His Majesty the King v. Trestin Cassanova-Alman, 2023 ONSC 154

Court File No.: CRIMJ(P) 150/21 Date: 2023 01 06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING P. Maund for the Crown

– and –

TRESTIN CASSANOVA-ALMAN K. Sharma for the Accused

HEARD: October 17 and 19, 2022

RULING ON AIR OF REALITY TO DEFENCE OF NECESSITY

F. DAWSON J.

[1] The issue before me is whether there is an air of reality to the defence of necessity, requiring that it be left to the jury. After hearing submissions during the conference on the charge I gave brief oral reasons indicating why I concluded that necessity should not be left to the jury. I advised counsel that I would provide more fulsome and better organized reasons later and I now do so.

The Charges Before the Jury

[2] At the commencement of the trial, the accused was arraigned before the panel of prospective jurors on the following charges:

i. robbery of a pharmacy;

ii. having his face masked with intent to commit an indictable offence;

iii. possession of a stolen Nissan Altima motor vehicle;

iv. unlawful confinement of a Mr. Ahdab;

v. robbery of Erik Tizie, based on stealing Mr. Tizie’s pickup truck;

vi. kidnapping, because Mr. Tizie’s eight-year-old daughter was in the truck when the accused took the truck; and

vii. dangerous driving, arising from a high-speed chase that followed.

[3] After the jury was selected but before the trial commenced, the accused entered guilty pleas to the robbery of the pharmacy, having his face masked with intent and possession of the stolen Nissan Altima. The guilty pleas were entered in the absence of the jury. The jury were obviously aware of all the charges. An agreed statement of fact was provided to the jury regarding the facts underlying the guilty pleas. The jury was also given an instruction about how they could and could not use the guilty pleas and the facts in relation to those offences. This was required because all of the charges arose on July 24, 2020 out of a continuing series of events. The facts on which the guilty pleas were entered were relevant to the narrative and to understand why various witnesses thought and did what they did in relation to events related to the charges the jury had to decide.

[4] It is also helpful to understand that the indictment the accused was arraigned on was made up of a subset of charges I severed from a more extensive indictment during a pretrial motion. The pre-severance indictment included many other counts, including three bank robberies, other pharmacy robberies and other related offences. Those offences occurred on other dates in other locations.

[5] For present purposes it is important that the police were aware that a stolen White Nissan Altima was used as a getaway car in the previous robberies. Prior to July 24, 2020 the police had located and attached a tracking device to that vehicle.

The Events of July 24, 2020

[6] On July 24, 2020 Det. Stephen Sherwin of the Central Robbery Bureau of the Peel Regional Police was notified by an app on his phone that the Nissan Altima was moving. He and his partner, in plain clothes and in an unmarked police SUV, began driving towards the area where the Altima was being driven. On the way they were notified that a robbery had occurred at the Woodland IDA Pharmasave in Mississauga, a location to which the Altima had been tracked. The Nissan Altima then began to move again.

[7] Det. Sherwin alerted a tactical team about these events and the police converged on a high-rise condo complex at 4011 Brickstone Mews in downtown Mississauga, to which the Altima had been tracked after the Pharmasave robbery.

[8] Det. Sherwin and his partner arrived at the condo complex first and drove into the underground parking looking for the white Nissan Altima. They came across it as it was backing into a parking spot. They noticed that a black Honda Civic seemed to be moving in tandem with the Altima. They parked several spots away and tried to make observations. They saw activity between the occupants of the two vehicles.

[9] Meanwhile, the tactical unit had arrived outside the building. The plan was to confront and arrest the suspects in the parking garage. However, before that could occur, both the Altima and the Honda drove off towards the exit ramp. Det. Sherwin and his partner followed, but with another vehicle between them. They lost sight of the two vehicles. They were then surprised to see the Honda driving back towards them. Soon after that they heard gunshots echoing in the garage. They thought the suspects might be shooting at them. However, what they were hearing were shots fired by the tactical unit, which had blocked the exit to the building as the white Nissan Altima came up the exit ramp.

