Court File and Parties

Court File No.: 14-07136 Central East Region-Newmarket Date: April 5, 2016 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Arthur William Bailey

Before: Justice Peter C. West

Evidence Heard: January 11 and 12, 2016 and February 17, 2016

Submissions Heard: February 17, 2016 and written submissions filed

Reasons for Judgment Given: April 5, 2016

Counsel:

• Ms. M. Rumble for the Crown
• Mr. P. Cooper, Ms. Occiogrosso and Ms. Thomas for the accused

WEST J.:

Introduction

[1] On September 29, 2014, Mr. Bailey was charged with aggravated assault, assault with a weapon and mischief to private property respecting Laurence Stephens. In addition, Mr. Bailey was charged with two counts of breach of probation relating to conditions of keep the peace and not to possess or consume alcoholic beverages. The Crown elected to proceed by indictment of those charges where there was an election for the Crown and Mr. Bailey elected to be tried by a judge in the Ontario Court of Justice without a preliminary inquiry. The trial lasted three days.

[2] The defence made the following concessions at the commencement of the trial:

i. Date; ii. Jurisdiction; iii. Identity; iv. Mr. Bailey was on a probation order entered into on May 6, 2013 in the Ontario Court of Justice; v. Mr. Stephens was wounded, by a knife, to his left elbow and his right hand, as a result of the altercation; and vi. Continuity of the photographs.

[3] The Crown called one witness, Laurence Stephens. After Mr. Stephens testified counsel provided an Agreed Statement of Facts (Ex. 9), which set out evidence relating to the police officers involved in the investigation. I will set out the facts contained in this exhibit below. Mr. Bailey testified and Troy Callin was called by the defence.

[4] On February 17, 2016, oral submissions were interrupted to allow counsel the opportunity to file written submissions.

Factual Background

(a) Evidence Called By the Crown

[5] Mr. Stephens is 43 years of age. He has been a friend of Mr. Bailey for 25 years. He works as a welder/fitter and in September 2014 he was working in that capacity on the Billy Bishop Tunnel at the Toronto Island Airport. Mr. Stephens was living with his mother but had arranged to move into a room at the house Mr. Bailey was renting at 78 Devins Drive in Aurora.

[6] Mr. Bailey lived in the house with another gentleman. Mr. Stephens had met this person prior to the move. On September 29, 2014, Mr. Stephens was moving in his belongings, weights, clothing and a bench press, with the help of a couple of his friends. Mr. Bailey was not home when they were moving Mr. Stephens' belongings into the house.

[7] Mr. Stephens came to the house with another load of his belongings after 5 p.m. and Mr. Bailey had arrived home from work. Mr. Stephens sat at a table in the kitchen and had a beer with Mr. Bailey and the other tenant. He thought they had two beers together. Mr. Stephens testified at some point Mr. Bailey came up to him by the front entrance and punched him in the head. There was no reason for Mr. Bailey to punch him as they had not been involved in an argument. Mr. Stephens punched Mr. Bailey back and Mr. Bailey fell to the floor. Mr. Stephens told Mr. Bailey to stay down but he got up and told Mr. Stephens to leave. Mr. Stephens testified he left the house but was unsure of the time. When Mr. Bailey punched him the other tenant was still sitting at the table drinking a beer.

[8] When Mr. Stephens left the house the belongings he had moved in were in the back bedroom and in the living room. When Mr. Stephens was asked if he had any idea why Mr. Bailey would punch him he responded that they had fights previously. The last time they had fought Mr. Stephens knocked Mr. Bailey out. This happened months before September 29, 2014. They had remained friends despite the previous fights.

[9] Mr. Stephens testified he believed Mr. Bailey had been drinking alcohol prior to Mr. Stephens' arrival at the house and when Mr. Bailey drinks he likes to fight. Mr. Stephens testified he saw lots of empty beer bottles when he arrived back at the house after 5 p.m. When Mr. Stephens left the house he went back to his mother's house.

[10] About an hour and a half after Mr. Stephens left the house he received a call from Mr. Bailey advising that Mr. Stephens' belongings had been thrown outside onto the lawn and for him to come to pick them up. Mr. Stephens left with his mother to go to the house to get his belongings. When they got to Mr. Bailey's house he saw all of his belongings scattered on the driveway and boulevard in front of Mr. Bailey's house. Exhibit 3a depicts Mr. Stephen's belongings scattered in front of the house. Mr. Stephens described his belongings as being destroyed.

[11] Mr. Stephens admitted he was upset by what he saw and immediately went into the house by the front door, which was not locked. Mr. Stephens' mom remained in her truck. As soon as Mr. Stephens entered the house he was confronted by Mr. Bailey just inside the front door. Mr. Stephens testified he was mad at Mr. Bailey because of his belongings being destroyed and thrown onto the lawn. The two began to fight. Mr. Stephens grabbed Mr. Bailey by his arms and threw him to the ground. He testified he guessed Mr. Bailey had a knife and was swinging it because after he threw him to the ground he got on top of Mr. Bailey and then noticed he had been stabbed in his left elbow. He did not see the knife when he first came into the house.

[12] While Mr. Stephens was holding Mr. Bailey down on the ground he saw Mr. Bailey was swinging the knife. The knife struck him in the left elbow at the back of his arm. Mr. Stephens testified he felt the knife penetrate his arm and the bone and it hurt (see Exhibits 2b and 2c). He tried to take the knife away from Mr. Bailey and as a result his right hand was cut (see Exhibits 2d to 2f). After Mr. Stephens was able to grab the knife away from Mr. Bailey, he let Mr. Bailey stand up.

[13] Mr. Stephens threw the knife away after he got it away from Mr. Bailey and did not use it to stab Mr. Bailey. Mr. Stephens asked Mr. Bailey if he was crazy and Mr. Bailey said he was sorry. Mr. Bailey asked Mr. Stephens not to call the police and he was attempting to stop the bleeding from the injury to Mr. Stephens' arm. They went into the kitchen and tried to wash the cut in the sink. Mr. Stephens' mother called 911 when Mr. Stephens went outside and she saw what had happened. During the altercation Mr. Stephens did not see the other tenant. When he and Mr. Bailey were trying to stop his arm from bleeding the other guy was not around. Mr. Stephens never saw the other guy when he came back to the house and was attacked by Mr. Bailey at the front door.

[14] Mr. Stephens told Mr. Bailey he had to go to the hospital and left the house. His mom called the ambulance. Mr. Bailey did not come outside. Mr. Stephens did not know where he threw the knife. It was a black-handled knife with a blade about 10 inches long.

[15] In September 2014 Mr. Stephens was about 210 pounds and was five feet eight inches tall. Mr. Bailey was about the same weight and about six feet three inches tall.

[16] Exhibits 3b, 3c, 3d, 3e and 3f depict the front door and steps Mr. Stephens used to enter the house before being confronted by Mr. Bailey. There is blood on the cement steps leading to the front door, which Mr. Stephens described as blood dripping from his injuries as he left the house after being cut with the knife by Mr. Bailey.

