Court File and Parties

Court File No.: Brampton 13-12927 Date: 2016-06-17 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Latoya Elliott

Before: Justice J.M. Copeland

Heard on: September 8 and 9, 2015, January 4 and 5, and April 8 and 29, 2016

Reasons for Judgment released on: June 17, 2016

Counsel:

• M. Morris, for the Crown
• P. Quance, for the defendant Latoya Elliott

COPELAND J.:

[1] Charges and Overview

Latoya Elliott is charged with one count of aggravated assault by wounding contrary to s. 268(1) of the Criminal Code of Canada, and one count of uttering a threat to cause death, by telephone, contrary to s. 264.1(1)(a). The complainant is Osama Khan, the domestic partner of Ms Elliott's step-sister, Taylor Thompson. It is not contested that Ms Elliott inflicted two stab wounds on Mr. Khan. What is in dispute is what happened leading up to the stabbing, and whether Ms Elliott acted in self-defence.

[2] Credibility and the W.D. Test

The Crown called Mr. Khan and Ms Thompson as witnesses. Ms Elliott also testified. The version of events provided by each witness is very different. Thus, my assessment of the credibility of the witnesses against the reasonable doubt standard is central to whether the Crown has proven the case beyond a reasonable doubt. Because Ms Elliott testified, I must decide the credibility issues in this case on the reasonable doubt standard, as per the Supreme Court's decision in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

1. CONFLICTING EVIDENCE OF EVENTS

As noted above, each witness gave a very different version of events. Two central factual issues in dispute are the nature of the verbal and physical altercation prior to the stabbing, and where the knife came from. The outline below is primarily a summary of the narrative that each witness gave in examination in chief. I will address issues that came out in cross-examination in the section where I make my credibility findings.

(i) Mr. Khan's Version of Events

Mr. Khan was 24 years old at the time of the trial, and 22 at the time of the incident giving rise to the charges. He testified that on the afternoon of September 7, 2013, he attended at the home of Ms Thompson. Ms Thompson was not there, so he called her on the phone to see where she was. She told him she was with Ms Elliott. He testified that Ms Elliott then "started freaking out in the background", and took the phone and started making threats towards him. He said there were two phone calls from the car. He denied that he said anything back to her. He testified that Ms Elliott arrived at the home a few minutes later at about 9:30 with Ms Thompson. He testified that Ms Elliott came out of her car and attacked him and stabbed him while he was standing in the driveway, with no physical confrontation between them prior to the stabbing. He claimed that at the time she was saying she was going to kill him and cut his throat open and chop his head off. Mr. Khan testified that he did not see the knife prior to the stabbing, and as a result was unable to say where it came from. Mr. Khan testified that Ms Elliott then got in her car and left. Mr. Khan denied that he assaulted Ms Elliott in any way, but said that he stepped back and pushed her away between the first and second stabs. He denied that he made any threats to Ms Elliott either on the phone or at the scene. He testified that he had no idea why Ms Elliott stabbed him.

(ii) Ms Thompson's Version of Events

Ms Thompson was 25 years old at the time of the trial. She testified that Ms Elliott came over to her house about 2:00 in the afternoon the day of the incident. Ms Thompson's cousin was also there. It was the first time Ms Elliott had met Ms Thompson's son by Mr. Khan. The baby was seven months old at the time. They hung out and went to the grocery store. Ms Elliott then suggested they go to her home. Ms Elliott, Ms Thompson, her son and her cousin all went to Ms Elliott's apartment. On the way, they stopped to see Tariq, who was a friend of Mr. Khan's and who Ms Elliott also bought marijuana from. Ms Thompson testified they did this because they thought it would be funny that Ms Elliott was buying marijuana from Ms Thompson's son's father's friend. They then proceeded to Ms Elliott's home, where they hung out and watched television until between 7:00 and 8:00 p.m. They then returned to Ms Thompson's home, because her son was getting tired, and because Mr. Khan had called Ms Thompson to say he was done work and coming to her house.

The drive from Ms Elliott's to Ms Thompson's home was about 25 minutes. During the drive, Mr. Khan called Ms Thompson. She said she was out with her sister (Ms Elliott), and that they had gone grocery shopping and hung out a bit. As they got closer to the house, Mr. Khan called Ms Thompson again (on speaker). He asked if she had gone to see his friend Tariq today. She said yes, and laughed, and explained the joke that it was a funny coincidence that both Ms Elliott and Mr. Khan knew Tariq. Mr. Khan said that was not what Tariq had told him. Ms Thompson said that was what happened. Ms Elliott then said, whatever Tariq said, he's a liar. Ms Thompson hung up the phone.

When they arrived at Ms Thompson's home, Mr. Khan was there and again asking about their visit to Tariq. Ms Thompson again explained the joke that Tariq knew both Ms Elliott and Mr. Khan. Mr. Khan said that Tariq had told him that Ms Thompson and Ms Elliott went to see him to hang out with him. Ms Thompson said that was not true, and Tariq was lying. The women then got back into the car to go to Tariq's house to confront him about what happened and why he was lying. Mr. Khan stayed at Ms Thompson's house with the baby. Ms Thompson testified that when they went to Tariq's house, he did not answer, so they returned to her house.

On the drive back to Ms Thompson's house from Tariq's, Mr. Khan called Ms Thompson multiple times. A few times she did not answer, and then her phone battery died. Ms Thompson then called Mr. Khan from Ms Elliott's phone (on speaker). Mr. Khan said to her, what the fuck are you doing. She said they were coming home. He said to her, you are playing fucking games, what are you doing. He said, why all of a sudden are all these people coming around, and you're taking off with all these people, I need to know what's going on, I need to make sure that you're safe. Ms Elliott then said something to Mr. Khan like, shut the fuck up, you're a pussy. Ms Elliott and Mr. Khan then exchanged insults back and forth on the phone. Ms Thompson said Ms Elliott then started saying "crazy things" to Mr. Khan, like, I'll fucking cut your head off, I'll slit your throat, you don't know who the fuck I am. Ms Elliott was angry and yelling. Mr. Khan was laughing and saying, shut the fuck up, you're a nobody. Ms Thompson hung up the phone.

