Ontario Court of Justice

Date: August 22, 2019

Court File No.: Toronto, College Park 4817-998-16-75002902-00

Between:

HER MAJESTY THE QUEEN

— AND —

STEVEN TROTMAN

Before: Justice J. W. Bovard

Heard on: May 6, 7, 8, 9, 13; June 11, 2019

Reasons for Judgment released on: August 22, 2019

Counsel

Mr. M. Friedman — counsel for the Crown

Ms. G. Igbokwe — counsel for the defendant Steven Trotman

Judgment

Bovard J.:

[1] Facts

On June 28, 2016, Steven Trotman and David Banfield got into a fight on the sidewalk in front of Jimmy Simpson Park in Toronto's east end. During the fight, Mr. Trotman cut Mr. Banfield under the chin with a knife.

[2] Charges

The police charged Mr. Trotman with the following four offences:

1. Aggravated assault;
2. Assault with a weapon (knife);
3. Carry a weapon (knife) for a purpose dangerous to the public peace;
4. Utter death threat.

[3] Finding

For the reasons that follow, I find Mr. Trotman not guilty of all the charges. They are all dismissed.

Introduction

[4] Background of the Relationship

Mr. Trotman and Mr. Banfield met in 2015 when Mr. Banfield moved in to the rooming house where Mr. Trotman lived. At first, they got along and socialized regularly. When they went out, Mr. Trotman noticed that Mr. Banfield was a very aggressive, angry person, especially when he drank alcohol or consumed drugs. He bragged about fights that he had been in.

[5] Deterioration of Relationship

After a while they had a falling out. Their relationship became acrimonious. Once, they had a serious fight in Mr. Trotman's room.

[6] Threats and Fear

After the fight, Mr. Banfield threatened Mr. Trotman often and said many nasty things to him. Mr. Trotman began to fear Mr. Banfield.

[7] Carrying the Knife

On the day in question, Mr. Trotman put a knife in his backpack because he was going out and he feared that he would run into Mr. Banfield and be hurt by him.

[8] The Confrontation Begins

Mr. Trotman was walking in front of Jimmy Simpson Park when Mr. Banfield suddenly appeared. He was drunk and possibly under the influence of drugs. He started to call out Mr. Trotman in a very aggressive manner.

[9] Initial Attempt to Defuse

Mr. Trotman tried to calm him down, but to no avail. Then he took the knife out of his backpack and held it by his side to try to dissuade Mr. Banfield from further aggressive behaviour. It had the opposite effect; Mr. Banfield stepped forward and punched him in the face.

[10] The Cutting

Mr. Trotman went backwards a few feet. Mr. Banfield advanced on him slowly. Mr. Trotman waved the knife at him and cut him below the chin.

[11] The Defence Claim

Mr. Trotman claims that it was self defence. The Crown argues that his response was out of proportion with any threat that Mr. Banfield posed.

[12] Witnesses

Twelve witnesses were called. Most testified in person. Two gave their evidence though agreed statements of fact. One witness did not testify but his statement to the police went into evidence after a voir dire based on the principled approach to hearsay statements.

[13] Terminology Note

Through out the evidence many witnesses referred to "the white guy", who all agree means Mr. Banfield, and to "the black guy", who all agree means Mr. Trotman. For clarity, when a witness referred to "the white guy", I translated this into "Mr. Banfield". When a witness referred to "the black guy", I wrote, "Mr. Trotman".

The Issues

[14] Issues to be Determined

The issues are:

1. The credibility and reliability of the witnesses.
2. Whether the Crown proved beyond a reasonable doubt that Mr. Trotman was not acting in self defence.

[15] Concession by Defence

Defence counsel concedes that if Mr. Trotman did not act in self defence, the elements of aggravated assault and assault with a weapon are made out.

The Evidence

Mr. Banfield

[16] Initial Meeting

Mr. Banfield met Mr. Trotman in 2015 when he moved into the rooming house where Mr. Trotman lived. The residents each have a bedroom and share a living room, bathroom and kitchen. He and Mr. Trotman became friends and spent time together. Their rooms were next to each other's.

[17] Relationship Deterioration

After about a year Mr. Trotman made other friends, including Mr. Sal Graziano. Consequently, he and Mr. Banfield stopped socializing as much. Their relationship deteriorated. He thought that Mr. Trotman bad mouthed him to the other tenants. Mr. Banfield stopped talking to him.

[18] The Knife Incident in the Room

One day shortly after Christmas 2015, Mr. Trotman who was very intoxicated, was being friendly and invited Mr. Banfield to his room. Mr. Banfield was sober. He told Mr. Banfield to sit down in a chair. As soon as he sat down Mr. Trotman pulled out two long knives. One was approximately 12 inches long and the other one was 18 inches long, including the handle. In his video statement he told the police that there was only one knife.

[19] Inconsistency Regarding the Knives

Mr. Trotman told him that he had been carrying them around for him. In his video statement he just said that Mr. Trotman told him that had been carrying the knife. He did not mention that he had been carrying it for him. Mr. Banfield said that he should have been more "detail orientated" when he spoke to the police.

[20] The Biting Incident

Mr. Banfield did not consider this to be a threat. He considered it to be "More intimidation than a threat". He told Mr. Trotman that he did not need them. Mr. Trotman put them away. When Mr. Banfield got up to leave, Mr. Trotman jumped him and bit a chunk out of his head just above his right eye. Mr. Banfield has a scar above his eye.

[21] Timeline Confusion

Defence counsel pointed out to Mr. Banfield that his evidence regarding the time line of the biting incident and when Mr. Trotman showed Mr. Banfield the knives is not clear. When Mr. Banfield told the police about the biting incident in his video statement, he did not mention the knives. In one portion of the video he said that the incident with the knives was a while back before the biting incident. He replied to defence counsel that it was "Same day".

[22] Reason for the Biting

Mr. Banfield said that Mr. Trotman bit him because he did not like him any longer. He could not recall anything else that would have instigated the attack.

[23] Police Report

Someone called the police. Mr. Banfield told them that he hurt his eye as the result of a fall. He did not want to be a "rat". He said that in his social circle "You get hurt for associating with police in any way, shape or form".

[24] No Contact Until June 28, 2016

After this, they ignored each other. They did not have any contact until the day of the incident before the court, June 28, 2016.

[25] Meeting Mr. Graziano

On June 28, 2016, two hours prior to the incident that resulted in the charges before the court, Mr. Banfield was at the bus stop in front of Jimmy Simpson Park. Mr. Graziano, whom he did not know at the time, invited him to have a beer. He did not know it, but Mr. Graziano was also a friend of Mr. Trotman's.

[26] Going to the Beer Store

He had two beers with Mr. Graziano. Then they decided to go to the beer store to buy more. Mr. Graziano told him to leave his knapsack in the apartment.

[27] Returning to the Park

After they bought beer, Mr. Banfield went to his apartment to change clothes. Then he started walking back to Mr. Graziano's apartment where he thought he was waiting. He testified that on the way he saw Mr. Graziano in Jimmy Simpson Park with Mr. Trotman and several other men that lived in the rooming house.

[28] Inconsistency in Police Statement

But in his statement to the police he said that after they bought the beer they "came back" and that is when he ran into Mr. Trotman. He explained that he was not being as detailed in [his statement to the police] as he is under oath in his testimony. Although he was trying to be as detailed as possible in his statement to the police, he omitted details. He noted that he was under the influence of Demerol. The drug made him "not as detail orientated". He did not remember "much of being at the police station". He was traumatized. He did not "know what I knew when I was giving this statement".

[29] Further Inconsistency

To add to the confusion, he also said in his video statement that he met Mr. Trotman when he was crossing Queen Street East. This differs from his testimony as well. He said that his statement refreshed his memory that he was going to the building to get his knapsack when he spotted Mr. Graziano and crossed Queen Street East.

[30] Threats from Mr. Trotman

In any case, Mr. Trotman was intoxicated, and he threatened Mr. Banfield. He told him to "get the fuck out of here or he'll fuck me up, repeatedly". Mr. Banfield ignored him. He tried in vain to get Mr. Graziano's attention because he wanted to retrieve his knapsack from his apartment.

[31] Second Threat

Mr. Trotman told him again to "get out of here, I'll fuck you up". Mr. Banfield did not mention this threat to the police in his video statement. He told them that he was "challenging" him.

[32] Mr. Banfield's Response

Mr. Banfield told Mr. Trotman that he was just going to get his bag. He could not recall if he said anything else. Mr. Trotman started to walk towards him. He stood his ground. By the way Mr. Trotman carried himself, Mr. Banfield thought that he was going to do something violent to him. He was slow and methodical. At this point they were both standing on the sidewalk.

[33] The Knife Appears

When Mr. Trotman got closer he took off his backpack and pulled out an 18" knife from the top of the backpack. The length includes that handle. In the video statement he said that he pulled it out of the right side of the backpack. Although he said that his memory was fresher when he gave the video statement, he testified that now, he has a clearer picture of what happened.

[34] Mr. Graziano's Position

He testified that Mr. Graziano was standing to the side with his son. In his video statement he said that Mr. Graziano was not there. In court, he explained that he meant that Mr. Graziano "moved away from [Mr. Trotman]". He would not agree that he changed his story.