[17] The following day the police executed a search warrant and searched Mr. Bailey's residence. Exhibit 4a shows blood on the floor of the front hall. This is the area where Mr. Bailey stabbed Mr. Stephens with the knife. Exhibit 4b shows a white t-shirt on top of a shelving unit with no shelves in the front hall, just inside the front door. Exhibit 4c shows blood on the floor of the hallway leading into the kitchen. Exhibit 4d shows blood on the wall and floor in the front hallway. Exhibit 4f shows a black handle of a knife on the floor in the front hallway beside the shelving unit with no shelves. Mr. Stephens testified the knife he took from Mr. Bailey had the blade and black handle attached.

[18] Exhibit 5a shows the living room with a round table covered with empty beer cans and a beer keg. The photo also depicts a TV on the floor and a fan that is knocked over. Mr. Stephens testified this was the area where the first fight occurred. The items on the floor resulted from the fight that occurred earlier. The photograph also shows blood on the floor, which was caused after Mr. Bailey stabbed Mr. Stephens and he was looking for something to stop the bleeding. Exhibits 5c and 5d show the kitchen. Exhibit 5e shows an overturned box under a glass table in the kitchen and there are a number of brown-handled knives on the floor. Exhibits 5g and 5h show the kitchen sink with blood at the front of the sink and in the sink. There is also another black-handled knife in the bottom of the sink. Exhibits 5i and 5j show an area between the stove and counter and there is an open drawer with a black-handled knife as well as a further black-handled knife on the floor between the stove and counter.

[19] Mr. Stephens' criminal record was filed as Exhibit 6.

[20] Mr. Stephens testified that about a week and a half after the incident Mr. Bailey called him. Mr. Bailey told him not to sign any papers for the police. Mr. Bailey also told Mr. Stephens not to testify. Mr. Stephens testified he told Mr. Bailey he would not testify. He came to court because he was subpoenaed.

[21] Mr. Stephens testified that after he got Mr. Bailey to the floor and was using his weight to hold Mr. Bailey down, he realized Mr. Bailey had stabbed him.

[22] In cross-examination Mr. Stephens admitted he was upset and angry when he saw all his belongings on the boulevard and lawn. The front door was closed but it was not locked. Mr. Stephens disagreed he struck Mr. Bailey immediately upon entering the house to knock him out. Mr. Stephens indicated they started fighting and he did not know who threw the first punch. Mr. Bailey ended up on the floor. Mr. Stephens agreed he punched him to the side of the temple and Mr. Bailey went to the floor and Mr. Stephens ended up on top of Mr. Bailey to keep him down. When he went to the floor he saw a knife in Mr. Bailey's hand. He first saw the knife after he realized he had been wounded.

[23] Mr. Stephens agreed that after Mr. Bailey punched him, he punched Mr. Bailey and knocked him out. He also agreed that previously he had knocked Mr. Bailey out during another altercation where Mr. Bailey sucker punched him in the mouth.

[24] Mr. Stephens disagreed with the suggestion he was picking on Troy Callin and wanted to fight him when Mr. Bailey told Mr. Stephens to leave the house. Mr. Stephens maintained Mr. Bailey threw the first punch and he punched Mr. Bailey back and Mr. Bailey fell to the floor. It was after this happened Mr. Bailey told him to leave. He disagreed with the suggestion Mr. Bailey never struck him.

[25] Mr. Stephens agreed he was upset when he returned to the house with his mother in her truck and saw his belongings outside and all over the lawn. He agreed when he entered the house and saw Mr. Bailey in the front hallway he grabbed him to beat him up because he was upset about his belongings. He maintained they were both throwing punches and he finally threw Mr. Bailey to the ground and ended up on top of him.

[26] This was when he felt the knife stab his left arm at the back by his elbow. He disagreed he was punching Mr. Bailey with his left hand, rather he was holding Mr. Bailey down with his left hand and punching him with his right hand. He did not see the knife before he felt the knife in his left arm. He agreed it was a possibility he was punching Mr. Bailey with his left hand when he was stabbed by Mr. Bailey. After he got the knife from Mr. Bailey and threw it away he let Mr. Bailey up as he was trying to stop the bleeding.

[27] Mr. Stephens agreed once he disarmed Mr. Bailey there was no more fighting. Mr. Bailey was apologizing and trying to help him stop the bleeding. They were not able to stop the bleeding and he went outside and his mother called 911. Mr. Stephens testified he was coming into the house to get the rest of his belongings, which were in a back bedroom.

[28] Exhibits 7a to 7g are photographs of Mr. Bailey's clothes, a pair of jeans that were found by police on the floor in a bedroom and a white t-shirt, which was found on top of the shelving unit without shelves in the front hallway.

[29] Exhibits 8a to 8d are photographs depicting the black knife handle on the floor in the front hallway and a knife blade that was discovered by the police in the toilet tank. Photograph Exhibits 8c and 8d show the knife handle and knife blade together.

[30] Exhibit 9 is an Agreed Statement of Facts filed to obviate the necessity of the Crown calling certain police officers. The 911 call was placed at 10:39 p.m. and P.C. Batchelar arrived on scene at 78 Devins Drive at 10:48 p.m. Mr. Stephens was outside the residence and was taken by ambulance to Southlake Hospital by EMS at 11 p.m.

[31] Sometime after 11 p.m., Mr. Bailey was observed at the open front door wearing only jeans but no shirt. Mr. Bailey's face appeared "swollen and red in areas." Mr. Bailey refused to exit the residence, telling police to get a warrant. He shut and locked the front door. Police formed a perimeter around the house. Mr. Stephens' injuries were photographed at 12:16 a.m. at the hospital by police. Police obtained a warrant to arrest Mr. Bailey at 2:07 a.m. and at 2:20 a.m. they executed the warrant by entering the residence by the ERU breaching the front door. Troy Callin immediately exited the residence through the front door with his hands in the air.

[32] At 2:40 a.m., Mr. Bailey emerged from an upstairs room and was arrested by police. Mr. Bailey was wearing black track pants and a grey hooded sweatshirt. P.C. Inness noted Mr. Bailey had "a cut to his forehead and a small cut to his lower lip area." At 3:01 a.m., during booking, it was noted the cut to Mr. Bailey's forehead was small (1 cm). Police photographed the exterior of the house at 3:05 a.m.

[33] On September 30, 2014, shortly after 11:30 a.m., police entered the house pursuant to a search warrant to search for evidence and investigate the previous night's incident.

(b) Evidence Called By the Defence

[34] Mr. Bailey testified on his own behalf. In September 2014 he was working for Clarence Roofing. He worked on September 29, 2014 and arrived home around 5 p.m. Troy Callin was there and Mr. Stephens arrived bringing more of his belongings. Everyone sat down at a table in the living room and they drank beer offered by Mr. Stephens. Mr. Stephens asked if his mom could move into the house as well and when Mr. Bailey told him she could not, Mr. Stephens got mad and began to give Troy a hard time saying he should move out. Mr. Bailey stood up and told Mr. Stephens to leave Troy alone and Mr. Stephens swung and punched Mr. Bailey, who fell to the floor. When Mr. Bailey got up Mr. Stephens threw the TV onto the floor between them, left the house and drove away fast. Mr. Bailey testified this is when his lip was cut by his tooth going through it as a result of Mr. Stephens' punch.