[10] Almost all events in the parking garage were captured on good quality video surveillance. An extensive system of security cameras is installed throughout the condo parking complex.

[11] Video shows that as the Nissan Altima came up the exit ramp two large tactical unit pickup trucks drove across the top of the ramp. As tactical officers emerged from those vehicles, two men in dark clothing and wearing surgical masks, jumped out of the Altima and ran back down the ramp. However, the Altima continued to roll towards a gap between the two tactical trucks. A tactical officer who had not seen the suspects flee the car, fired three rifle shots through the front windshield of the Nissan Altima, aiming towards the driver’s seat. He said he could not see into the vehicle due to glare, thought the driver was about to try to push through the blockade and that he was trying to protect a female civilian who was walking through the area behind him just at that moment. The video shows this all happened within a few seconds.

[12] As these events were occurring the black Honda Civic had started up the exit ramp, but rapidly reversed back down around the corner and stopped. Video shows that as the accused ran from the ramp back into the garage he approached the passenger door of the Civic. The evidence suggests that a shot was fired through the passenger window of the Civic, hitting the accused in the left cheek. The accused kept running.

[13] Video shows that the accused, who had a gym bag strapped across his chest, ran around a corner towards the location where Det. Sherwin and his partner were driving towards the exit ramp. When Det. Sherwin saw the accused running he tried to cut him off with his vehicle. The accused evaded that manoeuvre, jettisoned the gym bag, which was filled with narcotics stolen in the pharmacy robbery, and ran towards a stairwell.

[14] Det. Sherwin chased the accused on foot. He was well behind. He pursued the accused down a stairwell, following a blood trail left by the accused. Det. Sherwin backtracked from the bottom of the stairwell when he could not get out into the lower parking levels and because he had no backup. A few moments later two tactical officers in full gear with rifles and two K9 officers with their police dogs, met Det. Cst. Sherwin at the top of the stairwell. They then entered the stairwell and followed the blood trail down the stairs to P5.

[15] Video surveillance shows the accused moving in two stairwells and running through parts of the lower areas of the parking garage. Video captures him removing his outer clothing and shoes, resulting in a change in his appearance. He then continued to run through parts of the parking garage.

[16] At one point the accused and the pursuing tactical and K9 officers came face to face looking at each other through a small window in a locked security door at the bottom of a stairwell. The accused ran off. The officers could not get the stairwell door open and eventually broke the window to do so.

[17] By then the accused was hiding under a parked car on level P5. He watched as Mr. Ahdab, a resident of the building, walked towards his parked vehicle nearby. The accused entered Mr. Ahdab’s vehicle. The accused testified that he asked Mr. Ahdab to help him escape because the police were trying to kill him. Mr. Ahdab’s version was somewhat different. English is not his first language. He was unsure what the accused said. He testified that he was afraid and played along. Mr. Ahdab told the accused to “get in the back” and then drove the accused up to the P1 level. At that point the accused got out of Mr. Ahdab’s vehicle and entered a hallway within the parking structure that led to an emergency exit onto Burnhamthorpe Road.

[18] The accused was charged with unlawful confinement of Mr. Ahdab. The accused did not raise necessity in relation to that charge. Rather, he relied on a substantive defence that he lacked the required intent because he thought Mr. Ahdab had agreed to help him. The accused was found not guilty of that offence by the jury. The accused did raise necessity with respect to the charges that arose from the events which occurred after that point in time.

[19] The accused claimed he was acting out of necessity in relation to the later robbery, kidnapping and dangerous driving. He testified that he thought the police were trying to kill him because he believed they were shooting at him as he ran down the exit ramp. He testified that he thought the police were the ones who shot him in the face at that time. The other evidence suggests otherwise, but it is the accused’s version that is of significance in terms of whether there is an air of reality to the excuse of necessity.