[35] The Punch

Mr. Banfield punched Mr. Trotman on the side of the forehead and stepped back. Mr. Banfield did not mention in his video statement that he punched Mr. Trotman.

[36] Stabbing Motions

Mr. Trotman told him that he had something for him. He made three stabbing motions towards his mid-section. Mr. Banfield used his hoodie to defend himself. Mr. Trotman was not able to touch him with the knife. In his video statement he did not mention three stabbing motions. He said that he made one stabbing motion. He explained that he was not "as detail orientated at the time". He was "victimized, traumatized, drugged".

[37] Swinging the Knife

Mr. Trotman lost control and started swinging the knife from side to side with both hands like a baseball bat. In examination-in-chief, he said that he started swinging higher, saying in a loud voice "I'll fucking kill you" every time that he swung the knife.

[38] Inconsistency on Swinging

In cross-examination, he said that he could not say if he said this with every swing. He explained that he "may have spoken out of turn" in examination-in-chief. Mr. Banfield estimated that he swung the knife 10-15 times, although he was not counting.

[39] Omission of Threats

Defence counsel pointed out to him that in the video statement he did not mention that Mr. Trotman threatened him and told him repeatedly to "get the fuck out of here or he'd fuck me up". Mr. Banfield replied that he did not repeat every single detail that happened. He did not remember much of being in the police station. He did his best.

[40] The Cut and Escape

They shuffled onto Queen Street East. On one of the swings he cut Mr. Banfield under the chin. Mr. Trotman kept coming at him, swinging the knife. Mr. Banfield kept walking backwards. Mr. Banfield screamed that he had a knife. Mr. Trotman took a few more swings at him. Mr. Banfield heard sirens. Mr. Trotman took off down Queen Street East. Mr. Banfield was bleeding. He fell onto the middle of the street.

[41] Number of Swings Before the Cut

Mr. Trotman swung at him "Maybe ten" times before he cut him. In cross-examination, he said that he swung the knife a "total" of 10-15 times. Then he agreed with defence counsel that in examination-in-chief, he said that it was after he swung 10-15 times that he cut him. In his video statement he said three times that Mr. Trotman cut him on the first swing. Mr. Banfield said that he was "victimized, traumatized and drugged". He did not even remember being in the interrogation room. The next day he remembered that Mr. Trotman swung at him 10-15 times before he cut him.

[42] Medical Treatment

An ambulance came and took Mr. Banfield to the hospital where he received 13 stitches in his neck. They gave him Demerol for the pain during the suturing. The doctor discharged him right afterwards. Then the police took him to the station and took his statement on video. They told him that it was against the law to lie to them.

[43] Surrender During Cross-Examination

After a long, grueling cross-examination on the discrepancies between his video statement and his testimony, Mr. Banfield surrendered, saying, "... I don't remember giving any of this statement. I remember bits and pieces of the hospital. I couldn't tell you how I got home. I was hopped up on Demerol, traumatized and victimized". He said that when he gave the statement, he was still under the influence of the medication that the doctors gave him. He felt "slow, woozy, exhausted".

[44] Uncertainty About Knife Length

Defence counsel questioned him closely regarding the length of the knife that Mr. Trotman used. After having described it twice in his testimony as 18" long, including the handle, he said that he did not know how long it was. He just said that it was not "small".

[45] Denial of Aggressor Role

The defence also questioned Mr. Banfield at length on whether he was the aggressor on the day in question. Despite counsel's many suggestions that he was, he steadfastly denied that he was the aggressor or instigator of the fight. He also denied that Mr. Trotman had to use the knife to defend himself.

[46] Criminal Record

Defence counsel cross-examined him in detail about the convictions on his record for violent offences. Mr. Banfield admitted his record. He often said that either he did not remember the details of the offences, or that he pleaded guilty because he was in custody and he did not want to wait a long time for a trial date.

[47] Medical Records - Intoxication

His medical records of the day in question (exhibit 1), indicate that he was "moderately intoxicated and slightly combative" (page1/4). He required "repeated prompting to follow commands". He admitted "to alcohol, denies drug use".

[48] Emergency Department Assessment

In the "Emergency Department Consult" report regarding the day in question, it states that Mr. Banfield was "clearly intoxicated and was somewhat difficult to manage at times".

[49] Toxicology Report

The toxicology report states that he registered an "Ethanol" level of 37.2. A level of 39.0 is considered "toxic". It indicates that impairment starts at 11.0.

[50] Denial of Intoxication

Despite this, Mr. Banfield would only admit to having had two beers with Mr. Graziano. He said that he was not intoxicated.

[51] Nature of Injury

His injury was described as "a 4-inch laceration to right anterior neck, approximately 1 inch deep, bleeding moderately, controlled with direct pressure …" There was "No obvious involvement of major vessels or airway". The "Emergency Department Consult" report described it as "significantly deep".

[52] Changed Opinion of Mr. Graziano

Although in his video statement, Mr. Banfield described Mr. Graziano as a friend, after everything that happened, Mr. Banfield and Mr. Graziano are not friends. He thinks that he is a "convicted crack dealer".

[53] Criminal Record Details

Mr. Banfield has a lengthy criminal record that begins in 1983 and ends in 2018. Amongst many other convictions, he has 11 convictions for theft and one for forgery. He has also been convicted for violent offenses: 9 assaults, including an aggravated assault, 2 uttering threats, and 1 possession of a restricted weapon. His last conviction for assault was in 1997. In addition to these convictions he has many convictions for failing to comply with court orders.

[54] Physical Description

Mr. Banfield is 52 years old. On the day in question he weighed about 165 lbs. He is five feet, ten inches tall. He said that Mr. Trotman was "solid". He went to the gym regularly. He guessed that he was 5 feet, 8" or 9" and weighed 190 lbs.

[55] End of Mr. Banfield's Evidence

That was Mr. Banfield's evidence.

Officer Shandon James

[56] Agreed Statement of Facts

Counsel submitted an agreed statement of facts (ASF) regarding the evidence of Officer Shandon James. Counsel agree that Mr. Banfield's utterances in the ASF are introduced just the purpose of credibility, not for the truth of their contents. The ASF states the following:

1. At 19:36, PC James entered the ambulance carrying Mr. David Banfield to the hospital.

2. At 19:41, the ambulance was en route to St. Michael's Hospital. En route, Mr. Banfield made an utterance to PC James stating "it was Steve Trotman he stabbed me. We got in a fist fight and he tried to stab me in the stomach, then slashed me in the neck".

3. At 19:44, the ambulance arrived at the Hospital. Mr. Banfield was rushed to the Emergency.

4. At 19:59, Mr. Banfield was taken for a CT scan.

5. At 20:17, Mr. Banfield returned to Emergency from the CT scan.

6. At 21:15, Mr. Banfield signed medical releases.

7. After being medically released at the hospital, Mr. Banfield and PC James stood by at the hospital while a nurse retrieved clothing for Mr. Banfield. At 21:32 hrs. Mr. Banfield [made] the following utterances to PC James:

   a. I was sitting on the park bench when Steve came up to me and started to talk shit to me and said "you think you are all that".

   b. Then we started to fight.

   c. Steve then pulled out a large knife from his pants and try to stab me in the stomach but I blocked it with my sweater/hoodie.

   d. I jumped out of the way, he then started to swing the knife and slashed my neck. I tried to run away.

[57] Third Version of Events

I note that Mr. Banfield's statement that he was sitting on a park bench when Mr. Trotman confronted him is a third version of when they ran into each other on the day in question. In his video statement, he said that he ran onto Mr. Trotman on his way back from the beer store, and when he was crossing Queen Street East.

[58] First 911 Call

In addition, counsel submitted an ASF in which they agree that Ms. Michelle Berube made the first 911 call at 7:26 p.m. They agree that it be introduced for the truth of its contents. Defence counsel told the court that the relevant part of the call is when she says:

the white man who was the one who assaulted the other man. When the dispatcher asks her if the man with the knife was defending himself, she says, I saw him holding the knife, didn't see him wielding the knife. All I saw was the white man kick him between the legs.

[59] Second 911 Call

Further, counsel agreed that Ms. Caroline Greer's 911 call be adduced for the truth of its contents. Ms. Greer said that Mr. Banfield provoked Mr. Trotman by telling him repeatedly to stab him. That he had the knife, so he should do it. Then Mr. Trotman swung at him.

[60] Agreed Fact on Injury

A further agreement is that the defence admits that the injury to Mr. Banfield is sufficient to satisfy the injury requirements for an aggravated assault.

[61] Crown's Witnesses

Next, the Crown called five civilian witnesses: Craig Hudson, Stacy Calvo, Laura Kyswaty, Janice La Chapelle, and Kaleb McMullen, plus two police officers: Sergeant Mclean and Officer Reid. Their evidence is as follows.

Craig Hudson

[62] Initial Observation

Craig Hudson was going for a run on the day in question. As he approached Jimmy Simpson Park he saw Mr. Trotman and Mr. Banfield in an altercation. It was initially a verbal dispute. Then he saw Mr. Trotman "take a bit of a lunge" at Mr. Banfield with his fist. It did not look like a punch. It looked like the action one would have taken with a knife.

[63] Confusing Evidence on What Happened Next

He gave confusing evidence regarding what happened next. After having said in examination-in-chief that Mr. Banfield walked away, in cross-examination, he said,

I cannot remember if he – he did walk away. I can't remember if he turned and walked away, that would make sense. I don't remember him backing away, but I – I don't explicitly remember that.