[35] Mr. Bailey testified Troy was upset with Mr. Stephens' actions and began to put Mr. Stephens' belongings outside the house. It was Mr. Bailey's evidence he was not really paying attention to what Troy was doing because he felt like he had a concussion. He testified Mr. Stephens' belongings were old and not very nice. According to Mr. Bailey, at some point Mr. Stephens called and wanted to talk about what had happened. Mr. Bailey told him his belongings were outside on the driveway and he should come and pick them up. He told Mr. Stephens he did not want him to move in.

[36] While Mr. Bailey was sitting at the table in the living room he saw Mr. Stephens come back to the house, get out of his vehicle and move quickly towards the front door. Mr. Bailey testified he was not sure if Troy had locked the front door so he ran to the front door but Mr. Stephens got there first and was inside the door before Mr. Bailey could get to it and lock it. Mr. Bailey testified Mr. Stephens punched him and they both went into the wall and then Mr. Stephens was on top of him, on the floor, hitting him repeatedly.

[37] Mr. Bailey was unsure whether there was a knife on the floor but he guessed he must have grabbed the knife from the floor and got Mr. Stephens in his arm. They both got off the floor and the knife broke because Mr. Bailey used it to stand up. Mr. Stephens went to the living room and sat in a chair and Mr. Bailey took off his white t-shirt and tried to stop the bleeding. He did not want to hurt Mr. Stephens and wanted to help him now. Mr. Stephens said he had to go outside because his mom was putting his stuff into the truck and then an ambulance and the police showed up. Mr. Bailey told the police to get a warrant because, although he knew what he had done, he did not realize at the time it was just like reflexes. He testified after telling the police to get a warrant he went to bed and fell asleep. The police got a warrant and came into the house and arrested him.

[38] Mr. Bailey testified he was scared when he knew Mr. Stephens was coming back to the house. It was dark outside when Mr. Stephens came back. Mr. Bailey did not know where the knife came from and suggested he thought maybe Troy was moving stuff from the kitchen but he really did not know where it came from.

[39] When Mr. Bailey saw Mr. Stephens pull up he ran for the front door to try and lock it but he was too late. He and Mr. Stephens ended up on the floor in the front hallway. Mr. Bailey testified Mr. Stephens was "speed banging" him when he was on the ground, repeatedly punching him with both hands. He was just trying to protect himself. He did not know where he got the knife from but thinks it was on the floor. He felt blood coming out of Mr. Stephens and it was on his t-shirt and pants when he stood up.

[40] Mr. Bailey testified he thought he was going to be hurt really bad when he saw Mr. Bailey drive up. Mr. Stephens had already knocked him out once that same day and he had hurt Mr. Bailey previously.

[41] Exhibit 10 is Mr. Bailey's criminal record.

[42] In cross-examination Mr. Bailey testified some of the blood on the floor could have been from the cut to his forehead and his lip but the vast majority of blood in the house would have been from Mr. Stephens. Mr. Bailey testified he asked the police to take him to the hospital and they refused. When he was released on bail the next day he agreed he did not go to the hospital.

[43] He testified when Mr. Stephens was attacking him "I just grabbed for whatever to defend myself 'cause I was in danger, I was scared of being really hurt." He did not look to see what he was grabbing.

[44] Mr. Bailey testified he's known Mr. Stephens for 25 years but he was not a close friend even though he told him he could rent a room. He was just helping Mr. Stephens out to get back on his feet. He did not really want Mr. Stephens to move in.

[45] Mr. Bailey testified Mr. Stephens offered him the beer and they drank about two beers sitting at the table. Mr. Stephens wanted Mr. Bailey and Troy to help him get some more of his belongings but Mr. Bailey did not want to do that. When Mr. Stephens left to get some more of his belongings, sometime after 5 p.m., he took some beer when he left the house. He agreed the only beer he saw Mr. Stephens consume was the one or two beers when they were sitting at the table. When Mr. Bailey was shown Exhibit 5a, which shows a great many empty beer cans on the table, he indicated some of those may have been consumed the previous day. He denied drinking a lot of beer after coming home.

[46] Mr. Bailey testified when he told Mr. Stephens to come and get his stuff he could tell Mr. Stephens was quite angry he had to move out. Mr. Bailey testified for the first time in cross that Mr. Stephens threatened him during this phone call. Initially he testified he could not remember exactly what Mr. Stephens said but he later testified Mr. Stephens said "I'm coming to get my stuff and you." He reverted back to saying he could not recall exactly what Mr. Stephens said. When he was questioned further about this telephone call Mr. Bailey testified Mr. Stephens was yelling and he could not hear everything he was saying but he felt threatened. Mr. Bailey could not recall how much time elapsed between the threatening call and Mr. Stephens arriving back at the house.

[47] Mr. Bailey denied he knew Mr. Stephens was coming over or that he was waiting for him to come in the front door. He believed Mr. Stephens was drunk even though he only saw him consume one or two beers. Mr. Bailey then testified Mr. Stephens might have been sober, he really did not know.

[48] He testified he spoke to Mr. Stephens on the phone from his kitchen and then went into the living room after the call ended and sat at the table. In his evidence in-chief Mr. Bailey testified he saw Mr. Stephens pull up and come for the front door. When he was questioned about how long it would take him to go from the living room to the front door or the kitchen to the front door he agreed it would only take a matter of seconds. Mr. Bailey then testified it was Troy who saw Mr. Stephens pull up and Troy told him Mr. Stephens was there. He did not know if he saw Mr. Stephens get out of the truck.

[49] Mr. Bailey did not agree he had enough time to get to the door and lock it. Mr. Stephens beat him to the front door even though he saw the truck pull into the driveway. He denied waiting at the front door to confront Mr. Stephens when he came into the house. Mr. Bailey then suggested he did not believe a locked door would have stopped Mr. Stephens from coming into his house. He was scared Mr. Stephens was going to hurt him more than he usually did.

[50] Mr. Bailey denied the suggestion he went to the kitchen and got a knife. He testified he was scared. When he was asked if he had a phone he said he could not find it because the house was a mess, yet he had just hung up from speaking with Mr. Stephens. At an earlier point in his cross-examination Mr. Bailey testified Mr. Stephens showed up five or ten minutes after the call but when he was asked why he did not know where the phone was he changed his answer to say Mr. Stephens did not come to the house for 20 minutes to a half an hour after the telephone call.

[51] Mr. Bailey agreed the altercation occurred in the small space in the front hallway just through the front door. He testified he was grabbing for anything. He did not know what he grabbed. The kitchen is further down this hall to the back of the house. Mr. Bailey agreed there were two backpacks in the front hallway on the floor and a gate and other items, which can be seen in the photographs. Mr. Bailey initially tried to say those items were not there when the altercation occurred.

[52] Mr. Bailey denied he already had a knife in his hand when Mr. Stephens came into the house. He assumes the knife he used to stab Mr. Stephens was a steak knife. He did not know where it was afterward, he went to bed. He testified he could not find the knife.

