IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Agnew is charged with assaulting Laura Marie Vitick on December 23, 2016.

[2]           She alleges that on that day, Mr. Agnew grabbed her around her throat, forcibly pulled her from his parked vehicle and threw her down to the ground.

[3]           Mr. Agnew admits that he pulled Ms. Vitick from his vehicle but did so because he believed that she was about to commit an offence by driving away and injuring herself or someone else by driving into oncoming traffic.  He relies on s. 27 of the Criminal Code which states the following:

[4]           Both Mr. Agnew and Ms. Vitick testified and I am mindful that I must not simply prefer the evidence of one witness over another - this is not a credibility contest.  Furthermore, I direct my analysis in accordance with the leading decisions in R. v. W. [D.], 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and R. v. C.W.H. (1991), 1991 CanLII 3956 (BCCA).

[5]           In my view, notwithstanding that there are some inconsistencies in the evidence about exactly how Mr. Agnew grabbed Ms. Vitick and where she was when he did so - the real issue to be decided is whether or not, the Crown has proven beyond a reasonable doubt that the s. 27 defence does not apply.

[6]           It is trite law that Mr. Agnew does not have to prove his defence.  The burden of proof to disprove the defence always remains with the Crown.

[7]           Counsel for Mr. Agnew admits that he applied force to Ms. Vitick but did so to prevent her from committing an offence likely to cause immediate and serious injury.

[8]           Crown counsel submits that Mr. Agnew’s belief was not reasonable in the circumstances and points to the fact that he left his children in her care immediately after the incident.  He asserts that they have proven, beyond a reasonable doubt, that the s. 27 is not applicable.

[9]           Ms. Vitick and Mr. Agnew had been in a relationship between May, 2008 and April, 2015 but with numerous separations during that time.  They have three children aged 5, 4 and 2 and separated for the final time in April, 2015, shortly after the birth of the youngest child.

[10]        At the material time, Mr. Agnew was dropping off the oldest child to Ms. Vitick at her mother’s home.  The two had exchanged vehicles previously and on the afternoon in question, they were each retrieving belongings from the vehicle they had been driving.

[11]        Both vehicles were parked beside each other in the driveway of Ms. Vitick’s mother.

[12]        Mr. Agnew’s evidence is that the day before the incident occurred, he listened to a voice mail message from Ms. Vitick although she had left the message the night before - December 21, 2016.  The message was played in Court.  Ms. Vitick sounded distraught and said the following:

[13]        He says that he called her because he was concerned and believed that she was serious.  Ms. Vitick was not questioned about this call.  There is no evidence about what, if anything was said in such a call about her intentions or her obviously distressed emotional state.

[14]        Mr. Agnew testified that Ms. Vitick was in the same distressed state when he saw her on December 23, 2016.  She needed money for a payment on her mother’s van (the one she was driving).  He described that she told him she was unhappy, upset and pleaded with him to make the van payment.

[15]        Mr. Agnew testified that he had already paid her child support for December and had in fact paid it earlier at her request.

[16]        His evidence is that Ms. Vitick told him that she couldn’t do this anymore, wanted to go to the hospital, wanted to die and give up.  He said she told him that she wanted to drive his car into oncoming traffic.  His response was to tell her that they were no longer a couple and to stop and he began transferring items from his vehicle into her vehicle.  He didn’t elaborate about what he meant by “stop” but I infer he wanted her to stop talking the way she was and likely cease the way she was behaving with him.

[17]        The keys to his car were in the ignition and his cell phone and wallet were in the centre console.

[18]        As he was moving things into the van, he heard the door to his car open and saw Ms. Vitick stepping into the driver’s side of his car.  He turned around and grabbed the back of her sweater to pull her towards him with both hands and told her “not today”.  He lost his footing.  She fell and he fell on top of her.  After she got up, and walked away she told him that he was going to pay for that.

[19]        He says the reason he grabbed her was to stop her from getting into and driving the car because she told him she wanted to take it and drive into oncoming traffic.  In cross examination, he testified that at that moment he felt he needed to intervene and wouldn’t allow her to harm herself.  He denied that Ms. Vitick picked up his phone or that he grabbed it from her just before pulling her away from the car.

[20]        In cross examination, he testified that because they had been separated since April, 2015, her feelings were “no longer a “joint problem”.  He also agreed that after the incident, he simply drove away and didn’t call police, an ambulance nor did he speak with Ms. Vitick’s mother.  His explanation was that after he heard her say that he “would pay for this”, he felt that she was no longer suicidal.

[21]        However, he agreed that he played the voice message for MCFD on December 25 because he was concerned that she was suicidal.  He also agreed that he was aware that Ms. Vitick reported the December 23 incident to police on December 24, 2016.

