WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-03-08

Court File No.: Ottawa 16-Y8299

Between:

Her Majesty the Queen

— And —

S.A., a young person

Before: Justice P.K. Doody

Heard on: February 12, 14, and 15, 2018

Reasons for Judgment released on: March 8, 2018

Counsel:

• J. Semenoff — counsel for the Crown
• A. Duvadie — counsel for the defendant

Reasons for Judgment

Doody J.:

Part 1: Overview

[1] The defendant was involved in an altercation on Rideau Street at the corner of Dalhousie Street on Nov. 7, 2016. During the course of that altercation, Brennan Vallee was cut twice – a two inch long cut on the left chest just below his nipple, and a 6 inch cut to the left arm which was deep enough to expose the tissue of the tricep muscle.

[2] The defendant faces four charges:

(a) Aggravated assault contrary to s. 268(2);

(b) Assault with a weapon (a knife) contrary to s. 267(a);

(c) Possession of a weapon (a knife) for a purpose dangerous to the public peace contrary to s. 88(2); and

(d) Breach of an undertaking not to be in possession of a weapon contrary to s. 145(5.1).

[3] The defence relies on self-defence (s. 34) and submits that, in any event, the Crown has not proven beyond a reasonable doubt that the defendant stabbed Mr. Vallee or that if he did so, it was intentional.

[4] The Crown submits that:

(a) the direct evidence of Mr. Brissette, a private security guard, should be accepted as the basis of a determination that the Crown has proven beyond a reasonable doubt that the defendant intentionally stabbed Mr. Vallee;

(b) in any event, on all of the circumstantial evidence, including that from the defendant, the only reasonable inference is that the defendant intentionally stabbed Mr. Vallee;

(c) regardless of whether it has been proven beyond a reasonable doubt that the defendant intentionally stabbed Mr. Vallee, the defendant has admitted being in possession of a knife and is therefore guilty of the breach of undertaking charge; and

(d) self-defence does not need to be considered, because there is no air of reality to the defence.

Part 2: The Direct Evidence Has Not Proven Beyond a Reasonable Doubt That the Defendant Stabbed Mr. Vallee

[5] Three private security guards and the defendant testified about what had occurred during parts of the altercation. I was advised that Mr. Vallee has died since the date of the charges, and his death was in no way related to the circumstances giving rise to these charges. None of the other participants in the altercation testified.

(a) The Defendant Testified That He Responded to an Initial Punch by Fighting Back but He Has No Memory of the Stabbing

[6] The defendant testified that he had arrived in the Market area, which is bordered by Rideau Street, around 4:30 p.m. He said that about 6:00 p.m. he gave a man $10 to go into the Beer Store and spend half the money on alcoholic drinks for each of them. He said he received two cans from the man and drank them. He said he became "happy" and wandered around the Market.

[7] He testified that he saw three persons – two men and a woman. He told them that he wanted to buy some marijuana. They told him that they did not have any marijuana, but offered to sell him something else. He testified that they then started making fun of him. The woman pointed her finger at him, saying things she found very funny and laughing hysterically. The defendant said he was upset and called her a "bitch".

[8] He testified that when he said this, one of the men punched him hard on his right cheek. He said when he was hit he turned and saw the two men standing as if they were ready to fight. One held his hands closed in fists, at 90 degrees to his upper arms, and moved from left to right as if imitating a boxer. The other had his hands extended below his belt, with his fists together in front of his crotch area.

[9] He testified he was scared. He responded to the punch by punching one of the men in his face. As soon as he did so, he felt a sensation like a hammer or other hard tool had hit him in the chest. It was very painful. He lost his balance and fell on the ground. He tried to stand up, but he lost his balance again and he fell toward one of the men, putting his hands around his body and causing them both to fall to the ground. In cross-examination, he testified that when he started to stumble after standing up, he took the man down to avert any other hit or other reaction from him. He said he acted from fear, and did not have time to think through a plan. He described the people as "monsters".

[10] He testified that when he fell to the ground a second time, on top of the man into whom he had stumbled, he was hit "from every direction but especially on my back". He testified that while he was being hit, he was being pulled. He felt like he was losing consciousness.

[11] He said he then saw an open knife on the ground. He picked it up.

[12] He testified that he has no memory of anything else that happened that night until he was in the police car where he had been placed after being arrested. He cannot say whether he stabbed Mr. Vallee.