[53] He testified he did not know if he had a knife in his hand but when he was pressed he testified he was pretty sure he had the knife. He remembered breaking the knife when he was getting up off the floor. Mr. Bailey testified he dropped the knife after it broke. He agreed the black knife handle was from the knife he had that broke. He agreed this handle had a blade attached to it before it broke. He assumes the blade in the photographs is the blade that was attached to the black handle before it broke. He agreed he had black-handled knives that look like this in his kitchen. Mr. Bailey did not agree he took the knife out of his kitchen drawer. In looking at Exhibit 5h he agreed the knife in the sink is almost identical to the knife in two pieces in Exhibit 8c. Mr. Bailey agreed in Exhibit 5i there is a black-handled knife in the cutlery tray in the drawer beside the stove which appears to look exactly like the broken knife that is depicted in Exhibit 8c. Mr. Bailey pointed out there is another black-handled knife on the floor beside the stove in the photograph as well. He agreed he had a set of black-handled knives in his kitchen. He agreed he did not keep these knives in the front hallway but somehow one got there.

[54] Mr. Bailey testified in cross he told Mr. Stephens if there was any rowdy stuff he would have to leave or Mr. Bailey would call the police. When it was suggested Mr. Bailey had asked Troy to throw Mr. Stephens' belongings outside he testified he was not sure if he did but then remembered Troy asking him if he wanted the stuff outside. He did not care because he was hurting so much from the earlier punch.

[55] Mr. Bailey testified once Mr. Stephens came through the front door he thought Troy left and went upstairs. Troy testified he saw Mr. Bailey go from the table to the front door, saw Mr. Bailey go down to the floor and then he left and went upstairs. Ms. Rumble suggested Mr. Bailey did not call out for Troy to help him and Mr. Bailey for the first time said he did call out for Troy to help him.

[56] Mr. Bailey did not know if Mr. Stephens had a knife. He did not see him with one. Mr. Stephens never threatened to hurt Mr. Bailey with a knife. Mr. Bailey agreed he knew that if you stabbed someone with a steak knife you could cause serious bodily harm. Mr. Bailey denied putting the knife blade inside the toilet tank in the washroom he regularly used on the level of the bedrooms. He had no idea how the knife blade ended up in the toilet tank.

[57] Mr. Troy Callin was called by the defence. He currently receives ODSP as a result of a mental health diagnosis for a psychotic disorder, PTSD and bipolar disorder. He is also an alcoholic. On September 29, 2014, Mr. Callin was not working. He had been residing with Arthur Bailey for 6 to 10 months at 78 Devins Drive in Aurora. He had been drinking during the day while at the house. Mr. Bailey came home mid to late afternoon; it was still light out. He was not sure if Mr. Bailey was at work or whether he was drinking after he got home. If he was drinking he would have 2-3 beer.

[58] Mr. Callin knew Arthur was going to rent a room to Larry Stephens. He also understood Larry wanted to rent a room in the house for his mom. They were all sitting at the round table in the living room. Mr. Callin admitted he was "to a degree" intoxicated. Larry was going to hit Mr. Callin and Arthur jumped up to defend him. Arthur and Larry were going at each other and Mr. Callin testified he was "frozen," in "a state of shock." He has had a hard time coming to terms with the fact he did not defend Arthur, his friend. Mr. Callin described Larry grabbing the TV and dropping it onto Arthur's back. According to Mr. Callin this caused scrapes to Mr. Bailey's back.

[59] Mr. Callin testified after Larry left the house he removed all of Larry's stuff and put it on the street. Arthur was in the bathroom when Mr. Callin was removing Larry's belongings. Mr. Callin testified he was angry at Larry and just wanted his stuff out of the house. He said he was not "dainty" with Larry's stuff but he was not trying to damage it. Exhibit 3a shows Larry's stuff outside the house.

[60] Larry came back in a white pickup. He came back "more than 45 minutes but less than two hours" after he left. He slammed on the brakes and jumped out and ran up the driveway. Arthur was trying to brace the front door but Larry pushed it open. Larry was pounding the "shit" out of Art and he was on top of Art. Mr. Callin testified he was in a state of shock and did not know what to do. He was heading up the stairs to his room. He heard Larry say, "Oh my God, I'm bleeding." He thought Larry had cut himself. Art was wrapping up Larry's arm as the fight had stopped. Art was saying, "Oh my God, are you okay?"

[61] Mr. Callin testified the front door would not close as it had been kicked in. Arthur went to his room to recuperate. There were lots of police officers outside and Mr. Callin testified he was scared. The police put in a telephone with a cord and he spoke to an officer, who said when the warrant arrived Mr. Callin should surrender.

[62] Mr. Callin testified he had no reason to be dishonest in his answers.

[63] In cross-examination Mr. Callin testified he was not sure if he had been dishonest in the past. He was taken through his dated criminal record, which he was quite vague about. He agreed he had convictions for obstruct police, theft and fraud.

[64] He agreed Arthur Bailey is a good friend of his. After Larry left the police came and Arthur refused to go out of the house. Mr. Callin agreed he told the police officer on the phone he was fearful. He did not recall telling the officer he could not say anything because someone was listening. Art was lying down on his bed. He agreed Art had been good to him and he did not want to get him in trouble.

[65] He agreed he usually drinks 15 to 20 beers at one sitting. He agreed having that many beers would affect one's ability to accurately remember things. He agreed there were a lot of beer cans on the table and that he drinks more in the afternoon. He probably had 20 beers before the police entered the house. He testified the empty beers on the table were the accumulation of two days of drinking.

[66] In cross Mr. Callin denied saying Mr. Stephens hit Arthur on his back with the TV. He is a "little foggy" where the TV hit Art on the back because Larry was pulverizing Art and Mr. Callin could not take it, so he left the living room at that point. He believed Larry also left.

[67] Mr. Callin agreed the police were not called as a result of Larry beating up Arthur. He knew Art had a phone but he did not know what they should do. He was in a "state of shock."

[68] Mr. Callin remembered Larry breaking the front door when he came back. Art was leaning up against the door to keep it shut. Larry kicked it and the mechanism was broken. They had to nail the door shut with a spike. He did not believe the door knob worked after this. The door jamb was damaged too. When Larry kicked in the door, Art went flying.

[69] He was the one who damaged Larry's property when he put it outside. Art had decided Larry was not going to move in so Mr. Callin thought the next step was to take Larry's stuff out of the house. Mr. Callin eventually agreed he knew Art was charged with damaging Mr. Stephens' property. He never went to the police and told them he was the one who damaged Larry's property.

[70] Mr. Callin did not remember giving any police officer a statement that night after they got the warrant. He did not recall telling P.C. Hayes he did not remember anything. He recalled saying to police he did not see anything. He remembers that now. He would not say he lied to the police, he was evasive. When pressed in cross, Mr. Callin reluctantly admitted he lied to the police that night. He agreed he told the police he was in his room for periods of time sleeping. He told police he had quite a bit to drink. He agreed he told P.C. Hayes he can pass out and not remember anything.

[71] Mr. Callin testified he did not see how Mr. Stephens got stabbed. He never saw a knife.

