Court File and Parties

Ontario Court of Justice

Date: 2019-04-29

Court File No.: Niagara Region 998 17 SD4051

Between:

Her Majesty the Queen

— and —

Ashmin Randhawa

Before: Justice J. De Filippis

Heard on: December 10 – 13, 2018 & January 22, 2019

Reasons for Ruling released on: April 29, 2019

Counsel:

• Mr. S. Doherty, for the Crown
• Mr. A. Richter, for the defendant

Introduction

[1] The defendant was charged with aggravated assault on Clayton Pye and assault with a weapon on Vladimir Kazbekov. The Crown produced eleven witnesses and tendered numerous exhibits. The Defence did not call evidence.

[2] The following facts are not in dispute: The defendant and Mr. Pye had previously been in a romantic relationship. Mr. Pye lived with other Brock University students at a home on Winterberry Street in the City of Thorold. This was also known as the "wrestler's house" because, except for the defendant, all residents were on the university wrestling team. At the time of these events – October 23, 2017 – the defendant was seeing another man, Zachary Heyes. This relationship was a troubled one and known to be such to the students who shared the home. Mr. Kazbekov did not reside at this home. He is also a student. He and Mr. Pye are friends. Both are accomplished wrestlers.

[3] On the day in question, there was a physical confrontation between Mr. Heyes and several others, including the two complainants. The defendant witnessed this. Around her neck was a knife with a six-inch curved blade. She removed it from the sheath and swung it at Mr. Kazbekov, causing a minor cut to his chest. She then stabbed Mr. Pye in the left clavicle area. He fell to the ground and was assisted by others to stop the bleeding. The injuries to Mr. Pye meet the definition of aggravated assault.

[4] The defendant asserts she acted in defence of Mr. Heyes. The issue in this trial is whether the Crown has proven that the defendant did not lawfully act in defence of another person.

[5] There are no credibility concerns in this case; it was not seriously suggested, much less established, that any of the witnesses are untruthful. The reliability of certain witnesses is not in question. There are some minor inconsistencies among other witnesses with respect to the sequence of events in the fighting. Some of these same witnesses also attest to indicia of intoxication on the part of the defendant. This testimony was not undermined or contradicted.

[6] This case was well argued by counsel. After summarizing the evidence and stating the applicable law, I will set out their submissions as the background to my conclusions.

Evidence

Testimony of the Independent Witnesses

[7] Andre Pachecko lives in the area of the confrontation. It is a residential area and there are quite a few homes rented to Brock University students. He was walking his dog when he heard a scream for help and saw a man on the ground with two people pressing down on his shoulder to stop the bleeding. He saw a tall blonde-haired man approach and express concern. The latter was told by a man in a red hoodie to "get the fuck out of here". There was a woman with the tall man. She was crying and said, "I'm going to go to jail".

[8] There is no doubt that the man on the ground is Mr. Pye, the tall blonde-haired man is Mr. Heyes, and the woman is the defendant. Mr. Pachecko testified that he did not hear Mr. Heyes say "I hope you die" to Mr. Pye. He added that Mr. Heyes seemed genuinely concerned about the injured man.

[9] Chris Fullerton is a professor at Brock University. He testified that he was upstairs in his home when he heard a woman shout "leave me alone". He went outside to investigate and heard someone shout "Oh my God, you stabbed…[him or me]." He called the police and saw his wife assist the injured man.

[10] Sheryl Fullerton lives in a home near the area. She is a nurse and was in the midst of household chores when her husband reported that he heard screaming. She followed him outside and learned someone had been stabbed. Her husband called the police and she attended to the man on the ground. Ms. Fullerton testified that the man was "bleeding a lot, but his wound was not life threatening". She described Mr. Pye as "a big guy, tall and bulky…" Another man – [Mr. Kazbekov] showed her a cut just below the belly button. Mr. Fullerton described it as a cut that "just nicked the surface" and she was not concerned by it. As she pressed a towel on Mr. Pye's wound, Ms. Fullerton heard the defendant anxiously say "I didn't mean to do it, I had to do it, they were going to kill him". The defendant then left with another man – [Mr. Heyes] – before the ambulance arrived.