[64] Mr. Banfield's Return

But he also said that Mr. Trotman followed Mr. Banfield briefly and stopped. Mr. Banfield "returned" to Mr. Trotman. More words were exchanged. Mr. Trotman took a swipe at Mr. Banfield's neck area. It did not look like he hit anything. He did not notice if Mr. Trotman was holding anything.

[65] Mr. Trotman's Departure

Then Mr. Trotman left the scene. Mr. Banfield headed towards the middle of Queen Street East and collapsed on the ground. Mr. Hudson followed Mr. Trotman who went one block west and then down a back alley. Mr. Trotman did not seem to be in a hurry. He was carrying a white garment under his arm.

[66] Focus of Observation

Mr. Hudson was "85%" focused on "what was going on" between Mr. Trotman and Mr. Banfield. But he imagined that he was looking at everything else in the surrounding area, too.

[67] Limited Observation

He did not see Mr. Banfield throw any punches, but he did not see the whole altercation.

Stacy Calvo

[68] Initial Observations

Ms. Calvo was at the park with her dog. She was talking with a person that she knew when she heard a man repeatedly yelling angrily, "Do you want to stab me with that knife"? She saw a Mr. Banfield who was "very, very hyper, very hyper". He was yelling and moving forward and back. He kept yelling and "almost coming towards [Mr. Trotman]".

[69] Mr. Trotman's Demeanor

Mr. Trotman was very quiet. She does not think that he said anything, but she did not seem sure about this. He had a long, shiny blade down by his side. In examination-in-chief, she said that she was 400 feet away from him. In cross-examination, she said that it was 200-300 feet. She called 911.

[70] The Punch

Mr. Banfield punched Mr. Trotman in the face. She "kind of then saw [Mr. Trotman] … move …" She could not say in which direction he moved. She turned away because she felt that something was going to happen. She was too far to hear if Mr. Trotman said anything, but he did not look as if he were yelling. There was a lot of noise in the park from the people playing basketball, kids were playing etc.

[71] Mr. Banfield's Reaction

When she turned back, she saw Mr. Banfield running towards Queen Street East, holding his neck, screaming "I've been stabbed, I've been stabbed … he stabbed me".

[72] Assistance

He collapsed in the middle of the street. She went over to assist others that were applying pressure to the cut on his neck with a towel. She relayed information to them from the 911 operator to keep applying pressure to his neck.

Laura Kyswaty

[73] Initial Hearing

Ms. Kyswaty was sitting on a bench in the park eating ice cream with a friend. She heard shouting and heard the words "big knife". She looked in the direction of the yelling and heard a man yell "he has a big knife and he's going to stab me".

[74] Distance and Description

She saw Mr. Trotman and Mr. Banfield. She thinks that she was approximately 50 feet away. Mr. Trotman had a large knife, about a foot long and two inches wide. They were arguing, yelling at each other and circling each other. Mr. Banfield repeatedly yelled that Mr. Trotman had a knife and was going to stab him with it. In cross-examination, she said that she could not hear anything that Mr. Trotman said.

[75] Mr. Banfield's Swing

Mr. Banfield took a swing at Mr. Trotman's "body", but she did not see the punch connect. It looked like "a swing to try to get away". She "got the sense that [Mr. Banfield] was trying to get away, and trying to figure out how to do that". He seemed to be "panicked and very fearful". Mr. Trotman did not say anything when Mr. Banfield swung at him. He stepped back. She did not see him fall or trip over himself when he did this.

[76] Counter Motion

Mr. Trotman was "more confident, … standing his ground. And I guess, threatening …" She said that she believed "that after the swing there was a – like, a slice, some sort of slicing or stabbing motion from him" toward Mr. Banfield's abdominal area. Regarding her recollection of this she said, "I feel that I recall that after the swing, there was a like a -a counter from him of – of kind of back at the other person". She did not mention this in her statement to the police. She omitted this detail because she was shaken up about what happened.

[77] Calling 911

She walked away about 10-15 feet and called 911. While she was on the phone she saw Mr. Trotman take a "loose swing" at Mr. Banfield.

[78] Departure

Eventually, Mr. Trotman walked away very quickly and turned into "an eastbound lane". Mr. Banfield walked onto Queen Street East and collapsed.

Janice La Chapelle

[79] Hearing the Confrontation

Ms. La Chapelle was in the park chatting with a neighbour when she heard a man yelling words to the effect of "you have a knife. You are going to stab with the knife". He yelled this louder and louder.

[80] Sequence of Events

She saw Mr. Trotman and Mr. Banfield. Mr. Trotman took a step towards Mr. Banfield. Mr. Banfield punched him in the face. She saw Mr. Trotman with a long knife in his right hand. His hand came up after Mr. Banfield punched him. He turned away from Mr. Banfield. He did not fall. He took two steps back and turned around. Mr. Banfield had not advanced. Mr. Trotman brought up the knife and cut Mr. Banfield's neck. Mr. Banfield grabbed his neck, took two steps off the sidewalk and fell into the street and collapsed.

[81] Departure

In examination-in-chief, she said that Mr. Trotman ran across Queen Street East. In cross-examination, she said that she did not remember if he ran or not.

[82] Number of Swings

She only saw Mr. Trotman swing the knife one time at Mr. Banfield.

Kaleb McMullen

[83] Observation of the Parties

Mr. McMullen was walking by the park when he saw Mr. Banfield and Mr. Trotman about 20 feet away, walking towards him. They were "a few meters, maybe five feet" apart. He believed that Mr. Banfield said "this man has a knife. He's trying to kill me".

[84] Mr. Banfield's Screaming

He also said that Mr. Banfield was screaming "about being stabbed or he's trying to kill me, or something like that". Mr. Banfield's neck was cut. Mr. Trotman was behind Mr. Banfield, walking casually towards him with a knife. As he walked, Mr. Banfield turned briefly to look at him. Mr. McMullen thought that he was "mostly focused … on leaving the situation".

[85] Collapse

Mr. Banfield stumbled onto the street and asked for help. Mr. Trotman walked away.

Aaron Downs

[86] Hearsay Application

Mr. Aaron Downs was one of the witnesses that the police interviewed on the scene shortly after the incident occurred. I granted the defence's application to have the statement introduced for the truth of its contents pursuant to the principled approach to hearsay evidence.

[87] Material Parts of Statement

Defence counsel stated in paragraph 7 of her application that the "material parts of [Mr. Downs'] statement" include the following account of the fight between the Mr. Trotman and Mr. Banfield.

• The white guy [the complainant] was trying to fight with the black guy [the accused]. The complainant assaulted him, hit him in face, knocked him down, and kept trying to hurt him by kicking and swinging at him.

• The accused jumped up and stabbed the complainant in self-defence.

• The accused did not want to fight, he was backing up. The complainant was screaming and hollering. The complainant hit him and knocked him down. The accused was trying to get up. When he finally got up he stabbed him in self-defence.

• The white guy was drunk. The accused was not.

• Mr. Downs was at the window of his apartment across the street when the fight started to develop. He watched it develop. The complainant was going crazy. He was screaming, calling him [the N word], this that and the other so he looked out. It broke out into a fight.

• Mr. Downs said that he had a good view of the events. He was looking down on the scene from his window across the street when the incident started to develop. He was not sure how high up he was.

[88] Additional Details from Video

In addition to these things, I add the following from my review of the videotape.

• Mr. Downs was not positive, but he thinks that the accused took the knife from his knapsack.

• He described the accused as medium build and about 6 feet tall. He could not remember what he was wearing.

Mr. Trotman

[89] Physical Description

Mr. Trotman is 47 years old. He is five feet, eight inches tall. He weighed about 170-175 lbs. on the day of the incident. Mr. Banfield is taller than he is, but they have the same type of build.

[90] Criminal Record

He has a criminal record that starts in 1997 and ends in April 2019. He was not convicted of any offence between 1999 and 2019. He has six convictions total on his record. None is an offence of dishonesty.

[91] Meeting Mr. Banfield

He met Mr. Banfield when Mr. Banfield moved into the rooming house where Mr. Trotman was living. On the day in question they had known each other between a year and a year and a half. At first, they got along. Then they had a disagreement about Mr. Banfield moving into a larger room in the building, and with regard to library books that Mr. Trotman borrowed with Mr. Banfield's library card. Mr. Trotman apologized regarding the disagreement about the room.

[92] The Christmas Incident

Around Christmas of 2015, Mr. Banfield invited Mr. Trotman to his room for a couple of beers. He went to Mr. Banfield's room where they had a couple of beers each. Mr. Banfield also smoked some crack cocaine. He had seen him smoke crack many times before. He gets "a little riled up" and gets "a different kind of attitude; be more aggressive with the way he talks and how he acts. See like he'll get a little sweaty …".

[93] Leaving on Good Terms

They listened to music and talked. After about 30 minutes, Mr. Trotman decided to leave. They shook hands and gave each other a hug and agreed that they were on good terms. Mr. Trotman was still sober.

