Vancouver Sun

Drunk driver who was fleeing boyfriend convicted

‘Defence of necessity’ doesn’t apply since woman returned to man’s place, judge says

- KIM BOLAN kbolan@postmedia.com blog: vancouvers­un.com/ tag/real-scoop Twitter.com/ kbolan

A Penticton woman who says she had no choice but to drive drunk to escape her violent boyfriend has been convicted of impaired driving.

Shannon McMichael admitted that she was both over the legal limit and driving while prohibited on July 31, 2015, after leaving her boyfriend’s apartment.

But she said she had only driven because her drunken boyfriend had turned violent and she feared for her safety.

Her lawyer Don Skogstad told Penticton Provincial Court Judge Gregory Koturbash that the “defence of necessity” should apply in McMichael’s case, meaning her criminal actions were justified in the circumstan­ces.

“Necessity is recognized as a defence when breaking the law is in a sense involuntar­y; that is, in cases where an accused had no real choice but to break the law,” Koturbash said in a recent ruling.

He said in order for the defence to apply, the person must be in imminent danger and “have had no reasonable legal alternativ­e to the course of action he or she undertook.”

That wasn’t the case for McMichael, Koturbash said.

He noted that McMichael arrived at her boyfriend’s apartment around 9 p.m. to find him drunk and verbally abusing her.

“Ms. McMichael had been in an abusive relationsh­ip in the past, but had never seen this side of her then current boyfriend. She described him as ‘outrageous’ and ‘wasted,’ ” the judge noted.

“He grabbed her by the shoulders and threw her onto the ground. A neighbour asked if she was okay and she said no. The neighbour called police.”

An officer arrived, saw that McMichael had been drinking and told her to leave.

She called a friend who lived nearby and left, without taking her bag or computer.

Less than an hour later, she returned to her boyfriend’s place to get her stuff.

Things escalated again and McMichael said he “pushed her against the wall” before she managed to get free and run to her car parked outside the apartment.

But Koturbash said that if McMichael had been really afraid of her boyfriend, she wouldn’t have gone back to his place a second time that night.

“I do not accept that Ms. McMichael was truly afraid of her boy- friend. Her actions of returning to the apartment are inconsiste­nt with that fear,” he said.

And, he said, she had been “chatty and engaging” with the Mountie who responded earlier in the evening, “never once mentioning anything about being assaulted or fleeing from her boyfriend.”

“Although she would like me to believe she omitted telling the officer this because she still cared for her boyfriend and did not want to get him into trouble, I do not accept her explanatio­n,” the judge said.

“Even if I had a reasonable doubt about this, which I do not, she created the situation she found herself in.”

He convicted her on three charges.

I do not accept that Ms. McMichael was truly afraid of her boyfriend. Her actions of returning to the apartment are inconsiste­nt with that fear.

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