[11] Tiffany Tokuc owns the home near the scene of the stabbing. She heard loud noises and went outside to see a man on the ground being attended to by others. She later learned that the police were looking for a rainbow coloured knife. Ms. Tokuc testified that, several weeks later, she found such a knife in the bushes in front of her home.

Testimony of the Complainants

[12] Mr. Pye is a 23-year-old student in psychology at Brock University. He testified that he met the defendant at this school three years ago and was romantically involved with her in the first year. They "maintained a strong friendship after that". He noted that the defendant was dating Mr. Heyes in the year preceding these events. The defendant told him that Mr. Heyes was an abusive partner.

[13] Mr. Pye testified that he met Mr. Heyes twice before the incident – both because the defendant had called him for support. On the second occasion he found Mr. Heyes on the street screaming. He observed that Mr. Heyes' eyes were red. After this incident, Mr. Heyes sent threatening messages to Mr. Pye by social media. Mr. Pye did not take this seriously and believed Mr. Heyes was jealous of his friendship with the defendant.

[14] According to Mr. Pye, in the months leading up to the events in question, the defendant was consuming cocaine. He testified that she was "doing weekend benders" and he would go rescue her, sometimes finding her on the side of a road, without gas in her car. He would take her home and move her car. He saw himself as her guardian; he was concerned for her welfare but did not wish to resume a romantic relationship with her.

[15] On the day in question, Mr. Pye finished his evening wrestling practice around 6 PM. He was tired and went home, intending to eat, do some homework and go to sleep. He found the defendant in the home on his arrival. She told him that her car battery had died about two kilometers away. Mr. Pye noticed that she was "acting weird" and "her eyes were darting around". He was concerned about her ability to drive a motor vehicle. At this time, two friends, Mr. Kazbekov and Charlie Bowling arrived in a car.

[16] The defendant and Mr. Budgey joined Mr. Pye in his car for the purpose of going to her disabled vehicle. Before they departed, the defendant suddenly bolted and ran down the street. Mr. Pye followed and as he came around the corner of another street, he saw the defendant "up against the wall" of a house, with Mr. Heyes in front of her. Mr. Pye assumed the defendant was in danger because he believed there was a "restraining order" prohibiting Mr. Heyes from having contact with her. Mr. Pye told Mr. Heyes to "get the fuck out of here or I'm going to call the police". At this point, three others arrived: Max Budgey, Mr. Bowling, and Mr. Kazbekov.

[17] According to Mr. Pye, Mr. Kazbekov said something to Mr. Heyes and the two men began to fight on the front lawn of a house: "[Mr. Heyes] throws a punch, [Mr. Kazbekov] ducks and avoids it and takes [Mr. Heyes] down and got on top of him. [Mr. Kazbekov] hit him a couple of times with his fist to the head, let him stand and said 'we are done'". However, as Mr. Heyes stood up he tried to kick Mr. Kazbekov's feet from under him and the latter knocked the former to the ground again and stepped away. During this altercation, the defendant tried to intervene but was restrained by Mr. Pye.

[18] After Mr. Heyes stood up the second time, he walked toward Mr. Pye. As they yelled at each other, Mr. Heyes threw a punch at him. He avoided being struck, "slipped a punch" at his opponent and "took him to the ground in a wrestling maneuver". As Mr. Heyes lay on his back and "flailing about", Mr. Pye punched him in the head three to four times. Mr. Heyes stood up, nose bleeding. He then "flicked the blood" at Mr. Pye and said "you should get that checked", implying that he had some disease.

[19] Following this, Mr. Budgey became entangled with Mr. Heyes. Mr. Pye was unable to say how this started but he saw his friend "throw [Mr. Heyes] to the ground with a wrestling maneuver". Both men stood up. All others, including the defendant, were close by. According to Mr. Pye, there was much "swearing and carrying on, but the fight is over". About 20 seconds later, Mr. Pye began to walk away but turned around to face Mr. Heyes when the latter said something. They resumed arguing with each other. Suddenly, the defendant stabbed him with a knife and pulled it out. Mr. Pye testified that, "she was my friend I didn't think she'd hurt me – I was there to protect her".

