Court File and Parties

Ontario Court of Justice

Date: 2019-06-28

Court File No.: Niagara Region 998 17 N0892

Between:

Her Majesty the Queen

— and —

Terrence Rivard

Before: Justice J. De Filippis

Heard on: October 16-17, 2018; April 10 & May 15, 2019

Reasons for Judgment released on: June 28, 2019

Counsel:

• Ms. A. Woolf — counsel for the Crown
• Mr. G. Hadfield — counsel for the accused

Introduction

[1] The defendant is charged with the aggravated assault of Daniel Shaver and assaulting Tim Brozeau with a weapon. The offences are said to have occurred on June 17, 2016 and arise from an incident that occurred after the complainants went to the defendant's home. The latter lived in an apartment on the third floor of a building in Niagara Falls. Other tenants lived in the basement, first and second floors. In the confrontation that occurred, at around 7:30 am, the defendant produced a machete. It is not in dispute that the injuries to Mr. Shaver meet the definition of aggravated assault. It is also not controversial that after the altercation, the police recovered the following items from the defendant's apartment: A milk crate that contained an orange handled axe and a black sword. Five knives in a backpack. A compound bow. A notebook on kitchen counter with a "debt list". A machete, with blood on it, on the kitchen floor. The defendant was arrested days after the incident.

[2] The Crown asserts that the defendant swung the machete at the complainants as they retreated in fear and struck Mr. Shaver with it after the latter had fallen to the ground. The defendant claims he brandished the machete in self defence and to intimidate the complainants so they would leave his property. In any event, he also states that the injuries to the complainant were sustained during a struggle over the weapon and not because he struck anyone with it.

Evidence

[3] Mr. Brozeau is 32 years old and operates a roofing business. Mr. Shaver was one of his employees. He admitted to a criminal record from his early 20s, including mischief and stolen property; he described the record as "nothing exciting". At the time of these events, Mr. Brozeau was dating Laura Thompson.

[4] About two weeks earlier, he had spent the night at Ms. Thompson's apartment. In the morning, he was awakened by a noise and saw the defendant in the bedroom. Mr. Brozeau was naked. The defendant angrily asked "how long [he] had been fucking Laura". The defendant went through the residence, found a PlayStation that he claimed was his and then left, albeit without the game device. The complainant said he had never met the defendant before and "backed off".

[5] Mr. Brozeau also stayed over at Ms. Thompson's apartment on the night before the incident in question. He parked his "distinctive, two-tone coloured" truck in the area. The next morning, Mr. Shaver reported that two tires on the truck had been slashed. Mr. Brozeau testified that he assumed that the defendant was responsible and "went along" with Mr. Shaver's suggestion that they confront him. They were dropped off at his residence by Ms. Thompson, on her way to work. According to Mr. Brozeau, they did not "intend to be physical" and neither man had a weapon. They entered the building by the back door, went up to the third-floor apartment, and knocked on a door. They heard the sound of movement and a dog barking from within the unit. After a few minutes, the defendant opened the door. Mr. Brozeau testified that "we asked him why he did what he did". The defendant denied slashing the tires. The three men shouted and cursed at each other and the defendant said he would meet them outside to discuss the matter. He shut the door and the complainants went downstairs to the yard outside.

[6] Mr. Brozeau testified that the defendant came downstairs and opened the door to the building. He was holding a large dog by the collar and said, "no cops here?", before shutting the door. Soon after, he opened the door again and came outside with a machete in his hand. He waved it over his head as he said, "get off my property". Both complainants put their "hands up in the air" [in surrender] and retreated to a neighbouring yard. Mr. Brozeau testified that they "were pleading that there was no need to have a knife". However, the defendant followed them to the yard as he continued to order them off his property. Suddenly, the defendant threw the machete to the ground in front of him and said he didn't need it. Mr. Shaver stepped on the machete and the defendant responded by reaching for it. Mr. Brozeau saw a shovel leaning up against the side of a shed and picked it up. He testified that the defendant now had the machete in hand again. Mr. Brozeau ran at the defendant and hit him in the head with it; "not enough to kill him but enough to let him know". The defendant swung the machete and "grazed" the shirt he was wearing "in the chest area". Mr. Brozeau backed away while swinging the shovel in the air.

