Court File and Parties

Court File No.: [Not specified in judgment]

Date: 2012-12-11

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Karolis Valauskas

Before: Justice Leslie Pringle

Heard on: August 31, 2012 and November 15, 2012

Reasons for Judgment released: December 11, 2012

Counsel:

• J. Canton for the Crown
• B. Brody for the Accused

Pringle, J.:

1. Introduction and Overview

[1] Karolis Valauskas is charged with impaired driving. It's admitted that he drove on August 27, 2011, and it's admitted that his ability to drive was impaired by alcohol at the time. The only issue is whether his conduct can be excused on the basis of necessity.

[2] Based on the evidence before me, I agree that Mr. Valauskas was clearly drunk and I find that the police acted entirely appropriately in arresting him. However, I find there is an air of reality to the defence of necessity, and the Crown has not proven that it is not available beyond a reasonable doubt. Therefore, Mr. Valauskas is entitled to be found not guilty.

[3] Let me explain my reasons.

2. Summary of the Evidence

[4] Mr. Valauskas was the only witness for the defence. He testified that he had dinner with his girlfriend Janet at the Pickle Barrel at Yonge and Eglinton, where he drank a couple of Corona and had about 10 shots of tequila. After dinner, they decided to go to a pub and shoot some pool, and Janet drove to the Fox and Firkin at Yonge and Sheppard. Mr. Valauskas said that he had a pitcher of beer there, but Janet didn't have any. He admitted that he was pretty drunk. After last call, they were asked to leave around 2:30 or 3 and Janet drove them back to his place. He wasn't sure of the time.

[5] As they turned onto his street, Mr. Valauskas said there was a group of around 7-8 males blocking their way. Janet honked at them but they wouldn't move, so he got out of the car to tell them to move. He agreed that he was aggravated, and he got out despite the fact that the males were yelling, swearing and possibly giving them the finger. He got out and said what the hell are you doing and told them to move, but someone came up and punched him. He fell to the ground and someone kicked him and started to beat him up, when Janet got out of the car and started screaming and told them to stop. She came up and got between them and tried to push Mr. Valauskas away, but when he continued to yell at the males she said that's enough, and walked away.

[6] Mr. Valauskas said that when Janet walked away, one of the guys pulled out a knife and he decided he better leave because he was going to be stabbed. The other males were still milling around and yelling, he could see his house a short distance away, the driver door of the car was open, and Janet was down the street. So Mr. Valauskas thought the car was the safest place to be and jumped into the car and drove about 4 houses to his home and pulled into the driveway.

[7] Mr. Valauskas said that he did not see the police arrive before he jumped into the car. When he got out of the car at his house and saw the officers, he thought they were there because of the fight. He told them that he had been assaulted and beaten up, but the next thing he knew, he was the one being arrested. He was angry, but he knew to ask for his lawyer and not to say anything, so he didn't say anything further about the knife.

[8] Cst. Mijares was the only witness for the Crown. He stated that it was about 3:38 a.m. when his attention was drawn to some kind of an incident unfolding at Bathurst St. and Alexis Blvd. He heard raised voices and yelling from Mr. Valauskas, who was unsteady on his feet. He also saw a female try to come between Mr. Valauskas and another male who were standing face to face, and then she proceeded to walk away.

[9] Cst. Mijares said he and his escort were in a marked scout car, and they stopped to investigate because there was clearly something going on and they were trying to assess the situation. He didn't know if someone could have a weapon, and although he didn't see any weapons, he said it was possible that someone could have been hiding a knife. He described seeing 3, 4 or 6 males in addition to the defendant, and agreed that the males were hostile, and the defendant was outnumbered. The officer couldn't say who was the aggressor and said that he was trying to figure out what was happening.

[10] Cst. Mijares testified that suddenly, Mr. Valauskas boarded the motor vehicle at the scene and drove away at a high rate of speed along Alexis. He was astonished because Mr. Valauskas didn't have good balance, was yelling and screaming and belligerent, yet got into the car and accelerated away with almost jack-rabbit speed. The car drove for 50 meters then pulled abruptly into a driveway.

[11] Police followed, and Cst. Mijares said that when Mr. Valauskas got out, he was stumbling and smelled of alcohol. He came towards police and said "those guys assaulted me", and seemed agitated. Janet approached and was told not to interfere; Cst. Mijares couldn't say if there was any smell of alcohol from her. However, since he believed that Mr. Valauskas' ability to drive was impaired by alcohol, he arrested him and handcuffed him and placed him in the rear of the scout car.

[12] Cst. Mijares agreed that it was possible that Mr. Valauskas didn't see the officers before he jumped into the car, and the officer also agreed it was conceivable that Mr. Valauskas didn't see the police when he drove off. He further acknowledged that it was possible someone could have brandished a knife at the scene, and that Mr. Valauskas was trying to get away from a perilous situation.

3. The Law of Necessity

[13] In 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 humane criminal law cannot hold people to the strict obedience of laws in emergency situations 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".

[14] In 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 the rationale for 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.

[15] In the context of drinking and driving cases, Mr. Brody provided me with several decisions where courts have excused the offence on the basis of necessity: see R. v. Costoff, 2010 ONCJ 109 (Bourque J.); R. v. Desrosiers, 2007 ONCJ 225 (Keast J.); R. v. Gyetvan, [2005] O.J. No. 5813 (Shaw J., C.J.); R. v. L.S., [2001] B.C.J. No. 3062 (Bayliff P.C.J.); R. v. Stinson, [1999] O.J. No. 897 (Douglas J., C.J.); R. v. Crispin, [1996] O.J. No. 4235 (Renaud J., C.J.); and R. v. Fantham, [1989] O.J. No. 1896 (D. Ct., Vannini D.C.J.).