[20] The complainant had previously seen this knife – a six inch long curved blade, rainbow metallic in colour. It had been delivered to the defendant at his house and Mr. Pye was present when she opened the package. It also contained a "BB gun". He testified that when he asked her why she had these items, the defendant replied that she "was dealing drugs and needed them for protection".

[21] Mr. Pye testified that he saw the defendant swing her knife overhand from her shoulder in a 90 degree angle and plunge it into his clavicle. She then pulled it out and he fell to the ground and swung the knife at him again, across his body, but did not make contact. Other people pulled the defendant away and Mr. Pye was cradled on the ground by Mr. Budgey. He saw the defendant "frantically running around" him while saying "I'm sorry". Mr. Pye responded, "Get the fuck away from me". Mr. Pye heard Mr. Heyes ask the defendant for the knife and assumed he would stab him with it, but the defendant refused to hand it over. Mr. Heyes said, "Hey buddy, I hope you die" and left the area with the defendant.

[22] The complainant conceded that in his statement to police about this matter, he did not state that the defendant swung the knife at him a second time. He explained that he forgot to do so. On the eve of this incident, Mr. Pye was under the impression that the defendant and Mr. Heyes were no longer romantically involved with each other and that "their relationship was now drug based". He added that the defendant had told him Mr. Heyes had threatened her with violence and assaulted her. He had seen bruises on the defendant.

[23] Mr. Pye agreed that he is an accomplished wrestler and was a muscular 200 pounds at the time of this incident. He knew Mr. Heyes "was not a trained fighter". The complainant confirmed that throughout this incident, the defendant was emotional and tried to intervene in the several fights between Mr. Heyes and others.

[24] Mr. Kazbekov is 23 years old. At the time of these events, he had taken a break in his studies at Brock University to concentrate on Mixed Martial Arts (MMA). He confirmed that one week before this incident he won his third professional fight. He also wrestles with the Brock team but did not live at the "wrestler's house" with the other students. On the day in question, he went to that house "to grab a protein shake" and saw the defendant run down the street, followed by Mr. Pye. Mr. Kazbekov did the same, came around the corner of the street, and saw several individuals in front of another house.

[25] Mr. Kazbekov testified that Mr. Heyes approached him aggressively, so he "took him down" and held him in a "MMA maneuver". Mr. Heyes tried several times to get up and attack Mr. Kazbekov. He was taken down each time with greater force. During this struggle, Mr. Heyes jabbed his fingers in Mr. Kazbekov's mouth, causing injury. Eventually, Mr. Heyes stood up and walked away – but immediately went towards Mr. Pye. The two men argued and Mr. Heyes struck Mr. Pye in the head. Mr. Pye "took him down" and both men fought on the ground for about 10 seconds. Mr. Kazbekov intervened and both he and Mr. Pye held Mr. Heyes on the ground. Mr. Budgey also assisted as Mr. Heyes continued to lash out at everybody.

[26] At this point, events happened quickly: The defendant ran to Mr. Kazbekov and pushed him to the ground. He testified that as he stood up, she swung at him and he soon realized he had been cut. The curved knife penetrated his shirt and caused a minor scratch to his abdomen. Mr. Heyes and Mr. Pye were standing a few feet away. The latter held the former by his shirt. Both were shouting at each other. The defendant ran to them and yelled something. Mr. Kazbekov screamed "she has a knife" and saw his friend fall to the ground, bleeding from the shoulder. He also saw the defendant raise her arm in the air and believed she "was going to finish him off". Mr. Budgey ran to Mr. Pye and cradled him in support. Mr. Heyes said "I hope you die" and someone replied, "get the fuck away".

[27] Mr. Kazbekov believed that Mr. Heyes' repeated efforts to fight everyone was due to the fact that he "was high on something; he had angry eyes". He confirmed that on more than one occasion there were two people struggling with Mr. Heyes and, that once, three people did so. He agreed that it may have been at this point that the defendant cut him. He also confirmed from the outset of the confrontation, the defendant shouted "stop" and that she immediately apologized to him and Mr. Pye after attacking them and before leaving with Mr. Heyes.

