The Defence Toolkit – November 14, 2020

This week’s top three summaries: R v Yong, 2020 ABQB 676: #delay in access to #counsel, R v Mason, 2020 MBQB 151: self #defence, and R v Harvey, 2020 ABPC 212: #refusal intent.

R v Yong, 2020 ABQB 676

[November 11, 2020] Charter s.10(b) - Delay in Access to Counsel due to Ongoing Investigation [Madam Justice D.J. Kiss]

AUTHOR’S NOTE: Delay in access to counsel continues to occur whenever police think it might possibly have an impact on their ongoing case.  Mostly this occurs in the context of waiting for search warrant execution. Police are typically acting on the basis of speculation in these circumstances and Crowns continue to defend these breaches without any evidence of actual risk or even an example of a past problem traceable to a call to counsel. More and more this appears to be a situation of police simply holding that the Constitutional right to counsel is simply not as important as the hypothetical risk of loss of evidence to their investigations. In this author's opinion judicial hesitation to visit repercussions upon baseless withholding of the right will continue to fuel calculated violations of Charter rights in the future. Worse yet, this concept risks watering down the right to counsel on a going forward basis as new excuses are devised to limit access. 

Overview

[4] The issue now before me is whether Mr. Yong’s s 10(b) Charter rights were breached. Mr. Yong alleges that his right to retain and instruct counsel without delay was breached when he was denied access to a telephone for 1 hour 27 minutes from the time of his arrest.

Facts

[14] In August, 2017, an investigation of Mr. Yong was initiated by the EDGE unit after receiving information from a Confidential Informant (“CI”) that Mr. Yong was trafficking cocaine and fentanyl and was using a black Ford F150 to do so.

[16] Surveillance of Mr. Yong continued over a period of six months (August 9, 2017 February 9, 2018). During this time, Mr. Yong was observed engaging in activities which the police believed were consistent with drug related activities. Prior to the issuance of the Tracking Warrant on December 18, 2017, there were three occasions on which Mr. Yong was observed conducting suspected drug transactions from the Ford F150, or engaging in activity consistent with drug trafficking while operating the Ford F150.

[25] Det. Korobanik stopped his vehicle beside Det. Kemp’s. Mr. Yong was in the driver’s seat of the Ford F150 with his hands in the air. Det. Kemp informed Mr. Yong he was a police officer and that he was being arrested. Det Korobanik asked Mr. Yong to exit his vehicle and then he conducted a quick pat down search. Mr. Yong was then placed in the back of Det. Korobanik’s vehicle quickly, as it was very cold outside.

[31] Det. Korobanik arrived at the downtown police station with Mr. Yong at 6:00 pm. Mr. Yong was searched again and placed in a holding cell by 6:10 pm. Det. Korobanik advised Mr. Yong that he would give him access to a telephone as soon as he could. Det. Korobanik delayed providing access because he was concerned that Mr. Yong might arrange for the destruction of evidence at his residence before a search warrant could be obtained and executed, and he was concerned about officer safety in the course of that search.

[32] After Mr. Yong’s arrest and after both the Ford F150 and the Dodge Journey were secured, surveillance was established at 8519 Ellis Link around 5:30 pm by members of the Edge Team. The police began watching for any signs of movement or activity inside the residence and for any vehicles coming or going from the home. The police were also in the process of obtaining a s 11 CDSA warrant to search the Ford F150, the Ellis Link residence and the residence at 13755 – 130 Ave NW.

[33] At 6:44 pm, Det. Korobanik was updated by the surveillance team and advised that they had not seen any evidence to suggest that anyone was in the residence at Ellis Link, nor had there been anyone coming or going from the residence. Further, there was now a uniformed police officer in a marked patrol car in the area.

[34] At that point, Det. Korobanik determined that his concerns with respect to officer safety and with the potential for the destruction of evidence at the Ellis Link residence had been addressed sufficiently that he felt it was an appropriate time to allow Mr. Yong access to a telephone.

[35] At 6:44 pm, Det. Korobanik removed Mr. Yong from his holding cell and provided him with access to a telephone.

The s.10(b) Charter Right to Counsel

[40] Section 10(b) imposes the following duties on police when they arrest or detain someone:

• To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
• if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
• to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger): R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173 at 192.

[41] The first duty is therefore an “informational duty”, while the last two are “implementational” duties that are triggered if the detained person wants to contact counsel: R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460 at para 38.

[43] In Suberu, at para 41, the Supreme Court clarified that the phrase “without delay” in s 10(b) must be interpreted as “immediately”. This is because the concerns regarding compelled self-incrimination and the interference with liberty that s 10(b) seeks to address are present as soon as detention is effected. The duty therefore to inform a detained person of his or her right to counsel arises immediately upon arrest or detention, and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel: Taylor at para 24.

[44] The Crown has the burden of establishing that a detainee who has invoked his or her right to counsel was provided with a reasonable opportunity to exercise that right: R v Luong, 2000 ABCA 301 at para 12.  In other words, the burden is on the Crown to show that any delay was reasonable in the circumstances. This is a factual inquiry: Taylor at para 24.

