WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486(3) of the Criminal Code. This subsection and subsection 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (3), read as follows:

486.— (3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

486(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: SIOUX LOOKOUT – TP 12088696

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

S.T.

Before: Justice Peter T. Bishop

Heard: October 1, 2014

Reasons for Judgment Released: October 21, 2014

Counsel:

• E. Hellinga, for the Crown
• E. Seib, for the accused S.T.

BISHOP J.:

The Charge

[1] S.T. stands charged that on or about the 22nd of October 2012 did commit an aggravated assault on E.M., contrary to Section 268 of the Criminal Code.

Evidence of E.M.

[2] Mr. E.M. was eighteen years of age at the time of the occurrence and lives in […] Lake.

[3] On October 22nd, 2012 he was behind the high school in S[…] with B.K.. They were drinking along with K.M. and another individual named K..

[4] He does not recall being intoxicated but was walking down the street and tried to catch up to S.T. as he had been told about a Facebook message that S.T. would give him a nice big welcome to S[…].

[5] His friend K.M. told him that it was S.T. up ahead and they ran up to meet him but S.T. began to run away.

[6] They came up behind S.T. and he turned around and pushed him. Mr. E.M. pushed back and then he stopped and he pushed him again and suddenly realized he was stabbed. B.K. was behind the group and S.T. ran off.

[7] Photos of Mr. E.M. were entered as Exhibit A along with Exhibit 2 which was a very complete medical report showing that Mr. E.M. suffered a stab wound to his abdomen in the upper right quadrant. At the time, an impressive amount of blood was lost. Some bile was also found in the right upper quadrant and the gall bladder had been punctured. The gall bladder was removed to control bleeding and a drain was left in.

[8] Mr. E.M. spent approximately one week in the hospital and has some stomach problems currently as a result to this injury.

[9] He was adamant that he did nothing other than push S.T. and no punches were thrown. He estimated that the whole confrontation took ten to fifteen seconds and he was not expecting a fight.

[10] He described his friend K.Q. was on his right side and did not recall B.K. trying to intervene. He did not touch or harm B.K.. He denies having any knife and at no time was Mr. S.T. on the ground. He also stated that K.Q. did not have a knife in his possession.

Evidence of K.Q.

[11] Mr. K.Q. was eighteen years of age and a friend of Mr. E.M.. They had been drinking alcohol behind the school and left to go to P[…] Street.

[12] He did not really know S.T. but had met him on one occasion before. He clearly identified Mr. S.T. as the perpetrator of the offence.

[13] His evidence was that E.M. shoved S.T.. S.T. pushed back and then punched E.M. and E.M. began bleeding. Mr. S.T. then ran away and B.K. also ran away.

[14] He denies touching S.T. and had no weapons.

[15] He picked up his friend E.M. and carried and assisted him to the closest house to call an ambulance. He also put pressure on Mr. E.M.'s wound.

[16] He has known Mr. E.M. for six years and neither he nor Mr. E.M. had a knife that evening.

[17] In cross examination he confirmed that Mr. E.M. was his friend and the four individuals probably consumed slightly less than sixty ounces of alcohol.

[18] He was upset and crying when he was arrested because he was being blamed for the injury to his friend.

[19] He stated that Mr. S.T. approached Mr. E.M. and the female (B.K.) tried to calm the parties down. At the time of the occurrence he was beside E.M..

[20] At no time did he see B.K. on the ground or being bumped by anyone.

[21] Mr. S.T. went down but got up real fast. He visited Mr. E.M. in the hospital after the occurrence but gave a statement to the police before visiting Mr. E.M..

Evidence of B.K.

[22] Ms. B.K. is nineteen years of age and S.T. is the father of her two children.

[23] She and Mr. S.T. were not partners at the time of this occurrence.

[24] She was at a drinking party with E.M., K.Q. and another girl named K.. She saw Mr. S.T. behind the high school and saw E.M. run to catch up to Mr. S.T..

[25] She stated that E.M. and K.Q. tried to fight S.T. but in the previous statement to the police she stated that she did not see Mr. S.T..

[26] She candidly admitted that she didn't remember much because she was drunk but did see E.M. punch S.T..

[27] In cross examination she did not want the police to know what happened because she was in a very difficult position with her children being cared for by the accused's mother.

[28] She did not see a knife but earlier said she saw K.Q. with a small pocket knife.

[29] It was K. who identified S.T. but that evidence is of no moment as the accused basically admitted to stabbing Mr. E.M..

[30] She began running with Mr. S.T. but couldn't because she was too drunk.

[31] She stated that she got punched in the face by E.M. and does not remember anything happening after that time.

Evidence of S.T.

[32] Mr. S.T. was twenty one years old at the time of this occurrence. B.K. is his previous partner and they have two children together.

