PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. MacEvoy, 2023 NSPC 20
Date: 20230510
Docket: 8453773 to 8453780
Registry: Wagmatcook, Nova Scotia
Between:
His Majesty the King
v.
Ernest James MacEvoy
Judge: |
The Honourable Judge Peter Ross |
Heard: |
March 8 and 9, 2023, in Wagmatcook, Nova Scotia |
Decision |
May 10, 2023 |
Charge: |
1. s.268 2. s.244(1) 3. s.86(1) 4. s.88 5. s.117.01(1) 6. s.92(1) |
Counsel: |
Keavin-Mathieu Finnerty, for the Crown Kevin Patriquin, for the Defense |
By the Court:
Introduction
[1] The accused is charged with six offenses arising out of an altercation with his brother at Big Intervale in northern Cape Breton on June 21st, 2020.
1. Aggravated assault upon Allister MacEvoy by wounding – s.268 of the Criminal Code
2. Discharging a firearm with intent to endanger life – s.244(1)
3. Careless use of a shotgun – s.86(1)
4. Carrying a weapon for the purpose of committing an offence – s.88
5. Possession of a firearm while prohibited – s.117.01(1)
6. Possess of a firearm without license – s.92(1)
[2] Counts 5 and 6 were disposed of summarily during closing argument. The Prohibition Order relied upon by the Crown imposed a lifetime ban on the possession of prohibited and restricted firearms. Because certain parts of the form were not filled in when it was prepared, the Order was construed to ban the use of non-restricted firearms for the minimum period of 10 years. As such it did not prohibit the accused from using a shotgun on the date of the alleged offence. The accused was found not guilty on both these counts. Count 2 is the subject of a separate decision.
Court history / appearances
[3] The accused made his first appearance on August 9, 2020. After a series of manoeuvres, the accused eventually elected Supreme Court. He was committed to stand trial on all charges in a Preliminary Hearing held before me on March 16, 2022. Present counsel were aware of this when they consented to my assignment as the trial judge after a re-election to Provincial Court on May 2, 2022. The case was eventually heard on March 8 and 9 of 2023. Final Submissions were presented on April 27 and the matter adjourned for decision to May 5, 2023. These reasons supplement an oral judgement delivered at that time.
Overview
[4] On June 21, 2020 Allister MacEvoy took a Sunday drive on his motorcycle. He went from his home in Cheticamp to his mother’s place on the Blaze Road in Big Intervale in northern Victoria County, Nova Scotia. The property is fairly isolated; there are no other houses in close proximity. His brother Ernest had moved back to the family home the previous September. Allister was 58; Ernest was 61. They had not spoken in 20 years.
[5] When Allister arrived, Ernest had taken a break from mowing the lawn. Ernest went outside to resume the chore as Allister visited with their mother. As Allister prepared to leave, he noticed that his newly cleaned motorcycle was covered in grass clippings. He asked sarcastically whether Ernest could have gotten any more grass on his bike; Ernest replied that it was stupid to park the bike where he did.
[6] Ernest was using a whipper-snipper. Allister yanked the connecting power cord out of its socket and began to berate Ernest for dirtying his bike, for taking advantage of his mother, for being a “leech” to his parents over the years. He hollered sarcasms and insults and veiled threats at Ernest as he approached him at a walking pace. He said, “Your 80-year-old mother is likely cooking your supper right now.” He testified that he was going to “let it all out.”
[7] Ernest walked away from Allister in the direction of a nearby shed. Allister closed the distance to about 10 feet, at which point he could see that Ernest had a hunting-style knife attached to his belt. Ernest put his hand on the sheath. Allister told Ernest that if he pulled the knife, it would not end well for him. In effect, he defied Ernest to use it. Ernest did not withdraw the knife. Instead, he said “wait here, I have something to show you.”