[22]        Ms. Vitick confirmed that she and Mr. Agnew had been using each other’s vehicles and in the afternoon on December 23, 2016 they were moving effects back into their respective vehicles.  The vehicles were parked beside each other in the driveway of her mother’s home.  It was about 1pm or 2pm.

[23]        Prior to the incident in question, Ms. Vitick’s evidence is that Mr. Agnew’s demeanour seemed “ok” - he was removing his things from her vehicle, he wasn’t going to give her money for child support and as she said - “everything was fine I guess”.

[24]        Ms. Vitick says she got into Mr. Agnew’s car and was sitting in the driver’s seat when she heard his cell phone ring.  Mr. Agnew was standing just outside the vehicle by the driver’s side.  His cell phone was in the centre console and she picked it up and started to hand it to Mr. Agnew.  Her evidence is that Mr. Agnew suddenly grabbed the phone from her hand and, at the same time, grabbed her around her neck, pulled her forcibly from the car and threw her to the ground.

[25]        She fell forward, landed on her knees and braced her fall using both hands.  Photographs taken by the police show an abrasion on the right side of her neck just above her collar bone, an abrasion to her left knee and scrapes to the lower palm of her left hand.  She said it all happened very quickly and as soon as she fell, Mr. Agnew released his grip.

[26]        Ms Vitick provided a statement to the police about this incident.  She agreed that after her statement, she told them later that she didn’t want to proceed with charges.  Her explanation was that she was concerned that MCFD would become involved and the children could end up in foster care.

[27]        In cross examination, she agreed that she was stressed out at this time but she denied that she was suicidal or feeling depressed.  When confronted about leaving a voice mail message for Mr. Agnew, she maintained that she was not suicidal nor did she say she was suicidal.  Upon further pressing, she admitted that she “might” have said something about both of them killing themselves and spontaneously responded that Mr. Agnew was not helping her with child support and would not give her child support on the day in question.

[28]        She maintained her denial of being suicidal even after the recorded message was played.  She asserts that at the time of the call, she didn’t know what to do, had no money, no place to stay, the shelter was full and no one was helping her.  When confronted with this in cross examination, she eventually testified that although she said she wanted them all to die, she wasn’t suicidal, that she loves her children and would never hurt them.  In fact, she testified that, rather than being suicidal, she was excited for Christmas.

[29]        She agreed in cross examination that Mr. Agnew had told her that he couldn’t give her any more money and she also gave evidence that she was accepting of that.  She agreed that they had a conversation about money the day of the incident but denied that they had an argument about it.

[30]        She denied that she told Mr. Agnew that she was going to get into his vehicle, drive into oncoming traffic to kill herself and another person.  She denied that Mr. Agnew had pulled her out of the vehicle by grabbing her in her back or waist area.

[31]        She denied that when she was sitting in the driver’s seat of Mr. Agnew’s car, he said “no you don’t” before he pulled her out of the car.  She also denied Mr. Agnew’s version of events - that both of them fell forward with Mr. Agnew landing on top of her.  She denied that after she got up, she told him “you’re going to pay for this”.

[32]        I have reviewed the case law provided by both counsel.  A number of principles of general application can be distilled from those cases:

[33]        Mr. Agnew does not have to prove that his use of force was justified by s. 27.  The Crown must prove beyond a reasonable doubt that his use of force was not justified by s. 27.

[34]        Section 27 applies to certain offences which, if committed, the offender might be arrested without a warrant.

[35]        Section 27 permits a person to use as much force as is reasonably necessary to stop or prevent the commission of an offence that is likely to cause immediate and serious injury to a person or property.  That is assessed by viewing the totality of the circumstances including whether other means were available at the time, the immediacy or urgency of the situation and the potential seriousness of the offence.

[36]        Section 27 also permits a person to use reasonable force to prevent the doing of something which he believes, on reasonable grounds, would be an offence that is likely to cause serious and immediate injury to a person or property.  The accused may still have the benefit of this section even if he is mistaken, but held a belief on reasonable grounds.

[37]        That belief is assessed subjectively, that is from the perspective of the accused, but there must be a reasonably verifiable basis for that perception.  In other words, the accused’s subjective belief must be objectively reasonable in all the circumstances.

[38]        The amount of force used must also be objectively reasonable although the person using the force is not expected to weigh to a nicety the exact measure of defensive action: R. v. Kandola (1983) 1993 CanLII 774 (BC CA), 80 CCC (3^rd) 481 (BCCA) referred to in R. v. Michaud, [2006] A.J. No. 1247, para 40.

[39]        The Crown must always prove the elements of an offence beyond a reasonable doubt.  Here, it must establish beyond a reasonable doubt that Mr. Agnew applied force to Ms. Vitick without her consent when he pulled her out of or away from his vehicle.  Counsel did not submit that this was at issue and based on all the evidence.  I find that Crown has proven, beyond a reasonable doubt, the elements of the offence of assault.