Ms Thompson testified that when they arrived in the driveway Mr. Khan's car was parked up the driveway, and they pulled in behind. Mr. Khan was standing on the veranda. Ms Thompson asked Mr. Khan to go inside, and she said, no-one is angry, let's just have fun. Mr. Khan did not go inside. He said, I'm not going inside, she wants to kill me, let her do it. Mr. Khan approached the driver's side of Ms Elliott's car, where Ms Elliott was still in the driver's seat, and said, do you still want to kill me. Ms Thompson again asked him to go inside. Mr. Khan kept repeating to Ms Thompson, why is she [Ms Elliott] saying these things to me. As Ms Thompson and Mr. Khan were walking back to the house, Ms Elliott got out of her car and ran to Mr. Khan. They were in the driveway beside Mr. Khan's car. Ms Elliott was pushing her chest against Mr. Khan saying, you fucking pussy, you think you're better than anybody, who the fuck do you think you are. Ms Elliott and Mr. Khan were face to face at this point. He was laughing and saying, what is she doing. Ms Thompson was yelling at both of them to leave. Ms Elliott and Mr. Khan were "just going back and forth at each other". They were tussling, and bumping each other's chest. Ms Thompson went to put the things she was carrying on the veranda, and then she heard a thumping sound, and when she turned she saw Ms Elliott stumble into the tree on the lawn next to the driveway, Ms Elliott fell to the ground. Ms Thompson did not see why Ms Elliott fell. Mr. Khan went over to the tree and kept yelling, what the fuck are you doing. Ms Elliott then jumped on top of Mr. Khan and he was on his knees and she was on his back. Ms Thompson ran over, and when she got to them, Ms Elliott was on top of Mr. Khan with a knife in her hand. Ms Thompson grabbed Ms Elliott by her neck to try and pull her off. She testified that Ms Elliott was saying, I'm going to fucking kill him. Ms Thompson testified that the incident ended when she got the knife away from Ms Elliott. Mr. Khan then went inside. Ms Elliott called her boyfriend, and then left.

Ms Thompson said she did not see where the knife came from. Ms Thompson denied handing the knife to Ms Elliott.

(iii) Ms Elliott's Version of Events

Ms Elliott was 28 years old at the time of the trial, and 26 at the time of the incident. Ms Elliott testified that Ms Thompson called her shortly after 2 p.m. on September 7, 2013 and asked if she could help her out by taking her grocery shopping. Ms Elliott went to Ms Thompson's home and picked up Ms Thompson, her son and her cousin, and they went to the grocery store. They then went back to Ms Thompson's home to hang out. Ms Elliott text messaged Tariq to see if she could buy some marijuana from him. Ms Thompson asked who she was texting. After some discussion, they figured out that Tariq was a friend of Mr. Khan's. Ms Elliott then said she was leaving, and Ms Thompson asked if she could come with her to buy marijuana. Ms Elliott, Ms Thompson, her son, and her cousin drove to Tariq's home. Initially, he was not there, and they waited in the parking lot, and Ms Elliott phoned Tariq a number of times to find out where he was. When Tariq arrived, Ms Elliott rolled down the car window. There was a discussion about Ms Thompson being Mr. Khan's girlfriend and the baby being his son. Ms Elliott purchased $60 of marijuana. Ms Thompson offered her $15 to buy some of it. Ms Elliott told her not to worry about it.

They then decided to go to Ms Elliott's home to smoke marijuana and hang out. They put a kids show on the TV for the baby. They went into the closed solarium to smoke marijuana. Ms Elliott and Ms Thompson's cousin smoked for about 10 minutes. Ms Thompson only had a few puffs and went to attend to the baby.

Celicia was not feeling well from the marijuana, and lay down. Then Ms Thompson came in. Ms Elliott described her as "frantic". Ms Thompson said they had to go, and that she had received a text from Mr. Khan and he was pissed off. It was roughly 9 p.m. at that point.

They all got in the car to drive to Ms Thompson's home. In the car, Mr. Khan called Ms. Thompson. The call was not on speaker phone. Ms Elliott could hear that he was yelling, but could not hear what he was saying. After the call, Ms Thompson told Ms Elliott that Mr. Khan was mad about them going to Tariq's.

When they arrived at Ms Thompson's home, Ms Elliott parked her car in the driveway. Ms Thompson's cousin took the baby inside. Ms Thompson asked Ms Elliott to wait outside with her for Mr. Khan to come. Ms Thompson wanted to show him the text messages on Ms Elliott's phone with Tariq. Ms Thompson said she was afraid and that Mr. Khan was acting crazy. Mr. Khan arrived. He got out of his car, and went up to Ms Thompson and started yelling at her, "What the F- are you doing over there? Why are you messing with my friends." Ms Elliott interceded and showed Mr. Khan her phone and said, look at the texts, I was the one who messaged Tariq. She testified that she did this to try and calm down Mr. Khan. Ms Elliott was concerned that Mr. Khan would be physically aggressive with Ms Thompson. Mr. Khan was still yelling at Ms Thompson, but eventually took Ms Elliott's phone and looked at the texts. Ms Elliott then said to Mr. Khan, see your friend is lying to you. Mr. Khan then said to Ms Thompson, why is my friend lying to me. Ms Thompson got angry and said, I don't know, but now I want to go F-ing talk to him. Ms Thompson agreed to go with Ms Elliott to see Tariq, because she wanted to know what he had said to Mr. Khan to set him off like that.

Ms Elliott and Ms Thompson drove to Tariq's. On the way, Ms Elliott phoned Tariq on speaker phone. Ms Elliott asked him what had happened and why was Mr. Khan freaking out at Ms Thompson. Before Tariq could respond, Ms Thompson started screaming at him, "You're a F-ing liar. You're ruining my life". Tariq hung up the phone. He then texted Ms Elliott and said he did not want to talk to Ms Thompson. They arrived at Tariq's, but he did not answer the door. Ms Elliott said to Ms Thompson that everyone needed to calm down, and suggested they go to her house and smoke, and forget about it. Ms Thompson was angry about what Tariq had said to Mr. Khan, and was saying, "I'm going to F- him up."

