R. v. Welsh (F.D.), (2012) 546 A.R. 219 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 21, 2012
• Citations: (2012), 546 A.R. 219 (PC);2012 ABPC 177

R. v. Welsh (F.D.) (2012), 546 A.R. 219 (PC)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JL.094

Her Majesty the Queen v. Frank Desmond Welsh (accused)

(111548434P1; 2012 ABPC 177)

Indexed As: R. v. Welsh (F.D.)

Alberta Provincial Court

Allen, P.C.J.

June 21, 2012.

Summary:

The accused was charged with three Criminal Code offences: aggravated assault (s. 268), assault with a weapon (s. 267(a)) and possession of a weapon for a purpose dangerous to the public peace (s. 88).

The Alberta Provincial Court found the accused guilty of all three offences. The court ordered that the ss. 267 and 88 offences be conditionally stayed so as not to offend the rule against multiple convictions.

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The accused was charged with three Criminal Code offences: aggravated assault (s. 268), assault with a weapon (s. 267(a)) and possession of a weapon for a purpose dangerous to the public peace (s. 88) - The Alberta Provincial Court found the accused guilty of all three offences, but ordered that the ss. 267 and 88 offences be conditionally stayed so as not to offend the rule against multiple convictions - See paragraphs 158 to 163.

Criminal Law - Topic 203

General principles - Common law defences - Necessity - The Alberta Provincial Court reviewed case law respecting the common law defence of necessity - The court held that "... a proper understanding of the jurisprudence supports that necessity can be considered in circumstances other than those of self preservation." - See paragraphs 120 to 131.

Criminal Law - Topic 203

General principles - Common law defences - Necessity - [See Criminal Law - Topic 239 ].

Criminal Law - Topic 239

Statutory defences or exceptions - Self-defence (incl. preventing assault) - The complainant was cut twice on his back and once on his neck - All three required stitches - The accused argued self-defence - He testified that the fight began as consensual, but after he and the complainant landed on top of Mrs. Munro, who was in her wheelchair, he had to try get the complainant off of him - He testified that he caused all three cuts, he meant to cut the complainant's back in an attempt to get the complainant off of him, and the cut to the complainant's neck was unintentional - The Alberta Provincial Court held that there was no relationship between the accused and Mrs. Munro for the purposes of s. 37 of the Criminal Code (defence of others) - Mrs. Munro was his girlfriend's mother who was present at a social gathering when the accused became involved in an altercation - Further, the cuts administered were not reasonably necessary - The fact that the accused could have done more damage was a factor that could be taken into account to determine whether the force was proportionate, but it was not determinative - The accused was reckless in employing a knife at all to accomplish his purpose even taking into account his perceptions - Pursuant to s. 37 he used more force than was necessary to prevent the imminent assault - The nature of the force used was "excessive having regard to the nature of the assault that the force used was intended to prevent" - Similarly, the force used was not in keeping with the type of force that could be used under s. 27(1) ("as much force as is reasonably necessary to prevent the commission of an offence") - The common law defence of necessity also failed - See paragraphs 75 to 133.

Criminal Law - Topic 1153

Offences against public order - Offensive weapons - What constitutes a weapon possessed for a dangerous purpose or to commit an offence - The Alberta Provincial Court reviewed case law respecting the offence of possession of a weapon dangerous to the public peace under s. 88 of the Criminal Code - See paragraphs 135 to 153.

Criminal Law - Topic 1156

Offences against public order - Offensive weapons - Weapon possessed for a dangerous purpose or to commit an offence - Intention - The Alberta Provincial Court found the accused guilty of possession of a weapon dangerous to the public peace under s. 88 of the Criminal Code - The court stated that "The purpose of the possession can change. The purpose of the possession must precede its use as a weapon. The time period between the purpose the weapon is possessed and its use of the weapon need not be long. The accused in these circumstances took possession of the knife by producing it to confront the complainant." - The court rejected the accused's allegation that his subjective purpose for having possession of the knife at that time was to protect his girlfriend's mother from injury and found that it was for the purpose of escalating his fight with the complainant - His actual use of the knife was not justified or excused by necessity, nor any other justification based upon common law principles or Criminal Code sections - See paragraphs 154 to 157.