[13] The defendant also testified that he had a green bruise across most of his chest. He noticed this bruise while he was being held in the police cells that night after being arrested. The arresting officer testified that he saw no such bruise and that the only marks he saw on the defendant were a small scratch on his chin, and some blood spots near his chin. The defendant's shirt had a significant amount of blood on it. The arresting officer testified that the amount of blood on the shirt was more than would have resulted from the scratch on his chin.

(b) The Private Security Guards Gave Differing Evidence

[14] Three private security guards were on Rideau Street that night guarding the light rail transit construction project. They all responded to the altercation. Their evidence differs significantly.

(i) Brian Blair

[15] Mr. Blair testified that he was in uniform as a private security guard in a car parked at the corner of Rideau and Dalhousie Streets, about 15 feet away from the altercation. He heard a loud voice yelling "oh my God he is stabbing my boyfriend". (This evidence was admitted as part of the narrative and not for its truth.) He looked up and saw what he described as a "scrum" or "scrimmage". The defendant, who he described as the aggressor, was on top of another man. In cross-examination, he said that both men were standing.

[16] He described the defendant as "the aggressor" but admitted that he did not see him hit anyone. He said the defendant had grabbed the man below him by the neck or the chest with both hands.

[17] He testified that a woman, who he described as the victim's girlfriend, was yelling and trying to hit the defendant by swinging her arms in what he described as a "tomahawk" motion. He saw her punch the defendant at least once.

[18] He testified that he saw Awaleh Daher, his fellow security guard, run over to the group, who were on the sidewalk on the north side of Rideau just west of Dalhousie. Mr. Daher put the defendant in a headlock. He (Mr. Blair) ran just behind Mr. Daher, and stepped on the defendant's hand.

[19] This released a knife which had been in the defendant's hand. He had not seen the knife before that moment. Mr. Blair said he then kicked the knife to the curb.

[20] He described the knife as having a 4 inch straight blade and a small handle. He said it was not a folding knife.

[21] He testified that the man on the bottom lifted up his shirt. He had a puncture wound on his chest, just below the left nipple. It was bleeding profusely. He applied pressure to the wound with the man's scarf. The man said that his arm was sore and he saw a puncture wound on his upper arm in the tricep area of his left arm.

[22] He testified that Mr. Daher took the defendant to the other side of Rideau Street and held him in an alcove until the police arrived.

(ii) Samuel Brissette

[23] Mr. Brissette testified that he was talking to his colleagues, Mr. Blair and Mr. Daher, beside their patrol car which was stopped on Rideau Street. He and his colleagues were on the south side of Rideau Street, about 15 or 20 feet away from the altercation. He said that the street lighting was "pretty bad" and the fencing blocked his visibility.

[24] He heard a woman screaming loudly that her boyfriend was being attacked. He immediately turned around and saw a man (later identified as the defendant) delivering "several strikes" to another man. He then said he saw the defendant deliver two strikes to the person identified as Mr. Vallee, one on the abdomen and one on the side of his arm. Later, he described one of the blows as being to the chest, close to the pectoral muscle. Mr. Vallee was trying to either block the defendant or push him away. The woman was trying to grab the victim.

[25] He testified that he saw the defendant deliver these two strikes just before his partners intervened. He said that his two colleagues had seen the incident before him and started running across the street before he did. Later, in cross-examination, he testified that he saw the defendant strike Mr. Vallee at the moment he turned around, immediately after he heard the woman scream.

[26] He testified that Mr. Daher grabbed the defendant and Mr. Blair grabbed Mr. Vallee to pull him away.

[27] He said he had seen a knife in the defendant's right hand as he pulled it back to strike Mr. Vallee. He (Mr. Brissette) tried to grab the knife from underneath as Mr. Daher held the defendant's arm. As Mr. Daher held the defendant's hand, they both fell to the ground. Mr. Brissette said he got the knife away from the defendant and put it aside, moving it to the side with his foot and pushing it against the construction fence on Rideau Street.

[28] He identified a knife as the one he had taken from the defendant. It is (contrary to Mr. Blair's evidence) a folding knife.

[29] Mr. Brissette was asked if he had seen another man involved in the altercation. He testified that only the two men – later identified as the defendant and Mr. Vallee – were involved although there was "a really random person there for a couple of seconds" but that, as soon as he and his colleagues were able to control the situation he left. He said the other man was close – within a metre or so.

[30] Mr. Brissette testified that he saw the injuries to Mr. Vallee's chest and arm that evening.

