Court File and Parties

Ontario Court of Justice

Date: December 5, 2016

Court File No.: Ottawa 15-11973

Between:

Her Majesty the Queen

— and —

Nicholas Dove

Before: Justice Heather Perkins-McVey

Decision released on: December 5, 2016

Counsel

Mr. R. Thompson — counsel for the Crown

Mr. J. McGillivary — for the defendant, Nicholas Dove

Decision

PERKINS-McVEY J.:

Facts

1Mr. Dove is charged with one count of over 80 contrary to section 253(1)(b) and one count of Dangerous Driving. At the trial continuation, the Crown indicated they were not proceeding with the charge of Impaired Driving.

2It is admitted that Mr. Dove was driving on August 20, 2015 and that he was driving with a blood alcohol content over 80 milligrams of alcohol in 100 millilitres of blood. Filed as Exhibit No. 1 is the Certificate of a Qualified Breath Tech showing his readings to be 130 milligrams of alcohol in 100 millilitres of blood. The only issue is whether his conduct can be excused on the basis of necessity.

Summary of the Evidence Relevant to Defence of Necessity

3Two witnesses gave evidence at this trial. Kaitlyn Carr was called by the Crown and the accused testified in his own defence.

4Ms. Carr described that she was at the Crazy Horse Bar in Kanata. She had seen the accused at the bar with her brother's girlfriend. Her brother's girlfriend appeared very intoxicated. Ms. Carr said she observed the accused walking with his hand on Michaela as if they were a couple.

5Ms. Carr approached Michaela and the accused. Ms. Carr said she asked the accused who he was because of how he was touching Michaela and told the accused that Michaela had a boyfriend. She said to Nick "If you touch her again I'll punch you".

6Ms. Carr said she called her brother to explain what was going on. Ms. Carr said she saw the accused "grinding Michaela and smirking at her". So she grabbed him and hit him in the face. She called her brother again after this confrontation.

7Ms. Carr waited by the bar until her brother arrived and they both waited for Michaela and Mr. Dove. She said that when they came out her brother grabbed Michaela's hand asking what she was doing, and that Nick got in between them, and her brother pushed the accused saying "I need to talk to my girlfriend". She said her brother and Michaela then went for a walk. Ms. Carr then got into a cab to go home. While in the cab, she says she saw a white pickup truck and her brother running away so she got out of the cab. She gave evidence that the white pickup truck – which we know was driven by the accused – would rev its engine, drive away, charge towards her brother, who would get out of the way. She said her brother, who was on foot, went over the median and that the truck went up and over the median. She described the truck charging toward her brother. She could not recall how many times this happened. She said the event took 3-4 minutes. She also said she did not think the intent was to run over her brother. She acknowledged that she did not tell the 911 operator that the "pedestrian" being charged at was her brother cause she didn't want to get her brother involved in anything. She said her brother didn't want her to call 911.

8In cross-examination, she agreed that it was only after the fact that her brother said don't get police involved. She agreed that she punched the accused in the eye, and that the accused did not provoke her. She agreed that she did not tell police this information and only told the Crown just before court.

9Ms. Carr did not see her brother kick the tail lights, or punching the accused's truck. She agreed her brother was angry, but denied her brother was taunting the accused.

10She said her brother had not been drinking, and that he did not bring any friends to the bar.

11In describing events with the truck, she says her brother was yelling to the accused to get out of his truck. She thought the accused charged toward her brother twice. When pressed if she ever saw her brother hit the rear of the accused's car, she said "It's possible".

12The accused, Nicholas Dove, testified in his own defence. He described he had gone out for drinks with people from work. He had not planned to drive and had booked a ride home with a company called Responsible Choice.

13He had left his car at Kelsey's and walked about 100 yards to the Crazy Horse.

14He denied ever seeing Ms. Carr until after she punched him. He recalled it was after she punched him that she spoke to Michaela. He agreed that when he came out of the bar with Michaela, Mr. Carr grabbed Michaela and shoved him. He described Mr. Carr as "extremely upset".

