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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: February 13, 2018

Ontario Court of Justice

Toronto Region

Between:

Her Majesty the Queen

-and-

P.S. (A Young Person)

Before: Justice D. Oleskiw

Youth Justice Court

Heard: July 18-21, 24-28, August 3, 9, September 27, December 14, 15, 2017

Judgment: February 13, 2018

Counsel:

• Mr. A. Del Rizzo and Ms. B. Donohue for the Crown
• Mr. P. Bawden (as he then was) appearing on the evidence, Ms. P. Rochman appearing on final submissions and Ms. J. Griffiths for the Young Person

Decision

D. OLESKIW, J.:

A. INTRODUCTION

[1] P.S. stands charged with the second degree murder of S.K. on February 3, 2016. S.K. died as a result of a single stab wound to the chest that was incurred during a marijuana trafficking transaction. P.S. admits that he held the knife that caused the fatal injury.

[2] The Crown submits that P.S. intentionally stabbed the deceased in the middle of his chest, and either he meant to kill him, or he intended to cause him bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not. Alternatively, at least the offence of unlawful act manslaughter has been proved.

[3] P.S. pleaded not guilty to the charge. The defence position is that P.S. was holding the knife out in self-defence and that the stabbing itself was an accident. The Crown has not disproved these two defences beyond a reasonable doubt and, accordingly, there was no unlawful act. Without an unlawful act neither the offence of murder nor the offence of manslaughter is made out. Alternatively, if the Court finds an unlawful act beyond a reasonable doubt, the Crown still has not proved the specific mens rea required for murder. Nor has the Crown proved the objective foreseeability requirement of manslaughter.

[4] The live issues in this trial are how the stab wound actually happened and the mental state of P.S. at the time.

The Trial

[5] P.S. elected trial before a Youth Justice Court without a jury. The Crown presented the evidence of eleven witnesses, three of whom were involved in the drug deal and the events immediately surrounding the stabbing. Police witnesses testified as to investigative steps and the scene of the homicide. Surveillance videotape captured parts of the events immediately surrounding the stabbing, but not the stabbing itself. P.S. chose to testify in his defence along with other defence witnesses who were called to speak to the unreliability of one Crown witness, S.P.

B. THE EVIDENCE

[6] I will refer to the young person as P.S. throughout this written judgment in order to honour the publication ban pursuant to the YCJA. After initially identifying the young witnesses, I will refer to them by their first names, because that is how they were referred to throughout the trial. Any publication of this decision will refer to E.G. as E.G., as he, too, is a Young Person.

Background Facts

[7] Much of the Crown's case was uncontested. As such it is convenient to summarize the undisputed evidence.

[8] P.S. and E.G. were both seventeen years old in February, 2016. They had been good friends since grade nine and they attended high school together in Mississauga. They lived with their parents and held down part time jobs at McDonalds. Neither had ever been in trouble with the police.

[9] E.G. and P.S. supplemented their income by selling small amounts of marijuana. In late January 2016, a school-friend of P.S., S.P., contacted P.S. and asked if he would sell him two ounces of marijuana. P.S. had sold small amounts of marijuana to S.P. in the past and, on one occasion, P.S. had "spotted" marijuana to S.P., (meaning he provided the drugs upfront and accepted a promise to pay later). On this occasion, negotiations followed S.P.'s initial request and the deal was to take place on February 3, 2016.

[10] On the evening of February 3, 2016, E.G. drove his father's car to Etobicoke with P.S. and the two ounces of marijuana to meet S.P. and complete the deal. P.S. and E.G. were concerned that S.P. asked them to come to Etobicoke since they knew that S.P. lived in Brampton. However, they agreed to meet S.P. at an apartment building at 555 The West Mall. They expected that S.P. would be alone when they met.

[11] When they arrived at 555 The West Mall at around 6:00 p.m., P.S. and E.G. were asked to come up to an apartment to complete the sale. They declined and insisted that the sale take place in the car. S.P. came to the car. However, he was accompanied by two men who were strangers to P.S. and E.G. One of the strangers was E.F.S. and the other was S.K., the deceased.

[12] E.G. and P.S. expected to be paid approximately $400 for the two ounces of marijuana which they brought with them. When S.P., E.F.S. and S.K. got into the backseat of the car, they said they needed to go to the bank to get money. E.G. drove to a nearby bank where S.K. and E.F.S. entered the bank and went to an ATM machine. They returned to the car quickly, which made E.G. and P.S. suspicious because they did not think the men were gone long enough to withdraw $400.00.

[13] The men now insisted that they had to try the marijuana before purchasing it. E.G. drove to a secluded spot where they smoked a joint. E.G. then drove back to 555 The West Mall and parked in its parking lot.

[14] Once parked, the parties had further discussions. The men wanted to see the marijuana and P.S. and E.G. demanded to see the money. The exchange became heated and finally P.S. told E.G. to let them see the marijuana. E.G. passed the marijuana to the back. Once the men in the back had possession the marijuana, S.P. said, "You guys just got robbed. Don't fuck with us".

[15] The five males got out of the car and altercations ensued. There is some conflicting and sometimes vague evidence from three of the five males, E.G., S.P. and P.S. as to what happened over the course of the following minutes and hour. The fourth male, E.F.S., was completely uncooperative in the testimonial process and his evidence is tantamount to no evidence. The fifth male, S.K., is dead.

[16] Notwithstanding some differences in the three male's versions of events, the following basic facts are well established. After S.P. said "You guys just got robbed. Don't fuck with us", E.G. got out of the driver's seat. The deceased, who had been seated immediately behind E.G., exited from the door behind him. Meanwhile, P.S. got out of the front passenger side. E.F.S., who had been seated immediately behind P.S., and S.P., who had been in the middle rear seat, also got out of the car on the passenger side. P.S. testified that he pulled out his small folding knife while he was outside on the passenger side of the car and held it out to dissuade E.F.S. and S.P. from attacking him. Very shortly after the interaction between E.F.S., S.P. and P.S. on the passenger side of the car, S.P. and P.S. went over to the driver's side of the car where E.G. and S.K. were located. The Crown alleges that P.S. stabbed the deceased during the melee that ensued.

[17] After the events at the car, E.F.S. ran toward the rear of the neighbouring property, 551 The West Mall and jumped the fence to enter that property. S.P. ran along the driveway toward the entrance of 555 The West Mall with P.S. chasing closely behind him. P.S. was not able to catch S.P. S.K. ran in the same direction as E.F.S. and also jumped the fence. E.G. chased S.K. and saw him collapse on the front lawn of 551 The West Mall approximately two minutes after the events at the car.

[18] Some of the actions of the five men are caught on videotapes from 551 The West Mall, that is the property beside 555 The West Mall and a videotape from 455 Rathburn Road, which captures part of the parking lot of 555 The West Mall where E.G. parked the Honda Civic. Also, the Court heard from two residents of 551 the West Mall who heard and observed some of the events not otherwise caught on videotape, one of whom called 911.

The Videotape Evidence

The Video from 551 The West Mall (rear camera)

[19] The grainy surveillance video from 551 The West Mall shows E.F.S., then S.K., and finally E.G. coming over the fence that separates 555 The West Mall and 551 The West Mall. E.F.S. runs off to the right side of the screen then disappears from view. S.K. attempts to follow E.F.S., but is cut off by E.G. S.K. stops, faces E.G. and then runs towards the left side of the screen. E.G. follows him and the two go off camera. E.G. returns to view eighty seconds later and moves back toward the fence. S.K. does not reappear.

[20] E.G. testified that he chased S.K., and after slipping a few times, S.K. eventually fell to the ground. E.G. realized there was something seriously wrong with S.K. after he fell and did not get back up. It is not disputed by any party that S.K. had already received the fatal stab wound to his chest before he jumped the fence over to 551 The West Mall.

The Video from 455 Rathburn showing the Parking Lot at 555 The West Mall

[21] The Rathburn video shows E.G.'s Honda Civic entering into the parking lot of 555 The West Mall and turn into a parking space which is off camera. At 4:19 a figure enters the screen and runs in a circular path going in the direction of the rear of 551 The West Mall. Within two seconds a second figure is seen running in the same path, but that figure stops and runs back in the direction from which he came. At 4:24 a figure appears and runs in the same path as the first figure towards the rear of 551 The West Mall. At 4:25 S.P. comes into view running quickly towards the entrance of 555 The West Mall with P.S. following immediately behind him. At 4:28 the final figure appears on screen running in the same circular path towards the rear of 551 The West Mall.

[22] Exhibit 14, which is Appendix A to this judgment is the agreed statement of fact as to what is shown in this video together with the 551 rear camera video, as calibrated. I will refer to further observations from the videos in the course of discussing the rest of the evidence.

The Video from 551 The West Mall (front camera)

[23] The grainy video from front of 551 The West Mall shows a figure on the ground, the arrival and departure of two figures and the arrival of a fire truck and ambulance within minutes of the departure of the two figures.

Apartment Observers

[24] Rita Bazankurs lived at 551 The West Mall on February 3, 2016. Just before 7 p.m. on the night of the incident, she went to her open window and saw two people standing in the middle of the field, with one saying "What the fuck, what the fuck". She went back to her bed to watch television and came back to the window less than 15 minutes later at which time she saw two people crouched over, looking like they were looking for something. Shortly after this a firetruck arrived on scene.

[25] Jane Frustaci also lived at 551 The West Mall on February 3, 2016. That night at around 7:00 p.m., she heard a kerfuffle, being two male voices that got loud and then stopped. She looked out her window and saw one man running toward the fence. As he was jumping the fence, she saw another on the other side of fence. She then went to her living room window, saw a body on ground and called 911.

[26] S.K. was found lying on the front lawn of 551 The West Mall. His cell phone, with a spatter of his blood, was found on the lawn of 551 The West Mall. His bank card together with a $20 bill was found near a garden in a different area of the same property.

Pathologist's Evidence

[27] S.K. died of a single puncture wound to the chest. He did not have any defensive injuries. More particularly, Dr. Brett Danielson, who performed the autopsy on February 4, 2016 testified that the cause of death was a single stab wound to the right centre of the chest. The blade entered between the fourth and fifth ribs, perforated the right lung, and penetrated the heart, severing the right coronary artery. The mechanism of death was internal bleeding. The stab wound was associated with 2.5 litres of internal bleeding.

[28] There were two abrasions adjacent to the stab wound. An abrasion or scrape is defined as a blunt force injury to the skin created by forcible pressure or friction at tangential impact. Dr. Danielson opined that the most likely cause of the abrasions was the impact of the hilt or handle of a knife. While that was the most likely explanation, he could not exclude other possibilities and could only say there had been "blunt force" to cause the abrasion or scrapes. It is possible that something like a button or zipper in clothing was pressed against the skin at the time the knife went in the body that might explain the abrasions rather than the hilt of a knife. If clothing covered the abrasion, a greater degree of force would be required to create the abrasion than if it occurred on bare skin. He only knew of a "defect on the front of the shirt that was in the region of the stab wound". The abrasions could also have occurred before or after the stab wound.

[29] The degree of force required was sufficient to "cut the cartilage of the ribs and to create the abrasions adjacent to the stab wound". Dr. Danielson could not quantify the force any further than this. He testified that aside from bone and teeth, cartilage is the second hardest tissue in the body. However, cartilage in younger people is not as hard as in adults. As one would expect, there was no evidence of calcification of the cartilage in this 17 year old deceased. The sharpness of the tip and blade of the knife would be the most important factors in determining the amount of force necessary to pass into the tissues, including cartilage.

[30] Dr. Danielson stated that the sharp object went into the body at a roughly horizontal orientation and that the incised tail indicates that there was some movement of the knife within the "in and out" wound track. He said that this could represent movement of either the body or the knife or both.

[31] Dr. Danielson did not examine the deceased's jacket to see if the knife could have gone through the jacket. He did, however, see a cut in the deceased's tee-shirt.

[32] S.K. also had two superficial abrasions on his right hand. One was on the back of the right hand at the knuckle of the middle finger. The other was on the palm of the right middle finger at the finger joint.

[33] Dr. Danielson also testified that it is impossible to be precise about a time interval from injury to death or unconsciousness. However, he opined that it would be in the range of minutes, although a fairly wide range. He also said that in that period of time, a significant amount of physical activity is possible, including "physical activity that you might expect wouldn't be possible", like running a few blocks.

[34] He stated that S.K. was 6 feet tall and weighed 163 pounds.

