Court File and Parties

Date: January 10, 2017

Court File No.: Brampton 16-Y10

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

F.S.

Before: Justice Paul F. Monahan

Heard on: November 7, 8, 9, 10 and December 7, 2016

Reasons for Judgment released on: January 10, 2017

Publication Ban Notice

CERTAIN INFORMATION HEARD AT THE TRIAL OF THIS MATTER IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT

Counsel

Mr. P. Quilty — counsel for the Crown

Mr. T. Kirichenko — counsel for the defendant F.S.

MONAHAN J.:

Introduction and Overview

[1] Five friends ages 15 to 18 years old got together for a party on December 30, 2015 at an apartment in the City of Mississauga. The party extended well into the morning hours of December 31, 2015. Various illegal drugs and alcohol were consumed by all five people that night. At approximately 6 AM on December 31, one of the five would suffer a knife stab wound to the chest and be hospitalized with serious injuries. This would lead to criminal charges against another of the five, the defendant, including for attempted murder. Within 10 days after the party and the stabbing, a third member of the group would be dead due to an unrelated apparent drug overdose. Apparently due to the consumption of drugs and alcohol at the party, the remaining two of the five people at the party would have little memory of the events of December 30 and 31, 2015. A sixth person, an adult in whose apartment the party took place, was also present in the apartment the night of the party. She too would have little memory of the events due to drugs and alcohol consumption.

[2] F.S., a young person within the meaning of the Youth Criminal Justice Act is charged with the following, all of which relate to events alleged to have occurred on or about December 30, 2015:

i) Attempted murder on H.B. (contrary to s.239(1) of the Criminal Code of Canada (the "Code");

ii) Aggravated assault on H.B. (contrary to s.268 of the Code); and

iii) Breach of probation (contrary to s.137(2) of the Youth Criminal Justice Act);

[3] The trial was held on November 7, 8, 9, 10 and December 7, 2016. The Crown called the following witnesses:

• H.B., the victim, age 18 at the time of the events. He was a friend of K.M.'s;
• S.T., age 15 at the time of the events. She was the girlfriend of K.M.;
• K.M., age 18 at the time of the events. He was a friend of H.B.'s and the boyfriend of S.T.;
• Peel Regional Police witnesses Officers Brian Boucci; Jeffrey Vanderwal; Sheldon Langlois; Justin Gracey; and Mike Ambrosio.

[4] The Crown tendered the following further evidence as part of its case:

• The defendant F.S. was 17 years old at the time of the events. She gave a videotaped statement to the police on January 4, 2016. Her entire statement to police was admitted into evidence as part of the Crown's case. This was done with the consent of the defence which conceded that the statement was voluntary and that all requirements of the Youth Criminal Justice Act for the admission into evidence of the statement were met; and

• G.E. was 18 years old at the time of the events. She was one of the five people at the party on December 30, 2015 and an apparent witness to the stabbing of H.B. by F.S. G.E. gave a videotaped statement to the police approximately one hour after the stabbing. Tragically, G.E. died about ten days later of an apparent drug overdose. With the consent of Crown and the defendant, I admitted her videotaped statement to police into evidence for the truth of its contents under the principled exception to the hearsay rule requiring both necessity and threshold reliability. At the time the statement was admitted during the trial, I gave brief oral reasons for the admission of this evidence.

[5] The only evidence called by the defence was that of C.L.R. She is the mother of R. S., the boyfriend of S.F. R.S. was not present the night of the party. The party was held at the apartment of C.L.R. and she was present in the home that night.

[6] It is the position of the Crown that attempted murder has been proved beyond a reasonable doubt, or, alternatively, that aggravated assault has been proved beyond a reasonable doubt. The defence's position on the attempted murder charge is that the required mens rea has not been made out beyond a reasonable doubt. In any event, it is the defence's position in respect of both of these charges that the defendant acted in self-defence.

Evidence

H.B.

[7] I will give a brief overview of the evidence. There were significant discrepancies between the evidence of a number of the witnesses. I will address the issues of reliability and credibility in my determination of the contested facts in the analysis section below and I will also expand upon some of the evidence in that section of my reasons.

[8] H.B. was 18 years of age as of December 30, 2015. On that day, he got off of work at 7 PM and got together with his friend K.M. and K.M.'s girlfriend, S.T., at S.T.'s home. They were smoking marijuana. S.T. got a call from her friend G.E., who H.B. had met once before. G.E. invited them to a get together at R.S.'s place which was accepted and they arrived around 11 PM. It was at an apartment in the City of Mississauga near Lakeshore Boulevard. R.S. was not there but his mother, C.L.R., was there as it was her apartment. R.S.'s girlfriend, F.S., was there as was G.E. H.B. said that everyone was drinking rum and smoking marijuana. He said that he did one line of cocaine and half a pill of Xanax.

[9] H.B. said that he had $500 on him and he was counting it throughout the night. He said that he had bought $70 to $100 of marijuana from F.S. that night.

[10] The party was in one of the two bedrooms in the apartment. H.B. said that he fell asleep but woke up and saw F.S. there with $100 in her bra which he thought was his. He accused her of stealing it from him which resulted in a shouting and swearing match between them. He said that F.S. ran at him and stabbed him in the chest in the bedroom and that it was entirely unprovoked. He said he would never put his hands on a woman. He said that the knife remained in him and that he ran out of the apartment with the knife still in his chest and blood "gushing" out and that G.E. came after him and helped him. He ended up at the Hasty Market down the street at Lakeshore Blvd. On his evidence, there was no physical fight between him and F.S. in the bedroom or outside the apartment.

[11] While he did not say so in chief, he testified in cross that C.L.R. chased him with a bottle inside the apartment while he had a knife in his chest and that F.S. threatened to stab him in the neck after she already stabbed him in the chest.

[12] He said he did not remember telling G.E. not to tell the police what had happened. He then said it was not possible that he had told her that.