[33] On October 22nd, 2012 he was at his mother's house with his two children and the baby was cranky and crying. B.K. was supposed to bring milk for the baby but did not do so and he waited for about an hour for her to come and eventually went to his Aunties house to get some milk.

[34] On his way home he took a short cut and he heard some people walking in the back alley approximately fifty feet away. He identified B.K., his former partner and someone else. He thought they were intoxicated as he saw them holding a bottle.

[35] He heard his name and B.K. ran up behind him and grabbed him.

[36] Mr. E.M. and Mr. K.Q. came up behind as well and he and B.K. kept running. She was really drunk and could not keep up so he turned around to confront the two other individuals.

[37] He stated that B.K. was punched in the face and both K.Q. and E.M. threw punches at him and pushed him.

[38] He was pushed in the front and he pushed back and then K.Q. was behind him and E.M. came in front of him.

[39] He stated that E.M. came at him with his right hand and something hit his chest and he heard a ping and something fell on the ground. He was pushed to the ground and was afraid that he was about to be kicked in the face and picked up a knife and stabbed E.M. in the abdomen.

[40] He thought he was going to be killed as he had been punched seven or eight times and when he stabbed Mr. E.M., Mr. E.M. said "why did you hit me" to which he replied "I stabbed you".

[41] In cross examination he admitted that he was angry with B.K. for not returning with the milk and the situation at home where the children were cranky and he was too stressed and just had to get away. He had the milk bottles in his pocket. He was not angry that his former partner was with some other men and he heard this ping in the middle of the scuffle and saw a knife on the ground. He had at no time seen a knife in any of their hands and it looked like a kitchen knife on the ground. He admitted that he had a temper and that he was already angry when he left the house. After stabbing Mr. E.M. he pulled the knife out and ran away with it and threw it some bushes approximately a block away. He stated that E.M. had the knife and it was Mr. E.M. and Mr. K.Q. who confronted him.

Findings

[42] I am finding that E.M., K.Q. and B.K. were intoxicated on that evening but with respect to Mr. E.M. and Mr. K.Q. they have a good recollection of what happened. B.K. has little or no credibility due to her high degree of intoxication (greater than Mr. E.M. and Mr. K.Q.), and the fact that she is conflicted in that she is the mother of the accused children and in fact gave no significant statement to the police and has no recollection after she said she was allegedly punched in the face. I am finding that she was not punched in the face by E.M..

[43] Mr. S.T. was agitated and stressed out on the evening that this happened.

[44] He had every opportunity to simply walk or run away before any confrontation had happened but he chose to turn around and confront Mr. E.M. and Mr. K.Q.. He did not have to wait for B.K. if what he says is true, they were no longer romantically involved and there was no need to wait or protect her when she began to run along with him.

[45] Mr. K.Q.'s and Mr. E.M.'s evidence has an air of reality as it was a punching match and in fact Mr. E.M. thought he was punched when he had been stabbed. This is corroborated by Mr. S.T.'s own evidence when he stated that as Mr. E.M. asked him "why did you punch me", Mr. S.T. responded "I didn't punch you I stabbed you". Mr. S.T. then takes the knife and flees the scene and disposes of this demonstrative evidence in the bush. He does not tell the police, and the knife has never been found. This is consistent with a consciousness of guilt.

[46] The description of the knife being a kitchen knife by Mr. S.T. is consistent with the type of blade as identified by the physicians that caused this type of injury. A long narrow fish filet knife similar to a kitchen knife. It is inconsistent with the small pocket knife.

[47] I do not find that K.Q. had a small pocket knife in his possession on the day that this occurrence happened. I do not accept B.K.'s evidence in that regard due to her high degree of intoxication and her willingness to give favourable evidence to her former partner and father of her children. B.K. is simply not believable.

[48] I had an opportunity to observe Mr. S.T. on the stand and he became agitated and confrontational with the Crown when there should have been no reason for that. He admitted that he has a temper.

[49] The physical/medical evidence is inconsistent with Mr. S.T.'s version of the events. Mr. S.T. stated that he stabbed Mr. E.M. from a crouching position. The evidence from the medical report shows that it was a straight-in wound not from an angle. The medical evidence supports Mr. E.M.'s version on how the knife entered his abdomen.

[50] A review of the photographic evidence shows that that Mr. E.M.'s hands had no injuries on them. It is inconsistent with him punching Mr. S.T. in the head seven or eight times.

[51] For all of those reasons, I am finding that the defence of self-defence does not arise. The nature of the force or threat does not have an air of reality. The force used by Mr. S.T. was excessive and he introduced the knife. I do not believe Mr. S.T.'s version of events.

[52] For all those reasons, a finding of guilt will be entered with respect to aggravated assault as counsel conceded that the injuries amount to aggravated assault.

Released: October 21, 2014

Signed: Justice Peter T. Bishop