Testimony of Other Students

[28] Skylar Crote is 20 years old and one of the students who lives at the Winterberry house. She testified that on the day of this incident, she came home from school with another tenant, Ligrit Sadiku, and saw the defendant at the home. The latter asked her if she could borrow a car "to go jump start" her vehicle. Ms. Crote refused as she noted that the defendant "was not in the right frame of mind". Mr. Pye offered to take the defendant and she entered his car with Mr. Budgey. Ms. Crote remained in the home. About 15 minutes later the defendant returned and tearfully said "I just stabbed Clayton [Pye]". Bizarrely, as the defendant said this, Mr. Heyes, who had entered the home with her, extended his hand and introduced himself. Ms. Crote ran to investigate and saw Mr. Pye being placed into an ambulance. When she returned home, the defendant and Mr. Heyes were gone. However, the defendant soon came back and was arrested by police who had just arrived.

[29] The evidence given by Ms. Crote was confirmed by Ligrit Sadiku. This witness added that on first returning to the home the defendant, who "appeared to be in shock" said "I stabbed Clayton, I'm going to go to jail" and that Mr. Heyes had a black eye and blood on his mouth.

[30] Max Budgey came to his room at the wrestler's house before the arrival of the two complainants. The defendant's room is next to his. He saw her there with Mr. Heyes. He heard the latter ask for a knife and say, "I'll cut his ear off". He also heard the defendant refuse to give him a knife. Mr. Budgey asked Mr. Heyes to leave the premises. Mr. Heyes did so but first raised his shirt to reveal a gun in his waist band. Mr. Budgey realized this was a replica handgun that had been delivered to the defendant a few days earlier. He had seen and held it when she opened the package. He described the defendant as "incoherent and confused". He believed she was high on cocaine because he had seen white powder on a table in her room moments before.

[31] Soon after the departure of Mr. Heyes, Mr. Pye arrived at the home. Mr. Budgey joined him and the defendant in his motor vehicle to go and jump start the defendant's car. However, the defendant immediately left the car and ran down the street and around a corner. The two men followed her. Mr. Pye arrived first. When Mr. Budgey did so, he saw Mr. Heyes on the ground with Mr. Pye overtop him. Mr. Budgey pulled his friend off Mr. Heyes. Mr. Heyes spit on Mr. Budgey. The latter "tackled him to the ground in a wrestling maneuver". Mr. Heyes was also taken to the ground by Mr. Kazbekov. Mr. Heyes stood up again and was knocked to the ground by Mr. Pye and landed on his back. Mr. Heyes stood up again. Mr. Budgey saw the defendant with a knife and testified to these events: "All of a sudden I see this arc through the air and [Mr. Pye] goes down to his knees and blood spurts out and I go to his side and support his head and take off my sweater to compress the wound and as I am lying there [Mr. Heyes] leans over and said I hope you die and I said get out of here and neighbours come and ambulance called…"

[32] Mr. Budgey testified that when his friend was stabbed, Mr. Heyes was about five feet away and five to ten seconds had elapsed after he had stood up. As such, he believed the fight had ended. He agreed that before the defendant used her knife, she was shouting at the combatants to stop and tried to physically separate the parties.

Other Evidence

[33] PC Twomey was dispatched to the area and arrived at the Winterberry house at 7:37 PM. One minute later, he saw the defendant approach him and his partner. She said she was the person the police were looking for. The officer noticed she had blood on the sleeve of her sweater and that around her neck was a cord with a sheath. After the defendant was arrested and placed in a cruiser she became "quite emotional".

[34] It is agreed that while being fingerprinted and photographed at the police station, the defendant told an officer that she was trying to protect Mr. Heyes because her roommates "do not like him and were beating him up". It is also agreed that Mr. Heyes was hospitalized after this event in Niagara. He had black eyes as a result of a prior altercation with unrelated individuals. Hospital staff noted these additional injuries; a fractured right orbital bone, concussion, an age indeterminant nasal bone fracture, soft tissue swelling and hematoma over left check, and abrasions to his ribs.

