IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Shannon McMichael is charged with driving while impaired, with a blood alcohol level over the legal limit and while prohibited on July 31, 2015 in Penticton. 

[2]           The central issue is whether the defence of necessity applies.  Ms. McMichael acknowledges that she did drive with a blood alcohol level over the legal limit when her licence was suspended, but relies on the common law defence of necessity.  She argues it was necessary for her to drive to escape her former boyfriend who had assaulted her.

[3]           Necessity is recognized as a defence when breaking the law is in a sense involuntary; that is, in cases where an accused had no real choice but to break the law.  The defence can be broken down into three essential elements.  First, there is the requirement of imminent peril or danger.  Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook.  Third, there must be proportionality between the harm inflicted and the harm avoided.

[4]           In Latimer, the Supreme Court of Canada summarizes the defence and reminds us that its application will be rare.  The court states at paras. 26-27:

[5]           The first two essential requirements are assessed on a modified objective standard, that is, the standard or perceptions of a reasonable person taking into account the particular circumstances and frailties of the accused.  The third requirement, proportionality, is assessed solely on an objective standard.

[6]           Finally, Ms. McMichael does not have to prove that the defence of necessity applies.  The Crown must prove beyond a reasonable doubt that it does not.  Therefore:

[7]           This requirement tests whether the actions of the accused were truly unavoidable.  At a minimum, the situation must be one which cries out for action where it would not be prudent to wait and see if there is another way to deal with it.  In other words, was the danger one which our society would not expect the average person, in the circumstances similar to the accused, to with-stand.

[8]           The situation must be a true emergency.  In Latimer, the Supreme Court of Canada said, “Where the situation of peril clearly should have been foreseen and avoided, an accused cannot reasonably claim any immediate peril”.  R. v. Latimer, 2001 SCC 1 at para. 29.

[9]           In other words if an accused actually contemplates, or if a reasonable person in the accused’s situation would have contemplated, that her actions would likely give rise to the situation of imminent peril requiring the breaking of the law, then the accused is not entitled to rely on the defence of necessity.  Essentially, it cannot be said that the accused is confronted with a real emergency when s/he is responsible for putting themselves in the situation.

[10]        In V(CW), the court considered the issue of the contributory fault of the accused.  The accused attended a party to recover a keg of beer, despite knowing the ownership of the keg was in dispute.  When he attended he was set upon by a group of people who began attacking his car.  Fearing for his safety, he backed his car away from the crowd hitting two people.  The trial judge was satisfied that the accused met the three-part test for necessity but determined that the defence was not available because the accused could not have gone to the residence without some thought of a “possibility” that doing so would result in problems.

[11]        The Alberta Court of Appeal overturned the conviction.  While it was open to the trial judge to find that the accused’s conduct negated the defence of the necessity, the judge could only do so if he found the accused actually foresaw or ought to have foreseen the situation of necessity.  A mere possibility was not enough.  R. v. V(CW), 2004 ABCA 208.

[12]        According to Ms. McMichael, she arrived at her boyfriend’s apartment around 9 p.m.  He was intoxicated and began verbally abusing her.  Ms. McMichael had been in an abusive relationship in the past, but had never seen this side of her then current boyfriend.  She described him as “outrageous” and “wasted”.

[13]        He grabbed her by the shoulders and threw her onto the ground.  A neighbour asked if she was okay and she said no.  The neighbour called police.

[14]        When Cst. Caruso arrived, he could immediately tell that Ms. McMichael had been drinking and told her that she needed to leave.

[15]        While she was speaking to the officer, Ms. McMichael saw her boyfriend throw her backpack and laptop onto the patio.  She called a friend and left without her backpack or computer.

[16]        In cross-examination Ms. McMichael said that had she stayed, the arguing would have continued and he could have gotten violent again.  She said she was afraid of him and the best course of action was to leave.