• Police must provide access to counsel at the earliest “practical” opportunity.  Immediacy does not mean instantaneous: R v Nelson, 2010 ABCA 349 at para 17.  If the police assert there were barriers to access, those barriers must be proven, not assumed: Taylor at para 32-33.
• The extraordinary or exigent circumstance justification under 10(b) is reserved for rare situations in which police have reasonable grounds to suspect that delay is (i) necessary to prevent imminent bodily harm or death to any person; and (ii) to believe that evidence is present and that the delay is required to prevent the imminent loss or imminent destruction of evidence: R v Tieu, 2016 ABQB 344 at para 62.
• These exceptional circumstances which justify the suspension of the right to counsel signify emergency or peril and they do not include tactical advantage or investigative convenience.  They include the prevention of imminent harm to police or other persons. They include the preservation of material items from imminent loss. And they include the necessity to protect the integrity of a police investigation in progress if there is a real and present danger that the operation would be frustrated or compromised: R v Archambault, 2010 QCCQ 4710 at para 19, citing R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, and R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980.
• Put another way, police are entitled to get a situation “under control” before providing an accused person the opportunity to contact counsel in certain circumstances.  Typically, these have involved cases where the police have an ongoing investigation, involving high risk, volatile situations where the police have specific, identifiable reasons for concerns about the potential for violence that would put the public or officers at risk (i.e. firearms) or a risk that evidence may disappear or be destroyed: R v Patterson, 2006 BCCA 24 at para 40.
• Even where these exceptional circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: R v Rover, 2018 ONCA 745 at para 27.
• The police must actually have turned their mind to the specific circumstances of the case and be able to articulate reasonable grounds to justify a delay in allowing an accused to speak to counsel:  Rover at para 33.
• A decision to delay access must not just have been the result of the implementation of an inflexible police practice or policy: R v Russell, 2020 ABCA 90 at para 45.

Analysis

[60] I begin by finding that the full 1 hr. 27 minutes from arrest until access to a telephone is not the correct period for s 10(b) analysis.

[61] I do not see how it would have been practical, or even possible, in the circumstances, for Det. Korobanik to have provided Mr. Yong with access to a telephone prior to 6:10 pm. The evidence of both Det. Kemp and Det. Korobanik was that it was a very cold evening. Det. Korobanik therefore conducted only a quick pat down search in the alley, handcuffed Mr. Yong and transferred him from the Ford F150 to his vehicle quickly. They departed for the police station shortly thereafter, after Det. Korobanik gave some further instructions to Det. Kemp and checked in on the status of the other vehicle that had been intercepted, the Dodge Journey. The drive to the station took approximately 30 minutes.

[63] After arriving at the police station, I find that it was also reasonable and prudent for Det. Korobanik to conduct another pat down and search of Mr. Yong. Det. Korobanik’s evidence was that the pat down that had been completed in the field had necessarily been completed quickly, given the frigid weather. A further, and more thorough search, upon arriving at the police station would seem warranted. This search was completed, and Mr. Yong was placed in the holding cell, at 6:10 pm.

[65] The real issue is whether it was reasonable in the circumstances for Mr. Yong to be denied access to a telephone for a further 34 minutes, from 6:10 pm to 6:44 pm.

[66] Det. Korobanik testified that there were two primary reasons why he did not provide Mr. Yong with access to a telephone immediately upon his arrival at the police station. First, he was aware that a warrant was being sought to search the residence at Ellis Link. This residence had been identified during surveillance as a potential stash house and it was also believed that this had become Mr. Yong’s primary residence by the time of his arrest. Det. Korobanik indicated he was concerned that Mr. Yong might contact someone at the residence and that evidence would be destroyed before the warrant could be executed. Det. Korobanik stated that Mr. Christopher Lee, who had been seen previously at this residence, was someone he had specifically in mind.

[67] Second, Det. Korobanik indicated that he also had concerns about officer safety. He had been made aware of the fact that a firearm had been found in Mr. Yong’s vehicle. He was aware that a tactical team was eventually going to be utilized to access the residence. Det. Korobanik did not want anyone who might be in the residence alerted in advance. He also only had his EDGE team members, in plain clothes and unmarked vehicles, in place at the residence at that point. He testified that, other than their handguns and possibly a flashlight, these officers would not have had on their belts or had any other tools available to them.

[68] Det. Korobanik stated that the situation had evolved by 6:44 pm. There had been ongoing surveillance of the Ellis Link residence for over 1 hour by that time. He was notified by the surveillance team that they had not observed any lights on in the residence and that there had been no signs of movement in the residence, or vehicles coming or going from the home. Det. Korobanik had also arranged for a uniformed officer in a marked patrol car to be at the scene and had confirmation that the officer was now present.

[69] At this point, Det. Korobanik indicated that he felt he had the resources in place to more safely intercept anyone who might show up at the residence, to prevent them from going in and potentially destroying evidence. Further, he stated that at this point he was satisfied that there was no strong indication of anyone currently being in the residence. Det. Korobanik testified that he balanced this new information with his need to get Mr. Yong access to a phone as quickly as possible and decided this was an appropriate time to do so.

[71] At the time of Mr. Yong’s arrest, a significant amount (a kilo) of what was suspected to be cocaine and a loaded firearm were found in his vehicle. He had a previous conviction for possession of cocaine for the purpose of trafficking and a lifetime firearm prohibition. Mr. Yong had not been the target of a 6 month EDGE investigation because they were concerned he was a low level dial-a-dope drug dealer. Rather, the police suspected Mr. Yong of being seriously involved in trafficking cocaine and fentanyl. The Ellis Link residence had been identified by police, over the course of several months of surveillance, initially as a suspected stash house used by Mr. Yong, and after January 26, 2018, as likely being Mr. Yong’s primary residence. Det. Korobanik’s belief that there would be drugs found in the residence was more of a reasonable assumption than “pure speculation” by this point.

