D.P. BALL QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 160 Date: 2016 05 09 Docket: CRM 80 of 2015 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and JAY JAMES DRYSDALE Counsel: David Kim Jones for the Crown Andrew Hitchcock for the accused JUDGMENT ZARZECZNY J. MAY 9, 2016 INTRODUCTION [1] On August 7, 2014, Jay James Drysdale was panhandling, along with companion, at the 7-Eleven convenience store at the corner of Winnipeg Street and Victoria Avenue in Regina. Mr. Drysdale is First Nations and he was homeless at the time. He and his companion had much to drink that day and Mr. Drysdale was intoxicated. He had verbal confrontation with Simon Brown, security officer providing loss protection services to the 7-Eleven. Mr. Drysdale returned to his dufflebag short distance away from the confrontation, took out kitchen butcher knife and walked towards Mr. Brown. Frightened, Mr. Brown, and second security officer also in his company, ran Mr. Brown to his SUV vehicle in the parking lot short distance away. Mr. Drysdale pursued him to the vehicle and slashed one of the vehicle’s tires with the knife he was still carrying. Mr. Drysdale left the scene, went to the rear of the 7-Eleven building and, in an alleyway, went into yard and threw away the knife. Police attended, arrested and charged him with the offence that he faced at his trial. THE INDICTMENT [2] The indictment sworn against Mr. Drysdale dated October 1, 2015 charges as follows: 1. THAT HE, the said Jay James Drysdale on or about the 7th day of August, A.D. 2014 at or near Regina, Saskatchewan, did in committing an assault on Simon Brown threaten to use a weapon, to wit: a butcher knife, contrary to section 267(a) of the Criminal Code. [3] This case rests primarily upon its facts. For that reason, will review the evidence presented in some detail. The Crown called five witnesses who gave evidence at the trial including Simon Brown and his security officer in training, Jason Hedstrom, Cst. Tyler Lerat and two bystander witnesses, Michael Dyck and Adam Fretz. The defence called Mr. Drysdale to give his evidence. The evidence of these witnesses, which will now review, provided the facts and circumstances of this case. [4] Cst. Lerat testified that he was uniformed officer on patrol the early evening of August 7, 2014. He received call to attend at the 7-Eleven store at Victoria Avenue and Winnipeg Street from his dispatcher who had received call that man with large knife was at that location and that he had chased victim and slashed tire on the victim’s car. Cst. Lerat attended at the scene and spoke to number of witnesses who reported seeing the individual in question running into yard at 1925 Winnipeg Street. second police vehicle and officers attended and they apprehended and arrested Mr. Drysdale. Cst. Lerat inspected the yard at 1925 Winnipeg Street and he found and seized large “butcher knife” entered as Exhibit P1 at the trial. [5] Simon Brown, the primary victim of these circumstances, testified that he is the Regional Manager of Impact Security Group, company whose security services were engaged by 7-Eleven to provide loss prevention mainly shoplifting, but as well general store security, at its location on Victoria Avenue and Winnipeg Street. At that location, he was accompanied by Jason Hedstrom, another security officer in training employed by Impact. Both were dressed in casual clothes. [6] Mr. Brown testified that he and Mr. Hedstrom were in the 7-Eleven store but walked out of the front main door and took position sitting on ledge, distance away from it. Mr. Brown was having cigarette when the accused, Mr. Drysdale, came up to him and at very close quarters, held cigarette to his face. Mr. Brown admits saying to Mr. Drysdale, in stern voice, “Get the fuck out of my face”. He did not recall seeing Mr. Drysdale before the events of this day but he had seen Mr. Drysdale panhandling by the main entrance of the store before the confrontation. [7] Mr. Brown testified that it appeared Mr. Drysdale was angered by Mr. Brown’s stern comment. He saw Mr. Drysdale walk away, returning to the area of the front entrance of the store where he had apparently left dufflebag. He observed Mr. Drysdale rummaging through his dufflebag and throwing out cans and bottles that were in it. He then saw Mr. Drysdale pull large knife out of his bag and, with the knife in his hand, walking towards him. [8] Seeing this, Mr. Brown testified he took off running into the parking lot. Mr. Drysdale chased after