morning hours of October 24, 2010, Brett Maxie, along with his common law spouse Donyrah, his brother Barrett and an acquaintance, Richard Moore, arrived at the home of Serena Maxay which was located on the White Bear First Nation. Serena, her boyfriend Joey Desjarlais, her sister Shauna Maxay, Dustin Pewean and Scott Lonechild were at the residence, which was located only a few feet from the home of Serena’s grandmother, Loretta Maxay. The people at Serena’s residence were drinking and socializing. At one point Joey Desjarlais brought out a rifle to show it off.

As time wore on, the males present became argumentative and confrontational. Eventually Joey Desjarlais and Serena retired to the bedroom. Serena’s grandmother, concerned about the “commotion” at her granddaughter’s home, telephoned her daughter, Elaine Maxay, who came over. [ 6 ] Around 8:00 a.m. Elaine Maxay walked over to Serena’s home to break up the party. When she arrived, Donyrah was sitting in the driver’s seat of Brett Maxie’s truck and, according to Elaine’s testimony, Barrett was sitting in the back seat. Brett Maxie was arguing with Dustin Pewean on the north side of the vehicle which was facing west.

Elaine Maxay told both Brett and Barrett Maxie to go home and then started walking towards her mother’s house. She heard Brett Maxie tell Donyrah to “get the F off the wheel”. Elaine Maxay testified she glanced back and saw Brett Maxie in the driver’s seat of the truck. Almost immediately, she heard the spinning of tires and then she felt the truck hit her, throwing her into the air. Her left leg was injured as a result of the accident. While it was not fractured, it was badly bruised and there was a hole in the back of her leg.

Elaine Maxay spent two days in hospital and was later readmitted because the wound became infected. She has since fully recovered from her injuries. [ 7 ] Donyrah was not drinking at Serena’s house as she intended to drive when her group left the party. Donyrah testified she wanted to go home. She advised both Brett and Barrett Maxie that she was leaving and then got into the driver’s seat of Brett Maxie’s truck. According to Donyrah, Brett and Barrett were still “shoving” the other males.

Suddenly, Barrett jumped into the passenger’s seat beside her and Brett came running around the front of the truck to the driver’s side. According to Donyrah, Brett shoved her over so that she was sitting in the middle. He said “they’ve got a gun. They’re coming with a gun”. Brett then “took off quickly”. Donyrah heard a gunshot. The truck hit something, but Donyrah did not see what it struck.

Donyrah testified that about five seconds after hearing the first gunshot, she heard a second one. [ 8 ] According to Brett Maxie an argument arose between his brother Barrett and Scott Lonechild when they were inside Serena’s residence. Brett testified he stood up for his brother, following which Dustin Pewean began arguing with Brett. No one could remember what the argument was about. Elaine Maxay arrived at the residence and told them to go home following which the argument moved outside. To that point the argument was not physical other than some “chest bumps” and pushing.

Brett Maxie testified Dustin Pewean and Scott Lonechild “were trying to get their fight out of us”. They were “feeling manly” because “we were on the run” and “they figured they had us beat”. Brett Maxie indicated that at that point he turned back to fight them. That is when he heard Dustin Pewean say he was “going to get his gun”. He saw Dustin run towards the house. When Brett Maxie heard the word “gun” he moved quickly to the driver’s side of his truck. He testified he did so because he did not know where the gun was and did not know Dustin Pewean that well.

Brett Maxie opened the driver’s door and without telling Donyrah, what was going on, he told her to push over. Brett Maxie testified he got behind the wheel and started the truck (the keys were in the ignition). He heard a gunshot. He stepped on the accelerator and was looking in the rear view mirror to see where the shooter was, while driving straight ahead over the lawn. Almost immediately he felt a bump and heard a “bumph” sound as if something had hit the side of the vehicle. He did not stop, but continued straight ahead to the road. He pulled over about a kilometre away when he “saw a cop car coming”.

At that point Barrett took over driving and they went to

the home of Brett and Barrett’s parents. Brett Maxie did not contact the police with respect to the accident. When the police arrived at thehome of Brett’s parents some time later, a breathalyzer demand was made on Brett who was then taken to the police station. Thebreathalyzer test resulted in readings of .19 and .18, respectively. III. The Trial Judge’s Decision [9] The trial judge found the Crown had proven beyond a reasonable doubt that Brett Maxie was driving the truck that struck ElaineMaxay injuring her.