15Mr. Dove said he went back to the bouncers but they wouldn't let him in. He says he stayed by the bouncers for a bit, then he decided to walk to his vehicle to get his cell phone. He said John came over and said "Fight me, fight me" and he got into his truck. Mr. Dove said John hit the mirror. Mr. Dove then pulled away and drove towards the TD Bank. He described he would drive 20 to 30 feet and stop and that it was like cat and mouse. Mr. Dove said he was driving slow, five kilometers per hour. He said he backed up maybe once or twice at the beginning. He then said "I slowly made my way to the stop sign and went home". He said he drove home five under the speed limit. "I had no intention of driving that night, so I drove timidly." He said he had no thoughts of stopping. He said "the fact I was accosted had me concerned. His behaviour was psychotic."

16In cross, he agreed he had a working phone in his truck. It was a big truck, a Ford F150 that sits higher off the ground.

17He said it is higher than an SUV but not a monster truck.

18He agreed that he did not tell bouncers after being punched by Kaitlyn Carr. He said he does tell the bouncers after John pushes him that "this guy is trying to fight me and pushed me". He said he thought he was getting jumped in the parking lot by John or anyone else he was with.

19He says he went to his car to make a phone call. He agreed that when John and Michaela walked away to talk that he did not see anyone else with them. There was no posse. When asked about his mental state he said "I don't know if I was quite upset but pretty distraught." He said he just wanted to get himself home and away from the situation.

20In describing the parking lot, he said it was not empty. He said he was at the truck door open when John and Michaela show up. John says "fight me, fight me" so he got in the truck and locked the door, and put up the window. He agreed John had no weapon. He said John was hitting the car and that he was trying to preserve his truck and himself. He said he drove 20 to 25 feet and that John was chasing him so he would move another 20 to 25 feet. He said he was trying to stay in the parking lot. He then saw the stop sign that takes you to the one way road that takes you into traffic. He agreed that it was a large parking lot, and that there was a significant distance he could travel to get away from John. He also agreed that when he left the parking lot he did not see John. He said when asked if he could have called police or Responsible Choice "I guess" but that his train of thought was not that straight-forward.

21Mr. Dove disagreed he was taunting John. He said "I was curious why he was chasing me. I wasn't comfortable leaving the parking lot as I hoped there would be a Responsible Choice Driver". When asked how close John was, he said "the only time he was close to me was when I first backed out of the parking lot". He said he was afraid he would smash the window with his fists or elbow.

The Law of Necessity

22In R. v. Perka, [1984] S.C.J. No. 40, the Supreme Court of Canada explained the defence of necessity in this way at p.11:

It rests on a realistic assessment of human weakness, recognizing that a liberal and human criminal law cannot hold people to the strict obedience of laws in emergency situation where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nicomachean Ethics, supra, at p. 49"overstrains human nature and which no one could withstand".

23In R. v. Latimer, 2001 SCC 1 , [2001] S.C.J. No. 1, the Supreme Court elaborated on the requirements of necessity as follows at paras. 28-31:

28 Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.

29 To begin, there must be an urgent situation of "clear and imminent peril": Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 678. In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: "At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable". The Perka case at p.251, also offers this requirement of immediate peril: "The requirement …. Tests whether it was indeed unavoidable for the actor to act at all". Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.

30 The second requirement for necessity is that there must be no reasonable legal alternative to disobeying the law. Perka proposed these questions, at pp. 251-52: ``Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out?" (emphasis in original). If there was a reasonable legal alternative to breaking the law, there is no necessity. It may be noted that the requirement involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity on this aspect fails.

31 The third requirement is that there be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. See Perka, per Dickson J., at p. 252:

No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him.

24For the defence of necessity to be successful, the court must have a reasonable doubt about each of the three elements:

• imminent peril
• no reasonable legal alternative
• was the harm inflicted disproportionate to the harm the defendant sought to avoid.

25Where the accused places sufficient evidence to raise the issue to the point of giving it an "air of reality", then the onus is on the crown to displace the defence of necessity beyond a reasonable doubt. If the crown satisfies its onus on any of the three elements, the defence fails.