The Males Involved in the Drug Transaction

E.G.'s Evidence

[35] In February of 2016, E.G. and P.S. were very close friends and classmates. E.G. considered himself the more dominant one in the relationship. He was bigger and stronger than P.S.

[36] E.G. regularly sold small amounts of marijuana, usually in the ¼ ounce range, and usually to friends or people at school or work. Aamer Singh was his only supplier. Aamer was a family friend from church who E.G. had known for eight years. Although his mother believed Aamer was good influence on him, E.G. believes that he was a bad influence. E.G. said that he actually wanted to stay away from Aamer because he wanted to get off drugs.

[37] E.G. believed that P.S. had previously been robbed at knifepoint during a marijuana deal and that P.S. had stopped selling in grade 10 because of that incident. P.S. started selling marijuana again in grade 12.

The February 3, 2016 Deal

[38] E.G. recognized the text messages between P.S. and himself. On January 31, 2016, P.S. texted E.G. asking how much is two ounces of marijuana. E.G. answered "it's about 360-440", "$$$", "and it's 56g". P.S. texted "someone wants 2", "he said 370", "Do u wanna deal with it", "Tell Aamer to come to sauga", "or something". E.G. responded "That's way too low", "I could chop ( deal ) for 410$". P.S. asked "So how much should I tell him", "So should I tell him 410 or 400". E.G. answered "Tell him 410", "for some fire ( high quality )".

[39] Approximately four minutes later P.S. texted, "Okay I told him bro", "But yo", "Idk if he's tryna rob so if he's down for 410", "I am gonna bring a lot of people with us", "Incase". E.G. asked "who is it", "okay". P.S. then texted, "Yo nvm ( never mind )", "I'm gonna tell him I'm selling it for 380 and I'm gonna rob his money". E.G. responded "Okay", "Let me know if you need me".

[40] E.G. testified that P.S. was bringing the two ounce deal to him. Two ounces of marijuana was the biggest sale he had ever had. P.S. had no real relationship with Aamer Singh. Rather, E.G. had the relationship with Aamer. If someone had to repay Aamer for the marijuana, it would be E.G.

[41] In cross-examination, E.G. testified that he was going to make the sale and he was going to share some of the proceeds with P.S. because P.S. introduced S.P. to him. In re-examination E.G. said that E.G. was going to take the cut for how much the marijuana cost and P.S. was going to take the profit. However, he could not remember the sale price. He thought he was paying $400 and they were selling for $440, but he could not remember.

[42] E.G. further testified that there was never a plan between him and P.S. to rob the buyer. When P.S. indicated in his text message that he was going to rob the purchaser, E.G. did not take him seriously at all. He said P.S. was a very skinny and small guy who does not have an aggressive personality, so when writing his text response he was thinking, "to be honest, like, I look at [P.S.] and I go, like, who can he rob, right? But, Your Honour, I, I usually talk him out of stuff like this....I knew he wasn't going to do it". In re-examination he clarified that it had never happened before and what he meant to say was that he could talk P.S. out of it.

[43] E.G. and P.S. were both suspicious that they might be robbed in the present deal. This started with the buyer originally wanting to pay $360 and then so easily agreeing to pay $410. Also, the further series of events after they first arrived at 555 The West Mall made him nervous. He readily acknowledged that the threat of being robbed is a constant concern in almost every marijuana deal. Accordingly, he and P.S. made efforts to guard themselves against the possibility of being robbed. That said, E.G. had sold a small amount of marijuana to S.P. with P.S. at S.P.'s house in Brampton several months before February 3. Accordingly, E.G. knew S.P. to be a friend of P.S. from summer school and that he had sold to him at least once before. So, he seemed to be a person to sell to.

The Events of February 3, 2016

[44] At approximately 11:00 a.m., E.G. was using his father's Honda Civic when he went with P.S. to Aamer Singh's place in Brampton to pick up three ounces of marijuana. After picking it up, they went to a "random street" in Mississauga and weighed out an ounce of marijuana, which P.S. kept in a red container. P.S. kept this container and marijuana. E.G. kept the other two ounces under his car seat. Then, E.G. dropped P.S. off at home and he went to his girlfriend's house.

[45] At around 5:30 or 6:00 p.m. E.G. received a call saying S.P. wants two ounces. He had met S.P. briefly, once before that day, but did not know his last name. He left his girlfriend's house and picked P.S. up at the McDonalds where they both worked at the time.

[46] They went to an apartment building on The West Mall, arriving at about 6:00 p.m. At that point, P.S. was receiving messages telling him to come inside. However, E.G. and P.S. did not want to do that. They wanted the buyer to come inside the car. After approximately five or ten minutes, three males came outside. E.G. only recognized S.P., but not the other two. They got into the back seat of the car. S.P. was in the middle, S.K. was behind the driver and "E.F.S.", whose proper name is El-E.F.S., sat on the passenger side, behind P.S.

[47] Next, they drove to the Scotiabank and S.K. and E.F.S. got out of the car to withdraw money. E.G. considered them to be "surprisingly quick" for taking out $400 or $440, so he said that this confused him a bit. He did not remember conversation with S.P. who remained in the car while the other two were in the bank.

[48] One of the three guys wanted to test the weed, but no one had rolling papers. So, they drove to a convenience store, got some rolling papers, and then parked in another area where they rolled a joint. E.G. was nervous about the fact that S.P. was joined by two strange men, that S.K. and E.F.S. had been too quick in the bank and now wanted to test the marijuana. So, when he got out of the car to smoke he took a weapon, some wires that were rolled like a club which he kept under his seat. They all smoked the marijuana. Then, they all got back in the car and returned to the building where they originally picked the guys up. E.G. said he returned the wires to the car once they got back into the car.

Events Around 555 The West Mall

[49] E.G. said that he was vague in his memory of where he parked the car exactly. He ultimately said during his examination-in-chief that he remembered parking the car in front of the field (behind 555 the West Mall), with the garage building to his left when he looked out his front window. However, in cross-examination, once he was shown the video and aerial picture, he clarified that he actually parked the car in front the garage building.

[50] It was dark when he parked. In the car, there was a few minutes of conversation about the sale. Basically, P.S. was saying that now that the pot was proved, we expect to see the money. S.P. was insisting that they wanted to inspect the marijuana first. P.S. was the primary negotiator for them and S.P. was the primary negotiator for the purchasers. Finally, P.S. said "ok, show them the weed". So, E.G. passed the marijuana to S.P. without first receiving the money. S.P. opened it up, took a smell, then closed it and passed it to S.K. S.P. then immediately said: 'You just got robbed, Don't fuck with us.'

[51] Then, the three got out of the car – S.K. from the left rear seat and E.F.S. and S.P. from the right rear seat. P.S. and E.G. looked at each other quickly, but no words were exchanged. Then E.G. and P.S. also got out of the car "because we just got robbed."

[52] As soon as E.G. got out of the car, he saw a fist flying to his face. S.K. was already out of the car and ready to punch him. He landed a "pretty hard" punch on E.G.'s jaw. E.G. tried to punch S.K., but missed. Then, S.K. punched E.G. again and E.G. was knocked down to the ground. While he was fighting with S.K., E.G. did not see S.P., E.F.S. or P.S. He was not sure how long he was on the ground, but thought that it was a minute or two. When asked how close to the car the fight with S.K. took place, E.G. at first said it was "right between" his car and another car. In the same line of questioning in-chief, he became "pretty sure" of this. Then, he was "not too sure if there was [another] car". Then, he could not remember.

[53] When E.G. got up, he saw P.S. chasing two guys across or towards the building and S.K. running across the field. He said that he chased S.K. "because [P.S.] was chasing two guys and then it was just the one guy, so I went to chase him...and also, he had the marijuana, too. To my knowledge." E.G. wanted it back.

[54] He did not see anyone with a weapon. However, before chasing S.K. he looked in his car for a weapon and grabbed the wires which were under the car seat. The wires E.G. had were heavy copper wires that were wound up into a club, about 14" long, with the thickness of a broom handle. He kept the wires in the car for protection that night.

[55] E.G. testified that when he stepped out of the car he was not sure what he was going to do other than try to get the pot back. S.K. "sucker punched" him before E.G. could decide how he was going to get it back.

[56] In cross-examination E.G. agreed with defence counsel that he was afraid for his life when he reached for the wires in the car and that he did it to defend himself because he was scared for his life. However, in re-examination, E.G. clarified that he honestly did not remember whether he was afraid or not and certainly was not afraid at the point in time when he was chasing S.K. with the wires.

[57] E.G. did not recall "small details like" where he placed the wires while he chased S.K., but said that he usually kept them in the inside pocket of his jacket. He chased S.K. over a fence and then:

"And we're running, running, running. He slips and falls, and he tries to get up, and then he falls again. He tries to get up, and then he falls again. And then finally he's lying there. And then I go in and I grab the weed and I go towards [P.S.]."

[58] E.G. was chasing S.K. for approximately one minute and ten seconds over a total distance of approximately 60 metres. Off camera and by virtue of blood deposits, it was accepted that S.K. was moving around in the area before he fell. E.G. described it as S.K. actually sprinting in the area.

[59] E.G. testified that he did not know that S.K. was injured before he got close to him to take the marijuana from in between his pants and underwear. He thought S.K. had slipped on the icy ground near the end of the running. He said that he didn't think he touched S.K. when he grabbed for the marijuana. He did not see blood then or later on the marijuana bag. However, he did know "something happened" when he saw that S.K. was shaking and making a weird face. He could not explain how S.K.'s blood was deposited on his car's gas tank release which was only accessible to him, the driver. He denied that there was blood on the wires.

[60] E.G. admitted to having faulty recollection of the night, when shown video footage. Specifically, E.G. initially did not remember going back over the fence a second time. Once shown a number of security videos from the area, he acknowledged his mistake and that he had gone over the fence twice to the location of S.K. He denied or could not remember that on the first occasion he was unable to find the marijuana and instead removed the deceased bank card and a $20 bill. The items were located by the Police in a location, being the garden bed at 551 The West Mall, that only E.G. can be seen passing by in the video.

[61] E.G. agreed that the video seems to show some kind of altercation between him and S.K. on the front lawn at 551 The West Mall, but denied any memory of either using the wires on S.K. or taking S.K.'s bank card and $20 bill. He acknowledged in cross-examination that in his first interaction with S.K. he would have been the person yelling "What the fuck, what the fuck".

[62] E.G. said that he returned to find P.S. in an area that was pitch black over at 555 The West Mall. He told P.S. that he had the marijuana but that something was wrong as S.K.'s face was weird. His first position was that P.S. ran forward to where S.K. was on the ground and P.S. looked at S.K. momentarily while E.G. stayed back. He maintained in chief that he did not see S.K. a second time because P.S. went ahead of him. When confronted with an independent witness's observations, he appeared to acknowledge that both he and P.S. were in fact crouched over S.K. at this time, but he insisted he did not recall the part about him (E.G.) looking for the marijuana at this time. Rather, he maintained that he got the marijuana in his first interaction with S.K. and told P.S. this when he met him over at 555 The West Mall.

[63] E.G. said that the two ounces of marijuana was about the size of a softball, but that night it was flattened in a plastic bag and rolled up like a cylinder. He said that he had no trouble seeing it on S.K. when he first approached him.

[64] When they were in the car on the way to Mississauga, P.S. pulled out the knife and told E.G. that he stabbed S.K. His exact words were, "I stabbed him". When he said this he was "really, like, like out of it. He was about to "cry". P.S. started calling people. They went to C.G.'s house to pick her up. He did not recall being asked by C.G. about what weapon he used and him showing her the wires. He called Aamer Singh and told him "something bad happened". They arranged to meet at a Mr. Sub in Brampton.

[65] When they got to the Mr. Sub both he and P.S. used the washroom. They were talking and Aamer was trying to calm them down, saying, "it's ok. No one dies from one stab wound and stuff like that". He saw a "little bit of blood" on P.S.'s hands in the Mr. Sub and E.G. had "a little tiny bit" of blood on him. E.G. was inconsistent about whether he saw P.S. give Aamer the knife. They followed Aamer's suggestion, gave him the knife and the wires to dispose of. They drove behind the Mr. Sub and the items were disposed of in a garbage bin. He did not see blood on the wires. He gave Aamer the wires to get rid of them. He was not sure why, he just gave it to him.

