COURT FILE NO.: 09-8578

DATE: 2014/11/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VLAD NICOLAE PRECUP

John Ramsay, for the Crown

Michael Crystal, for the Defence

HEARD: November 27, 2014 (by written submissions)

RULING ON “air of reality”

Lalonde J.

[1] Is there an “air of reality” to the defence of self-defence on the facts of this case?

[2] The test simply put is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. Whether or not there is an air of reality to a defence is a question of law for the trial judge to determine. The test evolved following R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 [“R. v. Cinous”].

[3] The single clearly stated test applies to all defences. The trial judge has a positive duty to reject a defence that lacks an evidential foundation, but must allow a defence to proceed if it has “an air of reality.”

OVERVIEW OF THE FACTS

[4] Mr. Precup was charged with dangerous driving of his vehicle causing death and failing to remain at the scene of an accident.

[5] The charges against Mr. Precup stem from an incident that occurred when he took a late night drive with his girlfriend, Ms. Lu, to the ByWard Market area in the City of Ottawa. He was stopped at a red light at the intersection of Colonel By Drive and Rideau Street (the intersection), when an apparently intoxicated pedestrian, Mitchell Anderson (Mr. Anderson), wandered in front of Mr. Precup’s vehicle, a red Mazda RX-8 (the Mazda). Mr. Anderson passed his hand over the hood of the car, admiring the car. It appears that he stood in front of the car, touched the hood or kissed his hand and petted the hood of the car. He did not approach the driver, Mr. Precup, nor his girlfriend.

[6] Witnesses allege that when the traffic light in front of Mr. Precup turned green, he drove away through the intersection at a high rate of speed. Several witnesses, whose testimony at this trial I will examine later, testified that as Mr. Precup left the scene his vehicle fishtailed, the tires of his car screeched and the car appeared momentarily out of control.

[7] Witnesses testified that Mr. Anderson was struck by Mr. Precup’s car as he left the stop line to proceed across the intersection. On impact Mr. Anderson was thrown in the air and fell to the ground, striking his head. Tragically, Mr. Anderson died in the hospital from his head injuries. Mr. Precup testified that he learned of Mr. Anderson’s death days later and that on the evening in question he did not know that his car had touched Mr. Anderson.

SELF-DEFENCE

[8] In considering the defence of self-defence I will be guided by the recent provisions of self-defence in the Criminal Code, R.S.C. 1985, c. C-46, as amended by Bill C-26 the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9.

[9] In so doing I am applying the reasoning of MacDonnell J. in R. v. Pandurevic, 2013 ONSC 2978, 298 C.C.C. (3d) 504, on the retrospective application of the amended self-defence provisions. The Court found that the amendments to the self-defence provision could be distinguished from the legislative amendments at issue in R. v. Dinely, 2012 SCC 58, [2012] 3 S.C.R. 272 (SCC), as the amendments to the self-defence provisions did not remove, virtually remove or substantially alter the core elements of the defence of self-defence (at para. 34). Instead, the amendments are meant to give effect to the elements of self-defence in a more transparent and consistent way. The Court writes that while stability, certainty, and predictability are relevant factors, so too is fairness (at para. 35). In considering fairness, an overwhelming majority of self-defence claimants will benefit from the amendments (at para. 37).

[10] The amendments to the self-defence provisions of the Code read as follows:

DEFENCE OF PERSON

Defence – use or threat of force

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

34. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[11] I agreed with the statement of the law expounded in Crown counsel’s submissions.

[12] The Supreme Court explored the concept of air of reality in R. v. Cinous. The following is a summary of the Court’s findings:

1. There must be an evidentiary foundation before a defence is put to a jury (at para. 51).
2. The judge must consider the totality of the evidence (at para. 53).
3. The judge must assume evidence relied upon by accused is true (at para. 53).
4. At this stage, there is no:
   1. assessing credibility;
   2. weighing of the evidence;
   3. making findings of fact;
   4. determining factual inferences; or
   5. Assessing whether or not the likelihood of success of the defence (at para 54).
5. There must be evidence upon which a properly instructed jury acting reasonably could acquit (at para. 82).
6. There evidence put forward must be reasonably capable of supporting the inferences required to acquit the accused (at para. 82).

[13] The air of reality test must be applied to each element of the new self-defence provisions. In other words, should I find there is no reality to any of three prongs of s. 34(1) or four prongs of s. 35 I need not consider self-defence.

[14] The new self-defence provisions of the Code require that three concepts be determined before deciding if self-defence can be put to the finder of fact. They can be summarized as belief, purpose, and reasonableness.

[15] The accused must believe on reasonable grounds that force is being used against him or another person or that a threat of force is being made against him or another person. It is insufficient to merely claim to be “afraid.”

[16] In the case of R. v. Cinous, the Supreme Court of Canada enounced all of the principles I covered so far in dealing with air of reality. The facts in that case are as follows.

[17] The accused was involved with two others in the theft and resale of computers.

[18] The accused suspected that Mike, an associate, stole his gun. He decided as a result that he would have nothing to do with Mike or Ice, another of his associates. At the same time as the accused lost his gun, he heard rumors that Ice and Mike wanted to kill him. He nevertheless agreed to do one last job with them.

