Court of Appeal for Ontario

Date: 2022-10-21 Docket: C69615

Before: Benotto, Miller, and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Samson Aristor Appellant

Counsel: Delmar Doucette and Cara Barbisan, for the appellant Linda Shin, for the respondent

Heard: September 15, 2022

On appeal from the conviction entered by Justice Harrison S. Arrell of the Superior Court of Justice, sitting with a jury, on October 16, 2019.

Benotto J.A.:

[1] The appellant was convicted of second-degree murder. Following a series of late-night fights in a bar, he stabbed the deceased. At trial, he alleged self-defence. On appeal, he submits that the defence of accident (unintended act) should have been put to the jury and a new trial should be ordered.

[2] I conclude that the defence of accident did not have an air of reality and should not have been put to the jury. I would dismiss the appeal.

FACTS

[3] In the early morning hours of September 10, 2017, the appellant, along with his friends Richard Conner and Joseph and Diana Ram, went to the Coco Bongo, a night club in Hamilton. There, they encountered Ismet Bajcinca, his brother Benny, and three other associates, including the deceased, Reald Vercani (the “Bajcinca group”).

[4] At approximately 3:00 a.m., the lights in the club came on. This meant that it was closing time. At that point, the Bajcinca group got into a fight with Christian Montoya, an associate of the Coco Bongo’s owner. The appellant and Conner got involved, allegedly trying to break up the fight. However, Kyla Lord, the security officer, said that Conner was loud, arguing with the Bajcinca group and saying he had been to the “pen” and was not afraid to kill. Joseph Ram tried to calm Conner down. The owner of the club instructed Ms. Lord to eject Conner and the appellant. She escorted them out of the club and locked the door behind them.

[5] The appellant and Conner did not leave but, instead, stayed outside the club, in the alleyway by the door. The appellant contended this was because the Rams were still inside, and he had left clothes at their home that he needed to retrieve. The Crown, on the other hand, argued that the appellant was hanging around in preparation for a further confrontation with the Bajcinca group.

[6] Video surveillance shows that, upon leaving, the appellant ran to the parking area. According to the Crown, this was to collect a knife he had stashed earlier in the evening. The appellant, however, maintained that he had the knife with him the entire night, and he just went to the parking lot to urinate. Regardless, when the appellant returned from the parking lot, he had a knife tucked into the waistband of his pants. It was a combat knife: 15 centimetres long with a serrated edge.

[7] The appellant and Conner were near the exit door of the club when the Bajcinca group came out. Benny Bajcinca and Conner got into a verbal altercation, after which members of the Bajcinca group, including Vercani, kicked and punched Conner. When the appellant tried to intervene, he too was punched repeatedly, kicked, and knocked to the ground. Witnesses testified that Conner appeared to be the main target.

[8] Ms. Lord and others attempted to restrain and separate the Bajcinca group from the appellant and Conner. She testified that she told the Bajcinca group to back up, go to the parking lot, leave the appellant and Conner alone and let them leave. The Bajcinca group complied and retreated to the parking lot. At this point, the appellant took the knife out from the waistband of his pants and walked past Ms. Lord. She saw the knife.

[9] Ms. Lord testified that the appellant had the knife behind his back as though trying to hide it. She thought he was going to stab someone, so she yelled “knife” and reached for him to try to take him down. She hoped she could restrain him from being able to stab somebody. Instead, he lunged forward, escaped her grasp, and ran toward the Bajcinca group. As he ran past Vercani, he “put the knife into Mr. Vercani’s chest”. Although Vercani was walking away, he may have turned back briefly after Ms. Lord yelled “knife”. Ms. Lord testified that the appellant lunged toward the deceased and stabbed him “pretty hard … just one in one out”.

[10] The knife entered Vercani’s chest its full 15 centimetres and he died as a result of the injury.

[11] The appellant claimed that, after he had been punched, he was afraid that he was going to be hit again and wanted to get away from the Bajcinca group. Although there was a clear path to the road, he said everything was a blur, so he just ran toward the group. He said he was holding the knife out in front of him so that they would see the knife and let him go through. The appellant said he did not know if he intentionally stabbed Vercani and did not want anyone to get hurt.

[12] Immediately after the stabbing, the appellant looked back at the deceased, then changed direction and then ran toward the open path to the road. He hid under a truck and had the knife with him.

The Trial

[13] At trial, the appellant claimed he stabbed the deceased in self-defence.

