R. v. Labonte and Breton

Court File No.: Sudbury 13-947 Date: 2013-09-13 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ashley Labonte and Jean-Claude Breton

Before: Justice A.L. Guay

Heard on: May 27, 28, 29, 31 and July 2, 10, 31, 2013

Reasons for Judgment released: September 13, 2013

Counsel:

• R. Bald for the Crown
• J. Gauthier for the accused A. Labonte
• S. Baker for the accused J-C. Breton

GUAY J.:

1: THE ACCUSED AND THEIR CHARGES

[1] Ashley Labonte is an unemployed, 26-year-old woman residing in the City of Greater Sudbury. Jean-Claude Breton, her co-accused, is a 30-year-old man, also unemployed and residing in the City of Greater Sudbury. At the time of the events before this court, the accused were in a relationship. While not much is known about Jean-Claude Breton, Ashley Labonte admitted at trial to being involved in the drug trafficking trade for the past two to three years. Her main source of income presently appears to be the social assistance payments she receives from the government. While Ashley Labonte has a minor and dated criminal record, Jean-Claude Breton has a criminal record dating back a number of years.

[2] The accused both face a number of charges. Most of these charges are related to an incident which took place on the evening of December 4, 2012, outside the Nickel City Hotel in the City of Greater Sudbury. The accused are jointly charged with having committed a robbery there, the subject of which was John Courtemanche. At that time, John Courtemanche was an unemployed carpenter, also residing in the City of Greater Sudbury. From the same events as those arising out of the alleged robbery, Ashley Labonte is also charged as an accessory to the commission of that robbery. Jean-Claude Breton, in turn, is charged with committing an aggravated assault on John Courtemanche as well as with possession of a weapon (a knife) for purposes dangerous to the public peace. The accused face other charges for offences against the administration of justice.

[3] Both accused plead not guilty to the charges arising out of the events of December 4, 2012. Ashley Labonte, however, has conceded that she is guilty of possession of stolen property (in this case, stolen cheques) found in her purse on the occasion of her arrest on the evening of December 4, 2012. On his part, Jean-Claude Breton acknowledges that if he is found guilty of any of the charges arising out of the events of December 4, 2012, he is thereby guilty of breaching his three existing probation orders.

2: THE EVIDENCE

1. The Drug Deal: The Key Witnesses

[4] Many witnesses were called by the Crown to testify in this matter, including John Courtemanche, the complainant, the paramedics who attended upon him after he was stabbed, as well as a number of police officers who were involved in both apprehending the accused and subsequently investigating this matter. On their part, both of the accused testified. Ashley Labonte called one witness, Natalie Ross, her friend and the driver of the vehicle involved in the alleged robbery.

[5] The central witnesses in this case were the complainant and the two accused. The complainant and the two accused gave diametrically opposed versions of what happened on the evening of December 4, 2012.

2. The Drug Deal: The Arrangement

[6] Ashley Labonte testified about how, on the evening of December 4, 2012, she met up with John Courtemanche for the purpose of purchasing fentanyl patches from him. Fentanyl is a commercially produced narcotic normally obtained by way of a medical prescription and is used to relieve chronic pain. It is reputedly 100 times more powerful than morphine.

[7] Ashley Labonte's version of what happened was contrary to what John Courtemanche said had happened. He told the court that earlier that day he and Ashley Labonte had agreed to meet so that he could purchase a half gram of crack cocaine from her. John Courtemanche stated that he was unemployed at the time and that he had hoped to purchase the crack cocaine from Ashley Labonte with his remaining $50. While there are differing versions as to who called whom, it is clear that the parties knew each other from their past drug deals and that they agreed to meet each other at the Nickel City Hotel located at the corner of Alder and Hazel Streets in Sudbury at about 8:30 pm on the evening of December 4, 2012.

[8] Ashley Labonte testified that the agreement she made with John Courtemanche was that she would purchase three fentanyl patches from him for the sum of $300. This price was established by taking into consideration the $200 John Courtemanche owed to her from a previous drug transaction and the additional sum of $300.

