Court File and Parties
Court File No.: Central East - Newmarket - 12-00819
Date: 2013-07-05
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Mark Dehal
Before: Justice P.N. Bourque
Judgment
Released on July 5, 2013
Counsel:
R. DeChellis, for the Crown
C. Gill, for the accused Mark Dehal
BOURQUE J.:
Background
[1] The defendant was hired by two women in business who needed a driver to transport a photo booth to and from special events. It would appear that there was a falling out early in the relationship and the events of January 22, 2012 have led to charges against the driver (the "defendant") of dangerous driving causing bodily harm, leave the scene of an accident, and theft of property (the "photo booth").
The Crown Witnesses
[2] Crown witness Terra Browning is a partner in a business with Joanne Ashton. They formed a business to rent out a photo booth to persons holding special events (weddings and the like) so as part of the gathering, people could take photos of themselves.
[3] As part of the business, they bought a photo booth from a company in New York State and had it shipped to them. It cost them over $10,000.00.
[4] They put an advertisement in an on-line service called Kijiji, looked for a "professional and responsible driver" to assist with transporting the photo booth to and from events. They specified that the booth was 400 pounds and is 3 feet-by-6 feet, and a dolly and transportation was needed in the moving, loading and unloading of the photo booth. The advertisement specified that they would pay $100.00 per event (round trip).
[5] The defendant responded by email and was hired. The first event was at a downtown Toronto Hotel on January 19, 2012 and the defendant drove the booth there and attended the next day to pick it up and take it to another event location. It would appear that something happened and the relationship between the defendant and the women began to sour. The witness states that she arrived at the next job and when she got there, she stated that her partner seemed upset and she was under the impression that there had been an argument. She went to the site the next day and met with the defendant and her partner to pick up the booth. She stated that she brought a male friend with her because she never deals with "men". She actually in cross-examination went into great detail that for her entire career (she is a national sales manager for a hotel), she never has to meet with men, or be alone with a man.
[6] She stated that the photo booth was picked up and did not describe any incident. She stated that her friend ("Leon") went in the truck and she followed in her car and her partner followed in another car. She stated that when she got to the address in Vaughan where the photo booth was stored, she stated that they stopped on the street and Leon came back to her car with the defendant. She gave $65.00 in cash to Leon which she says was the balance of the money owed to the defendant for the work that he did for them. She stated that he had already gotten $160.00.
[7] She related that the defendant said to her: "who do I talk about payment?" and she said that she gave the $65.00 to Leon. The defendant stated: "No, I want $150 for Friday and $150 for Saturday and $60 for the parking ticket and I want $80 for the dolly rental". She said that this was the first time she heard that he had to rent a dolly. She stated that she had never before discussed these amounts with him. She said to him that as per the agreement, it was $100.00 for each job and $25.00 for the parking ticket. He then said to her: "If you're not gonna give me the money (and he swore), your lawyer can talk to my lawyer and in the meantime, I am keeping the booth". She says that he ran to his truck and called it a "slow jog". She says that she and Leon walked briskly after him and Leon said: "Where are you going you're not leaving with their booth".
[8] She stated that she was called 911 at this point. She said that the defendant got into his van (she described it as a white dirty and rusty cube van), and Leon said "You're not leaving with their booth" and the defendant said "watch me". The defendant closed the door and Leon went and stood in front of the truck. Her partner was just pulling up in her car. The witness stated that the defendant "slammed on the gas" as Leon is in front of the truck and Leon jumped up onto the hood of the van. The defendant continued driving and she saw the van go and turn left around the crescent. She states that Leon was screaming "stop". She ran to the place where the van would come out onto the other street and saw Leon lying on the ground and she just saw the van turning right and out of her view. She said the Leon was moaning and unconscious and he was not coherent. Leon stood up but was stumbling. She states that he was eventually taken away in an ambulance with a neck brace and she saw him in the hospital later. He had a very large bump (a goose egg) on the left side of his head.
[9] The witness denied that she brought Leon along to the scene in order to intimidate the defendant as she knew there would be trouble over the amount owing to the defendant. She denies that Leon chased the defendant into the van and threatened him and jumped onto the side of the van before the defendant drove away.