[66] After they left Mr. Sub, they dropped C.G. at home and then parked in a corner near some stores at Confederation Parkway. While there, they found out from CP24 on a phone that S.K. had died. He and P.S. hid some marijuana and drug paraphernalia behind a tree in the area outside. E.G.'s father had called yelling because E.G. did not pick up the phone. E.G. thought he would get angry and take the car, so he hid the marijuana and paraphernalia intending to pick it up the next day. He drove P.S. home. The next day, they were unable to find the items that they hid. Also, the next day E.G. noticed a cut on his wrist and that he had a sore jaw.

[67] E.G. said that the first time he learned that S.K. had been stabbed or had this injury was when he was in the car driving towards Mississauga. He first learned that S.K. had passed away the same night while parked near Confederation Parkway.

[68] He did not know P.S. had a knife on him that day but he had seen the knife in January, 2016. He only remembered that had a green handle and black blade.

[69] E.G. was initially charged with the murder of S.K. In May of 2017 he gave a statement to the police and after that he pleaded guilty to the charge of obstruct justice.

P.S.'s Evidence

[70] P.S. testified that he was born in India and came to Canada in 2010. He lived with his mother and father in Mississauga. His brother attends university. At the time of the incident, he was in high school and getting grades in the range of B minus and B plus. He had ambitions to become a commercial airline pilot, and, in fact, completed a co-op program at Pearson Airport. At the time of the stabbing, he was a full-time student with a full course load, worked part-time at McDonalds and had done work for a political party.

[71] He became good friends with E.G. beginning in grade 7. E.G. was one of his best friends.

[72] P.S. told the Court about how he sold marijuana when he was in grade nine, but stopped in grade 10 after being robbed at knifepoint when selling to a friend from school. He lost his cell phone in that robbery too. At the time of that robbery, he was afraid for his life.

[73] He started helping E.G. sell marijuana again in grade 12. Essentially, he introduced buyers to E.G. and got small sums of money, like ten or twenty dollars, in return.

[74] P.S. met S.P. when they attended summer school together. Once, he "spotted" S.P. some pot and S.P. paid him back as he had promised.

The February 3, 2016 Deal

[75] In late January, S.P. asked P.S. to supply him with two ounces of marijuana. P.S. considered this to be a large amount of pot for a teenager. He had never sold that much marijuana before, so he texted E.G. to ask how much two ounces would cost. P.S. acknowledged the text exchange he had with E.G. and said that his words "I'm gonna tell him I'm selling for 380 and I'm gonna rob his money" were just something stupid that he said. He was clear that he and E.G. were not, in fact, planning to rob S.P.

[76] P.S. was also clear that this was E.G.'s deal. He always went to E.G. E.G. was responsible for paying Aamer. If the marijuana got lost that night, E.G. was the one who would have to pay Aamer.

The Events of February 3, 2016

[77] After they picked up the marijuana from Aamer on February 3, 2016, he and E.G. scaled out approximately half a gram and put it in a small red container. P.S. said that he was never in possession of the two ounces of marijuana. E.G. kept possession of it until it was handed to S.K. in the car later that night.

[78] P.S. initially thought that he and E.G. were meeting S.P. in Mississauga to complete the deal. He lived about twelve minutes by car from P.S.'s house in Mississauga. However, on February 3, after he and E.G. obtained the marijuana from Aamer, S.P. told them to come to 555 The West Mall. P.S. did not know the area at all. Further, there were multiple telephone calls in which S.P. wanted them to come up in the building, saying we can smoke and have fun. E.G. said no, so P.S. communicated that to S.P. He said that he trusted S.P. at the time, and did not think too much of it. He had told E.G. earlier that they should put their wallets and phones in the glove compartment to prevent them from being stolen. He thought that S.P. was coming by himself. When he showed up with two strangers P.S. was shocked at first, but then was okay with it. He thought there was a possibility of being robbed now that he and E.G. were outnumbered.

[79] P.S. said that he bought the small hunting knife at Canadian Tire about two or three months before the incident. It was still a new knife and he had not really opened it, so, on February 3, it was stiff to open. He kept it in the left bicep pocket of his jacket. He kept it on him "to protect himself". He had shown the knife to E.G. and he knew that E.G. kept a set of cable wires tied like a club under his car seat.

[80] P.S. agreed that after S.P., S.K. and E.F.S. got in the car, they drove to the bank, where, he too, considered that E.F.S. and S.K. were in the bank too short a time to get $400. When they got back in the car, they said they wanted to test the weed. S.K. and S.P. went into a store to get rolling papers and then they went and smoked.

[81] P.S. said that he did not want to smoke at the time because he had stopped smoking pot in order to get ready for blood tests that would be done in furtherance of his pilot's licence. When S.P. accused him of lacing the weed, he felt compelled to smoke. So he did.

[82] P.S. said that the marijuana took about two or three minutes to take effect. He described that the pot made him "not completely high, but tipsy like when you are drunk".

The Events Around 555 The West Mall

[83] P.S. testified that he remembered the parking spots being full at 555 West Mall when they returned. They parked in a spot that had a garage structure in front of them. Exhibit 35 was marked to show where the car was parked. There were cars parked on both sides of E.G.'s Honda Civic. There was a light stand across the way, but it was dark in the parking lot.

[84] After they parked the car, S.K. was 'sweet talking' to them. He said it was good pot, we are good customers and you guys are going to make good money off it. At this point, P.S. said he was kind of happy for E.G. and he did not think they were going to get robbed. S.P.'s party started asking to see the marijuana again and P.S. or E.G. started asking to see the money first. There was a back and forth between the two groups about each trying to rob the other. After the argument went on for some time, P.S. decided "whatever, I trust S.P.", so he told E.G. to give S.P. the marijuana. When S.P. got it, it went to E.F.S., then S.P., and then to S.K. After a good five second pause S.P. said "You guys just got robbed, don't fuck with us".

P.S.'s version of the events after "You guys just got robbed, don't fuck with us"

[85] In his examination-in-chief, P.S. described the events as follows: He and E.G. looked at each other for a second or two. No words were exchanged. They just got out of the car; E.G. on the driver's side, P.S. on the passenger side. P.S. testified that he got out of the car with the intention of getting the stolen marijuana back.

[86] When he got out, he saw E.F.S. pulling up his pants, with his fists up, ready to fight. At this point P.S. reached into his left bicep jacket pocket, pulled out his folding knife and opened the blade. While that was happening, S.P. was getting out of the car on the passenger side too and he was ready to fight P.S. Based on this, P.S. believed he was going to get beaten up by two people. So, at this time P.S. held the knife out in front of him at a 90 degree angle for approximately two or three seconds. S.P. then said, "holy shit he has a knife".

[87] At this point the rear passenger side door was open at a 45 degree angle. There was no opportunity to run in the other direction because there as a wall behind him and cars on either side. P.S. was blocked in.

[88] P.S. testified that his purpose in holding the knife out in front of himself at that point was to scare E.F.S. and S.P. so that they would not beat him up.

[89] At this time, from the corner of his eye, P.S. says that he could see E.G.'s head over the top of the Honda Civic. Then, all of a sudden, he did not see E.G.'s head anymore and he heard noises like the car banging and he heard "Fuck, fuck, fuck". Then he didn't see E.G. anymore.

[90] After S.P. said he has a knife, P.S. did not see E.F.S. anymore. He said that E.F.S. was out of his sight, but that he did not see him running. Then, S.P. went to the other side of the car and out of P.S.'s sight.

[91] P.S. testified that there was no altercation between himself and S.P. on the passenger side of the car as described by S.P. Rather, as soon as S.P. said "he has a knife", S.P. ran around the back of the car to the driver's side.

[92] P.S. said that three or four seconds after S.P. went to the other side, he walked slowly towards the backside of car where he could not see anything. When he got a bit more toward the passenger door, he saw S.K. and S.P. crouched down. The next second S.K. and S.P. started running towards P.S. with E.G. lying down, but trying to get up. P.S. estimated that he was about four or five metres from S.P. and S.K. when he first saw them beginning to run toward him.

[93] S.K. and S.P. were initially running side-by-side, but S.P. began to veer off. As S.P. and S.K. ran towards P.S., he said that he "put his knife out to show them". He did this because, "they both were running towards me" and "I saw S.K. with his fist closed about to punch me and I thought I was going to get beaten up". He focused his attention on S.K. because S.P. started to veer away from him. S.K. was "first running, bolting and then I see his hands come up like this" [demonstrating a shoulder level punching stance]. The following questions and answers were given in-chief:

Q: What, if anything, do you draw from the fact that S.K. was running in your direction and his fist was drawn back?

A: I saw at that time my knife was out too, and then the next second later, he was behind me.

Q: Did you come into contact with S.K.?

A: Like, what do you mean by that?"

Q: Well, you told us that you saw S.K. and S.P. crouched down near E.G. who was trying to get up from the ground.....and the two of them started to run towards you and S.P. began to veer off, but S.K. continued towards you and you saw his fist was clenched?

A: That's correct.

Q: So, do you at that time physically touch S.K. at all?

A: No

Q: Does your hand touch S.K. at all?

A: I feel like my hand brushed his chest....

Q: ...what exactly happens as S.K. ran towards you?

A: So, as he's running towards me, he has his fists in a closed, ready to punch me and at that time, I had my knife out too and he just ran towards me and he just ran away and I feel like my hand touched his chest or something.

P.S. maintained that, at this point, he did not know that the knife went into S.K. at all.

[94] When asked why he walked over in the direction of where S.P. went around the back of the car, he answered:

A: Because that's where E.G. was.

Q: Why would you want to go towards where E.G. was in this situation?

A: Because he was only my, like I guess you could say my back up.

Q: When you were going over towards where E.G. was, what did you intend to do, if anything?

A: Well, when I – if he was on the ground, I'd pick him up. If he's, they were standing, I'd ask him, "Yo, we got robbed".

Q: Did you have reason to think that E.G. was in some danger here?

A: Well I saw his head and then I didn't see it and then I heard scuffling and like swearing going on, so I did seem to think that he was in danger.

[95] P.S. testified that he did not see S.P. punch E.G. and he did not see E.G. unconscious on the ground. He did see E.G. trying to get up and at that point he seemed dazed.

Q: When you walked around to the back of the car, were you concerned for E.G.?

A: Yes

Q: Did you foresee the possibility that you might have to defend E.G.?

A: I guess so, yeah.

Q: Why didn't you just run away at that point?

A: Well, I - as I was going towards the other side of the car, I never knew that there'd be S.P. and S.K. there, right. So, when I do see them, they started running towards me, and if I would have run, they'd probably catch me.

Q: But at the point where S.P. has gone out of your view and you can only hear E.G. and S.K. on the other side of the car, why didn't you simply run away yourself and leave E.G. alone?

A: Because I was scared.

Q: Any reason you would go over and go where E.G. is as opposed to simply running away yourself?

A: Well, if there was people there, I produced my knife to scare them away so they don't hurt E.G. as well.

Q: Is helping E.G. something that was going through your mind at this time?

A: Yes, making sure that he was okay and safe.

[96] P.S. testified that he perceived that the S.K. was older than him and certainly that he was taller and stronger than him. He also thought that E.F.S. looked "kind of scary" because he had his hoodie on the whole time and never talked or smiled at all.

[97] He testified that at the moment when they were near the car, he did not realize that his knife had actually cut S.K. or gone into him at all. He made no attempt to stab at S.K. and he did not run after S.K. He denied that he ever made any slashing motions with the knife towards either S.P. or S.K. He said that he held the knife out in an effort to show S.K. that he had a knife and to prevent S.K. from punching him.

[98] It was not until several minutes later when he and E.G. went back to S.K. who was now lying on the lawn of 551 The West Mall, that he realized that he had stabbed him. He realized at that time because S.K. was "shaking and stuff" and he saw blood on S.K.'s chest.

P.S.'s actions after S.K. ran away

[99] After S.K. ran by him, P.S. saw E.G. getting up and he turned around and saw S.P. and S.K. running. He put his knife away in his right pocket, then looked at S.P., and at this time he "got kind of angry" because he lost his trust and started chasing S.P. He said he put the knife away before he started running because "it would be pretty stupid to run with the knife". He chased S.P. because he realized that S.P. had used him and betrayed him. He wanted to catch S.P. to tell him "why would you do this to me" and to get his marijuana back so that this could end peacefully.

[100] Despite the fact that P.S. was a cross-country runner, S.P. managed to outrun him, P.S. explained, because he was wearing heavy boots and he got tired very quickly due to being high. He believed that slow running was the only impact he felt from being high on the marijuana that the group smoked prior to coming back to the parking lot at 555 The West Mall.