[94] The Attack in Mr. Trotman's Room

Mr. Trotman returned to his room and started to watch television. Suddenly, Mr. Banfield burst into his room and closed the door behind him. He challenged Mr. Trotman to a fight. He was "all wide-eyed, perspiring … on his four head. He was … Growling and he's like flexing". The veins in his neck were popping out. He had a crazy look on his face. He called Mr. Trotman the "N" word. Mr. Trotman walked towards him and told him to leave. Mr. Banfield was growling. He told Mr. Trotman to make him leave.

[95] The Fight

Mr. Banfield attacked him. They fell to the ground. Mr. Trotman was on his back. Mr. Banfield was on top of him pounding at him. He was not saying anything; he was just growling and punching him all over. Then he stood on Mr. Trotman's back.

[96] The Headlock and Biting

Mr. Trotman managed to put him in a headlock. Mr. Banfield tried to headbutt him. He kept growling like a dog. Every time Mr. Trotman started to release him, Mr. Banfield would start fighting again. He tried to pick up Mr. Trotman and throw him down. He tried to hit him with his head. Mr. Trotman said that he was getting tired of trying to restrain him so he bit him. He described his situation like this:

There's nothing else I – I didn't feel like I could let him go, I was just hanging on for dear life, man. I didn't know what else to do. His head was – like, his head, by this time, was all up in my face. Like, in my – in my mouth area. And I – he just kept going, man. He wasn't stopping. So, the first – I just – just reacted and I just did that. 'Cause this is like, three time – about three times I – I was loosening up on him, and he just wouldn't stop.

[97] End of the Fight

This caused Mr. Banfield to stop fighting and leave Mr. Trotman's room.

[98] Police Called

Someone called the police. Mr. Trotman said that he did not want to "press charges". They took Mr. Banfield to the hospital.

[99] Landlord's Meeting

After the incident, the landlord held a meeting with the residents of the rooming house. Mr. Trotman and Mr. Banfield agreed to ignore each other, and the matter ended that way. Thereafter, when they saw each other in the building they walked by each other without saying anything.

[100] Ongoing Harassment

After a few weeks, there were four to six times when Mr. Trotman was in his room and Mr. Banfield walked by calling him the "N" word and saying other nasty things to him. Sometimes he knocked on Mr. Trotman's door and said things to him. Mr. Trotman just stayed in his room. Others warned him to watch out when Mr. Banfield had been drinking. Mr. Trotman said that when Mr. Banfield drinks he acts up towards him.

[101] The Hallway Rampage

One night, Mr. Banfield was very upset for almost 2 hours. He walked up and down the hallway in the rooming house saying" try doing that shit to me again, I'll fuck you up. Next time I see you out on the street I'm going to kill you. If I see you at the park, I'm going fucking kill you".

[102] Further Threats

He called Mr. Trotman a "fucking faggot". He dared him to come out of his room because he was going to "fuck you up". He was yelling at the top of his lungs. Mr. Trotman just stayed in his room.

[103] Taking Threats Seriously

Mr. Trotman took his threats seriously. Following the landlord's suggestion, he bought a tape recorder to record any further incidents. Mr. Trotman said that Mr. Banfield is a confrontational person. He is unpredictable. He had seen him four times "getting in people's faces and-and everything like that".

[104] Mr. Banfield's Attitude Toward Fighting

Mr. Banfield likes fighting and bragging about getting into fights.

[105] Aggressive Behavior When Drinking

Many times, when he went out with Mr. Banfield to a bar he saw him become confrontational with persons in the bar. If someone looked at him in the wrong way, he challenged them. He is this way especially when he is drinking.

[106] Threatening Others

One time, he met a woman in a bar who agreed to go back to his room with him. However, when she found out that Mr. Banfield lived in the same building she declined. She said that he had threatened her and her family.

[107] The Day of the Incident

On the day of the incident before the court, Mr. Banfield went to Mr. Trotman's room. He told Mr. Trotman that Mr. Graziano was looking for him. He could smell alcohol on Mr. Banfield's breath. His eyes were glassy, too.

[108] Taking the Knife

Mr. Trotman went out of his room and looked down the stairs to check if Mr. Graziano was there. He saw him. He went back to his room to put on his shoes. He also grabbed a knife to protect himself because he was worried about Mr. Banfield due to his threats to hurt him. He put the knife in his back pocket.

[109] Purpose of the Knife

He did not plan to use the knife; he just wanted it to scare off Mr. Banfield if he were to confront him. As a result of Mr. Banfield's attack on him in his room, Mr. Trotman did not think that he could fend off Mr. Banfield with just his fists. The knife was a kitchen knife. The blade was approximately 8 inches long.

[110] Going Out with Mr. Graziano

He went outside to speak with Mr. Graziano. He does not know where Mr. Banfield went. Mr. Graziano invited him back to his apartment. They talked and had a couple of beers. Mr. Trotman had two. He did not feel any effects from the beer. He said, "Two beers ain't nothing for me".

[111] Explaining the Knife

Mr. Graziano saw the knife in Mr. Trotman's pocket. Mr. Trotman explained that he had it because he did not feel safe around Mr. Banfield because of his recent crazy and threatening antics towards him.

[112] Mr. Banfield Appears

They decided to go to the park. They were by a bench behind the bus stop talking when suddenly, Mr. Banfield showed up. He stood in front of Mr. Trotman, just staring at him with a "crazy ass look on his face". He was "all wide-eyed, perspiring and doing that same shit like he did when I was in my room; just kind of looking at me crazy".

[113] The Challenge

Mr. Banfield asked him what was up and what was going on with him. He asked him "Didn't I tell you I was going to kick your ass"? He called him the "N" word again. He was speaking quite loudly.

[114] Attempting to Calm Him Down

Mr. Trotman asked him what was going on with him. He told him to calm down. He reminded him that they used to be friends. He asked him why he was acting this way. The whole time that Mr. Trotman was talking to him Mr. Banfield was saying "yeah, yeah, really? Yeah. Yeah, really? Really? What? Really?

[115] Mr. Banfield's Appearance

Mr. Trotman could smell alcohol on him. He was,

"blurred and like, you know, eyes were kind of red, but this was a totally different look. And I seen him before on that shit and I know how, like, you know, he kind of gets sweating and shit like, he – that's the way he represented, but he was just like – like an insane look in his face. His eyes were all wide open, just staring at me, crazy. Flexing and tighten up his neck while he was talking to me, and just, like talking like – almost growling.

[116] Trying to Talk Him Down

Mr. Trotman started to speak loudly to try to make him understand - to try to talk him down. He asked him "Fuck man, what the fuck? Why don't you fucking calm down?" He was not listening.

[117] Threats and Aggressive Posture

He told Mr. Trotman that he should "kick your ass" and "fuck you up". He called him a "fucking 'N'". Mr. Trotman thought that he meant these things. Mr. Banfield was "flexing, like he was just like, standing in front of me, like flexing and like, he was talking so, like intense and everything". He could see the veins in his throat and he was sweating.

[118] Others Present

While this was going on Mr. Graziano was saying something to them, but Mr. Trotman does not remember what it was. Mr. Trotman did not call out for help. He said that everyone saw what was happening. If they wanted to help, they could have helped. He said "no one was coming to my assistance at that time anyways. There were many people around that were already seeing what was happening".

[119] Taking Out the Knife

Mr. Banfield took two steps slowly towards Mr. Trotman. He thought Mr. Banfield was "coming towards me to fuck me up". Mr. Trotman took a few steps back and pulled out his knife. He put it down by his side and pointed it towards the ground. He just wanted Mr. Banfield to see it. He hoped that he would back off once he saw it.

[120] Fear of Attack

But Mr. Banfield looked at him with a fiercer look than he had when they fought in his room. He could have walked away, but he did not do that. He thought that Mr. Banfield would jump him from behind. He was afraid to take his eyes off Mr. Banfield or turn his back to him. He did not think that he had any other option than to stay and face Mr. Banfield.

[121] Mr. Banfield's Reaction to the Knife

Seeing the knife aggravated Mr. Banfield more. He asked Mr. Trotman "what the fuck's that?" He asked him if he wanted to stab him. He told him to "go ahead and fucking stab me". He was talking very loudly. He started yelling to everyone that Mr. Trotman had a knife. He was yelling aggressively, not out of fear. While he was yelling he was looking at Mr. Trotman in an aggressive manner. Mr. Trotman denied lunging forward with the knife at Mr. Banfield.

[122] The Punch

Then, out of the blue Mr. Banfield took one step forward and punched him hard in the face. Mr. Trotman lost his balance and went backwards. He could not remember exactly. He regained his balance and saw Mr. Banfield slowly coming towards him. He was still "hyped up and flexed".

[123] Fear of Serious Injury

Mr. Trotman did not want to fight, but he wanted Mr. Banfield to get away from him so he took a swing at him. He remembered the attack in his room and that Mr. Banfield does not quit. He was afraid that if Mr. Banfield knocked him out he would keep beating on him even though he was unconscious. He has seen reports about these types of assaults in the news where persons have died or been permanently injured from this type of beating.

[124] Swinging the Knife

He did not want to cut Mr. Banfield when he swung the knife at him. He was not aiming. Mr. Banfield was not that close to him. He simply swung the knife. He just wanted Mr. Banfield to backup. He "was just, like, swinging. Like, get the fuck away from me".

[125] Accidental Cut

He just thought this, though. He did not tell Mr. Banfield to get away from him. He just wanted Mr. Banfield "to see that and just leave me alone". He cut him by accident.

