Her Majesty the Queen v. Augustus Roderick Hancock (2015 NLPC 1313A00983) Indexed As: R. v. Hancock (A.R.)

Transcription

1 Her Majesty the Queen v. Augustus Roderick Hancock (2015 NLPC 1313A00983) Indexed As: R. v. Hancock (A.R.) Newfoundland and Labrador Provincial Court Gorman, P.C.J. March 2, Summary: The accused was charged with assault while using a weapon (Criminal Code, s. 267(a)). He argued that the fight was consensual and that he acted in self-defence. The Newfoundland and Labrador Provincial Court convicted the accused. Criminal Law - Topic 239 Statutory defences or exceptions - Self-defence (incl. preventing assault) - Section 34 of the Criminal Code set out the parameters of defence of the person - Section 34(1) indicated that a person was justified or excused in assaulting another person if they (1) believed on reasonable grounds that force was being used or threatened against them; (2) that their assault was for the purpose of defending themselves from the force; and (3) that their use of force was reasonable in the circumstances - Section 34(2) of the Criminal Code set out a nonexhaustive list of factors that a trial judge had to consider in determining if the force used by the accused was "reasonable" - The Newfoundland and Labrador Provincial Court discussed the case law relating to s. 34, consensual fights and reasonable force - See paragraphs 55 to 72. Criminal Law - Topic 1413 Offences against person and reputation - Assaults - Simple assault - What constitutes - [See second ]. Offences against person and reputation - Assaults - Assault with a weapon - [See second and second ]. Assaults - Defence - Self-defence - [See Criminal Law - Topic 239 and second Criminal Law - Topic 1422]. Assaults - Defence - Self-defence - Hancock was charged with assault while using a weapon (Criminal Code, s. 267(a)) - The Crown alleged that, during an altercation with his neighbour (Gifford), Hancock struck Gifford with a pipe - Hancock denied striking Gifford with the pipe - The Newfoundland and Labrador Provincial Court convicted the accused of assault while using a weapon under s. 267(a) - Hancock had assaulted Gifford by attempting to poke him with a metal pipe, contrary to s. 265(1)(b) of the Code - This constituted an assault - An assault committed pursuant to s. 265(1)(b) did not require the application of force - Hancock claimed that he was justified in assaulting Gifford because their fight was consensual and he was defending himself - The court held that, although the Crown had failed to prove that the fight was nonconsensual, the use of a weapon (the metal pipe) deprived Hancock from the consensual fight defence - See paragraphs 73 to 94.

2 Assaults - Defence - Consent - [See second ]. Assaults - Defence - Consent - The Newfoundland and Labrador Provincial Court stated that "The public policy concerns which would arise from the judicial expansion of the consensual fight element to the use of weapons are so significant, grave, alarming and overwhelming, that it cannot be countenanced. I agree with Judge McIlhargey's conclusion in R. v. D.L.M., [2010] A.J. No. 463 (P.C.)... that 'in a consensual fight, an individual's consent does not in law include the use of a weapon.'" - See paragraphs 87 and 88. Criminal Law - Topic 5420 Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped statements) - Hancock was charged with assault while using a weapon (Criminal Code, s. 267(a)) - Hancock was taken to the police station - He provided an audio taped statement which was played during the trial - A transcript was not provided - The Newfoundland and Labrador Provincial Court stated that, as a practice note, a party who sought to introduce an audio and/or video statement should always have a transcript prepared - See paragraph 28. Evidence - Topic 3786 Documentary evidence - Public documents - Photographs, movies, videotapes, etc. - Videotapes - [See Criminal Law - Topic 5420]. Evidence - Topic 3787 Documentary evidence - Public documents - Photographs, movies, videotapes, etc. - Sound, audio or tape recordings - [See Criminal Law - Topic 5420]. Cases Noticed: R. v. Prokofiew (E.), [2012] 2 S.C.R. 639; 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 31]. R. v. Phelan (D.B.) (2013), 337 Nfld. & P.E.I.R. 64; 1047 A.P.R. 64; 2013 NLCA 33, refd to. [para. 31]. R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 32]. R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 32]. R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 22]. R. v. Ahmed (O.), [2013] O.A.C. Uned. 381; 2013 ONCA 473, refd to. [para. 22]. R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 33]. R. v. E.H., [2014] O.A.C. Uned. 559; 2014 ONCA 622, refd to. [para. 34]. R. v. Dawydiuk (M.N.) (2010), 285 B.C.A.C. 190; 482 W.A.C. 190; 253 C.C.C.(3d) 493 (C.A.), refd to. [para. 44]. R. v. Palombi (K.) (2007), 225 O.A.C. 264; 222 C.C.C.(3d) 528 (C.A.), refd to. [para. 44]. R. v. Ewanchuk (S.B.) (1999), 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1; 131 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 44]. R. v. George,[1960] S.C.R. 871, refd to. [para. 45]. R. v. Bartlett (1989), 79 Nfld. & P.E.I.R. 143; 246 A.P.R. 143 (Nfld. T.D.), refd to. [para. 45]. R. v. Horncastle (1972), 4 N.B.R.(2d) 821; 19 C.R.N.S. 362 (C.A.), refd to. [para. 46]. R. v. Cadden, 1989 CanLII 2847 (B.C.C.A.), refd to. [para. 48]. R. v. Evans, 2015 BCCA 46, refd to. [para. 56]. R. v. Deluney (R.A.) (2014), 355 Nfld. & P.E.I.R. 192; 1106 A.P.R. 192 (N.L. Prov. Ct.), refd to. [para. 57]. R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 162 C.C.C.(3d) 129, refd to. [para. 58].

