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Caught in the act yet not guilty

Homeless man on 60-day fast claims fear of death prompted Whistler break-in

There’s something in Canadian law known as the Perka Precedent, which acknowledges that people are allowed to take extraordinary steps, even break laws, if they feel their lives are in danger. For example, someone freezing to death in the woods may break into a cabin if they believe their life depends on it.

The same precedent was applied to a December 2002 Whistler break-in, the circumstances of which are unusual to say the least.

The accused in the case, a homeless man by the name of Jim Nelson, was acquitted in early August by Provincial Court Judge Douglas Moss on the basis of necessity, though the judge himself used words like "bizarre", "disjointed" and "unrealistic" to describe Nelson’s chain of reasoning.

Nelson was found asleep on the floor of a Nicklaus North condo by the owner, surrounded by vomit and feces. The Christmas presents had all been opened and he had raided the refrigerator and used the stove to cook food.

How he got there was the strangest part of the tale. According to court papers, Nelson moved to Whistler in 1990 and held a variety of jobs. In 2002 he decided to move into the forest and live in a tent, and fast for an extended period of time.

"He said he did this after having fasted for 60 days, give or take a day. He says he was trying to attain some form of spiritual perfection," wrote Judge Moss.

Nelson’s hunger took over on Dec. 18, when he returned to the village looking for food. He planned to get it from garbage cans, but found himself in Nicklaus North, where he used a rock to gain entry to a condo. Once inside he went on a binge, and ate chilli, cream cheese, and tortillas, and made himself some tea. He also tore open the Christmas presents, reportedly looking for chocolate, turned on the television, and covered up the broken window to keep out the cold.

Although the Judge was skeptical about a few points of Nelson’s story – that it was a coincidence the one home he chose was empty, and that he didn’t think to call 9-1-1 or seek other assistance – he said there was evidence that the man, now 49, was not in a proper mental state to make reasoned decisions and could see his own actions as necessary.

Given Nelson’s story, and a photograph taken by the police officer, Judge Moss made the decision not to convict for breaking and entering – although he did consider pursuing a mischief charge. "Your actions were disgusting and foul," wrote the judge. "Certainly so far as the homeowner is concerned, but that kind of action in and of itself presents to me clear evidence that your mind was extremely troubled and that you should not be found guilty."