[101] P.S. explained that he ran after S.P. but then slowed down, turned around and went back to the car because he started to realize that E.G. would still be back there. He felt the need to go back to see E.G., because he might be still there trying to get up. So he stopped chasing S.P. and went back to the car. (The Rathburn video shows that P.S. chased S.P. for approximately 17 seconds or less). When he did not see E.G. at the car, he closed the doors, took the keys out of the ignition and locked the car. He had no idea where E.G. was. He locked the car up because he wanted to protect against S.P.'s group stealing the car, along with his and E.G.'s wallets and phones that were in the glove compartment.

[102] The Rathburn video shows that P.S. jogged back towards the entrance of 555 The West Mall about one and a half minutes after he went back to the car. E.G. met him in that general area about 30 seconds later. P.S. recalled the conversation with E.G. as follows:

A: I think I remember telling him that – first, I think I first asked him is, do you have the marihuana? And then says, no. And then he touches his ...left jaw and he's like, I think I got knocked out. Then I'm like, so who has the marihuana? He's like, well, I think the other guy has it back there. I'm like where? He's like, well, he's down there. I think we both knocked each other out. And then we both go and we pursued to the – E.G. directs me to that place. ... He [E.G.] also said that he [S.K.] was on the ground, he was shaking.

[103] P.S. testified that it gave rise to concerns when E.G. told him S.K. was on the ground shaking:

A: Because it was like, it was like a puzzle. It started making more sense because then E.G. told me that he was on the ground, shaking, and the fact that like I felt my hand touched his chest. It kind of like made that he actually might have got hit.

[104] P.S. was absolutely certain that E.G. did not have the marijuana when he first met up with P.S. near 555 the West Mall. Rather, E.G. retrieved it from S.K.'s left jacket pocket when the two of them went back to where S.K. was lying near 551 The West Mall. P.S. also testified that he never touched or had anything to do with S.K.'s bank card or the $20 bill that S.K. had taken out of the bank.

[105] P.S. described what happened when he and E.G. went back to see S.K. lying near 551 The West Mall:

A: So, when I was crouched, I was, I would say near his head area and E.G. was searching for the marihuana and as I was looking at S.K., I was trying to see if he was breathing or not, but to me he was just shaking and there was blood coming out of his chest. And then at that point, as I'm still looking, E.G. says, 'Yo, I have the weed. Let's go'.

[106] At this point P.S. said he realized what happened, and when he got back into the car he was scared. He said:

As we got back to the car I, I just started thinking and I was panicking. I could feel my heartbeat racing fast and then I just, I don't know why, but I just wanted to check my knife so I opened the knife and I check that there's like a streak of blood on it. But the blood, it wasn't like wet. I was like dried out and then I realized that the knife actually went through him, so then I tell E.G., I'm like, 'Yo, I think I stabbed him'. And then E.G. said, "He's not going to die, don't worry." And I'm like, "He's going to die. He's going to die." and then E.G. keeps, he keeps trying to say – he keeps telling me that no one dies from a stab wound and that he's not going to die. Don't worry about it.

[107] During the conversation in the car, E.G. told P.S. that he used his wires on S.K. After E.G. pulled the wires out from under the driver's seat P.S. saw blood on the wires.

[108] P.S. wanted to talk to C.G., his girlfriend at the time, as someone to comfort him. He called C.G. and, as they were driving toward her house, E.G. tried to contact Aamer. When they finally reached Aamer, E.G. told Aamer that they needed to talk to him because something bad happened.

[109] When C.G. got in the car, P.S. repeatedly told her that he did it in self defence and that he was going to get attacked.

[110] When they met with Aamer at Mr. Sub in Brampton, P.S., E.G., C.G., Aamer and Aamer's sister were present. E.G. gave Aamer a brief version of what happened. They alternated between English and Punjabi because Aamer did not want C.G. to hear the full conversation. E.G. and Aamer kept saying that no one dies from one stab wound. It was Aamer's suggestion for P.S. to wash his hands because they had blood on them. E.G. also washed his hands. A few minutes later they got in the car and went to the back of the plaza where Aamer took both the wires and P.S.'s knife and threw them into the dumpster. Then they went to Aamer's home and Aamer took the marijuana and put it in a bush next to his house.

[111] From there, E.G. and P.S. drove to Confederation Parkway, which was next to P.S.'s house, and parked in a hiding spot so they could talk about what happened. E.G. kept saying that no one dies from one stab wound. While there, E.G. was checking CP24 and they learned that S.K. had died. P.S. said that he responded to this news by crying and was sad and E.G. tried to comfort him. Then E.G. received an angry call from his father. They decided to hide the red container with small amounts of rolled up marijuana in tinfoil, a bong, and a few other items because E.G. believed that his father might search the car and that the police might have been to his house.

[112] When E.G. and P.S. returned to their hiding spot the next day, the red container and other items were gone. (Unbeknownst to them at the time, the police had them under surveillance, and had seized the items before E.G. and P.S. returned.)

[113] P.S. also testified that a few days after the incident he changed his cell phone number because S.P. was calling and "bugging" him.

Cross-Examination

[114] In cross-examination, P.S. admitted that he sold marijuana for about eight or nine months when he was in grade 9 and 10. He stopped after he was robbed a knifepoint, but then, a few months prior to this incident, had started helping E.G. connect with customers occasionally. When he did so, E.G. would pay him small amounts of money, for example, $10 when P.S. found three customers. These were always small amounts of marijuana, that is, at the gram level.

[115] He admitted that he purchased the knife at Canadian Tire because he knew that marijuana dealing was an inherently dangerous business and he got the knife to protect himself when he was dealing marijuana.

[116] In this case, S.P. was his friend, P.S. brought the deal to E.G. and P.S. was the negotiator. He acknowledged that he had turned his mind to the live possibility that S.P. and his friends might try to rob him in this transaction. That was clear in the text messages exchanged with E.G. on January 31, 2016, S.P.'s reaction to the price, S.P.'s call to come up to the apartment, the fact that three people, two of whom were strangers, instead of just S.P. got into the car, and the short time S.K. and E.F.S. spent at the bank machine.

[117] He denied that he was ever seriously planning to rob S.P., notwithstanding his words in the text message to E.G. "I'm gonna tell him I'm selling for 380 and I'm gonna rob his money". He also denied he knew that violence was almost an inevitability or that he knew something bad was going to happen on February 3, 2016. He maintained that the worry that they might get robbed was "on and off". He explained:

A: I - we never went to that place thinking we were going to rob them. We thought we were going to get robbed, but then that thought was on and off because, like I was saying before, S.K. started saying he was going to buy it and more marihuana off E.G., so that made us to the thought that, okay, we're not going to get robbed. They're going to buy it off us.

[118] P.S. also explained that he had gained a huge trust of S.P., because, previously, P.S. had "spotted him" and S.P. paid P.S. the money that he owed him later on.

[119] When S.P. said the words "you guys got robbed. Don't fuck with us", P.S. realized that what he had feared or expected had just happened. He saw no weapons on the other guys and there were no verbal threats beyond what S.P. said in the car.

[120] He denied that he got out of the car because he was going to engage in a fight to get his marijuana back. He said that he wanted to get his marijuana back but he was not going to use his knife to get it. Rather, he said he thought they were going to run away, so he was going to chase them. He wanted to get ahold of S.P. to get his marijuana back.

[121] He acknowledged that when he got out of the car he was in control of the situation because he had a knife on him, but maintained that he was afraid of the two guys trying to attack him, referring to E.F.S. and S.P.

[122] He acknowledged that he was angry after S.P. said "you just got robbed" because he was upset that S.P. betrayed him. He also acknowledged that he was angry when he was chasing S.P. However, he maintained that he was not angry when he produced the knife. Rather, he was scared. He did not put the knife away after E.F.S. and then S.P. went out of his sight because he was scared. He saw S.P. go to the other side of the car and out of his sight. When he went around the car, he thought E.G. was hurt because he was on the ground about to get up with a dazed look on his face.

[123] P.S. maintained in cross-examination that as S.K. ran by him, his hand "brushed his chest". He agreed that this means "a brush with almost no force". He felt no impact. This, notwithstanding that P.S. had his knife extended directly in front of his body with his arm outstretched as S.K. ran directly at him, trying to punch him.

[124] When Crown counsel asked:

Q: And again, you felt no impact of you ever touching Mr. S.K. or the barest of impacts, right?

A: At that time, no. Like it just happened so quick....

Q: I'm going to suggest to you that those two things cannot coexist together. That doesn't make any sense that you felt nothing, no weight, no impact on your arm. Your out extended arm with the knife as this larger, taller young man runs directly into your knife and impales himself such that it pierces his lung and his heart and you feel no impact?

A: I don't recall. It was too fast. Like it just happened in the moment.

[125] When Crown counsel pressed the point, P.S. repeatedly answered that "it happened so fast". He denied stabbing S.K. in anger to get his drugs back. He also denied that he was chasing S.P. to commit violence on him or stab him in order to get the marijuana back. He fully admitted to being angry at S.P. and running as fast as he could after him, and, although he did not anticipate a calm conversation, he was not going to stab S.P.

[126] He acknowledged that after he locked up the car, he went back into the lit area at the front of 555 The West Mall because he wanted his marijuana back. When he met E.G., he went back to where S.K. was lying because he wanted to get the marijuana back.

[127] When asked about his observations when he was crouched over S.K., P.S. said that he saw blood on his chest and that his head was shaking. He did not see "signs of him breathing that much". He said that S.K. was wearing a camouflage jacket and his tee-shirt was soaked with blood. He did not lift up the shirt. The only other place he saw blood was on the side of his head. He thought that was where E.G. had hit him with the club. However, he saw no wounds and agreed that he would not be able to see any puncture in the shirt. He also said that he was not looking at the shirt closely because E.G. was over S.K. looking for the marijuana and P.S was concentrating on S.K.'s face.

[128] In what turned out to be an awkward question after an objection, P.S. denied that he told Aamer Singh that he stabbed a guy in the chest because he knew he stabbed him in the chest from the moment that he (P.S.) stabbed him in the chest.

[129] P.S. said that he knew S.K. was in deep trouble by the time they got back to the car.

[130] He admitted telling C.G., "I did it, stabbed him. It was in self defence". He never told her the exact story of what happened, but thought he told her how he couldn't believe he did this. He admitted to using the word "stab" to C.G., E.G. and Aamer and did not ever say to those people that it was a tragic accident where he essentially ran onto his knife.

[131] He denied that he stabbed S.K. deliberately to try to get his marijuana back because he was enraged that he was being ripped off.

[132] He maintained that he had no intention to stab S.K. He just wanted to scare him.

[133] He did not know that S.K. had the marijuana when he chased S.P. In fact, he was confused because the last time he saw the marijuana it was in S.K.'s hands. However, he saw that S.P. had a plastic bag with him or something. So, he was chasing S.P. in the hopes of getting the marijuana back and because he was angry at him. However, he said that he was not going to do violence to him once he caught up with him.

[134] In re-examination, P.S. clarified that the reason he had the knife out when he was alone with S.K. was to protect himself. He was scared, it was dark and he relied on E.G. to be there, but he was not there.

S.P.'s Evidence

The Events of February 3, 2016

[135] S.P. was a friend of S.K. He testified that before meeting P.S. on February 3, 2016 he picked up S.K., E.F.S. and Ahmed Abukar in an Uber. They travelled to 520 The West Mall, where he believed S.K. lived. They met more people in the laundry room of the apartment building where marijuana and alcohol were consumed.

[136] He admitted that he set the marijuana deal up with P.S. and that he and S.K. planned to steal the marijuana, instead of paying $400 for it. In preparation for the robbery that evening, in which he had an "intuition that something bad was going to happen", S.P. had discarded his ipod which he recovered later with the police at 520 the West Mall. In proximity to the ipod was a long knife which he asked the police if they had put there.

[137] S.P. said that they called and then P.S. arrived at 555 The West Mall in a car driven by E.G. at about 6:00 or 6:30 p.m. S.K., E.F.S. and S.P. got into the back of the car. They drove to a bank to get money to pay for the marijuana. E.F.S. and S.K. got out of the car and went into the bank. Twenty dollars was withdrawn despite the price for the marijuana being $400.

[138] While S.K. and E.F.S. were in the bank, S.P. stayed in the car and told P.S. that he should come with them up to his aunt's apartment and hang out. He said P.S. told him that was "stupid".

