Court File and Parties

Ontario Court of Justice

Date: 2018-11-28

Court File No.: Ottawa 16-DV6964

Between:

Her Majesty the Queen

— and —

Azizi Sayed-Mansour

Before: Justice David A. Berg

Reasons for Judgment

Counsel:

Ms. A. Kortenaar — counsel for the Crown

Mr. M. Smith — counsel for the defendant

BERG J.:

[1] The defendant is charged that on October 30, 2016, he committed the offence of assault causing bodily harm to Shanny Khacshour and also did threaten death to Samantha Cook. The Crown has elected to proceed by way of summary conviction. Evidence was heard on December 15, 2017 and June 1, 2018. Submissions were made on September 17, 2018.

[2] Basically, the allegations are that after a night of drinking, the defendant, his then girlfriend Ms. Khacshour, and a friend of hers, Ms. Cook, returned to the defendant's apartment. Something thereupon occurred in the bedroom that provoked an argument between the defendant and Ms. Khacshour. The argument spilled out of the apartment into the hallway, where the threat is alleged to have occurred, and then down into the building lobby, where the allegations of assault (a bite) arose. The police arrived after the alleged assault and engaged in a foot chase with the defendant. He was caught and sustained minor injuries during the arrest.

[3] As a result of admissions made by the defence, the Crown was not called upon to prove the identification of the accused, the date of the allegations, as well as jurisdiction.

[4] The Crown called two civilian witnesses: Ms. Cook and Ms. Khacshour. During submissions, the Crown conceded that there were significant problems with Ms. Khacshour's evidence.

Pre-Argument Events

[5] The evidence received at trial shows that after a night of drinking and clubbing, all three people ended up in the bedroom at the time that the argument arose. They would have me believe that the three of them were in the same bed merely to sleep and that Ms. Khacshour then prevailed upon Ms. Cook to see if the defendant would kiss Ms. Cook, which he did, thereby provoking the strong reaction on the part of Ms. Khacshour that started the chain of events that ultimately led to the present charges. Thankfully, to decide the present charges, I do not have to attempt to understand what each of the three individuals in that bed believed was going on just prior to that kiss. However, I shall still go over the pre-argument evidence in order to give some context to what occurs after.

[6] Ms. Cook testified in-chief that upon returning to the defendant's apartment, the three of them retired to the bedroom. Apparently, the original plan for the evening had not included her sleeping over. She allowed that it is possible that the defendant had originally been sleeping in the living room on a sofa. Ms. Khacshour, on the other hand, believed that the defendant had not been sleeping in the living room at first. The defendant testified that the two women had gone to sleep in his bedroom and he had been initially on the couch in the living room. In his evidence, the defendant stated that over the course of the evening while at the bar, he had seen the two women kissing; he described the kisses as being something more than just friendly pecks. Ms. Cook described the kisses at the nightclub as having been "just a peck on the lips". Ms. Khacshour has no recollection of any kisses with Ms. Cook. It was Ms. Cook's evidence that the defendant had been flirting with her all evening. She denied that she had been the one flirting with the defendant who testified that she indeed had been doing so. The defendant testified that he was on the couch in the living room when Ms. Khacshour called out to him from the bedroom, "Baby come sleep with me". I pause to remind everyone that Ms. Cook is in the bed with Ms. Khacshour at that point. The defendant then went into the bedroom and got into bed between the two women. His testimony was then that he and Ms. Khacshour "started making out". In cross-examination, he later denied any sexual connotations to his use here of the term "making out" and indicated that they had merely exchanged a chaste goodnight kiss. I note here that the defendant has been in Canada since 2005 and displayed a fluency in English during his testimony such that I had no concerns about his ability to testify in that language. Moreover, during the testimony of Ms. Cook, she agreed in cross-examination to Mr. Smith's suggestion that Ms. Khacshour and the defendant were making out. Ms. Khacshour testified that she has no recollection of even kissing the defendant in the bedroom.

[7] It was at this point that Ms. Khacshour got Ms. Cook to kiss the defendant; this was apparently to test his virtue. He failed the test. There is some dispute as to whether Ms. Khacshour actually witnessed the test and also whether it was Ms. Cook or the defendant who actually physically initiated the kiss, but little turns on those points. There was a kiss between Ms. Cook and the defendant albeit at the behest of Ms. Khacshour. Ms. Khacshour became aware of this fact and Ms. Khacshour was not pleased. We now move on to the allegations at bar and we pick up the narrative thread after Ms. Khacshour becomes aware of the kiss.