him. Mr. Brown ran to his SUV vehicle at the end of the parking lot, some 100 feet away, followed all the while by Mr. Drysdale. Mr. Brown got into his vehicle and locked the doors. He saw Mr. Drysdale come up to the vehicle, heard him yell something, and heard him hitting the vehicle with the knife. Mr. Brown called 9-1-1on his cell phone and testified he “thought my life was in danger”. In his rear view mirror, he observed Mr. Drysdale with the knife in his hand and saw him making stabbing motion downward towards his vehicle. He then saw Mr. Drysdale heading towards the back alley at the rear of the 7-Eleven store. Mr. Brown followed in his vehicle, which now had flat tire. He saw Mr. Drysdale, still with the knife in his hand, run into yard, observed the police arriving, and Mr. Drysdale being arrested. [9] few days later, Mr. Brown returned to the 7-Eleven store and recovered video tape depicting some of the events that occurred. He delivered copy to the Regina Police Service, retaining one for his records. As it would later come to light, the copy delivered to the Police Service was misplaced, however, Mr. Brown’s copy was discovered after the case for both the Crown and defence was closed. By an Agreed Statement of Facts, entered as Exhibit P4, both defence and Crown counsel agreed to open the case, have the video tape entered as Crown exhibit and played. [10] Jason Hedstrom testified to much the same effect as did Mr. Brown. What he remembered of the verbal altercation between Mr. Brown and Mr. Drysdale was slightly different than testified to by Mr. Brown. Mr. Hedstrom testified that Mr. Brown said “Get the fuck out of my face or I’ll knock you out”. [11] Mr. Hedstrom, too, was frightened when he saw Mr. Drysdale coming towards he and Mr. Brown with large knife. He testified that he was “fairly petrified” and ran quickly block or so away from the scene of the initial confrontation between Mr. Brown and Mr. Drysdale. He testified he saw Mr. Drysdale chase after Mr. Brown with the knife in his hand. [12] Mr. Brown testified, on cross-examination, that he was six feet tall and approximately 265 pounds at the time and Mr. Hedstrom that he was also six feet tall and approximately 275 pounds. Both accepted that Mr. Drysdale was considerably smaller than either one of them. Messrs. Michael Dyck and Adam Fretz were two bystanders who lived in the neighbourhood and were walking to the 7-Eleven where they intended to buy some confections. Mr. Dyck testified that he saw two persons outside of the 7-Eleven, one being Mr. Brown and the other the accused, Mr. Drysdale. He testified he saw the accused becoming upset, saw Mr. Drysdale going to dufflebag, digging through it and pulling out the knife. [14] He described Mr. Drysdale as being very upset and yelling. He saw him with the knife in his hand going towards Mr. Brown. He saw Mr. Brown running away and the accused chasing him to his vehicle. He saw Mr. Drysdale stab the tire of the vehicle with the knife. He then observed Mr. Drysdale walking behind the 7-Eleven into an alley, still with the knife in his hand. He testified that he thought Mr. Drysdale to be drunk and that he saw can of beer in his hand during the altercation with Mr. Brown. [15] Mr. Dyck followed the accused into the back alley and saw him throw the knife he still carried away in the yard of residence backing onto it. He eventually went into that back yard, saw where the knife was lying, and after one arrived, showed the police officer where it was. [16] Mr. Adam Fretz’s testimony was much to the same effect as Mr. Dyck’s. He was the individual in the company of Mr. Dyck. He, too, saw and heard the altercation between “native guy”, as he described Mr. Drysdale, and two individuals who later became identified as Messrs. Brown and Hedstrom. [17] Mr. Fretz had specific recollection of seeing Mr. Drysdale digging through dufflebag, throwing cans and bottles out of it and pulling out the knife which he then had in his hand. He observed Mr. Drysdale chasing Mr. Brown to his car, slashing tire on the car and Mr. Drysdale taking off down the back alley. He, too, thought he saw the accused with can of beer in his hand, which he specifically identified as an MGD (Miller Genuine Draft) beer. He observed the accused run into yard in the alley at the back of the 7-Eleven store. [18] Mr. Drysdale, the accused, gave evidence and his account of the events differed to some degree from that given by the Crown witnesses. He testified that at the time he was homeless and