Ms Elliott and Ms Thompson went back to Ms Elliott's home. Ms Elliott was telling Ms Thompson to calm down. Ms Elliott saw Ms Thompson get an orange knife from her kitchen drawer. Ms Elliott told her to put the knife back. Ms Thompson was saying (in relation to Tariq), "I'm going to stab him, I'm going to F- him up. Who does he think he is?" Ms Elliott told her to put the knife back, and then went to get her bong and her shoes. At that time they each received a phone call. Ms Elliott believed Ms Thompson's call to be from Mr. Khan, because she heard Ms Thompson say, "he's not there." Ms Elliott's call was from Tariq, who said he was willing to speak to her about the situation, but did not want to speak to Ms Thompson.

Ms Elliott said to Ms Thompson that Tariq was willing to speak to her (Ms Elliott), and said she would go over, and said to Ms Thompson, "I don't need you acting stupid." Ms Thompson came with her, with the plan that after Ms Elliott saw Tariq, she would drop Ms Thompson at home.

Ms Elliott met Tariq in the parking lot by his home. Ms Thompson initially waited in the car. Ms Elliott and Tariq discussed what he had said to Mr. Khan about Ms Thompson and the baby. Then Ms Thompson got out of the passenger side of the car and started yelling at Tariq. Ms Elliott yelled at her to get back into the car. Ms Elliott thanked Tariq and gave him a hug and got back into the car. In the car, Ms Thompson said to Ms Elliott, "You wouldn't let me fight him. You're a punk bitch. You're taking his side. Why are you taking his side." Ms Thompson was livid.

Ms Thompson asked if she could use Ms Elliott's phone, and called Mr. Khan from the car, on speaker. Ms Thompson was saying to Mr. Khan that Ms Elliott would not let her fight Tariq, and calling Ms Elliott a "punk bitch", and saying that Ms Elliott was taking Tariq's side. Mr. Khan was agreeing and saying that Ms Elliott was disrespectful. Ms Elliott felt betrayed. She then said to Mr. Khan, if it wasn't for me, you wouldn't even know your friends are lying to you, referring to Tariq. Then the conversation between Ms Elliott and Mr. Khan turned into a shouting match. He was telling her to, "shut the F- up." She was calling him a "punk bitch". He was calling her names. He then said to Ms Elliott, "I'm going to punch you in the face." Ms Elliott responded, "Come and do it. I know kickboxing and I'll kick your ass." Mr. Khan responded, "Just come and do it. I'll fucking kill you." Ms Elliott responded, "Go ahead and do it. You're the one that's going to end up in jail. You F-ing pussy." Then she hung up the phone.

Ms Elliott denied in her evidence that she ever threatened to kill Mr. Khan. She denied that she said, "I'll cut your head off" or "I'll cut your throat", or "I'll kill you." She testified that what she said was that she would defend herself if he touched her by saying she would kick his ass and she knew kickboxing.

When they arrived at Ms Thompson's home, Mr. Khan's car was parked in the driveway. Mr. Khan was coming out of the house with a beer in his hand. Mr. Khan was beating his chest and saying, "what are you going to do? Are you going to kill me?" Mr. Khan appeared enraged and was yelling. The women were still in the car, and Mr. Khan was walking towards the driver side door (where Ms Elliott was seated). Ms Thompson said to Ms Elliott that she was afraid to get out of the car. Ms Elliott was scared. Ms Elliott testified that she did not drive off because Ms Thompson was still in the car, and Ms Elliott was still hurt by the things Ms Thompson had said about her in the phone call with Mr. Khan, and she just wanted Ms Thompson to leave.

Both women got out of the car. Ms Thompson walked towards the house. Mr. Khan was in front of Ms Elliott. They were standing on the driveway. Mr. Khan started chest-bumping Ms Elliott, and said, "what are you going to do?" Ms Elliott looked at Ms Thompson and said, "come and take him." Mr. Khan continued to chest-bump Ms Elliott, and she was backing away. Ms Elliott yelled at Mr. Khan, "fuck you" and "you're a bitch", and "you're willing to hit a woman." Mr. Khan then lunged at her and grabbed her biceps with his hands and threw her to the ground between the cars. Ms Thompson at this time is screaming at Mr. Khan to stop and to go inside.

Ms Elliott started to get up, and said to Mr. Khan, "you're a bitch. You're willing to hit a woman." Mr. Khan called her the "N-" word. Ms Thompson was screaming to Mr. Khan to stop and to go inside, and was trying to push Mr. Khan to go inside. Ms Elliott was backing away from Mr. Khan, and then turned to say something to Ms Thompson. Mr. Khan then pushed past Ms Thompson and lunged at Ms Elliott.

Ms Elliott and Mr. Khan landed on the lawn. Ms Elliott was on her back. Mr. Khan was on top of her, on his knees with his legs straddling her body over her waist and hips. He was holding his hands on her biceps pinning her down. He had his full weight on her. Ms Thompson was screaming at Mr. Khan to get off Ms Elliott. Ms Elliott was trying to get him off her, and Ms Thompson was trying to push him off Ms Elliott, both unsuccessfully. Ms Elliott was screaming, "get off me, get the F- off me".

Mr. Khan then cocked his hand back to get ready to punch Ms Elliott. Mr. Khan was angry and was swearing and screaming at her. Ms Elliott was crying and terrified. She believed he was going to hit her, and beat her up, and could end up killing her. She was afraid that since he got so heated over a few words that he would not have the common sense to stop. Ms Elliott heard Ms Thompson say, "here", and felt an object in her hand. Ms Elliott did not think twice. She hit Mr. Khan with the object because she did not want to get hurt. She used her right arm and reached around to do so. Ms Elliott testified that she believed that the lower stab wound was the first blow, because her arms were still pinned by him.

After she hit him with the object the first time, Ms Elliott realized it was a knife. She was hoping and praying that Mr. Khan would get off her. He moved a bit in reaction to the first hit with the knife, like a flinching movement, but he was still aggressive and still on top of her and his hand was still coming to punch her. She put up her left arm to block the punch and she stabbed Mr. Khan a second time. It happened very quickly. The time between the first and second stab was seconds.

Then Ms Elliott heard Ms Thompson scream, "Oh my God, you're bleeding". Then everything calmed down and Ms Thompson was able to get Mr. Khan off of Ms Elliott. Ms Elliott dropped the knife, went to her car, and drove off.