[19] When Ice and Mike arrived, they behaved curiously – they whispered to each other and Ice was incessantly placing his hand in his inside pocket. The accused suspected that they were armed. He decided to participate in the theft to see if they really intended to kill him.

[20] The three of them got into the accused’s van and the accused immediately knew Mike and Ice wanted to kill him when they changed their gloves. Black woolen gloves were kept in the truck glove compartment for use in thefts and neither one changed their gloves. Mike wore surgical latex gloves. Surgical gloves were used for burns (attacks on criminals by criminals).

[21] The accused said the only threat was Ice placing his hand in his inside pocket in the accused’s apartment – no other threat was made.

[22] The accused, feeling trapped, pulled into a service station with the van, bought windshield washer, brought the windshield washer to the back of the van and saw the opportunity as he opened the van door – he pulled out his gun and shot Mike in the back of the head.

[23] The accused testified it was his instinctive reaction to a situation of danger. It did not occur to him to run away or call police.

[24] The trial judge allowed the defence of self-defence. The accused was found guilty of second degree murder by the jury.

[25] The Court of Appeal ordered a new trial as the trial judge erred in his instructions on self-defence.

[26] The Supreme Court of Canada, on a further appeal, restored the conviction, as the Court was not satisfied that the evidentiary burden had been met for the defence of self-defence to go to the jury. The Court noted:

The judge’s task is somewhat more complicated where the record does not disclose direct evidence as to every element of the defence or where the defence includes an element that cannot be established by direct evidence, as for example where a defence has an objective reasonableness component. In each of these cases, the question becomes whether the remaining elements of the defence – that is, those elements of the defence that cannot be established by direct evidence – may reasonably be inferred from the circumstantial evidence. (R v. Cinous, at para. 89)

[27] Here there can be limited weighing. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the accused would ask the trier of fact to draw. This weighing, however, is limited. The judge only asks whether the evidence, if believed, could reasonably support an inference of guilt (ibid. at para. 90).

[28] Next I will review the evidence in this case and its relation to the requirements of ss. 34(1) and (2) of the Code as amended. Then I will refer to R. v. Cinous to conclude my ruling.

ELEMENTS OF DEFENCE

[29] I note that the Crown need only disprove one essential element beyond a reasonable doubt. I agree with defence counsel’s interpretation of ss. 34(1) and (2) of the Code, which I reproduce as follows:

• Under s. 34(1), a person can take defensive action if he/she believes “on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person” (subjective perception of the accused, objectively verified).
• Whether the accused was responding to a lawful use or threat of force is now contained within s. 34(2), which lists the factors to be considered when determining whether the act committed was “reasonable in the circumstances.”
• Not engaging in provocation is no longer a precondition to availing oneself of ss. 34(1) and (2); rather, “the person’s role in the incident,” which would involve an assessment of whether he/she provoked the attack or threat of attack, is listed in s. 34(2) as a factor to be considered when determining whether the act committed was “reasonable in the circumstances.”
• Subsection 34(1) removes the necessity of proving what degree of harm the accused intended to inflict; rather, it requires that the act that constitutes the offence must be “committed for the purpose of defending or protecting themselves or the other person” and that it must be “reasonable in the circumstances” (the accused’s subjective state of mind).
• In s. 34(1), acting in defence of the person renders one not guilty of an offence.
• Subsection 34(1) requires that the accused believes “on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person” (objective assessment).
• Paragraph 34(2)(b) lists the following as factors to be considered in determining whether the “act committed is reasonable in the circumstances”: (a) the nature of the force or threat; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that threat or force; (f.1) any history of interaction or communication between the parties to the incident;
• Consideration of these factors would necessarily lead a trier of fact to consider whether the accused was “under reasonable apprehension of death or grievous bodily harm.”
• Paragraph 34(1)(c) requires that the defensive “act committed is reasonable in the circumstances.”
• Subsection 34(2) lists “the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force” as one of the factors to be considered in determining whether the “act committed is reasonable in the circumstances.” In addition, “the person’s role in the incident,” which would involve an assessment of whether the accused committed an initial assault or engaged in provocation, is listed in s. 34(2) as one of the factors to be considered in determining whether the “act committed is reasonable in the circumstances.”
• Paragraph 34(1)(c) requires that the defensive “act committed is reasonable in the circumstances.” In addition, “the nature of the force or threat” is listed in s. 34(2) as one of the factors to be considered in determining whether the “act committed is reasonable in the circumstances.” Considering this factor would include an assessment of whether it was reasonable for the accused to fear that he would be killed or seriously harmed and whether it was necessary to use force to protect him/herself from such a result. As well, “the person’s role in the incident,” which involves an assessment of whether the accused had “endeavour[ed] to cause death or grievous bodily harm,” is listed in s. 34(2) as one of the factors to be considered in determining whether the “act committed is reasonable in the circumstances.”
• Subsection 34(2) lists “the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force” and “the person’s role in the incident” as factors to be considered in determining whether the “act committed is reasonable in the circumstances.” Consideration of these factors would include an assessment of whether the accused declined further conflict and/or retreated from the conflict.
• Subsections 34(1) and (2) make no mention of provocation, though provocation could be considered under ss. 34(2)(c), (f) and (f.1), which require the court to consider “the person’s role in the incident,” “the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that threat or force,” and “any history of interaction or communication between the parties to the incident” in determining whether the “act committed is reasonable in the circumstances.”
• Paragraph 34(1)(a) removes the need for the person being defended to be “under [the accused’s] protection” and allows an accused to take defensive action if he/she believes, on reasonable grounds, that force or the threat of force is being made against “another person.” Paragraph 34(1)(c) preserves the “no more force than is necessary” requirement by stating that the act committed must be “reasonable in the circumstances.”
• Paragraph 34(1)(b) requires that the “act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person.” The wilful, excessive infliction of a hurt or mischief could not be for the purpose of defending or protecting.
• Paragraph 34(1)(c) requires that the act must be “reasonable in the circumstances.”
• Subsection 34(2) lists “the person’s role in the incident,” which would involve an assessment of any wilful or excessive behaviour, as one of the factors to be considered in determining whether the “act committed is reasonable in the circumstances.”