[7] What followed, according to Mr. Brozeau, is this: "Then he [the defendant] turns and goes for Dan [Shaver], Dan was near a bush at the back of the house and trips and falls as he backs away, saying, 'don't do this'". The defendant raised "his arm over his shoulder and swings down at Dan with the machete…he [Shaver] is on the ground and put his hands out to stop being hit with the machete and was hit with one quick slice…he [the defendant] turns and runs away" in the direction of his residence. The complainants ran toward the Niagara River. Mr. Brozeau testified that he did not receive injuries. However, those sustained by Mr. Shaver were serious and he used his shirt to try to stop the bleeding. The police were called.

[8] Mr. Brozeau denied the defendant was challenged at his doorway to come outside and talk about the slashed tires. However, on being shown a prior statement to the police, he stated that Mr. Shaver had done so. Mr. Brozeau did not accept the suggestion that the defendant threw the machete to the ground because the complainants had taunted him to "fight this out like a man", but agreed that after the machete was discarded, he saw Mr. Shaver punch the defendant. Mr. Brozeau denied that the defendant picked up the machete, by the blade, and cut his hand while struggling over it with Mr. Shaver. He also rejected the assertion that Mr. Shaver's injuries were sustained during this same struggle. He insisted that the defendant swung the machete at Mr. Shaver while he lay on the ground with his arm held over his head in a protective gesture. Mr. Brozeau testified that he no longer associates with Mr. Shaver; he said that since this event, the latter has "gone weird".

[9] Mr. Shaver is 25 years old. He has a criminal record for robbery. He confirmed Mr. Brozeau's account of the discovery of the slashed tires, the visit to the defendant's home to talk about the matter, and the events leading up to the defendant's meeting with them in the yard of his building. His testimony about what followed was occasionally marked by emotional upset and interrupted by pauses in which he appeared to stare into space.

[10] Mr. Shaver described the outdoor encounter as follows: He and Mr. Brozeau waited for the defendant without weapons in hand. The defendant came out swinging a machete and, "I said whoa, whoa, this is not why we are here…he [the defendant] then threw the machete on the ground…I jumped on top of the machete to avoid him getting it and bent down and grabbed the machete…I did not try to grab machete and never did…I tried to push D away from the machete but it didn't work". Mr. Shaver could not say if he punched the defendant but saw the defendant swing the machete. He ran; "I tripped over something, I remember getting up and running, I remember the impact and the hand falling off and all the blood…[Mr. Brozeau] tried to tie the arm to stop the bleeding".

[11] When asked to elaborate, Mr. Shaver testified that the defendant chased them and "was flailing the machete like a crazy man… he got close to my neck and he made contact with my hand" while he held it up to protect his neck and head. When asked to say "how much force the defendant used in cutting you", he replied, "he tried to kill me, it was outrageous, ridiculous". He added that, "my right hand was 90% cut and my artery cut and I saw my blood flowing into a storm sewer… so much blood came out I thought I wouldn't make it…so I prayed to God that I would fucking make it…and then EMS arrived".

[12] Mr. Shaver testified that the attending doctor described his wound as a "partial amputation". He was in hospital for a number of days. His hand was re-attached but he has little mobility: "I have no feeling in the hand, it doesn't work" He continues with physiotherapy. The Crown filed medical records pertaining to Mr. Shaver. The nature of the injuries as described by this complainant is not controversial. His hand was almost severed by a cut on the arm that pierced the bone.

[13] Mr. Shaver denied the suggestion by Defence counsel that he visited the defendant with the intent to have a physical altercation. He added that he was "polite and civil" and "wanted to make peace" with the defendant. When pressed about this, he protested that "I came in flip flops, I had no intention to fight….I just wanted to talk….". The complainant could not recall seeing the defendant before these events. However, he adopted his comments in a prior statement to police in which reported seeing him once on the street. He could not recall – but cannot dispute – also describing the defendant as "a little skinny asshole and crack head". The complainant explained that he was heavily medicated at the time of the police interview.