[10] The witness stated that she and her partner still do not have the photo booth back. Exhibit 4 is an email from the defendant which she received on January 23, 2012. In it the defendant states they will not receive their booth until the "matter is over". He further states that he wants damages for the dent in his hood. He also states that he will notify others of "how your guys are rip off artists".
[11] I note he does not mention anything in that note about being attacked by the complainants, only that he was "ripped off".
[12] As far as this witness is concerned, the defendant made unreasonable demands upon her and her partner, and when not complied with he took their "photo booth" and when their friend Leon tried to stop him, he was set upon by the defendant's vehicle.
[13] Her evidence gives me some concerns in the following areas:
(a) If the defendant was making last-minute demands for extra money, what was causing the witness's partner to be upset at the last event? There was no indication that the defendant was causing any other concerns whatsoever. It is clear that money and the rate of remuneration was the issue with the defendant and this was an issue before the discussion at the side of the road;
(b) The witness's explanation for bringing Leon along with her (that she would not deal with men) is not supported by anything. I do not believe that she has gone through a business career and keeps the important job that she does, and is able to do so without having any face-to-face contact with male persons. It also becomes hard to believe that when she asked Leon to come along, she did not tell him anything at all about what was going on;
(c) It follows that there was a reason for Leon to come along and it clearly involved the witness wanting to have some male support when she gives the defendant much less than he is demanding. I thought it interesting that when she was confronted with the fact that her business partner had made the defendant drive well out of his way for the first trip (from Milton to Mississauga and back and then to Vaughan and then downtown Toronto), she did not think that this was something for which the defendant should receive more compensation. Her response to be confronted with this very unfair situation was to say that he did not have to take the job. That indicated to me that she was then (and perhaps now) totally inflexible to the issue of compensation. In my opinion she had made up her mind and she was going to act on this conviction.
[14] Crown witness Leon Johnson says that he is a friend of Terra Browning and Joanne Ashton and had met them at their pool and billiards club. He has a criminal record for a domestic assault in 1993. He is presently under charge involving (in his words) a road rage type of incident. He was cross-examined about that incident. He stated that a man cut him off and so "in order just to talk to him", the witness stopped his vehicle in a live lane of traffic on a major street (Mcgachlin Street in Brampton) and got out and went to the other person's car.
[15] He describes a scene where the other driver has his wife and child in the car and somehow the other driver (and his wife) were the aggressors. He was the only person charged in that incident. He resisted the obvious suggestion from defence counsel that he stopped his car in a live lane of traffic on a major street because he was consumed with such a rage that the danger inherent in stopping his car there was lost on him at the time. He is a very sturdily built man in apparently good physical condition.
[16] He states that Terra Browning called him up on January 22, 2012 at about 2:00 p.m. and asked him to come with her to pick up the photo booth from the recent event at the Lumina in Toronto. He states that she did not say why she wanted to him to come with her and for some reason not really explained, he did not ask why she wanted him to come. He states that they met at a gas station and she drove him to the location some 10 minutes away. Upon arrival he helped put the photo booth in the van of the defendant and (again for some unexplained reason) he got into the defendant's van and drove with him to where the photo booth was being stored (an address in Vaughan, Ontario). He also states (and this is not confirmed by the witness Browning) that she gave him some cash money and he did not count it and put it into his pocket. He did not ask what it was for and only relates that she asked him to "hold" it for her.
[17] He does not speak of any conversation with the defendant but moves right to their arrival at the house. He says he got out of the passenger side and walked to the back of the van. He says that Terra Browning and the defendant were at the back of the van and he only heard the defendant state that "you have your lawyer call my lawyer". He states that when the witness asked "what's going on?", Terra Browning shrugged her shoulders and the defendant ran to his van, shut the door, locked it and reached all the over to the passenger side and locked that door as well.