[17]        She stayed at her friend’s place approximately 3 to 4 blocks away from her boyfriend’s apartment.  After her friend fell asleep, she decided to go back to her boyfriend’s apartment to retrieve her laptop.  Ms. McMichael said it did not cross her mind to ask the police to assist her.  Although she said she did not expect her boyfriend to be at the residence, she did not explain why this was so except to say that is the way he is.

[18]        In cross examination she agreed it was not a good decision and knew if she met up with him, things would escalate and there would be trouble.  However, she said she was hoping he had calmed down and that things would be fine.

[19]        When she arrived at the residence, she looked inside and could tell he was not at home.  Although her laptop and backpack were outside, she used a key to go inside the apartment.  While inside her boyfriend returned.  She described him as drunker than before.  He was angry and pushed her against the wall.  She managed to get free and ran to her car parked outside the apartment.

[20]        She said her intention was to simply put the laptop inside the car and not drive.  When asked why she would be concerned about putting her laptop in the car and not running away if she felt she was in harm’s way, Ms. McMichael replied, “Because that is the way I am.  I maybe do not react the same way some people might.”

[21]        When she was putting the laptop inside the vehicle, her boyfriend threw part of a bed frame at the vehicle denting it.  At that point, she decided to get into the vehicle and leave.

[22]        Ms. McMichael said she was afraid that she would be assaulted if she remained at the scene, cried out for help, or tried to run.  In her eyes her only option was to get in the car and drive away.

[23]        Ms. McMichael testified that she has never seen this side of her boyfriend.  She opined that his behaviour was likely the combination of alcohol and his use of steroids.

[24]        I do not accept that Ms. McMichael was truly afraid of her boyfriend.  Her actions of returning to the apartment are inconsistent with that fear but furthermore, when Ms. McMichael was stopped by Cst. Caruso, he described her as chatty, engaging, and never once mentioning anything about being assaulted or fleeing from her boyfriend.  Although she would like me to believe she omitted telling the officer this because she still cared for her boyfriend and did not want to get him into trouble, I do not accept her explanation.

[25]        Even if I had a reasonable doubt about this, which I do not, she created the situation she found herself in.  Despite having been assaulted earlier by her boyfriend, and warned by Cst. Caruso to go home or stay at a friend’s place, Ms. McMichael chose to return to the apartment.  She returned in less than 40 minutes.  She could not have expected her boyfriend to have sobered up, and cooled off.

[26]        When she returned, she did not simply go on the deck to retrieve the laptop but she used a key to enter her boyfriend’s apartment without his consent.  By returning to the scene and going inside the apartment, she must have or ought to have foreseen the likelihood that there would be a further altercation causing the necessitous situation.

[27]        The second requirement for the defence of necessity is that there was no reasonable legal alternative to committing the offence.  This requirement gives rise to the question whether a reasonable person faced with an urgent situation of clear and imminent peril, in circumstances similar to the accused, could realistically avoid the peril without committing the offence.  If there was a reasonable, alternative course of action that was open to the accused, the defence of necessity does not apply because it was not really necessary to break the law.

[28]        In determining whether or not there were reasonable legal alternatives or other safer avenues of escape, it is appropriate to take into account Ms. McMichael’s particular circumstances and human frailties, including her ability to perceive the existence of alternative courses of action.

[29]        Furthermore, it is also not the task of the court to exhaust all of the potential possibilities which one can consider with the benefit of hindsight.  R. v. Costoff, 2010 ONCJ 109 (CanLII) at para. 26.

[30]        Ms. McMichael, through counsel, submits that she was upset and did not have the time or ability to carefully weigh her options and explore alternatives.

[31]        I do not agree.

[32]        When Ms. McMichael was stopped by police, although still upset, she was not crying and distraught.  Rather, she is described as being calm, polite and responsive to questions, even chatty and engaging.

[33]        She told the officer she was on her way home and mentioned nothing about fearing for her safety or the alleged assault.

[34]        Neither her demeanour nor what she told the officer is consistent with someone who is in imminent peril, without no reasonable legal alternatives.