Evidence of Ms. Cook

[8] It was the evidence in-chief of Ms. Cook that after the test, she left the bedroom. She heard a lot of screaming between Ms. Khacshour and the defendant. Eventually, Ms. Khacshour came out of the bedroom and screamed that Ms. Cook should run down to the lobby. Ms. Cook started to do so, paused to wait for Ms. Khacshour, and then the two of them went down together to the lobby. In regards to the alleged death threat against her, Ms. Cook did not even remember it until her memory was refreshed by means of her police statement. She then testified that she did not think that he meant it. She also seemed to suggest that she was not even sure that the threat was directed at her. She testified that the defendant came out of the apartment when Ms. Cook was in the corridor and yelled a bit louder than normal, "I'll kill you". She then advised that she just ran to the end of the hallway and waited for Ms. Khacshour. I note that Ms. Cook giggled while providing this response during her testimony. It was Ms. Cook's evidence that she was a bit confused why everybody was so angry. At any rate, a bit later, the two women were in the lobby for one or two minutes before the defendant arrived. Ms. Cook described the defendant and Ms. Khacshour looking like they were going to make up. He put his arm around her, not a grab, hugged her, looked as if he was going to kiss her and then bit her lip. Ms. Cook described having waited five or ten minutes before calling the police. She first tried to call friends to see if someone would come and pick them up. She advised that the defendant asked her at one point not to call the police.

[9] Several points were brought out during cross-examination. First of all, in response to a question from Mr. Smith, Ms. Cook indicated that the defendant had pushed her out of the apartment. When Mr. Smith suggested to her that she had not mentioned this during her testimony in-chief, she responded that she thought that she had; I note that no, she had not. She also said in cross-examination, that she had not testified in-chief that Ms. Khacshour had told her to run; I note that yes, she had. In regards to what happened in the 15th floor corridor, during cross-examination Ms. Cook told the Court for the first time that the defendant sat down in the hall hitting his head. She and Ms. Khacshour tried to calm him down. Mr. Smith suggested to her that the only time the defendant used the word 'kill' was when he threatened to kill himself. Her enigmatic response was, "That was a separate thing". She subsequently testified that her memory was being refreshed and she remembered him saying that he was going to kill himself when he was hitting his head in the hallway. She then agreed that in her statement to the police, she had told the police that he had threatened to kill himself and hit his head. When the defendant finally arrived in the lobby, he appeared to have calmed down according to Ms. Cook. He pleaded with Ms. Khacshour to stay and then the two of them got closer to one another. Ms. Cook thought that they were about to embrace and in fact they did. Ms. Cook noted that Ms. Khacshour reciprocated the embrace.

[10] I must say here that I have some serious concerns about Ms. Cook's credibility in this matter. The somewhat cavalier manner in which she testified about the threat, her odd giggling at one point of her evidence, her suggestion that she was confused why everyone was so angry, her problems during cross-examination in remembering what she had said in-chief, all caused me some concern. I add to this litany of problems the following: very early in her evidence in-chief, when she was asked, "At the time you were friends with Shanny Khacshour, did she have a boyfriend?" Answer, "I think so, I'm not sure." Given the context of these allegations, that response is bizarre.

[11] It is important here to note an issue in regards to Ms. Cook's reliability when observing the alleged assault. She testified in-chief that she was ten to fifteen feet away from the couple. Beyond that, she did not provide the Court with any evidence as to where she was situated vis-à-vis them. Was she at right angles to them? Was she behind one of them? I do not know.

Evidence of Ms. Khacshour

[12] The evidence of Shanny Khacshour, as was conceded by the Crown, is replete with difficulties. For example, Ms. Khacshour did not provide a statement to the police in this matter until minutes before the trial commenced some thirteen months after the incident. I think it commonsensical that the lapse of time may well have impacted her testimonial capacity to recall the events in question. This is independent of the effect that her state of intoxication on October 30, 2016 may have had on her ability to observe and recall.

[13] Another concern that arises in the context of her out-of-court statement became apparent during the Crown's re-examination of this witness. She had initially testified on December 15, but had to return to complete her evidence on June 1. Madam Crown showed the written statement to Ms. Khacshour who identified it as her statement in her own handwriting and stated that she had reviewed it that very day (i.e., June 1). Ms. Kortenaar specifically asked her whether she had written the words on that piece of paper to which she replied in the affirmative. Then, but minutes later, she testified that it had been the police officer who had written out the statement and that the only thing in her handwriting was the signature. I had the sense that Ms. Khacshour was not really giving much thought to her answers.