[139] From the bank, the five drove and parked somewhere in the neighbourhood where everyone, except perhaps E.G., smoked some marijuana. The purchasers wanted to test the product. They were there about five or ten minutes. During this time, E.F.S. and S.P. went off to the side and finalized the robbery plan. E.F.S. told S.P.: "Me and you got [P.S.]".

[140] After smoking, they all drove back to 555 The West Mall, and parked near the front. A dispute took place in the car about them saying let me see the money and us saying let us see the weed. S.K. ended up with the weed and, once S.P. saw this he said, ' You guys just got robbed. Don't fuck with us .'

S.P.'s version of events after "You guys just got robbed. Don't fuck with us"

[141] Immediately, a fight broke out as S.K. and E.G. got out on the driver's side and P.S., E.F.S. and S.P. got out on the other side. S.P. and E.F.S. were supposed to beat up P.S. at this point and positioned themselves to do so. Their plan that S.K. would get E.G. also got started on the other side of the car. According to S.P., they all started fighting how they were supposed to.

[142] Since E.F.S. wouldn't help out with the altercation with P.S., and was doing nothing, S.P. decided "in the moment" "without thinking about it" to go help S.K. beat up E.G. by punching him in the head. At this point E.G. fell to the floor. He did this even though S.K. was already getting the better of E.G.

[143] S.P.'s first description of the sequence of events, in chief, was as follows:

So, I get out right away, behind E.F.S., and I see [P.S.] quickly pull out a knife. And we go, me, me and [P.S.] – I have nothing, so me and [P.S.] start going back and forth, as in like, he attacks me with a knife, I dodge, I go and try for a punch, he dodge. And at this point I'm like, all right, nothing's going to happen to me, so I go, I go help S.K. right away and when I go help S.K., I punch E.G. and he fell to the floor, and then me and S.K. start running side by side, and then we see [P.S.] holding a knife in the middle of, in the middle, in the middle. And then, and then I see [P.S.] slash the knife at, at S.K. S.K. dodges it like that, like he somehow like dodged it. And then that's the, that's the last time I see S.K. and – and then [P.S.], [P.S.] chases me with the knife.

[144] S.P.'s description of the car's position once parked was vague and confusing. First, he could not recall what he saw if he looked through the front windshield. However, he thought the car was parked in a "proper parking spot" and it was parked how a car is "supposed to be parked, engine in front. Trunk in the back". He said he believed the front of the car would have been pointing "to the right of the [video] screen", meaning facing into the parking lot, rather than the garage structure or the field.

[145] In cross-examination, S.P. acknowledged that when he and E.F.S. were facing P.S. outside of the car, P.S. had a brick wall behind him, E.G.'s car on one side and another car on the other side. He agreed that P.S. "most likely" could not run away at this point. However, he said there was some space in between because E.F.S. ran.

[146] S.P. was one hundred percent sure that P.S. chased E.F.S. away after S.P. had the altercation with P.S. (This does not accord with the video evidence at 4:21 which appears to show that it is S.P. or someone else dressed in dark clothing, rather than P.S.'s lighter clothing, who appears to be about to follow the first figure, who almost certainly is E.F.S., but then stops, turns and runs back towards the area where the car was parked.)

[147] S.P. also admitted that he had a knife in his pocket at the time, but he never used it that night. Nonetheless, he got rid of the knife prior to interacting with the police.

[148] In cross-examination he described the sequence on the passenger side of the car as:

So, like, [P.S.] pulled out his knife and I made a movement, I stepped towards him and [P.S.] made a step back and then [P.S.] made a step towards me and I made a step back. And then I left that fight because, like, I thought, like, [P.S.] would never use the knife, so I left and went to go help S.K.

[149] When asked why he would take a swing at P.S. when he was showing S.P. that he had a knife, S.P. explained:

It was just in the moment because I think I, like I knew [P.S.] as a friend and, like, I never thought he would do anything. So, like, I attempted to swing and then [P.S.] backed off and then he attempted to swing at me, and when he attempted to swing at me, he-it wasn't like, it wasn't like a slash, it was just more of a holding of the knife and taking a step towards me. And, I noticed, I backed off, yeah.

[150] When asked why he went over to help S.K. even though he was winning the fight with E.G., S.P. explained:

No, no, no, like – well, when I was with the fight with [P.S.], I never looked at S.K., like, until the movements me and [P.S.] made with a knife. I knew that [P.S.] wouldn't hurt me so I left the, that fight and I went to go help S.K. I saw S.K. like, running E.G. or like getting the better of E.G. and then, that's when I go punch E.G. And then, that's when me and S.K. go run.

[151] It was after he punched E.G. knocking him to the ground that he saw P.S. "standing right there" holding a knife in "front of us." S.P. estimated he and S.K. were about 30 steps away from E.G.'s car when he punched E.G. When asked if there was anything else he could orient us with, he answered, "No, just cars and like a dead end." S.P. made no suggestion that P.S. moved towards them. Rather, he said:

Q: What's the next thing that happened after you punched E.G. and he fell down?

A: Me and S.K. quickly both bolted away....we ran and S.K. was ahead of me . I was behind him and then, that when we see [P.S.] again with the knife in front of us, waiting because he chased E.F.S. away, so I don't know where E.F.S. went after that, but when I – when me and S.K. ran together, we saw [P.S.] again holding the knife.

Q: What happens?

A: So, S.K.'s ahead of me and [P.S.] does this slash, but S.K. dodges it and then [P.S.] chases me and then I run to, I run the opposite way of S.K. ran.

The slash demonstrated by S.P. was a lateral movement of about 18" across the body.

[152] S.P. was clear that S.K. "dodged" the slash before P.S. started chasing S.P. who was running behind S.K. He never saw S.K. get hurt.

[153] S.P. described the knife that P.S. held as a "switchblade" because "it fit in his hand and then there was a blade, so I'm pretty sure".

[154] S.P. testified that the last time he saw S.K., he and S.K. were running together and then ran in different directions, with P.S. chasing S.P. He said P.S. chased him with a knife as S.P. ran straight out to the main road. He lost sight of P.S. at the main road and went into the building beside 551 The West Mall where he took a breath. Then he went back to the laundry room to cool down as he was "in shock". Several people arrived at the laundry room and beat S.P. up - telling S.P. that he did not care about S.K. He was kicked out of the laundry room, and, once out, saw the police and wondered why they were there. He said that he had no idea that S.K. got hurt until after he came out of the laundry room.

S.P.'s Strange Behaviour

[155] After coming out of the laundry room and seeing the police, he saw a guy (Mohamed Abshir) who he knew and asked him what was going on. He admitted that he told Mohamed Abshir, " The police are here because of me". He said this, he testified, "because it was just something to say". He denied saying: " I did this to Cano (S.K.)" as Mohamed Abshir had testified. He did not recall trying to give his hat to Mohamed and said it didn't make any sense regarding the hat or trying to give his knife away in part because he had already gotten rid of his knife by giving it to one of S.K.'s "buddies".

[156] Mohamed Abshir, one of the few reliable civilian witness who gave evidence at this trial, testified that he ran into S.P. when he was walking along the West Mall coming home from class shortly after 7:00 p.m. that night. He said that S.P. approached him from the opposite direction, but near the scene where paramedics were working on S.K., and said " I did that " When Mohamed said what are you talking about, S.P. said, " I did that to Cano (S.K.)" while pointing to the emergency lights at 551 The West Mall. Mohamed said he was trying to get away from S.P. because he thought he was a mentally ill person. S.P. also leaned in close to Mohamed and tried to get him to hold his hat. Mohamed believed that he was possibly hiding a weapon in the hat. S.P. was miffed that Mohamed would not accommodate him by holding his hat. Mohamed crossed the street to get away from S.P. Mohamed was convinced that S.P. had injured S.K. and approached a police officer to communicate his concern. Mohamed described S.P.'s disposition at the time as "shaking, paranoid, looking everywhere."

[157] D.C. Ahmad testified that he arrived on scene at 7:25 after receiving a dispatch at 7:14 p.m. While he was helping with crowd control he was approached by Mohamed Abshir at 7:38 p.m. Based on information Mr. Abshir gave, at 8:09, Officer Ahmad approached S.P. who was sitting at a bus shelter across the street, about 20 – 30 feet away. At the time, S.P. appeared to be "spaced out", not looking directly at the officer and was slow to answer questions. S.P. led officers to 520 the West Mall to get his ipod, and where they also seized a baton.

[158] In-chief, S.P. testified that he was not injured in the incident, but he did have some "symbols" on his hand after. In cross-examination, he denied using the word "symbols" in his evidence, but maintained that the four simple dots that were marked on his hand looked "suspicious".

[159] S.P. said that he saw S.K.'s brother point him out to the police. He believed then, as he does now, that S.K.'s brother would kill him if he could. He views S.K.'s brother as dangerous because he had previously given information to the police about S.K. in the context of a hit and run investigation. He believes S.K. had "tested" him about giving inculpatory evidence to the police and S.P. had "failed" the test. Since then, S.K. was an enemy he kept close as S.K. had threatened to kill S.P. if he gave his name to police. Now that S.K. was dead, he believes that S.K.'s brother must take on the role of avenging this. On multiple occasions, S.P. contacted the police to say he was being threatened. He attributed his paranoia to smoking marijuana. He also believed that he was being followed by undercover police officers.

[160] S.P. testified that he would "make up" stories, "stupid stuff" "just messing around" to tell a variety of health care workers in order to get himself admitted to hospital. He takes medicine now to "clear his thoughts".

S.P.'s Inconsistent Statements

[161] S.P. was confronted with numerous inconsistent statements he made over time. The most significant inconsistency is that July 25, 2017, while giving evidence at this trial, is the first time he ever said that P.S. swung a knife at S.K. or even had a knife in his hand. He had no acceptable explanation for this fundamental inconsistency. Further, the alleged slash could not have been the fatal blow: first because S.P. also said that S.K. dodged it. Secondly, an eighteen inch-long slash is not consistent with the forensic evidence of a puncture wound.

[162] First, in his examination-in-chief, he was given the chance to explain them. The Crown asked "Do you know why there might be any differences in what you've told us today than what you've told the police in the past?" and S.P. answered, unresponsively, "No, I don't think so".

[163] In cross-examination S.P. acknowledged that both of his police statements, given on February 3, 2016 at 11:04 p.m. and February 11, 2016, were given under oath. He knew that he had to tell the truth to the police and he said he was not lying to them at the time.

[164] Regarding his February 3, 2016 statement, when asked why none of his three different descriptions of what happened in and near the car ever mention P.S. having a knife or slashing at anybody with a knife, S.P. stated, " I don't know why I never said that ".

[165] S.P. specifically admitted in evidence that on February 3, 2016 when he gave his first statement, he did not remember seeing P.S. with anything in his hands when the fight happened.

[166] Regarding his February 11, 2016 statement, when asked why, after having had one week to think about what happened and being immediately cautioned how important it was to tell the truth, he specifically denied remembering if anybody else had a knife or any other weapon, S.P. stated, " I guess I was afraid or nervous because,...something happened like that, it just doesn't happen in my life".

[167] When asked if there was any reason he is saying or remembering today that he saw P.S. with a knife, but did not do so in his prior statements, S.P. stated, "Like, I have no comment for that. Like, like, this just – stuff happens, right."

[168] Finally, when asked if he honestly believed he was telling the truth as he remembered it in his previous statements, even though they are significantly different from his trial evidence, S.P. answered:

Yeah, that day, ... I should have said the truth the full day. Like everything I'm telling you, everything that I ever said in this courthouse, I should have said the first day or the week after, but I don't know why I didn't. Like I, it just never came to my mind that S.K. would try to harm me. It never came to me until about, like, November time when I went to speak to Andy [a police officer]. Never, never, like, then, yeah....For about several months, I just, it never came to my mind.

[169] There was no evidence presented at this trial that at any time S.P. ever told the police about seeing a knife. Nor, is there any evidence that on any of the dates he appeared in Court to testify but was not reached, he told the police or the Crown that he remembered something new.

"E.F.S." E.F.S.'s Evidence

[170] E.F.S. purportedly gave evidence at this trial. I find that he blatantly lied about not remembering anything of probative value. It is obvious that his evidence will be given no weight whatsoever.

[171] For the sake of completeness only, I note that E.F.S. said that he was present in the car with S.K. and S.P. on February 3, 2016 and he walked toward the fence of 551 The West Mall from 555 The West Mall.

[172] He was a long-time friend of S.K. and the last time he says that he saw S.K. he was running toward the fence. He did not see S.K. hurt at all and had no idea why he was running. He had no interaction or conversation with S.K. or S.P. before he left.