[126] Realization and Departure

Mr. Banfield backed up, holding his neck. He told Mr. Trotman that he could not believe that he stabbed him. When he realized that he stabbed him. He just wanted to go home, so he left, walking at his usual pace. He was dazed and confused. He left the knife in an alleyway. He did not want it on him. He explained that,

I just felt like I didn't need it anymore; I didn't want it on me. I just didn't want to be associated with it. I just – it was going through my mind, when I was walking I just didn't – I don't know, I just wasn't thinking clearly, man. I was still wondering what the hell just happened, what went on. And I just felt like I just – just didn't want it on me.

[127] Disposing of the Knife

He said that,

I was just walking for a bit and then I looked at it – like, and I was just – I did not want it on me, so I just – like, there's like, a chain link fence that goes – 'cause there's houses on the other side and there's like debris and twigs and like, pop cans and there's some boxes and stuff. And as I was looking down, I looked – I was – I just don't want this on me, man, so I just chucked it in one of those boxes, and I just kept walking.

[128] Not Destroying Evidence

In cross-examination, he explained in the following passage that he was not trying to get rid of evidence:

Q. You didn't want it anymore because it implicated you in a crime, is that right?

A. No, it wasn't – no, I wasn't think that way. I wasn't – I wasn't thinking that way at all. I was just – I was still like, perplexed, like I was like, is this really going on. I wasn't – I wasn't thinking clearly, man. I wasn't – and then when I happened to look at my hand and I saw it, I just – I don't know how to explain it, I just didn't want it on me, man. I wasn't thinking I was getting rid of evidence or anything like that. I just – I don't know, man. I just didn't want it on me.

[129] Route Home

He took a route to his house that avoided passing by Mr. Banfield and the persons that were helping him because he did not want them to think that he was trying to go "in for seconds" at Mr. Banfield.

[130] Arrest

The police apprehended him on his way home. He had a white sweater in his hand, but he could not remember where he got it. He told them the story of his and Mr. Banfield's tumultuous relationship and that he acted in self-defence.

The Arrest

Officer Reid

[131] Apprehension

Shortly after the incident, not far away from the park, Officers Sirizzotti and Reid, arrested Mr. Trotman as he walked down the street.

[132] Observations

The officers said that Mr. Trotman was walking slowly, at a normal pace. Officer Reid said that he had a sweater in his hands. There was a blood stain on the right cuff.

[133] Statement to Officers

They both said that Mr. Trotman told them that he was defending himself against Mr. Banfield who said that he was going to kill him.

Sergeant Mclean

[134] Observation at the Scene

Sergeant Mclean, who was off duty, was a passenger in a car driving slowly by the park. As she passed by, she saw Mr. Banfield and Mr. Trotman arguing. She returned to the scene right away. She saw Mr. Trotman had a "huge, huge blade in his hand". He had it "in the air".

[135] Following Mr. Trotman

Mr. Banfield and Mr. Trotman "parted ways, slightly". Mr. Trotman went into the park. Sergeant Mclean jumped out of her car. She saw Mr. Banfield lying on the street. She followed Mr. Trotman who walked briskly down a laneway.

[136] End of Evidence

That was all the evidence.

Analysis

The Credibility and Reliability of the Witnesses

Mr. Banfield

[137] Credibility Assessment

I do not accept any of Mr. Banfield's evidence. As indicated above, his testimony was replete with sarcasm, forgetfulness, defensiveness, exaggeration and disclaimers. There were many contradictions and inconsistencies between his statement to the police in the hospital and on video. In addition, when he testified he added important things that he did not mention in his video statement.

[138] Collapse Under Cross-Examination

The defence subjected him to withering cross-examination. When the inconsistencies and contradictions between his testimony and his statements to the police at the hospital and on video became a mountain that he could not climb, he gave up and said that he only remembered bits and pieces of the hospital, and he did not remember giving any of his video statement. He was hopped up on Demerol, "traumatized and victimized". He was under the influence of the medication that the doctors gave him. He felt "slow, woozy, exhausted".

[139] Excuse-Making

He told defence counsel that when he gave his video statement he was being as detailed as he could. When she highlighted inconsistencies between his statement and his testimony he said that when he gave the statement he was not being "detail orientated". I find that he was trying to adjust to the cross-examination by finding excuses for the discrepancies. I do not believe him.

[140] Lack of Corroboration for Knife Swinging

Moreover, Mr. Banfield said that Mr. Trotman repeatedly waved the knife at him with two hands, like a baseball bat, yelling that he was going to kill him. None of the six civilian witnesses saw or heard this. Although none of the witnesses observed the altercation from the beginning to the end, the portions of it that they saw would have surely included such a thing had it happened. This is another nail in the coffin of Mr. Banfield's credibility.

[141] Lack of Corroboration for Death Threats

Another mark against Mr. Banfield's credibility is his testimony that Mr. Trotman was yelling loudly that he was going to kill him and cut off his head. Although most of the witnesses were in ear shot of Mr. Trotman and Mr. Banfield, none of them heard Mr. Trotman say this. It is not something that one would easily forget, either.

[142] Lack of Corroboration for Continued Swinging

Nor did any of the witnesses see Mr. Trotman continue to swing the knife at Mr. Banfield after he cut him, as Mr. Banfield said he did.

[143] Dishonesty About Alcohol Consumption

Moreover, the medical records show that Mr. Banfield had a considerable amount of alcohol in his body, although he only admitted to drinking two beers. I prefer the evidence of the medical records. The medical staff performed scientific tests to determine the level of alcohol in his blood. There is no evidence to undermine the accuracy of the tests. I find that this is another example of Mr. Banfield being blatantly dishonest.

[144] Criminal Record for Dishonesty

I considered Mr. Banfield's criminal convictions for offences of dishonesty. Although they are dated, they still detract to some degree on his veracity.

[145] Cumulative Effect

In addition to the problems with Mr. Banfield's credibility to which I have referred here, there are many other problems with his credibility that I highlighted during my complete review of his testimony above. I do not think that it is necessary to repeat them all here. Suffice to say that I considered them in addition to the problems that I mention here. Their cumulative effect is to render Mr. Banfield a completely untrustworthy witness.

Mr. Trotman

[146] Credibility Assessment

I find Mr. Trotman to be a credible and reliable witness. He was not contradictory or inconsistent. His evidence corresponded generally to the evidence of most of the other witnesses except for Mr. Banfield. His criminal record does not contain convictions for offences of dishonesty. Therefore, it does not affect his credibility.

[147] Crown's Argument on Knife Size

The Crown argued that Mr. Trotman's evidence cannot be believed. He said that Mr. Trotman testified that he carried the knife in his back pocket. But the knife was too big to put into his pocket. I do not see this as being an important issue. He did not deny that he had the knife.

[148] Crown's Argument on the Hallway Rampage

The Crown also asks the court to disbelieve Mr. Trotman about the long yelling rampage that he said Mr. Banfield carried out in the rooming house. He said Mr. Banfield denied doing this, but I do not have any faith in his testimony.

[149] Crown's Argument on Planning

Further, Mr. Trotman did not take up a knife until the day of the incident, which was some days after Mr. Banfield's ranting and raving at the rooming house. The Crown says that he did not expect to see Mr. Banfield on the day in question, so it was "non-sensical" to take a knife with him when he went out. The Crown sees this as evidence that he planned to stab Mr. Banfield.

[150] Logical Flaw in Crown's Argument

If Mr. Trotman did not plan to see Mr. Banfield on the day in question how can taking the knife be evidence that he planned to stab Mr. Banfield?

[151] Reasonableness of Taking the Knife

In any case, I do not agree that it was non-sensical for Mr. Trotman to take the knife with him when he went out that day. He testified that it was for protection against Mr. Banfield. Even though he did not plan to see him, it was likely that they would run into each other. They lived in the same place and frequented the same locations in the neighbourhood.

[152] Tape Recorder Argument

The Crown argued that buying a tape recorder to tape any further verbal attacks by Mr. Banfield was incongruous with the fear that Mr. Trotman said Mr. Banfield had instilled in him because of the verbal rampage. But buying a tape recorder was the landlord's idea after Mr. Trotman told her of Mr. Banfield's actions. This point does not matter much in any case. The Crown concedes that it is "somewhat collateral".

After-the-Fact Conduct

[153] Crown's Argument

The Crown argues that Mr. Trotman's fleeing the scene, disposal of the knife, and taking of Mr. Banfield's hoodie are after-the-fact conduct that prove that Mr. Trotman did not act in self-defence. In paragraph 64 of his written submissions he maintains:

Trotman's explanations for his behaviour are non-sensical and should be rejected. Human experience and logic dictate that a person who had acted in self-defence would not make his away around a laneway and throw the critical weapon away in a concealed location where it is less likely to be discovered. The logical inference is Trotman was trying to dispose of evidence that could incriminate him, particularly, the weapon of the crime.

[154] Legal Framework from R. v. Calnen

The Supreme Court of Canada recently dealt with after-the-fact conduct in R. v. Calnen. The court stated that after-the-fact conduct is admissible "if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence and its probative value exceeds its prejudicial effects" (para. 107).

[155] Logical Relationship

The court must inquire " into the logical relationship between the proposed evidence and the fact that it is tendered to establish" (para. 108).