26As indicated in R. v. L.S., [2001] B.C.J. No 3062 at para.25:

"Generally, if there is clear evidence that the accused or someone under his or her protection is at an immediate risk of physical harm, if no reasonable alternative is available, and if the driving is for no longer than is necessary to escape the harm, the defence of necessity will succeed".

27In R. v. Latimer, 2001 SCC 1 , [2001] S.C.J. No. 1 at para. 33, the court determined that the standard is a modified objective test which takes into account the situation and characteristics of the particular accused. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open.

28During submissions, counsel provided me with a number of decisions where the defence of necessity was raised in the context of drinking and driving cases.

29In R. v. Turchanikov, 2016 ONCJ 135, Justice Bourque found the accused not guilty on the basis of the defence of necessity. The Judge found that the accused was in a situation of clear and imminent peril. The accused was struck by a young man who accused him of sexually assaulting his girlfriend. The accused was struck about his face five to ten times. Also, when he fell to the ground, the accused was kicked in his head. The accused had blood flowing down his face. The accused was able to get up and run to his car. The aggressor followed him. The accused started the car in order to get away from Mr. Plourde who he believed was right behind him. The accused accelerated forward but struck the parked car in front of him, then reversed and hit a car parked behind him. Mr. Plourde opened the car door and took the key from the ignition. It was the accused's evidence that he had no intention to drive and that he ran to his car to forestall a further beating. The court found the accused had suffered a significant beating at the hands of a younger man. The accused had no experience fighting, and there was no evidence he was capable of fighting back. The accused was found to be in imminent peril, as the assailant continued to follow him after viciously assaulting him. It was found that while there may have been other options available, that normal human instinct was that the accused would try to drive away. Lastly, it was found that the accused drove a very short distance and that the harm inflicted by the commission of the offence (impaired driving and damage to vehicles) was not disproportionate to the harm the accused sought to avoid.

30Counsel also provided the decision of Justice Pringle in R. v. Valauskas, [2012] ONCJ 790, where the accused was acquitted on the basis of the defence of necessity where a man who got out of his car to engage assailants was justified in getting back into his car and driving approximately 50 metres when one of the assailants pulled a knife on him, having previously assaulted him.

31Justice Pringle stated "it was not unreasonable (in these circumstances) for an accused to view the vehicle as the only safe avenue of escape." It was not unreasonable that he did not think to call 911 from inside the vehicle and wait for police. The harm from the impaired driving was very brief and not disproportionate to the harm avoided. The accused drove approximately fifty metres or four houses away to his residence.

32I note at paragraph 16 of R. v. Valauskas that Justice Pringle makes reference to the decision of R. v. Sekhon, [2007] A.J. No 517, upheld [2008] A.J. No. 490 (C.A.), leave to appeal to SCC dismissed [2008] S.C.C. No. 297. In this case, the Summary Conviction appeal court found that once the accused drove away from the scene of the party where he had been assaulted, his peril lessened and he failed to consider legal alternatives other than continuing to drive while grossly intoxicated. In that case, the court found no air of reality to the defence.

33Defence counsel also relied on R. v. Hunt, 2016 ONCJ 147. In that case, the accused was assaulted suffering a bloody face, his arms were covered in blood, and blood was dripping onto his shirt. The accused was attacked inside his car. It was found that closing the windows and locking the door would not have removed the threat. The accused drove a short distance and the harm avoided was a continuation of assaultive conduct by a person bent on harming Mr. Hunt. It was found the harm avoided outweigh the harm inflicted, and the accused was acquitted.

34Lastly, I review the decision of R. v. DeFrias, [2016] O.J. No. 2873. In that case, the court did not accept the defendant's evidence that she was driving while impaired to get help for her suicidal ideation and nor did her evidence leave a reasonable doubt. The court found, at para. 34, that there was no air of reality to the defence in part because the "harm inflicted" referred to in the requirement for proportionality must be actual harm rather than potential harm. The court relied on the decision of R. v. Desrosier. The court found that the accused failed to meet the imminent peril requirement quoting the test in R. v. Latimer "disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur".