Ms Elliott did not see where Ms Thompson got the knife from immediately before handing it to her. Ms Elliott had not seen the knife between the time Ms Thompson had it out in Ms Elliott's apartment and Ms Elliott told her to put it away, and the time Ms Thompson gave it to her during the altercation with Mr. Khan. Ms Elliott had assumed Ms Thompson had put it away as she had asked, but Ms Thompson did have a purse with her that day.

(iv) The Medical and Photographic Evidence

The two stab wounds were on the left side of Mr. Khan's back, one on top of the shoulder blade, and the other at the level of just below the underarm. Each wound appears to be less than one inch in length. The top wound required 4 staples to close, and the bottom wound 3 staples. The medical record is not entirely clear, but seems to say that at least one of the wounds was 2 to 3 inches deep. Mr. Khan was treated in hospital that night and released in the early morning hours. The knife recovered at the scene appears to be a small kitchen knife, such as a paring knife.

2. CREDIBILITY FINDINGS

This is a case where I find that none of the witnesses has told the court the full truth of what took place that afternoon and evening.

(i) Findings with Respect to Mr. Khan's Credibility

Mr. Khan was a very unsatisfactory witness. I do not believe his evidence, except for the fact that he was stabbed, since that point is confirmed by the medical evidence and the photos of the wounds. He repeatedly claimed to have no memory of events that I do not accept that a person involved in this incident would not have a memory of, even if the person was emotionally traumatized by the incident. Further, his evidence of Ms Elliott coming out of the car directly and stabbing him, with no other physical interaction preceding the stabbing, is implausible, particularly when considered in the context of Ms Thompson's and Ms Elliott's evidence.

At a minimum, Mr. Khan's lack of memory raises questions about his reliability as a witness. But in the circumstances of all the evidence in this case, I do not accept that he in fact does not remember. Tellingly, the areas about which he has no memory are areas which serve to minimize his own role in the verbal and then physical confrontation that preceded that stabbing. To give just one example, in his examination in chief, Mr. Khan described Ms Elliott swearing at him and threatening him on the phone when she was in the car, but denied that there had been any disagreement between the two of them. In cross-examination he initially claimed his response to Ms Elliott's swearing at him and threats on the phone was to say nothing. Then he said that as far as he remembered he said nothing in response. When asked in cross-examination if he had threatened the defendant during the phone call he replied that he did not think so, and that he did not remember if he had done so. I find it difficult to accept that Mr. Khan has no memory of whether he said anything in response to Ms Elliott or whether he threatened her in the phone call. Rather, I believe that he is using his claimed lack of memory to minimize his own involvement in the verbal and then physical altercation which preceded that stabbing. I note that in this respect his evidence was inconsistent with the evidence of both Ms Thompson and Ms Elliott.

I further find that Mr. Khan was not forthright about a number of details, where it was clear from cross-examination that the issue was not his memory, but rather that he just did not want to tell the court certain things in his examination in chief. For example, in his examination in chief Mr. Khan said that prior to arriving at Ms Thompson's home, Ms Thompson and Ms Elliott were out for dinner, a point which he repeated near the start of his cross-examination. He never mentioned anything in his examination in chief about Tariq calling him, or about Ms Thompson and Ms Elliott buying marijuana, or about his anger over the call from Tariq about the women coming to see him. In cross-examination he admitted that Tariq had called him right after the women had seen him to buy marijuana. However, he denied having a memory of whether Tariq had said something about what the women were doing that made Mr. Khan upset. Mr. Khan also admitted in cross-examination that he was having an argument with Ms Thompson while the women were in the car about the fact that Ms Elliott and Ms Thompson had gone to buy marijuana from a man named Tariq, who was a friend of Mr. Khan's. But Mr. Khan denied he was angry.

I find that Mr. Khan's claimed lack of memory is a fabrication which he is using in order to minimize his own role in escalating the events between himself and Ms Elliott. This speaks to his lack of credibility.

A further concern I have with Mr. Khan's evidence is that his description of how the stabbing occurred was inconsistent with the location of the stab wounds. He described Ms Elliott as stabbing him with her left hand, with a broad motion, as she was facing him, reaching around his back. The stab wounds are on the left side of Mr. Khan's back. Had the stabbing occurred in the manner Mr. Khan describes, one would expect the wounds to be on the right side of his back.

Further, Mr. Khan told the hospital when he was seen the evening of the incident that he was stabbed by an unknown person. I do not necessarily take his lie to the hospital as telling against his credibility. He may have lied to the doctor for a reason such as trying to avoid police involvement. But in court, the explanation he gave for telling the hospital that he was stabbed by an unknown person was that he did not tell a lie at the hospital about not knowing who stabbed him, because he did not know who stabbed him at the time he was at the hospital, because he was traumatized. I do not accept this evidence as truthful, and I find that Mr. Khan lied in court about not knowing who his assailant was when he told the hospital it was an unknown assailant.

I also note that Mr. Khan's evidence was inconsistent with Thompson's in many respects regarding his role in the events leading up to the physical altercation and during the physical altercation. For example, he denied that Tariq had called him and implied that Ms Thompson had been coming on to him when the women saw him to buy marijuana. Similarly, Mr. Khan denied that he was involved in any physical altercation with Ms Elliott prior to the stabbing, and said it just came out of the blue. Although Ms Elliott and Ms Thompson's evidence differs as to the nature of the physical altercation between Ms Elliott and Mr. Khan prior to the stabbing, both testified that there was a physical altercation between Ms Elliott and Mr. Khan prior to the stabbing. I can only conclude that Mr. Khan's denial of these events is in order to minimize the suggestion that he was angry and an active participant in the events prior to the stabbing, including the physical confrontation.

For these reasons, I do not believe Mr. Khan's evidence. I note that by closing submissions Crown counsel did not urge on the court to accept Mr. Khan's evidence as credible or reliable, and agreed that he was minimizing his role in events. Rather, Crown counsel argued that the court should find Ms Thompson to be credible. I will now turn to her evidence.

(ii) Findings with Respect to Ms Thompson's Credibility

Ms Thompson is the step-sister of Ms Elliott, and domestic partner of Mr. Khan. She and Mr. Khan have a child together. At the time they testified at trial, they were still in a relationship. Although Ms Thompson is the step-sister of Ms Elliott, they only met when Ms Thompson was about 12 years old and Ms Elliott was 14, and although it appears that a friendship developed, it does not appear that they were extremely close or saw each other often. Ms Thompson described their relationship as "on and off".