He also found that at the time Brett Maxie’s ability to operate the motor vehicle was impaired by alcohol and that hewas driving with a blood alcohol level over .08. The trial judge however, was not satisfied beyond a reasonable doubt, that Brett Maxie’simpairment by alcohol was a contributing cause of the accident “beyond the de minimis range”.

He therefore found the Crown had failedto prove the offences of impaired driving causing bodily harm and driving over .08 causing bodily harm. [10] With respect to the charge of dangerous driving causing bodily harm, the trial judge concluded the Crown had established beyonda reasonable doubt that Brett Maxie operated his vehicle in a manner dangerous to the public. He also concluded that Brett Maxie hadleft the scene of the accident, contrary to s. 252(1) of the Criminal Code.

The trial judge then went on to find there was either “actual orthreatened use of a gun” during the incident and that Brett Maxie believed he was in imminent peril with no reasonable legal alternativebut to commit the offences for which he was charged. The trial judge accepted the defence of necessity applied in the circumstances andacquitted Brett Maxie of all charges except leaving the scene of the accident. Brett Maxie was convicted of that charge on the basis thatwhen he had the opportunity to do so, he did not contact the police. IV. Issues [11] The issues raised by the Crown are as follows: (

i) Did the trial judge err in law by applying the wrong test in determining whether there was a causal connection between BrettMaxie’s impairment and the accident which injured Elaine Maxay? (ii) Did the trial judge err in law by finding the defence of necessity applied? V. Jurisdictions and Standard of Review [12] Subsection 676(1)(

a) of the Criminal Code provides for Crown appeals from verdicts of acquittal on a question of law alone. [13] In R v Graveline, 2006 SCC 16, [2006] 1 SCR 609, the Supreme Court of Canada at para. 14 commented on the application of thatprovision as follows: It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purelyhypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown.

It is theduty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonablybe thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is notrequired, however, to persuade us that the verdict would necessarily have been different. [Emphasis added] [14] To be successful on an acquittal appeal, the Crown must not only establish an error of law, but that that error (or errors) mightreasonably be thought to have had a material bearing on the acquittal.

While this onus is a heavy one, it does not require the Crown toprove the outcome of the trial would have been different but for the error(

s) of law. [15] The standard of review applicable to questions of law is one of correctness. VI. Analysis 1.

Did the trial judge err in law by applying the wrong test in determining whether there was a causal connection betweenBrett Maxie’s impairment and the accident? [16] The Crown argues the trial judge applied the incorrect standard for causation when assessing whether Brett Maxie’s impairmentand/or the fact his blood alcohol content was over the legal limit of .08 were a cause of the accident which resulted in Elaine Maxaybeing injured. [17] In his analysis, the trial judge relied on Justice Zarzeczny’s description of the applicable standard of causation as set out in R vHorton, 2003 SKQB 510 at para 47, [2004] 10 WWR 762: If the accused is found guilty of impaired driving the Crown must prove, beyond a reasonable doubt, that the impaired driving caused thedeath of Floyd Favel.

An accused may be convicted of impaired operation causing death where the impaired driving ability as evidencedby driving conduct, or failure to react or to make a certain judgment constitutes an contributing cause of a victim's death beyond the deminimis range. (R. v. Pinske (1988), (BC CA), 30 B.C.L.R. (2d) 114 (B.C.C.A.) affd (SCC), [1989] 2S.C.R. 979, Smithers v. R., (SCC), [1978] 1 S.C.R. 506). Impairment is not a contributing causative factor in death unlessit first leads to faulty driving which, in turn, causes death.

The driving must be such that, by omission or commission, there was fault onthe defendant's part. The faulty conduct must not be conduct that would have been engaged in by a reasonable person in all of thecircumstances. It must also be a contributing cause, beyond de minimis of a victim's death. (R. v. Andrews (1994), (BC CA), 91 C.C.C. (3d) 97 (B.C.C.A.)).

The fact a collision occurs combined with breathalyzer readings in excess of the legal limit,without evidence of anything unusual in the operation of the defendant's vehicle prior to the collision, is not sufficient to establish thatthe defendant's impairment was at least a contributing cause outside the de minimis range (R. v. Fisher (1992), (BCCA), 13 C.R. (4th) 222 (B.C.C.A.)). [18] The Crown argues the correct standard was set out by this Court in R v E.(A.L.), 2009 SKCA 65 at para 45, i.e.:

What must be proved beyond a reasonable doubt is that alcohol or drug-related impairment in the ability to drive, whether slight or great, contributed to the fatal accident in more than a trivial or insignificant way. If a reasonable doubt is raised on the issue, the result will be an acquittal. [ 19 ] I can see no difference between the standard applied by the trial judge in this case and that set out by this Court in R v E.(A.L.) .