(iii) Awaleh Daher

[31] Mr. Daher testified that he was talking to his two colleagues on Rideau Street when he heard a "melee" to his right. He turned and saw 4 people 5 to 6 metres away. He said that a man (who he called the victim and I am satisfied was Mr. Vallee) was lying on his stomach on the ground. Another man, who I am satisfied was the defendant, was on his stomach on top of the first man. A third man was standing, trying to pull the defendant off Mr. Vallee. He saw a woman hitting the head and shoulders of the defendant forcefully 3 or 4 times with a large orange and black construction pylon.

[32] Other than the blows with the pylon, he saw no hitting or pushing by anyone.

[33] Mr. Daher said he ran over. As he approached the persons engaged in the altercation, he saw that the defendant had a knife in his right hand. He said he was just holding it in his hand. The 3 men he had originally seen remained in the same position they had been in. A man he described as "homeless", who had not been with the group when he first turned to look, was passing by. The "homeless person" took the knife from the defendant and gave it to Mr. Daher. He threw it on the ground.

[34] He said the defendant then got up and started to run. The third man remained and spoke with Mr. Vallee. Mr. Daher said he ran after the defendant, who ran across Rideau Street. When he had run about 2 metres, Mr. Daher grabbed him by his arms and shoulders and held him while they waited for the police. Before the police came, the defendant started to run again. Mr. Daher was able to catch him again on the other side (the south side) of Rideau Street.

(c) The Direct Evidence Does Not Prove Beyond a Reasonable Doubt That the Defendant Stabbed Mr. Vallee; W.D. Does Not Apply

[35] The law explained in R. v. W.(D.), [1991] 1 S.C.R. 742, requires that when there is any evidence which, if true, is inconsistent with the guilt of the defendant (the "defence evidence"), I must analyze the evidence in a particular way to ensure that I respect the principles of presumption of innocence and the necessity for every element of the offence to be proven beyond a reasonable doubt.

[36] I must consider whether, in light of all the evidence, I believe the defence evidence. If so, I must acquit the defendant. If I do not believe the defence evidence, I must consider whether, on all of the evidence, the defence evidence leaves me with reasonable doubt on one of the elements of the offence. If so, I must acquit. Finally, even if I do not believe the defence evidence, I must consider whether I am satisfied that the balance of the evidence proves all of the elements of the offence beyond a reasonable doubt.

[37] In this case, however, there is no evidence that, if true, is inconsistent with the defendant having stabbed Mr. Vallee or that, if he did direct the knife towards him, he did so intentionally. The defendant testified that he did not recall what happened after he picked up the knife.

[38] The only direct evidence on this issue comes from Mr. Brissette, who testified that he saw the defendant strike Mr. Vallee twice, once on the abdomen or chest and once on the side of his arm. That evidence is consistent with the defendant having stabbed Mr. Vallee. Consequently, I must analyze this evidence, in the context of all of the other evidence, to determine whether I am satisfied beyond a reasonable doubt that the defendant did so.

[39] The three security guards were all together. They all testified as to what they saw at essentially the same time. Mr. Blair testified that he turned his head to look immediately after hearing a woman cry out "he's stabbing my boyfriend." Mr. Brissette testified that he turned and looked immediately after hearing a woman yelling that her boyfriend was being attacked. Mr. Daher testified that he turned and looked and saw a melee to his right.

[40] But their testimony about what they saw differed significantly.

[41] Mr. Blair and Mr. Daher testified that they saw men on the ground, with the defendant on top, although Mr. Blair changed his evidence in cross-examination to say both were standing. Mr. Brissette said he saw two men standing.

[42] Mr. Blair and Mr. Brissette saw two men; Mr. Daher saw three.

[43] Mr. Blair testified that the woman was trying to hit the defendant by swinging her arms and yelling. Mr. Daher testified that the woman hit the defendant with the pylon 3 or 4 times.

[44] Mr. Daher saw no physical force used by the defendant. Mr. Blair saw the defendant holding the victim by the chest with both hands. Mr. Brissette saw the defendant striking the victim once in the chest and once in the arm "right before my partner [Mr. Daher] intervened."

[45] Mr. Blair testified that Mr. Daher put the defendant in a headlock just before he (Mr. Blair) stepped on the defendant's wrist, causing him to release the knife, which Mr. Blair then kicked to the curb. Mr. Daher testified that he was given the knife by a homeless man who was passing by, following which the defendant ran and he chased him across Rideau Street before catching him. Mr. Brissette testified that he saw Mr. Daher hold on to the defendant's hand which was holding the weapon, following which they both fell to the ground, following which Mr. Brissette got the knife away from the defendant and moved it to the side with his foot, pushing it against the fence.