[74] There is no evidence to suggest that Det. Korobanik’s decision to delay Mr. Yong’s access to a telephone was indicative of a general, inflexible police practice as was the situation in Rover and also a concern in Russell.  The fact that Det. Korobanik did not delay Mr. Yong’s access to counsel until the search warrant had been obtained further supports this conclusion.

[75] Nor is there any evidence of bad faith on the part of Det. Korobanik, or of any “willful or reckless disregard” for Mr. Yong’s Charter rights: R v Tran, 2019 ABQB 284 at para 80.  Det. Korobanik did not try to elicit any information from Mr. Yong.  Det. Korobanik was clearly well aware of his obligation to minimize any delay in granting Mr. Yong access to counsel.

[76] I am mindful of the comment made by our Court of Appeal in Russell (at para 18) that “police often operate in dynamic and volatile situations, where decisions must be made without the opportunity to consider the nuances of Charter values”.

[77] However, I am troubled by the fact that there is no explanation as to why Mr. Yong was not permitted access to counsel at 6:10 pm, prior to be putting in the holding cell. It is true that Det. Korobanik was waiting for the obtaining and execution of the search warrant. However, by that point, concerns about officer safety and potential destruction of evidence should have been allayed. By that point, the surveillance team had been watching the Ellis Link residence for 40 minutes already and would have been able to advise Det. Korobanik that they had seen no signs of movement or of anyone coming or going from the home.  Also, it is possible that the uniformed police officer in the marked patrol car may have arrived by then as well. There is no evidence before the Court as to the exact time that officer arrived. Therefore, even if I were to accept that Det. Korobanik’s expressed concerns regarding officer safety and the risk of destruction of evidence were reasonable at the time of Mr. Yong’s arrest, I have no way of determining if that remained the case at 6:10 pm, when Mr. Yong had arrived at the police station.

[78] The facts that would support delaying Mr. Yong’s right to access counsel immediately in this case are far less persuasive than those in the cases of Strachan, Learning or Russell. Here, the police had no information regarding the potential for additional firearms being located at the Ellis Link residence other than the fact that, at the time of Mr. Yong’s arrest, the police had found a loaded 9 mm handgun in his vehicle along with ammunition for another caliber of handgun.  Although this was clearly cause for concern, the police had no specific evidence which would tie the potential for firearms to the Ellis Link residence.  As well, the only person that they had observed at the Ellis Link residence was Mr. Lee and they had no evidence which tied him to any drug related activity.  Further, the police had no specific reason to believe that Mr. Lee, or anyone else for that matter, would be at the Ellis Link residence at that time.

[79] Det. Korobanik, as the officer in charge of this investigation, was the person who initially decided, at the time of Mr. Yong’s arrest at 5:17 pm, to deny him immediate access to counsel for the reasons previously outlined. It was therefore incumbent on him to also take reasonable steps to determine when the circumstances that justified the delay had been resolved so as to minimize this delay. I am unable to conclude, on the evidence before me, that Det. Korobanik took those reasonable steps, or in fact any steps, to minimize the delay in Mr. Yong accessing counsel, between 6:10 pm and 6:44 pm.

Conclusion

[80] I therefore conclude that the Crown has not met its burden of establishing that the delay of a further 34 minutes (from 6:10 pm to 6:44 pm) before Mr. Yong was allowed to access a telephone to contact counsel was reasonable in the specific circumstances of this case. As a result, I find that Mr. Yong’s s 10(b) Charter rights were infringed.

R v Mason, 2020 MBQB 151

[October 27, 2020] Self Defence - Battered Spouse Syndrome [McKelvey J.]

AUTHOR’S NOTE: The Battered Spouse Syndrome recognition within self-defence is not often successful in the courts. However, it is an important tool to available to defence lawyers to defend the morally innocent accused from conviction. Here the Battered Spouse Syndrome affected two aspects of self defence to assist the repeatedly victimised spouse defend against a manslaughter charge. Specifically, living through the cycle of violence allowed her to recognize the signs that violence was imminent no matter how subtle. Also, the use of a knife against an unarmed man was reasonable given the cycle of violence previously experienced and the perception of imminence of further violence.

Overview

[1] Cheryl Mason (“the Accused”) is charged pursuant to s. 236(b) of the Criminal Code, R.S.C., 1985 c. C-46, with manslaughter. The charge relates to events that happened in the Mason family residence on November 28, 2018, in the community of St. Theresa Point First Nation, in the Province of Manitoba. It is alleged that the Accused unlawfully killed Craig Flett (“the deceased”), her common-law spouse. The cause of death was a single stab wound to his left upper chest.

[3] The Accused relies upon the defence of self-defence (s. 34 of the Criminal Code) in answer to the charge. It is acknowledged by both the Crown and defence that the Accused suffered from post-traumatic stress disorder (PTSD) and had experienced physical and mental abuse at the hands of the deceased during much of their long-term relationship. The PTSD diagnosis overlaps with the collection of symptoms shown to exist within an abusive relationship, often referenced as Battered Woman Syndrome. The Accused submits that her actions in stabbing the deceased constituted self-defence, while the Crown maintains that defence is absent an air of reality.