[14] Ms. Khacshour testified that she had consumed alcohol until she blacked out. I have no doubt that Ms. Khacshour had had a fair bit to drink that evening and I accept that that may have had an effect on her memory; she claimed not to remember certain aspects of what occurred. However, I believe that she was exaggerating the effect of the alcohol that evening. The fact that she was able to leave the apartment and descend unaided 15 floors by the stairs without shoes suggests that her motor skills effectively were intact at the material time. But once again, I accept that her consumption of alcohol that evening may well have had an effect on her ability to recollect the events.

[15] Ms. Khacshour's testimony about what happened after the defendant failed the test but before the incident in the building lobby was somewhat unclear. She ran out of the bedroom. The defendant locked the door to the apartment at one point. She was uncertain whether it was her or Ms. Cook who was still in the apartment at that point; it was one of them. At any rate, both women eventually were in the hallway and ran down 15 stories to the lobby. She did not remember the defendant pleading with her to stay or apologizing to her. She did not remember him saying that he wanted to kill himself. She never mentioned the defendant threatening to kill anyone.

[16] With respect to what happened in the lobby, Ms. Khacshour's evidence in-chief was fairly succinct. She and Ms. Cook ended up in the lobby. The defendant arrived and, as Ms. Khacshour put it in-chief, "Then I guess we were still arguing and I wasn't listening to him so he grabbed me and bit my lip". I note that this is a very vague and generic description. She testified that at that moment, she was "on the wall" and the defendant was in front of her possibly facing her as one might well expect given that she was bitten on the lip. However, she was not certain that they were facing each other. She testified that the grabbing and biting took "probably 30 seconds". She could not remember if the grab or bite was first. All this was in-chief.

[17] It did not get any clearer in cross-examination. She told Mr. Smith that she did not remember how it got to that bite. However, she then seemed to remember that "he grabbed me and bit me" despite the lack of clarity but moments before in her testimony. She later stated that she did not remember how he pulled her to him, how he was positioned when he did so, or how long she had been in the lobby before he grabbed her.

[18] Mr. Smith suggested to Ms. Khacshour that she had bitten the defendant first. Her response was that she had not done so, that she would never do such a thing drunk or sober. She did allow that it is true that when one is drunk, one can lose control, but she reiterated that she would know if she had bitten him and she had not. It was her evidence that she does not get aggressive and that she was not angry with the defendant, just disappointed. I pause here to point out that that makes no sense. Her own evidence was that when the defendant failed the virtue test, she freaked out, yelled at him, her adrenaline was very high up, she ran out of the room and then without shoes ran down fifteen flights of stairs to get to the lobby. Mr. Smith then put her written statement to her. Remember: that statement was not written the day of the allegations in 2016. It had been written that very morning, the morning of her testimony. She agreed that the statement, her statement, read, "I got really mad, yelling". Her testimony then became ridiculous as evidenced by the following excerpts: "I wasn't mad, I was just very upset"; "Sometimes I use words, you know, different words"; "I didn't have a lot of time to write the statement"; "I didn't know I was writing a statement in the moment"; "I did not know I was making a statement"; "I didn't even know I was actually writing a statement"; she indicated that that morning, when she signed the document, "I didn't know this was a statement"; she was "Just telling my story in the moment"; "I didn't even want to write a statement". At that point, Mr. Smith asked her the following questions and got the following responses:

Q: You were mad when you saw the kiss, right?

A: Ok

Q: I'm going to suggest to you that the movement from the bedroom down to the lobby happened quickly.

A: Yeah

Q: Right?

A: Yes

Q: You're still mad when you're in the lobby as a result of this kiss?

A: I don't remember.

[19] Ms. Khacshour's evidence was replete with problems of reliability and credibility. All that I am willing to accept from her testimony is that after the defendant kissed Ms. Cook, Ms. Khacshour became very angry and fled the apartment and ran down to the lobby. There, she was bitten by the defendant and sustained bodily harm to her lip.

Evidence of the Defendant

[20] The defendant's evidence was that immediately after he failed the virtue test, he tried to calm Ms. Khacshour down whom he described as crying and freaking out and accusing him of being a cheater. He told the Court that he was trying to explain to her that it was not what it looked like. She would not listen and left the apartment with Ms. Cook. He stated that when he realized he had been tricked, he was not angry; he continued to deny this in cross-examination. He spoke loudly to Ms. Khacshour trying to get her attention but, as I have said, she would not listen to him and she left the apartment. He denied having threatened Ms. Cook and stated that in the hallway, he had said to Ms. Khacshour words to the effect of, "Please don't leave, I'll kill myself". He denied hitting himself at that point but did show how he had his hands up to his face covering both his eyes.