[46] Cross-examination did not show any inherent flaws in the evidence of any of them.

[47] All three testified that they were about 15 to 20 feet from the altercation when they turned to look. Mr. Brissette testified that the lighting was "pretty bad" and his view was partially blocked by construction fencing. I accept that evidence. It was confirmed by photos of the scene taken shortly after police arrived.

[48] I have no hesitation in finding, on the basis of the security guards' evidence and the evidence of the defendant, that the defendant was involved in an altercation with Mr. Vallee, that the defendant had a knife during that altercation, that during the altercation the knife came in contact with Mr. Vallee, and that the wounds were still bleeding immediately after.

[49] I cannot accept Mr. Brissette's evidence that the defendant struck Mr. Vallee twice, once in the chest and once in the arm. I cannot conclude that his evidence is reliable. The events occurred very quickly. The lighting was bad and his view was obstructed. His memory may have been unconsciously affected by his having seen the wounds to Mr. Vallee's chest and arm that evening. Most importantly, his evidence differs significantly from that of the other two security guards.

[50] I am not satisfied that the difference among their accounts is a result of them having looked at different times. As I have said, the evidence suggests that they all looked at approximately the same time. Furthermore, the details of what each claimed to have seen are inconsistent with them having looked at different times. Just as one example, Mr. Brissette testified that he saw the defendant strike Mr. Vallee just before Mr. Daher intervened, but Mr. Daher said that he saw no physical force used by the defendant. Both could not be true.

[51] I have no basis to conclude that Mr. Brissette's evidence is more probable to be true than the evidence of the other two security guards, let alone that it has been established beyond a reasonable doubt.

(d) All of the Evidence, Including the Circumstantial Evidence, Establishes That the Defendant Held the Knife When It Caused the Injuries to Mr. Vallee

[52] Circumstantial evidence can be used as the sole or primary basis for concluding that the Crown has proven an element of an offence beyond a reasonable doubt. Care must be taken when doing so, however. Because triers of fact may be inclined to "fill in the blanks" or "jump to conclusions" when applying circumstantial evidence, they should be aware that they should not draw inferences of guilt too readily. Circumstantial evidence should only be used as the primary basis for a finding of guilt where the defendant's guilt is the only reasonable inference to be drawn from the evidence or the absence of evidence. (R. v. Villaroman, at paras. 26 to 37)

[53] When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt to determine whether "the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty." (Villaroman, at para. 38)

[54] It is not necessary, however, that the trier of fact negative every possible conjecture, no matter how irrational, fanciful, or speculative, which might be consistent with the innocence of the accused. The following language summarizes this principle:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot be reasonably supposed.

(Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375, cited with approval by Cromwell J. in Villaroman, at para. 40)

[55] In order to decide whether all of the evidence, including the circumstantial evidence, establishes that the defendant held the knife when it caused the injuries to Mr. Vallee, I must determine whether the facts that have been proven, together with any absence of evidence, give rise to that inference and whether there is no other reasonable inference which does arise from the evidence or the absence of evidence.

[56] The following facts have been established:

(a) The defendant had a knife in his hand before Mr. Vallee was stabbed;

(b) The defendant was involved in an altercation with Mr. Vallee;

(c) During the course of that altercation, Mr. Vallee was injured when the knife came into contact with him;

(d) After Mr. Vallee was injured, the defendant had a knife in his hand.

(e) The defendant had an animus toward Mr. Vallee.

[57] It is a reasonable inference that the defendant was holding the knife when it came into contact with Mr. Vallee.

[58] The only other possible inference is that the defendant lost control of the knife to another person, that person held the knife when it came into contact with Mr. Vallee, and then the defendant got the knife back. In my view, that is not a reasonable inference. Consequently, I conclude that it has been established beyond a reasonable doubt that the defendant was holding the knife when it came into contact with Mr. Vallee, causing his injuries.

