DATE: 20031105

DOCKET: C39093

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. MAX VILLON-LAVERDE (Appellant)

BEFORE: DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL: Michael MacDonald for the appellant

Shelley Hallett for the respondent

HEARD: October 22, 2003

ORALLY

RELEASED: October 22, 2003

On appeal from the convictions entered by Justice Frank R. Caputo of the Superior Court of Justice, sitting with a jury, dated December 20, 2001.

E N D O R S E M E N T

[1] The appellant was convicted of aggravated assault and assault with a weapon. He appeals those convictions.

[2] The complainant testified that he was attacked and stabbed by the appellant while taking a shower. The complainant and the appellant had argued earlier that evening. The complainant suffered significant injuries and was found lying on the shower room floor. The appellant who was arrested shortly after the offence was partially clothed. He had no apparent injuries except for a small nick on his ear, of no apparent significance. He did not complain of any injuries when questioned by the police. The appellant did not testify and did not call any defence.

[3] The trial judge refused to instruct the jury on any of the self-defence provisions. We see no error in this ruling. It was common ground by the end of the trial that the appellant had stabbed the complainant. Identity was not an issue. On the complainant’s evidence, he was the victim of an unprovoked attack from behind. There were, however, significant difficulties with the complainant’s credibility. Counsel for the appellant argues that if the complainant’s evidence as to how he came to be stabbed was rejected, the resulting “absence of evidence” necessitated an instruction on the defence of self-defence. We cannot agree. The trial judge may instruct a jury on the defence of self-defence, only where there is evidence upon which a reasonable jury, properly instructed, could acquit on the basis of that evidence: R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 at 160 (SCC). The accused bears the evidential onus of pointing to evidence on the record which puts the defence of self-defence into play. The rejection of evidence and/or the absence of evidence standing alone cannot provide the necessary evidentiary basis for the defence.

[4] On the evidence adduced in this case, self-defence could not be put to the jury unless there was some basis in the evidence upon which a jury, acting reasonably, could conclude that the complainant had struck or at least threatened the appellant before the appellant stabbed him. There is no such evidence. Rejection of the complainant’s evidence that he was attacked from behind by the appellant cannot be transformed into evidence that the complainant struck or threatened the appellant.

[5] This case is distinguishable from R. v. Cameron (1995), 1995 ONCA 1283, 96 C.C.C. (3d) 346 (Ont. C.A.). In Cameron, there was evidence, apart from the evidence of the deceased and the accused, that the two had engaged in a fight in which both were armed with a knife. We read Cameron as standing for the proposition that self-defence as defined in the various sections of the Criminal Code is not necessarily precluded where the jury cannot decide who was the aggressor in a fight. In our view, Cameron had no application to this case and does not support the submission that the absence of evidence can justify leaving self-defence with the jury.

[6] Counsel’s second argument turns on evidence given by the complainant at the preliminary inquiry. The complainant did not adopt this evidence at trial. Counsel contends that the trial judge should have admitted the evidence given at the preliminary inquiry on the principled approach to the admission of hearsay evidence. This argument was not raised at trial and the trial judge cannot be criticized for not pursuing this avenue of admissibility on his own initiative. In any event, we are satisfied that the evidence would not have made any difference in the end result or it would not have justified leaving self-defence to the jury.

[7] We are satisfied that on this evidence, convictions for both assault with a weapon and aggravated assault offend the rule against multiple convictions. We stay the conviction on the charge of assault with a weapon and affirm the conviction on aggravated assault: see R. v. Basilio (2003), 2003 ONCA 15531, 175 C.C.C. (3d) 440.

[8] To the extent described above, the appeal is allowed. Otherwise, the appeal is dismissed and the conviction on aggravated assault is affirmed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”