Court Information
Ontario Court of Justice
Date: 2016-03-16
Court File No.: Central East - Newmarket 4911-998-14-04625-00
Parties
Between:
Her Majesty the Queen
— and —
Wilson Hunt
Judicial Officer and Counsel
Before: Justice David S. Rose
Heard on: January 4, 2016
Reasons for Judgment released on: March 16, 2016
Counsel:
- S. Kumaresan, for the Crown
- S. Wilson, for the defendant Wilson Hunt
Judgment
ROSE J.:
[1] Mr. Hunt is charged with Impaired and Over 80 Operation with an offence date of June 21, 2014. In her helpful written submissions Ms. Wilson concedes that there is no issue that Mr. Hunt was driving while impaired and that his Blood Alcohol Content was Over 80 at the time of the driving. As Ms. Wilson puts it, "The real issue in this case is whether or not the defence of necessity applies."
Factual Background
[2] Mr. Pooyan Zargar is a security guard working for the Terrace Banquet Hall at Rutherford Road and Jane Street. The Hall itself has 3 rooms and can hold up to 1000 persons. On the evening of June 20 – June 21, 2014 he was working security between the parking lot and the main building. His primary task was to ensure that no alcohol left the building and to make sure that patrons were safe. He said that nothing really occurred until about 12:45 a.m., when an altercation happened between one patron and several others. One guest, a man with tattoos got into a White BMW which had the windows down. He could not say how far that car was from the banquet hall, and didn't know where it was parked. Another patron, who he described as named Michael, was punching the other man through the open window. With the help of some of Michael's friends, Michael was pulled off the car, at which time the BMW drove off but hit a parked SUV. The man with the tattoos was in the car when Michael came toward him. He could not see if he was in the passenger side of the car or driver's side, but later clarified that the guest was in the driver's seat when he was pulling Michael off the car, and didn't see him move from that seat. After the collision the front of the BMW was damaged, as was the back of the SUV. Mr. Zargar called 911.
[3] Mr. Zargar described the guest in the BMW as being 6 feet tall to 6'1 or 6'2, large build, bald, in his 40s with tattoos. He had tattoos on his neck and under the eye. He had seen this guest going in and out of the hall, but wasn't paying particular attention to him. He didn't notice if he had any injuries before he left the premises. He had also seen Michael numerous times that evening.
[4] Mr. Zargar described the guest in the BMW as being intoxicated. He had slurred speech and his face was red. It looked flush. He could not describe what the two men were arguing about, but it was his impression that the man in the BMW started it. He conceded that the argument could have started inside the banquet hall outside his view. The man in the BMW suffered injuries, including a bloody nose.
[5] Mr. Zargar elaborated to say that when Michael was punching the guest in the BMW, the car was still. When it drove off after Michael was removed from the car, the BMW drove to the left of the building within the parking lot area. It stopped near the loading dock area. After the car hit the SUV he went over to that scene and told him not to leave and that the police were on the way. The police did arrive within a couple of minutes and dealt with a number of guests. The man in the BMW was arrested, but so were other patrons.
[6] Mr. Zargar said that in his prior encounters with the guest and Michael both of them would comply with his direction to leave alcohol inside the building before exiting to the parking lot.
[7] PC Stephanie Cotoure has been a police officer for 11 years, 6 of it with York Regional Police (YRP). On June 21, 2014, at 12:57am, she received a radio call to 1680 Creditstone regarding a Motor Vehicle Accident involving personal injury. She wasn't far from that location so she went there, arriving shortly thereafter. After going to the main doors of the banquet hall she was directed to the south side of the building where she saw a large crowd of 20 – 30 people. There was a white BMW and the accused standing outside of it, keys in hand. She started asking around who was driving and the accused was pointed out. He was identified later as Wilson Hunt, the accused.
[8] Mr. Hunt had his hand on the door of the car and was swaying. He was using the vehicle to stand up. Mr. Hunt had blood on his face and arms. At 1:01 a.m. he was placed under arrest for impaired operation. By then other police officers were on scene. She requested Emergency Medical Services to attend. Mr. Hunt had a very strong odour of an alcoholic beverage, and was very unsteady on his feet. She saw the BMW to be damaged although she could not recall exactly how.