[173] He claimed to have no memory of whether he saw any weapons or marijuana. He did not remember going to a bank.

Aamer Singh's Evidence

[174] Aamer Singh has known E.G. since childhood through their church. He also met P.S. through E.G. on previous occasions. He supplied E.G. with marijuana but has never provided drugs to P.S.

[175] He testified that E.G. and P.S. came to his house in Brampton at about 11:00 a.m. on February 3, 2016 to pick up two ounces of marijuana. The marijuana was packaged in a large ziplock bag. He thought that the financial arrangement was that E.G. was supposed to give him the money for the marijuana later and he was expecting something like $100, although he claimed not to remember. He thinks that E.G. gave $60 up front.

[176] At approximately 8:00 p.m. E.G. called and they made arrangements to meet at a Mr. Sub in Brampton. C.G., E.G. and P.S. arrived at Mr. Sub approximately 15 or 20 minutes later. Aamer's sister was present when they arrived, but then left. E.G. was a bit dazed out and P.S. was hyper. C.G. did not talk much.

[177] P.S. mentioned stabbing someone because he took weed or because E.G. got knocked out. The first time Aamer saw the knife was when P.S. pulled it out of his pocket in Mr. Sub. It was closed with a clip on the side. The knife was about 3 to 4 inches long when closed.

[178] There was blood on P.S.'s hands and he went to the washroom to wash up. Aamer wrapped the knife in napkins and then gave it back to P.S. Then they got in E.G.'s car, went behind the Mr. Sub and Aamer got out of the car, "got the knife and threw it out with some other garbage". When asked if he threw out anything else, he answered, "Not that I remember".

[179] Aamer testified that E.G. asked him to hold the marijuana but he said he did not want it. He ended up taking the marijuana which was in a grocery bag. When asked what he did with the marijuana after that he said, "I just gave it away".

[180] Aamer admitted that he was not telling the truth in his first police statement in August of 2016 because he was really scared, intimidated, and surprised. His second police statement was given in February 2017 and he never took notes about what P.S. and E.G. said in the Mr. Sub exactly.

[181] In cross-examination Aamer agreed that his two primary concerns at Mr. Sub were E.G.'s well-being since he had been knocked unconscious and now seemed dazed; and what to do about the knife, since P.S. had blood on his hands and said that he stabbed someone that night.

[182] When it was suggested to him that he did not have a clear recollection of what E.G. and P.S. said to him that night, he insisted that he certainly remembered P.S. saying that he stabbed someone. Also remembers him saying that he stabbed this guy in the chest.

[183] He did not recall any discussion about whether or not the guy would die. He also thought he recalled something about E.G. had been knocked out and that might have been the reason for the stab.

C.G.'s Evidence

[184] On February 3, 2016, C.G. had been dating P.S. for about three months. She had known him for four years of high school. She and P.S. broke up before he was arrested. She was also familiar with E.G. and had met Aamer once on a previous occasion.

[185] After trying to get through to him earlier, she received a call from P.S. sometime after dark on February 3, 2016. On the call, P.S. was "crying hysterically. He was scared. He was nervous." P.S. and E.G. picked her up at her home and they drove to a Mr. Sub in Brampton. When she got in the car she saw that P.S. was crying, upset, shaking and nervous.

[186] She asked them what happened in the car, but said they were in "such shock that they couldn't say much to me." She saw blood on P.S.'s hands and there was an on-going panicked conversation.

[187] They met Aamer and a female cousin at the Mr. Sub. She heard P.S. say for the first time in the restaurant to Aamer that "I stabbed the guy. He was trying to rob off me. And to defend myself, I stabbed him." She recalled him saying that they were going to rob them so they used weapons to defend themselves.

[188] In the restaurant P.S. showed her and Aamer the knife which had been folded and in his jacket pocket. He opened it and she saw blood on the tip of the knife. The knife was a small pocket knife, about five to six inches long when it was unfolded. After showing the knife, P.S. folded it back and gave it to Aamer to throw away.

[189] They also said that E.G. used the wire, but they did not say how he used it. She was certain that she saw blood on the wires which were in the passenger seat until Aamer held them on the way to the garbage. She described the wires as being red from the blood and only being able to see certain spots where the wire was yellow.

[190] Upon exiting the restaurant, Aamer got in E.G.'s car with them, sat in passenger seat and told E.G. to drive to the back area of Mr. Sub and to pull up beside a dumpster. Aamer held the wires, then got out and took the knife from P.S., being careful not to put his fingerprints on the items. Aamer threw the knife and the wires in the dumpster.

[191] Then they drove to Aamer's house where C.G. saw the marijuana which was in a big zip lock bag which was half full. Aamer took the bag of weed inside his house. They drove her home. She and P.S. did not talk about it again, but she went with E.G. and P.S. to change his phone the next day.

C. LEGAL FRAMEWORK

(1) The Presumption of Innocence, Burden of Proof and Credibility

[192] P.S. is presumed innocent unless and until the Crown has proved each element of the offence beyond a reasonable doubt. The burden remains on the Crown throughout the trial and never shifts to the defence.

[193] Reasonable doubt means a doubt that is based on reason and common sense and is logically connected to the evidence or the absence of evidence. Reasonable doubt must not be based upon sympathy or prejudice. It is not enough for this Court to believe that the accused is probably guilty. Although reasonable doubt does not require proof to an absolute certainty, it does require more than proof of probable guilt. Before I can find P.S. guilty, I must be sure that he committed the offence: R. v. Lifchus, [1997] 3 S.C.R. 320.

[194] This Court must consider all of the evidence in deciding whether the Crown has met its onus. In assessing the evidence, I need not firmly believe or disbelieve any witness. I must decide how much or little of the testimony I believe. I can accept some, none or all of any witness's evidence.

[195] In this case, P.S.'s evidence is in conflict with the evidence given by S.P. on material events. It is also in conflict with less important events as described by E.G. I will assess P.S.'s evidence in the same way that I assess the testimony of other witnesses, and may decide that I believe some, none or all of his evidence.

[196] Because some of P.S.'s evidence is in conflict with other witness's evidence, I instruct myself on the issue of credibility in accordance with R. v. W.(D.), [1991] 1 S.C.R. 742. The correct application of the burden of proof requires that, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict. Even where the trial judge completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, she must assess the evidence as a whole and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt.

[197] In this case, the young civilian witnesses present reliability and credibility challenges. The events happened quickly, in the dark, and involved teenagers who, undoubtedly, had adrenaline coursing through their bodies. All of them had smoked some marijuana shortly before the stabbing. All of them were involved in an illegal drug deal.

[198] P.S. explicitly admits that he caused the stab wound that killed the deceased. No one, including P.S., says that they saw the knife make contact with the deceased's body. The heavy task for this Court is to assess and weigh the complex of evidence that speaks to the issues of how the stab happened and P.S.'s intent at the time.

(2) Essential Elements of Second Degree Murder

[199] Section 222 of the Criminal Code provides, inter alia:

s.222 (1) A person commits homicide, when, directly or indirectly, by any means, he causes the death of a human being.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act,

[200] Section 229 of the Criminal Code provides:

s. 229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

[201] For the Court to find P.S. guilty of second degree murder, the Crown must prove beyond a reasonable doubt, all three essential elements: First, that P.S. caused the death of S.K.; Second, that P.S. caused S.K.'s death unlawfully; and third, that P.S. had the state of mind required for murder.

[202] There is no issue that P.S. caused the deceased's death. The issues are whether P.S. did so unlawfully and whether he had the mens rea for murder. The state of mind required to prove murder is the specific intent to cause S.K.'s death or to cause S.K. bodily harm that P.S. knew was likely to cause death and was reckless as to whether death ensues or not. The mens rea is described in the model jury instruction as follows; "The Crown must prove beyond a reasonable doubt either that P.S. meant to kill S.K. or that P.S. meant to cause him bodily harm that P.S. knew was so serious and dangerous that it would likely kill S.K. and proceeded despite his knowledge that S.K. would likely die as a result of that bodily harm."

(3) Unlawful Act Manslaughter

[203] If the Court finds that the specific intent to commit murder has not been established beyond a reasonable doubt, but that P.S. in fact caused S.K.'s death unlawfully, the offence of manslaughter may be found.

[204] Manslaughter covers a wide variety of circumstances. Two requirements are constant: (1) conduct causing the death of another person, and (2) fault short of intention to kill. The structure of the offence of manslaughter depends on the predicate offence of unlawful act or criminal negligence, coupled with a homicide: R. v. Creighton (1993), 83 C.C.C.(3d) 346 at p. 371 (S.C.C.). In this case, the Crown advances a case for unlawful act manslaughter.

[205] The actus reus of unlawful act manslaughter is the actus reus of the predicate offence. The mens rea of unlawful act manslaughter is twofold: First the accused must have the mens rea of the predicate offence, and secondly, there must be proof of objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, in the context of a dangerous act. The Crown need not prove foreseeability of the risk of death: R. v. Creighton (1993), 83 C.C.C.(3d) 346 at p. 373 (S.C.C.); R. v. T.(K.) (2005), 2005 MBCA 78, 199 C.C.C. (3d) 551 at ¶.5. (Man.C.A.).

[206] The unlawful act must amount to an offence under our law and it must be objectively dangerous. An unlawful act is dangerous if a reasonable person, in the same circumstances, would realize that the unlawful act would likely put another person at risk of bodily harm that is neither trifling nor transitory; R. v. T.(K.) (2005) 2005 MBCA 78, 199 C.C.C.(3d) 551 (Man.C.A.)

[207] In Creighton the majority also decided that the subjective component of the legal standard of objective foresight of bodily harm is only applicable where the accused has an "incapacity to appreciate the nature of the risk which the activity in question entails". The principle of considering individual excusing conditions comes into play only at the point where the person is shown to lack the capacity to appreciate the nature and quality or the consequences of his or her act: R. v. Creighton, supra., at pp. 384, 385.

[208] In this case, the defence urges the Court to find that no unlawful act occurred because P.S. acted in self-defence and because, P.S. did not intend to stab the deceased. As I understand the defence position, P.S. says, additionally, that it was an accident that the knife entered S.K.'s body at all. P.S. did not intend to stab S.K. or cause him bodily harm. Further, it was not objectively foreseeable that S.K. or another person would be harmed by the knife. Rather, one would expect that a person would not advance on someone holding a knife out.

[209] If the Court is satisfied beyond a reasonable doubt that P.S. was not acting in self-defence when he pointed the knife at the deceased, then the Court should consider whether the offence of unlawful act manslaughter has been established.

(4) Self-Defence and Accident

[210] P.S. raises the defence of self-defence and accident as a complete defence to both murder and manslaughter. The Crown must disprove these defences beyond a reasonable doubt before a finding of guilt may be made.

[211] Where the defence of self-defence is made out, then the act done in self-defence is not unlawful, the homicide is not culpable and the accused must be acquitted; R. v. Baker (1988), 45 C.C.C. (3d) 368 (B.C.C.A.). Self-defence is a justification for the use of force to resist force or threatened force; R. v. Ryan, 2013 SCC 3 at ¶ ¶ 24-25. Where a person reasonably believes that force is being used upon him or her, and responds reasonably for the purpose of self-defence, s. 34(1) of the Criminal Code can provide full justification for his or her actions; R. v. Allen, 2015 ONSC 2594 at ¶. 41. The burden is on the Crown to prove beyond a reasonable doubt that the accused was not acting in self-defence: R. v. Cinous, 2002 SCC 29 at ¶. 39; , 143 C.C.C. (3d) 397 at ¶. 64 (B.C.C.A).

[212] An accident will exculpate an accused person completely if it does not occur in the context of an unlawful act. However, even if the court finds that the specific intent for murder has not been established, as long as the Creighton test is met, an accidental killing during the course of an unlawful act is manslaughter; R. v. Mathisen, 2008 ONCA 747 at ¶ ¶ 81, 95-96; R. v. Lessey, 2006 ONCA 11847 at ¶ 8; R. v. Tennant, 1975 ONCA 605

D. ASSESSMENT OF THE EVIDENCE AND FACTUAL FINDINGS

The Evidence of P.S.