Although to some degree Ms Thompson's demeanour as she testified came across as a person who was stuck in the middle between Mr. Khan, her partner, and Ms Elliott, her step-sister, there were aspects of her evidence on significant issues that give me concern that, although her version of events may be closer to the truth than Mr. Khan's, she was in her evidence seeking to minimize his role in the verbal and in the physical altercation. In this context, I must consider that her ongoing relationship with Mr. Khan and the fact that they have a child together gives her a motivation to minimize his role in events. As of the time of the trial they had been in a relationship for over four years.

I am concerned that Ms Thompson was inconsistent in her evidence regarding Mr. Khan's involvement in the physical altercation prior to the stabbing, and I am concerned that she is minimizing the extent of his involvement in the physical altercation prior to the stabbing. Although Ms Thompson, unlike Mr. Khan, testified that there was a physical altercation between Ms Khan and Ms Elliott prior to the stabbing, in which Mr. Khan was an active party, she was inconsistent about a key aspect of that interaction.

In her evidence in chief, Ms Thompson testified that she did not see how Ms Elliott ended up on the ground. Ms Thompson's evidence in her examination chief was that tussling was going on between Mr. Khan and Ms Elliott, and they were yelling, and yet on her evidence she turned away to put her things on the porch and did not see how Ms Elliott ended up on the ground. In cross-examination, Ms Thompson's evidence on this issue was different. In cross-examination she testified that she had turned to put her things on the porch, and then she turned back and saw Mr. Khan shove Ms Elliott from the driveway and that Ms Elliott fell on the lawn and landed on her side, but she said she was not close enough to see how Mr. Khan had held Ms Elliott when he shoved her. But at other parts of her cross-examination, she said when she turned Ms Elliott was already on the ground. I found Ms Thompson's evidence about what she saw of how Ms Elliott ended up on the ground, a significant aspect of the altercation immediately preceding the stabbing, to be inconsistent. The inconsistency concerns me. I am also concerned about Ms Thompson's evidence that on either version of her evidence, she is claiming to have failed to see significant aspects of how Ms Elliott ended up on the ground, apparently due to the application of force by Mr. Khan. In the course of an altercation that was clearly of concern to Ms Thompson at the time, it seems unlikely and too convenient that Ms Thompson would turn away only for the portion where it appears Mr. Khan used significant force against Ms Elliott.

I am also concerned about Ms Thompson's evidence in relation to where the knife came from. In her evidence in chief Ms Thompson said she was carrying a purse when she got out of the car. In cross-examination she denied that she had her purse with her, and said she had Ms Elliott's purse. Ms Thompson had also said in her statement to police that she had her purse with her that night (i.e., Ms Thompson's own purse, not Ms Elliott's). Ms Thompson denied the suggestion that she had given the knife to Ms Elliott. In cross-examination, Ms Thompson initially said she did not recall what Ms Elliott had been wearing that night. But she agreed in cross-examination when confronted with her statement to police that she had told the police that Ms Elliott had been wearing tights, and that the knife could not have come from Ms Elliott's clothes. Thus, based on that portion of Ms Thompson's evidence, it is not clear where the knife could have come from, if it was not handed to Ms Elliott, because her clothes were such that it would have been difficult to conceal a knife in her clothes. I am not making a positive finding that Ms Thompson handed Ms Elliott the knife. But I am also not able to conclude beyond a reasonable doubt that Ms Thompson did not hand Ms Elliott the knife. I come to this conclusion because of Ms Thompson's inconsistency about whether she had her purse with her when she got out of the car, an issue closely related to the issue of where the knife could have come from, and because of Ms Thompson's evidence about Ms Elliott's clothes which suggests it would have been difficult for Ms Elliott to conceal a knife on her person.

Further, there is some inconsistency between Ms Thompson's evidence that the stabbing occurred with Ms Elliott on Mr. Khan's back, with Mr. Khan on the ground, and Ms Elliott using her right hand, and the fact that the stab wounds are on the left side of Mr. Khan's back. In particular, Ms Thompson described Mr. Khan as being on his knees, with his head on the ground, with Ms Elliott on his back, like in a piggy back position. One would expect that if a person is on another person's back, while that person is on the ground, the stab wounds would tend to be on the same side as the hand used by the stabber. Ms Thompson's evidence tends to show that Ms Elliott held the knife in her right hand. But the stab wounds are on Mr. Khan's left side of his back. I should note that I do not go so far as to say that it would be impossible for Mr. Khan to end up with stab wounds on the left side of his back if Ms Elliott was stabbing with her right hand while on his back. But it is less likely the stab wounds would be on his left side.

I also find that Ms Thompson is minimizing the existence of Mr. Khan's anger around the issues with Tariq and in relation to Ms Elliott. Clearly given the number of times he called Ms Thompson in relation to Tariq, and the language she attributes to him, he was angry. Similarly, I find that the language that Mr. Khan was using in relation to Ms Elliott shows that he was angry at her. Yet Ms Thompson in her examination in chief avoided saying he was angry. Only in cross-examination did she admit that Mr. Khan was angry at Ms Elliott, seeing her as the cause of Ms Thompson and his son being brought to meet Tariq.

Ms Thompson was also inconsistent with respect to whether Mr. Khan was at her house when she and Ms Elliott returned the first time before they went to confront Tariq. In her examination in chief she clearly testified that Mr. Khan was at her house, and that before the women went to confront Tariq, she and Mr. Khan discussed what Tariq had said, and that Mr. Khan stayed at the house with their son when she and Ms Elliott went to confront Tariq. In cross-examination, Ms Thompson said Mr. Khan was not there the first time the women returned to the house, and then said she could not remember if he was there. This change in Ms Thompson's evidence concerns me, because the original version which she then moved away from speaks to a higher level of anger on Mr. Khan's part – both in terms of his conversation with Ms Thompson, and in terms of the women's reaction after speaking to him of feeling the need to confront Tariq.