DEFENCE OF PROPERTY

[30] For the new defence of property, the basic elements are the same as those for self-defence, except that the threat that triggers the defence must be a specified threat of property interference (rather than a threat of force against a person). Additionally, the new defence of property retains from the old law the requirement that the property defender be “in peaceable possession” of property at the time the interference is threatened (s. 35(1)(a)).

[31] In R. v. Cinous, the six-three majority of the justices of the Supreme Court of Canada confirmed that each of the three elements (that the accused causes death or grievous bodily harm was not considered an element) has both a subjective and an objective component (at paras. 93-95). The accused’s perception of the situation is the subjective part of the test. However, as stated by the Court in R. v. Cinous at para. 94, “the accused’s belief must also be reasonable on the basis of the situation he perceives” (this point was also underlined by Professor Don Stuart in his review in the NJI Criminal Law e-Letter 18, Volume 2, Issue 10 (April 5, 2002)). This is the objective test and the air of reality analysis must be applied to each component of the defence both subjective and objective. According to the majority of the Court, reasonableness cannot be found in direct evidence (ibid., at para. 88).

[32] This is what the Supreme Court of Canada had to say, at paras. 117-121, about the third and final element of s. 34(2) (as it was in 2002):

The inquiry starts with the subjective perceptions of the accused at the relevant time, and then asks whether those perceptions were reasonable. It must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds.

The first question is whether there is an air of reality to the accused’s claim that, at the time he shot the victim, he actually believed that he had no alternative. We believe that there is. The starting point in air of reality analysis is that the accused’s evidence is assumed to be true. The accused’s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a “mere assertion” of the element of the defence. Provided there is an air of reality to the whole defence, a jury is entitled to make a determination as to credibility, and to decide whether the accused really did believe that he could not preserve himself from death or grievous harm except by killing the victim.

A final issue remains. The question is whether there is anything in the testimony of the accused on the basis of which a properly instructed jury acting reasonable could infer the reasonableness of the accused’s belief that he had no alternative but to kill the victim, at the end of the sequence of events described above. We conclude that there is no such evidence to be found in the accused’s testimony, or in any other source.

By specifying that an accused must believe on reasonable grounds that he had no alternative, Parliament injected an element of objectivity into the defence of self-defence. It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot his way out of a dangerous situation. Nor is it enough for an accused to provide an explanation setting out just why he believed what he did was necessary. The accused must be able to point to a reasonable ground for that belief. The requirement is not just that the accused be able to articulate a reason for holding the belief, or point to some consideration that tended, in his mind, to support that belief. Rather, the requirement is that the belief that he had no other option but to kill must have been objectively reasonable.

[33] In R. v. Cinous, the Court states that the “accused’s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a ‘mere assertion’ of the element of the defence” (at para. 119).

[34] The requirement is that the belief that an accused had no other option but to do the act for which he is charged must have been objectively reasonable. In R. v. Cinous the court found that there was no such evidence from any source (at para. 120).

THE CROWN’S POSITION

[35] The Crown’s position is that both charges have been proven beyond a reasonable doubt, namely that Mr. Precup is guilty of dangerous driving causing death and failing to remain at the scene of an accident when a death occurred.

[36] The Crown argues that there is not an air of reality to the defence of self-defence based on the new or old provisions of the Code.

[37] Pride and anger are at the root of this collision and not protection or self-preservation. There is also a marked contrast, according to Crown counsel, between the Crown witnesses and defence witnesses. The Crown witnesses have given consistent evidence during the past six-and-a-half years while the defence witnesses have compromised their evidence: Vlad Precup has changed his version of the incident six times, and Ms. Lu has changed her evidence four times.

[38] Mr. Precup’s decision to accelerate rapidly from a stop when a pedestrian was standing in front of his car is a marked departure from the standard of care that a reasonable driver would observe in the same situation. That fact coupled with the fact that Mr. Precup raced his car northbound on Sussex Drive once he cleared a busy intersection at a great rate of speed and continued that speed going east on George Street reveal the dangerousness of his driving, taking this case out of the realm of momentary distraction.

[39] There were pedestrians in the vicinity, as underlined by the Crown witnesses. Mr. Teather thought Mr. Precup had lost control of his car, and Mr. Leslie thought that Mr. Precup was racing when he rounded the corner on George Street one block north of the intersection where Mr. Teather had made his observation.