The trial judge considered whether Brett Maxie’s impairment, or the fact he had a blood alcohol content greater than .08, was a contributing factor in him striking Elaine Maxay with his truck. The trial judge found it was no more than a “trivial or insignificant cause” of the accident. I note that the length of time Brett Maxie was operating the vehicle prior to the accident was very short – a matter of seconds. Brett did no more than accelerate before hitting Elaine Maxay. His vehicle only travelled a few feet.

In the circumstances, the trial judge’s findings of fact with respect to causation are supported by the evidence and are not unreasonable. He applied the correct standard in determining causation and thus, did not err in law. [ 20 ] The Crown also alleges the trial judge incorrectly applied a “reasonable driver” test to determine causation. This is based on a misreading of paras. 63 and 68 of the trial judgment.

Those paragraphs read as follows: [63] The evidence in this case established that the vehicle operated by Brett Maxie struck Elaine Maxay after having travelled only a few feet down the gravelled driveway from Serena Maxay’s house. I am satisfied that Brett Maxie had no intention whatsoever to hit or injure his aunt. I am also satisfied that in the short distance covered, Brett Maxie was distracted by what was occurring behind the vehicle and that he was looking in the rear-view mirror as the truck moved forward.

He also made the decision to drive across Loretta Maxay’s lawn to get away from there because the road he intended to take to get out of there was straight ahead and this was the shortest route. In the circumstances, I am not able to find that looking in the rear-view mirror or the decision to drive straight ahead was unreasonable or as a result of alcohol affecting his judgment. I am satisfied that the collision with Elaine Maxay was accidental.

Brett Maxie did not see her as he drove away. . . . [68] For substantially the same reasons given in regard to the charge of impaired driving causing bodily harm, I find that I am not able to conclude beyond a reasonable doubt that Brett Maxie’s blood-alcohol level exceeding the legal limit was a more than a trivial or insignificant cause of the accident resulting in Elaine Maxay’s bodily harm. As I mentioned previously, there were other events occurring at the same time which distracted Brett Maxie and contributed to the collision with Elaine Maxay.

Brett Maxie could be convicted of the lesser and included offence of driving while over .08 contrary to s. 253(1) (

b) and s. 255(1) (

b) of the Criminal Code . Again, that will depend on whether the proffered defence of necessity applies or not. [ 21 ] While the trial judge used the word “unreasonable” when assessing Brett Maxie’s driving, he also considered whether he was satisfied beyond a reasonable doubt that Brett Maxie’s impairment contributed to the collision with Elaine Maxay. He found a reasonable doubt existed with respect to that and thus, concluded the charges of impaired driving causing bodily harm and driving over .08 causing bodily harm, had not been proven. In the circumstances, I cannot find the trial judge erred in law. 2.

Did the trial judge err in law in finding the defence of necessity applied? [ 22 ] There are two aspects to the Crown’s argument with respect to this issue. The first focuses on factual findings which the Crown views as being “legally flawed”. The second relates to the trial judge’s alleged failure to use the correct legal tests in determining whether the defence of necessity applied. (a) “Factual Flaws” [ 23 ] It is the Crown’s position that the trial judge made a number of evidentiary errors, which amounted to errors of law, and which “tainted” his analysis of the defence of necessity.

Those errors include the trial judge’s reliance on inadmissible evidence, the making of inferences that were not supported by the evidence, and a failure to apply the rule in Browne v Dunn (1893), 6 R 67 (HL) to the defence’s failure to cross-examine Crown witnesses on the presence and/or use of a gun during the incident in question. [ 24 ] In R v J.M.H. , 2011 SCC 45 , [2011] 3 SCR 197, the Supreme Court of Canada had an opportunity to consider an appeal from an acquittal where the Crown’s argument was based on the trial judge’s treatment of the evidence.

Cromwell J., speaking for a unanimous court, outlined at paras. 25-32 a non-exhaustive list of situations where a trial judge’s treatment of the evidence raises a question of law, namely: (

i) where a finding of fact is unsupported by the evidence; (ii) where the legal effect of findings of fact, or of undisputed facts, raises a question of law; (iii) where the trial judge’s assessment of the evidence is based on a wrong legal principle; and (iv) where a trial judge fails to consider all the evidence relating to the ultimate question of guilt or innocence. In this case, in order to succeed, the “factual flaws” identified by the Crown must fall within these situations or some other situation identifiable as raising a question of law.