The Law

[35] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.D., 63 C.C.C. (3d) 397.

[36] In this case, the Defence did not call evidence. However, the analysis remains the same because Crown evidence favourable to the defendant can, if believed, exonerate her or raise a doubt about guilt. In the present case, that evidence is the out of court statements by the defendant. In R. v. B.D., 2011 ONCA 51 it was held that:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence -- the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice. In that event, they must acquit.

[37] In some circumstances, the law allows a person to do something that would otherwise be an offence. This can arise when a person acts in defence of oneself or another person. In such a circumstance, the accused is not guilty because s/he has acted lawfully. The criminal law standard of proof means the accused does not have to prove this. It is for the Crown to establish, beyond a reasonable doubt, that the accused was not acting in lawful defence of herself/himself or another person.

[38] The issue in the present case is whether the defendant, in using a knife to cut Mr. Kazbekov and stab Mr. Pye, was acting in lawful defence of Mr. Heyes. This is governed by section 34 of the Criminal Code. It provides a defence based upon reasonable belief, defensive purpose, and reasonable response. Thus, three questions arise:

1. Did the defendant believe, on reasonable grounds, that force was being used against Mr. Heyes?

2. Did the defendant use her knife to cut and stab the complainants for the purpose of defending Mr. Heyes?

3. Was the defendant's conduct reasonable in the circumstances?

[39] The Crown may disprove the defence by demonstrating beyond a reasonable doubt that the answer to one or more of these questions is "no".

[40] The first question addresses the defendant's belief. The belief may be mistaken, provided it is honestly held. To determine her state of mind, all the evidence must be considered, including the words and actions of the complainants. What must next be considered is whether a reasonable person in these circumstances would have a similar belief. The Crown argues that since the "fight was over" by the time the defendant stabbed Mr. Pye, this question must be decided against her. I will explain why I cannot accept this submission.

[41] The second question addresses the defendant's conduct; did she attack the complainants for the purpose of defending Mr. Heyes? Purpose, like belief, is a state of mind and all evidence must be considered in answering the question. There is no serious dispute about this purpose. The defendant produced the knife after watching Mr. Heyes be taken to the ground several times, after shouting for all to stop fighting, and after one unsuccessful attempt to physically intervene. There is nothing to suggest any other purpose for cutting and stabbing the complainants (e.g. vengeance).

[42] The third question also addresses the defendant's conduct – and asks if it was reasonable. It is this issue that most divides the parties and upon which this case is to be determined. The inquiry is not about whether the defendant's conduct was the only option available to her but whether it was reasonable in the circumstances as she knew them or believed them to be. In this regard, a reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful. Moreover, such person cannot be expected to know exactly what course of conduct or how much force is necessary in defence of another.

[43] Section 34(2) of the Code provides that:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[44] There is evidence in this case that the defendant, along with Mr. Heyes, had consumed cocaine the day in question. Assuming, for the moment, she was under the influence of the drug at the time she cut and stabbed with her knife, how does this affect the analysis? This matter was addressed by the Supreme Court of Canada in R. v. Reilly:

The fatal difficulty with the appellant's argument in this case is that although intoxication can be a factor in inducing an honest mistake, it cannot induce a mistake which must be based upon reasonable and probable grounds. The perspective of the reasonable man which the language of s. 34(2) places in issue here is the objective standard the law commonly adopts to measure a man's conduct. A reasonable man is a man in full possession of his faculties. In contrast, a drunken man is one whose ability to reason and to perceive is diminished by the alcohol he has consumed.

I should not be taken as saying that the defence under s. 34(2) can never be available to a person who is intoxicated. An intoxicated man may hold a reasonable belief, i.e. the same belief a sober man would form viewing the matter before him upon reasonable and probable grounds. Where he does so, however, it is in spite of his intoxication.