[40] Ms. Mountjoy saw Mr. Anderson directly in front of Mr. Precup’s car as Mr. Precup released the clutch of his car. She saw Mr. Anderson jump back and to his right in an attempt to get out of the way. She got out of her car and rendered assistance.

[41] Crown counsel refers to Mr. Precup’s post-offence conduct and argues that his demeanour is capable of supporting an inference of guilt. Crown counsel points to the fact that he tried to mislead the police: he hid, then got rid of his car in a hurry, lied to police twice and, on the third and final investigative interview, gave a self-serving statement.

[42] Mr. Precup changed his version of events six times (for the sake of brevity, Crown counsel stopped at six):

1. Mr. Precup was interviewed at his parents’ home on July 31, 2008, two weeks after the event. During the interview, he denied being downtown that night, attempted to mislead officers with the idea that the passenger of the car had blond hair, and that the licence plate that had a letter matching his was from out of town. He did not mention that he quit his job because of speeding tickets.
2. This version is similar to the first and took place four months later. Mr. Precup discussed a paint job on his car and was adamant that his insurance company paid for touch ups unrelated to his prior collision. Again he did not mention that he quit his job because of speeding tickets, instead saying he did so as a result of medical reasons and long hours.
3. This interview took place on December 15, 2008. Mr. Precup admitted that he was present at the intersection of Colonel By and Rideau Street on July 13, 2008, around 11 p.m. He acknowledged that a pedestrian came out of nowhere, and acted weird. Mr. Precup said that he feared his parents’ reaction. His father testified that he already knew of his son’s involvement on July 31, 2008.
4. Despite stating that he had had no prior experience of such an incident during his examination-in-chief, Mr. Precup had no difficulty remembering an event that had taken place 20 years prior to the Anderson incident.
5. During his examination-in-chief, Mr. Precup remembered that Mr. Townsend had tried to prevent Mr. Anderson from crossing the intersection. He added that Mr. Anderson did not seem to care, which was something he had never said before, and which was also echoed by Ms. Lu. During cross-examination, for the first time, Mr. Precup claimed to be afraid of Mr. Anderson. He could not verbalize why he all of a sudden felt that there was a threat to his safety as well as his wife’s as opposed to what he previously had told police officers, which was that he thought Mr. Anderson wanted money.
6. The final version comes about when, at trial, Mr. Precup claimed during cross-examination that Ms. Mountjoy, the blond lady whose car was stopped behind him, was in fact the person who struck and killed Mr. Anderson. He claimed to have held this back for unexplained strategic reasons.

[43] On the failure to remain at the scene of an accident, Crown counsel argues that I should find Mr. Precup guilty as he did not stop to give his name and address, and he has given no evidence to the contrary to disprove an intent to escape culpability. The Crown further argues that the evidence shows that Mr. Precup was wilfully blind to whether he had caused Mr. Anderson bodily harm and to whether death ensued from that bodily harm.

[44] The evidence on this charge comes from Ms. Lu who asked Mr. Precup about the possibility that their car hit Mr. Anderson, to which he replied, “I didn’t think so.” He told Ms. Lu to lie to police and hid his car at Carlsbad Springs. The evidence is clear from both Mr. Precup and Ms. Lu that there were no problems with the car on the evening of July 13, 2008.

[45] Crown counsel uses the evidence of Mr. Precup’s post-offence conduct to show his many efforts to evade culpability for the collision. In order to evade culpability, Crown counsel points to fabrication of evidence, such as blaming Ms. Mountjoy for the collision. Mr. Precup testified that he told this to his wife and his lawyer; his wife denied this, and his lawyer put no questions on this subject to any witnesses, including Ms. Mountjoy.

[46] Ms. Lu changed her version four times according to Crown counsel. She concocted a story for her husband’s benefit in giving her July 31 and November 26, 2008, statements. At trial, Ms. Lu stated that she had asked Mr. Precup what he had said to the officers and that she copied that. On December 15, 2008, she came out with the fact that both she and Mr. Precup had been angry at Mr. Anderson and not afraid of him. At trial, she maintained that Mr. Anderson was moving away, that both were mad at him, worried that he would damage the car or break the glass, all for the first time.

[47] Crown counsel points out that use or threat of force has never been proffered by any witness. There was no subjective belief justified on reasonable grounds that Mr. Anderson was actually using or threatening to use force against Mr. Precup or Ms. Lu, and Mr. Precup has not maintained otherwise.

[48] Crown counsel argues that Mr. Precup could not possibly have the objective justification required for the “reasonable grounds” test found at s. 34(1)(a) of the Code.

[49] No reasonable person would feel that a man walking in front of a person’s car near a cross-walk and touching its hood posed an actual or perceived threat to that person’s safety, rising to the level where he or she simply would have to run the man over. It would certainly be uncomfortable, and likely extremely aggravating, but not life-threatening or even a threat to one’s health.

[50] Reasonable people were in the immediate vicinity of the incident. Their actions betray Mr. Precup’s unreasonableness and total lack of regard for the life of another human being. Ms. Lalonde—who actually had direct knowledge of an incident in which a friend had a stranger enter her car—merely locked her doors and remained there to “see what would happen.” She then drove away slowly.