[13] H.B.'s medical records were introduced into evidence and are further discussed below in the application of the law to the facts section. It is common ground that he suffered a single stab wound to the chest and was hospitalized at St. Michael's Hospital in Toronto.

K.M.

[14] He testified that he remembered essentially nothing of the evening. He said he was "blacked out" and that his memory was "just a blank". He said he was ingesting alcohol and drugs namely rum, Xanax, marijuana and cocaine. He said he thought that everyone at the party was taking the same drugs. He said that he remembered H.B. losing $100.

S.T.

[15] S.T. was the girlfriend of K.M. She was a reluctant witness at trial. She said that there was an argument and that H.B. was upset because his money was missing. Her testimony at trial was that her memory of the night was "a little blurry". She initially testified that she did not remember who had H.B.'s money. However, in her statement to police given on December 31, 2015, she told police that F.S. taunted H.B. with his hundred dollars and she was challenged with this statement at trial and she adopted it as accurate. She testified that after the argument in the house about the money, H.B. said he was going home and left. She said that H.B. and G.E. "were waiting for a cab down the street at the Hasty market".

Police Witnesses

[16] I will briefly summarize some of the evidence of the Peel Regional police officers who testified, all of which was uncontested. Officer Brian Boucci was on uniform patrol December 31, 2015 and got a radio call at 5:55 AM to attend at the Hasty Market on Lakeshore Blvd down the street from the apartment where the party was held. There was a female caller who was hysterical about blood being everywhere.

[17] Officer Scott Hutchings testified to what was ultimately marked as printed versions of social media interactions involving F.S. He also had some familiarity with the apartment where the party had been held. He testified that there were no photos of the bedroom and that the bedroom was not thought by place to be a crime scene.

[18] Officer Jeffrey Vanderwal testified that he was on duty on December 31, 2015 and for the few days thereafter. He interviewed F.S. She came in to the police station on the evening of January 4, 2016 with a lawyer. She gave a videotaped statement that night without counsel or a parent being present. At the outset of her statement she was told that the police were considering charging her for breach of probation and attempted murder. The entire videotaped statement of F.S. was introduced into evidence in the Crown's case, on consent. Towards the end of the interview, Officer Vanderwal asked F.S. if she wished to write a letter to H.B. and she said she did and that letter was also introduced into evidence at trial, on consent.

[19] Officer Michael Ambrosio testified that he took the videotaped statement of G.E. which was introduced into evidence on consent.

[20] Officer Sheldon Langlois was on duty on December 31, 2015. He received a call over the police radio at 5:54 AM. He was on the scene just after 6 AM at the Hasty Market on Lakeshore Blvd down the street from the apartment. He saw G.E. who was already with another police officer. She was extremely upset. Her initial account to him as to what had happened at H.B. was lacking in detail. She then said she was being untruthful because H.B. had asked her to lie. She said that the stabbing had happened just outside the apartment building. She was asked if F.S. had stabbed H.B. and she reluctantly said that she had. The officer then went to the apartment where the party had been held looking for F.S. He said that he saw one drop of blood which appeared fresh in the stairwell near the apartment and when he went into the apartment he saw a drop of blood on the living room floor which he thought was fresh.

[21] Officer Justin Gracey was on duty of December 31, 2015. He arrived at the scene at the apartment building at 7:18 AM. He located a knife on the east side of street on which the apartment building was located. He thought there had been a car parked over it initially. Pictures of the knife were entered into evidence but no police evidence was given as to the size of the knife.

[22] Constable Justin Morrison was on duty December 31, 2015 and he attended at the apartment which was believed to be associated with the suspected stabbing. He saw a single blood drop about five inches off the ground as he entered the building. When he entered the apartment he saw C.L.R. who was extremely intoxicated as far as the officer was concerned. He also noted blood under the sink in the bathroom. He noted some small amount of blood in the living room.

[23] Constable Stefan Arroyo was tasked with going to the scene of the apartment on December 31, 2015 to execute a search warrant. There were what he thought were drops of blood in the main living room and under the sink in the bathroom. There was a knife on the windowsill in the bedroom and knives in the sink. The knife on the windowsill was described by him as a large steak knife and he said it was similar to the knife and on the street near the apartment building. There was no blood located any bedroom.

[24] I note that while various police witnesses testified, as outlined above, to seeing what they thought were small amounts of blood in the apartment and just outside of it, there was no evidence that the substances thought to be blood were in fact blood or whose blood it was, if it was blood.

Other Evidence Tendered by the Crown

[25] As previously indicated, on consent, the Crown tendered the videotaped statements of F.S. and G.E.

[26] In her statement to police on January 4, 2016, F.S. said that H.B. accused her of stealing his money which she denied doing. He said "you bitches took my money", accusing both G.E. and F.S. initially. Later, he accused only F.S. and, in response, F.S. got mad at him. She said that the fight with H.B. started inside. It started in the bedroom where there was shoving back and forth. Then they were in the kitchen where he pushed her and punched her in the stomach. At some point inside the house he got "10 times more angry". She grabbed a knife in the kitchen for her protection and went outside. She said it was a six to seven inch steak knife. She tried to get away from him but he chased her outside. He threw her down on the sidewalk and she hit her head hard. She was extremely dizzy and felt like she was going unconscious and she got really scared; she said that G.E. was trying to pry H.B. away from F.S. and she said that G.E. saw the knife. H.B. was punching her when she was on the ground. She said that did not know him and she did not know what he was going to do. She said that she warned him that she had a knife and would use it if he did not leave her alone; that he came at her again when she was off the ground and she stabbed him once in the chest. She said she was surprised at how easily the knife went into H.B.'s body. She threw the knife on the ground afterwards.