approximately five feet eight inches tall, weighing 145 pounds. He admitted to having lots to drink the day of this incident and that he and his companion went to the 7-Eleven store to panhandle and get more money. He testified that at the 7-Eleven store he “blacked out” only to find himself, when he came out of it, standing in front of two guys. He recalled he offered them cigarette “for being in their personal space”. He testified one of the guys said he would punch him out. As best he could recall, that individual (accepted to be Mr. Brown) said something to the effect “Get the fuck out of my face or I’ll beat the fuck out of you”. [19] Mr. Drysdale testified that he was nervous, that he went back to his bag to show them he was not afraid of them. He got his knife, intending to “show them had more power than them”. He admits that he had the knife in his hand and testified he walked towards the two men who he testified were walking towards him. They looked at him and ran away. He testified that the two men “made me feel small”. He testified, in chief, that it was not his intention to stab Mr. Brown, but rather he grabbed his knife “to make myself bigger than those two men”. [20] At one point in his examination-in-chief he admitted going after Mr. Brown to his vehicle, but at another point said although he followed one of the men, he stopped because he felt he had made his point. He then testified he did not follow the man to his vehicle. [21] Mr. Drysdale testified he tried to get away from the area, intending first to cross Winnipeg Street. He still had the knife with him. He testified he was prevented from doing so by large black vehicle that was blocking his way. He then turned and went into the back alley at the back of the 7-Eleven store. He said that on number of occasions, the black vehicle chased him in the back alley, and blocked his way and caused him to go into panic mode. That is when and where he testified he stabbed the vehicle’s tire. Mr. Drysdale then testified he went into yard where he admitted he threw the knife away. [22] On cross-examination, he admitted not only to drinking for most of the day with his companion, but as well taking the drug methadone. He testified that he blacked out at the 7-Eleven, which meant that he did not remember anything until he recovered to find himself in the personal space of Mr. Brown. He admitted he went for his knife to show them that “I wasn’t alone”. He stated that if they intimidated him, he would intimidate them back by showing his knife “I was pretty drunk”. He testified that it was his friend, not he, who had the MGD beer in his hand. [23] Mr. Drysdale further testified, on cross-examination, that after the verbal confrontation with Mr. Brown, he admitted Mr. Brown did not “come after me” and that he (Mr Brown) did not yell after him. He admitted that he went to his bag, got his knife and reiterated that his intention was to show the two men that he was not alone. He admitted that Mr. Brown never touched him or hit him and again, that Mr. Brown did not follow him to his bag. His intention, he stated, was to intimidate Mr. Brown. He testified that he thought he probably said “want piece of this” when approaching Mr. Brown with his knife. He said Mr. Brown and his friend ran away when they saw him with the knife, that he went after Mr. Brown when he ran away (this is illustrated in the video tape), testifying his purpose was to ensure that Mr. Brown would not come back after him. He accepted that he went to the back alley to get away from the black vehicle which was blocking his way as he attempted firstly to cross Winnipeg Street, and thereafter blocking his way, on number of occasions, in the back alley behind the 7-Eleven, two or three times. He testified, as he did in chief, that it was at that time that he stabbed the tire of the vehicle. He did not see nor recognize who the driver of it was. [24] The main issue for the determination of the court in respect to this case is whether or not Mr. Drysdale is guilty of the offence as charged in the indictment. Counsel for Mr. Drysdale raises self-defence as defence to the charge against him, thereby also placing self-defence in issue in this case. ANALYSIS The Criminal Code [25] Section 267(a) of the Criminal Code, RSC 1985, C-46, the section with which Mr. Drysdale is charged, provides in part as follows: 267 Every one who, in committing an assault, (a) carries, uses or threatens to use weapon or an imitation thereof, ... is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years [26] Section 265 of the Criminal Code defines assault, in part, as follows: 265 (1) person commits an assault when (b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; [27] Finally, s. of the Criminal Code defines “weapon” as follows: In this Act, weapon means any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person The Evidence [28] Because of stipulation made by counsel for the defendant, there is no issue respecting the identification of Mr. Drysdale. There is also no question that the Crown has established, beyond a reasonable doubt, that the offence charged occurred on the date and at the location alleged in the indictment and that the butcher knife entered as Exhibit P1 is clearly a weapon as defined by s. 2 of the Criminal Code. [29] I also have no hesitation in finding and concluding that it was Mr. Drysdale who initiated the confrontation between he and Mr. Brown by walking up to him and, in very close quarters, as Mr. Drysdale himself testified, getting into his personal space. also accept that the evidence proves, beyond reasonable doubt, that Mr. Brown said something to Mr. Drysdale that caused him to become upset, go to his dufflebag, retrieve the large butcher knife in it (it was 15 inches long and the blade 10 inches), and that Mr. Drysdale then approached Mr. Brown and Mr. Hedstrom with the knife in his hand. am also satisfied, beyond reasonable doubt, that the Crown has established that by these actions, Mr. Drysdale threatened to apply force to Mr. Brown and that Mr. Brown believed, on reasonable grounds, that Mr. Drysdale had the present ability to effect his purpose, namely to threaten to apply force to him. Clearly Mr. Brown did not consent to him doing so. [30] By his own evidence and admissions during both examinations-in-chief and cross-examination, Mr. Drysdale condemned himself. He admits that it was he who initiated the confrontation with Mr. Brown by being “in his personal space”, that Mr. Brown, although saying something offensive to him, nevertheless did not touch him nor did he go after Mr. Drysdale when Mr. Drysdale left the scene of the verbal confrontation to go to his dufflebag and retrieve the knife. He admits that his purpose was to intimidate the two men (a word that he used) and to show them that “he wasn’t alone”. His intention was to make himself bigger, which the court took him to mean that although he was smaller than the two men he was confronting, the large knife would compensate for their differences in size. He admitted in his evidence that when Mr. Brown ran away, he followed with the knife still in his hand. [31] Where Mr. Drysdale’s evidence differs from those of the five Crown witnesses, it does so on peripheral events and circumstances and not on the main circumstances containing the elements of the offence charged. The one exception is his evidence regarding the stabbing of tire on the SUV vehicle which he testified took place in the alley behind the 7-Eleven. This directly contradicts the evidence not only of Mr. Brown, but as well, the eye-witness evidence of Messrs. Dyck and Fretz, two bystanders having no involvement with the confrontation Mr. Drysdale had with Mr. Brown. have concluded that the evidence of these latter witnesses on this point reflects what occurred both at Mr. Brown’s vehicle in the parking lot and in the alley. [32] My colleague, Mr. Justice Mills, in the case of Severight, 2010 SKQB 278 (CanLII), 357 Sask 304, had occasion to consider and apply the provisions of s. 267(a) of the Criminal Code in that case. That case, too, involved an individual carrying knives moving towards individuals, in that case, police officers. The case is an illustration of the dangerous consequences of such an action not only for the individuals who are victimized by such actions but as well, an accused, who in that case, was shot by one of the peace officers. At para. 44, quoting from the decision of Justice Batten in the case of Madsen (1991) 1991 CanLII 7629 (SK QB), 95 Sask 290 (QB), Justice Mills adopted the principle stated in that case as follows: ... "It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. Mens rea lies in the intention to threaten not in the intention to carry out that threat." [emphasis added] See also: Horncastle (1972), 1972 CanLII 1320 (NB CA), NBR (2d) 821 (NBSC) at 262 and 263; Jorden (2000), 2000 CanLII 19647 (SK PC), 196 Sask 300 (PC)) Self-defence [33] Counsel for Mr. Drysdale argues that this Court should find that self-defence is applicable