[9] PC Cotoure did not go to the hospital with Mr. Hunt, but she confirmed that he had a bloody face, and the blood was dripping onto his shirt. His arms were covered in blood too, although she didn't note any specific injuries. She was the officer in charge but did not obtain any medical records. She testified that Mr. Hunt was cooperative.
[10] PC Holden was another YRP officer on scene that night. He arrived at the banquet hall at 1680 Creditstone at 12:59 a.m. PC Cotoure was already there. He saw the White BMW to have the front end smashed. Mr. Hunt was being placed under arrest by Cotoure as Holden arrived. In Holden's evidence Mr. Hunt had an odour of alcohol coming from the mouth area, was not steady on his feet, and had a cut on his nose and in the area of his eye. His face looked like it had been in an accident, "…or something like that". Mr. Hunt was read his rights to counsel, cautioned and at 1:15 a.m. given a Breath Demand. EMS arrived to check on Mr. Hunt. Mr. Hunt was unsteady on his feet as he walked to the EMS unit. EMS determined that Mr. Hunt should be taken to the hospital, which they did.
[11] At 0146 they arrived at the hospital, and at 0156 Mr. Hunt was taken to a room for treatment. Mr. Hunt spoke with a lawyer and was handed over to a Breath Technician at 0240. Nurses were attending to Mr. Hunt, but PC Holden never spoke to anyone about his medical condition. At 0247 Mr. Hunt was moved to a CT Scan area, and back to his original room. He was then taken to an X-Ray room at 0314, still wobbly on his feet. At 0430 Mr. Hunt was taken to a room for stitches to his nose and face. At 6:00 a.m. he was again taken for X-Rays.
[12] No pictures of Mr. Hunt's injuries were taken, nor were copies of his medical records obtained. Mr. Hunt complained of being assaulted, and PC Holden relayed that to the officers on scene. Holden observed Mr. Hunt to have lacerations to his nose and blood dripping from his face. He could not say how many stitches he received at the hospital. Mr. Hunt was cooperative with PC Holden.
[13] The Crown put documents into evidence, namely a Breath Technician report and also a Toxicology report, and then closed its case.
Defence Evidence
[14] Mr. Hunt testified in his own defence. He is 37 years old and has a very lengthy criminal record, commencing in 1994. It includes 12 convictions for offences against the administration of justice, 5 property offences, 14 offences of violence and 4 driving offences.
[15] Mr. Hunt testified to going to a stag party the night he was arrested. He went there with his friend Richardson, arriving at 9:00 or 9:30. It was an open Bar and Mr. Hunt enjoyed it, having 8 – 10 bottles of Corona. The plan was to leave the party with his friend. Mr. Hunt doesn't have a licence and had no plans to drive home. Mr. Hunt said it may have been 8 – 12 bottles of Corona, which left him intoxicated, but not fully. He described himself as being tipsy only.
[16] At one point they did take steps to leave the party. He left on his own to pull up the car. His evidence was confusing about the sequence of how he left in advance of the rest of his group but at one point he was told by the owner of the car to go to the car because it was running. The driver would come back. On the way to the car he heard a derogatory comment about the tattoo on his face. It was a male speaking. That man had about 10 – 12 guys with him.
[17] At this point Mr. Hunt testified to words being exchanged. An object was smashed on his face which cut his face. He fell to his knee and was kicked multiple times. At this time he was between the entrance of the banquet hall and the car. He broke away and got into the passenger side. The male who started it ran to the driver's side and tried to get to him. He was hit with another object, suffering a fractured skull, nose and jaw. He was bleeding profusely. He testified that he went to the car because he was being assaulted and had to go through a crowd of people to get inside. He said people were chasing him to his car.
[18] Mr. Hunt testified that he jumped into the driver's seat and drove around the corner before blanking out. He remembers hitting another object. He said he wasn't sure if he was conscious or not. Mr. Hunt testified about being taken to the hospital where he was diagnosed with a hairline fractured jaw.