Ms Thompson was also inconsistent on the events in relation to going to confront Tariq. In her evidence in chief, she said that she and Ms Elliott went to confront Tariq, and he did not answer the door, so they left and went back to Ms Thompson's house. In cross-examination, she testified that they went to Tariq's house, and there was no answer. She and Ms Elliott went back to the parking lot. Then Tariq phoned Ms Elliott, and after five minutes or so, Tariq came out. Ms Thompson said she was livid at Tariq, because he had "tried to destroy my family". Ms Thompson asked Tariq why he was lying, and he did not really want to answer her. Ms Thompson also said in cross-examination that after they spoke to Tariq, Ms Elliott suggested going back to her house to pick up her bong and some alcohol. They went and picked up those things from Ms Elliott's house, and then drove to Ms Thompson's house. These inconsistencies in Ms Thompson's evidence about the sequence of events in going to confront Tariq are significant. They concern me in terms of the credibility and reliability of Ms Thompson's evidence. Further, given Ms Elliott's evidence of a second trip to her house being when Ms Thompson could have taken a knife from her kitchen, the inconsistencies on this issue are part of what contributes to my reasonable doubt on the issues of credibility.

(iii) Findings with Respect to Ms Elliott's Credibility

I turn then to my findings with respect to Ms Elliott's evidence. Ms Elliott's evidence of the events leading up to the confrontation is not inherently unbelievable, but her story of how Ms Thompson had the knife, and Ms Thompson handing her the knife requires careful scrutiny.

Crown counsel's attack on Ms Elliott in cross-examination primarily took the form of questions suggesting that her narrative of events was internally inconsistent.

It is clear from Ms Elliott's own evidence that in the events leading up to the physical confrontation Ms Elliott was also angry with Mr. Khan. She called him names and swore at him on the phone. She threatened to kick his ass. It is also clear from Ms Elliott's evidence that she made the decision to get out of the car at Ms Thompson's house the last time, even though she knew that Mr. Khan was angry. Crown counsel argues that this evidence supports the Crown theory that Ms Elliott went back to Ms Thompson's home with the intention of fighting with Mr. Khan.

These arguments do have some force. But I note that Ms Elliott did not try and hide the fact that she also engaged in name calling and threatening on the phone with Mr. Khan. Further, Ms Elliott explained that she got out of the car at Ms Thompson's home, despite knowing that Mr. Khan was angry, because she wanted to make sure Mr. Thompson would be safe. This is a reasonable explanation for getting out of the car. In retrospect, it may be that some aspects of Ms Elliott's decisions that day could be criticized as not perfectly rational. But on both her evidence and Ms Thompson's evidence, prior to the physical altercation, there was a significant degree of verbal conflict. Many people would react to such a situation in ways that in hindsight may not be completely rational. Thus, while I accept that these factors are relevant to assessing Ms Elliott's evidence, and I have considered them, they do not prevent me from being left in with reasonable doubt by her evidence.

Crown counsel cross-examined Ms Elliott about her marijuana consumption that day, the fact that she had driven a car after she had smoked marijuana, the risk posed by that action and issues of its legality. Clearly that was a poor judgment on Ms Elliott's part, and if she was still impaired by marijuana at the time she drove (which is not clear on the evidence), it would be a criminal offence. But I do not find that these points render Ms Elliott's evidence in relation to the incident at issue less credible.

I turn then to the issue of how the knife was introduced into the physical altercation. Ms Elliott's evidence that Ms Thompson gave her the knife requires careful scrutiny. The knife belonged to Ms Elliott, and came from her kitchen. As Crown counsel argued, to believe Ms Elliott's evidence on this issue would require believing that Ms Thompson took the knife from Ms Elliott's home with the intention of harming or threatening Tariq, and also that later when Ms Elliott was involved in the physical altercation with Mr. Khan, Ms Thompson gave Ms Elliott the knife, despite the situation being clear that it would potentially be used on her domestic partner and father of her child. It is fair to say that on its face, Ms Elliott's evidence of how the knife was introduced into the physical altercation seems unlikely. But in a criminal trial, on issues of credibility, likelihood is not the standard of proof I must work with.

Crown counsel argues that Ms Elliott conceded in cross-examination that "it doesn't make sense" that Ms Thompson would hand her the knife for the purpose of stabbing the father of her child. To some degree this question by Crown counsel was more in the nature of argument than a factual question. But in any event, Ms Elliott was not at all evasive in her answer to this question from the Crown, and forthrightly acknowledged that this aspect of her evidence seems surprising, but maintained that that is what happened.

However, I must also weigh the factors that raise credibility concerns about different version of events provided by Ms Thompson. I have already outlined a number of concerns with respect to Ms Thompson's credibility as a witness. Some of my concerns regarding Ms Thompson's credibility relate to issues that bear directly on the issue of where the knife came from. Ms Thompson's inconsistency between her examination in chief and cross-examination regarding taking her own purse out of the car, but then saying she did not have a purse with her, and it was Ms Elliott's purse, relates directly to the issue of whether Ms Thompson could have had the knife in her purse after coming from Ms Elliott's home. Further, Ms Thompson's evidence where she initially said she did not recall what Ms Elliott had been wearing, but later conceded that she had told police Ms Elliott was wearing leggings and what Ms Elliott had been wearing would not have allowed concealment of a knife also bears directly on the issue of where the knife came from.

Further, there is some evidence which supports Ms Elliott's evidence that Ms Thompson was angry enough at Tariq about what he said to Mr. Khan that there is some plausibility to her evidence that Ms Thompson took the knife from Ms Elliott's home with the intent of harming or threatening Tariq with it. Ms Thompson described herself as "livid" at Tariq, because "he tried to destroy [her] family". Similarly, Ms Thompson's evidence was clear that whatever Tariq had said to Mr. Khan had also made Mr. Khan angry.

I have also considered that the location of the stab wounds is consistent with Ms Elliott's evidence. On Ms Elliott's evidence, at the time she stabbed Mr. Khan, he had her pinned down on the ground and they were facing each other. She had the knife in her right hand, and reached around to stab him. This is consistent with the knife wounds on the left side of his back. For the reasons I have outlined at paragraphs 37 and 46 above, the location of the stab wounds is inconsistent with Mr. Khan's evidence, and also less consistent with Ms Thompson's evidence than with Ms Elliott's. A further difficulty for the Crown's case is that the two Crown witnesses have very different accounts of how the stabbing occurred.

