Court File and Parties

Court File No.: Central East - Newmarket 14-05016 Date: 2016-02-24 Ontario Court of Justice

Between: Her Majesty the Queen — and — Rostyslav Turchanikov

Before: Justice P.N. Bourque

Counsel:

• T. Vanden Ende, for the Crown
• A. Spektor, for the accused, Rostyslav Turchanikov

Judgment

Released on February 24, 2016

Overview

[1] The defendant is charged with impaired driving. He does not deny any of the essential elements of the offence. On June 18, 2014, he was operating a motor vehicle and he was impaired by the consumption of alcohol.

[2] The defendant states he should not be found guilty of the offence as he asserts that he was behind the wheel of his automobile in the course of a situation of "necessity".

The Crown's Case

[3] The Crown's case was presented as an agreed statement of facts, a copy of the criminal record of Cory Plourde and pictures of the defendant taken by the police. I believe the following are the important factors from this evidence.

• A person named Cory Plourde was a guest at a party as was the defendant;

• Cory Plourde believed that the defendant had sexually assaulted his girlfriend although there is no indication that this was ever communicated to the defendant (the defendant was initially charged with sexual assault but that charge was withdrawn by the Crown);

• Cory Plourde sought out the defendant and wanted him to go outside with him;

• The defendant eventually went outside and Cory Plourde assaulted the defendant;

• The defendant had injuries to his head, including lacerations and this is revealed by the pictures;

• The defendant managed to get away from Cory Plourde and went to his car. He started his car and drove forward into a car parked in front of him and reversed into a car behind;

• Cory Plourde opened the car door and took the keys from the ignition;

• When the police arrived the defendant was asleep in the car. The Crown is not alleging care and control as the defendant did not have the keys in his possession when the police arrived at the scene;

• The defendant showed indices of impairment including smell of alcohol, glossy eyes, flushed face and unsteady walk, falling asleep on several occasions during the investigation, difficulty speaking and responding to the police;

• The defendant had significant blood on his face and there was a significant abrasion on his forehead;

• The police took him to the hospital because of his obvious injuries;

• The defendant did not tell the police that he was avoiding a beating by Cory Plourde, however the police were aware of the beating as Cory Plourde told the police that "I punched the guy the fuck out".

The Defence

[4] The Defendant testified in his own defence. He was 52 years old at the time of the offence (Cory Plourde was about 23 years old). The defendant was employed as a limousine driver. He was attending the wake of the son of a friend of his at the friend's house. There were lots of people there and the defendant drank several vodka drinks. He stated that he was tired later in the evening and he was feeling the effects of alcohol. He said he lay down on a couch and may have fallen asleep. He awoke to hearing screams and swearing from a man named Cory Plourde. He heard Plourde call him "motherfucker" and other derogatory names.

[5] Plourde was telling the defendant to "get outside". Plourde was distracted by something else and the defendant went upstairs to get away and tried to go into an upstairs bedroom when he heard Plourde shouting and swearing at him again. The defendant said that he did not want the sleeping children disturbed so he agreed to go outside. He stated that as he left the front door and went down the steps he was struck by the fists of Plourde. He stated that he was struck about his face upwards of 5 to 10 times. He fell down onto the ground and stated that Plourde began to kick him in the head. The defendant said that he felt the blood flowing down his face. He was able to roll over and pick himself up from the ground and he ran across the lawn and the 10 meters or so to his car which was parked on the road near the house. He stated that he could hear the defendant running behind him and he got into the car and fumbled with the ignition and started the car. He said that in order to get away from Plourde whom he believed was right behind him he went forward but struck a car parked in front of him and then reversed and hit a car parked behind him.

[6] He then felt Plourde opening the driver's door. He pulled back but Plourde was able to open the door and Plourde took the key from the ignition. He then has little memory other than seeing lights and then was aware of the police presence. He does not disagree with any of the observations of the police as contained in the agreed statement of facts. The defendant produced further pictures taken by his friend later the same day. It shows a significant abrasion to his forehead. He also states that he did not take the opportunity to answer more of the police questions as duty counsel had advised him not to answer the police questions.

[7] It was his evidence that he had no intention to drive that evening. It was his evidence that he ran to his car to forestall a further beating from Plourde. He felt that he had no other choice but to go to his car and drive away and go to the hospital to see to his injuries.

[8] The defendant was vigorously cross-examined. He agreed that perhaps he could have gone back into the house or sought help from others after the beating but at that instant (as he was getting up from the ground) all he could think of was to get to the safety of his car. The Crown explored the fact that he had several seconds upon getting into his car to lock the doors. The defendant agreed but stated all he could think of that moment was to get away. He was still fearful of Plourde and that he may break into the car and attack him again.

[9] Large portions of the defence evidence are confirmed by the observations of the police and indeed by the words of Plourde himself. I find that the defendant suffered a significant beating at the hands of Plourde. The defendant is an older man. He had no experience of fighting. He was being assailed viciously by a young man and he was being injured. There is no evidence that he was capable of fighting back. Other than the woman Anna in the house, he had no other friends at the wake.

Analysis

The Law

[10] 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.

[11] 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. In R. v. Gyetvan [2005] O.J. No. 5813, at para 18, the Court indicates:

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.

[12] 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.