[14] The Defence confronted Mr. Shaver about details of his trial testimony. When his prior statement was put to him, Mr. Shaver said he suffers from post-traumatic stress and "the last thing I want is to do is have this surface again, I struggle with this every day, I can't believe this happened". He reacted in astonishment at the suggestion that "the cause of your injury was the struggle over the knife".

[15] PC Gibson reviewed the video record from surveillance cameras in the area for the day of these events. He testified that before the confrontation, the complainants can be seen arriving at the defendant's building, without any visible evidence of weapons. After the confrontation had concluded, they are seen leaving in a hurry; Mr. Brozeau is carrying a shovel and Mr. Shaver is holding his right hand with his left one.

[16] PC Scobie is the officer who responded to a "911 call" about this matter. On arrival he saw Mr. Shaver laying on a sidewalk in a large pool of blood, with a deep cut to his right arm. He tied it to stop the bleeding. Mr. Brozeau was also present, without a shirt.

[17] The Crown filed numerous photographs taken by police of the defendant's apartment and the outdoor areas. With respect to the latter, the blood stain evidence is consistent with the complainant's account of where Mr. Shaver's arm was cut. That is, not outside the door to the defendant's building, but further away in, what looks to be, a neighboring yard. Another photograph shows a large trail of blood on a sidewalk, which is also consistent with the account given by the complainants and P.C. Scobie about where Mr. Shaver lay when attended to by police and EMS.

[18] Mr. Rivard is 35 years old. He has a criminal record for mischief, assault with weapon, manslaughter, and aggravated assault. He testified that at the time of these events he was living in an apartment leased by his friend, Kevin. He added that, on the day in question, he was asleep in his apartment when he heard banging on the door downstairs. He went to that door, opened it, and observed a man swearing at him about damage to a car. He responded, "I've never seen you in my fucking life", slammed the door and went back upstairs. However, he heard a door open and slam and his dog started barking, so he went back down stairs. Before doing so, he picked up a machete from Kevin's tool box – "it was the first thing I grabbed" – and did so because he did not know the intention of the intruders. He thought the machete "would scare them away". When he opened the door to the yard, he saw a man staring at him. The defendant held the machete in the air and repeatedly told them to leave. The man said "put the knife down" and the defendant threw it on the ground in front of him. He testified that, "I didn't think he'd pick it up" and they struggled over it and this caused a cut to his hand. He denied swinging the machete at Mr. Shaver as described by the latter and Mr. Brozeau. The defendant has no recall of being hit with a shovel but said that suddenly, he saw "flashing lights and had double vision". He then ran back to his apartment with the machete and saw two men run away from his property.

[19] The defendant identified a photograph depicting a sliced hand. He said this is the injury sustained during the struggle over the machete. He identified other photographs that show a swollen face and eye. These, presumably, are the result of being hit with a shovel. All pictures were taken by a friend on the day of the events.

[20] The defendant conceded that he entered the apartment of Ms. Thompson and angrily confronted Mr. Brozeau. He explained that he had been dating her at the time and was upset about her infidelity. He denied damaging Mr. Brozeau's truck; indeed, while he does not dispute that Mr. Brozeau was one of the two men who came to his apartment, he could not identify him as such. He also agreed that he did not see either man in possession of a weapon during the encounter and that one of the men repeatedly told him to throw the machete down. The defendant said he "just dropped it" with the intent to go into his apartment. However, after he did so, the man stepped on the machete and grabbed it by the handle. This caused him to turn back and struggle for possession of it. The defendant did so by grabbing the machete by the blade. When Crown counsel asked, "what was your plan now?", the defendant replied, "before I could do anything I saw flashing lights and double vision". He added that he grabbed the machete rather than run into house because he did not want to turn his back on a man with machete in his hand. The defendant testified that their struggle lasted for "a few seconds" and they went their separate ways. He did not see any injuries or blood on either of the two men, but assumes that Mr. Shaver was cut during the brief struggle.

[21] The Crown confronted the defendant with the photographs of blood deposited at the scene and suggested that this evidence was inconsistent with his version of events. There is no blood at the place the defendant said that he and Mr. Shaver struggled over the machete. In response to this challenge the defendant testified that he did not know where the struggle occurred.