The Applicable Law

[72] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v W. (D.) (1991), 63 C.C.C. (3d) 397. A criminal trial is more than a credibility contest between different versions of events. Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings. To support of a finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the defence adduces evidence to the contrary, that standard is not met if it (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty. This does not mean the defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case. I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted:

However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[73] The defence has raised the issue of self-defence and the Crown in her submissions conceded there is an "air of reality" to it and consequently, the onus is on the Crown to prove beyond a reasonable doubt that Mr. Bailey was not acting in self-defence (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 39).

[74] On March 11, 2013, the self-defence provisions of the Criminal Code received what has been termed an overhaul. A newly enacted s. 34 emerged, designed to deal with all forms of defence of the person. In R. v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958 (Ont. C.A.), it was determined these new provisions did not have retrospective application. The date of the offences before me was subsequent to the change in the law; accordingly, the new s. 34 clearly applies in this case.

[75] For ease of reference, s. 34 reads:

Defence -- use or threat of force

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[76] Self-defence is a justification for the use of force to resist force or threatened force. Under the new s. 34 the test for self-defence was simplified into three basic requirements, applicable to all cases, see R. v. Bengy, supra, at para. 28:

a. Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;

b. Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and

c. Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.

[77] All three of the prerequisites must be satisfied. When the first two prerequisites are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. Proportionality is an important consideration in assessing the factors listed in the third prerequisite. To inform this inquiry, s. 34(2) provides a non-exhaustive list of relative considerations. None are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine (R. v. Bengy, supra, at para. 29).

[78] Where an individual reasonably believes that force is being used against him or her, and "responds reasonably for the purpose of self-defence", s. 34(1) can provide a full justification for his or her actions: R. v. Ryan, 2013 SCC 3 at para. 25; R. v. Kerr, 2004 SCC 44 at para. 93.

[79] If the Crown disproves any of these requirements, the defence fails.

Position of the Parties

[80] The position of the defence is that Mr. Bailey's evidence should be accepted and on his evidence he acted in lawful self-defence when he stabbed Mr. Stephens. In the alternative, Mr. Bailey's evidence should at least raise a reasonable doubt.

[81] The position of the Crown is that the evidence of Mr. Bailey should be rejected and the evidence of Mr. Stephens should be accepted. The Crown argues Mr. Bailey's explanation for finding a knife on the front hall floor is completely unbelievable and makes no sense. If Mr. Bailey's evidence is rejected and Mr. Stephens' evidence is accepted none of the conditions necessary for lawful self-defence could be found to be present. She also argues Troy Callin was an incredible and unreliable witness who admitted to lying to the police and being intoxicated at the time. Further, the Crown argues there is circumstantial evidence supporting Mr. Bailey obtaining the knife from the kitchen prior to Mr. Stephens returning to the house and waiting for him to come in the house.

Analysis

[82] I found both Mr. Bailey and Mr. Callin to be incredible and unreliable witnesses and I do not believe their many versions of the events which took place. What follows are my reasons for disbelieving their evidence and why I find the Crown has proven beyond a reasonable doubt the defence of self-defence is not available to Mr. Bailey.

[83] Arthur Bailey and Larry Stephens had been friends for 25 years. In September 2014, Mr. Bailey had agreed to rent a room to Mr. Stephens in the house he was renting at 78 Devins Drive in Aurora. In his evidence Mr. Stephens described an occasion many months prior to September 2014 when he and Mr. Bailey had argued and Mr. Stephens knocked Mr. Bailey unconscious with one punch. Despite this altercation, Mr. Bailey was prepared to rent a room in his house to Mr. Stephens. Very little evidence was led respecting the history and extent of Mr. Bailey's and Mr. Stephens' friendship/relationship and consequently, I am unable to draw any inferences respecting Mr. Bailey being afraid of Mr. Stephens causing him serious bodily injury.

[84] Arthur Bailey attempted to play down his willingness to rent a room to Mr. Stephens and tried to give the impression he was reluctant to have Mr. Stephens rent a room. Yet the fact remains, on September 29, 2014, Mr. Stephens was moving his belongings into Mr. Bailey's house while Mr. Bailey was working. It is my view this was an after-the-fact revision by Mr. Bailey to support his later contention of being afraid of Mr. Stephens coming back to the house after he advised Mr. Stephens to come pick up his belongings which were on the driveway.

[85] Mr. Bailey also attempts to minimize the amount of beer he consumed after he returned home from working as a roofer. From the photographs of the living room, there were at least 30 empty beer cans and a beer keg on the round table. Mr. Bailey maintained it was Mr. Stephens who offered him a beer when he arrived home from work and he only consumed a couple. In my view it does not make sense for Mr. Stephens to be offering beer to Mr. Bailey. Based on Mr. Callin's evidence, the beer was already in the house and Mr. Stephens was in the process of moving in. Mr. Callin admitted to consuming between 15 and 20 beers. All of the empty beer cans were of the same brand. I find there was a considerable quantity of beer consumed by all three men prior to the first altercation and that more was consumed by Mr. Bailey and Mr. Callin after Mr. Stephens left.

[86] I do not accept the explanation provided by Mr. Stephens for Mr. Bailey punching him for no reason as they were drinking beer. I also do not accept Mr. Bailey's explanation for the altercation which took place while they were drinking beer. In my view, neither explanation makes much sense. There are three divergent descriptions of what took place during this first altercation between Mr. Bailey and Mr. Stephens. I do not accept Mr. Callin's evidence that Mr. Stephens picked up the TV and dropped it on Mr. Bailey's back causing scrapes on Mr. Bailey's back. Mr. Bailey did not describe this happening. In fact, Mr. Callin changed his evidence in cross and testified he really did not remember if Mr. Stephens dropped the TV on Mr. Bailey's back.

[87] From the photographs it appears there was a scuffle between Mr. Stephens and Mr. Bailey where they were both grappling or wrestling with each other, punches were thrown and Mr. Stephens was told to get out. There is an upright fan lying on the floor beside the TV in the photographs of the living room. Clearly an argument about something arose while the three men were drinking beer; however, I am unable to determine from the evidence what the argument was about or who started the altercation or who punched who. I do not accept Mr. Bailey's evidence that he was seriously hurt and maybe had a concussion as a result of Mr. Stephens punching him once. I find this was an exaggeration by Mr. Bailey to support his claim of self-defence. At no time did Mr. Bailey seek medical attention respecting this, either before Mr. Stephens returned to the house or while Mr. Bailey was in police custody.

[88] The timing of the different events in my view is important. Mr. Bailey testified he arrived home from work around 5 p.m. Mr. Stephens testified he arrived after 5 p.m. with another load of his belongings and Mr. Bailey was home, as was Mr. Callin. This is supported by both Mr. Bailey and Mr. Callin. They all sat around a table and drank a number of cans of beer. No one testified as to how long they had been drinking beer when the first altercation occurred and Mr. Stephens was asked to leave by Mr. Bailey. Mr. Stephens testified he received a call from Mr. Bailey telling him to come and get his stuff about an hour and a half after he got home. Mr. Callin testified Mr. Stephens came back to the house between 45 minutes and two hours after the first altercation and being told to leave the house. Mr. Bailey did not know how much time elapsed from the first altercation and Mr. Stephens returning to the house.