[8] As Allister waited, Ernest went into the shed, picked up a .12 gauge double-barrelled shotgun which was leaning against the wall, cracked the breach, loaded both barrels from a box of shells nearby, came to the shed door, rested the gun on the door casing, pointed first at Allister’s upper body, then lower down at his legs. Allister says, “He started high on me then slowly brought it down to waist height.” Moments before Allister had asked, rhetorically, and once again defiantly, “What are you going to do, shoot me?”
[9] Ernest answered with a single shot into Allister’s lower body. The pellets entered both legs. To Allister it felt like a hard slap. He walked a few more steps in Ernest’s direction. Their mother came out of the house in response to the commotion. This ended the confrontation. Although she heard the shot, Myrtle MacEvoy was seemingly unaware that Allister had been hit.
[10] Allister assured his mother that “everything would be ok.” He noticed that blood had begun to seep into his jeans. He was able to mount his motorcycle and drive the 5 km to his brother James’ grocery store. Someone called 911. Police and ambulance attended. He was “getting woozy then” and his leg began to feel stiff and “burning”. He was taken first to Neil’s Harbour hospital and then to the Regional Hospital in Sydney. Diagnostic imaging revealed “multiple pellets through the left thigh and left calf, and there are a few pellets in the right thigh and right calf.” There was vascular injury but no bone fractures.
[11] Allister was released from hospital 2 days later but readmitted shortly thereafter for a vascular surgery consult. An operation was performed the next day.
[12] Allister says his left leg is “still not 100%”. He says he can function, but his leg gets sore, he cannot kneel, and because there is still lead in his body his blood must be analyzed routinely. If levels of heavy metals become critical, he may have to dialyze.
[13] For his part the accused fled into the surrounding woods. He also called 911. He hid the shotgun in a hollow tree. RCMP responding from Cheticamp came to assist the Ingonish member. When Ernest noticed that police car on a nearby road he came out, calmly surrendered, and showed police where he had hidden the gun.
[14] Evidence presented at trial includes the viva voce testimony of the complainant and accused, a medical report of the complainant’s injuries tendered by agreement, a statement from the accused, a re-enactment video with the accused’s participation, photographs of the scene, and the testimony of investigating police officers. A motion to admit the Preliminary Inquiry evidence of Myrtle MacEvoy was denied.
[15] While the accused’s police statement contains both inculpatory and exculpatory components, he chose to testify under oath and subject to cross-examination at trial. His testimony matters more than the statement. Crown did not utilize the statement to impeach the accused on any inconsistencies. The statement and testimony largely mirror one another in any event.
[16] There is no dispute that Allister was wounded within the meaning of s.268.
[17] In the front yard, when their mother came out of the house, Ernest told her he shot Allister because Allister had threatened him. Allister denied making threats. These remarks have no evidential value. Allister believed his mother was unaware that he’d been hit. Wanting to hide this from her, he told her to go back inside, that “things would be ok”.
[18] None of the accused’s post-offence behavior has any evidential value. Ernest believed (mistakenly) that he had violated a firearms prohibition, which alone could explain why he fled, and hid the shotgun.
Issues
[19] Did Ernest believe, on reasonable grounds, that force was being used or threatened against him?
[20] Were Ernest’s actions effected for the purpose of defending himself from this threat of force?
[21] Was Ernest’s conduct reasonable in the circumstances?
[22] If the answer to all the above is in the affirmative, it may be said that Ernest acted in self-defence within the meaning of s.34 of the Criminal Code.
[23] To secure a conviction the Crown must prove beyond a reasonable doubt that Ernest did not act in self-defence. It has the onus of negating this theory.
Self-Defense
[24] The whole of section 34 of the Code is reproduced in an Appendix hereto. Paraphrasing relevant portions, a person is not guilty of an offence for committing a certain act if:
1. they believe on reasonable grounds that a threat of force is being made against them
2. the action is taken for the purpose of defending themselves, and
3. the act committed is reasonable in the circumstances.