[9] It is notable that no crack cocaine was ever located in the vehicle from which the transaction occurred or on the persons of the complainant or either of the accused following their arrest by the police. What was discovered, however, by the police in the clothing of John Courtemanche and Jean-Claude Breton immediately following the events of December 4 were fentanyl patches, two being located in the clothing of John Courtemanche and two in the clothing of Jean-Claude Breton.

[10] Andrew Wheeler, a witness for the Crown, recounted how, after arriving at his residence following the events of December 4, Jean-Claude Breton had asked him to go and check with the driver of the vehicle in which he and Ashley Labonte had been passengers to see if she had found three fentanyl patches which he had lost or left in her vehicle. In the end, Andrew Wheeler tried to do this but he was unable to do so. This and the fact that fentanyl patches were found in the clothing of both John Courtemanche and Jean-Claude Breton is evidence which supports the accuseds' allegations that the subject of the drug transaction on December 4 was the purchase of fentanyl patches and not the purchase of crack cocaine. It is unlikely that both accused would have come all the way from the outskirts of the City of Greater Sudbury, geographically a very large area, to sell John Courtemanche just $50 worth of crack cocaine.

[11] Recall that Jean-Claude Breton testified he had smoked a fentanyl patch or a strip of one at Andrew Wheeler's residence before the police arrived on the evening of December 4 because he was in pain from the injury incurred during the course of the drug transaction. Recall too Andrew Wheeler's evidence that he had seen Jean-Claude Breton in possession of seven to nine fentanyl patches after the latter arrived at his residence that same evening.

[12] Notwithstanding the contradictory evidence on the matter of what the object of the drug transaction was, the evidence clearly establishes that John Courtemanche was made extremely upset by what transpired between himself and Ashley Labonte that evening in light of what he believed they had earlier agreed and what in fact unfolded. John Courtemanche testified that when he leaned over into the vehicle to exchange his money for drugs, Ashley Labonte grabbed his money but did not give him any drugs in return. He stated that he tried to grab the money back from her, but that he was unsuccessful in doing so. He said that he then heard someone say, "Go." At that moment, he testified, he dove with half his body into the vehicle in order to engage the parking brake to prevent the vehicle from being driven away.

3. The Drug Deal: The Sequel

[13] The evidence about what happened next with respect to the movement of the vehicle at the time the drug transaction took place is crucial. Natalie Ross, Ashley Labonte's friend and the driver of the vehicle, stated that she made three attempts to put her car into Drive when matters started to get out of hand. She testified that at one point Ashley yelled "What the hell!" and that John Courtemanche tried to grab Ashley. She also said that Ashley had her hands up. There was, Natalie Ross explained, a vehicle directly in front of hers, so she could not move her vehicle forward. She said that she put her vehicle into Reverse but that John Courtemanche was able to put it into Park and that the second time he came into the vehicle, John Courtemanche tried again to prevent her from leaving by engaging the vehicle's parking brake. She testified that she had tried to drive her vehicle away in response to Jean-Claude Breton's command to "Drive!" While not using the same terminology as that used by John Courtemanche in his evidence, the intent was clearly that she was to get her car and its occupants out of there fast.

[14] Samantha Jean, a patron at the Nickel City Hotel that evening, testified that she noticed the Ross vehicle, yellow Neon, arrive at the scene of the drug transaction and park next to the hotel, slightly off Hazel Street. A short time later, Samantha Jean stated, the car revved up, "first going forward but then stopping and reversing a bit." She recalled how the vehicle moved and stopped again and she heard a parking brake being engaged. Importantly, she also heard a male person (because of what was said, it is reasonable to conclude that this was John Courtemanche), yell, "Why are you guys being that way?" Note that this statement was not very different from the statement reported by Crown witness Alain Rheaume who was located across the street from where the events were taking place. Money, Samantha Jean recalled, fell to the ground when the guy, (John Courtemanche) fell out of the vehicle. Someone, she said, then came from across the street and picked it up. While Samantha Jean saw money fall to the ground as John Courtemanche fell from the vehicle, she was unable see how much money there was.