[27] G.E. gave a videotaped statement to police at 6:50 AM, about an hour after the stabbing. She said that she herself was "pretty wasted" from drinking rum. She said that H.B. "was really wasted and causing a scene" thinking "something was stolen". She said that there was a fight inside the house between H.B. and F.S. She said that inside the house F.S. punched H.B. in the face three times and he punched or pushed her back and that the fight went outside and "it got a little more rough". She said the outside fight happened at the sidewalk. G.E. tried to break up the fight by injecting herself between H.B. and F.S. and trying to stop H.B. from pursuing F.S. G.E. said to H.B. "stop touching her that's not right". H.B. pushed G.E. out of the way and then "went at her [F.S.]" and "they started punching each other again". She estimated that the fight outside lasted five minutes or less. In this context, she said that "they would stop for a bit and they'd go at it again". She said that "they just kept on fighting and that is when she stabbed him I guess". She said that "you could not tell that he got stabbed, like he just walked away like it was okay". She said that F.S. said to "go back with her", but that she got a "bad feeling" and ran after H.B. and saw that his shirt was full of blood. He kept walking and she made him stop and she took her sweater and applied pressure to the wound and called 911 at his request.

[28] G.E. said she did not know that F.S. had a knife although when asked where she would have got a knife from, she said from "the kitchen maybe". She said that she did not see the knife at any point and simply made the assumption that F.S. stabbed H.B. outside at the end of the fight that she witnessed.

[29] G.E. also gave information in her statement about things she did not see directly. For example, she said that she had seen F.S. wave a $100 bill at H.B. inside the apartment but then later said she did not see it – it was based on something that H.B. told her as confirmed by S.T. She also said she "[knew] it was twice" referring the numbers of stabs of H.B. by F.S. but then said that was based on something that S.T. said and then corrected herself again and said it was based on something H.B. told her.

[30] She said that initially she did not want to say who did it because H.B. said to her to "call the cops just don't tell them anything".

C.L.R.

[31] The only evidence called by the defence was the evidence C.L.R. She is the mother or R.S. who was the boyfriend of F.S. She testified to being present in the apartment the night of December 30, 2015. She was aware that F.S. was there as well as H.B. and some other young people. She did not think there was any alcohol being consumed by them. She said she was in her bedroom. At some point she heard screaming and ran out and saw H.B. over F.S. C.L.R. tried to defend F.S. and went after H.B. with a bottle of vodka.

[32] She said that there had been an incident in the apartment a few days before where a boy was stabbed and there was blood in the apartment from that incident. She thought the blood in the washroom was from that incident.

[33] She acknowledged that she was "kind of out of it" due to sleeping pills and other prescription medication she was on.

[34] She gave some form of videotaped statement to police a few hours after the stabbing and she acknowledged that she was "highly out of it" and was actually telling police about the unrelated incident that had happened a few days earlier, not the incident involving F.S. and H.B. which the police were asking about.

LAW

Credibility and Reasonable Doubt

[35] This is a credibility case and in those circumstances the framework laid down by the Supreme Court of Canada in R. v W.(D.), 1991 1 S.C.R. 742 at para. 28 applies. The WD framework is as follows:

(1) First, if you believe the accused, you must acquit;

(2) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and

(3) Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

[36] In applying the foregoing framework, it is important to recognize the following further points:

(1) The burden of proving all of the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to prove anything and the burden of proof never shifts to the accused: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 9.

(2) In undertaking steps 1 and 2 of the WD framework, the Court must consider all of the evidence, not the accused's version of events in isolation: R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) at para 15.

(3) Reasonable doubt may survive a finding that a complainant is credible: R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 47 leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69. The Ontario Court of Appeal in R. v. Strong (2001), O.J. No. 1362 (C.A.) at para 5 made the further point that the evidence of a reliable complainant will not necessarily prove a case beyond a reasonable doubt:

"The question is not simply whether the complainant's evidence was reliable, but rather, when considered in the context of the totality of the evidence whether it established guilt beyond a reasonable doubt"

(4) As concerns the second step of the WD analysis, Justice Binnie for a unanimous Supreme Court has pointed out, a trier of fact may wonder if they believe none of the evidence of the accused how could such evidence raise a reasonable doubt. Justice Binnie for the Court explained this issue as follows: (i) even if an accused is disbelieved in part, parts of his or her testimony may be accepted and raise a reasonable doubt; or (ii) the trier of fact may simply conclude that they don't know whether to believe the accused's testimony or not. In this circumstance, the accused is entitled to an acquittal: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 11.

(5) Even if the accused is entirely disbelieved and the trier of fact is not left in a reasonable doubt by the evidence of the accused (or other conflicting evidence), in order for there to be a finding of guilt the trier of fact must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty.

(6) Even if the Court considers that the accused is probably guilty or likely guilty, that is not enough to satisfy the beyond a reasonable doubt standard. If the evidence in the case only takes the Court to that point, the accused is entitled to an acquittal: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

(7) I note that even if the Court believes the evidence of the accused or has a reasonable doubt about it, an acquittal does not necessary follow. For example, even if the accused's evidence is believed in this case, the Court must still determine, among other things, whether the Crown has proved beyond a reasonable doubt that the accused did not act in self-defence.

Attempted Murder

[37] To prove a charge of attempted murder, there must be proof beyond a reasonable doubt of a specific intent to kill. It is not sufficient to prove an intent to cause bodily harm that the accused person knows is likely to cause death and is reckless as to whether death ensues or not: R. v. Ancio, [1984] 1 S.C.R. 225 at pages 248-49. Accordingly, the intent required for proof of attempted murder is greater than that required for murder: R. v. Odulate, [2001] O.J. No. 4029 (Sup. Ct.) at para. 98.

[38] My review of the case law, and in particular R. v. Odulate, supra at paras. 100-01; R. v. Rajanayagum, [2001] O.J. No. 393 (Sup. Ct.) and R. v. Payne, [2013] O.J. 3412 (Sup. Ct.), leads me to conclude that the following non-exhaustive list of factors should be considered when determining whether attempted murder has been proved beyond a reasonable doubt:

(a) The relationship between the parties;

(b) The evidence or lack of evidence of premeditation or spontaneity including a consideration of how the accused person came to be armed;

(c) The nature of the weapon used;

(d) How the weapon was used including the force with which the wound was inflicted;

(e) The nature of the wound or wounds and whether it or they were to a vital part of the anatomy;

(f) The presence or absence of defensive motivation; and

(g) The persistence with which the stabbing is repeated or not.