[25] A court must consider the circumstances of the parties and the act, and must take into account all relevant factors including:
- nature of the threat,
- the imminence of the threatened force,
- whether other means were available to respond to the potential use of force,
- the complainant’s role in the incident,
- whether either party threatened to use a weapon,
- the physical capabilities of the parties,
- the relationship between the parties, including prior history and communications and any prior uses of force,
- the proportionality of the response.
Aspects of the Evidence
[26] I will return to the analysis under s.34(1) later in these reasons. First, I will expand on the evidence which pertains to factors set out in s.34(2).
[27] The encounter, from the time the parties first engaged until the shot was fired, lasted little more than 5 minutes. Repeatedly, throughout, Ernest told Allister to leave. While not particularly significant, I note that Ernest was not the property owner. Both he and Allister were there with their mother’s consent. While telling Allister to leave made sense as a practical matter, Ernest was not cloaked with lawful authority to demand that Allister leave.
[28] Prior to the encounter, Ernest had the knife for an innocent purpose – to fix an extension cord he was using to power the whipper-snipper.
[29] Allister admits to hollering and cursing at Ernest repeatedly, to insulting him. He was extremely upset about the grass clippings. Resentments which had built up over years boiled over into a rage, “things that had been swept under the rug for years.” It is difficult on the evidence to say whether Allister’s views were justified, but that is somewhat beside the point.
[30] Allister’s demeanour may have taken Ernest by surprise, but Ernest knew very well what Allister thought of him and I have no doubt that the dislike was mutual.
[31] Throughout, there was no overt sign of anger from Ernest until he picked up the gun.
[32] Regarding the gun, Ernest testified “I think James owns it but Melvin uses it – he is there 2 or 3 times a day – he uses it to hunt”. James and Melvin are brothers who live in the immediate area. Allister had a vague notion that Ernest may have purchased the item many years ago, but the accused’s evidence on this point is essentially uncontradicted and I find as a fact that the de facto owner of the gun was Melvin who, I infer, had left it in the shed.
[33] I find, as Allister confirms, that Allister is taller, heavier and stronger than Ernest who was 5 feet 3 inches tall and weighed 135 pounds at the time of the incident. Ernest recalls Allister being in a fight at the local Legion many years earlier and coming out on top. He had also witnessed how strong Allister was when they both worked together in construction.
[34] Ernest testified that Allister said more than once “if our mother wasn’t there you’d be lying on the ground” and/or “dying on the ground”, and “when I leave you are going to be on the ground” and/or ““dead on the ground”. Allister denies this. On his account he told Ernest, “you’re lucky our mother is in the house.” At various points in his testimony, Ernest gave slightly different versions of the threat uttered by Allister. This raises concerns about veracity, about possible exaggeration, about whether the alleged threat was inflated from being taken to the ground to being killed. Be that as it may, both versions carry the same meaning in this sense: Allister communicated to Ernest that he (Allister) was constrained in what he might otherwise do by the fact that their mother was nearby to witness it. Ernest should have recognized the truth of this, and I think in fact he did. The presence of their mother made it less likely that Allister would act out on any threats. This goes to the bona fides of Ernest’s belief.
[35] Ernest said in cross-examination, “I walked away but he kept right beside me”, “I was afraid he was going to catch me”. Yet it is abundantly clear that had Allister wanted to “catch” Ernest, to manhandle him physically, he had plenty of opportunity to do just that. It should have been clear to Ernest that Allister had indeed refrained from attempting to physically assault him up to the point he pointed the gun. Allister was not as intent on attacking as Ernest suggests.
[36] In cross Ernest testified that as he raised the gun Allister said, “what are you going to do, shoot me?” to which Ernest said “I’ll shoot if you keep coming after me”, to which Allister replied “I’m leaving but you are going to be dead on the ground”. I was left with the impression that Ernest was tailoring his evidence to counter what he heard from Allister. I have more confidence in the truth of Allister’s assertion that when the gun was pointed at him, he raised his hands to speak - to tell Ernest that he would leave and that Ernest could ‘shoot him in the back’ – but wasn’t afforded that opportunity.
