DEFENCES - SELF-DEFENCE/DEFENCE OF PROPERTY DEFENCES UNSUCCESSFUL

On the evening of July 25, 2011, the accused was at his acreage in the R.M. of Corman Park. He had had supper, drank a few beers and was watching television when he fell asleep on his couch. At approximately 2:00 a.m. he woke up to see two flashlight beams being shone around his backyard. He got up to investigate and as he exited his house he saw some persons fleeing toward the roadway. He gave chase on foot but by the time he got to the road, they were gone. He ended up driving into Saskatoon and stopping a vehicle that was completely unrelated to the initial incident.  Police also attended and observed signs of impairment and the accused ended up blowing over .08.  He was convicted at trial and his appeal was dismissed:

The trial judge concluded that Dr. Pankiw’s belief that a threat of force was being made against himself and his family was not substantiated by the evidence, nor that his purpose in going after the vehicle while intoxicated was to defend or protect himself or his property. Finally, the trial judge concluded that it was unnecessary and unreasonable for Dr. Pankiw to operate a motor vehicle while he was impaired in the circumstances of the case. He therefore found that the Crown had established that defence of person had not been made out. R. v. Pankiw, 2014 SKQB 381

SECTION 10(B) - RIGHT TO COUNSEL AND INTERNET ACCESS

An appeal court has reviewed an earlier decision summarized in our February 16, 2013 blog:

While drinking and driving continues to be a problem in our society, ensuring that those accused of impaired driving offences have a reasonable opportunity to retain and instruct counsel before submitting to a breathalyser test is also an important objective in our justice system. At Mr. McKay's trial, the Trial Judge found that it was time for the police to provide detainees with access to the Internet, concurrent with other more traditional resources, in order to facilitate contact with counsel. As Mr. McKay was not given such access, the Trial Judge found that the Crown failed to establish that Mr. McKay was provided with a reasonable opportunity to contact counsel. [The appeal court] essentially agree[d] with the sentiments expressed by the Trial Judge that it is time for the police to modify their procedures; however, the facts of this case did not in [the appeal court's] view justify the Court expanding the duties of the police in the manner chosen by the Trial Judge. R. v. McKay, 2014 ABQB 70

SECTION 9 - MERE CONTACT IS NOT ARBITRARY DETENTION

The police officer approached Mr. Levesque's vehicle, which was already parked in a mall parkade. He argued that he had been arbitrarily detained.  The Ontario Court of Appeal disagreed:

There was no basis to conclude that the appellant was arbitrarily detained in the momentary delay before the officer noticed alcohol on the appellant’s breath; mere contact with a police officer does not constitute arbitrary detention. R. v. Levesque, 2014 ONCA 890, affirming R. v. Levesque, 2013 ONSC 5125.

DEFENCES - NECESSITY DEFENCE SUCCESSFUL

At trial Mr. Maxie testified that he heard someone say he was “going to get his gun” and then saw that person run towards a house. When Mr. Maxie heard the word “gun” he moved quickly to the driver’s side of his truck. He testified he did so because he did not know where the gun was. He opened the driver’s door and without telling a passenger what was going on he told her to push over. He got behind the wheel and started the truck. He heard a gunshot. He stepped on the accelerator and was looking in the rear view mirror to see where the shooter was, while driving straight ahead over the lawn. Almost immediately he felt a bump and heard a “bumph” sound as if something had hit the side of the vehicle. He did not stop, but continued straight ahead to the road. He pulled over about a kilometre away when he “saw a cop car coming”.  A later breathalyzer test resulted in readings of .19 and .18, respectively. (The "bumph" turned out to be the sound of him striking a pedestrian who spent 2 days in the hospital). Mr. Maxie was acquitted at trial and that acquittal was upheld:

1. He was in a situation of imminent peril. 2. There was no reasonable legal alternative to the course of action taken by Mr. Maxie 3. The harm avoided, that is someone being shot and possibly killed, was greater than the actual harm inflicted (being the injury to the pedestrian's left leg).  R. v. Maxie, 2014 SKCA 103

SECTION 10(A) - REASONS FOR DETENTION ARE REQUIRED

Mr. Woychuk was pulled over at 4:55 pm. He was asked no questions about where he had been or whether or not he had been drinking. The officer only asked where he was going. Though the officer was aware, from the moment that he stopped Mr. Woychuk, that he was investigating Mr. Woychuk for impaired driving, there was nothing said by the officer to Mr. Woychuk that would have allowed him to understand the reason for his detention. The officer simply asked Mr. Woychuk to get out of his truck and follow him toward the police car. The Court concluded that section 10(a) was breached:

Section 10 (a) requires the police to tell detainees the reason for their detention. The purpose behind s. 10(a) is to allow the detainee to understand the jeopardy he faces. R. v. Woychuk, 2014 ABQB 622