[4] The adult siblings and Taylor were all called as Crown witnesses in this matter, as was Dr. Dennis Rhee, a forensic pathologist. Additionally, the Accused testified, as did forensic psychologist Dr. David Kolton on behalf of the defence. Many aspects of the siblings’ testimonies were congruent with respect to what transpired in the residence on November 28, 2018, albeit no one witnessed the actual stabbing. The issue to be determined is whether the Crown has established, beyond a reasonable doubt, that the Accused did not act in self-defence on that fateful and tragic day. It is the Crown’s position that the Accused’s actions were precipitated by anger and revenge, which would necessitate a finding of guilt. The Accused maintains that she acted in self-defence.

The Law - Battered Spouse Syndrome

[56] The Supreme Court of Canada in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 SCR 852 considered the issue of expert testimony, in the context of a battered person’s cycle of violence.  Justice Wilson, speaking for the Court, stated (at p. 882):

Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a "reasonable" apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner's acts. Without such testimony I am skeptical that the average fact-finder would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship. After all, the hypothetical "reasonable man" observing only the final incident may have been unlikely to recognize the batterer's threat as potentially lethal.

The Court discussed the victimization that occurs within the cycle of violence and determined that the expert testimony as regards this area of the law was properly admitted.

[57] Associate Chief Justice Perlmutter in R. v. Knott, 2014 MBQB 72 (CanLII) considered a fact scenario very similar to that which transpired in this case.  He ultimately determined that the Accused had acted in self‑defence after stabbing her domestic partner.  These findings were made after an extensive and well-reasoned consideration of the evidence and the law that will be referenced in this decision.

[59] ... An accused who defends or protects him/herself in such circumstances must be found not guilty as that individual would have acted lawfully and committed no crime. Such an accused does not have to prove that he or she was acting in lawful defence or protection of him/herself. It is Crown counsel who must satisfy the trier of fact beyond a reasonable doubt that the accused was not acting in lawful defence or protection of him/herself. There are three issues that must be considered which represent the essential elements of self-defence:

• Did the accused believe, on reasonable grounds, that force was being used or threatened against him/her?
• Did the accused stab the deceased for the purpose of defending or protecting him/herself from that use of force or threat of force?
• Was the Accused’s conduct reasonable in the circumstances?

[63] The Accused has testified, and the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 and subsequent decisions have set out the necessary factors that a trier must consider: 

(i) if I believe the Accused’s evidence that she did not commit the offence charged, I must find her not guilty;

(ii) even if I do not believe the Accused’s evidence, if it leaves me with a reasonable doubt about her guilt, I must find her not guilty;

(iii) even if the Accused’s evidence does not leave me with a reasonable doubt of her guilt, I may convict her only if the rest of the evidence that I do accept proves her guilt beyond a reasonable doubt.

Analysis

[67] In analyzing the evidence before the court, the Accused and other witnesses testified to a relatively congruent account of what transpired in the Mason home on November 28, 2018. There were variances in certain facts provided by the Accused from those she told Dr. Kolton and her testimony at trial, such as whether the stabbing transpired inside or outside the home. That being said, she testified as to some uncertainty of what she told Dr. Kolton, as well as the fact that she had no memory of the actual stabbing incident. The collateral information from Jordan would be indicative of the fact that the stabbing transpired inside the residence. [Emphasis by Author] [68] I found the Accused’s evidence to be substantially consistent, believable, and credible in the circumstances. This was particularly so given her history and experiences, generally, and, more particularly, the relationship dynamics with the deceased. Her testimony was corroborated by other witnesses in several areas. Further, because of the nature of the circumstances and the Accused’s PTSD diagnosis, which was not contested, it is understandable how she might not recall details or be entirely accurate with her account of what occurred. Dr. Kolton testified that someone suffering from PTSD could experience an avoidance of memories. Those memories would not be welcome in a person’s psyche and, accordingly, could be submerged or not recalled at all.

[69] PTSD is outlined in the DSM-5 and assesses 20 symptoms. The Accused experienced 17 of these, many of which occur on a weekly basis. Those included directly experiencing traumatic events on a repeated basis. Additionally, the Accused presented with:

• recurrent, involuntary, and intrusive distressing memories of traumatic events;
• intense or prolonged psychological distress and exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events;
• marked physiological reactions to external or internal cues that symbolize or resemble an aspect of the traumatic events;
• inability to remember an important aspect of the traumatic event;
• persistent and exaggerated negative beliefs or expectations about oneself, others, or the world;
• persistent negative emotional state;
• feelings of detachment or estrangement from others;
• irritable behaviour and angry outbursts.

There were other aspects of her presentation that also situated her within the DSM-5 criteria for PTSD.