(e) All of the Evidence, Including the Circumstantial Evidence, Does Not Establish That the Defendant Voluntarily or Intentionally Stabbed Mr. Vallee

[59] I am not satisfied, however, that the defendant voluntarily or intentionally stabbed Mr. Vallee. If the knife came into contact with Mr. Vallee's body by accident – with no voluntary act by the defendant to use it to apply force to Mr. Vallee – the defendant cannot be found criminally responsible. Such a set of circumstances would mean either that the defendant did not cause the actus reus because there was no voluntary act, or that he did not have the necessary intention for the mens rea. (R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (C.A.); R. v. Walia, 2018 ONCA 197 at paragraphs 8-12)

[60] It is clear that the defendant was closely involved with Mr. Vallee while holding the knife. But I simply do not know how the knife held by the defendant came into contact with him. Mr. Vallee could have fallen or stumbled into the defendant. The defendant could have been pushed into Mr. Vallee by the woman. Both Mr. Blair and Mr. Daher testified that the defendant was lying on top of Mr. Vallee on the ground. He could have fallen onto him, with the knife coming in contact with Mr. Vallee accidentally. He could have struck him in a reflex action. Any of those possibilities is a reasonable inference on the basis of the evidence I heard and the facts I am able to find. None is speculation. And if any were correct, the defendant would not have intended to stab Mr. Vallee.

[61] Since I cannot conclude that the defendant intentionally stabbed Mr. Vallee, and the only possible wounds, maims, or disfigurement (required by s. 268(1)) are the result of the stab wounds, the charge of aggravated assault is dismissed.

[62] Similarly, the assault with a weapon charge requires a determination that the defendant intentionally assaulted Mr. Vallee with the knife. That charge is also dismissed.

(f) There Is an Air of Reality to the Defence of Self-Defence in Respect of the Offences of Possession of the Knife for a Purpose Dangerous to the Public Peace and Breach of Undertaking to Not Be in Possession of a Knife

[63] Because I cannot find that the defendant intentionally stabbed Mr. Vallee, I need not determine whether self-defence applies to that alleged assault.

[64] It would be relevant to the potential lesser included offence of assault, based on the actions of the defendant before the defendant picked up the knife. The defendant admitted punching Mr. Vallee and taking him down to the ground. The punch would be an assault, and the latter action would be an assault if it occurred as a result of a voluntary action by the defendant, if self-defence did not apply to either. Crown counsel, however, told me in final submissions that he was not seeking a conviction on the lesser included offence of assault based on these events.

[65] Self-defence is, however, relevant to the offences of possession of the knife for a purpose dangerous to the public peace and breach of undertaking by possessing the knife.

[66] Section 34 provides:

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.

(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.

[67] These provisions do not have to be considered by a judge or a jury unless there is an air of reality to a claim of self-defence. In determining whether there is an air of reality, I am required to decide whether there is evidence which, if believed, would allow a reasonable jury properly charged to acquit. (R. v. Osolin, [1993] 4 S.C.R. 595 at 682) While doing so, I must not weigh evidence, determine credibility, draw determinate inferences, or assess the likelihood of success. (R. v. Kong, 2006 SCC 40, [2006] 2 S.C.R. 347; adopting dissent in R. v. Kong, [2005] A.J. No. 981, 2005 ABCA 255)

[68] Furthermore, it continues to be the law, as it was before the recent amendments, that a person is not expected to weigh to a nicety the exact measure of a defensive action or the consequences of such action. The objective measure of proportionate force in self-defence cases requires a tolerant approach. (Kong, at paras. 208-209 of the dissent in the Alberta Court of Appeal as adopted by the Supreme Court of Canada).

[69] The defendant testified that

(a) he was punched hard on his right cheek and threatened by the two men standing in intimidating postures;

(b) when he responded by punching the man in the face, he was hit in the chest very hard and knocked to the ground;

(c) when he got up he stumbled and fell to the ground again, taking one of them down with him, following which he was hit from every direction, including his back;

(d) he took the man down to avert any hit or other reaction from him, and acted from fear; and

(e) he then picked up the knife.

[70] Mr. Daher testified that he saw the woman hitting the head and shoulders of the defendant forcefully 3 or 4 times with a large orange and black construction pylon. He identified a broken portion of a pylon (the top 2/3) as the pylon being used in a photograph taken shortly after the police arrived.

[71] I conclude that there is evidence which, if believed, would allow a reasonable jury to conclude that the defendant believed on reasonable grounds that the three persons were using force against him, hitting him on his cheek and his chest and then, after he had fallen to the ground, on his back, and that he picked up the knife for the purpose of protecting himself.

[72] Even though the defendant did not testify that he picked up the knife to defend himself, the evidence of the circumstances in which the knife was picked up is circumstantial evidence that allows a reasonable inference that he did so to protect himself. A reasonable properly instructed jury could conclude that that was why he picked it up.

[73] Similarly, the circumstantial evidence would allow a reasonable inference that doing so was reasonable in the circumstances. Considering s. 34(2), the defendant testified that he was being attacked by 3 persons; that the first violence came from one of the other 3; and that he was outnumbered and outsized. Mr. Daher testified that the woman was using the pylon as a weapon.