[22] The defendant testified that after this incident he moved out of his friend's apartment because he was concerned the complainants would return. He did not call the police to report the encounter. When asked why he had left the apartment immediately after these events, he replied that could not recall if he left immediately or soon after. When it was suggested that he should remember given the many police officers who arrived on the scene, the defendant repeated that he could not recall.

Submissions

[23] The Defence submissions may be summarized as follows: There can be no dispute that the complainants embarked on a plan to confront the defendant at his home. Their intentions were not civil; one of the complainants later described the defendant as "a skinny little crack head". They knocked on the exterior door and, not receiving a response, proceeded up the stairs to the apartment occupied by the defendant. The defendant responded to the knock on this door, denied the accusation he had slashed tires on a truck, and closed the door. The complainants "called him out". In these circumstances, it was reasonable for the defendant to arm himself "with what is at hand" to go down and meet the threat. Once outside, the defendant eventually threw the machete to the ground. After this point in time, the narrative offered by the defendant and complainants is significantly different. The defendant's version of events is that he struggled with Mr. Shaver over possession of the weapon after it had been thrown to the ground and that, he assumes, this is how the complainant's arm was cut. In any event, at all times – on exiting his apartment – and during the struggle, the defendant was in lawful possession of the machete in defence of himself and property.

[24] The Crown submits that there is no air of reality to the claim of self-defence. Counsel accepts the defendant's concession that he threw the machete to the ground. This, it is said, shows the defendant appreciated the complainants were not armed with weapons and that this was now "going to be a fist fight". In addition, the Crown argues that it is only when Mr. Shaver stepped on the machete that the parties fought over possession. Once the defendant regained control of it, he chased the retreating complainants and attacked Mr. Shaver with it after the latter had tripped and fallen. In support of these submissions, the Crown questions how Mr. Shaver could sustain such a serious injury while he struggled over the machete, especially given the undisputed evidence he was holding it by the handle and the defendant, by the blade. Moreover, it is asserted that the blood stain evidence not only contradicts the defendant's testimony, it supports that of the complainants.

Analysis

[25] 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 (S.C.C.).

[26] The law sometimes permits 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.

[27] One of the issues in the present case is whether the defendant, in his confrontation with the complainants, was acting in lawful defence of himself. There is nothing in this case to suggest he was lawfully defending his property. The former 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 him?

2. Did the defendant use the machete for the purpose of defending himself?

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

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

[29] The first question addresses the defendant's belief. The belief may be mistaken, provided it is honestly held. To determine his 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.

[30] The second question addresses the defendant's conduct; did he act against the complainants for the purpose of defending himself? Purpose, like belief, is a state of mind and all evidence must be considered in answering the question.

[31] The third question also addresses the defendant's conduct – and asks if it was reasonable. The inquiry is not about whether the defendant's conduct was the only option available to him but whether it was reasonable in the circumstances as he 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.

[32] 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.

[33] The principal players in this drama all have criminal records. A criminal record is of some assistance for the limited purpose of assessing credibility. In this regard, I note that the defendant's convictions for serious crimes of violence cannot be used in any way that leads to propensity reasoning. In any event, in this case, the records are not significant; other evidence provides a solid basis to assess credibility. As is the often the case, it shows that there is some truth in what each person asserts and there are difficulties with each person's evidence. For example, Defence counsel illustrated inconsistencies between the testimony of the complainants and prior statements given by them. When Crown counsel pressed the defendant on certain matters, he said he could not recall the events. However, on the issues that matter, the testimony of the defendant does not withstand scrutiny, whereas that of the complainants is persuasive.

[34] This much is clear: The complainants arrived at the defendant's home, without weapons. After an initial heated discussion at the door of his apartment, it was decided to 'take the matter outside'. The complainants went outside. At this point the defendant was safely in his residence. He came downstairs, opened the exterior door and looked outside, with a dog in hand. He spoke to the complainants – according to them, he wanted to ascertain if the police were present – and closed the door. He emerged soon after, with a machete. The defendant waived it at the complainants and repeatedly told them to leave. The latter pleaded that there was no need to bring a weapon into the confrontation.