The requirement of an objective basis for the accused's perception of the facts, whether it be mistaken or accurate, eliminates any relevance that evidence of the accused's intoxication might have had to self-defence under s. 34(2). Naturally, if the accused is intoxicated, he is not deprived of the defence provided by the subsection so long as the objective test is met by the existence of reasonable and probable grounds for the accused's perception of the nature of the assault upon him and the response required to meet it.

Submissions

[45] The Crown urges me to find these facts: After Mr. Heyes repeatedly and unsuccessfully battled with the wrestlers, he stood up and was up to 10 feet away from his opponents. Moreover, five to ten seconds had elapsed before the defendant stabbed Mr. Pye. The Crown asserts that by this point, "the fight was over" and there was no need for the defendant to do anything.

[46] On these facts, the Crown argues that the first question raised by the section 34 analysis must be answered against the defendant; that is, no reasonable person could conclude that the threat to Mr. Heyes was continuing and required any response. The Crown asserts that the third question raised by the section 34 analysis must also be answered in the negative; that is, the defendant's response in protecting Mr. Heyes from the threat he faced was unreasonable. Why, asks the Crown, did the defendant resort to the "nuclear option" of slashing and stabbing with a knife? In this regard, counsel points out that since the defendant elected not to testify, the only evidence about her state of mind is her out of court statements at the time. This, it is said, is insufficient to justify her subjective belief. The statements are not under oath or tested by cross-examination.

[47] The Crown concedes that the hearsay statements that the defendant purchased the knife to protect her drug trade cannot be used to establish that she was carrying a weapon for a purpose dangerous to the public peace. Nevertheless, the fact remains that she "brought a knife to a fist fight". The Crown urges me to find that this happened because the defendant was under the influence of cocaine at the time and her judgment was impaired.

[48] The Crown does not rest its case on the issue of intoxication. It is argued that even if the defendant was sober, her response remains objectively unreasonable. The Crown relies on the criteria set out in subsection 34(2), especially clauses (a), (b), (d) and (g) (it is obvious that clause (h) has no application to this case). In other words, the defendant reacted to up to three men who used their wrestling skills to take Mr. Heyes to the ground and their fists to punch him. They did not produce or use weapons. In these circumstances the defendant's use of a weapon was a disproportionate response; "she simply lost it".

[49] The Defence asserts that the first and second questions in the section 34 analysis must be answered in favour of the defendant. What must be determined is the answer to the third one; was the defendant's response reasonable in the circumstances?

[50] The Defence urges me to make these findings of fact: The defendant's relationship with Mr. Heyes was long standing and toxic. She had previously had a healthy relationship with Mr. Pye. Counsel argues that Mr. Pye "had repressed feelings for her" and added that "this is a classic good guy and bad guy fight over a girl".

[51] The Defence acknowledges the evidence points to drug use by the defendant and Mr. Heyes preceding the events in question but emphasizes that there is no basis to conclude how much cocaine was consumed and what impact it may have had on either individual. The Defence accepts the Crown concession that I cannot conclude the defendant carried a weapon for a purpose dangerous to the public peace but adds that I should also find that she was in possession of the knife at the relevant time because she refused to give it over to Mr. Heyes who wanted to cut someone's ear off. It is said that the intended victim was Mr. Pye. The defendant wanted to avoid any confrontation; she simply wanted her car repaired and returned. As soon as the altercation started, she unsuccessfully tried to stop it.

[52] Defence counsel submits that there is no need for the defendant to testify; her state of mind is clear from the evidence of others. Ms. Fullerton heard the defendant say, "I had to do it, they were going to kill him". Her husband testified that he previously heard a woman scream "leave me alone". Counsel asserts that this independent evidence shows the defendant was restrained in her attempt to intervene before she produced the knife in defence of Mr. Heyes.

[53] It is argued that there was no need for Mr. Pye to have followed the defendant when she bolted from the car. The consequence of this was a quick progression of events in which Mr. Heyes was repeatedly beaten. This is relevant to the defendant's subjective belief that she had no option but to use her knife. In all the circumstances, her belief is objectively reasonable. At the very least, it cannot be said that this has been disproved beyond a reasonable doubt.