[89] The 911 call was made by Mr. Stephens' mother at 10:39 p.m. The second altercation from all of the evidence did not last very long, in my view, just a matter of minutes. The first police officer arrives on scene 9 minutes after the 911 call at 10:48 p.m. I accept Mr. Stephens' evidence concerning his receiving a call from Mr. Bailey about an hour and a half after he arrived back at his home telling him to come back to the house to pick up his belongings, which were outside on the lawn. This meant Mr. Stephens arrived back at his house shortly before 9 p.m. It follows therefore that the three men were drinking beer from shortly after 5 p.m. until the first altercation occurred, likely sometime around 8:30 p.m. – three to three and a half hours. In my view, this supports my finding the three men consumed a considerable quantity of beer while they were sitting at the round table in the living room.

[90] I do not accept Mr. Bailey's evidence respecting Mr. Callin being the one who decided to take Mr. Stephens' belongings and throw them outside. Mr. Callin admitted he was intoxicated. He testified he and Mr. Bailey were thinking they did not want Larry in the house. Mr. Callin testified he was under the assumption getting Larry's stuff out of the house was the next step. Mr. Callin was questioned about whether he was aware Mr. Bailey was charged with mischief respecting Mr. Stephens' belongings. He was evasive in his answers concerning this but finally agreed he was aware of that charge. He was also evasive about whether he went to the police to tell them he was the one who damaged the property and not Mr. Bailey. He finally agreed he did not tell the police he damaged the property. In fact, eventually he agreed he told the police, after they arrested Mr. Bailey, he did not remember anything and that he did not see anything. Mr. Callin was extremely reluctant to admit he lied to the police when he spoke to them.

[91] It is my view Mr. Callin was an incredible and unreliable witness who clearly had an agenda when he testified. He was clearly evasive and in many instances did not answer the questions put to him in cross-examination. There are two significant inconsistencies in his evidence to the evidence of Mr. Bailey; namely, how the TV ended up on the floor and whether there was damage to the front door when Mr. Stephens returned and entered the house. I do not accept any of Mr. Callin's evidence as it relates to the altercations between Mr. Bailey and Mr. Stephens. I find he was intoxicated and on both of the occasions Mr. Bailey and Mr. Stephens were fighting he testified he left the living room and was walking up the stairs to go to his bedroom and consequently, did not see what occurred between them.

[92] In my view, it makes more sense for Mr. Bailey to be the one who decided to put Mr. Stephens' belongings outside on the boulevard and to then call him to come and get his stuff because he was no longer going to be renting a room to Mr. Stephens. Whether or not Mr. Stephens was going to rent a room was Mr. Bailey's decision and I find he changed his mind and called Mr. Stephens to tell him of the change and to come pick up his belongings. As I have indicated above, I do not believe Mr. Bailey was suffering from a concussion or that he was not really aware of what Mr. Callin was doing.

[93] Mr. Bailey testified he told Mr. Stephens to come pick his belongings, which had been taken from the house and put on the lawn. In his evidence in-chief Mr. Bailey testified Mr. Stephens said he was going to come and get his stuff. Mr. Bailey knew therefore Mr. Stephens was coming to the house after they hung up the phone. He knew where Mr. Stephens was living and he knew how long it would take for Mr. Stephens to arrive back at the house.

[94] In cross-examination Mr. Bailey made a significant addition to this conversation; namely, he now testified, for the first time, Mr. Stephens also threatened him by saying, "I'm coming to get my stuff and you." I find Mr. Bailey was evasive in his answers as to whether this was the first time he ever said this in his evidence. When he was pressed he resiled from this evidence and changed his testimony yet again, now claiming he did not remember exactly what Mr. Stephens said. Further, he added he could not hear everything Mr. Stephens said because Mr. Stephens was yelling. When asked again if Mr. Stephens made some kind of threat Mr. Bailey said, "I don't know exactly" and "He was yelling and I couldn't really hear him." I do not believe Mr. Stephens made a threat to Mr. Bailey. He was coming back to the house to get his belongings because they were outside on the lawn and driveway of the house as a result of what Mr. Bailey told him. Further, he came with his mother, which also supports my finding Mr. Stephens did not threaten Mr. Bailey.

[95] Mr. Bailey continued to be evasive and less than forthright when Ms. Rumble cross-examined him as to whether Mr. Bailey believed Mr. Stephens was angry as a result of the turn of events. Mr. Bailey was also evasive concerning how much time elapsed from the end of this phone call to when Mr. Bailey arrived at the house. One of Mr. Bailey's answers was he was not keeping track of time because he was so worried Mr. Stephens was coming back to the house and might attack both he and Troy Callin. He indicated he was in the kitchen when he spoke to Mr. Stephens by phone. He agreed it would take him about 10 seconds to go from the kitchen to the front door. Mr. Bailey then volunteered Mr. Stephens did not come right over and he and Troy were seated at the round table in the living room watching the window. Mr. Bailey's evidence changed again when he was confronted with the fact Mr. Stephens arrived at the house and Mr. Bailey would have seen he was coming quickly to the front door. Mr. Bailey now had his back to the window, he was not watching the street despite his concern Mr. Stephens was returning and would be upset about his belongings. Mr. Bailey testified it was Mr. Callin who told him Mr. Stephens had arrived and was running towards the front door.

[96] It is Mr. Bailey's position when he was told by Mr. Callin that Mr. Stephens had arrived that he was unsure whether the front door was locked as a result of Mr. Callin putting Mr. Stephens' belongings outside so he ran to check but was unable to get there before Mr. Stephens came into the house. In my view this does not make a lot of sense given that Mr. Bailey admitted in cross-examination being aware Mr. Stephens was coming back to the house and would be upset his belongings were outside on the boulevard. I find Mr. Bailey knew it would take Mr. Stephens 20 to 30 minutes to come from his mother's home to 78 Devins Drive. If he truly was concerned about Mr. Stephens coming back he had plenty of time to check and lock the front door. I find the door was not locked. Mr. Bailey could have gone directly to the front door when he finished the phone call with Mr. Stephens to ensure it was locked. He did not. I find he would have had plenty of time to get to the front door to ensure it was locked when Mr. Stephens first drove up. I find Mr. Stephens' mother was driving the truck as it was hers. There would be no reason for her to be driving extremely fast as described by Mr. Callin. Mr. Callin testified he saw Mr. Stephens exit the passenger door of the pickup truck. Mr. Bailey did not lock the front door. The question which arises is why not, particularly if Mr. Bailey was so scared and concerned and worried about Mr. Stephens' reaction to seeing his property outside and damaged?

[97] Mr. Bailey was asked why he did not call the police if he was so concerned about Mr. Stephens coming to his house and assaulting him and Mr. Callin. His explanation of not calling because he could not find his phone was nonsensical and completely unbelievable. He had just used his phone to call Mr. Bailey to tell him he was not moving in and to come and get his stuff, which was outside.

[98] When Mr. Stephens entered the house he admitted he was angry about his belongings being outside and he was upset they had been damaged. He admitted he was going into the house to assault Mr. Bailey. The first requirement under s. 34(1), in my view, is met as a result of Mr. Stephens' evidence. Mr. Bailey had a reasonable belief Mr. Stephens was entering his house to assault him.