[19] Mr. Hunt testified that he felt that his life was in danger and he drove the car to get away from that threat. In cross-examination he elaborated that the white BMW was originally in the parking lot. When he left, his friend Richardson left the hall, got the car, and pulled it up to the passenger pick up. Richardson left the car there, and walked into the hall as Mr. Hunt was on his way out. The car was left there running, with the doors open and the air conditioning left on. He said that after he was "bottled" he broke away and ran to the car. No one was assaulting him at that point. He had his cell phone on him, but was more or less panicking.
[20] Mr. Hunt testified that he received blows through the open window, although he took no steps to lock the door. He couldn't remember if, when he got to the car the windows were open or closed. Mr. Hunt said that, even though he was being set upon by 10 – 12 guys, he had enough time to move to the driver's side of the car.
[21] Mr. Hunt testified that he was bleeding as he drove away, but that is all. He added that the windows of the car might have been smashed. He admitted that he knew the police had a station on the other side of the road, and were coming, but he was still concerned. After the collision he chose to get out of the vehicle even if he had safety concerns. He confirmed that he did complain to the police about being assaulted.
Credibility
[22] There are some discrepancies with Mr. Hunt's evidence. After he drove away some distance and collided with the parked car he got out of his vehicle, despite his safety concerns. He also testified that he transferred from the passenger seat to the driver's seat amidst a violent melee, which is implausible. Mr. Hunt also testified to getting bottled, which seems inconsistent with other evidence. Mr. Hunt's extensive criminal record detracts from his credibility.
[23] Despite Mr. Hunt's credibility problems, the Crown evidence, which was not seriously challenged, establishes the following:
Mr. Hunt arrived at the Banquet Hall earlier in the evening in someone else's car, the BMW referred to in the evidence. Mr. Hunt drank to excess.
At some point in the evening he left the Banquet Hall and entered the BMW and was set upon by another patron referred to as Michael. At this time Mr. Hunt was impaired by alcohol and his BAC was in the range of 220 mg to 275 mg in 100 ml. of blood as set out in the opinion of Dr. Elliot in her report.
Michael accosted Mr. Hunt through the open window of the BMW landing blows on Mr. Hunt.
Mr. Hunt was not the aggressor in the altercation. While words may have been exchanged between Mr. Hunt and Michael, Mr. Zargar's evidence can only support the finding that Michael threw the first punch at Mr. Hunt. He said nothing about Mr. Hunt initiating the fisticuffs.
Michael's punches at Mr. Hunt while he was in the car continued on to the point where Mr. Zargar had to take the extraordinary step of pulling him off the car. He needed the assistance of Michael's friends to do that. Michael was of no mind to discontinue the attack or reason with anyone. It was a highly charged situation with an unreasonable and violent individual bent on harming Mr. Hunt. I find that Michael was difficult to control by Mr. Zargar, the security guard.
Immediately after Michael was pulled away from the BMW, Mr. Hunt drove the car off a short distance and collided with another vehicle. The BMW was damaged in the collision.
Mr. Hunt got out of the BMW after it was damaged and waited while a crowd gathered. He was told by Mr. Zargar to wait, and that the police were on the way.
The police arrived within minutes after the collision where they found Mr. Hunt outside the damaged BMW. He was cooperative at all times. The situation at the parking lot was volatile insofar as other patrons were being arrested.
Mr. Hunt suffered serious injuries to his face requiring stitches and x-rays. His injuries were consistent with being attacked in a violent manner by Michael as Mr. Zargar described it.
Mr. Hunt complained to the police that night about being assaulted by Michael.
Legal Issues
[24] Has the accused raised the defence of necessity and, if so, has the Crown disproven that defence beyond a reasonable doubt?
The Defence of Necessity
[25] In R. v. Latimer, 2001 SCC 1, the Supreme Court of Canada articulated a three-part test to the defence of necessity:
i. Imminent peril or danger;
ii. The accused must have no reasonable legal alternative to the course of action undertaken;
iii. There must be proportionality between the harm inflicted and the harm avoided.