Conclusions

[54] I agree with Defence that the verdict in this case depends on the answer to the third question raised by section 34. There is no dispute about the second question; namely, that the defendant attacked for the purpose of defending Mr. Heyes. Moreover, I do not accept the Crown submission about the first question: The stabbing of Mr. Pye followed immediately after the slashing of Mr. Kazbekov. Both attacks occurred within the context of several physical confrontations that quickly unfolded. Was the fight over or did it end because the defendant intervened? It may have been the former but I could not conclude beyond a reasonable doubt that the defendant appreciated this.

[55] The following comments from R. v. Filli, 2017 ONSC 2883 have been helpful to me in arriving at my verdict:

Intoxication may affect the subjective perception of the accused. However, the objective reasonableness component of self-defence is based on a sober person facing the relevant threat of force. Individual factors may be considered in determining reasonableness. As articulated by the Supreme Court of Canada in R. v. Lavallee, "the issue is not however what an outsider would reasonably have perceived but what the accused reasonably perceived given [his] situation and [his] experience."

In assessing the reasonableness of the response under s. 34(1)(c), other principles enunciated under the prior self-defence provisions remain applicable. An accused need not wait until he or she is assaulted before acting, and an accused is not by law required to retreat before acting in self-defence. The imminence of the threat, the existence of alternative means to respond and the actions taken by the accused are factors that a trier of fact must consider to determine if the act committed by the accused was reasonable in all the circumstances. An accused is not required to "weigh with nicety" the force used in response to the perceived use or threat of force. The defensive action need not be strictly proportionate to the threat faced by the accused. The proportionality of the force is a factor to be considered in assessing the reasonableness of the force.

[56] The sequence of events, as described by several participants, is not consistent. This is undoubtedly due to the quick pace of the action and the different perspectives of the witnesses. The differences are minor and I am not troubled by them. Nor am I bothered by the fact that these witnesses testified that Mr. Heyes said, "I hope you die" to Mr. Pye as he lay bleeding on the ground, whereas Mr. Pacheko did not hear this and said Mr. Heyes seemed genuinely concerned about Mr. Pye. Mr. Pacheko came on the scene just after Mr. Pye was being assisted by others. It may well be that Mr. Heyes uttered the words attributed to him when Mr. Pye first fell to the ground and then became concerned on seeing others trying to stop his bleeding.

[57] Mr. Pye followed the defendant after she bolted from his car because he was concerned about her well-being. He became alarmed on seeing her up against a wall and facing Mr. Heyes. According to this witness, the fight started between Mr. Kazbekov and Mr. Heyes after the former said something to the latter. Mr. Heyes was swiftly thrown to the ground several times and punched. He then stood up and approached Mr. Pye and suffered the same consequences. After Mr. Heyes stood up again he flicked blood from his nose at Mr. Pye and became entangled with Mr. Budgey. The latter, like the others, summarily took him down to the ground with a wrestling maneuver. Mr. Heyes stood up again and walked away, but then turned toward Mr. Pye. They shouted at each other. The defendant stabbed Mr. Pye.

[58] Mr. Budgey agreed with the account given by Mr. Pye, except that he seemed to suggest Mr. Heyes fought with Mr. Pye before he confronted Mr. Kazbekov. The latter also agreed with Mr. Pye's recollection of events, but said that at one point he and Mr. Pye both struggled with Mr. Heyes while he was on the ground. He also accepted the suggestion that Mr. Budgey may have joined them and that it was at this point that the defendant produced the knife.

[59] I find that Mr. Kazbekov is mistaken in conceding that the defendant produced her knife when two or three combatants struggled with Mr. Heyes on the ground. Not only is this sequence of events at odds with the testimony of Mr. Pye and Mr. Budgey, it is inconsistent with that given Mr. Kazbekov in examination in chief; he said that after he was slashed across the abdomen, he saw the defendant move toward Mr. Pye and he shouted "she has a knife". It is clear that both complainants were standing apart and not holding Mr. Heyes to the ground.