3 R. v. Ryan (W.J.) (2011), 304 Nfld. & P.E.I.R. 124; 944 A.P.R. 124; 2011 NLCA 9, refd to. [para. 58]. R. v. Harris, [2014] O.J. No (C.J.), refd to. [para. 58]. R. v. McKay (A.J.) (2009), 240 Man.R.(2d) 74; 456 W.A.C. 74; 246 C.C.C.(3d) 24 (C.A.), refd to. [para. 60]. R. v. Szczerbaniwicz (G.), [2010] 1 S.C.R. 455; 401 N.R. 47, refd to. [para. 60]. R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454, refd to. [para. 62]. R. v. Paice (C.D.J.), [2005] 1 S.C.R. 339; 332 N.R. 159; 262 Sask.R. 171; 347 W.A.C. 171, refd to. [para. 69]. R. v. McDonald (M.) (2012), 292 O.A.C. 188; 2012 ONCA 379, refd to. [para. 70]. R. v. Sullivan (I.) (2011), 303 Nfld. & P.E.I.R. 272; 941 A.P.R. 272 (N.L.C.A.), refd to. [para. 71]. R. v. D.L.M., [2010] A.R. Uned. 330 (Prov. Ct.), agreed with [para. 88]. R. v. Howe (C.), [2015] N.B.R.(2d) TBEd. FE.008 (T.D.), refd to. [para. 88]. R. v. Foti (A.) (2002), 166 Man.R.(2d) 269; 278 W.A.C. 269; 7 C.R.(6th) 161; 2002 MBCA 122, refd to. [para. 90]. Statutes Noticed: Criminal Code, R.S.C. 1985, c. C-46, sect. 34(1) [para. 53]; sect. 34(2) [para. 55]. Authors and Works Noticed: MacDonnell, Vanessa, The New Self-Defence Law: Progressive Development or Status Quo? (2014), vol. 92, No. 2, Can. Bar Rev. 301, generally [para. 55]. Counsel: L. St. Croix, for Her Majesty the Queen; J. Goudie, for Mr. Hancock. This case was heard on January 28 and February 26, 2015, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on March 2, Editor: Jana A. Andersen Accused convicted. Criminal Law - Topic 1413 Offences against person and reputation - Assaults - Simple assault - What constitutes - Hancock was charged with assault while using a weapon (Criminal Code, s. 267(a)) - The Crown alleged that, during an altercation with his neighbour (Gifford), Hancock struck Gifford with a pipe - Hancock denied striking Gifford with the pipe - The Newfoundland and Labrador Provincial Court convicted the accused of assault while using a weapon under s. 267(a) - Hancock had assaulted Gifford by attempting to poke him with a metal pipe, contrary to s. 265(1)(b) of the Code - This constituted an assault - An assault committed pursuant to s. 265(1)(b) did not require the application of force - Hancock claimed that he was justified in assaulting Gifford because their fight was consensual and he was defending himself - The court held that, although the Crown had failed to prove that the fight was nonconsensual, the use of a weapon (the metal pipe) deprived Hancock from the consensual fight defence - See paragraphs 73 to 94.