[37] Ernest claims that Allister was moving towards him as he took out the gun and aimed it in Allister’s direction. He says he was afraid for his life, believing that Allister was coming to kill him. He says he told Allister that if he came towards him again, he would shoot, but despite this Allister continued his advance. He says, “I didn’t think I’d have to shoot because I thought he would leave.”
[38] According to Ernest, Allister was 20 feet away when he fired at him. Allister puts the distance at 50 feet. These are estimations. The actual distance may have been somewhere in between, but the difference is not important. Given the distinct advantage Ernest possessed, Allister did not present as an imminent threat.
[39] Ernest says that Allister approached him with clenched fists, his veins bulging, his arms “swinging” in a downward direction. Allister denies having his fists clenched, but it seems to me quite possible that he did, even unconsciously. It is also likely that he was flushed with anger. None the less, I accept his testimony that when he raised his hands to speak, just before the shot was fired, he showed Ernest his palms.
[40] It is far more likely that Allister was not advancing towards Ernest as the shot was fired. If Allister had wished to attack Ernest, he had ample opportunity to do this as Ernest located the gun and loaded the weapon. As upset as Allister was, he had not lost his senses. Allister’s version of events is far more plausible and in keeping with the reaction a person would have to a loaded weapon being pointed at them. It would elicit, even in an extremely angry person, sober second thoughts. That said, even if Allister continued to move towards Ernest with the shotgun pointed at him - even if Allister showed this degree of bravado - it would not change my ultimate conclusion on self-defence.
[41] Ernest says that although he had the knife on his belt, it had no cover or snap, something which is confirmed by photographic evidence. I think Allister was simply mistaken on this relatively minor point. Ernest says that while he “moved” the knife, it was only to adjust the position of the sheath on his belt. I find that Ernest did make some sort of gesture with the knife, meant as a message of sorts to Allister, who was not cowed in the slightest. The fact Allister kept coming at Ernest, even though he knew Ernest had a knife, that he practically dared Ernest to use it, indicates how angry he was, and how little intimidated by this gesture. In this sense Allister’s testimony supports the Defence position; it can be seen as a failed attempt to get Allister to back off.
[42] It will be clear from the foregoing that Ernest had two weapons at his disposal, and that Allister had none.
[43] As noted, Ernest and Allister had a 20-year history of non-communication, of non-interaction. There is no evidence that Allister had ever before assaulted Ernest.
Distinguishing Cases
[44] Most cases cited by the Defence, dealing with self-defence in the context of an aggravated assault, concern an accused’s response to being attacked with a weapon, or by multiple assailants. Allister was an aggressor but unarmed and alone.
[45] Defence also argued that Ernest should not be expected to measure “with nicety” the force used to protect himself. This concept extends back in the caselaw and may still have some purchase even under the revamped paradigm of s.34. As a matter of common sense, a person under extreme duress cannot be expected to deliver a finely calibrated response. The trier of fact should be cognizant of the luxury which hindsight provides. That said, threat and stress do not afford licence to needless violence.
[46] In this case the force employed was a shotgun blast. This does not admit to fine distinctions. This is an action very different than the use of one’s fist, or arm or leg, where a person might, in the moment, miscalculate the amount of force they are employing. When Ernest pulled the trigger, he could not foresee exactly what damage he would inflict on Allister, but he knew very well that serious injuries could result.
Approaching the Evidence through s. 34
[47] s.34 of the Criminal Code deals with Defence of Person. It simplifies earlier, more complex provisions governing the law of self-defence. The section was considered in R. v. Khill, 2021 SCC 37, where the court describes the 34(1) (a), (b) and (c) components as “catalyst”, “motive” and “response” respectively. The Supreme Court instructed triers of fact to consider all the accused’s actions, omissions and errors in judgement throughout the entirety of the incident that are relevant to reasonableness.