[156] Relevance Threshold

The threshold is not high. Evidence is relevant " if it has "some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence" (para. 108).

[157] Making Facts More or Less Likely

The question is "whether a piece of evidence makes a fact more or less likely to be true" (para. 108).

[158] Drawing Inferences from Circumstantial Evidence

Since after-the-fact conduct is circumstantial evidence, the court is permitted to " draw particular inferences based on a person's words or actions" (para. 111).

In order to draw inferences, the decision maker relies on logic, common sense, and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn "must be reasonable according to the measuring stick of human experience" and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties' positions, and the totality of the evidence: (para. 112)

[159] Alternative Explanations

The court must "take into account alternative explanations for the accused's behaviour". In this way, the trier of fact can " avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation:" (para. 117).

[160] Probative Value and Culpability

Calen held that "[w]hether or not a given instance of post-offence conduct has probative value with respect to the accused's level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial" (para. 119).

[161] Totality of Circumstances

All the circumstances of the case must be considered "to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it" (para. 119).

Walking Away from the Scene

[162] Evidence on How He Left

The evidence regarding how he walked away from the scene differs. Two witnesses said that he walked away quickly (Ms. Calvo, Sergeant Mclean). The others either did not say or said that he walked away at a normal pace. I note that the arresting officers said that Mr. Trotman was walking at a normal pace when they first saw him.

[163] Finding on Departure

I find that based on the evidence it is impossible to conclude that he left the scene in a hurry. Rather, I find that the evidence proves that he walked away at a normal pace. Therefore, I find that there is no evidence of after-the-fact conduct of walking away from the scene at a rapid pace to consider.

Discarding the Knife

[164] Mr. Trotman's Explanation

Regarding discarding the knife, Mr. Trotman testified that he did not throw away the knife to get rid of evidence that incriminated him. He said that he was perplexed, and he was not thinking clearly. As he was walking down the alley he realized that he had the knife. He did not want the knife any longer. He did not need it to defend himself any longer.

[165] Reasonable Inference

As he was walking he saw a place to throw it and he "chucked it" in a box lying on the side of the alley by a chain link fence. One reasonable inference from these circumstances is that this was a spur of the moment decision that he made while in a confused state of mind.

[166] Acceptance of Alternative Explanation

Given all the circumstances, especially since he had just been in a disturbing fight in a public place, I accept his evidence that as he was walking away he was upset and confused and when he realized that he had the knife he just did not want it any longer. That was why he threw it away, not to get rid of evidence of an act that had been witnessed by many persons. This is a viable alternative explanation to the conclusion that he was hiding evidence to cover up his guilt.

[167] Lack of Evidentiary Value

Had there been no witnesses to the fight, the inference that he was getting rid of evidence of his guilt would be stronger. As it was, many persons saw him with the knife. They saw what he did with it. Mr. Trotman was aware that there were many persons in the park who witnessed the incident. Discarding it would not erase their evidence. He did not have anything to gain from throwing it away.

[168] Finding on Knife Disposal

In the circumstances of this case, I find that the fact that he threw away the knife does not tend to prove that he deliberately attacked Mr. Banfield, or that he committed the other offences. Nor does it tend to undermine his other evidence.

Taking Mr. Banfield's Hoodie

[169] Finding on Hoodie

I do not see how taking Mr. Banfield's hoodie is after-the-fact conduct that tends to incriminate Mr. Trotman. He did not discard it. He was not trying to hide it. He kept it until the police arrested him. Had he been trying to eliminate it as a piece of evidence, he would have disposed of it right away.

The Admissibility of Mr. Trotman's Utterances to the Arresting Officers When They Arrested Him

[170] Spontaneous Statements Upon Arrest

When the police arrested Mr. Trotman, he told them right away that he acted in self defence. The in-car camera video shows that Mr. Trotman started talking to the officers as soon as they approached him. He was not within ear shot right away, but once he was, the audio recording from the video recorded Mr. Trotman telling the officers, "telling me he's going to kill me, he's going to kill me".

[171] Interpretation of Statement

I am satisfied that this is a reference to his contention that Mr. Banfield told him that he was going to kill him. As the defence pointed out, this inference is supported by what he said moments later in the cruiser. In her written submissions, defence counsel provided the following excerpts from the in-car camera video tape of what Mr. Trotman told the police when they put him in the police cruiser.

19:35:18 – I'm in trouble for a guy who's always threatening my life.

19:35:31 – I get it man but the guy always fucking wanted to beat my ass, I didn't fuck around I don't know what the fuck happened…

19:36:00 – I didn't do shit he's the one that came at me man.

19:38:16 – excuse me sir, he attacked me. I know I'm in trouble but he attacked me I didn't do nothing.

19:38:43 – He kept saying at the front of the park how much he wanted to kill me.

19:39:20 – Can't believe this shit, everyone knows he was attacking me.

19:39:52 – we were there for like ten minutes, no 5 minutes and I tried to calm him down.

19:42:40 – This guy has always been threatening my life, I was just walking through the park man.

19:50:24 – How can I get in trouble if he attacks me? I honestly didn't do anything and he kept coming towards me coming towards me, I didn't do anything. I understand I have to go through this process but ….

[172] Consistency of Claim

One can see that he claims that he was the innocent party. He simply defended himself against the threats and actions of Mr. Banfield.

[173] Legal Framework from R. v. Edgar

In R. v. Laird the Ontario Court of Appeal referred to its decision in R. v. Edgar regarding the admissibility of an accused utterances immediately upon being arrested. They said that statements that an accused person makes immediately upon being arrested,

… are relevant to show consistency with an accused's trial testimony. Thus, although not admissible for the truth of their contents, they are relevant to an accused's credibility and as a piece of circumstantial evidence bearing on the accused's guilt or innocence. In short, the statements are relevant because an accused's immediate reaction to an accusation of a crime may be more reliable and more probative than the accused's testimony given years later in a courtroom.

[174] Prerequisites for Admissibility

For a previous exculpatory statement to be admissible, the accused must testify, the statement must be made when the accused was arrested or when first accused of committing a crime, and the statement must be spontaneous.

[175] Nature of Evidence

However, in Edgar, the court cited with approval R. v. Storey and Anwar where the court held " … the statement is not strictly evidence of the truth of what was said, but is evidence of the reaction of the accused which forms part (sic) the general picture to be considered by the jury at the trial".

[176] Prerequisites Met

I find that the evidence in the case at bar shows that Mr. Trotman made the utterances spontaneously, immediately upon being apprehended by the arresting officers. He testified in the trial, so the Crown had the opportunity to cross-examine him regarding the utterances.

[177] Admission of Utterances

Based on all of these factors, I find that the prerequisites under Edgar are made out. I will admit his utterances into evidence.

Self Defence

[178] Concession and Claim

Defence counsel conceded that but for the defence of self-defence, Mr. Trotman is guilty of aggravated assault and assault with a weapon. Mr. Trotman testified that when he cut Mr. Banfield he was defending himself against Mr. Banfield's attack.

[179] Section 34 of the Criminal Code

Section 34 of the Criminal Code sets out the defence of self-defence:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

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

(a) the nature of the force or threat;

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

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

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

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

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

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

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

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

[180] Crown's Burden

The Crown has the onus of proving beyond a reasonable doubt that the defence of self defence is not available to the accused. If any one of the prerequisite conditions in s. 34 (1) does not exist, self-defence will not be available to the accused.

Air of Reality

[181] Test for Air of Reality

There must be an air of reality to the defence. In R.v. Kavinsky, the court stated that there must be "evidence before the Court on the basis of which a properly instructed jury, acting reasonably, could base an acquittal if it were to believe the evidence to be true". In making this determination "a trial judge must not weigh evidence, determine credibility, draw inferences, or assess the likelihood of success".

[182] Guidance from R. v. Cinous

In R. v. Cinous, the Supreme Court of Canada outlined the judge's task in determining whether there is an air of reality to the defence of self defence. They held that,

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true … The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.

The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury ... The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences … Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.

[183] D. W. Principles

As the defence pointed out, Mr. Trotman testified, therefore it is appropriate to consider D. W. v. The Queen, which sets out the guiding principles for triers of fact on questions of credibility as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[184] Air of Reality Established

Considering all the evidence and all the circumstances, I find that there is an air of reality to Mr. Trotman's claims of self defence for the following reasons.

1. Mr. Trotman and Mr. Banfield did not like each other.
2. Mr. Banfield liked fighting and he bragged about it.
3. Mr. Trotman had witnessed Mr. Banfield's aggressive nature when they went out together.
4. They had a serious fight in Mr. Trotman's room not long prior to the day in question.
5. Since that fight Mr. Banfield bad mouthed and threatened Mr. Trotman on numerous occasions.
6. Mr. Banfield was acting very aggressively towards Mr. Trotman immediately before Mr. Trotman cut him with the knife.
7. Mr. Banfield was intoxicated by alcohol or a drug.
8. The events immediately leading to the incident occurred quickly.
9. Mr. Trotman was afraid of Mr. Banfield.

S. 34 (1) (a), (b), (c) Criminal Code

[185] Three Prerequisite Conditions

I will now consider the three prerequisite conditions set down in s. 34 (1) (a), (b), (c) of the Criminal Code.

(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person

[186] Punch to the Face

There is no issue that Mr. Banfield punched Mr. Trotman in the face.