[13] 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)

[14] I am assuming that the Crown is relying upon the driving when the defendant first got into his car. There is no suggestion by the Crown that the defendant was in "care and control" when the police arrived as he did not have his keys in his possession. Even if he had the intention to drive when he got into the car, such intention clearly changed after he lost his keys to Plourde.

[15] In R. v. Valauskas, [2012] O.J. No. 6233, Justice Pringle found that a man who originally got out of his car to engage his assailants, was justified in getting back into his car and driving for some 50 meters when one of his assailants pulled a knife. She stated:

…While it was unwise for the accused to get out of the vehicle and he could have foreseen some element of antagonism, it was not obvious that the accused would put his life in peril by confronting the men. Furthermore, even if the accused's drunken and aggressive behaviour did contribute to the confrontation; such behaviour did not disentitle him to the defence of necessity…it was not unreasonable (in these circumstances) for the 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 until police arrived. The harm of impaired driving was very brief and was not disproportionate to harm avoided.

[16] There are several cases in the Ontario Court of Justice with similar fact situations (imminent danger from assault) where the defence of necessity was made out in the context of a prosecution for drinking and driving: see R. v. Rajagopal, [2008] O.J. No. 1593; R. v. Gyetvan, [2005] O.J. No. 5813; and R. v. Stinson, [1999] O.J. No. 897.

[17] In my opinion, each of the three elements have an air of reality about them and thus the Crown has the burden of proof with regard to each issue. If the Crown satisfies its onus on any of the three elements, then the defence fails.

[18] I must deal with the issue of the credibility of the defendant. I noted in his cross-examination that he would often give long and elaborate answers when a simple one would do. I also note that he would sometimes blur the line between what he actually felt and did and what would be a reasonable (to him) explanation for what he did. As an initial matter, most of the essential facts of his assertion is accepted by the Crown and is contained in the agreed statement of fact which contains the essence of the Crown's case.

[19] The defendant was a 52 year old man. He was confronted by a young man and coerced to leaving the house with shouted threats of abuse. He was confronted with a very unusual situation and one that he was not used to. Immediately upon leaving the house, he was assaulted. He was punched and kicked. This was not an arranged fight, it was an ambush.

[20] The only real issues revealed by the Crown was the actions of the defendant after the beating. In my opinion, the defendant answered the questions honestly. He admitted that he may have locked the doors. He gave a reasonable explanation for not trying to go back into the house. It is likely he would not have made it if the assailant wanted to stop him. In any event, I do not think he had sufficient time to weigh any of these factors. He felt he had to get away, and so he ran for his car.

[21] The Crown has pointed out that he did not immediately bring all this to the attention of the police and indeed answered in an unequivocal fashion when asked about his injuries. As stated by Justice Pringle in Valauskas, ". . .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." My thoughts exactly.

[22] At the end of the day, I accept in large part, the evidence of the defendant.

Was this a situation of clear and imminent peril?

[23] This was more than just a threat of violence. This was the application of great violence by a person who easily overpowered the defendant. As I said before, this was not violence by consent, this was an ambush by a violent person against a person who (like the majority of us) has no experience with violence. The fear that this violence would continue was obvious. I accept that the assailant was continuing to yell at the defendant and that he followed him as he ran to his car. It was clearly a situation of clear and imminent peril.

Was there a reasonable avenue of escape or legal alternative?

[24] The Crown submits that the defendant could have run into the house and locked the door, got persons in the house to assist him, and in the alternative, once he reached his car he could have locked the door and did not need to attempt to leave the scene. As stated in R. v. Latimer, 2001 SCC 1, [2001] S.C.J. No 1, one must apply a modified objective test and taking into account the situation as it was presented to the defendant that night, as opposed to simply finding that there needed to be an exhaustion of all of the potential possibilities which we can consider with the benefit of hindsight.

[25] This event happened within a few moments. The decision to leave or lock and remain had to be made within seconds. The fear of the defendant was real. He had already suffered a beating and he had every ground to believe that he would receive a further beating if he was in the presence of the assailant Plourde. There was in this situation, no time for reflective thought.

[26] As stated in Valauskas, "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". That the defendant decided to continue his flight by trying to drive away was the most likely alternative in this situation.

[27] While I agree that simply locking the door was a potential alternative (it may still have had the aspect of "care and control"), I cannot say that in the circumstances of this case that the need to flee the presence of Plourde was not foremost in his mind. Notwithstanding the several seconds it took for Plourde to get to the car, he was still nearby and angry and belligerent. Would anyone in his situation have really acted otherwise? I think not.

Was the harm inflicted disproportionate to the harm the defendant sought to avoid?

[28] The defendant drove (albeit for a short distance) a motor vehicle while he was impaired. He caused some property damage to his car and 3 others (no evidence was led as to the amount of the damage). If he was able to continue to drive, there certainly was the potential for more serious consequences. The harm which he had already suffered was considerable. His fear of further injury was real. It was more than just apprehension.

[29] I find that in these circumstances that the harm inflicted by the commission of this offence was not disproportionate to the harm that the defendant sought to avoid.

Conclusion

[30] In conclusion, I am not satisfied beyond a reasonable doubt that the Crown has displaced the defence of necessity and I therefore find the defendant not guilty of the offence.

Signed: "Justice P.N. Bourque"

Released: February 24, 2016