[18] The witness said that he walked in front of the van and stood about a foot from the front of the van and in front of the driver's side headlights. He said he put his hand up and said "don't move the vehicle or we will have you charged with theft over". He states that he looked the defendant dead in the eye and the defendant put the vehicle in drive and proceeded to drive it forward. The witness stated that he was taken by surprise and was unable to move away and ended up "flopping" onto the hood. He stated that the defendant sped up and he was holding onto the windshield wiper and the side mirror. The car drove for about a minute and went around the crescent. He stated that the defendant weaved the vehicle back and forth and hit the brakes hard on one occasion. He stated that the vehicle made a sharp right-hand turn on leaving the crescent and he fell off the vehicle.
[19] He does not remember anything after that except briefly seeing the paramedic and then woke up in the hospital later that night. He remained the hospital for two days. He suffered a large bump on his head, dizziness for several weeks, soft tissue injures to his back, hearing loss in his left ear for several days and headaches for several months. He states that he is still taking physiotherapy, some 8 months after the incident.
[20] He contradicts the evidence of Terra Browning in his description at the roadside. She describes him and the defendant coming together up to the car and she giving him $65.00 with instructions to give it to the defendant after the defendant has taken the photo booth off the van. He does not describe that but speaks of getting some money from her, without any instructions at the restaurant. This seems somewhat fundamental and difficult to reconcile. He does agree with the witness Terra Browning in that there does not seem to be any discussion (or indeed any interest) in the witness inquiring as to just what he was there for. This business was not his and he was not related to any of the partners. He is a sturdy and physically fit man. I also do not understand why he chose to travel in the van with the defendant back to the house in Vaughan. Why not go with the person he came with, if as he seemed to suggest in his evidence that he was there only to assist the move? He also agreed that in the entire trip in the van (it had to be at least 20 minutes) he spoke not a word to the defendant. That belies his assertion to the court that he was friendly to the defendant and shook his hand when they first met.
[21] The only possible conclusion is that he was there to add weight to the business partners in their dispute with the defendant over the monies owing for the work that he had done. The fact that they would refuse to admit the obvious leaves me with some difficulties with their entire version of the events.
[22] I also note in cross-examination, his description of how he came onto the hood of the van was not without some difficulty. He admitted he could not have simply stood at the front of the van and grabbed the windshield wiper and the side mirror, but he refused to accept the suggestion that he actually "jumped onto the hood", or (more likely), put his foot on the bumper to hoist himself onto the vehicle. He resisted the suggestion that he said anything further to the defendant either before the van moved away or beforehand. If events were unfolding as he described, surely he would have yelled at the defendant to stop the van. Apparently he did not do so.
[23] His description of the speed of the vehicle is at best an exaggeration. To have achieved 70 kilometres an hour in those circumstances would be a stretch. He stated that the vehicle slowed down quickly at one occasion but still insisted that it was going 30 kilometres an hour. He resisted the suggestion that the vehicle was going slowly and slowed down several times so he could safely get off.
[24] Finally, I think that defence counsel was right to suggest that the defendant's attitude on January 2, 2012 with the road rage incident in Brampton was probably similar to the defendant's demeanour on this occasion. The two incidents are strikingly similar.
[25] Crown witness Joanne Ashton is the business partner of Terra Browning. She describes setting up the business and buying the photo booth. She states that with regard to the hiring of the defendant, she let Terra do the advertisement and she wanted to be the person who actually went to the events. She stated that she was unsure of conversations with the defendant and initially whether there was any discussion about money. She thought that the defendant had agreed to the amount set out in the advertisement. She did agree that she spoke to him about him renting a dolly, but she thought he may have also tried to buy one.
[26] She described that for the first job with the defendant, he had to pick her up in Milton. She believed that they stopped at her house in Mississauga. She also remembered that she had forgotten the key to the booth, so they had to drive back to Milton to get it. She stated that from the outset, he was concerned about the extra costs for gas.
[27] They picked up the photo booth in Vaughan and went to the event in downtown Toronto. She described him as not being in good temper, but the booth was delivered and she was there for the event.