[39] I note that in this case, the defence submits that the attempt murder has not been proved beyond a reasonable doubt as it submits that there is no evidence of any mens rea amounting to a specific intent to kill. In addition, the defence raises self-defence in response to both the attempt murder and the aggravated assault charge.

Self-Defence

[40] Where a defence of self-defence is raised, before the Court takes steps to fully consider it, the Court must first decide whether there is an air of reality to the self-defence point.

[41] When a trial judge determines whether there is an air of reality to a self-defence argument, the trial judge does not make credibility findings, weigh evidence, make findings of fact or draw factual inferences. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury or the trier of fact and not how the jury or trier of fact should ultimately decide the issue: R. v. Cinous 2002 SCC 29 at para. 54. The air of reality test is not a high burden. The Court must determine if there is some evidence upon which a reasonable instructed jury could find that self-defence applies: R. v. Elliott, [2016] O.J. No. 3227 at para. 62.

[42] If there is an air of reality to the defence of self-defence, then the Crown must disprove beyond a reasonable doubt that the defendant acted in self-defence. The Crown can do this by proving beyond a reasonable doubt that one or more of the preconditions for self-defence in s.34(1) of the Code do not apply as follows:

1. Did the accused believe on reasonable grounds that force or a threat of force was being used against him?;

2. Was the act that constitutes the offence committed for the purpose of defending or protecting the accused from the use or threat of force?; or

3. Was the act committed reasonable in the circumstances?

[43] In considering the third point above, the Court shall consider (but is not limited to) the factors set out in s.34(2) which namely (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 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 (k) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Self-Defence and WD

[44] The Ontario Court of Appeal dealt with the relationship between self-defence and the WD test in R. v. Reid (2003), 65 O.R. (3d) 723. Justice Moldaver, as he then was, for the Ontario Court of Appeal, had the following to say at para. 72:

I would suggest that in future cases, when the defence of self-defence is raised and the trial judge believes that a WD instruction is warranted, the jury should be instructed along these lines with respect to the first two principles:

If you accept the accused's evidence and on the basis of it, you believe or have reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

[45] I note as well that a defendant who acts in self-defence is not expected to judge the force used to a nicety: R. v. Elliott, supra at para. 70 citing R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont.C.A.).

[46] Finally, I note that in assessing the self-defence issue and the reasonableness of a defendant's response, it is the nature of the force used and not the consequences of the force used which bears on the question of self-defence: R. v. Kandola (1993), 80 C.C.C. (3d) 481 at 488-89 (B.C.C.A.). Accordingly, the Court does not simply look at the injuries caused and say that the response of the defendant was unreasonable. However, the Court can consider the injuries caused as some evidence of the force used: R. v. Weber (1994), 95 C.C.C. (3d) 334 at 352 (Ont. Ct. Gen. Div.).

Determination of Contested Facts: Considering Reliability, Credibility and WD

[47] I have carefully considered each witness's evidence in the context of the evidence as a whole including F.S.'s evidence. I will first set out my consideration of the evidence of the witnesses other than F.S. although where their evidence relates to something F.S. spoke about in her statement, I will make findings of fact about the evidence of these other witnesses considering the evidence of F.S. and the evidence as a whole. In the case of F.S.'s evidence, I have considered it in the context of the evidence as a whole and the WD and self-defence framework.

[48] I will start with K.M. He testified that he remembered essentially nothing of the evening. He said he was "blacked out" and that his memory was "just a blank". He said he was ingesting alcohol and drugs namely rum, Xanax, marijuana and cocaine. He said he thought that everyone at the party was taking the same drugs. That he said that he remembered H.B. losing $100, I reject his evidence. It is simply entirely unreliable given his primary evidence that everything that night was a blank to him. Nevertheless, his evidence is of some importance as it makes it clear to me that the consumption of drugs and alcohol by the others at the party may affect their recollection of events. Having said that, I recognize that each person is affected by drugs and alcohol differently.

[49] S.T. was a reluctant witness at trial. The Crown relied on her evidence primarily the one point she saw F.S. with H.B.'s $100 and that F.S. was taunting him with it. Her evidence at trial on this point came about as follows. She initially testified that she did not remember who had the money. However, in her statement to police given on December 31, 2015, she told police that F.S. did taunt H.B. with his hundred dollars. I do not fully accept S.T.'s evidence that F.S. had $100 belonging to H.B. S.T. may be right about it but I am not fully satisfied that her evidence can be relied upon for a number of reasons. First, she too was under the influence of alcohol and drugs at the time. Her testimony at trial was that her memory of the night was "a little blurry". Second, in my view, she testified to a number of important points in her evidence which were clearly wrong. She testified after the argument in the house about the money that H.B. said he was going home and left. She said that H.B. and G.E. "were waiting for a cab down the street at the Hasty Market". This evidence appears to be incorrect based on my consideration of the evidence as a whole. While I consider F.S.'s evidence further below, I note at this point that she denied having H.B.'s $100. She said she had her own money. H.B. said he saw his $100 in F.S.'s bra. For reasons which I will review below, I have concluded that much of H.B.'s evidence is unreliable. At this point, I note that I do accept that he had bought marijuana from F.S. that night for $70 to $100 although he couldn't remember if he had actually given her the money.

[50] I accept S.T.'s evidence that F.S. did taunt H.B. with some amount of money but whether it was actually H.B.'s money or not I cannot say. F.S. denied taking his money and applying the WD framework to F.S.'s evidence and considering S.T.'s evidence and H.B.'s evidence on the point, I cannot say that F.S. is being untruthful in this regard. I note that when she gave her statement to police, the police did not ask her as to whether she may have taunted H.B. with her own money.