[213] I believe much of the evidence given by P.S. However, I completely disbelieve his evidence that he did not feel the knife go into S.K.'s body at the time that it happened. His evidence is internally inconsistent on the point. His first description was that he did not physically touch S.K. at all, but rather he "saw that his knife was out, S.K. was running in his direction, and the next second later, he was behind him". When pressed, and asked whether his hand touched S.K. at all, he said he felt a "brush" or that his "hand touched his chest or something". He maintained this stance in cross-examination where he agreed that the feeling was a brush with almost no force. He said that he felt no impact notwithstanding that P.S. had his knife extended directly in front of his body with his arm outstretched as S.K. ran directly at him.

[214] In light of the forensic evidence that the knife passed through cartilage in addition to skin and organs, and, likely that the hilt of the knife (or possibly a zipper or buttons) caused adjacent abrasions, it is impossible to accept that P.S. did not feel the force of a 163 pound man hitting the knife held in his outstretched hand. There is absolutely no explanation as to how the knife would have been extracted from S.K.'s body. P.S. must have known that he hit S.K. Further, he must have known that he hit him with his knife.

[215] I also, accept, however, that things were happening very quickly around the car. All witnesses said that S.K. was running very fast towards P.S. and that he passed P.S. The videos and E.G.'s evidence establish that S.K. continued to run fast, and jump a fence before he collapsed on the lawn of 551 The West Mall approximately 1 ½ to two minutes later. The evidence is consistent with S.K. not appreciating that he had been fatally stabbed at the time it happened. The evidence is also consistent with P.S. not realizing the enormity of the injury he caused to S.K.

The Evidence of E.G.

[216] E.G. was, generally, an unreliable witness. He had poor memory and was extremely vague in some areas. Further, E.G. has credibility issues. He was previously a co-accused who recently pleaded guilty to obstructing justice. He minimized his involvement and presented as self-protective.

[217] I find that E.G. lied about some things. For example, although it is not relevant to the central issues in the case, I find that he lied about his wires having no blood on them. He maintained that he never took the wires out of his jacket and had minimal contact with S.K. However, C.G., who I find is a credible and reliable witness, said she saw so much blood on the wires that you could barely see the underlying yellow colour (E.G. says orange) of the wires themselves. Further, although he admits to giving the wires to Aamer to dispose of in the dumpster, he offers no explanation as to why he wanted to get rid of them.

[218] Although it may have been an honest mistake in the first instance to think that he only went over the fence once, and then, when reminded by video evidence admit that he went over twice, he had no explanation for how S.K.'s bank card and a $20 bill ended up in the garden where only he is seen lingering in the video.

[219] He admitted to going over the fence twice, first by himself, chasing S.K. and then, a second time with P.S., only after his memory was refreshed with the security video footage. However, he maintained that he did not see S.K. a second time because P.S. went ahead to go see. It was not until he was shown more video and told that other witnesses saw two men crouching on the lawn of 551 The West Mall, that he admitted that he was with P.S. crouched over S.K. However, even then, he maintained that he had retrieved the marijuana from S.K. the first time he saw him on the ground. I do not accept his evidence on this point.

[220] Rather, at the end of the day, considering all of the evidence, including the video footage and P.S.'s evidence about the two of them (E.G. and P.S.) going back over the fence to see S.K., and to retrieve the marijuana, I find that P.S.'s version of events is accurate.

The Evidence of Aamer Singh

[221] I also find Aamer Singh to be an incredible witness. Clearly he was doing his best to protect himself and E.G. He admitted to lying to the police in his first statement. He did not mention E.G.'s wires that he threw in the dumpster and he claimed to have "given away" the two ounces of marijuana that were returned to him by E.G. and P.S. He is a witness of unsavoury character and his testimony must be approached with extreme caution.

The Evidence of S.P.

[222] The other witness whose evidence must be approached with extreme caution is that of S.P.

[223] After S.P. gave his evidence in-chief, the defence pursued a third party records application for production of S.P.'s psychiatric records. S.P. had been admitted to hospital intermittently between the date of the stabbing and the beginning of the trial before me. He was still a resident in hospital at the time that he testified before this Court. Cross-examination proceeded after the Court ordered most of the medical records to be produced. After the Crown's case closed and P.S. had given his evidence, the defence applied for an adjournment in order to obtain a forensic psychiatric opinion regarding the reliability of S.P.'s evidence. The Court granted the adjournment.

[224] On September 27, 2017, the Court heard evidence in a voir dire to determine if the opinion evidence of Dr. Lisa Ramshaw should be admitted. I requested counsel to address the issue of the admissibility and possible use of her opinion evidence in their final submissions.

[225] Dr. Ramshaw did not personally examine S.P. Nor did she observe him giving evidence. Rather, she reviewed the psychiatric records and transcripts of his police statements. She also reviewed portions of the videotapes of S.P.'s statements to the police. She was prepared to, and did, give an opinion as to a possible diagnosis and why a person suffering from a particular mental illness is or is unable to recall reliably, certain events. The Crown, objects to admissibility based on Dr. Ramshaw's methodology in this particular case.

[226] I find that I need not address the issue of admissibility of Dr. Ramshaw's evidence, because I find that S.P.'s evidence is so fundamentally flawed on its own, that no further assistance is required by the Court.

[227] S.P.'s evidence is fraught with numerous and fundamental inconsistencies on core issues. While some of his evidence is confirmed by other evidence in the case, I reject completely his evidence about P.S. making any sort of aggressive movements with a knife. In particular, I reject S.P.'s evidence that P.S. slashed at the deceased with a knife as he described. In his statements under oath to the police, he never mentioned seeing a knife at all that night. He gave no credible explanation for this fundamental inconsistency. Further, the alleged slash could not have been the fatal blow: first because S.P. also said that S.K. dodged it. Secondly, an eighteen inch-long slash is not consistent with the forensic evidence of a puncture wound.

[228] I also specifically reject S.P.'s evidence that there was any sort of "back and forth" between him and P.S. while P.S. had the knife in his hand on the passenger side of the car. In addition to the general reliability problems with S.P.'s evidence, his story about the way P.S. used the knife on this side of the car is incredible. It simply belies common sense that in the middle of the kind of back and forth, dodging and punching that S.P. describes, S.P. would quickly conclude that P.S. "would never use the knife", so he left to go help S.K. who was already getting the better of E.G. on the other side of the car.

[229] What does make sense, is, that S.P. moved away from the knife, because P.S. was showing it as P.S. describes. S.P.'s evidence and conduct indicates that he did not feel threatened by P.S. and his knife. Rather than run away, he chose to leave P.S. with his knife held out and go help S.K. beat up E.G., even though S.K. already had the upper hand. He chose to stay and fight another person rather than run away.

Other Factual Findings

[230] The evidence regarding the events of February 3, 2016 is relatively consistent and uncontested up until the point in time that E.G. parks the Honda Civic in the parking lot of 555 The West Mall. I refer to the "Background Facts" as my findings regarding that evidence. Here, I will address my findings that are directly relevant to the live issues which are: how the stabbing happened and what the mental state of P.S. was at the time.

[231] I find as a fact, that, notwithstanding the talk in the text message, P.S. and E.G. were not actually planning to rob S.P. of his money on the evening of February 3, 2016. There is no evidence that P.S. ever communicated the $380 number to S.P. They actually brought the two ounces of marijuana with them and they did not bring extra people with them to 555 The West Mall. Both E.G. and P.S. denied any real plan to rob S.P. and I believe these denials. All of their behavior that night indicates that they were not executing a plan to rob S.P. and his friends on February 3, 2016.

[232] Rather, the uncontradicted evidence is that S.P., E.F.S. and S.K. had a joint plan to rob P.S. and E.G. Indeed, the evidence is clear that S.P., S.K. and E.F.S. were executing their plan to steal the marijuana from E.G. and P.S. when the stabbing occurred. The three were also executing their plan to beat up E.G. and P.S. S.P.'s evidence was that the plan was a set up to beat up E.G. and P.S. The three could have run when they got out of the car, but instead they set themselves up to fight with E.G. and P.S. E.G. was clear that the deceased was already out of the car and ready to punch him when E.G. got out of the car. Indeed, the first thing E.G. saw was a fist flying to his face. Similarly, on the other side of the car, E.F.S. and S.P. "were supposed to beat up [P.S.]" and they positioned themselves to do so. As already indicated, S.P. also chose to prolong the assault on E.G. rather than run away with the marijuana, after he left the passenger side of the car.

[233] I accept P.S.'s evidence that he and E.G. anticipated a possible robbery, but that at the moment he told E.G. to hand the marijuana back to S.P., he had decided that he was going to trust his friend. I accept that P.S.'s concerns were "on and off" on the evening of February 3, 2016, as P.S. said they were. At the moment he told E.G. to hand the marijuana back to S.P. in the car, he believed they would not rob them. This belief was based on S.K.'s words that he would buy more from E.G. and P.S. It was also based on P.S.'s trust in his friend, S.P.

[234] I also accept, as P.S. admitted, the pocket knife he carried on February 3, 2016 is one that he bought at Canadian Tire approximately two or three months prior to the incident. It was a small folding hunting knife with a total length of about 5 to 6 inches. He kept it in the left bicep pocket of his jacket and he always had it on him when he wore the jacket. He said that he carried it to protect himself, particularly when he was dealing marijuana. He carried the knife that night because of the very live possibility that S.P. might try to rob him.

[235] I find that the Honda Civic was parked as described by P.S. in his evidence. The car was parked just out of view of the video camera. The exhibits show a "garage structure" adjacent to the parking lot with the field behind and to the right. I have carefully considered all of the evidence pertaining to where and how the car was parked, including that of P.S., E.G. and S.P. and the video showing the paths taken by the running males. Based on that evidence, I find that the Honda Civic was parked as shown by P.S. on Exhibit # 35. I believe that the car was parked in front of and facing the garage structure. I also believe P.S.'s evidence that there were cars parked on both sides of the Honda Civic. In other words, in order to get into open space, the parties would have to move to the back end of the car in order to access the open parking lot and the field.

[236] Based on the videotape evidence, it is apparent that the entire incident from the time E.G.'s Honda Civic arrives in the parking lot of 555 The West Mall until the time it leaves is approximately eight and a half minutes. The first indication on the video that violence or threatening behaviour starts outside of the car is at 4:19 on the tape when the first figure, who, based on all of the evidence, I believe to be E.F.S., runs in a circular path going towards the 551 The West Mall rear camera. Taking into account all of the evidence heard, I believe that the figure that starts to follow E.F.S., but comes back, is S.P. It is likely that the third figure that appears at 4:24 and follows E.F.S. is S.K. Further, I find that the last figure who runs in the same circular path as E.F.S., at 4:28 is E.G. At 4:25 on the tape, S.P. is seen running towards the entrance of 555 The West Mall with P.S. following immediately behind him. The stab to S.K.'s chest happens sometime within those six seconds between 4:19 and 4:25.

Is this Second Degree Murder?

[237] The Crown submits that P.S. intentionally stabbed the deceased in the middle of his chest and either he meant to kill him, or he intended to cause him bodily harm and was reckless as to whether death ensued or not. P.S. admitted his anger at being betrayed by S.P. in the car and he admitted to chasing S.P. in anger. When he stabbed S.K., he was "settling a score". The Crown submits that he intentionally stabbed S.K. in anger and then chased S.P. in anger, all to get his marijuana back.

[238] I do not believe that is what happened. I have a reasonable doubt that P.S. had the specific intent to cause S.K.'s death or to cause S.K. bodily harm that he knew was so serious and dangerous that it was likely to cause death and was reckless as to whether death ensued or not.

[239] I accept that P.S.'s reason for going to the driver's side of the car was to see what was happening with E.G. No witness suggested that P.S. pursued S.P. or S.K. who were crouched over E.G. There is no evidence that P.S. moved forward toward the deceased or called him out in any way. Instead, he stood near the rear area of the car. S.K. and S.P. advanced on him and he held the knife out for them to see. There is no evidence that any words were spoken at this point. No witness suggested that P.S. called S.K. over or in any way provoked them to advance on him. He did not chase S.K. after contact, but instead decided to pursue S.P. to get the marijuana back.

[240] I find that at the time of the stabbing, P.S. stood near the rear of the car, with his knife outstretched in front of him. This happened within seconds of previously having the knife out to show E.F.S. and S.P., but now with two men running at him.

[241] There is no doubt that things were happening very quickly around the car. S.K. was running very fast towards P.S. and he passed P.S. running. The videos and E.G.'s evidence establish that S.K. continued to run fast, and jump a fence before he collapsed on the lawn of 551 The West Mall approximately 1 ½ to two minutes later. As I have already indicated, the evidence is consistent with neither P.S. nor S.K. appreciating the enormity of the injury at the time.