[28] He had to return the next day to pick up the booth and take it to another event in Toronto. She spoke of further discussions with him about money. At one point he pointed out a $60.00 parking ticket and she said she agreed to pay $25.00 of it. She also spoke about giving him some more money, perhaps for gas and perhaps for the "dolly". She gave the impression that she had left things that she would speak to her partner Terra and things were negotiable.
[29] The booth was dropped off at another event and it was clear that the defendant was very unhappy about the rate of remuneration. She continued to describe him as being in bad temper and she contrasted this with the good impression that she had got from him on the phone. She volunteered in examination in-chief that the amount they were willing to pay him, in retrospect, was not sufficient.
[30] She stated that she wanted to leave the issue of the money to Terra as she was the experienced businessperson. She told Terra that she wanted her to be there when the booth was picked up.
[31] She states that all attended at the last job on the afternoon of January 22nd, including Leon. Terra had stated that she brought Leon because her boyfriend could not come. The witness stated that she had asked Terra to deal with the compensation issue at the restaurant and not leave it to when they got to the house in Vaughan. She was of the impression that Terra was going to be inflexible about the issue of compensation. The witness had given the defendant some $160.00 already.
[32] The witness stated that when she arrived at the house in Vaughan, the defendant, Terra and Leon were standing beside the van which was parked on the road in front of the house. The witness heard only the words of the defendant saying that he was going to take the booth and that the lawyers would deal with it.
[33] She stated that he went into his van and Leon followed. She did not say that anyone ran. She was still sitting in her car. She stated that somehow, she cannot say how, that Leon was on the hood of the van and the van was moving forward. In cross-examination she admitted that in her statement to the police, she described Leon as "jumping on the van". She also in cross-examination described that Leon was trying to stop the defendant from getting into the van. She used the word "brawl" at one point at describing the situation.
[34] She saw it for a few seconds go around the crescent and she did not see the van again. In her testimony on September 28, 2012, she referred to the speed of the defendant's vehicle as "pretty good". When trial resumed on April 23, 2013, she was pressed by the crown to elaborate. She stated that she saw it only for a few seconds and could not estimate any speed, although she thought that it did not slow down and was going too fast for Leon to get off the hood.
[35] She states that she was told by Terra to follow the van in her car and Terra was on the phone. She went around the crescent and when she got around, she saw Leon lying on the ground and the van was gone. She stated that Terra came up afterwards. She saw that Leon was groggy and had been hurt but cannot describe any of his injuries. She added that a few moments after coming up to Leon, she got a call from the defendant, and he said to her: "What the fuck Joanne, you can kiss your photo booth goodbye what are doing a big nigga to scare me, you're messing with the wrong guy".
The Defence
[36] The defendant testified and gave a version of events which is at odds with the Crown's case in the following respects:
(a) The defendant denies that he agreed to the amount of $100.00 for each pick-up and delivery. It was his evidence that notwithstanding the words of the advertisement which spoke of $100.00 (round trip) he thought that it meant the round trip for the delivery (there and back) and the round trip for the pick-up, were two separate matters. He admitted that he could have been confused. As I look at it I believe that it was not clear;
(b) The defendant was led to believe that the extra distances involved (especially returning to Joanne Ashton's home) and the parking ticket and the rental of the dolly were things that could be discussed. In fact, he said that he was not aware that Joanne Ashton had a partner (Terra). He believed that he was entitled to a total of $440.00, for the two jobs including $200.00 each and $80.00 for renting the dolly and $60.00 for the parking ticket. With the exception of the dispute about the round trip, he was not entirely incorrect. He said that he sent an email but the crown pointed out that he did not print out the e-mail to have in court (I will refer again to this e-mail later in this judgment);
(c) He was surprised that Terra Browning was only offering $225.00;
(d) He believed that he had the right to keep the goods he was delivering as he had not been paid, and made reference to the Warehouseman's Lien Act;
(e) He felt threatened by the presence of Leon at the restaurant and in his vehicle and at the roadside in Vaughan;
(f) He asserts that Leon did actually threaten him and he genuinely feared for his safety. He stated that at the back of the vehicle, Leon reached for his keys and when he moved towards the driver's door of his truck, Leon ran after him and tried to snatch his keys. He stated that he quickly got into the van and locked the doors and Leon climbed onto the hood;
(g) He asserts that it was Leon who climbed onto his vehicle before he started to move and that Leon was continuing to threaten to kill him. He stated that Leon bent the frame of his driver's door when he climbed onto the vehicle and that he was pounding upon the windshield and cracked the windshield, and stated several times that he would kill him;
(h) He moved at a moderate pace and slowed down several times in the course of the movement to allow him to get off;
(i) He did not take any specific action to "shake" him off the vehicle. In fact it was his evidence that the Leon pushed himself off of the vehicle, and he was unaware, until he spoke with Joanne later that Leon had been hurt.