Criminal Law - Topic 1410

Offences against person and reputation - Assaults - General principles - The complainant was cut twice on his back, and once on his neck - All three required stitches - The Alberta Provincial Court noted that the accused testified that he caused all three cuts and that he meant to cut the complainant's back in an attempt to get the complainant off of him - The court found that these two cuts amounted to an intentional application of force and fell within the definition of assault in s. 265(1)(a) of the Criminal Code - However, his evidence purported to suggest that the cut to the complainant's neck was unintentional - He testified that he did not remember cutting the complainant's neck and he was attempting to dislodge the knife, a skinning knife which had a hole through it, from his finger - The court held that if the accused could not dislodge the knife because it was stuck on his finger and he inadvertently cut the victim in the neck, it would still have been a wrongful application of force sufficient to meet the intentional component of s. 265 - See paragraphs 6 to 13.

Criminal Law - Topic 1411

Offences against person and reputation - Assaults - Intention or mens rea - [See Criminal Law - Topic 1410 ].

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - [See Criminal Law - Topic 239 ].

Cases Noticed:

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. 4].

R. v. Lifchus (W.) (1997), 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 4].

R. v. Jobidon (1991), 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454 (S.C.C.), refd to. [para. 9].

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. 9].

R. v. Carrière (1987), 76 A.R. 151; 35 C.C.C.(3d) 276 (C.A.), refd to. [para. 9].

R. v. Starratt (1971), 5 C.C.C.(2d) 32 (Ont. C.A.), refd to. [para. 12].

R. v. De Freitas (D.A.) (1999), 134 Man.R.(2d) 78; 193 W.A.C. 78; 132 C.C.C.(3d) 333 (C.A.), refd to. [para. 17].

R. v. Littletent (1985), 59 A.R. 100; 17 C.C.C.(3d) 520 (C.A.), refd to. [para. 18].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, consd. [para. 21].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 22].

R. v. Hebert (D.M.), [1996] 2 S.C.R. 272; 197 N.R. 277; 77 B.C.A.C. 1; 126 W.A.C. 1, refd to. [para. 24].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 26].

R. v. McIntosh (B.B.) (1995), 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 69].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402 (C.A.), appld. [para. 70].

R. v. Rose (1884), 15 Cox C.C. 540, refd to. [para. 78].

R. v. Callahan (1915), 26 C.C.C. 93 (Alta. T.D.), refd to. [para. 79].

R. v. Robertson (1954), 107 C.C.C. 400 (Ont. C.A.), refd to. [para. 79].

R. v. Wiggs, [1931] 3 W.W.R. 52 (B.C.C.A.), refd to. [para. 79].

R. v. Duffy (1965), 50 Cr. App. Rep. 68, refd to. [para. 80].

R. v. Barkhouse (1983), 58 N.S.R.(2d) 393; 123 A.P.R. 393 (Prov. Ct.), refd to. [para. 81].

R. v. Grandin (D.T.) (2001), 152 B.C.A.C. 228; 250 W.A.C. 228; 154 C.C.C.(3d) 408 (C.A.), refd to. [para. 86].

R. v. Webbers (1994), 95 C.C.C.(3d) 344 (Ont. Gen Div.), refd to. [para. 89].

R. v. Foley, [2000] O.J. No. 5204 (Sup. Ct.), refd to. [para. 90].

R. v. Tracey (C.), [2008] O.T.C. Uned. C91 (Sup. Ct.), refd to. [para. 90].

R. v. V.R.A., [2007] O.T.C. Uned. 380 (Sup. Ct.), refd to. [para. 90].

R. v. J.T.H., [1991] B.C.J. No. 202 (C.A.), refd to. [para. 92].

R. v. Basarabas and Spek (1981), 62 C.C.C.(2d) 13 (B.C.C.A.), revd. [1982] 2 S.C.R. 730; 46 N.R. 69, refd to. [para. 93].