Analysis

35The first issue to be addressed is that of credibility. Two witnesses testified at this trial, Kaitlyn Carr on behalf of the Crown, and the accused Nicholas Dove on his own behalf. As in all cases, the Court may choose to accept some, all, or none of the testimony of any witness.

36Ms. Carr's evidence was that it was the accused who drove recklessly (as she called it) towards her brother. Oddly she did not identify that it was her brother involved when she called 911. She only advised police that in fact it was her brother involved on the day of trial and nor did she tell police about events in the bar prior to the parking lot confrontation. She said that she didn't tell the whole story to police or 911 because she didn't want to get her brother involved in anything. She said she didn't want her brother to have to talk to police and tell the whole story. She also said her brother did not want her to call. Later in cross, she said she only spoke to her brother about calling police after that evening. It detracted from her credibility that she did not tell police of her brother's involvement and that she said he was the "pedestrian" that was being charged at by the accused in the white pick-up. Nor did she advise prior to testifying that she had punched the accused in the face at the bar when she saw the accused with her brother's girlfriend. It suggests that she may have done so because her brother's actions and role vis-à-vis the accused were something she didn't want police to know. Further in her evidence, she acknowledged that given the passage of time, her memory of events was not as good as when they occurred.

37In chief she said she saw Nick charging her brother and her brother walking through the parking lot. But she couldn't recall how many times there was charging by the accused and avoidance by her brother. Later she said it was maybe twice. She was asked and initially denied that her brother was taunting the accused. Later she says that her brother may have said "Why are you being a little bitch" to the accused. At the trial continuation she stated her brother said to the accused "why don't you get out of the truck", later in cross she admitted her brother was yelling this statement.

38Also, in cross initially, she said she did not recall her brother grabbing the car or punching the mirror. Later in cross, when asked if she ever saw her brother hit the rear of the accused's truck, she said "it's possible". Similarly, initially she said her brother was very calm about the situation, and then later admitted he was angry. It is difficult to rely on Ms. Carr's evidence given these inconsistencies, and given that she was less than forthcoming when giving her initial statement to police.

39The accused also testified and as with Ms. Carr, there were issues with the accused's evidence also. I do accept that it was not his intention to drive home that evening, and that he was going to use the Responsible Choice service, given he would be consuming alcohol. He said he left his car at Kelsey's, which is approximately 100 yards – or a football field – from there to the Crazy Horse Bar. I accept that he had not known Ms. Carr before she punched him. He agrees he did not tell the bouncers and carried on with his night. I accept the accused account that when he and Michaela came out of the bar together at the end of the night, that Ms. Carr was there with her brother, and that her brother grabbed Michaela's hand and shoved or pushed him saying he wanted to talk to his girlfriend. This account is very similar to that of Ms. Carr. The accused says he waited by the bouncers for a bit, and then walked the 100 yards of so to his car. He says he went to his car to get his cell phone and see if Responsible Choice had arrived.

40It is at this point, Ms. Carr's brother John comes over and confronts him. The accused then got into his truck with his phone and locks the door. I accept that John may have kicked or punched at the truck at that time, and that John was yelling at him to get out of the truck and or asking why he was being a little bitch.

41I accept that Mr. Dove drove away from him and drove over the curb into the other part of the lot to wait. Mr. Dove says he drove 20 to 30 feet, and that it was like a cat and mouse. Mr. Dove agreed it was a huge parking lot. Mr. Dove described that he was driving a Ford F150 which is a big pick-up truck that sits higher off the ground. He agreed that John was on foot, and that he was alone, and that he did not see a weapon of any kind.

42When asked how he felt after John grabbed his hand and pushed him, he denied being quite upset, and described he was pretty distraught. When asked about his contact with John, Mr. Dove said "the only time he was close to me was when I first backed out of the parking lot". I accept that at that point John hit the vehicle. Mr. Dove describes driving around in a big circle around this large parking lot as he didn't want to leave the parking lot. He agreed that there was a significant distance in the lot, so he could get away from John. I accept that John didn't immediately leave the area, but I do accept Ms. Carr's evidence that this was a brief confrontation; lasting maybe three minutes. The accused also agreed that eventually he saw a stop sign down a lane off the parking lot, and that he turned down that lane which connected to the road, that he then drove on Highway 417 entering at Castlefrank and exiting at Moodie Drive. He said it took 15 minutes to drive himself and that he had no thought of stopping along the way. Mr. Dove agreed in cross that when he left the parking lot, John was not in the area and that there was no immediate peril.