in all of the circumstances established by the evidence given in this case. He relies upon s. 34 of the Criminal Code which provides as follows: 34 (1) person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to use or threat of force that the person knew was lawful. [34] In his submissions, counsel for Mr. Drysdale points to the evidence to establish that Mr. Brown threatened Mr. Drysdale. Counsel also submitted that it is not for the accused to establish self-defence but the burden rests with the Crown to establish, beyond reasonable doubt, that self-defence is not applicable in all the circumstances and, therefore, that this defence does not succeed. accept these submissions. [35] Mr. Hedstrom testified Mr. Brown said words to the effect “Get the fuck out of my face or I’ll knock you out”. Mr. Drysdale testified Mr. Brown said “Get the fuck out of my face or I’ll beat the fuck out of you”. Mr. Hitchcock submitted these words, in either case, constituted the use of “threat of force” made by Mr. Brown against Mr. Drysdale. also accept that submission. [36] Mr. Hitchcock goes on to submit that Mr. Drysdale was entitled to defend himself by taking the actions that he did, which are the subject matter of this charge against him. He further points to the fact that both Mr. Brown and Mr. Hedstrom were far bigger in size and weight than Mr. Drysdale and that, in and of itself, would be threatening to the latter. The accused’s comments, that he intended to make himself bigger by having and carrying the knife, reflects his mental state and the impact that Mr. Brown and Mr. Hedstrom’s size and Mr. Brown’s statement to him had on Mr. Drysdale namely they threatened him. [37] Mr. Hitchcock submitted for the court’s review the cases of Bladon, 2011 ABPC 145 (CanLII); B.E.N. (2000), 2000 CanLII 19579 (SK PC), 190 Sask 109 (PC) and Rice, 2013 BCPC 196 (CanLII), each being cases, as Mr. Hitchcock submitted, illustrating decisions where the courts either applied self-defence or rejected it. In addition to illustrating the analysis appropriate to application or non-application of self-defence, these cases illustrate the importance of an analysis of the particular facts and circumstances applicable to reach the appropriate legal result. It is also noteworthy that some of the cases pre-date the recent amendments to s. 34 of the Criminal Code. As the Supreme Court of Canada observed in the case of Ryan, 2013 SCC (CanLII), [2013] SCR 14, self-defence is justification based on the principle that it is lawful in defined circumstances to resist force or threat of force with force. [38] When one considers the factors set out in ss. 34(2), I have concluded, in all of the circumstances, that the nature of the force or threat that was presented by the size of Mr. Brown and Mr. Hedstrom, and the words used by Mr. Brown spoken to Mr. Drysdale, were not of a nature that would warrant, as reasonable, the action subsequently taken by Mr. Drysdale against Mr. Brown. I have reached this conclusion for a number of reasons, including the fact that it was Mr. Drysdale who initiated the confrontation by his approach to and very close contact with Mr. Brown. While Mr. Brown’s reaction and his statement was regrettably crude, disrespectful and insensitive to Mr. Drysdale and his circumstances, nevertheless the fact that he did not further assail Mr. Drysdale, nor touch him, nor, as Mr. Drysdale admitted on cross-examination, pursue him as he left, could only lead to the reasonable conclusion that Mr. Brown considered the matter over and he had no intention to use any force against Mr. Drysdale, nor was its use imminent within the meaning of ss. 34(2)(b). [39] While it is the case that the ss. 34(2)(d) factors clearly establish that both Mr. Brown and Mr. Hedstrom were much bigger than Mr. Drysdale and because of the latter’s apparent state of intoxication would be far more physically capable, if force were to be used, no physical force was actually used by Mr. Brown against Mr. Drysdale nor anything done or action taken by him after he verbally accosted Mr. Drysdale that would support reasonable conclusion that Mr. Brown’s use of force was imminent or posed threat to Mr. Drysdale. There was no history between these individuals as contemplated by ss. 34(2)(f), (f.1) nor does ss. 34(2)(h) apply. [40] I have concluded, as argued by the Crown, that Mr. Drysdale’s actions in leaving the area of confrontation and going back to his dufflebag to retrieve the knife and thereafter approaching Mr. Brown with