[15] In his testimony, John Courtemanche testified that when he heard the word "Go", he dove into the vehicle "feeling" that he was in the process of being ripped off. He stated that he did not initially know who had given the command to "Go", but that he quickly dove into the car and "jammed" it into Park, the gear shift being located on the floor of the vehicle between the two front bucket seats. He said he then felt someone "punch" him four times in the back on his left side and that after exiting the car and diving back into it, he saw the person he later identified as Jean-Claude Breton in the back seat. He also stated that he dove back into the car to get his money and that as he exited the car for the second time, he grabbed a few items. He noted also that his back felt "sticky". The evidence made it absolutely clear that it was not punches which John Courtemanche suffered to his back but rather a number of serious knife wounds. It is highly probable that there was enough adrenaline coursing through his body at the time to prevent him from immediately reacting to what was happening to himself, particularly the stab wound which caused him to lose his left kidney.

4. The Drug Deal: The Defendants' Evidence

[16] In their evidence, both accused alleged that John Courtemanche had unexpectedly and without any apparent reason attacked Ashley Labonte as the drug transaction was unfolding. They testified that in doing so, he used a knife which he was carrying concealed on his person. That knife, a photo of which was filed in evidence (see Exhibits 5a and 5b), has a four inch blade and can be quickly opened by flicking it. Neither Ashley Labonte nor Jean-Claude Breton were able to offer any reason why John Courtemanche would have launched an unprovoked knife attack on an unarmed female sitting next to him in the passenger seat of the vehicle in which their drug transaction was taking place. If this version of events occurred as the accused alleged, one would have expected the complainant to easily and quickly inflict a number of deadly wounds on Ashley Labonte before anyone, including her boyfriend sitting in the rear of the vehicle, could act to protect her. The evidence was clear that the only wound Ashley Labonte received from the knife which was used to stab John Courtemanche several times was the one to her right hand. While very painful, this wound was hardly life-threatening. The fact that Ashley Labonte received only a secondary wound on that occasion is hardly consistent with her and Jean-Claude Breton's versions about what happened on the evening of December 4, 2012. Given too that the wound inflicted on Ashley Labonte was to her right hand, the hand closest to the front side passenger door and given that John Courtemanche had twice dived into the vehicle with one half of his body, it is difficult to imagine how he could have inflicted the wound to Ashley Labonte without going into a contortion to do so.

[17] The Crown established that the drug transaction on December 4 took place in less than one minute and, specifically, in about 37 seconds. Given how the transaction unfolded and the evidence with respect to the number of times Natalie Ross, the driver of the vehicle, attempted to drive her vehicle away from the scene and was prevented from doing so by John Courtemanche, the allegation that John Courtemanche attacked Ashley Labonte with a knife simply makes no sense whatsoever. No evidence was presented as to what moment in the process of trying to keep the vehicle from leaving John Courtemanche retrieved the knife from his clothing. No one saw him pull out a knife as he came up to the vehicle originally and when he first dove into it. While he was clearly the party to the transaction who became upset by what he quickly came to believe was happening, there was no evidence indicating that he was angry at Ashley Labonte until the transaction took, from his point of view, an unexpected and negative turn. No one observed him in possession of a knife when he dove back in to the vehicle the second time either. Once he realized or came to suspect that he was being ripped off, his main concern was evidently to stop the parties and their vehicle from leaving the scene. That is where his focus was, not in attacking Ashley Labonte with a knife.

[18] Jean-Claude Breton testified that after John Courtemanche entered the vehicle and attacked Ashley Labonte with a knife, he was able, from the rear seat of the vehicle, to wrestle the knife from John Courtemanche and use it to then stab John Courtemanche multiple times in the back, left forearm and head. In explaining how he did this, Jean-Claude Breton demonstrated to the court a lateral, lunging action with his right arm. He emphatically stated that his intention was not to stab John Courtemanche but only to force him out of the vehicle. This would have been, then, when he no longer had a knife. Jean-Claude Breton also indicated that he had managed to get hold of the knife by grabbing it, not by its handle, which John Courtemanche had in his hand, but by the "bottom". By this, he must have meant the blade of the knife. There was, however, no evidence whatever that Jean-Claude Breton suffered any cuts to either of his hands as a result of this action (see a photograph of his hands filed as Exhibit 24). Interestingly, the only wound he suffered in this event was a hard blow that caused swelling to his face. This must have been the injury he was referring to when he stated that he had smoked a strip from a fentanyl patch prior to the arrival of the police at the Wheeler residence after the drug transaction had unravelled.