43I did find that, as the cross examination continued, the accused embellished his evidence, ramping up his description of John's behaviour. Initially, he described he was concerned for his vehicle and his safety when he first backed out. He agreed that the only time John was close to him was at that time. In re-examination he described that John was a psychotic individual, and that there was no rational explanation for his behaviour.

44At all times, the accused acknowledged that his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.

I. Was this a situation of clear and imminent peril?

45In law, there must be an urgent situation. The disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251 "at a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make counsel of patience unreasonable".

46In this case, the accused was punched by Ms. Carr, but that punch is not reported to the bouncers, and the accused carries on with his night. I accept he was pushed or shoved by John as Mr. Dove left the bar, but the accused was not so concerned that he called police. I accept he may have stayed by the bouncers for a bit. But Mr. Dove walked away travelling the 100 yards or so from the Crazy Horse so he can't have been that fearful.

47The accused is never assaulted by John apart from that initial push. I accept it was reasonable for Mr. Dove to enter his car when confronted, and that it may have been reasonable to have driven the truck away from the confrontation. However, Mr. Dove was in a large truck, doors locked, windows up, cell phone present. Mr. Carr was on foot without a weapon. It was a very large parking lot; he had lots of room to travel to get away from John. When Mr. Dove left the parking lot and turned onto the road, Mr. Carr was nowhere in sight. As stated by the SCC, it is not enough that the peril is foreseeable or likely. It is hard to find that the imminent harm or peril existed at the time he left the parking lot when Mr. Carr was not around.

II. Was there a reasonable avenue of escape or legal alternative?

48I agree that the modified objective test applies, and that one must take into account the situation as it presented that night, as opposed to simply finding that there needed to be an exhaustion of all the potential options we might consider with the benefit of hindsight.

49The accused's evidence was that he carefully tried to stay in the parking lot; that he drove slowly around the lot to get away. The accused stated he would drive 25 or 30 feet and then stop and wait.

50This is not a case like many, where a person flees in a panic, and has no time for reflective thought. Mr. Carr was only close to him once when he backed out of the parking spot. This was not an ongoing situation of acute aggression. No weapon was brandished, and Mr. Carr was on foot. The accused was higher off the ground in a large vehicle.

51I accept the reasoning in the Summary Conviction Appeal Court in R. v. Sekhon, [2007] A. J. No 517, which was upheld by the Alberta Court of Appeal and leave to the SCC dismissed, that held once the accused drove away from the scene of the confrontation, his peril lessened and he failed to consider legal alternative other than continuing to drive while intoxicated.

52In this case, once Mr. Dove left the parking lot he could have safely stopped at a number of places before getting on the highway 417. He then could have called Responsible Choice, or 911. The accused drove home instead. He says it took fifteen minutes to drive home. In this case, unlike the cases provided to me where the driving was but a few metres, the driving was a significant distance from Kanata Centrum, to his home off Moodie Drive. In this case, addressing the third criteria of proportionality, I find, given the distance driven by the accused, when the peril had gone, is such that possible harm inflicted by the commission of this offence is disproportionate to the harm the accused sought to avoid. As noted in R. v. DeFrias the harm inflicted as referred to in the proportionality requirement must be actual harm rather than potential harm.

53In conclusion, I am satisfied that the Crown has displaced the defence of necessity, and I find the accused guilty of s. 253(1)(b). The Crown chose not to proceed with the charge under s. 253(1)(a).

54On the charge of Dangerous Driving I find the accused not guilty. Given the evidence of the accused I do accept, and given the problems noted with Ms. Carr's evidence, I find the accused, by his evidence, raises a doubt and that the Crown has failed to establish the count of Dangerous Driving beyond a reasonable doubt.