[187] Aggressive Yelling

Ms. Calvo testified that Mr. Banfield was repeatedly yelling angrily at Mr. Trotman "Do you want to stab me with that knife"? She saw a Mr. Banfield who was "very, very hyper, very hyper". He was yelling and moving forward and back. He kept yelling and "almost coming towards [Mr. Trotman]".

[188] Yelling About the Knife

Ms. La Chapelle heard Mr. Banfield yelling loudly at Mr. Trotman about Mr. Trotman going to stab him with the knife.

[189] Provocation

Ms. Greer said that Mr. Banfield provoked Mr. Trotman by telling him repeatedly to stab him. And that he had the knife, so he should do it.

[190] Screaming and Hollering

Mr. Downs' evidence was that Mr. Banfield was screaming and hollering. He was trying to fight Mr. Trotman. This accords with the evidence of Ms. Calvo, Ms. La Chapelle, Ms. Greer, Ms. Kyswaty and Mr. Trotman. He said that Mr. Banfield was drunk. Mr. Trotman was not.

[191] Racial Slurs

Mr. Downs said that Mr. Banfield was "going crazy". He called Mr. Trotman the "N" word, as Mr. Trotman said he did.

[192] Rejection of Excessive Force Claim

However, I do not accept Mr. Downs' evidence that Mr. Banfield knocked down Mr. Trotman and was kicking and swinging at him while he was down. It does not accord with the evidence of the other witnesses whose evidence I do accept. In addition, Mr. Trotman did not say that this happened. He surely would have, had it occurred.

[193] Ms. Kyswaty's Conflicting Evidence

I considered that Ms. Kyswaty testified that it seemed as if Mr. Banfield were the one that was afraid and panicked. She got the sense that he was trying to get away. She portrayed Mr. Trotman as standing his ground and confident. But she also said that they were arguing and circling each other.

[194] Ms. Kyswaty's Silence on Mr. Trotman

But she did not hear Mr. Trotman say anything to Mr. Banfield. Her evidence disagreed with the other witnesses' evidence when she said that Mr. Trotman swung the knife at Mr. Banfield's mid-section.

[195] Ms. Kyswaty's Tentative Evidence

Regarding Mr. Trotman's swing with the knife at Mr. Banfield, she testified that she believed "that after the swing there was a – like, a slice, some sort of slicing or stabbing motion from him" toward Mr. Banfield's abdominal area".

[196] Ms. Kyswaty's Uncertain Recollection

She stated further that "I feel that I recall that after the swing, there was a like a -a counter from him of – of kind of back at the other person". She did not mention this in her statement to the police. She omitted this detail because she was shaken up about what happened.

[197] Rejection of Ms. Kyswaty's Evidence

I find her evidence on these points is too tentative to accept. To say that she feels that she recalls, is very imprecise. It leads me to suspect that she is "filling in the gaps" of her memory to construct a cohesive story.

[198] Rejection of Ms. Kyswaty's Characterization

Given these weaknesses in her evidence, coupled with the evidence of the other witnesses that Mr. Banfield was acting aggressively towards Mr. Trotman, I reject her evidence where it implies that Mr. Trotman was the aggressor and that Mr. Banfield was not being aggressive towards Mr. Trotman.

[199] Rejection of Kicking Evidence

I do not accept Ms. Berube's 911 call evidence that Mr. Banfield kicked Mr. Trotman between the legs. No other witness saw this, not even Mr. Trotman.

[200] Acceptance of Aggressive Behavior

Finally, I accept Mr. Trotman's evidence that Mr. Banfield behaved in an aggressive manner towards him. It coincides with Mr. Banfield remaining on the scene after he saw the knife in Mr. Trotman's hand, and then launching a pre-emptive attack by punching him in the face. It also fits with the evidence of the witnesses that heard Mr. Banfield yelling at Mr. Trotman.

[201] Finding on Precondition (a)

I find that this precondition is met. I accept the evidence that Mr. Banfield was calling out Mr. Trotman in an aggressive manner. He was quite agitated. He was challenging Mr. Trotman to stab him. The evidence shows clearly that Mr. Banfield punched Mr. Trotman in the face as they were standing facing each other.

(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force

[202] Mr. Banfield's Aggressive Approach

Ms. Calvo said that Mr. Banfield was yelling and moving forward and back. He kept yelling and "almost coming towards [Mr. Trotman]".

[203] Circling and Punching

She also said that Mr. Banfield was circling Mr. Trotman. Then Mr. Banfield punched Mr. Trotman in the face.

[204] Doubt on Ms. La Chapelle's Evidence

Ms. La Chapelle testified that Mr. Trotman took a step towards Mr. Banfield. Then Mr. Banfield punched him in the face. I doubt this evidence because no other witness saw this specific sequence of events.

[205] Mr. Downs' Evidence

Mr. Downs said that Mr. Banfield was trying to fight Mr. Trotman.

[206] Circumstances of the Swing

When Mr. Trotman swung the knife at Mr. Banfield, Mr. Banfield had already hit him in the face once. In addition, he had taken two steps towards Mr. Trotman, albeit slow steps. Mr. Banfield was very hyper. He was aggressively yelling at Mr. Trotman. Mr. Trotman afraid of turning his back on him.

[207] Finding on Precondition (b)

I find that Mr. Trotman swung the knife at Mr. Banfield for the purpose of defending himself from the threat of continued aggression from Mr. Banfield. Therefore, this precondition is made out.

(c) The act committed is reasonable in the circumstances.

[208] Weighing Relevant Circumstances

As the Criminal Code directs, when I consider this factor I must weigh "the relevant circumstances of the person, the other parties and the act, including, but not limited to" the factors listed in s. 34 (2) (a) to (h).

[209] Acrimonious Relationship

Regarding Mr. Trotman and Mr. Banfield's circumstances, the evidence is clear that they had an acrimonious relationship. They had one serious fight in Mr. Trotman's room prior to the incident in question. Mr. Trotman testified that after the fight, Mr. Banfield repeatedly threatened and insulted him.

[210] Volatile Personality

The evidence also shows that Mr. Banfield is a volatile person. He has a record for assaultive behaviour. He brags about fighting.

[211] Threats to Others

One of his previous partners told Mr. Trotman that he threatened her and her family. Her statement is not proof that he did those things, but it helped to shape Mr. Trotman's belief that Mr. Banfield was violent.

[212] Witnessed Aggressive Behavior

Mr. Trotman had witnessed Mr. Banfield's aggressive behaviour when they had been out together. He knew that he got belligerent when he drank and smoked crack cocaine.

[213] Consideration of Section 34(2) Factors

I will now consider the other factors mentioned in s. 34 (2) that bear on my finding under s. 34(1) (c).

(a) The nature of the force or threat

####### [214] High Nature of Threat

The nature of the force or threat of force by Mr. Banfield was high. He was yelling and challenging Mr. Trotman to stab him.

####### [215] Violent and Aggressive Person

I accept Mr. Trotman's evidence that Mr. Banfield had proven himself to be a violent, aggressive person. Moreover, his aggressiveness was exacerbated when intoxicated by alcohol or drugs, as he was on the day in question.

####### [216] Prior Relentless Violence

Mr. Trotman had experienced Mr. Banfield's relentless physical violence when they fought in Mr. Trotman's room. I accept Mr. Trotman's evidence that every time that he tried to relax his grip on Mr. Banfield, Mr. Banfield started again to attack him. This is the background that Mr. Trotman had to work with on the day in question when Mr. Banfield was confronting him with an extremely aggressive demeanour.

####### [217] Fearless Attack Despite Knife

Mr. Banfield's daring and very skillful, rapid attack on Mr. Trotman while he was holding the knife by his side showed dramatically that Mr. Banfield was a good fighter who was not afraid to attack Mr. Trotman despite him having a knife. This would understandably have caused great fear and trepidation in Mr. Trotman's mind. It objectively and subjectively increased the nature and force of the threat that Mr. Banfield posed to him.

(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

####### [218] Reasonable Expectation of Further Force

I find that it was reasonable for Mr. Trotman to expect more use of force against him from Mr. Banfield since he had already punched him once despite him holding a knife. Mr. Banfield was not afraid. He was "hyped up and flexed". He was advancing slowly towards Mr. Trotman.

####### [219] Knife Did Not Increase Options

The Crown argued that once Mr. Trotman took out the knife it increased his options for extricating himself from the situation because he was now in control of the situation. However, the fact that Mr. Banfield had successfully attacked him despite his having the knife undermines this submission.

####### [220] Verbal De-escalation Attempted

Regarding "other means available to respond to the potential use of force", I accept that Mr. Trotman tried to talk his way out of the situation.

####### [221] No Help from Bystanders

Regarding asking for help from the many persons that were standing by, he said that If they wanted to help, they could have helped. He said "no one was coming to my assistance at that time anyways. There were many people around that were already seeing what was happening".

####### [222] Perception of Lack of Help

Perhaps no one came to his assistance because he did not ask them to, but this was his perception of the situation in which he found himself. It was true that no one was offering help, or trying to defuse the situation.

####### [223] Running Away Not Viable

The other potential option would have been to run away. But Mr. Trotman said that he was afraid to turn his back on Mr. Banfield. I think that this is a reasonable fear in the circumstances. Mr. Banfield had proven over a significant period to be quite persistent in his aggressive attitude and actions towards Mr. Trotman. It is reasonable to think that had he run away, Mr. Banfield would have chased him. There was nothing stopping him from pursuing Mr. Trotman on foot had he run away.