[51] Ms. Mountjoy was a car length behind the incident; she did not fear the deceased in the slightest. In fact, the only thing she feared was what came to be—Mr. Precup striking and killing the deceased. She did not observe any threatening behaviour by the deceased, or see him approach either side of the vehicle.

[52] In determining whether or not Mr. Precup believed on reasonable grounds that Mr. Anderson used force against him or Ms. Lu, or was threatening to use force against him or Ms. Lu, it is not Mr. Precup’s own personality and physicality at the time that must be considered—it is that of the reasonable person of a similar age, gender, and intelligence level, with a normal temperament, not especially excitable or pugnacious, not drunk, all with respect to the regular community’s reasonable standard, not a special subset of that community (i.e. the reasonable criminal’s standard).

[53] Crown counsel argues that in deciding if self-defence can apply, the judge must determine if there is an air of reality to the assertion that there was a defensive purpose to Mr. Precup’s driving dangerously and causing the death of Mr. Anderson. Crown counsel argues that Mr. Precup fails on both purpose and reasonableness because:

• Mr. Precup testified that Mr. Anderson was moving away from the vehicle when he sped off. There was no actual need to speed off on account of force or threat of force by Mr. Anderson – he was no longer in sight. Though the reasonableness of Mr. Precup’s actions is unlikely given all of the other evidence in this case, on this account alone Mr. Precup had no need to speed off in the manner he did.
• According to Ms. Lu, Mr. Anderson was slowly moving away when Mr. Precup startled him by racing the engine, squealing the tires, and running into him (though she denies seeing Mr. Anderson get hit). Again, that Mr. Anderson was moving away at the time the vehicle was set in motion suggests that Mr. Precup was acting out of rage and pride, not self-preservation.
• The above points are based solely on Mr. Precup and Ms. Lu’s accounts of events – when one considers all of the other accounts it is even more difficult to justify Mr. Precup’s actions as self-defence. Mr. Townsend believed Mr. Precup ran Mr. Anderson over “on purpose.” Ms. Mountjoy testified that Mr. Anderson never approached either side of the Mazda and that she did not fear him despite being only a car length away. Ms. Lalonde’s evidence was that what fear she had was assuaged by locking her doors as she remained a car width away to see what would happen. She then drove away slowly and in an orderly fashion only to have the accused race past her seconds later.
• If the purpose was indeed defensive, why did Mr. Precup continue racing up Sussex and then George St., going through one red light and causing at least two pedestrians to recoil backwards believing he was out of control? He was well beyond the reach of any threat posed by Mr. Anderson, if Mr. Anderson did indeed pose a threat.
• If the purpose was defensive, surely Mr. Precup would have had no need to rid himself of the car, conspire with his wife to lie, mislead police on multiple occasions, and fabricate evidence.

[54] On reasonableness, Crown counsel argues:

• In addition to no use or threat of force being imminent, Mr. Precup had multiple alternative options to deal with the situation. For instance, he could have:
  1. honked
  2. yelled
  3. waved the deceased off
  4. inched his car forward
  5. revved his engine without engaging the clutch
  6. drove around the victim
  7. reversed
  8. called for help
  9. gotten out of his car and asked him to move away
  10. locked his doors
  11. rolled up his windows
  12. threatened the victim
  13. thrown something at him
  14. gotten out and pushed him away
  15. driven away at a reasonable speed
  16. stopped at the next intersection and called police about the so-called threatening man
  17. called police that night to report the so-called threatening man
• Mr. Precup’s decision to (1) use lethal force, by accelerating a 239hp sports car towards the deceased, who attempted to jump out of the way, and (2) by the most credible and thorough account (Ms. Mountjoy), steer towards the victim proves the unreasonableness and total lack of an air of reality to Mr. Precup’s response to the perceived force or threat of force that, again, seems impossible to reconcile with the eyewitness accounts of this exchange.

DEFENCE OF PROPERTY

[55] Crown counsel argues that:

• In order to even consider whether or not Mr. Precup was acting in defence of his property in accordance with s. 35 of the Code all four of the following factors have to have an air of reality.
  1. Paragraph 35(1)(a) – Lawful Possession
  2. Paragraph 35(1)(b) – Belief
  3. Paragraph 35(1)(c) – Purpose of the Act
  4. Paragraph 35(1)(d) – Reasonableness of the Act
• Paragraph 35(1)(a) is conceded – Mr. Precup was in lawful possession of his sports car.
• With respect to s. 35(1)(b), Mr. Precup would have to have believed on reasonable grounds that Mr. Anderson: i. was about to enter, was entering or had entered the property without being entitled by law to do so, ii. was about to take the property, was doing so or had just done so, or iii. was about to damage or destroy the property, or make it inoperative, or was doing so
• None of the above applies. Mr. Precup never testified that he believed Mr. Anderson was going to enter or take his car.
• Mr. Precup’s claim to have not even checked the car for damages belies any claim he was concerned with Mr. Anderson damaging it. If he was so concerned that Mr. Anderson had damaged his vehicle to the point where he decided to run him over with the car, he would have at least checked it for damage immediately upon his arrival at a safe place. That he only checks it for damage when he hears on the radio that he may be a suspect in a hit and run suggests consciousness of guilt, not concern about property.
• Next, s. 35(1)(c) requires this Honourable Court to consider whether there is an air of reality to the claim that Mr. Precup hit Mr. Anderson with his car and killed him for the purpose of: i. preventing Mr. Anderson from entering the property or removing Mr. Anderson from the property; or ii. preventing Mr. Anderson from taking, damaging or destroying the property or from making it inoperative, or retaking the property from Mr. Anderson.