Analysis: Count of Threaten Death

[21] I would like to pause here for a moment and deal with the count of threaten death. I have gone over Ms. Cook's evidence on this count. She had to have her memory refreshed that she had even alleged the threat. For some reason, she seemed to think some aspect of her testimony was funny and started giggling. I have already outlined my concerns about her credibility. The defendant denies threatening anyone and explains what he did say. I reject Ms. Cook's evidence on this count and accept the defendant's. Therefore, I dismiss the count of threaten death and will register a not guilty verdict on that count.

Analysis: The Alleged Assault in the Lobby

[22] Returning to the narrative of events. The defendant testified that he caught up to the two women in the lobby. It seems clear from his evidence, and this is also mentioned by Ms. Cook, that he was pleading with Ms. Khacshour not to leave. It seems common ground between the defendant and Ms. Cook that he did not grab Ms. Khacshour leading up to the bite. Indeed, she noted that it looked as if they had made up. They then embraced. I have already expressed my concerns in regards to Ms. Cook's ability to observe what occurred at that point (i.e., where she was situated vis-à-vis the couple). Given this problem and given the issues that I have found with Ms. Cook's credibility, I am left with only the evidence of Ms. Khacshour and the defendant in regards to the moment before Ms. Khacshour was bitten by the defendant. Her evidence, as problematic as it is, was that she did nothing to provoke his attack. His evidence was that they kissed and then she bit him and he reacted and bit her back. His reaction was fast. He conceded in cross-examination that he was not trying to defend himself. He stated that he did not mean to bite her back harder than she had bitten him; it was not his intention to hurt her. There was at this point the following exchange:

Q: And you did the exact same thing to her?

A: Yes.

Q: That was because you were angry that she bit you, so you wanted to do the same thing to her?

A: I think so, yeah.

Q: OK. So your intention in that moment was to do to her what she had done to you?

A: To be honest, I didn't even think about like what happened. It was just a fast reaction.

It is not clear to me that the defendant has resiled here from his position that he was merely reacting without thought when he bit Ms. Khacshour.

[23] In regards to the defendant's reliability, he conceded that he was drunk that evening but that he remembers everything that occurred. I note that he displayed fairly good motor skills that evening in running and hiding from the police.

[24] With respect to his credibility, I have already referred to the defendant as having been fairly evasive in regards to his use of the term "making out". Furthermore, I am not sure that I fully accept his explanation as to why he ran from the police and even he cannot say why he was telling Ms. Cook not to call the police. But it is possible that as he testified, he did not want his mother, with whom he shares the apartment, to find out.

[25] The photograph of the injuries that the defendant sustained during his arrest (Exhibit 1) shows injuries to the area of his mouth. However, if I understand the defendant's evidence, Ms. Khacshour's bite did not cause him any visible injury. Exhibit 1 is of no help to me in deciding this case.

[26] While I do not entirely believe the defendant's version, I accept that it is possible that Ms. Khacshour did bite him first and that he then bit her in a quick reaction. I note here that the evidence appears to show that she was the more angry of the two that evening. I am left with a reasonable doubt and find that the matter could have occurred as he says. Therefore, I must continue with my analysis.

Legal Analysis: Self-Defence and Reflex Action

[27] I accept the Crown's submission that using force to retaliate is not self-defence. However, the defendant in the case at bar is not pleading self-defence. Basically, his evidence is that he reacted quickly and immediately to being bitten by Ms. Khacshour by biting her back.

[28] Ms. Kortenaar did attempt to deconstruct the motions inherent in the defendant's explanation of what occurred. It is her submission that it could have only happened in the way that he said after Ms. Khacshour had released her grip on his lip; his biting her back therefore, she submits, would not be a reflex. With respect, I do not think one can break down the motions with such precision, at least on the evidentiary record available to me. Moreover, according to the defendant, the entire transaction was very fast. As Godin J. of the New Brunswick Court of Queen's Bench remarked in R. v. Baxter, [1997] N.B.J. No. 270 at para. 15:

[w]e have a tendency, in our courts of law, to have witnesses dissect events frame by frame as though we had the benefit of replaying a slow-motion movie. And it really does not work in a satisfactory way simply because the events were dramatic; the events were traumatic to the witnesses; and, they unfolded so very, very quickly.

