COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kraljevic, 2016 ONCA 860

DATE: 20161116

DOCKET: C60468

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruno Kraljevic and Branka Kraljevic

Appellant

Counsel:

Frank Addario and Andrew Burgess, for the appellant

Frank Au, for the respondent

Heard: November 1, 2016

On appeal from the conviction entered by Justice Matthew C. Webber of the Ontario Court of Justice on March 26, 2015.

By the Court:

[1] The appellant, Branka Kraljevic, was convicted of aggravated assault. There was a scuffle on the driveway at the appellant’s home in Ottawa. The participants were her husband Bruno and three male members of the neighbouring Paquette family – father Claude and adult sons Christian and Nicholas.

[2] The Paquettes instigated the fight over an objection to the noise caused by the Kraljevics’ leaf blower machine. The behaviour of the Paquettes could only be described as loutish. After a heated verbal argument, a physical altercation ensued. There was a dispute at trial about who threw the first punch.

[3] Several facts were undisputed. The fight took place on the Kraljevic driveway. The Paquettes were trespassers there. At some point, Claude punched Bruno in the face.

[4] As the fight continued, Bruno, Claude and Christian were prostrate on the driveway. Either or both Claude and Christian were pinning Bruno to the driveway surface. The appellant testified that Bruno called to her for assistance, telling her to get a knife.

[5] The appellant ran into the house and grabbed two knives, one of which was a two-pronged kitchen knife. She came back outdoors, ran down the driveway, and stabbed Claude with the two-pronged knife, causing two breaks in his skin. The wound to his left flank area required three stitches to close.

[6] The evidence about the few seconds before the stabbing and the actual stabbing was conflicting.

[7] The appellant testified that as she approached the melee and immediately prior to the stabbing, Claude was just getting up off Bruno. She also said that Claude was coming towards her just before she stabbed him.

[8] The trial judge rejected the appellant’s testimony on this issue. He said that the appellant’s description of the stabbing scenario was “at odds with the evidence of the preponderance of witnesses in this case who described Claude Paquette standing at the front of the driveway not engaged with Bruno Kraljevic immediately prior to the moment of the stab wound.” In particular, the trial judge accepted and relied on the testimony of Safina Khan, Christian’s wife, to this effect.

[9] Against the backdrop of these factual findings, the trial judge turned to the appellant’s claim of self-defence under the current s. 34(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[10] The trial judge had no hesitation concluding that the appellant “was at all times subjectively of the belief that her actions were motivated to defend herself or her husband.”

[11] However, the trial judge could not find that the appellant’s stabbing of Claude was reasonable in the circumstances. He said: “I believe Claude was applying no force, and thus was an improper target of any defensive reaction engaged in by Branka.”

[12] The trial judge convicted the appellant of aggravated assault and assault with a weapon. He stayed the latter conviction on the basis of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[13] The appellant appeals her conviction on the basis that the trial judge erred in his application of the law of self-defence. She advances three related, indeed overlapping, grounds of appeal.

[14] First, the appellant submits that the trial judge impermissibly weighed the appellant’s response to a nicety contrary to R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.). The appellant says that the trial judge paid insufficient attention to the important facts that Claude had punched Bruno in the face and that Claude was involved in a chaotic assault and was in the vicinity of Bruno when he was stabbed.

[15] We do not accept this submission. The trial judge was well aware of Baxter; he discussed its principles with counsel during submissions and referred to it in his reasons for judgment. He carefully reviewed the evidence. He clearly recognized that self-defence was a real possibility as the events unfolded, saying, at p. 46:

Let’s be clear. If she had come out of the house, armed with a knife at the request of her husband, and I found as a fact that Claude Paquette was, in fact, still perched on Bruno, and was striking him – if under those circumstances, Branka Kraljevic had used a knife to inflict a stab wound, we could be in a very different situation.

[16] However, the trial judge’s crucial factual findings led him to conclude that at the moment of stabbing, Claude was not fighting Bruno; nor was he near enough to Bruno to justify the appellant in stabbing him. The trial judge’s reasoning was, in our view, fair and balanced.

[17] Second, the appellant submits that the trial judge failed to consider her mistake of fact, namely, that she thought that Claude was on top of her husband and got off him to come towards her.

[18] We are not persuaded by this submission. What the appellant labels ‘mistake of fact’ is in fact two diametrically opposed versions of the fight as the appellant approached with the knife. There was no suggestion at trial that the appellant was mistaken, let alone reasonably so. As the trial judge explained at p. 36 of his reasons for judgment, this is simply not one of those cases where the competing versions of events could both be reasonable.

[19] Third, the appellant asserts that the trial judge erroneously considered reasonableness in the criminal negligence sense of the word rather than how it has been interpreted in self-defence cases.

[20] We disagree. The trial judge properly considered the appellant’s circumstances as she approached the confrontation and the proportionality of her response, all in the context of the wording of s. 34 of the Criminal Code.

[21] The preceding reasons dispose of the appeal. However, before stating the formal disposition we offer a final comment.

[22] In his sentencing reasons, the trial judge said this about the appellant, who is employed by the Canada Border Services Agency, and had no prior criminal record:

I’ve read your employment history, and I’ve read about all the good work you’ve done over the years. I do hope, given that we have registered a conviction against you, that this record will not frustrate or complicate your employment. I noticed that your place of employment may be at a location that might have security prerequisites. It would be a shame indeed if it did, and everything I’ve read about you and know about you at this time, would lead me to indicate that it surely would be a shame and an injustice if this finding of guilt were to have that kind of effect on you. So I hope that doesn’t happen.

We agree with these sentiments.

[23] The appeal is dismissed.

Released: “JCM” NOV 16 2016

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”