[26] The first requirement, namely imminent peril or danger, means "…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" (see Latimer at para. 29). In Perka v. The Queen, Dickson J. spoke of it as a "…peril…so pressing that normal human instincts cry out for action and make counsel of patience unreasonable" (Perka at p. 251).
[27] The second requirement asks three questions, namely: 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? If there was a reasonable legal alternative to breaking the law there is no necessity (Latimer at para. 30).
[28] The third requirement of proportionality is, as the court noted in Latimer (at para. 20) a difficult matter to assess. It requires "difficult balancing of harms." Notably, it is not a matter of the harm avoided being clearly outweighed by the harm taken. It is more a matter of "…the two harms must, at a minimum, be of comparable gravity."
[29] In two decisions of this court the last requirement of proportionality was found to be, not potential harm, but actual harm (see R. v. Desrosiers 2007 ONCJ 225 and R. v. Costoff 2010 ONCJ 109).
[30] The test to be applied to the first two prongs of the defence of necessity is an objective modified test, namely an objective one taking into account the situation and characteristics of the particular accused. The third requirement, namely proportionality, is assessed on an objective standard.
[31] Lastly, there must be an air of reality to the defence of necessity, and if so then the burden shifts to the Crown to prove beyond a reasonable doubt that any of the three factors do not exist (see R. v. Cinous, 2002 SCC 29, R. v. Costoff at para. 21).
Principles Applied
[32] As a preliminary matter I find on the evidence that there is an air of reality to the defence of necessity. In making that preliminary determination I do not assess credibility issues, weigh the defence; make findings of fact; draw factual inference or decide on any substantive merits of the defence; see R. v. Cinous.
[33] On the substantive elements of the Defence of Necessity I find that objectively Mr. Hunt was in a position of imminent peril or danger. Michael's actions towards Mr. Hunt were extremely violent as proven by Mr. Hunt's injuries, and those injuries resulted in cuts to the face and concerns requiring X-Rays.
[34] While the situation was mitigated by the removal of the aggressor from Mr. Hunt's car, that did not take the situation out of the realm of imminent harm. Michael was so aggressive and unreasonable that any reasonable person would have genuine concern that he would break free and continue the attack.
[35] On the second part of the test, I find that Mr. Hunt had no other legal way out of the situation. Remaining at the scene of the attack even in a locked car was not reasonable given that Michael had just attacked Mr. Hunt while he was inside the car. Michael had demonstrated a high degree of motivation to harm the accused while he was inside the car, and objectively locking the car and closing the windows would not have removed that threat. I agree with Ms. Wilson's argument that once Michael accosted Mr. Hunt in the car the car was no longer a safe haven. Nor was it reasonable to expect that Mr. Hunt would leave the car and walk away as a pedestrian. That would have placed him nearer, and more exposed to Michael.
[36] When Mr. Hunt's car collided with the parked SUV he got out of the car. I agree with the Crown that his factors into the second part of the test insofar as the reasonableness of Mr. Hunt's actions are under scrutiny. As part of the modified objective test, however, Mr. Hunt was at that point told that the police were on their way, and they did indeed arrive a matter of minutes later. Under the circumstances, leaving the car as he did does not detract from a finding that he had no other legal way out of the situation when he drove impaired by alcohol.
[37] On the third part of the test, the balancing harm, the actual harm in this case was damage to the White BMW and some undetermined damage to the other car, in other words property damage. No harm was made to the safety of the public. The distance driven by Mr. Hunt was fairly short, and he obeyed Mr. Zargar's direction to remain outside the BMW. The harm avoided was a continuation of assaultive conduct by a person who was bent on harming Mr. Hunt. This is not an easy balancing exercise but, after much reflection, I find that the harm avoided outweighs the harm inflicted.
[38] In the result I am not satisfied beyond a reasonable doubt that the Crown has displaced the defence of necessity. Mr. Hunt is acquitted of both charges.
Released: March 16, 2016
Signed: "Justice David S. Rose"