[70] As previously indicated, there was corroboration with respect to many of the events attested to by the Accused:

• the Accused and deceased had argued and engaged in physical contact prior to the stabbing as attested to by Alex and Jewel;
• the Accused came into Alex’s bedroom to secure her jacket and to ask Jewel to look after the children;
• the Accused seemed both rushed and unhappy when she entered Alex’s room;
• the Accused asked Jordan for the keys to the family vehicle; a confrontation between the Accused and the deceased transpired at the front door of the residence, as corroborated by Jordan;
• Jordan also corroborated that the Accused punched the deceased in the left chest area when outside the residence, albeit no weapon was seen. This resulted in an expression of pain. Jordan also testified that the deceased showed evidence of being injured after exiting the residence;
• the deceased was seen by Jewel and Alex sweeping the living room floor. There was no indication that he had suffered an injury;
• the Accused and deceased were known by other family members to argue and become involved in physical altercations. The deceased engaged in the physical abuse of the Accused, one such instance occurred in 2017 resulting in his incarceration. This was observed, in part, by Jordan. The photographs demonstrated the injuries suffered by the Accused.

[71] I acknowledge that there were areas of the Accused’s evidence where she could not remember what happened or were contradictory in nature with her or others’ testimonies at trial, or Dr. Kolton’s report. However, those areas do not raise concerns about the reliability of her evidence. The Accused was physically abused by the deceased and, consequently, she lived in constant fear. I find that the history and experiences between the Accused and the deceased is particularly relevant in that an escalation of abuse transpired over the years, and particularly after his release from incarceration in 2018. This included physical contact, choking, and being dragged by her hair. The photographs well display the consequences of the assault that took place on March 9, 2017. This assault resulted in the deceased entering a guilty plea to this and other charges. A global sentence of two years less a day with two years of probation was imposed. The no-contact probationary term was consistently breached, as was shown by his presence in the home as attested to by family members and on November 28, 2018. Indeed, he had also been banned from the Mason home by its residents on many occasions, but re-entered.

[74]      Dr. Kolton’s expert evidence was reasonable in the circumstances and created a foundation that facilitated an understanding of the unfortunate circumstances that had occurred on November 28, 2018.  His evidence was provided in a straight-forward manner and included concessions where appropriate.  As was stated by Associate Chief Justice Perlmutter in Knott:

[79]   Ultimately, it is up to the trier of fact to decide whether, in fact, the accused’s perceptions and actions were reasonable.  Expert evidence does not and cannot usurp that function.  (R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 at 891)

[80]   The use of Dr. Kolton’s expert opinion is governed by the principles articulated by the Supreme Court of Canada in Lavallee as follows (at pp. 889-90):

… I would summarize as follows the principles upon which expert testimony is properly admitted in cases such as this:

1. Expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person.
2. It is difficult for the lay person to comprehend the battered wife syndrome.  It is commonly thought that battered women are not really beaten as badly as they claim, otherwise they would have left the relationship.  Alternatively, some believe that women enjoy being beaten, that they have a masochist strain in them.  Each of these stereotypes may adversely affect consideration of a battered woman’s claim to have acted in self-defence in killing her mate.
3. Expert evidence can assist the jury in dispelling these myths.
4. Expert testimony relating to the ability of an accused to perceive danger from her mate may go to the issue of whether she “reasonably apprehended” death or grievous bodily harm on a particular occasion.
5. Expert testimony pertaining to why an accused remained in the battering relationship may be relevant in assessing the nature and extent of the alleged abuse.
6. By providing an explanation as to why an accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing her batterer was the only way to save her own life.

[81] The fact that the accused was a battered woman does not entitle her to an acquittal.  Battered women may well kill their partners other than in self‑defence.  The focus is not on who the accused is, but on what she did. (Lavallee at p. 890)

[75] As previously indicated, after assessments and testing, Dr. Kolton opined that the Accused suffered from PTSD, “… due to her repeated experience of violence and abuse at the hands of Mr. Flett and that this disorder, and her experience of abuse, impacted her perceptions of threat and danger” (Exhibit 8, p. 17) .... As indicated, I substantially believed the testimony of the Accused under the first W.(D.) criteria. She was a credible witness in the circumstances, particularly given her background and history with the deceased. She appeared to be a sincere witness who endeavoured to respond to questions as best she could. While it is acknowledged that there were certain inconsistencies in her evidence, those could well be grounded in an inability to properly recall events because of her mental health issues and PTSD diagnosis. That diagnosis may facilitate a repression of memories of traumatic circumstances.

Self Defence

Section 34(1)(a) - Did the Accused believe on reasonable grounds that force was being used against her, or that a threat of force was being made at the relevant time on November 28, 2018?

[76] The Accused had been physically abused on two occasions by the deceased on November 28, 2018. The fact that there had been physical altercations is corroborated by the evidence of both Alex and Jewel. Further, when the Accused was endeavouring to leave the Mason home, she was met by the deceased at the door. He pushed her, verbally threatened her with the comment, “I told you”, as well as displayed the look in his eyes that usually indicated an assault was imminent. The Accused, with her experience, history, and PTSD, perceived on reasonable grounds that force was being used against her or the threat of force.

… The descriptions of abuse, as reported by Ms. Mason and others, are consistent with characteristics of relationships involving severe and prolonged intimate partner violence. The abuse she described involved acts of physical violence, sexual pressuring and assault, verbal abuse, jealousy, and death threats. She described a relationship characterized by an escalation of abuse behaviours that served to maintain Mr. Flett’s power and control in the relationship.

(Exhibit 8, p. 16)

[77] The Accused indicated that she was fearful, and particularly so given the events of the day. It must be emphasized that the Accused had, over the years, been frequently subjected to physical, verbal and sexual abuse by this deceased. He had been incarcerated for his assaultive conduct towards her. The Accused’s belief that a threat of force was being made against her at the relevant time was reasonable.