[242] In all of these circumstances, I find that P.S. did not intentionally stab S.K. in the chest. Rather, he stood his ground with the knife outstretched in circumstances that were extremely volatile and dynamic. He may not have realized exactly where or exactly how S.K. was hit with the knife at the time, although he must have known that he made contact.

[243] I regard P.S.'s flight from the scene, his complicity in disposing of the weapon, washing his hands and hiding the marijuana as panic after the fact. All of the players in the drug deal knew that they were acting illegally and all of them went into self-preservation mode. This includes S.P., who says he disposed of his own knife even though he did not take it out during the incident. While it is certainly far from honourable to leave the scene rather than help or call 911, I do not consider it probative of any material issues in this case.

[244] I find that the fact that P.S. told E.G., Aamer and C.G. that he stabbed S.K. or that he stabbed S.K. in the chest, is not evidence of mens rea for murder. It only confirms what I have already found - that P.S. did know that he stabbed the deceased. However, I am not convinced beyond a reasonable doubt that he knew exactly where S.K. was stabbed or the seriousness of it until he saw S.K. bleeding profusely from the chest when he was lying on the ground at 551 The West Mall.

[245] P.S. clearly and knowingly held his ground with the knife outstretched in front of him while the deceased ran at him on the driver's side of the car. The question becomes, is self-defence a full defence to P.S. committing this act in the circumstances. If it is not, then P.S. is guilty of unlawful act manslaughter.

SELF-DEFENCE

[246] On March 11, 2013, the previously complex, multiple self-defence provisions of the Criminal Code were overhauled and the current s. 34 came into force. It is designed to deal with all forms of defence of the person. The alleged offence before this court occurred on February 3, 2016, and, as such, the new s. 34 applies.

[247] Section 34 now provides:

34 (1) Defence – 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 the 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.

s. 34(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 a 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.

[248] The Crown has the onus of disproving self-defence beyond a reasonable doubt, but is not required to prove beyond a reasonable doubt that the accused's conduct fails on every element of the defence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the three elements in s. 34(1) has not been established. In other words, for the defence of self-defence to be successful, the Court must accept or be left in a reasonable doubt as to the existence of all elements of the defence: R. v. Hebert, [1996] 2 S.C.R. 272 at paras. 23, 25.

Pointing the Knife at E.F.S. and S.P. on the Passenger Side of the Car

[249] The Crown submits that the defence of self-defence fails on all three prongs of the s. 34 (1) test and focuses on the undisputed facts that P.S. anticipated a violent confrontation, brought a knife with him and that he chose to get out of the car after S.P. uttered the words, "You guys just got robbed. Don't fuck with us". The Crown says P.S. invited violence.

[250] I decline to find that P.S. got out of the car looking for a fight, particularly a knife fight. Rather, I accept P.S.'s evidence that he got out of the car because he thought the others were going to run away. He intended to chase them, and particularly S.P., to get the marijuana back. I believe P.S. when he says that he wanted to get his marijuana back, but was not intending to use his knife to get it.

[251] I have a reasonable doubt that P.S. was acting in self-defence when he initially took the knife out and showed it to S.P. and E.F.S. on the passenger side of the car. At this point, P.S. was being confronted, first by one and then by two bigger males in fighting stance. According to S.P., he and E.F.S. planned to beat up P.S. and they were positioned to do so. That is certainly how P.S. perceived it. At this point there were reasonable grounds for P.S. to believe that a threat of force was being made against him.

[252] I further accept P.S.'s evidence that he took the knife out when E.F.S. was in fighting stance and S.P. was getting out of the car to help and so, brandishing the knife was for the purpose of defending himself from the use of force.

[253] I also, am prepared to accept that, at this point, P.S. showing of the knife was reasonable in the circumstances. In particular, I accept P.S.'s evidence that, at this point, it was two on one and he had no means of escape because there was a wall behind him and cars on either side of him. E.F.S. and S.P. were in front of him with a partially open car door between them. I believe P.S.'s evidence that all he did at this point was "show the knife".

[254] I have already said that I specifically reject S.P.'s evidence that there was any sort of back and forth between him and P.S. while P.S. had the knife in his hand on the passenger side of the car.

[255] In the circumstances as they quickly unfolded on the passenger side of the Honda Civic, I have a reasonable doubt that P.S. showing the knife was reasonable. In these limited circumstances, it was a proportionate response to the threat of force by E.F.S. and S.P.

[256] Those two aggressive men, however, left the passenger side area within seconds and no longer posed any threat to P.S. on the passenger side of the vehicle.

[257] Once E.F.S. left and S.P. ran to the other side of the car, P.S. was no longer blocked in. At this point he chose to walk to the driver's side where E.G. had been punched to the ground. His reason for moving to the driver's side was to see E.G., who he considered to be his "back up". He said that he did not put the knife away at that point because he was afraid. It was going through his mind to make sure E.G. was okay and safe. Then, when he saw S.K. and S.P. running toward him, with S.K. running right at him ready to punch, he put his knife out to show them.

[258] Although the Crown frames its written argument on self-defence as the stabbing itself not being reasonable, the real issue I must decide is whether P.S. was acting in self defence when he held the knife out in front of him when two people, the deceased and S.P. were rushing at him from four to five metres away.

s. 34(1)(a) Did P.S. reasonably believe that force or threat of force was being used against him or another?

[259] P.S. observed that E.G. had had force used against him. His belief was reasonable. E.G. was on the ground, looking dazed and S.K. and S.P. were crouched over him. He had heard banging sounds and swearing on the other side of the car when he was facing off with E.F.S. and S.P. However, P.S.'s evidence is not that he was defending E.G. at the time he raised the knife. Rather, it is his position that he was defending himself from the threat of force being used against himself. He showed the knife to discourage S.K. from punching him.

[260] I accept P.S.'s evidence that the deceased was running toward him, fast, with his fist in punching position while S.P. veered off to the side. I find that P.S. reasonably believed that the threat of force was being used against him at this time.

s.34(1)(b) Was P.S.'s act done for the purpose of defending or protecting himself or another from that use or threat of force?

[261] Although most of P.S.'s actions in the minutes that followed S.P.'s "you guys just got robbed" statement were for the purpose of getting the marijuana back, I have a reasonable doubt that P.S. held the knife out for the dominant purpose of defending himself from the threat of force of S.K.'s punch.

[262] The reason for caution here is that it is clear on P.S.'s own evidence that getting the marijuana back was important to him. First, it is his stated reason for getting out of the car in the first place. Second, he chased S.P. immediately after making contact with S.K., because, he became confused about who had possession of the marijuana. He testified that the last time he saw the marijuana, it was in S.K.'s hands. However, when he saw that S.P. had a "plastic bag or something" with him, he thought it was possible that S.P. had the marijuana. He chased S.P. to get the weed back and also because he was angry at S.P. Finally, it is very clear on P.S.'s own evidence that his first concern when he meets with E.G. a few minutes later is whether E.G. has the marijuana. They returned to where S.K. was lying on the grounds of 551 The West Mall in order to retrieve the marijuana.

s.34(1)(c) Was P.S.'s act of holding the knife out reasonable in the circumstances?

[263] I neither accept nor have a reasonable doubt that the act of holding the knife out was reasonable in the circumstances.

[264] Section 34(2) sets out a non-exhaustive list of factors the Court must consider in determining this question. It mandates that the "court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:"... The relevant factors in this case are as follows:

[265] (a) The nature of the force or threat: The threat from S.K. was a mere unarmed threat to punch P.S.

[266] (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: The use of force was imminent. However, P.S. had other means of response available to him. There is nothing to suggest that he could not have ducked the punch as easily as he was able to brandish the knife. He could have met a punch with a punch. He could have run. He could have yelled. Unlike the situation on the passenger side of the car, there is no evidence that P.S. was blocked in by any structures, objects or people.

[267] P.S. said that he thought he was going to be beaten up by two people when both S.K. and S.P. were running at him but he did not run away because if he had, "they'd probably catch me". It was well established that P.S. and E.G. were in unfamiliar territory in Etobicoke and that S.K., S.P. and E.F.S. knew the area well. However, P.S. had driven into the driveway of 555 The West Mall twice that very evening. He knew that the area in front of the apartment building was well-lit as is evidenced by his return to the well-lit area a few minutes later in order to "be in a place where there was light and where, if something were to go wrong, people would watch". He also would have known that The West Mall road itself was nearby. I find that P.S. could have fled instead of brandishing the knife.

[268] At one point P.S. testified that when he went around the car to see E.G., he thought that if there were people there, he would produce his knife so that they would not hurt E.G. as well. Although I accept that such a thought may have entered P.S.'s mind, it was never asserted that he, in fact, was attempting to defend E.G. by brandishing the knife.

[269] (c) P.S.'s role in the incident: I accept that P.S. was not the initial aggressor. Rather, S.K.'s group's plan was to beat up P.S. and E.G. When the three got out of the car, they stayed to fight, rather than run away. S.K. was ready with a punch as E.G. was getting out of the car. E.F.S. was in fighting stance when P.S. got out of the car. Further, when S.P. decided that P.S. with his knife on the passenger side of the car was no threat, he decided to help S.K. beat up E.G. more.

[270] In the interaction with S.K. and S.P. on the driver's side of the car, P.S. stayed near the rear of the vehicle. There is no evidence that he advanced on them or called them out. I find that P.S. was not an aggressor in the sense of advancing on S.K. with the knife.

[271] (d) Whether any party to the incident used or threatened to use a weapon: The only party with a visible weapon at the ready was P.S. Other than S.P.'s words in the car "you guys just got robbed. Don't fuck with us" no verbal threats of any kind were issued from S.K.'s group. No one from S.K.'s group used or threatened to use a weapon against P.S. or E.G.

[272] (e) The size, age, gender and physical capabilities of the parties to the incident: It was generally agreed that P.S. was the smallest of the group of five. I accept that P.S. considered E.G. to be his "back up". Although S.K. was taller and perhaps stronger than P.S., there was not an appreciable disparity. S.K. and S.P. were also young, slight males.

[273] (f) The nature, duration and history of any relationship between the parties: S.K. and P.S. were strangers. S.P. and P.S. were friends, who, previously, had some level of trust between each other. There is no evidence of any prior use of force or threat of force between any of S.K. and P.S. or S.P. and P.S.

[274] (f.1) Any history of interaction or communication between the parties to the incident: S.P. and P.S. communicated prior to actually meeting with S.K.'s group at about 6:00 p.m. on February 3, 2016. It is clear that P.S. anticipated a possible "robbery" and made sure he had his knife available for "protection". The live possibility of a rip-off continued until E.G. finally handed the marijuana to the back and S.P. informed E.G. and P.S. that they had been robbed.

[275] (g) The nature and proportionality of P.S.'s response to the use of force or threat of force: I find that holding out a knife in response to someone running at you with a fist is disproportionate. This was a close-quarters, dynamic and volatile environment. Brandishing a knife escalated the dangerousness of the entire situation.

[276] (h) Whether the act committed was in response to a use or threat of force that P.S. knew was lawful: S.K.'s threat of punching P.S. was not lawful and there is no suggestion that P.S. believed that it was lawful.

[277] Based on the forgoing, I am satisfied beyond a reasonable doubt that the act of brandishing the knife in front of S.K. and S.P. and then in front of S.K. alone on the driver's side of the Honda, was not reasonable in the circumstances. Most importantly, P.S. had alternatives other than brandishing a knife in order to avoid the threat of a punch and, in any event, holding the knife out was disproportionate to the threat of a bare-fisted punch.

Unlawful Act Manslaughter

[278] Having rejected self-defence, I find that P.S. intentionally held the knife out in a threatening manner in an extremely volatile and dynamic situation. This constitutes an assault with a weapon. Although defence counsel argues that one would not have expected the deceased to run into the knife, I find that, in the circumstances, it was reasonably foreseeable that the deceased would come into contact with the knife and suffer bodily harm that was neither trifling nor transitory. It was obviously a dangerous act to point a knife at a man who was running at him fast in close quarters.

Finding

[279] I find beyond a reasonable doubt that P.S. was not acting in self-defence when he held the knife out as the deceased ran at him. I find beyond a reasonable doubt that he was committing an assault with a weapon upon the deceased, and that bodily harm was reasonably foreseeable in the circumstances. Accordingly, I find P.S. guilty of manslaughter.

February 13, 2018

D. Oleskiw, J.

[1] The parties agreed on much of what the surveillance footage showed and the court relies on those agreements.