In light of my concerns around the issue of how the knife was introduced into the altercation, I am unable to find that I believe Ms Elliott's evidence under the first branch of the W.D. analysis. However, in the context of all of the evidence, including the concerns I have outlined with respect to Mr. Khan's and Mr. Thompson's evidence, Ms Elliott's evidence leaves me with a reasonable doubt under the second branch of the W.D. analysis, and I am also not persuaded beyond a reasonable doubt of Ms Thompson's version of events under the third branch of W.D.

3. SELF-DEFENCE

Ms Elliott's version of events is a claim that she acted in self-defence in stabbing Mr. Khan. I must thus assess whether on her version of events, she has a valid claim of self-defence.

Self-defence is an affirmative defence. There must be an air of reality to the defence before the Court is obliged to consider it and before the Crown is obliged to negative self-defence beyond a reasonable doubt. If there is an air of reality to the defence of self-defence, the reasonable doubt standard applies to the defence. The Crown must then negative at least one of the conditions required for the defence beyond a reasonable doubt. If I have a reasonable doubt that self-defence applies on the facts, I must acquit. The test for an air of reality such that the court must consider a defence is a low burden. The trial judge must be satisfied that there is some evidence upon which a reasonable jury could find that self-defence applies: R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at 677-680 per Cory J.; R. v. Budhoo, 2015 ONCA 912 at paras. 42-49.

I am satisfied that there is an air of reality to Ms Elliott's claim of self-defence, and thus that the Crown must negative her claim of self-defence on the reasonable doubt standard. In particular, on her version of events, although both she and Mr. Khan participated in the verbal altercation, he was the aggressor in the physical altercation. During the physical altercation which preceded that stabbing, although she at times engaged verbally with Mr. Khan, physically, she was trying to back away. At the time she stabbed Mr. Khan, he had just knocked her to the ground, and was on top of her, was angry and swearing and screaming at her, and had his fist raised to punch her. Mr. Khan was 22 years old at the time of the incident. Ms Elliott was 26. He is much bigger than her, at 5' 10" in height and approximately 230 or 240 pounds at the time of the incident, compared to her 5' 5" in height and approximately 130 pounds at the time of the incident weight. In all of the circumstances, I find that there is an air of reality to self-defence: R. v. Budhoo, supra at paras. 42-49.

The offence is alleged to have been committed after the coming into force of the amendments to s. 34 of the Criminal Code, so I must consider self-defence under the new provisions. There are three pre-conditions to self-defence being available: 1) that the person believes on reasonable grounds that force is being used against them, or that a threat of force is being made against them; 2) that the act that constitutes the alleged offence is committed for the purpose of protecting the defendant from that use or threat of force; and, 3) that the act committed is reasonable in the circumstances (i.e., that the force used in response by the defendant is proportionate, or not excessive). In considering the third issue, whether the force is proportionate, a trial judge shall consider the relevant circumstances of the defendant, the other parties, and the act, including but not limited to the factors set out in s. 34(2) of the Criminal Code. The relevance of any factor, enumerated or not, in determining whether the act committed was reasonable is a matter for the trier of fact to determine: R. v. Bengy, 2015 ONCA 397 at paras. 27-30.

The new s. 34 in large measure rationalizes and simplifies the former self-defence provisions. Thus, in many ways it does not change the prior law. However, as the Court of Appeal recognized in Bengy, there are some changes, some of which make the defence more expansive than previously, some of which make it less expansive, and some of which give it more flexibility: Bengy, supra at paras. 30, 46-48.

As noted above, once an air of reality is raised, as in this case, the Crown must disprove the application of self-defence beyond a reasonable doubt. The Crown may do so by proving beyond a reasonable doubt that any one or more of the three pre-conditions for self-defence does not apply.

(i) Did Ms Elliott Believe on Reasonable Grounds That Force Was Being Used Against Her?

In light of my finding of fact that I am left in a reasonable doubt that Ms Elliott's version of events could be true, I find that she did believe on reasonable grounds that force was being used against her. On Ms Elliott's evidence, although both she and Mr. Khan participated in the verbal altercation, he was the aggressor in the physical altercation. During the physical altercation, although she at times engaged verbally with Mr. Khan, physically, she was trying to back away. Immediately prior to the stabbing, Mr. Khan threw her to the ground, and got on top of her, was angry and swearing and screaming at her, and had his fist cocked back and was about to punch her. In these circumstances, I am left with a reasonable doubt that Ms Elliott believed force was being used against her, and that belief was reasonable.

(ii) Was the Act Alleged to Constitute the Offence Committed for the Purpose of Protecting Ms Elliott From the Use of Force?

In light of my finding of fact that I am left in a reasonable doubt that Ms Elliott's version of events, I must assess whether her act in stabbing Mr. Khan twice, when he had thrown her to the ground, was on top of her holding her down with his weight, was angry and swearing and screaming at her, and had his fist cocked back to hit her was committed for the purpose of protecting herself from the use of force.

In assessing that issue, I must consider it in the context that I am left with a reasonable doubt as to how Ms Elliott came to have the knife, i.e., I am left with a reasonable doubt regarding Ms Elliott's evidence that as Mr. Khan was on top of her and holding her down, Ms Thompson handed her the knife. As I have previously indicated, I do not go so far as to believe Ms Elliott's evidence, but it does leave me with a reasonable doubt that her version of events could be true. On that version of events, Ms Elliott's act of stabbing Mr. Khan twice was committed for the purpose of protecting her from Mr. Khan's use of force. She was being pinned down by a man much larger than her, who outweighed her by 100 pounds. She was kicking her legs to try and free herself but was unable to do so. He was angry and screaming and swearing at her, and had just cocked his fist back to hit her. In all of these circumstances, I find that the Crown has failed to prove beyond a reasonable doubt that Ms Elliott's act was not committed for the purpose of protecting herself from the use of force.

(iii) Was the Force Used Reasonable?