[56] Mr. Precup did not give evidence that he fled the scene to protect his property and the non-exhaustive list in s. 34 shows that Mr. Precup’s actions were unreasonable.

THE DEFENCE’S POSITION

[57] Defence counsel argues that the defences of self-defence and defence of property should succeed in this case and cause both charges against Mr. Precup to be dismissed. I reproduce defence counsel’s argument in part, but sufficiently to do justice to Mr. Precup’s position.

Reasonable Perception of Force or a Threat of Force against a person or property (subjective perception of the accused, objectively verified)

Subjective Perception

[58] In his interview with police on December 15, 2008, Mr. Precup repeatedly commented that Mr. Anderson was “acting weird” and made many statements indicating that he was afraid of Mr. Anderson, including the following:

• “I didn’t want him to do something to me” (p. 45);
• “I was just worried a little bit. So I just wanted to get out of there” (pp. 46-47);
• “Maybe he wants my car” (p. 58); and,
• “I just didn’t want any incident or something” (p. 83).

[59] Furthermore, in his testimony in this trial, Mr. Precup stated that Mr. Anderson’s behaviour made him feel “scared,” “worried” and “afraid” and that he thought Mr. Anderson “might punch him or something.”

[60] Even if Mr. Precup’s concern that Mr. Anderson was going to attack him, his girlfriend and/or his car were mistaken, it was honestly and reasonably held, and thus the doctrine of “mistaken but reasonable belief” ought to apply. The case law establishes that the doctrine of mistake of fact applies to the accused’s belief as to whether he or she is under threat of an attack.

Objective of Verification

[61] Ms. Lu described Mr. Anderson’s behaviour as “odd,” “strange,” “rude” and “sexually suggestive.” It made her feel “upset,” “uncomfortable” and “worried.” She “didn’t know what he was going to do next” and was concerned that he might damage the car.

[62] Ms. Lalonde agreed that Mr. Anderson’s behaviour was “erratic” and it scared her. When Mr. Anderson entered the intersection, she became frightened and locked her doors. She agreed that “anything could happen with this guy.”

Defensive Purpose associated with the Accused’s Actions (accused’s subjective state of mind)

[63] Mr. Precup displayed no anger toward Mr. Anderson and stated repeatedly, both during his police interview on December 15, 2008, and during his testimony at trial, that he just wanted to get away from the situation at the intersection.

Accused’s Actions must be Reasonable in the Circumstances (objective assessment)

[64] In determining whether the accused’s action were reasonable, some of the factors the court shall consider are:

(1) the nature of the force or threat; (2) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (3) the accused’s role in the incident; and (4) the nature and proportionality of the person’s response to the use or threat of force.

Applying these factors to the case at bar, defence counsel arrives at the following conclusions.

Nature of the Force or Threat

[65] Mr. Precup was faced with a frightening and unpredictable situation—an extremely drunk man, who crossed against the light, was displaying erratic behaviour and was targeting his car. Mr. Precup’s girlfriend was in the car with him, and Mr. Anderson was standing in front of and touching Mr. Precup’s car in an odd way while the light was green. It was impossible to know what Mr. Anderson would do next, but the situation was objectively worrying.

[66] Ms. Lalonde agreed that, given Mr. Anderson’s strange behaviour, it seemed like “anything could happen,” and Ms. Lu was concerned about what Mr. Anderson “was going to do next.”

Extent to which the Use of Force was Imminent and whether there were Other Means Available to Respond to the Potential Use of Force

[67] Ms. Lalonde and Ms. Lu testified that the last time they saw Mr. Anderson he was at the edge of driver’s side of the car. Thus, he was quite close to Mr. Precup and posed an imminent threat to him and his car. This situation was unpredictable and seemed to warrant fight or flight. Mr. Precup chose to flee rather than become involved in a physical confrontation. Thus, he chose the most innocuous means available to respond to the potential use of force.

Accused’s Role in the Incident

[68] Mr. Precup did nothing to provoke Mr. Anderson or draw attention to himself.

Nature and Proportionality of the Accused’s Response to the Use or Threat of Force

[69] The case law establishes that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action.

[70] Rather than risk becoming involved in a physical confrontation, Mr. Precup chose to drive away from the situation. The fact that Mr. Precup’s choice to flee inadvertently led to the tragic death of Mr. Anderson does not lead to the conclusion that his act was excessive or disproportionate to the threat he was facing. Rather, when presented with a situation that appeared to present a choice between waiting around to face a potential attack and driving away, even though Mr. Anderson was quite close to the car, Mr. Precup chose the lesser of two evils.