(

i) Inadmissible Evidence [ 25 ] The trial judge found as a fact “there was either actual or threatened use of a gun” during the events giving rise to the charges. His reasons for making that finding of fact are set out at paras. 79, 80 and 81 of the judgment which read as follows: [79] Upon review of the evidence presented in this case, I have come to the conclusion that a firearm was involved in the incident which occurred at Serena Maxay’s house the morning of October 24, 2010.

First there is the evidence of Elaine Maxay who testified that her mother, Loretta Maxay, called her before 6:00 a.m. that day, complaining of a party at Serena Maxay’s house, and telling her that she thought she had heard a gunshot. There is also the evidence of Marilyn Maxie who stated that she heard a gunshot, probably from a .22 calibre rifle, sometime before 8:00 a.m. and that she got up, went to the window, and heard more gunshots, probably two, and people yelling. She said the shots came from the direction of Loretta Maxay’s house.

Donyrah Pelletier testified that when Brett Maxie pushed her out of the driver’s seat he said: “They’ve got a gun,” and then she heard a gunshot, and then five seconds later another gunshot. Brett Maxie testified that earlier during the party at Serena Maxay’s house, Joey Desjarlais had brought out a gun to show it off. Brett Maxie has also testified that during the scuffling that was occurring outside of Serena Maxay’s house, he heard Dustin Pewean ask Scott Lonechild where the gun was and saying that he was going to go get it.

He also testified that right after he started the truck he heard a gunshot and then another as he drove away. [80] I also find some corroboration in regard to the threat, at the very least, to get a gun in the fact that the scuffling outside near the truck between Barrett Maxie and Scott Lonechild and between Brett Maxie and Dustin Pewean came to an end so abruptly. It appears that before mention of the gun, the combatants were evenly matched with the fighting being limited to “chest bumps” both inside and outside the house.

The decision to quickly get into the truck and get out of there is consistent with the threat to escalate the confrontation with use of weapons. [81] In addition to the evidence of the presence and possible use of a gun, I find that the Crown could have produced other witnesses to the confrontation, such as Joey Desjarlais, Dustin Pewean, and Scott Lonechild to admit or deny that a gun was involved in the confrontation. Cpl. Guider was aware that a gun might have been involved because Brett Maxie mentioned the fact during the drive to the detachment for the breath tests.

I am inclined to draw an adverse inference against the Crown regarding the involvement of a gun because of the failure to fully investigate this issue. I am left to believe that a gun was in fact present and that Dustin Pewean had threatened to retrieve the gun, thus precipitating a quick end to the confrontation that had been going on for a considerable period of time. [ 26 ] The Crown argues the trial judge erred in law by relying on Loretta Maxay’s out-of-court statement to her daughter, Elaine Maxay, that she thought she heard a gunshot around 6:00 a.m. from the area of Serena’s home.

The Crown asserts that testimony was hearsay and therefore inadmissible as proof that a gun was present during the incident. [ 27 ] Loretta Maxay passed away prior to the trial of this matter. By agreement, her evidence, given at the preliminary inquiry, was admitted by reading it into the transcript. Loretta Maxay did not testify at the preliminary inquiry that she heard a gunshot. The only evidence of that was Elaine Maxay’s testimony of what her mother told her. That evidence is clearly hearsay. The trial judge relied on it to support his finding that a gun was present during the incident.

Without considering how Loretta’s demise may have affected the admissibility of the statement, I find the use of the hearsay statement for that purpose was an error in law. I cannot, however, find that error would have materially affected the trial judge’s decision to acquit Brett Maxie.

The trial judge’s conclusion that a gun was present was supported by other uncontradicted evidence, including the testimony of Marilyn Maxie who lived just down the hill from Serena Maxay and the testimony of Brett Maxie and his common law spouse, Donyrah. [ 28 ] The Crown also argues the trial judge erred in relying on Brett Maxie’s statement to Cpl. Guider that he “heard gunshots” during the incident to support his conclusion a gun was involved.

It is the Crown’s position that was a prior consistent statement and was thus inadmissible. [ 29 ] The trial judge’s comments with respect to Brett Maxie’s statement to Cpl. Guider are found at para. 81 of the judgment. I do not read that paragraph as indicating the trial judge was relying on Brett Maxie’s statement to support his conclusion that a gun was involved in the events which occurred on October 24, 2010. Rather, the trial judge raised the statement because it should have alerted the Crown to the possible presence of a gun.