[37] Ultimately, it was his evidence that he felt that Terra brought Leon along to threaten him into accepting much less than he was entitled to. He was surprised and he said he felt threatened.
[38] The defendant was extensively cross-examined. He did not resile from his testimony. He has a criminal offence of several serious matters between 1991 in youth court and 1998. He readily admitted his record. I don't think it has much affect upon his credibility. He was very expansive in the witness box, and quite frankly, was sometimes loud and argumentative with the Crown. He sometimes gave long answers to simple questions and would pose rhetorical questions when answering some questions.
[39] In one exchange, the defendant was cross-examined about an e-mail he said that he sent to the complainants setting out the specifics of his claim for more money before the incident of January 22, 2012. He could not produce it and the Crown felt that this impugned on his credibility. I noted that the witness Terra Brown had made some indistinct reference in her evidence to such an e-mail. After the end of trial, but before giving judgment, the defendant located the e-mail (it came from the complainants who were relying upon it in a civil suit). With the consent of the Crown, I allowed it to be filed as an exhibit. It further supports the defence assertion that he was demanding more compensation. At the time of the incident, the complainants were aware of his demands.
[40] At one point during the testimony of a crown witness, he left the court room. He was clearly exhibiting strong emotions and that is how I interpret his actions. He felt that lies were being told about him. I don't think any of these actions seriously impact his credibility. It was his view that he was being unfairly treated by these people and that they had brought along Leon to threaten and intimidate him. He was incensed by this.
Findings of Fact
[41] Based on all of the evidence in this matter, it is my belief that there was a dispute between the defendant and the owners of the photo booth business about the amount of his compensation. It is clear that he was asked to perform several other tasks other than that described in the original Kijiji Advertisement. He had to transport not just the photo booth, but also the owner Joanne. He had to go a great distance beyond the contract because she forgot the key to the booth. He had to rent a specialized dolly to deal with the size of this photo booth. He got a ticket sitting at the loading dock of the first job. I also find that the advertisement was not clear as to the amount of compensation. For example, the term "round trip" could mean a delivery, and return to pick up and then a further delivery to where it was being stored.
[42] I find that Joanne and Terra were quite aware very early on that the defendant was seeking further compensation. I find that Joanne was sympathetic to the defendant's wishes and in fact agreed to meet some of them (the extra gas for the extra trip and the parking ticket) but Terra was not. I find that Terra had decided that the defendant was not going to get any further compensation.
[43] I find that Terra brought Leon along with the express purpose of assisting her in resisting any claims by the defendant that she did not wish to meet. Her evidence that Leon came only because she did not like to deal with men is totally fanciful and beyond belief.
[44] I will go further, as I believe that Leon's role was to intimidate the defendant. Having made that finding, the defendant's version of the events at the side of the road on January 22nd, becomes more believable than the version of the complainants. I am reinforced in this belief on the evidence of Joanne in cross-examination. Her evidence largely confirms that of the defendant. Her evidence of the speed of the defendant's truck is totally inconclusive at best, and can therefore not corroborate Leon's testimony.
[45] I do not find that the defendant previously intended to take the photo booth and attempt to run over Leon. I find that he reacted to the actions of Leon, and as Leon's actions escalated, so did the actions of the defendant. I find that Leon placed himself on the hood of the defendant's car and pounded on the windshield. I find that he threatened the defendant. I find that the defendant was motivated by a desire to get away from Leon. I find that he did not have a cell phone, and simply sitting in his locked car and calling 911 was not an option.