[14] At the pre-charge conference, there was consensus that self-defence would be put to the jury. A brief conversation about the defence of accident took place when the Crown asked if it should be put to the jury, given that the appellant seemed to have no memory of the stabbing. The discussion appears to have centered on the issue of accident going to intent (mens rea) which – as discussed below – would be accident (unintended consequences). There was no specific discussion about accident (unintended act), which goes to the actus reus. In any event, the trial judge invited counsel to think about the issue and address it the next day. The defence of accident (either unintended act or unintended consequences) was not discussed again.

The Jury Charge

[15] The final charge left three options for the jury:

1. If the jury found that the appellant stabbed the deceased in self-defence, he was entitled to an acquittal.
2. If the jury found that the appellant stabbed the deceased without acting in self-defence and either (a) meant to kill him, or (b) meant to cause him bodily harm the appellant knew was likely to cause death and was reckless as to whether or not death ensued, the jury needed to find the appellant guilty of second-degree murder.
3. If the jury found that the appellant stabbed the deceased without acting in self-defence but lacked the requisite state of mind for second-degree murder, the jury needed to find the appellant guilty of manslaughter.

[16] The trial judge did not instruct the jury on accident. There was no mention of the possibility that the stabbing was an involuntary or unintended act and, thus, that the appellant lacked the requisite actus reus for either murder or manslaughter. Nor did the trial judge instruct the jury on illegal-act manslaughter, which can occur where an accidental homicide is the result of an unlawful act (such as moving into a crowd with an extended knife), nor did he provide instruction on the possible defence of self-defence to such illegal-act manslaughter.

ISSUES ON APPEAL

[17] The appellant raises the following issues on appeal:

1. Did the trial judge fail to instruct the jury on accident (unintended act) as it applied to the actus reus of murder?
2. If so, did the trial judge also fail to instruct the jury a. On the lesser included offence of illegal-act manslaughter? b. On the defence of self-defence based on an accidental stabbing?

ANALYSIS

[18] I begin with a discussion of the defence of accident, after which I will address the air of reality test and then apply those principles to the evidence.

[19] The defence of accident has two forms: an unintended act (accident as to the actus reus) and unintended consequences (accident as to mens rea). The defence of unintended consequences – which is not being argued here – is appropriately dealt with by the mens rea instruction: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 193-4.

[20] Accident in the sense of an unintentional act raises a discrete defence. It refers to conduct that is not voluntary. If an act is shown to be accidental in this sense, or if reasonable doubt is raised in this regard, then the Crown fails to prove the actus reus of the offence.

[21] For the defence to be put to the jury, it must meet the air of reality test. In applying the air of reality test, the court considers the totality of the evidence and assumes the evidence relied on by the accused is true. There must be evidence upon which a jury could reasonably draw the inferences necessary to acquit the accused. The evidence must convey a sense of reality to the defence and move “beyond fantasy”: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 74.

[22] The appellant testified that, after he was punched and kicked and fell to the ground, he was sore, and his head was pounding and spinning. He was dizzy and scared and wanted the Bajcinca group to leave him alone. He wanted to get out of there. He said: “I remember I extended the, my knife so they can see it.” He said he did not want anyone to get hurt and did not remember the knife entering Vercani.

[23] The appellant relies on R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63. In that case, a wife died of asphyxiation. The husband, originally convicted of her murder, submitted on appeal that the defence of accident (unintended act) should have been put to the jury. He had testified at trial that, although he intended to restrain his wife, he did not intend to kneel on her chest or sit on her and did not realize had had done so until after she was dead.

[24] On the trial judge’s view of the evidence, the defence of accident as to actus reus had no air of reality. Laskin J.A. took a different view and ordered a new trial because the defence of accident (unintended act) was not put to the jury. As he noted, at para. 88:

Mr. Mathisen’s own evidence on whether he kneeled on his wife’s chest accidentally is equivocal. Some parts of his evidence suggest that his kneeling was accidental at least one part, and perhaps others, that his kneeling was intentional. And his evidence is the only evidence on the issue. However, a trier of fact is entitled to accept all, some or none of a witness’s testimony. Thus, the jury could accept the exculpatory parts of Mr. Mathisen’s evidence, or at least conclude that they raised a reasonable doubt. Accordingly, I conclude, contrary to the trial judge’s ruling, that the defence of an accidental act should not have been removed from the jury’s consideration. [Emphasis added.]

[25] In Mathisen, the only evidence of unintended act was that of the appellant. There were no witnesses to the wife’s death. Here, there was other evidence.