[40]        However, in this case, Crown must also prove, beyond a reasonable doubt, that the s. 27 defence does not apply.  Crown need only prove, beyond a reasonable doubt, that one of the elements of the defence does not apply.  Those elements are: (1) that force was reasonably necessary to prevent an offence or that the defendant believed on reasonable grounds that an offence was about to be committed; (2) the offence was likely to cause immediate and serious injury to a person or property; and (3) the amount of force was reasonable.

[41]        The “beyond a reasonable doubt” standard does not mean 100% certainty, but it is much closer to a certainty than to a balance of probabilities.

[42]        It was clearly a difficult time for Ms. Vitick.  She was staying at her mother’s home but the relationship was strained and I gather that her mother didn’t want Ms. Vitick and the three children living with her, at least for any significant period of time.  She was homeless and had no money.  She was also concerned that the MCFD would become involved and remove the children.

[43]        She was struggling to make ends meet and two days before this incident - on December 21, 2016, at 9:29 pm, left a voice message for Mr. Agnew in which she told him she wanted to die and talked about making a suicide pact involving Mr. Agnew and the children even that evening.

[44]        Ms. Vitick’s evidence was greatly undermined by her denials that she was depressed or had expressed suicidal thoughts.  Had the voice message not been available in Court, her evidence would have been misleading.  The messages she left for Mr. Agnew were clearly an expression of desperation, of hopelessness about her situation and of helplessness.  Her suggestion that, even in the face of being confronted with this evidence, that she was excited for Christmas similarly undermines the weight with which I place on her evidence.

[45]        Similarly, her evidence under cross examination that on the day of this incident she was “ok” about Mr. Agnew not giving her more money also causes me to approach her evidence with a great deal of caution.  Her testimony was that Mr. Agnew was supposed to give her $300 that day.  She was without any money, no home and needed help from Mr. Agnew which she says was not forthcoming.  She had recently been threatening to kill herself and the children and telling him that he doesn’t care.  I do not accept her evidence that she was “ok” about Mr. Agnew not giving her more money for child support.

[46]        Mr. Agnew’s evidence about Ms. Vitick’s emotional state on December 23 is consistent with the tenor of the voice message she left on December 21, 2016 - just two days previously.  I find as a fact that on December 21, when she left the message, she was clearly distraught, upset, threatening to kill herself and talking about entering into a suicide pact as a family.

[47]        Mr. Agnew’s evidence about Ms. Vitick’s emotional condition on December 23 is believable and consistent with the voice message.  I accept Mr. Agnew’s evidence that Ms. Vitick told him that she was going to drive his car into oncoming traffic and am unable to place any weight on Ms. Vitick’s denial that she made this statement.  It is consistent with the kinds of threats and statements she was making in the phone message on December 21.

[48]        While Mr. Agnew might well be accused of extreme callousness in telling her, on December 23, that her emotional state and her expressions of hopelessness weren’t his problem anymore, I accept that he subjectively believed that she was about to drive off in his car and that she would drive into oncoming traffic - to kill herself, or someone else or damage property.  The keys were in the ignition and available to allow for her to drive away.  I find that this meets the criteria for the type of offence contemplated by s. 27 - if committed; she might be arrested without a warrant and the offence would likely cause immediate and serious injury to her, someone else or to property.

[49]        Based on the evidence of Ms. Vitick’s emotional condition and statements during this time frame, including on December 21, 2016, I find that Mr. Agnew’s belief was objectively reasonable.  Even if Mr. Agnew was mistaken in his belief that she would drive into oncoming traffic, I find that a mistaken subjective belief by him was nonetheless objectively reasonable for the same reasons.

[50]        Mr. Agnew necessarily reacted quickly to Ms. Vitick getting into his car.  The keys were still in the ignition.  He pulled her out and she fell to the ground.  I accept that this was an urgent situation.  He did not have time to call the police or to ask her mother or anyone else for that matter to intervene.  By the time other help would have arrived, Ms. Vitick may well have already driven away in his car.

[51]        His use of force in all the circumstances was reasonable.  I do not need to resolve the inconsistencies in the evidence regarding how far into the car Ms. Vitick was when the assault occurred or whether Mr. Agnew fell on top of her.  He pulled her out or away from the car and let go of her as soon as she was out of the car.  Fortunately, her injuries were not serious.

[52]        Finally, even if I am wrong in reaching my conclusions, I have a reasonable doubt that any one of the elements of the s. 27 defence does not apply.

[53]        I find that the Crown has not proven, beyond a reasonable doubt, that the defence raised pursuant to s. 27 does not apply.

[54]        Accordingly, Mr. Agnew is acquitted.