[51] Let me be clear as well that I do not accept S.T.'s evidence as to when H.B. and G.E. left and where they went. I do note that she and K.M. left the apartment to go for a walk before the stabbing occurred. S.T.'s evidence does not reliably inform the Court as to when H.B., G.E. and F.S. left the apartment and when and how the stabbing occurred.

[52] I also note at this juncture that I find that I cannot rely on the vast majority of the evidence of C.L.R. The essence of her evidence was that she saw H.B. attacking F.S. in the apartment. That may have happened but I cannot rely on C.L.R.'s evidence to arrive at that conclusion. Her evidence at trial was challenged using her videotaped statement to police on December 31, 2015 which she accepted as accurately portraying herself that day. It is apparent to the Court that she was heavily under the influence of drugs (which may have been legal prescription drugs) and alcohol. Her evidence was too unclear and clouded by drugs and alcohol and cannot be relied upon. I do accept her evidence that there was an unrelated stabbing that happened in the same apartment a few days earlier. I also accept that she may have chased H.B. with a liquor bottle but I cannot reliable say what the context was and when it happened. In this regard, I note that H.B. also said that she came at him with a bottle although he said he had a knife in his chest at the time and there is no way that it happened as H.B. said. In my view, the chasing of H.B. with a bottle, if it happened, adds little to the analysis in this case.

[53] Let me turn to H.B.'s evidence. H.B. suffered a serious stab wound injury to his chest that night. There is no dispute that it was F.S. who inflicted the injury. At the core of H.B.'s evidence was his testimony that F.S. stabbed him in the chest while he was in one of the bedrooms in the apartment and that it was entirely unprovoked. He said that the knife remained in him and that he ran out of the apartment with the knife still in his chest and blood "gushing" out and that G.E. came after him and helped him. On his evidence, there was no physical fight between him and F.S. inside or outside the apartment. There were some accusations shouted and she just stabbed him in the chest in the bedroom. He also gave other evidence about seeing a $100 bill which he thought was his in the bra of F.S.

[54] The Crown submits that the Court should accept H.B.'s evidence and suggests that his credibility is enhanced by a prior consistent statement. There was no prior consistent statement introduced into evidence. Therefore I find no merit in this prior consistent statement submission. The Crown further submits that it does not matter whether the stabbing happened in the bedroom or outside and that the Court should just accept H.B.'s testimony as to the unprovoked nature of the attack whether inside or outside of the apartment. It my view, it matters a great deal where the stabbing occurred. If it happened outside as indicated by F.S. and G.E., and what they say is correct namely that there was a lengthy fist fight between F.S. and H.B. ending in the stabbing, then the context is very different than that suggested by H.B.

[55] I have concluded that it is absolutely clear that the stabbing of H.B. by F.S. happened just outside the apartment near the sidewalk/grassy area by the road. It did not happen inside the apartment as H.B. said it did. I base this conclusion considering the evidence of F.S. and G.E. and the evidence as a whole. I have also determined that there was clearly a fight between F.S. and H.B. inside the apartment and then outside the apartment as F.S. and G.E. said, with the outside fight lasting up to five minutes. In my view, common sense indicates that it would not be possible for H.B. to be stabbed in the chest in the bedroom (and suffer the injuries disclosed in the medical records) and then to engage in a five minute fight outside of the apartment. Further, there is an inherent improbability to H.B.'s evidence that he ran out of the apartment with a knife in his chest and that there was no fight outside at all. I note as well as that there was no significant blood found in the apartment by the police and no witness saw H.B. running out of the house with a knife in his chest. Further, there was a knife located by police close by where G.E. and F.S. said the fight happened outside of the apartment and just as F.S. said in her statement. There was some police evidence to the effect that there were some drops of blood found in the apartment and in a stairway/hallway leading to the outside. However, there was no proof that it actually was blood that was found; the amount of any blood that may have been found was small and there was no evidence as to whose blood it was. I note as well that that there was other evidence of an unrelated stabbing in the same apartment a few days earlier raising the reasonable prospect that any blood in the apartment came from that earlier stabbing.

[56] As indicated above, H.B. clearly suffered a serious injury that night. While no medical professional testified, the medical records were introduced into evidence. These records indicate that when he arrived at the hospital operating room he was in "severe hemorrhagic shock"; had suffered a "large stab" wound to his right chest"; there was a laceration to his "internal mammary artery"; and a laceration to his liver and an injury to his lung. While we have no medical professional evidence explaining these injuries, it is obvious considering the whole of the evidence that the injuries were very serious and there was significant blood loss.

[57] I consider that H.B.'s evidence as to how the stabbing occurred and the related circumstances to be unreliable. The cause of that unreliability is not entirely clear. It is my view that the injuries suffered by H.B. (including the blood loss) together with the drugs and alcohol ingested by him are the likely cause of his unreliable evidence and have caused him to inaccurately recall what occurred that night including the altercation with F.S. In my view, these circumstances have caused him to believe that events unfolded in a certain way and, for the most part, he is seriously mistaken. I do not consider that he was intentionally trying to mislead the Court. Having said that, I do consider that he was uncooperative and argumentative during his cross-examination by defence counsel. When defence counsel would use the customary "I suggest to you", H.B. would regularly respond "well I suggest to you". His view was, as he testified, that "she's in the wrong, I'm in the right". This perspective caused him to argue with defence counsel rather than simply give evidence as to what he recalled or not as the case may be. Given his injuries and his apparent near death experience, his approach to cross-examination was somewhat understandable but nevertheless unhelpful. Beyond H.B.'s evidence as to who was there that night, that he bought marijuana from F.S. for $70 to $100 and that he ingested various drugs and alcohol, that he thought F.S. had stolen $100 from him, I find his evidence to be largely unreliable. In particular, I do not accept that he was stabbed in the bedroom or under circumstances close to what he suggested; I do not accept that he saw $100 in F.S.'s bra; and I do not accept his minimization of his own drug/alcohol consumption that night. I do accept that what he told police initially about his state of mind was accurate namely that he was "really messed up, kind of in and out of consciousness" and this was not related to simply being sleepy as he suggested a trial. I also do not accept that F.S. threatened to stab him in the neck.