This was important to the trial judge as he used that to make an adverse inference against the Crown based on its failure to call Joey Desjarlais, Dustin Pewean and Scott Lonechild as witnesses at the trial. [ 30 ] In the circumstances, I find that the Crown’s complaint with respect to the trial judge’s use of Brett Maxie’s prior consistent statement is without merit. (ii) Adverse Inferences [ 31 ] The trial judge in this case drew an adverse inference against the Crown that a gun was involved and that Dustin Pewean had threatened to retrieve the gun.

This adverse inference was based first on the R.C.M.P.’s failure to “fully investigate” the presence and possible use of a gun during the events in issue and second, on the Crown’s failure to call Joey Desjarlais, Dustin Pewean and Scott Lonechild as witnesses to admit or deny that a gun was involved in the confrontation. [ 32 ] It is the Crown’s position that there was “no evidence” to support the trial judge’s adverse inference and that it was founded on “pure speculation”.

The Crown relied on this Court’s decision in R v B.(T.J.) , 2009 SKCA 134 , 343 Sask R 284. [ 33 ] While the Crown appears to lump both situations giving rise to the adverse inference together, I find that those situations are quite distinct, and that the principles relating to each are different. The first situation, i.e. , that a proper investigation had not been done, is an inference the trial judge could only draw from the evidence presented at trial. On the other hand, the inference based on the Crown’s failure to call witnesses is related to the Crown’s conduct of the prosecution.

[34] In R v B.(T.J.), this Court had an opportunity to consider a situation where the trial judge drew inferences from the evidence. Inthat case, this Court set aside the acquittal holding the trial judge’s “inferences” were not supported by the evidence and that in fact therewas evidence to support inferences to the contrary. [35] A trial judge may make “reasonable inferences” based on the evidence presented.

In order to draw such inferences, a trial judgemust ensure there is an evidentiary basis for them, and that the inferences are reasonable in the circumstances. [36] In the case at hand, the trial judge “inferred” a full investigation was not conducted into the presence and/or use of a gun duringthe incident in question. In doing so, the trial judge did not cite any evidence to support his inference other than the fact Brett Maxie toldCpl. Guider he heard gunshots. A review of the transcript does not reveal any evidence upon which the trial judge could conclude a “fullinvestigation” had not been conducted.

I cannot find that inference was supported by the evidence, nor can I find that it was reasonable inthe circumstances. This constituted an error in law. [37] The trial judge also made an “adverse inference” based on the Crown’s failure to call Joey Desjarlais, Dustin Pewean and ScottLonechild as witnesses. This type of adverse inference has been the subject of considerable judicial comment, including by the SupremeCourt of Canada in R v Cook, (SCC), [1997] 1 SCR 1113; R v Jolivet, 2000 SCC 29, [2000] 1 SCR 751 and by thisCourt in R v Horkoff, 2010 SKCA 79, 359 Sask R 114.

It has also been dealt with by courts of appeal across the country. [38] A number of principles emerge from the reading of those authorities including, but not limited to, the following: (

i) Generally, witnesses should be called by the party that wants their evidence heard. (See: R v Cook at paras. 27 and 28; R v Jolivet atpara. 15 and R v Lapensee, 2009 ONCA 646 at para 41, 247 CCC (3d) 21); (ii) The Crown has a broad discretion in prosecuting offences which includes a right to determine what evidence it will call.

As such theCrown does not have a duty to call all witnesses who have relevant testimony. (See: R v Cook at paras. 19 and 24; R v Jolivet at para. 16;and R v Horkoff at para. 20.) (iii) In certain circumstances an adverse inference may be drawn against a party for failing to call a witness. (See: R v Jolivet at para.24; R v Horkoff at para. 20; and R v Lapensee at para. 44.) (iv) Adverse inferences should only be drawn where the witness has relevant information pertaining to a material issue.

A witness neednot be called if his or her evidence is collateral, peripheral, cumulative or inferior to other evidence called. (See: R v C.R.S. (1998), (NS CA), 133 CCC (3d) 559 (NSCA) at para 62; R v Lapensee at para. 43.) (

v) There is a stronger basis for drawing an adverse inference when one party has special access to the witness. (See: R v Jolivet at para.27; R v Lapensee at para. 44; and R v Rudge, 2011 ONCA 791 at para 78, 283 CCC (3d) 3); (vi) An adverse inference should only be drawn where there is no plausible explanation for the failure to call the witness. (See: R vCook at para. 51; R v Jolivet at para. 26; R v Rudge at para. 78 and R v Lapensee at para. 42.) (vii) Attention must be paid to the nature of the adverse inference to be drawn.