[35]        When Ms. McMichael was stopped she already travelled several blocks, yet had not seen anyone pursuing her.  Despite this she said she was intent on driving all the way to her residence which was still several blocks away.

[36]        A similar situation arose in Brown.  In that case, the accused testified that he was accosted after leaving a liquor establishment.  He was able to get into his car and panicked because the individuals who accosted him were trying to get into his vehicle.  He drove away.  He said he was planning on driving to a grocery store parking lot, where he planned to call a cab to get home safely.  He said that he did not stop at the police station he drove past because he was intoxicated and panicky.

[37]        The Crown argued that Mr. Brown should not have driven but instead called the police from his vehicle.  The trial judge did not agree.  However, did agree that once the accused left the scene and shaken off the pursuers, he could have pulled into the police station.

[38]        On appeal, Mr. Brown argued that because he did not choose the best option he should not be disentitled to the defence of necessity.  The appellate court did not agree.  The court pointed out that not only was there no evidence that the accused was still being pursued (vehicle was being driven slowly), there was a reasonable legal alternative available to him; he could have turned into the police station parking lot.  Justice Brophy states at paragraph 30:

[39]        In another case, Sekhon, after being assaulted at a party by several individuals, the accused fled in his vehicle.  Two or three of his attackers followed him in another vehicle.  He was stopped by police a block and half away.  The trial judge accepted the defence of necessity and found him not guilty.

[40]        On appeal, the court held that the trial judge erred by not addressing whether at the time of the arrest the accused was in imminent peril.  Justice Belzil states at paragraphs 39-45:

[41]        Justice Belzil concluded that the defence of necessity could not be relied upon and entered a conviction.  This finding was upheld by the Alberta Court of Appeal and leave to appeal refused by the Supreme Court of Canada.

[42]        Ms. McMichael relies on L.S., a decision by Judge Bayliff from our court.  The case is distinguishable in that some of the options available to Ms. McMichael were not reasonably available to L.S. because L.S. was also protecting her young child.  In addition, L.S. was stopped less than one block, not several, from where the assault occurred.  R. v. L.S., 2001 BCPC 462.

[43]        Like Mr. Sekhon, even if I accept Ms. McMichael was in imminent peril when she left the scene, she was not in any peril when she was stopped by the police.  Like Mr. Sekhon, Ms. McMichael had a duty to reassess her situation and look for reasonable legal alternatives.

[44]        During her testimony, Ms. McMichael did not deny she could have driven and stopped at either the Bad Tattoo or the Lakeside Resort which were a short distance away.  When asked why she did not, she said she was “embarrassed and did not want to bring anyone else into her life.”

[45]        At a minimum, after travelling a few blocks, she could simply have stopped her vehicle and called her friend or police.

[46]        The third requirement is that there be proportionality between the harm inflicted and the harm avoided.  The harm inflicted must not be disproportionate to the harm the accused sought to avoid.  In some cases, evaluating proportionality can be difficult.  The law does not require that the harm avoided must clearly outweigh the harm inflicted.  Rather the harm must be of comparable gravity, or of greater gravity, than the harm inflicted.  

[47]        Although in a number of cases judges have considered potential harm, in Desrosiers, the court opined that the third requirement only takes into account actual harm.  The judge stated:

[48]        Given my findings with respect to the first two requirements, a resolution regarding the proper interpretation can be left for another day.

[49]        To allow Ms. McMichael the benefit of the defence of necessity on these facts would substantially lower the legal threshold, which for sound policy reasons must remain high.  Even I accepted that Ms. McMichael found herself in imminent peril, she created the peril she found herself in.  Furthermore, to suggest that once she decided to drive while impaired that she could continue driving until she decided it was safe to stop would ignore the objective part of the analysis that requires the court to consider whether there were other reasonable legal alternatives that she could have taken to stop driving sooner.

[50]        I find Ms. McMichael guilty on all three counts.