[74] I therefore conclude that there is an air of reality to the claim of self-defence advanced by the defendant.

[75] Consequently, the issue is whether the Crown has proven beyond a reasonable doubt:

1. that the defendant did not believe on reasonable grounds that Mr. Vallee and his companion or companions were using force against him or threatening to do so;

2. that the defendant did not pick up the knife for the purpose of defending or protecting himself from the complainant; or

3. that the act of possessing the knife was not reasonable in the circumstances.

(g) The Defendant Is Not Guilty of Possession of the Knife for a Purpose Dangerous to the Public Peace

[76] The offence of possession of a weapon for a purpose dangerous to the public peace requires that the defendant knowingly be in possession of a weapon, and that the purpose for his or her possession is contrary to the public peace.

[77] Much has been written on how a court is to determine whether the latter element has been made out. See R. v. Kerr, 2004 SCC 44. But if he possessed the knife for the purpose of self-defence, that analysis is irrelevant. Subsection 34(1) provides that a defendant is not guilty of "an offence" – i.e. any offence – if the section applies.

[78] The defendant testified that he was being assaulted when he picked up the knife.

[79] He said he was hit on his cheek, chest and back. The evidence of him being hit on the back while he was lying on the ground was corroborated by Mr. Daher's evidence, and partially corroborated by the photograph of the broken pylon which Mr. Daher said was used to hit him. There is no evidence to the contrary. I find that the defendant was being assaulted by being hit on the cheek and chest, and by being hit on his back with the pylon when he was on the ground.

[80] The defendant did not testify about why he picked up the knife. He said he remembered nothing after picking it up. But it is a reasonable inference that he did so to defend himself from the continuing assaults. The Crown has not proven beyond a reasonable doubt that he did not pick it up at that time, or that he did not pick it up for that purpose.

[81] Nor has the Crown proven that the act of picking up the knife was not reasonable. The defendant was being attacked by two or three people. That attack included being hit by a pylon. He was outnumbered and, without the knife, at significant risk.

[82] I am at the least left with a reasonable doubt as to whether the defendant picked up the knife to protect himself and whether doing so was reasonable in the circumstances.

[83] The charge of possession of a weapon for a purpose dangerous to the public peace is dismissed.

(h) The Defendant Is Not Guilty of the Offence of Breach of Undertaking to Not Possess a Weapon

[84] Subsection 145(5.1) of the Criminal Code provides:

Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1)

(a) Is guilty of an indictable offence …

[85] There is no doubt that the defendant was in possession of a knife, which was a weapon. The defendant admits that he was on an undertaking which contained a condition prohibiting him from possessing a weapon.

[86] I have considered as an initial issue whether the words "the proof of which lies on the person" have the effect of requiring the defendant to prove that he had the "lawful excuse" of self-defence to explain why he was in possession of the knife. The law is clear that that is not so. Alan Gold wrote at page 1476 of The Practitioner's Criminal Code 2018:

An offence that prohibits a person from committing a certain act "without lawful excuse, the proof of which lies upon him", does not violate the presumption of innocence, where the prosecution must place before the court a complete case for conviction before the accused need resort to a "lawful excuse". The words "without lawful excuse" do not encompass excuses or justifications that would exist if the words were omitted from the provision, but add an additional defence. The otherwise available pre-existing common law defences are not required to be proved by the accused, as they are not affected by the words "the proof of which lies upon him".

[87] Mr. Gold does not provide authority for this proposition. It is, however, well supported by authority. See Brownridge v. The Queen (1972), 7 C.C.C. (2d) 417 at p. 434 (S.C.C.); R. v. Santeramo (1976), 32 C.C.C. (2d) 35 at p. 44 (O.C.A.); R. v. Moser, [1992] O.J. No. 602 at para. 43 (C.A.); R. v. Legere, [1995] O.J. No. 152 at para. 32 (C.A.). Consequently, the issue with respect to self-defence is the same for the breach of undertaking charge as for the charge of possession of a weapon for a purpose dangerous to the public peace – whether the Crown has proven beyond a reasonable doubt one of the three things set out in paragraph 75 above.

[88] For the same reasons I have already explained with respect to the charge of possession of a weapon for a purpose dangerous to the public peace, I conclude that the Crown has not done so. Consequently, the charge of breach of undertaking is dismissed.

Released: March 8, 2018

Signed: Justice P.K. Doody