[58] Let me turn to F.S.'s evidence. Her statement to police on January 4, 2016 was as outlined above including that the fight with H.B. started inside, that he pushed her and punched her in the stomach; that inside the house he got "10 times more angry"; that she grabbed a knife in the kitchen for her protection and went outside; that she tried to get away from him but that he chased her outside; that he threw her down on the sidewalk and she hit her head, was extremely dizzy, she felt like she was going unconscious and she got really scared; he was punching her when she was on the ground; that G.E. was trying to pry H.B. away from F.S.; that she did not what kind of person he was and what he was going to do; that she warned him that she had a knife and would use it if he did not leave her alone; that he came at her again when she was off the ground and she stabbed him once in the chest. She said he was surprised at how easily the knife went into H.B.'s body. She said that she threw the knife on the ground afterwards.

[59] I note as well that during her police interview, F.S. told the officer that she had had a large bump on the back of her head from the fight and "that there still kind of is, but not really" and that they were scratches on her back. There is no evidence that any effort was made by police to check and see if there were still any scratches on her back or whether there was still a bump on her head. The interviewing officer did say at trial that there was a reddish mark on her jaw bone.

[60] The Crown urges the Court to find that G.E.'s evidence was reliable. I agree that her evidence met the requirements of threshold reliability and most of her evidence extended beyond threshold reliability and was actually reliable. That is not to say that everything she said amounted to the complete story of what occurred. Her evidence needs to be considered in the context of the evidence as a whole including F.S.'s evidence. G.E.'s evidence supports much of what F.S. says. She confirms that there was a fight inside the house between H.B. and F.S. and that as it went outside "it got a little more rough". G.E. also says that she tried to break up the fight by injecting herself between H.B. and F.S. and stopping H.B. from pursuing F.S. H.B. pushed G.E. out of the way and then "went at [F.S.]" and "they started punching each other again".

[61] I think it is fair to say that G.E.'s statement may be viewed as characterizing the fight as less aggressive towards F.S. than F.S.'s statement would have it and I do not accept that implication from G.E.'s evidence. For example, G.E. makes no mention of F.S. being thrown to the ground and hitting her head and she did not see a knife or know anything about it. Having said that, G.E.'s statement corroborates much of what F.S. says and does not directly undermine anything of substance that F.S. said in her statement. While G.E. saw no knife, and presumably did not hear any warning by F.S. to H.B. about it, she may simply not have heard the comment made by F.S. about the knife. F.S. said that she had gone out of the house first, then H.B. followed her and then G.E. arrived. Therefore, on F.S.'s version of events, G.E. was not there the entire time and may have missed a warning about the knife. As to throwing F.S. on the ground by H.B., G.E. was also heavily under the influence of drugs and alcohol and upset by the events and it may be that she simply forgot about it or failed to relay it to the police in her statement for whatever reason. G.E.'s statement does not say that the throwing to the ground did not happen.

[62] Moreover, while I consider that much of G.E.'s evidence is reliable, some of the things she said happened, she did not witness herself. For example, she initially said that F.S. had "whipped out the hundred dollars" in reference to what had occurred inside the house but then she later said in her statement that she did not actually see that happen. My point here is that simply because G.E. does not confirm every detail given by F.S., it does mean that what F.S. said happened was untrue. G.E.'s evidence was not infallible.

[63] Let me summarize my view of the facts: based primarily on the statements of G.E. and F.S. and considering the evidence as a whole, it is clear to me that the stabbing occurred outside of the apartment close to the sidewalk. H.B.'s recollection as to the events that evening is seriously unreliable. C.L.R's evidence is of little value. K.M.'s evidence is useful only as a barometer to demonstrate the influence that drugs and alcohol had on his memory that night and raises the potential that others at the party may have had their memory or perception of the events affected by drugs and alcohol. I accept S.T.'s evidence that she saw F.S. waving the $100 bill at H.B. but I make no finding that F.S. had actually stolen the money from H.B. He may have given her the $100 for the marijuana he purchased from her that night.

[64] I accept much of the statement of F.S. as being true particularly those parts confirmed by G.E.'s statement. As to the aspects of her statement that were not confirmed by G.E. including: (i) the warning to H.B. about the knife; (ii) the throwing of F.S. to the ground by H.B. and the hitting of her head on the sidewalk: and (iii) her statement that she felt like she was going unconscious and she got really scared and extremely dizzy; while I do not clearly accept this points as being true, I cannot say that these events did not happen and I note that they are not directly contradicted by G.E.'s statement. As concerns these aspects of F.S.'s statement, I find myself in the position referred to by Justice Binnie in R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 11, I don't know whether to believe F.S. on these points or not. In other words, considering the evidence as a whole, I can't conclude that the events did not happen the way F.S. said they did. This does not mean that F.S. is necessarily entitled to an acquittal on the charges. What it does mean is that the charges of attempted murder and aggravated assault need to be judged by F.S.'s version of events, considered in the context of the evidence as a whole.

Application of the Law to the Facts

Attempted Murder

[65] I will address the charge of attempted murder. In my view, this charge can be disposed of without fully considering the question of self-defence. On a consideration of the evidence as a whole, I consider that the Crown has not proved beyond a reasonable doubt that F.S. intended to murder H.B. when she stabbed him in the chest.