[46] I find that his speed did not exceed 35 kilometres an hour and he did slow down to an almost complete stop on at least two occasions. I cannot find the exact mechanism of his coming off the vehicle, whether by centrifugal force or by intentionally jumping off. I find that the vehicle was moving when he came off.
Did Leon Johnson Suffer Bodily Harm?
[47] Bodily harm is described as something which is more than trifling or transient in nature. A two-day stay in the hospital, a large bump on the head, several weeks of headaches and continuing physiotherapy points to injuries which clearly can be classified as more than trifling and transient in nature, although the lack of any more serious injury in these circumstances leads me to the conclusion that when he came off the vehicle onto the road, the vehicle could not have been travelling very fast. I do find that the defendant's hurt in this matter constitutes bodily harm as defined in the Criminal Code.
Dangerous Driving
[48] I believe that even if I accept the evidence of the defendant in its totality and make all the findings of fact in his favour, the driving, even at a slow pace, with someone hanging on to the hood of your vehicle, whether he is threatening you or not, could be dangerous driving in all of the circumstances. The question of speed however is a circumstance I can take into account. The defendant's statement of the driving is quite different from the complainant Leon. I accept the defendant's statement that he was driving slowly and indeed slowed right down to let the Leon dismount from the truck. Leon chose not to do so. The complainant continued to threaten the defendant.
[49] To drive any distance at any speed, in those circumstances could be seen, in my opinion to be a marked departure from the standard of care of a reasonable driver: R. v. Hundal and R. v. Singh. Using the modified objective test, I find that this is dangerous driving. I do not make a finding of guilt on this issue at this stage, but only state that the Crown has proved the elements of the offence of dangerous driving causing bodily harm beyond a reasonable doubt. It remains to be seen whether the issue of necessity precludes me from making a finding of guilt.
Necessity
[50] The defendant raised the issue of necessity. Simply put, he states that he drove away from the scene because he was threatened by Leon.
[51] The defence of "necessity" is set out in R. v. Perka, [1984] 2 S.C.R. 232. There are three elements to the defence of necessity:
- Imminent danger and peril;
- No reasonable legal alternative to what the defendant did;
- A relationship between the harm inflicted and the harm avoided.
[52] For the defence to be successful, I must have a reasonable doubt about each of these elements. Where an accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt (R. v. Gyetvan, [2005] O.J. No. 5813, para. 18):
The state of the law, therefore, is that for the necessity defence to prevail, the trial judge must be satisfied that there is evidence sufficient to give an air of reality of each of the three requirements. Having considered the evidence in this case and the applicable law, I am satisfied that the evidence here is sufficient to give an air of reality to each of these requirements.
[53] In a significant review of the law in R. v. L.S., [2001] B.C.J. No. 3062, the justice observed 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.
[54] In R. v. Latimer, 2001 SCC 1, [2001] S.C.J. No. 1, the court observed 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. (para. 33)
[55] After assessing all of the evidence, I find that there are several aspects to the Crown's evidence which would make it impossible for me to accept the evidence of Leon Johnson and Terra Browning. The most important issue (as I have discussed above) is their denial that Leon's presence there had anything to do with the dispute the partners were having with the defendant over the issue of his remuneration. It is clear from the evidence of Joanne Ashton (and I accept the bulk of her evidence) that it was Terra who would be taking care of that issue, and it is clear that notwithstanding Joanne's feelings in the matter, that Terra was going to be "inflexible".
[56] I believe that Terra and Leon were not being candid with the court when they refused to acknowledge that Leon's presence there was to assist Terra in getting her way with the defendant on this issue. That in my opinion colours all of their evidence about what happened at the roadside. I also note that in cross-examination, Joanne was more forthcoming about Leon's aggression. She described him as trying to stop the defendant from getting into his van and also that there was a "brawl", and that "Leon jumped onto the hood of the van".