Catalyst
[48] According to ss. (a), I must consider whether Ernest believed, on reasonable grounds, that force was being threated against him. At no time did Allister actually use force upon Ernest’s person. Khill instructs that I consider Ernest’s perception of events, and what a reasonable person with Ernest’s characteristics and experiences would perceive of the surrounding circumstances, prior to firing the shot.
[49] Having regard to the sequence of events which begins with Allister exiting the house and ends with the firing of the shot, Ernest did have reasonable grounds to think that Allister posed a risk to his safety, that anger might boil over into the use of physical force. But it is important to recognize that a reasonable person, in Ernest’s shoes, would take this as a possibility, not a certainty. Such a person would have reason to be fearful for their personal safety, but only to the extent that Allister might decide to exact retribution for the soiling of the motorcycle and the perceived irresponsibility of the accused.
[50] In cases of actual force, there is certainty about the “catalyst.” But in cases of threatened force, such as we have here, how does one account for the likelihood of harm? If the chances are slight, can it be said that a response, particularly an extreme response such as shooting someone, is justified? What is the objective likelihood that the perceived threat would materialize? In this context it is well to remember that Allister’s threats were qualified by the fact that their mother was nearby, in the house. Although Ernest testified that he was sure Allister would do him serious harm, at one point in this testimony he said that Allister “probably would have laid hands on me.” This is not an expression of certain belief. While the thought of being beaten up likely crossed his mind, I do not think that Ernest truly believed that this was likely to occur. A reasonable person in his shoes would regard the possibility as real, but unlikely.
Motive
[51] According to ss.(b), I must consider whether Ernest acted for the purpose of defending himself. Vengeance, jealousy, enmity – these are not proper motives and do not justify the use of force.
[52] In psychological terms motive is notoriously difficult to discern and describe. Khill says at para 61 that “an accused's purpose for acting may evolve as an incident progresses or escalates.” In R. v. Zsombor, 2023 BCCA 37 the court said at para 29 that ”an accused's purposes may be layered in that they may act for a defensive purpose in addition to another purpose. However, for the defence of self-defence to succeed, the accused must have acted for a defensive or protective purpose, regardless of what other purposes may have co-existed.” The first formulation describes motive as distinct, although subject to change; the second quote speaks to simultaneous motives.
[53] Here I will describe Ernest’s motives as mixed. He acted in part to protect himself from the possibility (though not the inevitability) of being assaulted, but his actions also arose from dislike of Allister, and as a response to Allister’s demeaning comments. He chose to reciprocate, but not with words. He chose to meet Allister’s insults with force. When he shot at Allister, he believed that Allister deserved it as much as he thought it necessary in self-defence.
Response
[54] According to ss.(c), I must ask whether Ernest’s conduct was “reasonable in the circumstances.” This is explicated in s.34(2) where it states that I must consider the circumstances of both parties, and the shooting, by reference to a non-exhaustive list of factors.
[55] Such cases as I have read, to the extent that I understand them, do not explicitly say whether the court’s assessment of ‘catalyst’ and ‘motive’ also factor into an overall assessment of reasonableness of the response. Perhaps it may be said that the degree of likelihood of a threatened force is encompassed either by “the nature of the . . . threat” in ss.(2)(a), or by “the extent to which the use of force was imminent” under ss.(2)(b) or by the proportionality of the response under (2)(g). Perhaps it may be said that mixed motive, where this occurs, is encompassed by “the person’s role in the incident” under ss.(2)(c).