[19] Recall that Ashley Labonte described the injury to her right hand as a puncture wound one inch in diameter by two inches in depth. If we accept that the only person using a knife on the occasion in question was Jean-Claude Breton, then it is reasonable to conclude that this injury was inflicted by Jean-Claude Breton on his girlfriend as he attacked John Courtemanche. If we consider Natalie Ross' testimony that Ashley Labonte had her hands up as John Courtemanche dove into the car over and across her, it becomes apparent that the wound to Ashley Labonte's right hand was inflicted by a stabbing motion from above and not from the lateral thrusting of the knife described by Jean-Claude Breton in his testimony.

3: THE DRUG HOUSE

[20] As this deplorable event unfolded, it was being observed from further up on Hazel Street by off-duty UCCM Constable Michael Pitawanakwat. Constable Pitawanakwat originally thought that he might have witnessed an accident, so when the vehicle left the scene, he followed it in order to gather information. He was subsequently able to return to the scene of the stabbing and tell the investigating officers where the accused had gone: a nearby residence located at 345 Douglas Street in the City of Greater Sudbury. One of the two units in this building was inhabited by Andrew Wheeler and his spouse and child. At that time, Andrew Wheeler was an avowed drug dealer. He said that he trafficked in drugs to support his family. The Wheeler residence was not unknown to Ashley Labonte. She and Jean-Claude Breton had been there the evening before the events of December 4. Not knowing what to do after the drug transaction went awry and having incurred a painful wound in the course of it, Ashley Labonte and her boyfriend turned to it as the only safe place they knew in the vicinity of the Nickel City Hotel for assistance.

[21] Within a short time after the arrival of the accused at 345 Douglas Street, and in large measure because of the astuteness of Constable Pitawanakwat, the police were able to zero in on the accused. Apart from the accused, they discovered a number of people there either consuming or procuring drugs. Those present included Andrew Wheeler, his wife and son, both of the accused and a number of persons known to the police. It was here that the accused were charged with the present offences and taken into custody.

[22] While the accused held out during the course of the trial that identity was in issue, the evidence makes it absolutely clear that the accused were the two persons who were involved in the failed drug transaction which took place at the Nickel City Hotel around 8:30 pm on the evening of December 4, 2012. As a result of the information provided by witnesses, including Constable Pitawankwat, the bloodstained vehicle belonging to and driven by Natalie Ross was soon located at the nearby intersection of Lorne and Regent Streets. The inside door panel of that vehicle was found to contain not only Ashley Labonte's blood but also that of John Courtemanche.

4: THE DNA EVIDENCE

[23] While the Crown introduced considerable DNA evidence in this matter, not much of it was pertinent in light of the mass of other non-forensic evidence presented to the court. Of significance, however, was the forensic evidence presented with respect to the knife used to stab the complainant, John Courtemanche.

[24] On December 5, 2012, the day after the incident, the knife used to inflict the stab wounds on John Courtemanche was located by two Hydro employees in a parking lot where they were working off Regent Street. This parking lot was in an area not far from where the drug transaction took place. The police sent this knife to the Center of Forensic Sciences, Northern Regional Laboratory, in Sault Ste. Marie, Ontario, for analysis of the genetic material on it. DNA analysis was able to establish that the blood on the knife was, to a very high degree of probability, that of John Courtemanche. DNA analysis of the genetic material found on the unstained portion of the knife handle also indicated the presence of John Courtemanche's DNA.

[25] The accused argued that the presence of John Courtemanche's DNA on the unstained portion of the knife handle suggested that John Courtemanche had himself held the knife during the abortive drug transaction and that therefore the knife had to have been in his possession prior to the incident outside the Nickel City Hotel. This evidence was, they maintained, consistent with their contention that John Courtemanche had wielded the knife subsequently used to stab him in the course of his unexpected and unprovoked attack on Ashley Labonte.