[26] Cinous is the leading case on the test for air of reality. McLachlin C.J. and Bastarache J., at para. 53, explain the sources of evidence to be considered at this threshold stage:

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. [Citations omitted.]

[27] Cinous makes it clear, at para. 98, that a mere assertion by the accused is not sufficient to clear the air of reality hurdle:

The evidence relied upon in this case emanates from the accused’s own testimony. While this Court has made it clear that a mere assertion by the accused of the elements of a defence will not be sufficient to clear the air of reality hurdle, that principle does not have any application to the present case. The accused’s testimony goes beyond merely asserting the elements of the defence, and provides a comprehensive account of his perceptions and his explanation for them. As was stated above, credibility is not an issue in air of reality analysis. The issue is not whether the accused (or any other witness) should be believed. Rather, the question is whether, if the jury were to accept the construction of the evidence most favourable to the accused’s position, the requisite inferences could reasonably be drawn. [Emphasis added.]

[28] I will now apply these principles to the facts of this appeal. I begin with the testimony of the appellant and then consider the totality of the evidence.

[29] The appellant submits that the stabbing was an accident and, consequently, the actus reus of the offence was not established.

[30] The appellant testified that he did not “want to hurt anybody” and he “did not want anybody to … get hurt”. His evidence during cross-examination was:

Q: Did you intend to stab anybody that night? A: No, sir, I did not want to, I did not – my intentions were not to hurt anybody.

[31] The appellant did not directly answer the question. He said (as he did several times during his testimony) that he did not intend to “hurt anybody”. To the extent that his testimony goes to intention, the mens rea was thoroughly and accurately covered in the charge to the jury. He did not say that he did not intend to stab Vercani. He did not say that it was an accident.

[32] The appellant points to his testimony while being shown the surveillance footage of the incident:

Q: Did you ever intend to lunge towards Mr. Vercani? A: No. Q: Okay. At any time did you intentionally poke (sic) Mr. Vercani with the knife? A: I don’t, I don’t know if I did or not, ‘cause I just wanted to just go through and I just wanted to get out of there, I wanted those guys to let me go. Q: Did you poke Mr. Vercani on purpose? Were you trying to hurt him? A: No. I was not trying to hurt nobody at all that night.

[33] The appellant was asked if he ever intended to lunge towards the deceased. Recall that the evidence of Ms. Lord was that he lunged to escape her grasp. She also said that he lunged towards the deceased, then stabbed him.

[34] Accepting the evidence of the appellant, he did not intend to lunge at Vercani and did not know if he intentionally stabbed him with the knife. In the context of the totality of the evidence, his evidence does not convey a sense of reality to the defence that the stabbing was involuntary.

[35] Unlike in Mathisen, there was other evidence of the stabbing: the testimony of Ms. Lord, the security video and the coroner’s evidence, none of which was seriously challenged.

[36] The stab injury that caused the death was, according to the coroner, Dr. Porter, not “a trivial stab, it was a very significant forceful stab”. The entire length of the 15-centimetre knife penetrated through Vercani’s chest, past the second and third rib and through the muscles. Ms. Lord testified that it was a hard stabbing. It was not a poke.

[37] Ms. Lord said she saw the knife behind the appellant’s back as though he did not want the Bajcinca group to see it. She yelled “knife” and attempted to grab his arm to restrain him. He lunged and escaped her grasp and she saw him stab Vercani.

[38] The security video shows that the appellant had a clear, unobstructed path to the street, a path he chose after he stabbed Vercani.

[39] Taking the appellant’s evidence at its highest, and in the context of the totality of evidence, there is no air of reality to the assertion that the stabbing was accidental or involuntary.

[40] That the matter was discussed, albeit briefly, at the pre-charge conference is of no moment, for, as I have concluded, the defence was not to be put to the jury.

[41] My conclusion that there is no air of reality to the defence of accident (unintended act) makes it unnecessary to address the appellant’s submission with respect to illegal-act manslaughter. [1] Nor do I need to address the submissions with respect to the self-defence charge on accident.

[42] I would dismiss the appeal.

Released: October 21, 2022 “M.L.B.” “M.L. Benotto J.A. “I agree B.W. Miller J.A.” I agree S. Coroza J.A.”

[1] If the appellant accidentally caused Vercani’s death during the course of an unlawful act, and if the jury were satisfied beyond a reasonable doubt that the unlawful act was such that a reasonable person would inevitably realize would subject another to the risk of at least some bodily harm, the appellant would be guilty of manslaughter: Regina v. Tennant and Naccarato (1975), 7 O.R. (2d) 687, at p. 96.