[29] A further problem with the Crown's submission stems from the use here of the word 'reflex'. I was referred by the Crown to the decision of the Ontario Court of Justice (General Division) in R. v. D.T., [1997] O.J. No. 688. In that case, Zelinski J. was dealing with a scenario of domestic violence where, amongst other things, it was alleged that the accused had thrown hot tea at his wife. She had closed a door thereby causing him to spill some of the tea on himself. He reopened the door, took two steps inside and then threw the remainder of the tea at her.

75 The initial bump and consequent spilling was accidental even if it was a result of the complainant's impatience with the accused. The subsequent throwing of the balance of the tea was not accidental.

76 The defence offered is that this was a reflexive action on the part of the accused.

77 Assault is an offence of general intent with the result that specific intent is irrelevant. Nevertheless, if the conduct complained of is "the result of a reflex action then no offence was committed because some intent is a necessary ingredient" (Gale C.J.O. in R. v. Wolfe, 20 C.C.C. (2d) 382 at 383).

78 A reflex action is defined in the Concise Oxford Dictionary as being:

independent of the will, caused as automatic response to nerve stimulation.

79 In the shorter Oxford English Dictionary, a reflex action is defined as:

a) An action, involuntary action of a muscle, gland, or other organ, caused by the excitation of a sensory nerve being transmitted to a nerve-centre, and thence "reflected" along an efferent nerve to the organ in question.

b) Of the nature of, characterized by, or connected with, such action.

80 The action of the accused in this instance was not a reflex action nor is there a defence available to that charge.

[30] I agree with the Crown that in the present case, the facts do not suggest that the defendant's actions were "independent of the will, caused as automatic response to nerve stimulation". As stated by the Prince Edward Island Supreme Court, Appeal Division, "there must be an involuntary response over which the accused had no control as he had formed no intention with respect to the response" (R. v. Mullin (1990), 56 C.C.C. (3d) 476 at 484). The bite in the case at bar was hardly a physiological reaction to having been bitten; at any rate, there is no evidence before me that would allow me to make that finding. The intentional component of the actus reus is made out.

[31] The just cited Ontario Court of Appeal decision in Wolfe, however, has led to an approach where a broader, less physiological interpretation of "reflex action" is utilized and Mr. Smith invites me to adopt that reasoning.

[32] Wolfe itself provides few facts and little analysis, yet it has been the source of a line of cases that focus on the mens rea. Mr. Wolfe was calling the police in order to have a patron removed from his hotel. At that point, he was punched by the complainant and then "turned quickly and hit the complainant on the head with the telephone receiver"; there are no other details of the action provided in the judgment. The trial judge found Mr. Wolfe to be guilty, but in doing so, the trial judge commented that:

[now], there is evidence that Mr. Brown-Keay hit the accused Mr. Wolfe and then in a reflex action ( if you can call it that ) Mr. Wolfe, who was calling the police, hit Mr. Brown-Keay on the forehead and caused a four-inch cut on his forehead, … [emphasis added]

[33] The discussion by Gale C.J.O., for the unanimous panel, is very brief:

3 … If, as it would seem to us, the trial Judge regarded the action by the accused as being the result of a reflex action then no offence was committed because some intent is a necessary ingredient in an assault occasioning bodily harm.

4 Mr. Campbell argues, not very vigorously, however, that, because of the limitation in brackets in the above quotation, the trial judge did not regard the action of the appellant as resulting from his reflexes. However, that was in fact what the Judge said and we see no reason to depart from his conclusion.

5 In any event, the encounter was a trifling one and we have come to the conclusion that the appeal ought to be allowed and the finding of guilt set aside …

The Court of Appeal's acceptance here of the phrase "if you can call it that" has led, it seems, to an approach whereby the focus of the Court is on the mens rea and not the voluntariness element of the actus reus.

[34] In R. v. Scrimgeour, [1996] O.J. No. 3392 (Gen. Div.), the accused was slapped and punched by his wife. "He testified that he was angry, had the towel, and flicked her on the back with the towel …" (at para. 37). Boyko J. acquitted him of assault with a weapon stating at para. 40 "[o]n all of the evidence before me, I am not satisfied beyond a reasonable doubt that Graham Scrimgeour intended to use the towel as a weapon to cause injury, rather that it was the result of a reflex action." It is to be noted that the action involved here could not be characterized as being independent of the will of the accused.