[20] The accused emphasized that as a young Black man he feared the police. He had experience interacting with the police. He referred to the killing of George Floyd by police officers in the United States, which occurred only a short time before these events. He also referred to other well-known events where Black persons were harmed or killed by the police. He testified that he was always terrified on July 24, 2020 that the pursuing officers would kill or seriously harm him if they caught him.

[21] After the accused left Mr. Ahdab’s car and entered the hallway his movements were again captured on surveillance video. He was no longer running. He went to the exit door to Burnhamthorpe Road and opened it slightly to peek outside.

[22] The accused testified he saw a Ford F150 pickup truck parked a short distance away. He saw a young Black female get out of the back door of the truck. He said he thought a Black family might help him to get away from the police, just as Mr. Ahdab had. He also saw two uniformed police officers in the area. They were not tactical officers.

[23] At that point the accused exited onto Burnhamthorpe Road and ran to the Ford F150, which belonged to Erik Tizie. The accused entered the rear passenger door. The accused testified that Mr. Tizie was in the driver’s seat, that there was a young male in the front passenger seat, a little boy in the back seat on the driver’s side, and a little girl in the rear middle seat.

[24] The accused testified that he told the occupants, “I am not trying to hurt you. Help me. The police just shot me.” Mr. Tizie’s version is somewhat different, but for present purposes it is the accused’s version that is important.

[25] When it became clear that Mr. Tizie was not going to help the accused, the accused climbed into the front seat and began to struggle with Mr. Tizie. Mr Tizie’s son had exited the truck and was calling out for help. Uniformed police officers who had been called to the area to establish a perimeter around the condo complex ran towards the Ford F150. They thought Mr. Tizie was the culprit they were looking for and began ordering him to get out of the truck and get on the ground. At the same time the accused pushed Mr. Tizie out of the truck. He then drove off in the truck with Mr. Tizie’s eight-year-old daughter in the back seat. These events were captured on cell phone video from a resident of the condo complex. Multiple police vehicles pursued the truck through busy parts of Mississauga during a high-speed chase. Some of the chase was captured on a civilian’s dashcam video recorder.

[26] During the chase the accused stopped the pickup truck and let the young girl out of the vehicle. He testified that he was unaware she was still in the truck when he drove off in it. This must have raised a reasonable doubt as the jury acquitted on the kidnapping charge. Some pursuing officers stopped to assist the little girl. Police later called off the ongoing pursuit as it was too dangerous to continue it.

[27] The accused turned himself in to the authorities some months later. He said he waited until the gunshot wound to his face had healed.

The Accused’s Claim of Necessity

[28] The accused testified that from the point where shots were fired by the police at the top of the exit ramp he was terrified and believed that if the police apprehended him they would kill him. He maintained that he believed the injury to his face was the result of shots fired by the tactical officers. He testified that his state of mind never changed thereafter and that his subsequent actions were necessary to preserve himself from the imminent life-threatening peril in which he found himself. He supported the reasonableness of his belief by testifying as to his understanding of events involving other Black people who had recently been shot or killed by the police.

The Applicable Legal Principles

[29] The defence of necessity is more properly characterized as an excuse which vitiates criminal liability in circumstances where the only realistic opportunity of avoiding a greater and imminent peril involves breaking the law. The excuse is based on self-preservation and is limited in its application to rare circumstances involving true involuntariness: R v. Perka;, [1984] 2 S.C.R. 232.

[30] The excuse of necessity will only be available when three requirements are met. First, there must be an urgent situation of clear and imminent peril. Second, there must be no reasonable legal alternative to breaking the law. Third, the harm inflicted must not be disproportionate to the harm sought to be avoided. See R. v. Latimer, 2001 SCC 1, 2001 S.C.C. 1, [2001] 1 S.C.R. 3, at paras. 28-31.

[31] The first and second requirements of necessity are evaluated on a modified objective standard, which takes into account the situation and characteristics of the accused. The perceptions of the accused are considered but are relevant only so long as they are reasonable: Latimer, at para. 33. The third requirement of necessity is evaluated on a purely objective standard: Latimer, at para. 34.