[26] A closer look at the expert evidence of Michael Bissonnette, the Crown's expert in blood and bodily fluid analysis, shows that the DNA analysis indicated the presence of John Courtemanche's DNA from the blood found on both sides of the knife blade and on one side of the knife handle. DNA analysis further revealed the presence of John Courtemanche's DNA on the unstained side of the knife handle. The expert evidence indicated the probability that this genetic material was not John Courtemanche's was "1 in 7.9 quadrillion" (see Exhibit 35). Given that John Courtemanche was stabbed with this knife multiple times during the events of December 4 and given the undisputed evidence of the presence of his blood on the blade of that knife, it is not really surprising to find that some of his DNA was also located on the unstained portion of the knife handle. There was no evidence, by way of opinion or analysis, indicating the particular source of John Courtemanche's DNA found on the unstained portion of the knife handle and whether it came from his sweat, saliva or blood, all of which bodily fluids constitute the most likely possibilities as a source of this DNA. Interestingly, while there was no DNA evidence linking Jean-Claude Breton to the knife or any part of it, we know that he did, in fact, use it to stab John Courtemanche and that in doing so he held it by the handle for that purpose.

[27] Even though John Courtemanche's DNA was found on the unstained portion of the handle of the knife used to stab him, I cannot conclude that this evidence constitutes proof that it was John Courtemanche who brought the knife into the vehicle on December 4 and that it was John Courtemanche who used it or threatened to use it on Ashley Labonte before it was wrestled from his hand by Jean-Claude Breton. In light of the evidence before this court, such a scenario has no reasonable basis in fact. When one considers the relevant events which took place in this matter and the time frame in which they unfolded, it is not reasonable to allow for the possibility that during the course of the drug transaction John Courtemanche was able to retrieve the knife from his clothing, attack Ashley Labonte with it, allow that knife to be wrestled from his hand by Jean-Claude Breton and endure multiple wounds inflicted with it before finally falling out of the vehicle in which the drug transaction took place.

5: INJURIES TO JOHN COURTEMANCHE

[28] Following the stabbing, John Courtemanche was taken to Health Sciences North for treatment of his injuries. The Crown filed in evidence of those injuries a number of documents, including the hospital's Trauma Team Lead Consult Note signed by Dr. Prpic as well as the Emergency Physician Report by Dr. Melanie Squarzolo and a Consultation Note signed by Dr. Shona Smith (see Exhibit 23).

[29] The report from the Emergency Department indicated that John Courtemanche had presented to the department on December 4, 2012, with three stab wounds to his scalp as well as three stab wounds to his left flank area. A CAT Scan performed on John Courtemanche revealed bleeding from the upper pole of his left kidney as well as a small laceration to the base of his left lung. The Consult Note concluded by indicating that the patient was brought to the operating room for a possible nephrectomy.

[30] In her report dictated three days later, Dr. Smith indicated that John Courtemanche had indeed undergone a left nephrectomy (removal of his left kidney) and that his operation had required a "massive transfusion" involving twelve units of packed red blood cells, eight units of FFP and one unit of platelets.

[31] The complainant himself, it will be recalled, testified that it was as a result of being stabbed in the back by the accused, Jean-Claude Breton, that he had lost his left kidney. In addition to the stab wounds to his back, the complainant recalled that he received two stab wounds to his left forearm as well as three stab wounds to his head.

[32] Kevin Perry, one of the paramedics who attended on John Courtemanche at the scene of the incident on the evening of December 4, 2012, told the court that the accused's condition constituted a Level 2 emergency which, he explained, was "not quite life-threatening but beyond my capacity of control." His colleague, paramedic Patrick Davidson, saw the injuries to the complainant as presenting a "Load and Go" situation. The policy in such cases was, he explained, to get the injured person immediately to a hospital for medical treatment. Paul Caldwell, another paramedic who attended on the complainant on that occasion, testified that the patient had blood on his hair from head wounds as well as blood on his back and left arm.