[57] Leon's previous conviction for a crime of violence and his recent road rage incident say to me that he was more than capable of acting as the defendant said that he did, that is, in an aggressive manner towards him, not only at the house but in his attitude from the time they met at the restaurant.
[58] I therefore am left in the position that I do accept, for the most part, the defendant's version of events, that is, Leon did threaten him by words and gestures, and that the defendant was fearful that he could carry them out. I also accept that the defendant's intention was simply to leave the scene without any further incident.
[59] I explicitly reject the Crown contention that the defendant planned in advance to dispute the amount he was going to be paid and keep the booth until his demands were satisfied. Has the Crown displaced any reasonable doubt I have about all the elements of necessity? The only real question is whether the defendant could have undertaken some other reasonable means to protect himself. Was it reasonable for him to simply remain in the vehicle with the doors locked and wait for the fury of Leon to subside. From this perspective, that was clearly an objective possibility.
[60] However, as stated in Latimer, it is a modified objective test based on the point of view of the defendant at the time of the event. From his perspective, a strong and powerful man was attempting to come into his car. He was being threatened. Finding that he was not driving at an excessive speed and that he gave the complainant an opportunity to dismount, I cannot say that his actions were objectively unreasonable. Should he have exhausted all other possible alternatives which with the benefit of hindsight would present themselves? Perhaps once around the crescent he could have been assisted by passersby. This also may have been a possibility but it falls into the same category as the above.
[61] The other issue to consider is the consideration of the proportionality between the harm actually inflicted and the harm avoided. If the defendant roared off at high speed, that fact would answer the question. Objectively coming off a vehicle moving at high speed would be out of proportion to the fear of being assaulted. I find that objectively, moving the vehicle slowly (no more than 35 kilometres an hour) and slowing to under 10 kilometres an hour on more than one occasion to allow Leon to dismount, is not disproportionate.
[62] In conclusion, I find that the defence of necessity was raised so that I have to be satisfied beyond a reasonable doubt that the at least one of the requirements in R. v. Perka has not been met. I am not so satisfied and I allow the defence and find the defendant not guilty of the offence of dangerous driving causing bodily harm. The recent case of R. v. I.R., 2013 BCSC 672 is illustrative of the defence of necessity in a dangerous driving situation.
Is the Defendant Guilty of Leaving the Scene of an Accident?
[63] With regard to the issue of the fact that he left the scene, it was his evidence that he called Joanne shortly after leaving by stopping at a store and using a pay phone (which confirms that he did not have a cell phone). The evidence of the defendant and Joanne was similar other than his choice of some language. He expressed to her his rage at what he believed was the threatening conduct of Leon and stated that he would return the photo booth when his bill was paid. It also shows that he was making no attempt to avoid any civil or criminal actions. He also spoke to the police shortly thereafter. He did not deny to anyone his role in affairs. His contact information was known to all.
[64] The Crown states that he should have immediately returned when she said that Leon was hurt. Perhaps, but the fact that he spoke immediately to Joanne and then to the police is evidence that notwithstanding the presumptions in section 252(2), the defendant did not possess the intention to escape such criminal or civil liability. Section 252(2) presumption deal implicitly with an unknown driver.
Did the Defendant Commit Theft?
[65] The defendant took the photo booth of the complainants. He did so because he felt that he was not being paid what he deserved for his services. The defendant asserts that he had a "colour of right" to the booth and thus cannot be convicted of theft. As stated in R. v. DeMarco, 13 C.C.C. (2d) 369 (Ont.C.A.), an honestly asserted proprietary or possessory claim constitutes a colour of right notwithstanding it is unfounded in law or in fact.
[66] Further, an absence of fraudulent intent may exist apart from a colour of right as conduct to be fraudulent must be dishonest and morally wrong. I do not think that as a matter of law, the defendant had any right to keep the property of the complainants. However, based on his evidence, I believe that his possessory claim is honestly asserted and thus affords him a colour of right. The subsequent offence of possession of stolen property also fails for lack of the requisite intent.
Conclusion
[67] I find the defendant not guilty of all of the charges before the court.
Released: July 5, 2013
Signed: "Justice Peter N. Bourque"