[35] In R. v. Baxter, [1997] N.B.J. No. 270 (Q.B.), the accused was struck in the face while holding a beer bottle in his right hand. His head went back from the impact and then came forward again along with his right fist still clutching the bottle. The complainant was struck in the jaw.

11 Mr. Baxter's solicitor has argued before me that the punch was a reflex action. Normally, a person is presumed to intend his or her actions. Proof of the act is normally sufficient to prove the intent. In this case, however, the underhanded way in which the accused was attacked, as well as the rapidity of the accused's reaction might very well be described as a reflex action. Reflex action was the basis in the acquittal granted in R. v. Wolfe … Other jurisprudence, since then, has attempted to define the word reflex as being something that is not connected to the will. I am not at all certain that what we are facing in this case was completely detached from the will of the accused. And if that is the test for reflex action, then this particular case is not a case of "reflex" action.

12 However, a careful reading of the all too brief reasons for judgment in the Wolfe case indicates that reflex might not have been an action totally devoid of intent of the accused. The reflex that we have in the within matter seems to me to be of the same category, or of the same type as what was present in the Wolfe case.

[36] In the matter of R. v. Sundstrom et al., [1998] B.C.J. No. 741 (Sup. Ct.) at para. 96, one finds the decision referring implicitly to the broader, non-physiological definition of 'reflex':

[i]n considering this theory insofar as Nadasen is concerned, I bear in mind the law enunciated by the Ontario Court of Appeal in R. v. Wolfe … where the court held that the offence of assault causing bodily harm is not committed when the accused, as a result of being unexpectedly struck by the complainant, strikes back in a reflex action since the element of intent, an essential ingredient of the offence, is not present. I am satisfied that the kick delivered by Nadasen to Pywell was an immediate reflexive action of self-defence made as a response to the unexpected and severe punch which Pywell gave Nadasen for no reason, when Nadasen was simply acting as a peacemaker. That punch knocked Nadasen back a foot and a half and partially stunned him. I am persuaded that his reaction was an instantaneous defensive reflex action and, at any event, in these circumstances I have a reasonable doubt that Nadasen intended to apply force such that it could be said that the offence of assault had been committed by him on Pywell.

[37] Kolenick J. of the Saskatchewan Provincial Court made the following comment in R. v. Pawliw, [2010] S.J. No. 470 at para. 14:

[i]n any event, it would appear that the principles of reflex reaction can apply in appropriate circumstances to undermine proof by the Crown that the accused had the necessary intention to engage in the unlawful application of force as alleged. However, the sequence of events require that the complainant initiate the exchange by a physical act or gesture which would cause the accused to react in response to it in a reflex like way. If the accused is credible in his assertion that his physical acts occurred on the sudden before he had formulated the necessary intent perhaps he can be acquitted.

[38] I also note the following cases: R. v. Wiltshire; R. v. Moore, [2010] A. J. No. 961 (Prov. Ct.); R. v. Cwynar, 2017 BCPC 338; R. v. Johnson, [2017] O.J. No. 6971 (O.C.J.); R. v. Melo, 2018 ONCJ 292.

[39] I am aware of the discussion of involuntary reflex in R. v. Lewis, 2014 ONCA 95, where the Court of Appeal refers to it as relating to the actus reus rather than the mens rea (at para. 17). However, the Court of Appeal does not even mention the Wolfe decision and it cannot be taken as rejecting that line of reasoning. Indeed, the Court of Appeal found without comment at para. 16 that "[t]he evidence of the expert did not relate to an involuntary reflex but rather to a sudden and impulsive action prompted by some external threat or insult". Ms. Lewis had reached under a car seat to retrieve a knife and then stabbed her spouse to death when she thought that he was reaching for a firearm.

[40] Clearly, the test in Wolfe is not concerned with an action that is independent of the will, an action that is truly involuntary in the physiological sense. What Wolfe and the line of cases that follow are dealing with is an action that is an immediate and unpremeditated reaction to an external stimulus. While voluntary, no conscious thought is involved.

[41] In summary, the testimony of the defendant, in the context of all the evidence that I have heard, has left me with a reasonable doubt that the bite to Ms. Khacshour's lip could have occurred in the manner described by the defendant. Furthermore, the testimony of the defendant, in the context of all the evidence that I have heard, has left me with a reasonable doubt that his biting of Ms. Khacshour's lip was an unpremeditated and immediate reaction to her having bitten him. Therefore, I conclude that the Crown has not proven the charge of assault causing bodily harm and I dismiss that count as well.

Released: November 28, 2018

Signed: Justice David Berg