[33] When John Courtemanche testified about how he was stabbed by Jean-Claude Breton, he recalled his initial impression that his back was made "sticky" as the result of the stab wounds inflicted by the accused on him. The evidence is therefore overwhelming that the complainant was seriously wounded in the course of the failed drug transaction on December 4, 2012, and that the person who inflicted these injuries on him was the accused, Jean-Claude Breton.

6: THE DEFENCE OF NECESSITY

[34] In analyzing Jean Claude Breton's defence about what happened during the drug deal on December 4, 2012, it clearly amounts to the defence of necessity. Necessity is a defence known to the common law and is presently enshrined in section 34 of the Criminal Code. It provides as follows:

Defence of Person

Marginal note: 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.

Marginal note: Factors

(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.

Marginal note: No defence

(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.

R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2.

Under this section of the Code, what might otherwise constitute an assault on the part of a person using force against another person is excused by law. On the part of a lay person (as opposed to a peace officer – see ss.34(3) in this respect) a defence to the use of force by one person against another is available if he or she reasonably believes that he or she or another person is being attacked or there is an immediate threat of attack against himself or herself or another and there is a need to protect or defend himself or herself or another from that violence or the threat of it.

[35] In addition to the above, there exists the requirement that the act for which the defence is claimed be "reasonable in the circumstances". What is reasonable in law has often been the subject of much debate. To avoid uncertainty, however, the Criminal Code sets out in subsection 34(2) the criteria to be used in determining the reasonableness of the force used to defend oneself or another.

[36] In subparagraph 34(2)(b), we are directed to consider the nature of the threat to ourself or another and the alternative means of responding to the potential use of force against ourself or another. Subparagraph 34(2)(d) establishes the need to consider whether any party to the incident for which the defence of necessity is claimed has "used or threatened to use a weapon." Subparagraph 34(2)(e) addresses the need to consider the physical attributes of the parties involved in the incident, probably with a view to giving appropriate weight to any physical disparities between the parties often present in such situations. Lastly, and of note in this matter, subparagraph 34(2)(g) sets out, as a criteria for determining reasonableness, a consideration of the "nature and proportionality of the person's response to the use or threat of force" when the defence of necessity is being claimed.

[37] While stressing that it had not been his intention to deliberately stab the complainant, Jean-Claude Breton unabashedly admitted to stabbing him a number of times on the evening of December 4, 2012. In giving his evidence, he got up from his seat in the courtroom and demonstrated how he had inflicted the wounds on the complainant. He insisted that his actions merely constituted an attempt to protect his girlfriend, Ashley Labonte, from the complainant's surprise attack on her. As noted earlier, his claimed that his use of the knife on John Courtemanche involved a series of lateral, thrusting motions aimed strictly at forcing him to get out of the vehicle and away from Ashley Labonte.

[38] One might initially believe Jean-Claude Breton's allegation that he acted as he did because he had cause to fear for the safety his girlfriend, Ashley Labonte, because John Courtemanche had a knife in his hand. It is in this respect that the criteria set out in subparagraphs 34(2)(a), (b), (c) and (d) of the Criminal Code would ordinarily merit application. Once, however (as the accused alleged), he managed to wrestle the knife from John Courtemanche to stop his attack on Ashley LaBonte, Jean-Claude Breton's conduct went far beyond the scope of what section 34 considers reasonable and defensible action in the circumstances. Once Jean-Claude Breton found himself outside the vehicle and in possession of the knife, John Courtemanche would have been no match for him. John Courtemanche is older and taller than Jean-Claude Breton but he is clearly not as robustly built. It was apparent from a view of the two parties during the course of trial that Jean-Claude Breton could have easily not only defended himself against John Courtemanche but that he would have been able to dominate him physically in any struggle which subsequently ensued between them. It is when considering subparagraph 34(2)(g) of the Criminal Code (the criteria addressing the nature and proportionality of the response to the use or threat of force) that the defence of necessity fails absolutely in this case.