This brings me to the last branch of the self-defence analysis, whether I have a doubt that the force used was reasonable. As required by s. 34(2), in considering the third issue, whether the force used was reasonable, I consider the relevant circumstances of the defendant, the other parties, and the act, including but not limited to the factors set out in s. 34(2). I also consider the well-established principle that a defendant who acts in self-defence is not expected to judge the force she uses to a nicety: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (ONCA). A person acting in self-defence is usually acting quickly in reaction to force used against him or her, making it difficult to precisely judge the force required to respond. I will not enumerate the factors in s. 34(2) one by one, but rather will outline the factual circumstances that leave me with a reasonable doubt that the force used by Ms Elliott was reasonable. I engage in this analysis based on Ms Elliott's evidence. As I have outlined above, in relation to credibility, although I do not go so far as to believe her evidence, it leaves me with a reasonable doubt.

In all the circumstances I am not satisfied beyond a reasonable doubt that the force was excessive or unreasonable in all the circumstances and considering the factors enumerated in s. 34(2).

The context of the use of the knife is that prior to this time there had been a verbal altercation between Ms Elliott and Mr. Khan on the phone. During that altercation he had threatened to kill her. She had made threats back that she would defend herself, which amounted to threats of bodily harm but not to kill. I have considered that Ms Elliott seems to have been a full participant in the verbal portion of the argument on the phone. However, on her evidence when they arrived at Ms Thompson's home, Mr. Khan escalated the matter to a physical altercation. During that time, Ms Elliott tried to back away from Mr. Khan, but did continue to engage with him verbally. Mr. Khan then he significantly escalated the physical altercation by throwing Ms Elliott to the ground twice, and getting on top of her and pinning her to the ground, and moving to punch her. At that point, the threat was imminent. Ms Elliott was being held down and was unable to free herself, and Mr. Khan had cocked his fist to punch her. Further, Ms Elliott testified that she was terrified at this point. In the context of all of the events leading up to this, given what she viewed as Mr. Khan's extreme reaction to whatever Tariq had said about Ms Thompson, Mr. Khan was cocking his fist at her, she was afraid that Mr. Khan would not have the common sense to stop. Thus, she feared significant bodily harm. On Ms Elliott's evidence, about which I have a reasonable doubt, this fear was reasonable in the circumstances.

As noted above at paragraph 63, Mr. Khan was significantly bigger than Ms Elliott, taller by 5 inches, and outweighing her by 100 pounds. In that context the physical threat posed to her by him throwing her to the ground twice, and then getting on top of her and pinning her down with his weight and cocking his fist to punch her is significant. Ms Elliott testified that she struggled to free herself by kicking her legs, but was unable to do so. She was unable to free herself from the physical threat by using her own body. The difference in body sizes and Ms Elliott's inability to free herself are further factors I take into account in finding that her fear that she would suffer bodily harm was reasonable, and that I consider in assessing the reasonableness of the force she used in response.

It is obvious on the facts before the court that only Ms Elliott used a weapon in the altercation, and Mr. Khan did not possess a weapon at any point during the altercation. I have considered this fact in assessing Ms Elliott's claim of self-defence. I have also considered that the events involving the knife happened very quickly. On the evidence of all of the witnesses it was at most a few seconds between the two stab wounds. As I have outlined above, although I have some concerns with respect to Ms Elliott's evidence about being handed the knife, I ultimately am left in a reasonable doubt by her evidence on this issue. Thus, she was in a situation where a significant amount of physical force was being used against her, and with the imminent threat of more force – being punched in the face – as far as she could tell likely repeatedly. She tried to free herself by kicking her legs and was unable to. At that point, she was handed the knife, and within seconds struck two quick blows. I will come to the nature of the injuries in a moment, but I am unable to find on the evidence before me that the blows were thought out or planned in terms of location.

I have also considered the nature of the injuries to Mr. Khan in relation to whether the force used was reasonable. Although the injuries are serious, they are not inconsistent with the evidence of Ms Elliott. Indeed, as I have noted above, the location of the injuries is more consistent with Ms Elliott's evidence than it is with either Ms Khan's or Ms Thompson's evidence. I must consider the force used in the context of a defendant not being required to measure defensive force precisely, when acting quickly in response to force used against her.

I have considered Crown counsel's argument that I should find that self-defence is unavailable to Ms Elliott because she chose to get out of her car that last time at Ms Thompson's home, and to engage with Mr. Khan, rather than to leave the scene immediately in her car. As I read the non-exhaustive list of criteria in s. 34(2), failure to retreat is a relevant factor that a trier of fact may consider in assessing a claim of self-defence, but there is nothing in s. 34 that suggests that a failure to retreat, if such is found, automatically disentitled a defendant to claim self-defence. Rather, it is a factor the trier of fact may consider in all of the circumstances.

I find that the Crown's argument about failure to retreat fails in this case in light of my factual finding that I am left in a reasonable doubt by Ms Elliott's evidence. On Ms Elliott's evidence (indeed, this is also true on Ms Thompson's evidence), at the time the two women got out of the car, there had not yet been any physical altercation. There was nothing physical to retreat from at that point. While in retrospect it may have been more prudent had Ms Elliott not got out of the car, I do not find that her decision to get out disentitled her to self-defence. If I had found as a fact that Ms Elliott had got out of the car with the intent to stab Mr. Khan, then the situation would be different, and the Crown's argument on this issue might have carried the day. However, since I have not made that finding of fact, I find that Ms Elliott's decision to get out of the car, before there was any physical altercation between her and Mr. Khan, does not disentitle her to relying on self-defence.

Considering all of the circumstances, I am left with a reasonable doubt in relation to whether the force used by Ms Elliott was excessive.

4. UTTERING A THREAT TO CAUSE DEATH COUNT

Ms Elliott denied that she uttered a threat to cause death, and I do not construe any of the words she testified that she uttered to Mr. Khan to amount to a threat to cause death. For the reasons I have outlined above, I am left in a reasonable doubt by Ms Elliott's evidence. For this reason, I find her not guilty of uttering a threat to cause death.

Conclusion

Before closing, I note that the behaviour of all of the parties to this regrettable incident shows a readiness to react to a perceived slight or perceived disrespectful treatment by confrontation and escalation of the incident. A calmer and more measured reaction by all parties to the initial perceived slight of whatever Mr. Khan's friend Tariq said to him about Ms Thompson, would have avoided a lot of grief for all involved.

For these reasons, I find Ms Elliott not guilty of both counts.

Released: June 17, 2016

Justice J.M. Copeland