Section 34(1(b) – The act that constitutes the offence is committed for the purpose of defending or protecting the Accused from the use of threat of force

[79] I am satisfied that the Accused was in fear when endeavouring to leave the Mason residence that day. She acknowledged that she was both “mad and sad” with respect to the deceased’s conduct in utilizing her bank card. However, she attested to being frightened and not in an angered state. Further, even if there were feelings of anger at the moment, those would have been influenced by the violence she had previously and on that day experienced, as well as by her mental health issues. The history of abuse paved the pathway for her feelings that she would soon again be experiencing such violence. This set of circumstances played into her decision to defend or protect herself from the use or threat of force. The object would be to eliminate the threat.

[80] I am satisfied that the Accused acted because of fear, substantially based upon her history and experiences with the deceased, the events of November 28, 2018, and the escalation of his conduct and perception it was about to again happen. Based upon her PTSD diagnosis, it is reasonable that she does not actually remember what transpired at the time of the stabbing.

[81] The stabbing occurred after two previous assaults on the day in question. Further, at the relevant time, she had, again, been pushed by the deceased, verbally threatened, and was confronted with his cues for violence. The Lavallee decision found that there is no requirement for an individual to wait until they are about to again suffer bodily harm.... Indeed, she admitted to the utilization of a knife in the past to defend herself. However, those actions were ineffective in controlling or stopping the violence against her, as the knives were simply taken from her. The Accused had a reasonable apprehension that force was about to befall her, and the stabbing was for the purpose of defending or protecting herself from that threat. The Accused was hypervigilant for the signs of imminent abuse – the threat, the push, the look in the eye, and the smirk. As Justice Wilson indicated in Lavallee (p. 883):

… The requirement imposed in Whynot that a battered woman wait until the physical assault is "underway" before her apprehensions can be validated in law would, in the words of an American court, be tantamount to sentencing her to `murder by installment'…

[83] I have concluded that the Accused may well have been angered in and around the time of this incident; however, given her past experiences with the deceased on that day and prior to it, accompanied by her PTSD diagnosis, she was fearful of a further escalation and physical violence. I am satisfied that the Accused stabbed the deceased for the purpose defending or protecting herself from being, or the threat of being, subjected to the use or threat of force.

Section 34(1)(c) - Was the act committed reasonable in the circumstances?

Section 34(2)(a) – The nature of the force or threat

[85] ... The fact that physical abuse had transpired was corroborated by her siblings, Jordan and Jewell, as well as in the Agreed Statement of Facts (Exhibit 6), with photographs demonstrating the ramifications of the 2017 incident. The abuse resulted in bruising and pain, and included the existence of a scar on her head after being struck by a crowbar. These experiences, unquestionably, impacted her behaviour and perception as to the nature of the force or threat that she was facing when she went to exit the Mason home on November 28, 2018. There is no question that the deceased had the capacity, ability and willingness to engender harm as regards the Accused.

Section 34(2)(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

[86] As previously indicated, the Accused had been physically abused on two earlier occasions on November 28, 2018. As she moved towards the door to exit the Mason residence, she was pushed, verbally threatened, and the deceased displayed the cues for violent conduct. The imminence of an assault was based on her experiences and PTSD diagnosis with a reasonable perception that force or the threat of force had and would again soon transpire.

[87] The issue of whether there were other means available to the Accused to respond to the potential use of force must be considered in the context of the parties’ history. The relationship that the Accused had with her siblings was indicative of their non-involvement in her relationship with the deceased. Jordan testified that his sister’s relationship was none of his business. The two sisters testified that they did not have a close relationship with the Accused. On those occasions when she was assaulted, the deceased often covered her mouth, and while a physical altercation might have been heard, it must be remembered that this was a residence in which noise and commotion was not a stranger.

[88] Dr. Kolton testified that the Accused lived in an entrenched cycle of violence. She exhibited low self-esteem and had compromised mental health. There was a concept of learned helplessness in her behavior, exhibited by a loss of control over the outcome of others’ actions upon her. No matter her actions, the same results transpired. This founded a level of anxiety and ultimate resignation to her life circumstances. Such concepts would have affected her ability to have an escape and ability to stop what was transpiring. The Accused lived through the cycle of violence and recognized the signs within the cycle when violence was about to begin, no matter how subtle....

[89] I am satisfied that the Accused’s use of force was responsive to the imminent threat and was reasonable. There were no other means available to counteract that potential use of force given the Accused’s experiences.

Section 34(2)(c) – The person’s role in the incident

[90] Unquestionably, the Accused and the deceased were arguing on the day in question. Additionally, both had ingested methamphetamine. The deceased had repeatedly been the physical aggressor and then intervened once more as she was endeavouring to leave the residence. In those circumstances, the Accused had had enough, given her history, mental health and prior experiences with the deceased.

Section 34(2)(d) – Whether any party to the incident used or threatened to use a weapon

[92] The Accused stabbed the deceased one time in the upper left chest, as well as the wound to the back shoulder region. Dr. Rhee testified that both wounds were approximately 8.0 centimeters deep, and were classified as deliberate. However, the injuries would not have required a great deal of force.