ANALYSIS AND DECISION

[71] The first element of self-defence in s. 34(1) is: did the accused reasonable believe in the circumstances that force was being used against him or that a threat of force was being made against him? Is there evidence that can lead me to conclude that Mr. Precup reasonably believed that force was about to be used against him? Next, the act that constitutes dangerous driving must have been committed for the purpose of protecting or defending himself. Common sense dictates that Mr. Precup’s act in response, for which justification is sought under s. 34(1), must relate to something that was happening or about to happen.

[72] First, I recall what Mr. Precup said about his belief that force was about to be used against him and about the action he took as a result.

[73] Mr. Precup testified that Mr. Anderson looked rough, appeared dangerous, had long hair and was pulling up his pants as he walked toward his car. Mr. Precup said that Mr. Anderson had a friend who was standing on the sidewalk at the time that he walked into the intersection. Mr. Anderson had waved his friend off, as the friend had been talking to him. Mr. Precup testified that Mr. Anderson stood in front of the car, kissed his hand and touched the car, and then moved to stand next to the car’s front wheel on the driver’s side. Mr. Precup testified that he thought Mr. Anderson was going to come to the driver’s door of the car, but could not say what had made him think that.

[74] Mr. Precup also said that Mr. Anderson had banged the hood of his car, leaning over the car close to the location of the wipers on the windshield on the driver’s side. He recalled that: his car window was rolled half way up; the car radio was playing; and he did not tell Mr. Anderson to get out of the way as his traffic light had turned green, allowing him to proceed. He did not honk at Mr. Anderson. The scary things that Mr. Anderson did while standing in front of the car were touching the car, pulling up his pants twice, gesturing and making weird moves.

[75] Ms. Lu’s evidence is as follows:

[76] Ms. Lu recalled that on July 13, 2008, she had accompanied Mr. Precup in his car for a ride in downtown Ottawa. While stopped at the intersection of Colonel By Drive and Rideau Street, she said that a pedestrian had left the sidewalk and come towards their car, waving his arms and pulling his pants up and down. She felt that the man’s gestures were rude and felt insulted and affronted. That man was “sort of dancing” and stood in front of their car. He then kissed his hand, put his hand on the hood of the car, then turned to a friend who had remained on the sidewalk and boasted to him.

[77] Ms. Lu testified that she felt uncomfortable not knowing if the man would “break the glass or damage the car.” He slowly moved to the driver’s side and then she heard noise coming from the car’s tires as they sped away. She stated that the man looked like someone who did not care about anything.

[78] There was no eye contact between Mr. Anderson and Ms. Lu when Mr. Anderson had stood in front of their car. Mr. Precup had not, according to Ms. Lu, honked the horn, or shouted at Mr. Anderson to get out of the way. She said that the headlight of the car was wide and that part of it was in the front and part of it was on the side. She agreed that Mr. Anderson was standing at the right edge of the headlight. She also agreed that even though she had a cellphone she had not called 911. She recalled that the windows of the car were rolled up and the doors of the car were locked, but that the sunroof was open. She did not recall, as stated by her husband, that Mr. Anderson had banged the hood of the car with his hand.

[79] Ms. Lu stated that the fact that Mr. Anderson was pulling his pants up and down made her uncomfortable as it was sexually suggestive, as was Mr. Anderson’s act of kissing his hand and touching the car. She also stated that those gestures were directed at her even though she testified that she had not made eye contact with Mr. Anderson. She agreed that Mr. Anderson had not made a single step toward the driver’s door of the car.

[80] During re-examination Ms. Lu testified that even though the doors were locked, the windows were rolled up and the sunroof was open, she did not feel one hundred percent safe.

[81] Ms. Lalonde was stopped at the intersection in the lane next to the lane occupied by Mr. Precup’s vehicle. She described Mr. Anderson as a “ruby” and she said that his behaviour was erratic and that it scared her. She recalled that she had locked the doors to her car. She saw Mr. Anderson touch the front hood of Mr. Precup’s car.

[82] Paul Townsend, Mr. Anderson’s friend who had remained on the sidewalk, testified at the preliminary hearing that Mr. Anderson had kept talking to him while standing in front of the red Mazda RX-8.

[83] Ms. Mountjoy was driving her car and stopped at the intersection behind Mr. Precup’s car. She testified that she was not frightened at all by Mr. Anderson and had no concern for her safety.

[84] Mr. Precup did not say in his evidence that he had expected that violence or some sort of force would be used against him. Nor was there any objective basis in his evidence for such a belief. Indeed, Mr. Precup related in his evidence that he had had a similar experience 20 years before. Despite the other driver in that incident making him stop his vehicle on the road and despite the fact that the other driver was his size, Mr. Precup had not been scared on that occasion and had done nothing to preserve himself from the use of force by the other driver.

[85] On this first element, the attempt to qualify for a defence of self-defence fails. I find that there was no force or threat of force on the part of Mr. Anderson towards Mr. Precup.

[86] While there is no necessity of proving what degree of harm Mr. Precup intended to commit, the defence requires that the act that constitutes the offence must be committed for the purpose of defending or protecting oneself. Mr. Precup drove off fast after revving the engine of his car. Ms. Lalonde and Ms. Mountjoy, who were both stopped at the same intersection, testified that Mr. Precup’s car fishtailed and the tires squealed as he took off from the stop line.

[87] Paul Townsend testified that Mr. Precup’s car sped off so fast that its tires were squealing. He testified that he saw the car hit his friend who flew up in the air hitting his head once he landed.