[32] The question before me is whether necessity should be left with the jury. A defence should only be left with the jury if it possesses an air of reality. That test will only be met if a properly instructed jury acting reasonably could acquit the accused based on the defence. In applying the test, the evidence supporting the defence is assumed to be true. See R. v. Cinous, 2002 SCC 29, 2002 S.C.C. 29, [2002] 2 S.C.R. 3, at paras. 1-2, 47, 49, 53; R. v. Oslin, [1994] 4 S.C.R. 595, at p. 676. Therefore, I have focused on the accused’s evidence even where it appears to be contradicted by other evidence. Factual determinations and credibility assessments in relation to such matters are for the jury to determine if necessity is left with the jury. For necessity to be left with the jury the trial judge must be satisfied that there is sufficient evidence to give an air of reality to all three of the elements of necessity: Latimer, at para. 36.

Analysis

[33] At the outset I wish to address the fact that the accused was involved in illegal activity at the time he claims he was presented with the necessitous circumstances which he relies upon to excuse his subsequent additional illegal activity. The accused robbed a pharmacy and was fleeing with stolen narcotics in a stolen vehicle when he and his co-accused were confronted by the police. In cross-examination the accused agreed that he knew when he robbed the pharmacy that he might encounter the police, who would be justified in trying to apprehend him and authorized to use reasonable force to do so. During cross-examination he revealed that on two prior occasions when he committed crimes and was being freshly pursued by the police, he was apprehended at gunpoint without being shot.

[34] I observe that the accused’s involvement in illegal activity at the time he alleges the necessitous circumstances arose does not automatically eliminate necessity from consideration. In Perka, the court rejected that approach. The majority held that “the accused’s fault in bringing about the situation later invoked to excuse his conduct can be relevant to the availability of necessity” (p. 255) but not in the sweeping way of automatically removing necessity from consideration. As Dickson J. (as he then was) said, at pp. 256 and 257:

In my view the better approach to the relationship of fault to the availability of necessity as a defence is based once again on the question of whether the actions sought to be excused were truly “involuntary”. If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency. His response was in that sense not “involuntary”. “Contributory fault” of this nature, but only of this nature, is a relevant consideration to the availability of the defence.

…If the accused’s “fault” consists of actions whose clear consequences were in the situation that actually ensued, then he was not “really” confronted with an emergency which compelled him to commit the unlawful act he now seeks to have excused. In such situations the defence is unavailable. Mere negligence, however, or the simple fact that he was engaged in illegal or immoral conduct when the emergency arose will not disentitle an individual to rely on the defence of necessity.

[35] Here the accused reasonably foresaw that robbing the pharmacy might bring him into conflict with the police, who would be duty bound to apprehend him by lawful means. That would all but eliminate the lawful exercise of police powers, on their own, from giving rise to the necessitous circumstances capable of supporting the excuse of necessity as defined in Perka and Latimer.

[36] I also observe, however, that neither the law nor public policy countenance the police engaging in the use of excessive or unreasonable force. See, for example, s. 25 of the Criminal Code, R.S.C. 1985, c. 46. Consequently, I further conclude that the excuse of necessity may be available where there is evidence of unlawful police conduct, such as an unreasonable use of force, which, considered together with all the other evidence, could lead a reasonable and properly instructed jury to conclude that each of the three requirements for necessity are met.

[37] I proceed on this basis in my analysis below. Police actions associated with investigating and apprehending the accused falling within the bounds of the law will very seldom give rise to the excuse of necessity on their own. However, to the extent there is an air of reality to an excessive and unlawful use of force by the police which, in all the circumstances of the case could satisfy the three requirements of necessity, the excuse should be left with the jury.

