R. v. Nelson, 2018 BCPC 173 (CanLII)
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2018 BCPC 173 |
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Date: |
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File No: |
82472-C-4 |
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Registry: |
Nanaimo |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
GABRIEL STEPHEN NELSON
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
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F. Dubenski |
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Counsel for the Defendant: |
D.J. McKay |
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Nanaimo, B.C. |
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Dates of Hearing: |
March 22, June 6, 25, 2018 |
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Date of Judgment: |
July 10, 2018 |
The Facts
[1] Mr. Lanty and Mr. Nelson live, each with his extended family, next door to each other in Whiskey Creek, British Columbia. The families are not on good terms.
[2] On Christmas Day, 2016, Mr. Lanty and his extended family walked from their house to the head of their driveway, intending to drive to a Christmas gathering at the home of another family member. The path is narrow, so they walked single-file, with Ms. Lanty in front, Mr. Lanty behind her, their son, C. behind him and Ms. Lanty’s parents bringing up the rear. As they approached Ms. Lanty’s vehicle, they observed Mr. Nelson standing in the driveway, and his vehicle parked behind Ms. Lanty’s vehicle, preventing anyone from backing it out of the driveway. Mr. Nelson made a number of remarks in a sarcastic tone of voice, disparaging the Lanty family’s Christmas spirit. He confronted Ms. Lanty. Mr. Lanty stepped in front of his wife, and said to Mr. Nelson in a very assertive tone of voice “You need to leave now”. Mr. Nelson struck Mr. Lanty on the cheek with a snow globe which Mr. Nelson had in his hand. A struggle ensued and both men fell to the ground. Punches were exchanged. Mr. Nelson is significantly larger and stronger than Mr. Lanty, and quickly gained the upper hand. Mr. Lanty called on C. to assist him. Together, they were able to subdue Mr. Nelson and hold him down until the police arrived. In the course of the struggle, Mr. Lanty suffered injuries which he described in the following terms:
… my glasses were smashed up. I had a -- a mark on my face from that, but the gouge on my face from him trying to get at my eyeball, and my knees were completely raw and my elbows were raw, and my … hands were all cut up from the … pavement, I guess. My right shoulder is still bothering me and I had my right thumb was really bothering me for about a year, and it’s not too bad now, but the shoulder is still coming around.
That description was not challenged on cross-examination.
[3] At the time of the incident, Mr. Nelson was bound by the terms of a probation order which included, among other terms, an obligation to “… keep the peace and be of good behaviour ….”
The Charges
[4] Mr. Nelson is charged with assault and breach of probation.
Assault
[5] In response to the charge of assault, Mr. Nelson argues that he and Mr. Lanty were engaged in a consensual fight, and that participation in such a fight does not justify a conviction for assault. I reject that submission for two reasons:
(a) I am mindful that the Crown carries the onus of proving beyond a reasonable doubt that Mr. Lanty did not consent to a fight with Mr. Nelson: R v. Muise [1994] MJ No. 530. “Consent”, in this context, means a voluntary agreement to engage in a fight: R. v. Denny 2017 NSSC 14; [2017] NSJ No. 14 @ paragraph 4. An agreement is comprised of an offer and an acceptance, which may be communicated by words or conduct. Mr. Lanty was not asked whether he consented to a fight, either during his evidence in chief or during his cross-examination. However, his description of the start of the fight is of some importance. During his evidence in chief, Mr. Lanty said:
… my wife was up top and I’m worried about her, he’s going right over top of her to … come around the vehicle to get to me, so I’m moving up very quickly to get to him to defuse that situation, and … I’m saying to him right up in front of the vehicle, at the front part of our vehicle “You must get in that vehicle and leave right now. Go. Just get out of here”. And he was not leaving. He did not want to go. He wanted to come at me … and he continued to push his way past to get to me, and we met in front of the vehicle. … he took the first swing and … it was a snow globe and smashed my glasses off my face …. … he coldcocked me with this snow globe ….
That evidence was not challenged in cross-examination, nor was it contradicted by any other witness. In the rustic vernacular of Vancouver Island, to “coldcock” someone is to strike them, usually in the head, without prior warning or challenge. The technique is also referred to as a “sucker punch”. It is a form of surprise attack intended to disable the victim before he has an opportunity to defend himself. Before the blow with the snow globe, Mr. Lanty had no opportunity to grant or withhold his consent to the fight - there was no challenge or invitation, by words or conduct, to which he could respond. After the blow with the snow globe, Mr. Lanty had no opportunity to grant or withhold consent. He was urgently engaged defending himself from Mr. Nelson’s onslaught. I am satisfied beyond a reasonable doubt that this was not a consensual fight.