[56] However one conceptualizes the analysis, it seems clear that one should not put ‘catalyst’, ‘motive’, and ‘response’ in silos. One should not simply check the (a) and (b) boxes and leave them behind. Khill exhorts trial judges to consider all the accused’s actions, omissions and errors in judgement throughout the entirety of the incident that are relevant to reasonableness. This appears to support an integrated reading of subsections 34(1)(a), (b) and (c). Khill says at par.64 that s.34(1)(c) casts “a wide net of inquiry”. At par.66 it endorsed Doherty J.A.’s view that s.34(2) can encompass beliefs held by the accused. In R v Sparks-MacKinnon, 2022 ONCA 617 at par.16 the court said, “The new standard of reasonableness in s. 34(2) is overarching in nature and must be judged holistically and objectively.”
[57] The Crown may fail to disprove the ‘catalyst’ or ‘motive’ aspects of s.34. Still, there may be things relevant to those aspects of self-defence which bear reconsideration in the final analysis and which combine with the s.34(2) factors to negate the defence.
[58] Persons being threatened are not all equally at risk. The likelihood that the instigator of the event will act out, or desist from an assault already begun, will vary from case to case. Here, for example, I have found that the ‘catalyst’ was a reasonable possibility that Allister’s behavior – his threatening words and his aggressive posture – may have erupted into actual violence. But given the presence of their mother, Ernest could only take this as a slight possibility. A person may find themselves at minimal risk of serious harm; a person may find themselves at near certain risk of minor harm. Such considerations should enter into the ss.(c) analysis, the reasonableness of the response.
[59] Similarly, what motivates a person to act may extend beyond fear for their safety. Motives are often mixed. Here I have found that the accused did harbour reasonable fear for his safety, but also held a deep-seated dislike of Allister, just as Allister did for him. Based on what I know of the family background, Ernest and Allister would have held equal antipathy for the other. Absent this antipathy, it is less likely that Ernest would have shot Allister. As above, this is a valid consideration when assessing the reasonableness of the response.
[60] I earlier discussed the application of some s.34(2) factors. Two others bear mention and are important to the final result.
[61] In the circumstances, Ernest had choices. Other measures he might have taken include:
- Apologizing (however insincerely) for getting grass on the bike, or otherwise dealing with the situation with words, not wounds.
- Going into the house – clearly Allister did not want their mother to be exposed to any violence and Ernest would know that Allister would not commit an assault inside the house, in the presence of their mother. He could have retreated to the sanctuary of the kitchen and thus diffused any immediate threat.
- Should Allister have continued his advance, to lower the barrel of the gun still further and fire a warning shot into the ground. Ernest put 2 shells in the breach. The gun had 2 triggers (see line 501 and 523 to 526 of the accused’s statement, and photographs)
[62] Lastly, even if these measures were not effective, the kind of action which Ernest had reason to fear - taking a punch in the face, being brought to the ground, being ‘beaten up’ in this sense – poses much less danger to one’s safety than taking a gunshot to the legs. The shooting was disproportionate to the risk and degree of harm which Allister presented.
[63] At para. 53 of Khill the court states “reasonableness . . . incorporates community norms and values . . .” Although the standard by which to judge an accused’s actions is a “modified objective” one which takes into account the accused’s personal characteristics. Canadian society has a relatively low tolerance for use of firearms among its citizens. Resort to a gun is rightly seen as an extreme measure and should only be considered reasonable in extreme circumstances.
Conclusion
[64] I have considered how the evidence relates to the constituent elements of self-defence defined in s.34(1)(a), (b) and (c). I have integrated my findings on catalyst, motive and response and concluded that the Crown has proven to the criminal standard that the actions of this accused are not justified or excused by ‘defence of the person’.
[65] In the result I find the accused guilty of committing an aggravated assault under Count 1.
[66] On Kienapple principles a stay of proceedings is entered on counts 3. and 4.
Ross, A. Peter, JPC
Appendix
s. 34 of the Criminal Code (full text)
A 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 a 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; (cue R. v. Khill 2021 SCC 37)
(d)whether any party to the incident used or threatened to use a 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 a use or threat of force that the person knew was lawful.