[39] Jean-Claude Breton failed to give any explanation about how the complainant, John Courtemanche, continued to constitute a real and pressing threat to the life and safety of his girlfriend after, as he maintained, he managed to wrestle the knife away from him. Even accepting his history of the events, which I do not, I find that any reasonable justification Jean-Claude Breton had for using the knife to defend Ashley Labonte ceased to exist once the knife was in his possession and the complainant was unarmed with his body half inside the vehicle. If the scenario painted by Jean-Claude Breton had been true, once the complainant realized that the tables had been turned against himself, one would have expected him, from a sense of self-preservation if for no other reason, to exit the vehicle and not remain inside it allowing himself to be stabbed multiple times.

[40] The accused Jean-Claude Breton's defence of necessity is, therefore, not sustainable on the evidence. The time taken to inflict the wounds on the complainant, John Courtemanche, could have been used by Jean-Claude Breton to cause Natalie Ross, the driver of the vehicle, to exit the vehicle, thereby permitting him to also do so himself and deal with the complainant in a less violent and more rational manner. The passenger side of the vehicle on which Ashley Labonte was seated was not the only avenue of escape from the vehicle. Even under the circumstances applicable at the time, a reasonable person would surely have availed himself of the option of getting out of the vehicle and handling the situation from that perspective.

7: THE ROLE OF ASHLEY LABONTE

[41] I noted earlier that there was diverging evidence on the matter of who set up the failed drug transaction and what the subject of that transaction was. The evidence confirmed that upon arriving at the Nickel City Hotel, Ashley Labonte used Jean-Claude Breton's cell phone to signal John Courtemanche about her arrival at the hotel and direct him to come to her vehicle to complete their pre-arranged drug transaction. According to her evidence, she and John Courtemanche had arranged to meet at the Nickel City Hotel that evening to conduct their transaction. Ashley Labonte testified that she had dealt with John Courtemanche in the past and that he, in fact, owed her money from one of their past drug deals. When these arrangements were made earlier that day, Ashley Labonte was in the company of her co-accused, Jean-Claude Breton. She brought Jean-Claude Breton along with her to complete this transaction. She testified how she had arranged to meet her friend Natalie Ross, who had a vehicle, so that Natalie Ross could assist her by driving her to the hotel where the transaction was to take place. She stated that upon arriving at the hotel she and Jean-Claude Breton changed seats, the latter moving to the bench seat in the back of the vehicle and she, in turn, moving into the front passenger seat. This was done, she said, so as not to alarm John Courtemanche. She explained that the reason for doing this was that while John Courtemanche knew her, he did not know Jean-Claude Breton. She did not explain why, if she and John Courtemanche had had prior drug dealings, John Courtemanche would have had any reason to be fearful of a male party accompanying her. She did not explain how someone who allegedly owed her $200 from a past drug transaction and now proposed to settle accounts with her by selling her more drugs could be apprehensive about the presence of another male party at the transaction, particularly someone known to her.

[42] In assessing this situation, one must recall that on the evening of December 4, 2012, Ashley Labonte was not new to the drug trade. She must be presumed to have known that there were dangers inherent in drug transactions. While, therefore, she denied the Crown's allegation that she had brought her co-accused, Jean-Claude Breton, along with her as "muscle" to protect her in the event that matters got out of hand, one can reasonably see no other explanation for bringing him all the way from the community of Capreol in the City of Greater Sudbury to be with her during the course of this transaction. Jean-Claude Breton is obviously no academic and was described by Constable Pitawanakwat as appearing somewhat "rough" in appearance. If we accept Ashley Labonte's contention that she and Jean-Claude Breton had agreed that he should move to the back seat of the vehicle to avoid alarming John Courtemanche, it is reasonable to conclude that the presence of this individual was designed to provide some security for Ashley Labonte in the event that the drug deal with John Courtemanche went bad. If John Courtemanche was right in coming to the early realization that he was being "ripped off", and I believe that is what the evidence discloses the plan was, the presence of Jean-Claude Breton would have been crucial to the successful execution of this plan and to providing "muscle" in the event it went awry.