Failure to call a witness may, depending on thecircumstances, amount to an implied admission that their evidence would be contrary to the party’s case or at least not support it.However, “in many cases, the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily thatit would have been adverse.” (See: R v Jolivet at para. 28; and R v Rudge at para. 78.) [39] In this case the adverse inference drawn by the trial judge from the Crown’s failure to call Joey Desjarlais, Dustin Pewean andScott Lonechild as witnesses was that a gun was in fact present during the incident, that Dustin Pewean had threatened to retrieve thegun and this precipitated “a quick end to the confrontation” (See: para. 81 of the judgment). [40] The defence did not raise during the trial or in its oral submissions, the fact that the Crown had failed to call Joey Desjarlais, DustinPewean or Scott Lonechild as witnesses, nor did it request the trial judge to draw an adverse inference from the Crown’s failure to do so.The trial judge himself did not raise with Crown counsel the fact that he was contemplating drawing an adverse inference.

As such, theCrown had no opportunity to explain why those witnesses were not called.

Such an explanation is a key consideration in determiningwhether an adverse inference should be drawn from a failure to call a witness and if so, the nature of the adverse inference to be drawn.Thus, in this case the trial judge erred in law by drawing an adverse inference against the Crown without affording Crown counsel anopportunity to explain why Joey Desjarlais, Dustin Pewean and Scott Lonechild had not been called as witnesses. [41] Despite the errors in law with respect to the drawing of the adverse inference, I am satisfied those errors would not have materiallyaffected the result of the trial.

As indicated earlier in these reasons, the trial judge had other uncontroverted evidence before him tosupport his finding that a gun was present and either used or threatened to be used during the events in issue. This included not only theevidence of Brett Maxie and his common law spouse, Donyrah, but the evidence of a third party, Marlene Maxay. The trial judge alsoconcluded this finding was corroborated by the abruptness with which the confrontation itself ended.

The evidence supporting the trialjudge’s factual findings were both compelling and significant. (iii) The Rule in Browne v Dunn [42] Finally, the Crown argues the trial judge erred by not applying the rule in Browne v Dunn given the defence’s failure to cross-examine the Crown’s witnesses with respect to the existence and/or use of a gun. [43] The rule in Browne v Dunn was succinctly stated by the Ontario Court of Appeal in R v Henderson (1999), (ONCA), 44 OR (3d) 628 at para 18 as follows: This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictoryevidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the

witness-box. [44] In R v Lyttle, 2004 SCC 5, [2004] 1 SCR 193, the Supreme Court of Canada confirmed the rule in Browne v Dunn applies in thecontext of a criminal trial. Whether the rule is employed in any given case lies within the discretion of the trial judge (See: Wapass v TheQueen, 2014 SKCA 76 at para 23; R v Dexter 2013 ONCA 744, 313 OAC 226). [45] I have concerns with respect to the applicability of the rule in Browne v Dunn to the circumstances of this case.

The testimony ofdefence witnesses that a gun was present and/or discharged during the events in issue did not contradict any testimony given by theCrown witnesses. The Crown could have called rebuttal evidence on this point but chose not to. [46] The rule in Browne v Dunn does not give rise to a question of law alone for the purposes of an acquittal appeal pursuant to s.676(1)(a).

The rule in Browne v Dunn relates to credibility and in particular what weight a trier of fact should give to testimony whichcontradicts the evidence of another witness when that witness is not given an opportunity in cross-examination to address thecontradiction.

Credibility is a question of fact and as the Manitoba Court of Appeal pointed out in R v R.G.B., 2012 MBCA 5 at paras 23and 67, 287 CCC (3d) 396, neither credibility findings nor the weighing of evidence generally raise questions of law. [47] Finally, the Crown did not raise the rule in Browne v Dunn either during the trial or during its oral submissions. Its failure to do sodeprived the trial judge of the opportunity to exercise his discretion. In the circumstances I cannot find the trial judge erred in failing toapply the rule in this case. (

b) The Defence of Necessity [48] In R v Perka, (SCC), [1984] 2 SCR 232, the Supreme Court of Canada recognized the defence of necessity existsat common law. That case set out three elements that must be proven to establish the defence, namely: (

i) there must be a situation of imminent peril (para. 39); (ii) the accused must have no reasonable legal alternative to the course of action taken by him or her (para. 41); and (iii) the harm inflicted must be proportionate to the harm avoided (para. 43). [49] In R v Latimer, 2001 SCC 1, [2001] 1 SCR 3, the Supreme Court of Canada held the test to be applied in establishing the first twoelements of the defence is a modified objective one.