[93] The absence of excessive force and the nature of the wounds does not dismiss the reasonableness of the Accused’s response.

Section 34(2)(e) – The size, age, gender and physical capabilities the parties to the incident

[94] The deceased was 6.0 feet tall and 176 pounds, as opposed to the Accused who stood 5.4 feet and 120 pounds. The evidence demonstrated that the Accused was not as physically strong as the deceased.

Section 34(2)(f) – The nature, duration and history of the relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat

[95] As has been articulated a number of times, a history of abuse and violence existed between the Accused and the deceased. The abuse was repeated and even involved the administration of a crowbar to her head. The relationship would, at best, be categorized as controlling, as the deceased advised the Accused she could not be in the community without him, could not be around other men and, while he was incarcerated, would require her to remain in the Mason home awaiting his telephone calls or face the consequences. Even when told not to attend at the residence or in contravention of a court order, he continued to do so in order to exercise his controlling behaviour over the Accused. As a consequence of the abuse and control, Dr. Kolton opined that the Accused suffered from PTSD.... The history of abuse and the perception that it would happen again precipitated the decision to stab the deceased – unquestionably, all of which constitutes a tragedy for all concerned.

Section 34(2)(g) – The nature and proportionality of the person’s response to the use or threat of force

She testified, and Jordan confirmed, that she did not flee after the deceased fell and seemed genuinely surprised as to his condition. There was no intention to kill. What transpired might best be referenced as a reflex to the encounter at the front door and lasted not more than 90 seconds. As was discussed by Associate Chief Justice Perlmutter in Knott:...

[144] In Kong, Wittmann J.A. explained (at paras. 208-9):

None of the tests, however framed, requires a precisely calculated response. Under s. 34(1), a person is not expected to “weigh to a nicety” the exact measure of a defensive action or to stop and reflect upon the risk of deadly consequences from such action …. ….

The accused may be mistaken about the nature and extent of force necessary for self-defence provided the mistake was reasonable in the circumstances …. In deciding whether the appellant’s use of force was reasonable, the jury is to look to the circumstances to consider what a reasonable person in the accused’s situation might do given the threatening attack and the force necessary to defend himself against that apprehended attack …. The objective measurement of proportionate force in self-defence cases requires a tolerant approach ….

[97] The Accused reasonably believed that she needed a knife for protection in light of what had transpired that day, her experiences with the deceased, her life history, and the PTSD diagnosis. Her actions were, as indicated, reflexive and responsive to the imminent threat presented by the deceased at the doorway of the Mason home.

Section 34(2)(h) – Whether the act committed was in response to a use or threat of force that the person knew was lawful

[98] The deceased’s use of force or threat of force in these circumstances cannot, in any manner, be viewed as lawful.

CONCLUSION

[102] The Accused acted in self-defence and must be acquitted for this tragic and unfortunate act that took the life of the deceased. The Crown has not satisfied me beyond a reasonable doubt that the Accused was not acting in self-defence.

R v Harvey, 2020 ABPC 212

[November 6, 2020] – Refusal of ASD/MSD - Mental Intent Required [J.N. LeGrandeur PCJ]

AUTHOR’S NOTE: As police no longer need any grounds to impose a breath demand upon a motorist, the law surrounding refusal becomes more and more important. Due to the suspension of the right to counsel during roadside investigations, people may not trust or be unaware that their refusal to comply with the police demand results in the same punishment as actually failing a breathalyzer. Case law on this topic is consequently more important than ever.  Here, a driver's panic attack prevented her from complying with the demands of the police officer who simply did not give her an opportunity to calm down.  The result was an acquittal.

Overview

[3] The issue is whether the Crown has proven beyond a reasonable doubt the necessary elements of the offence of refusal as it currently stands in the Criminal Code, specifically whether the mens rea of the offence has been proven.

Facts

[4] The facts are not complicated. After having read the demand to the Accused, she, according to the police officer, indicated that she understood the same and asked no questions pertaining to the same. The police officer showed her what she had to do and instructed her to

give a strong, continuous blow into the machine. She made her first attempt at 16:44. On that occasion she sucked in rather than blew out and the ASD timed out according to the investigating officer. The police officer advised her she needed to blow into the machine on a continuous, steady basis. He testified that at this point he observed no signs of physical distress or medical issues; she was able to stand on her own and she offered no complaint of illness. He did not recall if she was crying at that point. He made no note of any issue concerning her emotional state.

[5] At 16:48 she blew again; this time blowing and then sucking air in which again did not provide a suitable sample. She stated to him that she was trying. At 16:49 she gave the third attempt; this time she blew too hard and it resulted in an error code, again for inconsistent air flow.

[6] The investigating officer did not recall whether he said anything after that fail. At 16:51 he did tell her that she could be charged for failure to provide a sample and he testified she continued to say, “I’m trying, I’m trying”.

[7] On the fourth attempt at 16:52 the officer described her blowing sequence as blowing and stopping, blowing and stopping, blowing and stopping, until the machine again shut down as a result of no suitable sample and insufficient air flow. No other sample was attempted, the police officer progressed directly to arresting her at 16:53.

[8] In cross-examination the police officer testified to believing she was trying to circumvent the machine. He also testified that although he did not demonstrate to her before each attempted sample how to blow into the machine, he did reiterate that she needed to blow continuously. He did not tell her specifically what the error code was each time she failed to give a suitable sample.