[66] I will briefly review the factors suggested by the case law. There was no historical relationship between F.S. and H.B. which might give rise to an animus by her towards him. It is true that she might have been angry at him that night because he had accused her of theft but there is no clear evidence that she wanted to kill him. She was telling him to leave her alone and warning him that she had a knife. The injury she inflicted on him was spontaneous and was a single stab wound to the chest and was not repeated. Clearly, the weapon used and the single stab wound inflicted to his chest could have killed him and provides some support for the attempted murder charge. However, there is nothing in evidence to seriously undermine the overall nature of F.S.'s statement to police that she acted defensively to protect herself (putting aside for the moment as to whether more she acted in self-defence within the meaning of the Code), and that she did not intend to kill H.B. She was asked if she acted out of instinct as if a bear was attacking her and she said "I didn't, I didn't think about it…like right after I did, I dunno I threw up a lot". Elsewhere during the interview, the police officer said to her "you don't seem like a newly minted 17-year-old girl who is going out to intentionally murder somebody. Are you?" To this question she quietly nodded no. She was also asked "Did you mean to hurt him like that?" to which she nodded no.

[67] I accept F.S.'s statement that she did not intend to cause H.B. the extent of the injury that she did or to "hurt him like that". It must necessarily follow that she had no intention to kill H.B. Beyond the single stab wound to the chest which could support an attempted murder charge, in my view there is not sufficient evidence on this record to establish an intention to kill beyond a reasonable doubt and there will be an acquittal on the attempted murder charge.

Aggravated Assault

[68] It is my view that the primary issue in this case is whether the Crown has proved beyond a reasonable doubt that F.S. did not act in self-defence when she stabbed H.B. There is no dispute that if self-defence is unavailable, the aggravated assault charge is made out.

[69] The Crown submits that there is no air of reality to the self-defence point raised and that even if there is, the Crown submits that it has established beyond a reasonable doubt that none of the preconditions in s. 34 (1) (a) to (c) apply. To succeed, the Crown need only prove beyond a reasonable doubt that one or more of the pre-conditions in s.34(1) (a) to (c) do not apply.

[70] In my view, there is an air of reality to the defence of self-defence. The air of reality test is a low burden and involves no findings of credibility. For the reasons outlined above, I have concluded on the facts that F.S.'s version of events is the factual framework that should be considered for the charges in this case. Accordingly, this factual framework applies to the air of reality test and to the question of whether the Crown has proved beyond a reasonable doubt that self-defence does not apply.

[71] In my view, a reasonably instructed jury could find that self-defence applies in this case. In particular, on F.S.'s versions of events, a 5'10" man is attacking her and she is fighting back. She is 5'2" or 5'3" and 130 to 140 pounds. We do not have the weight of H.B., but the court has seen pictures of him at about the time of the stabbing and the Court is of the view that while he is slim he appears to be a typical athletic looking 18-year-old man and that he is stronger than her as demonstrated by the fact that he is able to throw her to the ground. At some point, she warns him that she has a knife in her hand and will use it unless he backs off. G.E. tries to stop the fight and in particular tries to stop H.B. but he pushes G.E. out of the way and throws F.S. to the sidewalk. She hits her head and is extremely dizzy and feels that she is starting to go unconscious and is really scared. He punches her while she is on the ground. She gets up and he comes at her again and she stabs him once in this context.

[72] Moreover, on these same facts, it is also clear to me that the Crown has not established beyond a reasonable doubt that s. 34(1) (a) and (b) do not apply. In particular, the Crown has not established that F.S. did not think that force was being used against her. Clearly, force was being used against her and she knew this. Further, the Crown has not established that F.S. was not acting to defend herself. On her evidence and these facts, she was.

[73] In my view, the primary question on self-defence is whether the Crown has established beyond a reasonable doubt that the force used by F.S. was not reasonable or was excessive. Many of the points mentioned above in considering the air of reality test and s.34(1) (a) and (b) also apply to a consideration of s.34(1) (c). The non-exhaustive list factors in s.34(2) must be considered to answer this question and I have done so as set out above and as further set out below. For the reasons herein, I have ultimately concluded that the Crown has not proved beyond a reasonable doubt that the force used by F.S. was unreasonable or was excessive.

[74] In H.B., F.S. was facing a young man who was taller than her by 7 or 8 inches (see the medical records in this regard). Despite H.B.'s evidence that he would never hit a woman, he clearly did hit F.S. repeatedly and she hit him back. As indicated above, H.B. was a typical 18-year-old young man. In my view, he was stronger than F.S. and he used this strength against F.S. I base this observation on the fact that he was able to throw F.S. to the ground (and F.S. hit her head) and punched her while she was on the ground. He was determined to pursue F.S. in a physical fight and seemed to be obsessed with thinking that she had stolen $100 from him (which she may have done but it has not been proven in my view).

[75] It may be that F.S. started the fight by taking his $100 and she may have punched him first inside the apartment. Nevertheless, the fact remains that by the time they were outside the house, H.B. was not interested in stopping. At that time, G.E. said to H.B. "stop touching her that's not right" and she inserted herself and H.B. told her to move and that he was going to count to three and if she did not move, he would move her. G.E. was focused on stopping H.B., not F.S which suggests (with other facts) that H.B. was dominating F.S. in the fight. H.B. pushed G.E. out of the way and continued to go at F.S. physically throwing her to the ground and she hit her head. He punched her while she was on the ground. At this stage of the fight, H.B. was clearly the aggressor.

[76] I also consider that while it is true that a knife is a lethal weapon, common sense tells me that it is obvious as well that fists to head and having your head hit hard on the sidewalk pavement can also be lethal actions. Accordingly, the mere fact that F.S. introduced a knife into a fist fight does not mean that self-defence is unavailable or that she acted unreasonably.

[77] On F.S.'s version of events, H.B. threw her to the ground and she hit her head hard on the sidewalk and thought she was losing consciousness and she was really scared. She did not know him or what he was capable of doing and this, reasonably in my view, also caused her to fear him. She warned him that she had a knife and would use it if he did not back off. When he came at her again, she used it once and not more and then immediately backed off and did not pursue him. In my view, on these facts, F.S used the knife in the face of a continuing imminent and significant threat of force from H.B. Afterwards, she threw the knife down on the ground.