[99] I find the reason Mr. Bailey did not lock the front door was because, after his phone call with Mr. Stephens, he went to the kitchen and retrieved a black-handled knife, which was clearly part of a set of knives, which were in the kitchen. A number of black handled knives, similar to the black-handled knife used by Mr. Bailey to stab Mr. Stephens, were found in the kitchen by the police when they executed the search warrant after Mr. Bailey had been arrested and removed from the house.

[100] Exhibit 5e shows an overturned box under a glass table in the kitchen and there are a number of small brown-handled knives on the floor. Exhibits 5g and 5h show the kitchen sink with blood at the front of the sink and in the sink. There is also another black-handled knife in the bottom of the sink. Exhibits 5i and 5j show the stove and counter where there is an open drawer with another black-handled knife as well as a further black-handled knife on the floor between the stove and counter. Mr. Bailey agreed in cross-examination these knives were the same as the broken knife shown in Exhibit 8c. In my view, a reasonable inference is available that Mr. Bailey retrieved one of the black-handled knives from the kitchen prior to Mr. Stephens' return and armed himself and in the process one of those knives dropped from the drawer in between the stove and counter. Further, Mr. Bailey initially grabbed for the small brown-handled steak knives seen lying with their wooden box on the kitchen floor in Exhibit 5e.

[101] Mr. Bailey maintained he did not have the knife when Mr. Stephens came through the front door. Mr. Bailey testified Mr. Stephens punched him and they both ended up on the floor with Mr. Stephens on top of Mr. Bailey. Mr. Bailey testified he was grabbing for anything to protect himself from Mr. Stephens' assault and fortuitously found this black-handled knife. I do not accept Mr. Bailey's evidence respecting where he found the knife and find it to be completely unbelievable. It does not accord with common sense. Exhibit 5e shows an upended wooden box, containing what appear to be at least 5 steak knives with brown wooden handles, on the kitchen floor under the kitchen table. Further, there are a number of similar black-handled knives in the kitchen, one in an open drawer, another in the sink and a third on the floor between the stove and counter where the open drawer is. A reasonable inference, looking at the totality of the circumstances, would be that someone was in the kitchen attempting to locate a weapon of some type. Mr. Bailey denied arming himself with the knife before Mr. Stephens returned and he maintained he just happened to find the black-handled kitchen knife on the front hallway floor. I do not accept this evidence.

[102] It is my view Mr. Bailey went to the kitchen, either right after the phone call to Mr. Stephens or upon seeing him arrive back at the house, which would explain the disarray depicted in the photographs. It logically follows that Mr. Bailey then waited with the knife in his possession for Mr. Stephens to return and enter the house, knowing Mr. Stephens would be upset and angry when he saw his belongings strewn on the boulevard in front of the house. I find Mr. Bailey was not running to the front door to see if it was locked and he was not attempting to lock the front door before Mr. Stephens got to it.

[103] In considering the second requirement under s. 34(1), there can be no doubt from Mr. Bailey's evidence he used the knife during the altercation with Mr. Stephens either while they were falling to the floor or while he was on the floor with Mr. Stephens on top of him. It was Mr. Stephens' evidence when he opened the door Mr. Bailey was right there and they started fighting. When he first entered the house he did not see Mr. Bailey with a knife in his hand. Mr. Stephens did not know who threw the first punch but he agreed he punched Mr. Bailey on his left temple and Mr. Bailey fell to the ground with Mr. Stephens on top of him. Mr. Bailey testified Mr. Stephens punched him as soon as he entered the house and then Mr. Stephens was on top of him and was repeatedly punching him. I do not accept Mr. Bailey's version of events respecting this second altercation. I find Mr. Stephens was attempting to hold Mr. Bailey down on the floor, particularly having regard to the relatively insignificant injuries observed by the police at the time of Mr. Bailey's arrest. If Mr. Stephens was "speed banging" Mr. Bailey while he was on the floor it is my opinion, taking into account Mr. Stephens' size and apparent strength, Mr. Bailey's face would have received significant injuries. This was not what occurred. I do not accept Mr. Bailey's evidence in this regard.

[104] Mr. Callin, as I have already found, on his own evidence, did not see the fight because he was leaving the living room and going up the stairs to his bedroom. If he had remained seated at the round table in the living room he would not have been able to see the fight between Mr. Bailey and Mr. Stephens, which occurred in the front hallway. The photographs in Exhibit 4a to 4f show blood smears on the floor of the hallway where the hallway's wall would have prevented anyone in the living room from being able to see what was happening. Further, Mr. Callin's description of how Mr. Stephens entered the house does not accord with the photographs showing the front door or even Mr. Bailey's version of what happened when Mr. Stephens came into the house. The door was not kicked in; there was no damage to the door or its frame. Mr. Bailey was able to close the door and lock it after he told the police to get a warrant. I find Mr. Callin's testimony to be completely lacking in credibility and reliability.

[105] The remaining issue respecting self-defence under s. 34(1) is whether Mr. Bailey's actions were reasonable in the circumstances. Section 34(2) provides a non-exhaustive list of factors for consideration in determining whether the act committed was reasonable.

a. The nature of the force: The actions of Mr. Stephens involved his using his fists to punch Mr. Bailey. Both Mr. Stephens and Mr. Bailey were punching and struggling with each other before they fell to the floor with Mr. Stephens on top of Mr. Bailey. Mr. Stephens was unarmed and the injuries to Mr. Bailey observed by the police and set out in the Agreed Statement of Facts, Exhibit 9, were minimal and relatively minor. Further, these injuries were more likely caused during the first altercation.

b. The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force: The use of force by Mr. Stephens was imminent. He had arrived at the house; saw his damaged belongings strewn and lying on the grass boulevard in front of the house. He was angry and upset and was running into the house to confront and assault Mr. Bailey.

c. Mr. Bailey's role in the incident: As I have found, Mr. Bailey was waiting inside the front door in the front hallway armed with a knife waiting for Mr. Stephens to enter the house. Mr. Bailey had more than sufficient time after the phone call to lock the front door or call 911 if he was afraid of what Mr. Stephens might do when he discovered his belongings in the state they were in. He did not hold or wave the knife out towards Mr. Stephens, where it would have been readily observed, to cause Mr. Stephens to back off and not initiate an assault. I find Mr. Bailey was fully aware how Mr. Stephens would react to seeing his personal belongings damaged and lying on the boulevard. The Crown argued Mr. Bailey was not attempting to defend himself from Mr. Stephens' assault with the knife; rather, he was upset with Mr. Stephens for the previous assaults and was lying in wait to confront him. I agree there are facts from which the Crown's submission can be reasonably inferred.

d. Whether any party to the incident used or threatened to use a weapon: Mr. Bailey was the only person armed with a weapon, which I find he obtained prior to Mr. Stephens entering the house. Mr. Stephens was unarmed and had never mentioned or threatened to use a weapon against Mr. Bailey. Mr. Bailey had no reason to believe Mr. Stephens would be armed with a weapon. The defence concedes in their written submissions it would be reasonable for Mr. Bailey to assume that Mr. Stephens would be unarmed when he entered the house. In my view, it was wholly unreasonable for Mr. Bailey to arm himself with a knife and use it to wound Mr. Stephens.