[16] Mr. Canton also provided me with a case where the Summary Conviction Appeal Court found that once the accused drove away from the scene of a party where he had been assaulted, his peril was lessened and he failed to consider available legal alternatives other than continuing to drive while grossly intoxicated. In that case, the court found there was no air of reality to the defence: see R. v. Sekhon, [2007] A.J. No. 517; upheld [2008] A.J. No. 490 (C.A.); leave to appeal to S.C.C. dismissed [2008] S.C.C.A. No. 297.

[17] A review of the cases indicates that the application and analysis of the law of necessity in drinking and driving cases is fact specific.

4. Analysis of Necessity in This Case

[18] The first issue to be addressed is that of credibility. The Crown submits that Mr. Valauskas' memory was murky about what happened that evening, and his evidence that someone threatened him with a knife should not be believed.

[19] However, I find that at least in part, the police evidence supported Mr. Valauskas' account of what happened. For example, Cst. Mijares agreed that the males at the incident were hostile and that Mr. Valauskas was outnumbered. Although Cst. Mijares didn't see any weapons, the officer said that it was possible that one of the males could have brandished a knife and then concealed it.

[20] Moreover, Cst. Mijares' testimony regarding Mr. Valauskas' sudden departure, his jack rabbit acceleration and his high rate of speed supported the defendant's account of his urgent need to quickly escape the scene and get to his home, which was a very short distance away.

[21] While it's true that Mr. Valauskas did not mention a knife to the officers when he first saw them, he did approach them and tell them that he had been assaulted. Once arrested, of course he had the right to remain silent, and there was no obligation upon him to explain anything. In the circumstances, I do not think his failure to explain the incident further can be used to diminish his credibility.

[22] Looking at the totality of the defence and Crown evidence here, I find Mr. Valauskas' testimony was plausible that he was outnumbered, that he was threatened with a knife, and that he drove the motor vehicle to escape the scene and drive to his home.

[23] In light of those findings, let me look at the three requirements of necessity as set out in Perka.

[24] First, was this a situation of clear and imminent peril that could not have been avoided?

[25] On behalf of the Crown, Mr. Canton submits that Mr. Valauskas should have foreseen that getting out of the car would have led to a confrontation, and that he could have avoided any peril by remaining in the car. Therefore, the Crown submits necessity cannot apply.

[26] There is some merit to the Crown's suggestion that getting out of the car was not a wise move. Indeed, Mr. Valauskas himself admitted that he didn't think that the males would simply say they were sorry and move on. However, he explained that he did think he could talk to them, and although there might be an exchange of words, he didn't expect to be beaten up or have a knife pulled on him.

[27] In my view, that evidence was reasonable in all the circumstances. While Mr. Valauskas could have foreseen some element of antagonism, it was not obvious that he would put his life in peril by complaining that these people were blocking the road. Moreover, even if Mr. Valauskas did contribute to the confrontation by his own drunken and aggressive behaviour, Justice Dickson was clear in Perka that the simple fact that someone has engaged in illegal or immoral conduct when the emergency arose will not disentitle them from relying on the defence of necessity: see Perka, at p. 16.

[28] Accordingly, I find that the first requirement of Perka is met.

[29] Second, was there a reasonable avenue of escape or legal alternative to jumping in the car and driving home?

[30] The Crown submits that Mr. Valauskas could have walked or run away, and pointed out that Janet in fact did walk away. Mr. Canton also noted that Mr. Valauskas had a cell phone, and could have called police from inside the car.

[31] Again, I find that the defence evidence was reasonable in the circumstances that Mr. Valauskas found himself in. When Janet walked away, the knife had not been pulled out, and the level of aggression was not as acute. With several hostile men in the area, one of whom had a knife, it was not unreasonable to view the nearby car with an open door as the only safe avenue of escape. Moreover, since Mr. Valauskas said he didn't see the police approach the scene, it could easily be said that most reasonable people in his position would not think of placing a call to 911 inside the car and waiting till police arrived. To put it in the words used by Justice Dickson in Perka, such a course of action might well be seen as a "counsel of patience" that would not accord with "normal human instincts".

[32] Finally, in terms of proportionality, the harm of impaired driving was an exceedingly brief one in this case. Mr. Valauskas drove about 50 meters or the distance of about 4 houses to get to his own driveway. Faced with the imminent peril of a hostile crowd and a man with a knife, I find that the harm inflicted was not disproportionate to the harm avoided.

5. Conclusion

[33] I find that Mr. Valauskas was indeed drunk and committed the offence of impaired driving on August 27, 2011. However, the totality of his evidence and that of the officer lead me to find that his conduct should be excused. There is an air of reality to the defence position that when confronted by a group of males with a knife, Mr. Valauskas was faced with an imminent peril with no other safe avenue of escape but to jump in the car and drive the very short distance to his home.

[34] Since the Crown has not proven necessity is not available beyond a reasonable doubt, Mr. Valauskas is entitled to be found not guilty.

Date: released to the parties on November 20, 2012; released in court on December 11, 2012.

Justice Leslie Pringle