[60] It is equally plain that Mr. Heyes was on the losing end of a fight with three separate individuals and that at some point, before the defendant produced the knife, he may have been subject to their collective efforts to confront him. These quickly unfolding events were marked by the refusal of Mr. Heyes to back away from his more powerful opponents.

[61] At no time did any of the combatants produce or use a weapon. Only the defendant did so. The Defence assertion that she was in possession of the knife because she wanted to keep it away from Mr. Heyes suffers from the same weakness as a finding that she carried it for a purpose dangerous to the public peace. Both conclusions are speculative and tainted by hearsay concerns.

[62] After the stabbing, the defendant told a witness, "I had to do it, they were going to kill him". I find that her apprehension is not grounded in reality. Nobody was trying to kill Mr. Heyes. He was the subject of violence by others that continued because he would not back away. This caused him to suffer bruising, concussion, and fractured bones. Although he was punched several times, what his opponents primarily did was to use their training to repeatedly take him to the ground. They did so with their arms, legs and bodies. These actions were not remotely life threatening. I am satisfied the wrestlers did not want to prolong the confrontation. I am also satisfied that the reasonable person in the defendant's circumstances would have come to the same conclusions.

[63] I do not suggest that only the threat of death could justify the defendant's actions; my comments respond to evidence relied upon by the Defence. Moreover, I find that the defendant's conduct is wholly disproportionate to the threat that Mr. Heyes did face. He risked being repeatedly taken to the ground until such time as he retreated. The defendant could have appealed to Mr. Heyes to back off. She could have shouted generally for help. In this regard, I note that this incident occurred in a residential area at dinner time; indeed, her previous scream, "leave me alone" had already been heard by neighbours who came to the scene just after Mr. Pye fell to the ground, bleeding. In making these observations, I should not be taken as holding that the defendant's response must have been the best or only option. The law does not require such precision. But the other options highlight the senselessness of resorting to slashing and stabbing with a knife in the circumstances of this case.

[64] The evidence shows that after Mr. Pye fell to the ground, the defendant raised her arm as if to stab him a second time. The Crown points to this as further evidence that her decision to use the knife was not proportionate to the threat faced by Mr. Heyes. This would be a compelling submission if I was satisfied she intended to "finish him off" as Mr. Kazbekov feared. I am not so satisfied. The fact is that she lowered her arm, did not attack again, and apologized.

[65] I have no doubt the defendant's apology was sincere. It probably reflects the startling realization that she had over-reacted. In any event, whatever the motive for her regret, I am driven to the conclusion that she did greatly over-react and no reasonable person in her circumstances would have responded as she did. I also am confident that the most likely explanation for her conduct is cocaine.

[66] Mr. Pye testified that the defendant had been using cocaine for several months. She told him that and he had seen the signs of it. On the day in question, Mr. Budgey saw the defendant and Mr. Heyes in her room and noticed white powder on a table. There is no doubt they consumed cocaine on this day. This much is fairly conceded by the Defence. With respect to the impact on them, Mr. Kazbekov is probably correct in opining that the reason Mr. Heyes repeatedly refused to back away from the confrontations is that he was "high on something". This might also explain his bizarre gesture, soon after, in extending his hand toward Ms. Crote, in greetings, at the same time that the defendant told her she had just stabbed Mr. Pye.

[67] The defendant exhibited obvious signs of intoxication. Mr. Budgey described her as "incoherent and confused". Ms. Crote refused to allow the defendant to drive her car because she "was not in the right frame of mind". Mr. Pye was also concerned about her ability to drive because she was "acting weird" and "her eyes were darting around". The effects of cocaine on her mind would account for her strange conduct in suddenly bolting from a motor vehicle right after having asked for a ride in it. In any event, she ran to the scene of the events in question and, within minutes, attacked the complainants with her knife.

[68] The Crown has met its burden and proven that the defendant was not acting in lawful defence of Mr. Heyes because it has been shown her response was disproportionate to the threat faced by him.

[69] The defendant is guilty.

Released: April 29, 2019

Signed: Justice J. De Filippis