[9] The police officer did acknowledge that it is common for people to be emotional or crying in such circumstances but he does not always make note of those observations. He does not recall her trying to explain her circumstances to him, nor does he recall her asking for a moment to calm down before she gave what turns out to be her fourth and last attempt. The investigating officer testified that she never verbally refused to give a sample but, in his opinion, she refused to follow his directions and therefore failed to give a suitable sample.

[10] The Accused testified to being under stress at that point in time before the officer ever showed up at her residence. She was late picking up her children from school and she was dealing with family members who had shown up at her house because she had failed to pick the kids up at school on time. She testified to having to deal with issues concerning her ex-partner and their children and the conflict they were involved in as well as having to deal with her then partner’s ex-wife concerning his children who she was caring for at that time along with her own. Her partner was away for significant periods of time, up north working, which required her to be solely responsible for four children. She was concerned about Children’s Services as her ex-partner had reported her on more than one occasion.

[11] She testified to being subject to and being treated for anxiety which could lead to panic attacks. She is on prescribed medication for the same and also has been doing counselling for the past three years to assist in coping with her anxiety. She describes stress as an anxiety producer which manifests itself in part in shortness of breath, heaving breathing, almost like gasping. She testified that she was already under stress when the police showed up and does not

recall specifically what was said by the police officer other than for her to blow into the machine. She testified that she was trying to do what he asked but she was in a state of anxiety. After the third test and the warning she asked the police officer if she could take a moment to calm down; he refused and required her to blow then and there.

[12] All the attempted samples occurred in succession, one right after the other. After the fourth attempt the police officer proceeded directly to the arrest despite her continued protestation that she was trying to give a sample. The investigating officer did not make notes of any observations of her emotional state, but by his own testimony, he did not always do that.

Mens Rea

[14] I believe that the law with respect to the issue of the mens rea element of this offence is succinctly stated in the recent decision of the Ontario Superior Court, R v DeCaire, 2020 ONSC 2033 (DeCaire).  The issue in that case was whether it was enough to fulfill the mens rea requirement that the accused knew that he was failing to provide a suitable sample.  On that basis reasonable excuse would fall outside of the essential elements of the offence:   DeCaire, at para 29.

[15] The other approach describes the mens rea as an intention to produce the refusal or failure.  Pursuant to that approach, the Crown must prove beyond a reasonable doubt that the accused’s failure to provide a sample was voluntary and intentional; in other words, that the accused failed the test “on purpose”: DeCaire, at para 31.

[16] Justice Braid relies upon the decision of Nordheimer J, (as he then was) in the case R vSlater, 2016 ONSC 2161, as having reconciled these two approaches to the mens rea of refusal.  He summarized the law in that regard in paras 38-40 as follows:

With respect to Porter, Nordheimer J. found that the decision does not say that proof of a failure to provide a breath sample is sufficient for the mens rea requirement. Rather, where the Crown establishes that an accused did not provide a sample, and the accused knows he has not provided a sample, then absent other circumstances which explain that failure, the inference is the accused intended that failure:  Slater, at para. 9.Both Lewko and Porter spoke about intent as something that can be inferred from the circumstances. Nordheimer J. reconciled these two lines of authority by describing the mens rea as an inescapable inference of intention, absent other evidence being present that would raise a reasonable doubt. When a person tries multiple times to provide a breath sample and, in each instance fails to provide a sample, it gives rise to an inescapable inference that he is intending that result, absent some evidence that would suggest a lack of such an intent (or that would at least raise a reasonable doubt about it). The reasoning in Slater has been followed in R. v. Esipu, 2017 ONSC 3439, R. v. Colson, 2018 ONCJ 118, and a R. v. King, [2019] O.J. No. 2468 (SCJ).Under this approach, the Crown is still obligated to prove mens rea, but an inescapable inference makes this task straightforward. Proof of mens rea will be met by the application of the general principle that a person usually intends to cause consequences which are predictable.

[17] At para 43, with respect to the case he was dealing with on appeal he states:The trial judge was not sure whether Mr. DeCaire’s failure to provide a sample was deliberate or the result of an inability to provide a sample due to his suffering the effects of extreme pain. Put another way, while Mr. DeCaire’s multiple failures to provide a breath sample might give rise to the inescapable inference that he intended that failure, the evidence of his sciatic pain suggested that he may not have had such an intention. The trial judge was therefore left in a reasonable doubt.

[18] In this case, I am not satisfied the Accused failed to provide a reasonable sample, “on purpose”.  She testified to feeling anxiety.  The testimony of her partner, Cal Slossan, in my view, supported her testimony that she suffers from anxiety that often manifested itself through problems with her breathing.  She was, according to her testimony, under stress before the police showed up, and certainly their appearance and demands did not reduce the same.  The police officer did not recall if she was emotional and crying and did not make any notes in that regard.  Of particular note is the fact that she specifically asked the police officer if she could have a moment to calm down before the fourth attempt.  That is consistent with her trying to get herself into a state where she felt she could provide a proper sample; that is inconsistent with purposely intending not to produce a suitable sample.  Although the four failures to provide a suitable sample might give rise to the inference that she intended to fail, I am left in a reasonable doubt concerning that fact for the reasons expressed aforesaid.

[19] Accordingly, the charge against the accused is dismissed.