[43] I have concluded that John Courtemanche was not the bearer or the owner of the knife with which he was stabbed by Jean-Claude Breton. Jean-Claude Breton admitted in his evidence that he had thrown the knife he used to stab John Courtemanche out of the vehicle in which he and Ashley Labonte were passengers soon after they fled the scene of the failed drug transaction on December 4, 2012. The fact that by his own admission Jean-Claude Breton quickly ditched the knife which he had used to stab John Courtemanche strongly suggests that he was conscious of having acted culpably and wanted to put as much distance as he could between himself and the evidence linking him to the events at the Nickel City Hotel. The evidence made it clear that the knife used to stab John Courtemanche did not belong to either Natalie Ross or Ashley Labonte. The only other person, therefore, to whom it could reasonably have belonged was Jean-Claude Breton, the person who used it to stab John Courtemanche. Given the frequent presence of weapons in the context of drug transactions and the fact that Jean-Claude Breton and his character were by this time well known to her, Ashley Labonte ought reasonably to have known or anticipated that the violence which did occur on this occasion would or could reasonably happen.

[44] In my respectful view, the evidence establishes that it was the intention of Ashley Labonte to settle in a roundabout manner John Courtemanche's debt to her and, in the process, "rip him off." I find that Jean-Claude Breton was a full party to this plan and that he was not simply along for the ride. I conclude, therefore, that the violence which occurred on the night of December 4, 2012, while not inevitable, was not unexpected in the circumstances, the anger of John Courtemanche at being ripped off constituting the catalyst for the violence which ensued.

8: CONCLUSION

[45] As a result of the findings I have made respecting the evidence, I find that Jean-Claude Breton and Ashley Labonte are guilty of the offense of robbery pursuant to section 344(b) of the Criminal Code of Canada.

[46] As a result of the above finding, and applying the principles set out by the Supreme Court of Canada in R. v. Kienapple [1974], 15 C.C.C. (2d) 521;, 44 D.L.R. (3d) 351; [1975] 1 S.C.R. 729 and R.v. Prince, [1987] 30 C.C.C. (3d) 35; [1986] S.C.J. No. 63; [1986] 2 S.C.R. 480; 33 D.L.R. (4th) 724, I will stay the charge of being an accessory to the offence of robbery pursuant to subparagraph 21(1)(b) of the Criminal Code of Canada against Ashley Labonte. In the course of his submissions, counsel for Ashley Labonte conceded that on the night of December 4, 2012, she was in possession of personal cheques knowing them to have been obtained directly or indirectly by the commission of an offense pursuant to subsection 354(1) of the Criminal Code of Canada. In light of those comments and the evidence presented at trial, I will convict her of that offence.

[47] Because of the finding of robbery against Jean-Claude Breton and for similar reasons as those grounding the stay of the charge of accessory to robbery against Ashley Labonte, I will stay the charge of committing an aggravated assault against John Courtemanche, contrary to section 268 of the Criminal Code of Canada, against Jean-Claude Breton. The two elements of the offence of robbery are theft and violence. Sometimes, the element of violence exists more in the potential for it to occur rather than in its actual occurrence. In this case, the violence was real but used to effect the robbery. It was not a gratuitous act or incidental to the theft then taking place. It was intimately and intrinsically connected with the theft and not superfluous to it.

[48] Applying, however, the principles enunciated by the Supreme Court of Canada in both Kienapple and Prince (see above), I will convict Jean-Claude Breton of the offence of possession of a weapon for a purpose dangerous to the public peace, contrary to section 88 of the Criminal Code of Canada. It is clear that the knife (a flick knife) used to stab John Courtemanche was the property of, or, at a very minimum, in the possession of Jean-Claude Breton. As such, possession of this weapon at the time of the commission of the offence fulfills the criteria for a conviction under section 88 of the Criminal Code of Canada. Similar to Ashley Labonte and in light of his admission and the evidence at trial, I will convict Jean-Claude Breton of the counts of breach of probation alleged against him contrary to subsection 733.1(1) of the Criminal Code of Canada.

Dated at Sudbury, this 13th day of September, 2013

Released: September 13, 2013

Signed: "Justice Andre L. Guay, Ontario Court Justice"