(b) As a matter of law, no one can consent to an assault in which an attempt is made to inflict more-than-trivial injuries and such injuries are inflicted. I stated the governing principle in R v. Gagne [2016] BCJ No. 2710; 2016 BCPC 415 @ paragraph 20, as follows:
Section 265 of the Criminal Code provides that "... a person commits assault when, without the consent of another person, he applies force intentionally to that other person ...". Where the issue arises, the Crown carries the onus of proving that the victim of the assault did not consent: R. v. Muise, [1994] MJ No. 530. However, the issue does not arise where the assault caused "... serious hurt or non-trivial bodily harm ..." to the victim. For reasons of public policy, no one can consent to an assault which causes harm of that kind: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714 @ paragraphs 110 -125. Consent may vitiate the offence where the assault causes "... only minor hurt or trivial bodily harm ...": Jobidon @ paragraph 129.
Mr. McKay submits that Gagne was wrongly decided. The only injuries suffered by Ms. Gagne’s victim were facial bruises which continued to be visible a week after the altercation. Mr. McKay submits that those injuries were comparable to those suffered by Mr. Lanty, and that neither set of injuries was sufficiently serious to vitiate consent to a fight.
[6] The severity of injury sufficient to invoke the Jobidon principle has been variously described in the jurisprudence. The most commonly used phrases are “non-trivial bodily harm”, “serious bodily harm” and “grievous bodily harm”. The authorities were reviewed in detail by Justice Tysoe in R v. Oldford 2002 BCSC 800; [2002] BCJ No. 1986. At paragraph 14, Justice Tysoe decided that the correct phrase is “non-trivial” bodily harm. Oldford was followed and expanded upon by Justice Powers in R. v. C.L. 2011 BCSC 857; [2011] BCJ No. 1214.
[7] The Oxford English Dictionary provides several alternate definitions of “trivial”. The applicable definition from that source is “… of small account, little esteemed, paltry, poor, trifling, inconsiderable, unimportant, slight …”. I would not use any of those words to describe the injuries suffered by Ms. Gagne’s victim or by Mr. Lanty. It follows that their injuries were “non-trivial”.
[8] Mr. Nelson struck Mr. Lanty in the face with a snow globe. Such a blow was very likely to cause a non-trivial injury. I infer that Mr. Nelson intended the natural and probable result of his action. In the result, Mr. Lanty did suffer a non-trivial injury. Even if the fight was consensual, Mr. Nelson is guilty of an assault because he intended to cause, and did cause, non-trivial injuries to Mr. Lanty.
[9] Accordingly, I convict Mr. Nelson of assault.
Breach of Probation
[10] The facts alleged in support of the charge of breach of probation are identical to those alleged in support of the charge of assault. However, a “… conviction for breach of a recognizance or probation order based on the commission of another substantive offence is not subject to the doctrine of res judicata (the "Kienapple" principle) …: R v. D.R. 1999 CanLII 13903 (NL CA), [1999] N.J. No. 228 @ paragraph 48. As a result, Mr. Nelson may be convicted of both charges.
[11] Section 732.1(2)(a) of the Criminal Code requires that every probation order include an obligation to “keep the peace and be of good behaviour”. It might be argued that section 732.1(2)(a) infringes the following constitutional principle, articulated by Justice Lamer in Reference re Sections 193 and 195.1 of the Criminal Code 1990 CanLII 105 (SCC), [1990] 1 SCR 1123 @ paragraph 34:
… there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards …. This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law.
I observe that:
a) In R. v. D.R., the Newfoundland Court of Appeal needed 52 paragraphs of detailed scholarly analysis to define those kinds of behaviours which do, or do not, constitute a failure to keep the peace and be of good behaviour.
b) If that were not enough to confuse the lay reader, it has been said that the phrase has a different meaning in criminal law than it does in immigration law: R. v. Smith [2014] NSJ No. 399; 2014 NSPC 44 @ paragraph 6.
Having spent some time reading the jurisprudence, I think it fair to describe it as impenetrable to the ordinary literate citizen. That being so, I am left in some doubt as to whether section 732.1(2)(a) conforms to the principle stated by Justice Lamer. However, I do not think that the issue arises in this case, because I think that any ordinary citizen would recognize a fist fight, consensual or not, as both a breach of the peace and bad behaviour.
[12] Accordingly, I convict Mr. Nelson of the offence of breach of probation.
July 10, 2018
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T. Gouge, PCJ