[38] In this case I reached the conclusion that there was no air of reality to necessity for two reasons. First, I concluded that at the time the accused exited the condo complex and approached Mr.Tizie’s truck, he was not faced with an imminent peril. Even accepting that the accused had a subjective fear that he would be shot or harmed by the police, at that point in time the reasonableness component of the modified objective test was not supported by the evidence. Second, I concluded that the evidence demonstrated that the accused had reasonable legal alternatives to stealing Mr. Tizie’s truck and taking off with it while driving in a highly dangerous manner. I will say more about each of these reasons in turn.

[39] In terms of there being no air of reality to the accused being in imminent peril, I reiterate that lawful police efforts to apprehend the accused cannot, in the circumstances of this case, amount to a qualifying imminent peril. Consequently, the fact that uniformed patrol officers were in the area setting up a perimeter cannot constitute the peril. The accused testified that his fear of being shot and killed by the police on this occasion was based primarily on a member of the tactical team discharging a rifle during the confrontation on the exit ramp from the parking garage. The accused testified he believed one of those shots hit him in the face. He said that because it was a “head shot” he thought the police were trying to kill him.

[40] There is a considerable body of evidence which is inconsistent with the accused’s testimony. The video shows three shots fired into the windshield of the Nissan Altima. Those shots were directed away from the accused rather than towards him. He had already exited the passenger seat of the vehicle and was running down the ramp. Moreover, the accused’s wound was to the left side of his face, which was the side of his face that was away from the shots. In addition, video and other evidence supports that the accused was shot by someone in the black Honda as he ran by the passenger door and looked into that vehicle. Two handguns were later located in the black Honda, one with a spent shell casing jammed in the ejection port.

[41] I observe, however, that the air of reality test is to be assessed on the view of the evidence most favourable to the accused. While the objective evidence does not support that the tactical officer fired at the accused, there could possibly be a basis for a conclusion that the tactical officer used excessive force in discharging his firearm at the Nissan Altima. Assuming but not deciding that to be so and bearing in mind that the police were entitled to use lawful means to apprehend the accused, I concluded that any air of reality to imminent peril had dissipated by the time the accused exited onto Burnhamthorpe Road and approached Mr. Tizie’s truck.

[42] By that time the accused had successfully evaded the tactical officers who were pursuing him. Those who had been in hot pursuit were still down on P5. The accused’s successful efforts to have Mr. Ahdab drive him up to P1 ended that hot pursuit. As the security video shows, by the time the accused got into the hallway leading to the exit door to Burnhamthorpe Road he was no longer running. He took time to peek out the door. He saw uniformed officers in the area but then he decided to exit the building anyway. At that point the police did not have eyes on him. The police officers in the immediate area at that moment were not the tactical officers. There is no evidence the police officers outside the building had their attention drawn to the accused until Mr. Tizie’s son began to scream after the accused entered Mr. Tizie’s truck.

[43] As indicated in Latimer, at para. 29, for there to be imminent peril, “disaster must be imminent, or harm unavoidable and near.” I found that there was no reasonable basis upon which the jury could reach such a conclusion in this case, having particular regard for the requirement that the peril arise from unlawful, as opposed to lawful, police conduct.

[44] Second, I reached the conclusion that the accused had reasonable legal alternatives to entering Mr. Tizie’s truck and then taking it by force and driving off at high speed and in a dangerous manner. For example, the accused could have raised his hands and surrendered to the uniformed police officers outside the building: R. v. Thomas [2000] O.J. No. 1307 (S.C.J.), at para. 10. The accused acknowledged that in his testimony. The accused also acknowledged that the street was busy. The evidence established that there were shops, businesses, and restaurants along the street. The accused agreed he could have tried to blend in and avoid the police. However, he chose to enter Mr. Tizie’s truck uninvited and to take the truck by force and drive off at high speed rather than pursuing the alternative courses of action which were available. These were not compelled involuntary choices. As held in Latimer, at para. 30: “If there was a reasonable legal alternative to breaking the law, there is no necessity.” That was my finding in this case.

Conclusion

[45] For the foregoing reasons I determined there was no air of reality to the excuse of necessity in this case and I declined to leave necessity with the jury.

Justice F. Dawson Released: January 6, 2023