That test was described in Latimer at para. 33 as follows: … While an accused's perceptions of the surrounding facts may be highly relevant in determining whether his conduct should beexcused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestlybelieve, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open.

There must bea reasonable basis for the accused's beliefs and actions, but it would be proper to take into account circumstances that legitimately affectthe accused person's ability to evaluate his situation. … [Emphasis added] [50] The test to be applied to establish the third element, i.e. proportionality, is a purely objective one. [51] In this case, the Crown argues the trial judge’s conclusion that Brett Maxie was in a situation of imminent peril was not supportedby the facts as found by him. In particular, the Crown argues the trial judge failed to identify the harm or imminent peril Brett Maxie wasfacing.

I cannot agree with the Crown’s position. [52] In Latimer, the Supreme Court of Canada did not hold that the first element of the defence must be established to a legal certainty.All it required is that an accused honestly believe he faces a situation of imminent peril, and that that belief is objectively reasonable(See: Latimer at para. 33). [53] In this case, the trial judge found a gun was present at the scene and that there was a threatened or actual use of that gun. He alsofound that Mr.

Maxie honestly “feared for his life” and that the threatened or actual use of a gun provided an objective, reasonable basisfor that fear. The Crown did not provide any evidence to contradict that finding.

I am satisfied the evidence adduced at trial and the factsfound by the trial judge support the first element of the defence, being the existence of “imminent peril”. [54] The Crown contends Brett Maxie was an uninvited guest at Serena Maxay’s home and was asked on numerous occasions to leave.It is the Crown’s position that Brett Maxie’s failure to leave created the situation of imminent peril in which he ultimately found himself,and as such, he cannot rely on the existence of that self-created peril to excuse his actions. It also argues that Brett Maxie should haveforeseen a gun being involved.

It relies on the case of R v V.(C.W.), 2004 ABCA 208, 186 CCC (3d) 243. [55] I begin by noting this argument was not raised by the Crown at trial and as such, it was not considered by the trial judge. That said,the case of R v V.(C.W.) is readily distinguishable from the case at hand. [56] In R v V.(C.W.), the accused, who was not invited, went to a party to retrieve a stolen keg of beer. He was assaulted while sitting inhis vehicle surrounded by a mob of people. Fearing for his safety, he reversed his vehicle injuring two individuals. At trial he wasconvicted of dangerous driving.

The trial judge refused to apply the defence of necessity because the accused knew his presence mightcreate “an explosive situation”. [57] The Alberta Court of Appeal overturned the conviction and ordered a new trial. Berger J.A., speaking for a majority of the Court,held that in determining whether the defence of necessity applied, the trial judge was entitled to take into account the accused’s role increating the “perilous” situation.

In doing so, however, the trial judge failed to apply the test articulated by Dickson J. in R v Perka,where he stated at p. 256: In my view the better approach to the relationship of fault to the availability of necessity as a defence is based once again on the

question of whether the actions sought to be excused were truly "involuntary". If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency. His response was in that sense not "involuntary".

"Contributory fault" of this nature, but only of this nature, is a relevant consideration to the availability of the defence. [Emphasis added] [ 58 ] Unlike the situation in R v V.(C.W. ), in this case, there was evidence that Brett Maxie was invited to Serena Maxay’s home. The evidence is contradictory with respect to whether Serena Maxay asked Brett Maxie to leave. It is clear, however, that Elaine Maxay did so during the sequence of events leading up to the accident.

This request to leave was contemporaneous with the perilous situation that arose. [ 59 ] Finally, I cannot find Brett Maxie should have foreseen a gun would be used or threatened to be used in what was essentially a physical altercation among family members. Crown counsel, in his submissions at trial, admitted as much at p. 332 of the transcript where he stated: So first of all, would it be reasonable for Mr. Maxie to believe that we would go from this sort of grandstanding to suddenly resorting to lethal force?

I’d suggest not. [ 60 ] In the circumstances, I cannot find the trial judge erred in law in finding the first element of the defence of necessity had been established. [ 61 ] The Crown argued the trial judge applied the wrong test in establishing the second element of the defence, that is, that there was no reasonable legal alternative to the course of action taken by Brett Maxie. In this regard, the Crown takes the position that the trial judge’s findings run afoul of the Supreme Court of Canada’s decision in R v Perka .

At p. 262 of that case the Supreme Court of Canada stated the issue is not whether the accused acted reasonably, but whether he had no other reasonable response to the peril he faced. The Crown argues the trial judge never addressed this issue in his reasons. [ 62 ] The Supreme Court of Canada in R v Latimer , which was rendered after its decision in R v Perka , held that the second element of the defence of necessity is to be evaluated on a modified objective standard.