[78] I recognize that F.S. said in her letter of apology that there were "a million ways I could have gone around things" and that she let "fear and anger" get the best of her. This might suggest that she could have retreated or that she acted out of anger rather than fear. Notwithstanding these and other statements, I am not satisfied that retreat from H.B. was feasible. H.B. appeared to me to be determined to continue with his assault on F.S. As contextual point, I note that G.E. said that H.B. "was really wasted and causing a scene", referring to what happened inside the house. It is clear to me that he was very upset with F.S. about the money he thought she stole from him and he was not about to walk away. It was F.S. who took off out of the house and H.B. came after her. As the fight ensued outside, as G.E. explained, "they would stop for a bit and they'd go at it again". My point here is that H.B. was not walking away. By the time they got outside, as indicated above, he was the pursuer and the aggressor who was not going to stop even if F.S. tried to walk away.

[79] As to the statement in her letter of apology that she acted out of "fear and anger", the fact that she was motivated by fear and anger does not foreclose self-defence. I have considered this point in her letter and the letter as a whole and there is nothing in it to suggest that self-defence is unavailable. A person may well be both angry and in fear in the context of a fight in which they are being accused of theft and physically assaulted but that does not mean that the Crown has proved the unavailability of self-defence beyond a reasonable doubt.

[80] F.S. said some things on social media afterwards, some of which were responses to the comments of others, which could be viewed as suggesting that she did not act in self-defence. For example, she said "oh well I'll be out in a few years". Having said that, she also made comments on social media that she acted in self-defence which is consistent with her position at trial. In my view, the social media comments are ambiguous. They do not foreclose the availability of self-defence. Put fairly, she did know legally where she stood and she said some things on social media that were the poorly thought out comments and responses of a 17 year old uncertain of the legality or not of her actions. Given the complexity of the law of self-defence, this is not surprising.

[81] The Crown submits that the use of knife in the circumstances was more force than was necessary. In other words, the Crown submits that the force used was disproportionate to threat that F.S. faced. The Crown points to R. v. Martin, 2010 ONCA 256, [2010] O.J. No. 1393 wherein the Court of Appeal on the facts of that case found that the use of a 12 inch bread knife was more force than was necessary. However, every case turns on its own facts. In R. v. Martin there was an argument and a shoving match earlier in the evening. It appears that the complainant then left and came back. The defendant then armed himself by taking the 12 inch knife and going outside to meet the complainant and the stabbing ensued. The trial judge found that the charge of attempted murder was made out and that the evidence supported a finding that the defendant intended to cause death.

[82] I have concluded that the Crown has not met its onus to establish that F.S. did not act in self-defence. As set out above, I have already addressed s. 34(1) (a) and (b) and I have reviewed the factors relevant to s. 34(1) (c). To summarize as concerns s.34(1) (c), it is my view that the Crown has not established beyond a reasonable doubt that F.S. did not act reasonably in the circumstances. The facts here are different than in Martin and are set out in more detail above. Here, F.S. arms herself with the knife mid-fight after H.B. gets "ten times more angry". He was significantly taller than her and stronger. She takes off outside and he pursues her. She does not use the knife right away. The only evidence of the size of the knife in this case comes from F.S. who says it was six to seven inches. It was clearly capable of inflicting a deadly wound but it was not quite the same as the 12 inch knife in Martin although I must say that I put limited weight on this distinction. F.S. warns H.B. that she has the knife and tells him to back off. G.E. is physically trying to get him to back off but he pushes G.E. out of the way and continues in his fight with F.S. He throws F.S. to the ground hard and she hits her head hard. He hits her while she is on the ground. She is really scared and she fears she is going to go unconscious. She gets off the ground and he comes at her again. She stabs him in this context.

[83] As the cases indicate, F.S. did not have to judge her response to a nicety (see Baxter, supra).

[84] I do have concerns about the fact that F.S. would introduce a knife to a fist fight and that F.S. may have acted excessively or unreasonably in her response to H.B.'s aggression towards her but this has not been established beyond a reasonable doubt.

[85] The onus is on the Crown and, for the reasons set out above, I am not satisfied that that it has been proved beyond a reasonable doubt that F.S. did not act in self-defence.

Summary

[86] Let me summarize my views of this case. H.B. suffered a serious injury at the hands of F.S. Apparently due to his injuries and his ingestion of drugs and alcohol, his memory of the events is largely unreliable and is of limited assistance to Crown. The only witness to the event, other than F.S., was G.E. and she died 10 days later and was unable to give testimony beyond her videotaped statement that I admitted, on consent, on the basis that it met the principled exception to the hearsay rule requiring both necessity and threshold reliability.

[87] F.S.'s statement to police four days after the fact is a version of events which the Court accepts as true in many respects. Much of it is supported by the evidence of G.E. To the extent that there are aspects of F.S.'s statement that the Court does not clearly believe, the Court cannot say that the events did not occur as F.S. says they did. Accordingly, I have judged the question of attempted murder and aggravated assault against the version of events put forward by F.S., considered in the context of the evidence as a whole.

[88] As concerns the attempted murder charge, the Crown has not proved the required mens rea, apart from the question of self-defence.

[89] As to the aggravated assault charge, at trial F.S. submitted, through her counsel, that she acted in self-defence. F.S. caused H.B. to suffer a serious injury when she stabbed him. Although there was no medical professional who testified at trial, it would appear that he came close to death.

[90] For the reasons outlined above, I have found that there is an air of reality to the defence of self-defence and I am not satisfied that the Crown has proved beyond a reasonable doubt that F.S. did not act in self-defence.

[91] In the result, there will be an acquittal on the attempted murder, aggravated assault and breach of probation charges.

Released: January 10, 2017

Justice Paul F. Monahan