e. The size, age, gender, and physical capabilities of the parties to the incident: Mr. Bailey is taller than Mr. Stephens. Both men were approximately the same weight. Mr. Bailey worked in a physically demanding job as a roofer and Mr. Stephens worked out with weights. It was agreed that Mr. Stephens had knocked out Mr. Bailey previously with a single punch to Mr. Bailey's head; however, this was described as a sucker punch. The initial altercation, which solely involved the use of their fists and physical strength, did not result in any serious injuries. Further, despite Mr. Bailey being knocked to the ground by Mr. Stephens, when Mr. Bailey ordered Mr. Stephens to leave the house, he did.

f. The prior relationship of the parties: The parties were friends for 25 years and, despite the previous altercation several months prior to September 29, 2014, Mr. Bailey was prepared to have Mr. Stephens rent a room in his house. There was no history between the parties that would have provided a legitimate reason for Mr. Bailey to arm himself with a large kitchen knife.

f.1 Prior interaction and communication between the parties: Mr. Bailey initiated the second altercation by telephoning Mr. Stephens and telling him he was not going to rent Mr. Stephens a room any longer. Mr. Bailey further advised Mr. Stephens his belongings had been put outside the house and he should come over to pick them up.

g. The nature and proportionality of the person's response to the use or threat of force: As I indicated there was very little evidence led by either the Crown or defence respecting previous altercations between Mr. Bailey and Mr. Stephens. The only previous altercation, which occurred several months earlier, involved a single punch described by Mr. Bailey as a sucker punch. Mr. Bailey agreed in cross-examination he did not expect Mr. Stephens to be armed with a knife or any other sort of weapon. This was not a situation where Mr. Stephens would be able to surprise Mr. Bailey with a sucker punch. Mr. Bailey was waiting for Mr. Stephens, knowing he would be upset and angry. It is my view Mr. Bailey's arming himself with a knife and waiting for Mr. Stephens to enter the house was completely and grossly disproportionate to what he could reasonably anticipate and what I find he knew would be the force used by Mr. Stephens, namely, his fists. If Mr. Stephens had not been able to grab the knife away from Mr. Bailey, injuring his right hand in the process, this altercation could have resulted very differently with far more serious injuries or consequences.

h. Whether the act committed was in response to a use or threat of force that the person knew was lawful: I have indicated already I do not accept Mr. Bailey's evidence respecting where he obtained the knife. Mr. Bailey's assault with the knife ended as a result of Mr. Stephens taking it from Mr. Bailey and throwing it away. Mr. Stephens did not use the knife to defend himself. The injury to the back of Mr. Stephens' left arm above his elbow was significant, requiring a number of sutures to close the wound. I find the stabbing of Mr. Stephens was deliberate and not the result of Mr. Bailey discovering the knife on the floor and Mr. Stephens being cut as a result of the struggle. Further, as I will discuss in more detail below, Mr. Bailey's action of breaking the knife in two and attempting to hide the blade from the police in the toilet tank demonstrates Mr. Bailey knew his use of the knife in an altercation where Mr. Stephens was unarmed was disproportionate and unlawful.

[106] The defence submitted the fact Mr. Stephens had previously knocked Mr. Bailey unconscious with one punch supports Mr. Bailey arming himself with a knife because Mr. Bailey could not defend himself against Mr. Stephens' assault without it. As indicated above, Mr. Bailey had numerous alternative options available in terms of locking the front door, not calling Mr. Stephens and requesting he come to the house to get his belongings or Mr. Bailey could have called the police if he was truly concerned for his safety.

[107] I find Mr. Bailey recognized the seriousness and gravity of his actions in arming himself with the knife and then using it to stab Mr. Stephens by his subsequent conduct in breaking the knife into two pieces and hiding the knife blade in the toilet tank. I find Mr. Bailey lied when he testified the knife broke as a result of his using it to stand up after Mr. Stephens was stabbed. Mr. Bailey retrieved the knife, after Mr. Stephens left the house and prior to the police obtaining a warrant for his arrest, broke it into two pieces and attempted to hide the knife blade by secreting it in the toilet tank. I do not accept his evidence of not knowing where the knife ended up. He knew the police were returning with a warrant for his arrest. His post offence conduct, in my view, demonstrated his knowledge that using a knife when the other party was unarmed was unlawful.

[108] I do not accept or believe Mr. Bailey's evidence as it relates to the defence of self-defence. His evidence does not leave me with a reasonable doubt as to whether the defence is available to him. I find the Crown has proven beyond a reasonable doubt the defence is not available to Mr. Bailey. In considering the factors set out in s. 34(2) of the Criminal Code, as set out above, I find the force used by Mr. Bailey was unreasonable as it was completely disproportionate to the force used by Mr. Stephens. I find Mr. Bailey knew Mr. Stephens would be unarmed and knew his actions respecting Mr. Stephens' personal belongings would cause Mr. Stephens to become angry. Instead of locking the door or not calling Mr. Stephens to tell him to come and get his belongings, which he and Mr. Callin had damaged when they threw them on the boulevard or calling the police because of a real concern about what Mr. Stephens might do, Mr. Bailey retrieved and armed himself with a knife from his kitchen and then lay in wait for Mr. Stephens to arrive and come inside the house. I find Mr. Bailey intended to use the knife when Mr. Stephens entered the house. Mr. Bailey had invited Mr. Stephens to come back to Mr. Bailey's house to retrieve his belongings, which were outside and inside the house.

[109] I found Mr. Stephens' evidence, for the most part, to be credible and reliable. He was not evasive in his answers in cross-examination. He gave his evidence in a straightforward manner and conceded things favourable to Mr. Bailey. In particular, he conceded the fact he was angry and upset as a result of discovering his belongings strewn and damaged outside the front of the house and his admission he entered the house intending to punch Mr. Bailey. I accept his evidence respecting what occurred during the altercation between him and Mr. Bailey at the entranceway in the front hallway and after they ended up on the floor. I find the blood smears seen in Exhibits 4a and 4c were caused by Mr. Bailey stabbing Mr. Stephens while they were struggling on the floor. The blood spatters in the hallway, living room and kitchen resulted from blood dripping from the injury to Mr. Stephens' elbow to the floor. I accept Mr. Stephens' evidence and I find, on the totality of the evidence called during this trial, the Crown has proven the charge of aggravated assault beyond a reasonable doubt. The Crown has also proven the charge of assault with a weapon beyond a reasonable doubt. Further, the Crown has proven the charge of mischief to private property under $5000 beyond a reasonable doubt. As I have indicated, I am of the view Mr. Bailey was either directly involved in bringing Mr. Stephens' belongings outside with Mr. Callin and in the process damaging them or he was directing Mr. Callin to bring Mr. Stephens' belongings outside knowing Mr. Callin was damaging them and was a party to the offence of mischief under. The defence conceded the two probation orders and the two terms that were breached.

[110] There will be findings of guilt therefore on all charges. It is my view the offences of aggravated assault and assault with a weapon arise out of the same delict or transaction involving the same victim and therefore the charge of assault with a weapon should be stayed pursuant to R v. Keinapple, [1975] 1 S.C.R. 729. There will be convictions registered on the other four offences.

Released: April 5, 2016

Signed: "Justice Peter C. West"