the knife in his hand, pursuing him in the parking lot as he ran away, and using the knife to slash Mr. Brown’s vehicle’s tire, was completely out of proportion to any reasonable response to any threat that Mr. Drysdale may have perceived was made or presented by Mr. Brown in the circumstances of this case. [41] I have concluded that the Crown has established, beyond a reasonable doubt, that the facts and circumstances of this case do not give rise to the defence of self-defence. Mr. Drysdale’s actions were not reasonable in the circumstances and do not constitute lawful protection of himself from any use or threatened use of force against him by Mr. Brown. Nor was it reasonable for Mr. Drysdale to believe that there was a threat of use of force made against him warranting the measures that Mr. Drysdale took. [42] The accused testified but, as pointed out, where his evidence is at odds with that of the Crown’s witnesses, it is on peripheral matters only. His evidence does not raise reasonable doubt as to his guilt nor does it, in the context of the whole of the evidence and law have reviewed, leave reasonable doubt about his guilt. (R D.W., 1991 CanLII 93 (SCC), [1991] [43] have concluded that the Crown has established, beyond reasonable doubt, all of the elements of the offence and that the facts and circumstances of the case do not establish self-defence within the meaning of s. 34 of the Criminal Code after my analysis of those factors set out in ss. 34(2). In the result, I find the accused guilty as charged. J. T. C. ZARZECZNY
Criminal Law – Assault with a WeaponCriminal Law – Defences – Self-defence The accused was charged with assault by threatening to use a weapon, a butcher knife, contrary to s. 267(a) of the Criminal Code. The accused was panhandling outside a store when he and one of two security officers had a verbal confrontation. The accused walked towards the security officer with a butcher knife. The security officer ran to his vehicle and the accused followed him and slashed a tire on the security officer’s vehicle. The attending officer was directed to a yard where he located the accused. A knife was also located in the yard. A videotape from the store was entered as an exhibit and played for the court. The accused was considerably smaller than either of the security officers. The accused testified that he was homeless and had a lot to drink the day of the incident. He indicated that he “blacked out” and was in front of two security officers when he came to. He said that he offered them a cigarette for being in their personal space and one of the men told him that he would punch him out. The accused indicated that he got the knife out of the bag just to show the men that he was bigger than them. He said that he did not intend to stab them. At one point the accused admitted following the security officer to his vehicle and at another point said he did not. The accused said he then tried to get away from the area but was prevented from doing so by a large black vehicle. The accused said he eventually stabbed the vehicle’s tire because it was blocking his way and he went into panic mode. The accused raised the issue of self-defence. HELD: There was no question that the Crown established the offence beyond a reasonable doubt. The court found that the accused initiated the confrontation by walking up to the security officer and getting very close to him. The court found that the Crown witness’s evidence was preferred over the accused’s where it differed, namely the slashing of the vehicle tires. The court accepted the accused’s submission that the security officer told the accused to get out of his face or he would knock him out or something to that effect. The court considered the factors set out in s. 34(2) and concluded that the force or threat faced by the accused due to the size of the security officers and the words used by one of them did not warrant the action taken by the accused. The court offered numerous reasons for the conclusion: the accused initiated the confrontation; the security guard did not touch or further go after the accused; no physical force was used against the accused; and there was no history between the accused and security officer. The accused’s actions were out of proportion to any reasonable response to any threat. The court held that the Crown established, beyond a reasonable doubt, that the facts and circumstances of the case did not give rise to the defence of self-defence. The accused was found guilty as charged.