4 Offences against person and reputation - Assaults - Assault with a weapon - Hancock was charged with assault while using a weapon (Criminal Code, s. 267(a)) - The Crown alleged that, during an altercation with his neighbour (Gifford), Hancock struck Gifford with a pipe - Hancock denied striking Gifford with the pipe - The Newfoundland and Labrador Provincial Court convicted the accused of assault while using a weapon under s. 267(a) - Hancock had assaulted Gifford by attempting to poke him with a metal pipe, contrary to s. 265(1)(b) of the Code - This constituted an assault - An assault committed pursuant to s. 265(1)(b) did not require the application of force - Hancock claimed that he was justified in assaulting Gifford because their fight was consensual and he was defending himself - The court held that, although the Crown had failed to prove that the fight was nonconsensual, the use of a weapon (the metal pipe) deprived Hancock from the consensual fight defence - See paragraphs 73 to 94. Offences against person and reputation - Assaults - Assault with a weapon - The Newfoundland and Labrador Provincial Court stated that "The public policy concerns which would arise from the judicial expansion of the consensual fight element to the use of weapons are so significant, grave, alarming and overwhelming, that it cannot be countenanced. I agree with Judge McIlhargey's conclusion in R. v. D.L.M., [2010] A.J. No. 463 (P.C.)... that 'in a consensual fight, an individual's consent does not in law include the use of a weapon.'" - See paragraphs 87 and 88. Assaults - Defence - Self-defence - Section 34 of the Criminal Code set out the parameters of defence of the person - Section 34(1) indicated that a person was justified or excused in assaulting another person if they (1) believed on reasonable grounds that force was being used or threatened against them; (2) that their assault was for the purpose of defending themselves from the force; and (3) that their use of force was reasonable in the circumstances - Section 34(2) of the Criminal Code set out a non-exhaustive list of factors that a trial judge had to consider in determining if the force used by the accused was "reasonable" - The Newfoundland and Labrador Provincial Court discussed the case law relating to s. 34, consensual fights and reasonable force - See paragraphs 55 to 72. Assaults - Defence - Self-defence - The Newfoundland and Labrador Provincial Court stated that "The public policy concerns which would arise from the judicial expansion of the consensual fight element to the use of weapons are so significant, grave, alarming and overwhelming, that it cannot be countenanced. I agree with Judge McIlhargey's conclusion in R. v. D.L.M., [2010] A.J. No. 463 (P.C.)... that 'in a consensual fight, an individual's consent does not in law include the use of a weapon.'" - See paragraphs 87 and 88. Assaults - Defence - Consent - Hancock was charged with assault while using a weapon (Criminal Code, s. 267(a)) - The Crown alleged that, during an altercation with his neighbour (Gifford), Hancock struck Gifford with a pipe - Hancock denied striking Gifford with the pipe - The Newfoundland and Labrador Provincial Court convicted the accused of assault while using a weapon under s. 267(a) - Hancock had assaulted Gifford by attempting to poke him with a metal pipe, contrary to s. 265(1)(b) of the Code - This constituted an assault - An assault committed pursuant to s. 265(1)(b) did not require the application of force - Hancock claimed that he was justified in assaulting Gifford because their fight was consensual and he was defending himself - The court held that, although the Crown had failed to prove that the fight was nonconsensual, the use of a weapon (the metal pipe) deprived Hancock from the consensual fight defence - See paragraphs 73 to 94.

5 Evidence - Topic 3786 Documentary evidence - Public documents - Photographs, movies, videotapes, etc. - Videotapes - Hancock was charged with assault while using a weapon (Criminal Code, s. 267(a)) - Hancock was taken to the police station - He provided an audio taped statement which was played during the trial - A transcript was not provided - The Newfoundland and Labrador Provincial Court stated that, as a practice note, a party who sought to introduce an audio and/or video statement should always have a transcript prepared - See paragraph 28. Evidence - Topic 3787 Documentary evidence - Public documents - Photographs, movies, videotapes, etc. - Sound, audio or tape recordings - Hancock was charged with assault while using a weapon (Criminal Code, s. 267(a)) - Hancock was taken to the police station - He provided an audio taped statement which was played during the trial - A transcript was not provided - The Newfoundland and Labrador Provincial Court stated that, as a practice note, a party who seeks to introduce an audio and/or video statement should always have a transcript prepared - See paragraph 28.