R. v. Ben (B.), 2011 SKPC 80

• Judge: Dyck, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: May 17, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKPC 80;(2011), 374 Sask.R. 165 (PC)

R. v. Ben (B.) (2011), 374 Sask.R. 165 (PC)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.049

Her Majesty the Queen v. Brian Ben

(Information No. 24412696; 2011 SKPC 80)

Indexed As: R. v. Ben (B.)

Saskatchewan Provincial Court

Dyck, P.C.J.

May 17, 2011.

Summary:

The accused was found guilty of assaulting a peace officer with a weapon, contrary to s. 270.01(1) of the Criminal Code. The Crown applied pursuant to s. 752.1(1) of the Code for an order remanding the accused for an assessment performed by an expert for use as evidence in an application to have the accused declared a dangerous offender. Defence counsel submitted that the order should not be made as the predicate offence was not a serious personal injury offence and it was not within the realm of possibility that the accused could be found to be a dangerous offender.

The Saskatchewan Provincial Court found that the offence was a "serious personal injury offence" as defined by s. 752 of the Code. The court also found that it was not beyond the realm of possibility that the accused could be found to be a dangerous offender. The court ordered that an assessment be conducted, as contemplated by s. 752.1 of the Code, for use as evidence in an application under s. 753 or s. 753.1.

Criminal Law - Topic 6509

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Remands (incl. for expert assessment) - [See Criminal Law - Topic 6560 ].

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention (incl. common law preventive detention) - Protection of the public - Personal injury offences - The accused swung a large tree branch, which was about seven feet long, and about three-quarters to two inches in diameter, at a police officer - The branch came very close to the officer but did not hit him - When the officer told the accused to put the weapon down, the accused complied then turned and ran - The accused was found guilty of assaulting a peace officer with a weapon, contrary to s. 270.01(1) of the Criminal Code - The Crown applied pursuant to s. 752.1(1) of the Code for an order remanding the accused for an assessment performed by an expert for use as evidence in an application to have the accused declared a dangerous offender - Defence counsel submitted that the order should not be made as the predicate offence was not a serious personal injury offence and it was not within the realm of possibility that the accused could be found to be a dangerous offender - The Saskatchewan Provincial Court found that the offence was a "serious personal injury offence" as defined by s. 752 of the Code - The accused's actions involved the use of violence - In addition, the accused's conduct endangered or was likely to endanger the life or safety of the police officer and his conduct inflicted, or was likely to inflict, severe psychological damage on the officer - It was also not beyond the realm of possibility that the accused could be found to be a dangerous offender - The accused had a lengthy criminal record, containing numerous convictions for violent offences, some of which involved the use of a weapon - He also had an unresolved alcohol addiction - The court ordered that an assessment be conducted, as contemplated by s. 752.1 of the Code, for use as evidence in an application under s. 753 or s. 753.1.

Cases Noticed:

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 2005 SKCA 12, refd to. [para. 12].

R. v. Wright (M.G.), [2007] Sask.R. Uned. 160; 2007 SKQB 350, refd to. [para. 13].

R. v. Roy (D.W.) (2008), 307 Sask.R. 276; 417 W.A.C. 276; 2008 SKCA 41, dist. [para. 15].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 2010 ONCA 220, refd to. [para. 17].

R. v. Otter (C.G.), [2010] A.R. Uned. 557; 2010 ABPC 218, dist. [para. 18].

R. v. Ponticorvo (R.) (2009), 448 A.R. 275; 447 W.A.C. 275; 2009 ABCA 117, refd to. [para. 19].

R. v. Fulton (C.J.) (2006), 289 Sask.R. 98; 382 W.A.C. 98; 2006 SKCA 115, refd to. [para. 26].

R. v. Peters (A.T.) (2011), 373 Sask.R. 22; 2011 SKQB 2, refd to. [para. 27].

R. v. Casemore (D.R.) (2009), 336 Sask.R. 110; 2009 SKQB 306, refd to. [para. 38].

R. v. Steppan (K.) (2010), 250 Man.R.(2d) 122; 2010 MBPC 9, refd to. [para. 39].

R. v. Kolarava (D.) (2007), 223 Man.R.(2d) 29; 2007 MBPC 66, refd to. [para. 45].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 752 [para. 4]; sect. 752.1(1) [para. 3].

Counsel:

Nicole Leinenweber, for the Crown;

Roseanne Newman, for the accused.

This application was heard at Melfort, Saskatchewan, before Dyck, P.C.J., of the Saskatchewan Provincial Court, who delivered the following ruling on May 17, 2011.