[88] Other witnesses came forward to establish that Mr. Precup’s driving was abnormal on leaving the scene of the collision. Brandon O’Brien spoke of the dropping of the clutch that caused the tires to screech and the fishtailing between the north crosswalk of Colonel By Drive and the middle of the intersection on Rideau Street. He estimated that the Precup vehicle crossed the intersection travelling between 50 to 60 kms per hour. Ms. Mountjoy also heard the squealing of tires on Mr. Precup’s vehicle as he put the car in motion “very, very quickly.”

[89] As there was no air of reality concerning the reasonable grounds for Mr. Precup to suspect force would be used against him or that a threat of force was being made, so too there is no air of reality to the claim that Mr. Precup needed to take the defensive action with his car that I just outlined.

[90] In his evidence, Mr. Precup acknowledged that he had been in the ByWard Market before and had seen persons asking car drivers for money. He had no reason to believe that the use of force or the threat of force was being made against him. As stated by witness Ms. Lalonde, she was close to the scene and she had locked her car doors. Rolling up the windows of the car, calling 911 on a cellphone, shouting at Mr. Anderson to get out of the way and honking at him were the acts that the situation mandated. This would have been arrived at by using common sense.

[91] Was the act committed by Mr. Precup “reasonable in the circumstances”? The factors for making this determination are listed in s. 34(2)(b), and I will analyse them one by one.

[92] The nature of the force or threat does not help Mr. Precup as I have already outlined that force or threat of force was absent on the evidence I heard. Only the banging on the hood of the car could rank as force exercised by Mr. Anderson. Mr. Precup denied that this had happened when interviewed by Detective Dodds. Mr. Precup resurrected this sign of violence on the spur of the moment at trial. His wife, Ms. Lu, a passenger in the car, said that it had not happened. Like Ms. Lu, Ms. Lalonde and Ms. Mountjoy only spoke of Mr. Anderson kissing his hand and touching the hood of the car. The nature of the force or threat does not lead me to think that a defensive action was required by Mr. Precup.

[93] The next factor for evaluating what was reasonable in the circumstances concerns the use of a weapon. There were no weapons involved in this case.

[94] Dealing with the size, age, gender and physical capabilities of the parties to the incident, nothing out of the ordinary comes to mind. Mr. Anderson was roughly the same size as Mr. Precup. Mr. Anderson was described as someone who had been drinking. Even though Mr. Precup said that Mr. Anderson appeared dangerous, the fact that he had long hair and was pulling up his pants as he walked towards Mr. Precup’s car did not make him dangerous. Mr. Anderson had a friend on the sidewalk, but the friend never attempted to leave the sidewalk. Mr. Precup never referred to Mr. Anderson’s size during his testimony. Mr. Anderson’s behaviour did not require the defensive action Mr. Precup undertook.

[95] There had not been any relationship between the parties. Mr. Anderson was a complete stranger to Mr. Precup.

[96] The above considerations throw light on whether Mr. Precup was under reasonable apprehension of death or grievous bodily harm. Is there an air of reality to Mr. Precup’s position that at the time he sped off from the intersection he had no other alternative but to do so in order to preserve himself? Mr. Precup had other options, but can I conclude that his failure to avail himself of those options was reasonable? I do not think so.

[97] There is no evidence that Mr. Precup held the belief that he needed to take off very quickly in order to preserve himself. Mr. Precup did not say so, nor is there other evidence from which it can be inferred that he held such a belief. The absence of any evidence of an actual belief in the absence of alternatives is fatal to the defence of self-defence.

[98] Subsection 34(2) lists “the person’s role in the incident,” which involves an assessment of any wilful or excessive behaviour as one of the factors to be considered in determining whether the “act committed is reasonable in the circumstances.” The issue of excessive behaviour comes into play here. Mr. Precup’s wife was interviewed at the police station on December 15, 2008. At page 12 of the transcript of her interview she referred to her husband as being mad at Mr. Anderson and said, “that’s why we left at high speed.” She also said that she too was upset. She repeats at page 32, “we are in an angry mood or something, probably he drive fast.” At page 57 she stated, “I think when we took off at that time, he was angry, but when we got home, not much.”

[99] I also find that putting the car in motion when Mr. Precup did not know where Mr. Anderson was, revving his engine to make a loud noise and squealing the tires of his car were excessive behaviours making Mr. Precup’s actions unreasonable in the circumstances.

[100] For the above reasons I do not find that the defence of self-defence has an air of reality and it cannot justify Mr. Precup’s action so as to allow him to avoid culpability on both charges. I agree with the 17 options that the Crown listed and that I have set out earlier in this decision, which shed light on how unreasonable Mr. Precup’s conduct was when he took off not knowing where Mr. Anderson stood.

[101] As for defence of property, this defence fails miserably as there is no evidence that Mr. Anderson wanted Mr. Precup’s car. The last minute evidence given by Mr. Precup at trial that Mr. Anderson had banged the hood of his car is unbelievable. Even his wife could not remember that happening and no other witnesses mentioned it.

Lalonde J.

Released: November 28, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

VLAD NICOLAE PRECUP

Ruling on air of reality

Lalonde J.

Released: November 28, 2014