R. v. Frost (1983), 24 Man.R.(2d) 158 (Co. Ct.), refd to. [para. 94].

R. v. Frulling (B.D.), [2006] B.C.T.C. Uned. C05 (S.C.), refd to. [para. 95].

R. v. Guay (D.A.) (2008), 337 N.B.R.(2d) 252; 864 A.P.R. 252 (C.A.), agreed with [para. 96].

R. v. Michaud (M.R.) et al., [2006] A.R. Uned. 625; [2007] 1 W.W.R. 678 (Prov. Ct.), refd to. [para. 97].

R. v. Roberts, [2008] N.J. No. 240 (Prov. Ct.), refd to. [para. 98].

R. v. Wainwright (C.E.), [2011] A.R. Uned. 219; 2011 ABPC 78, refd to. [para. 98].

R. v. Walker (R.W.) (1994), 39 B.C.A.C. 302; 64 W.A.C. 302 (C.A.), refd to. [para. 104].

R. v. Kandola (J.S.) (1993), 27 B.C.A.C. 226; 45 W.A.C. 226; 80 C.C.C.(3d) 481 (C.A.), refd to. [para. 110].

R. v. Cadwallader, [1966] 1 C.C.C. 380 (Sask. Q.B.), refd to. [para. 113].

R. v. Kong (V.) (2005), 371 A.R. 90; 354 W.A.C. 90; 200 C.C.C.(3d) 19 (C.A.), revd. [2006] 2 S.C.R. 347; 352 N.R. 365; 401 A.R. 327; 391 W.A.C. 327, refd to. [para. 113].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1, consd. [para. 124].

R. v. Carson (S.) (2004), 185 O.A.C. 298; 185 C.C.C.(3d) 541 (C.A.), refd to. [para. 130].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 135].

R. v. Kerr (J.R.), [2004] 2 S.C.R. 371; 322 N.R. 91; 354 A.R. 114; 329 W.A.C. 114, refd to. [para. 135].

R. v. Chalifoux (1974), 14 C.C.C.(2d) 526 (B.C.C.A.), refd to. [para. 138].

R. v. Flack, [1969] 1 C.C.C. 55 (B.C.C.A.), refd to. [para. 139].

R. v. Chomenko (1974), 18 C.C.C.(2d) 353 (Ont. C.A.), refd to. [para. 141].

R. v. Calder (1984), 51 A.R. 80; 11 C.C.C.(3d) 546 (C.A.), refd to. [para. 142].

R. v. Kerr (J.R.) (2003), 327 A.R. 38; 296 W.A.C. 38; 12 C.R.(6th) 308 (C.A.), refd to. [para. 143].

R. v. Nelson (1972), 8 C.C.C.(2d) 29 (Ont. C.A.), refd to. [para. 145].

R. v. Proverbs (1983), 2 O.A.C. 98; 9 C.C.C.(3d) 249 (C.A.), refd to. [para. 147].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 158].

R. v. Briscoe (K.M.) (1992), 17 B.C.A.C. 302; 29 W.A.C. 302; 76 C.C.C.(3d) 563 (C.A.), refd to. [para. 159].

R. v. Basilio (R.) (2003), 169 O.A.C. 330 (C.A.), refd to. [para. 160].

R. v. Terlecki (1985), 64 N.R. 233; 65 A.R. 401; 22 C.C.C.(3d) 224 (S.C.C.), refd to. [para. 162].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 27 [para. 101]; sect. 37 [para. 83].

Counsel:

S. Phillippe, for the Crown;

D. Vigen, for the accused.

This case was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision on June 21, 2012.