In other words, Brett Maxie must honestly believe there was no reasonable legal alternative to the course of action he took, and that belief must be objectively reasonable. [ 63 ] The trial judge found as a fact that the shortest route available to Brett Maxie was to drive directly across the lawn (para. 63 of the judgment). To back up would have been to move towards the shooter. The trial judge found Brett Maxie deliberately drove across the lawn in order to save time (para. 72 of the judgment).

He found Brett Maxie took the wheel because his girlfriend “was not familiar with the roads in the White Bear First Nation and that escaping by vehicle was the sensible thing to do” (para. 86 of the judgment).

All of these findings support the fact that Brett Maxie believed the only reasonable course of action available to him was to take the wheel and drive straight ahead. [ 64 ] The Crown’s theory is that there was a reasonable legal alternative course of action to that taken by Brett Maxie, namely, that he should have gotten into the passenger seat of the truck and told Donyrah to drive away immediately at high speed. [ 65 ] The trial judge addressed this possible legal alternative at para. 86 of the judgment.

There, he found Brett Maxie’s decision to drive was a reasonable one because Donyrah was not familiar with the roads. The Crown argues this finding was not supported by the evidence. I cannot agree. [ 66 ] Donyrah testified she had never been to that part of the Reserve. While she drove to Serena’s house, she did so by following Serena’s vehicle. At pp. 140-141 of the trial transcript she testified as follows: Q And did you drive over there with her [Serena Maxie]? A Yes. Like, we followed each other. Q Okay. And who followed who on the way over there? A I followed her. Q Okay. Had you been out there before?

A No. Q You hadn’t been out there? A Not on that part of the Reserve. Q Okay. Where had you been? A Like, on the Reserve? Q Yeah. A To the Band Office, and I don’t know, just driving, wandering. Q And so had you ever been to Serena’s place or that area of the reserve? A No.

Q You hadn’t been there? A No. This testimony by Donyrah was not contradicted and clearly supported the trial judge’s finding that she was unfamiliar with the roads. [ 67 ] Donyrah testified at p. 152 of the transcript that she initially protested when Brett Maxie pushed her aside, because she knew he was intoxicated. Thus there is an evidentiary basis from which to infer she would also have questioned him if he told her to quickly drive straight ahead over the lawn. The trial judge accepted that Brett Maxie honestly feared for his life because there were people behind the truck with a gun.

He also found the shortest escape route was straight ahead. Given these findings, the possibility of a delay being caused by Brett Maxie having to explain the situation to Donyrah and tell her what to do could reasonably have resulted in someone being shot. This renders the legal alternative suggested by the Crown unreasonable in the circumstances perceived by Brett Maxie and evaluated on an objectively reasonable basis.

This was what the trial judge concluded at para. 88 of the judgment. [ 68 ] Once Brett Maxie established an air of reality to the defence of necessity, the Crown bore the burden of proving a reasonable legal alternative was available (See: Primus v R , 2010 QCCA 1541 at para 84 ). The Crown called no evidence on this point. The accident occurred as Brett Maxie was accelerating. His vehicle travelled only a few feet.

While the trial judge’s reasons could have been better articulated, I conclude he applied the correct legal test when finding the second element of the defence of necessity had been proven. [ 69 ] The Crown argued that if Brett Maxie was not in a situation of imminent peril, then the third element of the defence of necessity, that is that the harm done be less than the harm avoided, had not been established. Having found the trial judge did not err in law in finding Brett Maxie was in a situation of imminent peril, the Crown’s argument with respect to this point must fail.

On a purely objective basis, the harm avoided, that is someone being shot and possibly killed, was greater than the actual harm inflicted being the injury to Elaine Maxay’s left leg. As such, based on both the evidence adduced and the facts found by the trial judge, the third element of the defence of necessity was also proven. VII. Conclusion [ 70 ] I find the trial judge did not err in law in concluding there was no causal connection between Brett Maxie’s impairment and the accident.

With respect to the defence of necessity, while the trial judge erred in law in drawing the adverse inference he did, given the other uncontroverted evidence which supported his finding that a gun was present during the events in question, I cannot find those errors would materially have affected the outcome of the trial. Finally, in the circumstances of this case, I cannot find the trial judge erred in law in his application of the defence of necessity. [ 71 ] The Crown’s appeal is dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 1 st day of October, A.D. 2014. “Ryan-Froslie J.A.” _____________________ Ryan-Froslie J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Caldwell J.A.” Caldwell J.A.