[35] The fact that the defendant came outside after he checked the area with his dog undermines his testimony that he just picked up the machete as the first thing at hand. In any event why pick up any weapon? He knew the complainants were not armed. If, as he testified, he did so because he was concerned for his safety, why leave his apartment at all? Why not call the police? These questions lead me to the conclusion that the defendant selected the machete, with the intent to aggressively challenge the unarmed men waiting outside.

[36] It is also clear that, once outside, the defendant waived the machete in the air and ordered the complainants off the property. He dropped it to the ground after they pleaded with him to do so; this was now a fist fight. However, a struggle for the weapon ensued after Mr. Shaver stepped on the machete. At this point, Mr. Brozeau hit the defendant in the head with a shovel.

[37] What follows is controversial. According to the defendant, he cut his hand in the struggle to regain control of the machete and, having done so, returned to his residence. The complainants' version of events is quite different: After the defendant had the weapon in hand, Mr. Brozeau hit him in the head with a shovel. The defendant swung the machete at Mr. Brozeau and grazed his chest. Both complainants retreated. In doing so, Mr. Shaver tripped and fell. The defendant chased him, raised the machete in the air and struck down at Mr. Shaver. He held his arm over his head and neck in a protective gesture. The blow pierced the bone between the arm and hand.

[38] I have no hesitation in accepting the complainants' version of events. Although Mr. Shaver is surely exaggerating in suggesting that he was civil and polite in confronting the defendant, the balance of his evidence, along with that of Mr. Brozeau is credible and reliable. Their accounts are internally consistent and complementary. Together they present a logical narrative. As already explained, their testimony is confirmed by independent evidence; the video surveillance, blood stains, and the nature of Mr. Shaver's injuries.

[39] It may be that the defendant cut his hand over his victorious struggle for the machete. However, I reject his assertion that he then returned home. This account is defeated by the blood stain evidence and the nature of Mr. Shaver's injuries. The former establish that the attack on Mr. Shaver could not have occurred where he said it did. This is important because the complainants say he chased Mr. Shaver as they fled and the defendant testified that after regaining control of the machete he returned home. The blood stains are inconsistent with the defendant's testimony and confirms that of the complainants. When the defendant was challenged about this in cross-examination, he said he could not recall where the confrontation occurred. I have no doubt that answer was an attempt to evade an inconvenient question.

[40] The nature of Mr. Shaver's injuries also defeat the defendant's testimony. Perhaps, more so. It is impossible to believe that the partial amputation of his hand occurred during a few second struggle over the machete – especially since it was the defendant who reportedly held it by the blade.

[41] In his initial appearance with the machete it cannot be said that he reasonably believed that force was being used against him, that the defendant needed the weapon to defend himself or that his conduct was reasonable in the circumstances. After being hit with the shovel by Mr. Brozeau it is reasonable for the defendant to fear him. Moreover, I cannot reject the suggestion that he acted for the purpose of defending himself in swinging the machete at Mr. Brozeau. Nor can I reject the suggestion that this act was a reasonable response in the circumstances. The Crown has not established, beyond a reasonable doubt, that the defendant did not act in self defence with respect to Mr. Brozeau.

[42] I come to a different conclusion with respect to Mr. Shaver. He was unarmed, and in retreat, when chased by the defendant. He had fallen to the ground when the defendant hit him with the machete. All Mr. Shaver could do is protect his head and neck from the blow. It cannot be said that the defendant reasonably feared for his safety with respect to Mr. Shaver, that he needed the machete to defend himself, or that his conduct in striking him while on the ground was reasonable in the circumstances. The Crown has proven that the defendant was not acting in self defence in attacking Mr. Shaver.

[43] The defendant is not guilty of assaulting Mr. Brozeau with a weapon. He is guilty of aggravated assault with respect to Mr. Shaver.

Released: June 28, 2019

Signed: Justice J. De Filippis

Footnote

[1] The delay in completing this trial should be explained. It was scheduled for three days, from October 16-18, 2018. As it turned out, an extra day was required. However, on the third day, Defence counsel was ill and the matter was adjourned to February 15. On this date, the judge was ill and there was a further adjournment to April 10. The evidence was concluded on that date and the matter was adjourned for submissions to May 15.