####### [224] Stuck in Difficult Situation

I find that in the circumstances, Mr. Trotman was stuck in a situation from which it was difficult to escape.

(c) The person's role in the incident

####### [225] No Provocation

I agree with the defence that Mr. Trotman did not do anything to provoke the initial confrontation. The evidence shows Mr. Banfield started the incident by calling out Mr. Trotman. Mr. Trotman did not do anything to start the altercation. He was simply reacting to Mr. Banfield. I find that he pulled out the knife in a subdued manner – not a threatening one. I did not do it to instigate a fight, but more as a defensive measure. I accept that he hoped that once Mr. Banfield saw the knife, he would back off.

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

####### [226] Use of Knife

The evidence is clear that Mr. Trotman used a knife to cut Mr. Banfield just under the chin.

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

I find that both parties were of similar size, age, gender and physical capabilities.

(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

####### [227] Bitter Relationship with Prior Fight

Mr. Trotman and Mr. Banfield had a bitter relationship that included one serious physical fight. I accept Mr. Trotman's evidence that Mr. Banfield started the fight that they had in his room. I reject Mr. Banfield's evidence that Mr. Trotman started the fight. As indicated above, I found Mr. Banfield to be a very untrustworthy witness.

####### [228] Repeated Threats

For several months after the fight, Mr. Banfield repeatedly threatened and insulted Mr. Trotman. The threats included threats to inflict bodily harm and to kill Mr. Trotman.

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

####### [229] Covered Under (f)

This is covered under (f).

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

####### [230] Proportionality

I find that the nature and proportionality of Mr. Trotman's response to Mr. Banfield's threat of force was serious, but it was not disproportionate to the threat that Mr. Banfield posed.

####### [231] Subdued Display of Knife

Mr. Trotman had shown the knife to Mr. Banfield in a subdued manner to ward him off. Ironically, it caused Mr. Banfield to launch a bold attack on him by punching him in the face.

####### [232] Crown's Argument on Lunging

The Crown argued that before Mr. Trotman cut Mr. Banfield in the neck he lunged at him with the knife. He relies on the evidence of Mr. Hudson and Ms. Kyswaty for this. Above, I explained why I rejected Ms. Kyswaty's evidence in this regard.

####### [233] Mr. Hudson's Uncertain Evidence

Regarding Mr. Hudson, he did not say that he saw Mr. Trotman lunge at Mr. Banfield with a knife. What he said was that he saw Mr. Trotman "take a bit of a lunge" at Mr. Banfield "fist forward". It did not look "expressly like a punch". It looked like that action one would have taken with a knife. But he did not see anything in Mr. Trotman's hand. He also said that he was "85%" focused on what on "what was going on" between Mr. Trotman and Mr. Banfield.

####### [234] Rejection of Crown's Evidence

I find Mr. Hudson's evidence too uncertain to rely on. The Crown also cited Mr. Banfield's testimony in support of this contention. For the reasons stated above, I rejected Mr. Banfield's evidence as untrustworthy.

####### [235] Rejection of Disproportionality Claim

The Crown states that Mr. Trotman's reaction to Mr. Banfield's aggressive actions and words was a disproportionate response. I do not agree with this characterization of the evidence.

####### [236] Accidental Cut

I do not think that Mr. Trotman intended to slash Mr. Banfield's throat. I find that as a defensive move he carelessly waved the knife in the area of his neck and accidently cut him under the chin.

####### [237] Defensive Measure

I accept Mr. Trotman's evidence that he did this as a defensive measure to ward off Mr. Banfield after having failed to do so with words only. There is strong evidence, which I accept, that Mr. Trotman was relatively subdued during the encounter with Mr. Banfield, at least up to the point when he waved the knife at him. This shows that he was trying to keep his action of taking out the knife to a minimum. He was not attacking Mr. Banfield with it.

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

####### [238] Unlawful Threats

Mr. Banfield's actions and words against Mr. Trotman must be evaluated considering all the circumstances. Mr. Banfield started the incident by yelling and calling out Mr. Trotman. Mr. Banfield was acting in a very aggressive manner. He disliked Mr. Trotman intensely. Mr. Trotman tried to dissuade him verbally to no avail. Mr. Banfield was threatening Mr. Trotman. These threats were not lawful. The Crown concedes that if I accept Mr. Trotman's evidence that Mr. Banfield threatened him, then the threats were not lawful.

####### [239] Crown's Concession

The Crown stated in his written submissions that if I find that "34(1)(a) is satisfied, then the Crown concedes that Trotman would have brandished the knife for the purpose of addressing Banfield's threat".

####### [240] Section 34(1)(a) Requirement

As indicated above, this section provides that "A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person".

Disposition on the Aggravated Assault and Assault with a Weapon

[241] Finding of Not Guilty

After considering all the above, I find that the Crown did not prove beyond a reasonable doubt that Mr. Trotman did not act in self defence. I have a reasonable doubt in this regard. Therefore, I find him not guilty of aggravated assault and of assault with a weapon. Both charges are dismissed.

Carry a Weapon (Knife) for a Purpose Dangerous to the Public Peace

[242] Addressing the Charge

I will now address the charge of carry a weapon (knife) for a purpose dangerous to the public peace.

[243] Section 88 of the Criminal Code

Section 88 (1) of the Criminal Code states:

Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

[244] Two Offences Created

In R. v. Kerr, the Supreme Court of Canada found that s. 88 creates two offences: (i) possession of a weapon "for a purpose dangerous to the public peace" and (ii) possession of a weapon "for the purpose of committing an offence".

[245] Charge Against Mr. Trotman

Mr. Trotman is charged with possession of a weapon "for a purpose dangerous to the public peace".

[246] Possession of Weapon Established

There is no dispute that the knife that Mr. Trotman possessed was a weapon. Therefore, I find as a fact that he possessed a knife and that it is a weapon as contemplated by s. 88 of the Criminal Code.

[247] Issue to be Determined

The issue is whether he possessed it "for a purpose dangerous to the public peace or for the purpose of committing and offence".

[248] Kerr's Question

In Kerr, the court dealt with the issue of whether "possession of a weapon for a defensive purpose, alone and without more, mandates an acquittal on a charge of possession for a purpose dangerous to the public peace".

[249] Formation of Purpose

Generally, the purpose of possessing the weapon "will have been formed prior to the taking of possession and will continue as possession is taken".

[250] Formation of Intent

I find as a fact that Mr. Trotman formed the intention to possess the knife the moment that he picked it up in his apartment and put it in his backpack.

[251] Purpose for Self Defence

I accept his testimony that he took possession of it for self defence against Mr. Banfield. The Crown argued that Mr. Trotman "had no specific reason to encounter Banfield outside that day". Consequently, there was no "specific safety risk to him at the time he decided to take the knife".

[252] Unpredictable Behavior

This submission misses the point that Mr. Trotman's fear of Mr. Banfield arose in large part from Mr. Banfield's unpredictable behaviour towards him. This is evident from the incident when they were drinking together in Mr. Banfield's room and getting along and a short time later, for no apparent reason, Mr. Banfield barged into Mr. Trotman's room and attacked him.

[253] Witnessed Aggressive Behavior

In addition, when they were getting along, Mr. Trotman went out with Mr. Banfield when they were socializing. He witnessed firsthand how aggressive and belligerent he would get when he drank and took drugs. One of Mr. Banfield's ex-intimate partners told Mr. Trotman that he threatened her and her family.

[254] Crown's Reference to Lebel and Arbour

The Crown referred to Lebel J. and Arbour J.'s concurring judgment in Kerr where they state that only necessity justifies carrying a weapon for a defensive purpose. They state that there must be a "clear and imminent peril". They held further that, "necessity would not excuse the possession of a weapon simply because the accused lived in a high-crime neighbourhood or finds himself among a dangerous prison population".

[255] Distinguishable Circumstances

These examples are distinguishable from the case at bar because they refer to general situations that cause fear in a person. The case of R. v. Zedbelovski, which the Crown cited refers to the same types of situations.

[256] Specific Fear

In the case at bar, Mr. Trotman did not take possession of the knife due to a generalized fear of his environment. He did so due to a specific fear of Mr. Banfield.

[257] Unavoidability Criterion

Lebel J. and Arbour J. also stated that "the act must be unavoidable in that the circumstances afford the accused no reasonable opportunity for a legal way out, such as escaping or seeking police protection.

[258] Application to This Case

In Mr. Trotman's case it is difficult to apply this criterion. What "reasonable opportunity for a legal way out" might have been available to him? He could not stay in his room forever. He lived in the same rooming house as did Mr. Banfield. They frequented the same places in their neighbourhood. It was inevitable that they would meet each other somewhere.

[259] Police Protection Not Viable

The evidence is that Mr. Banfield was spoiling for Mr. Trotman. But calling the police to prevent a future aggression against him by Mr. Banfield would prove fruitless. Maybe the police would have warned Mr. Banfield. But this would run the risk of angering Mr. Banfield further. Mr. Banfield's criminal record and general attitude shows clearly that he does not respect authority.

[260] Harm Comparison Criterion

Lastly, Lebel J. and Arbour J. stated that "the harm inflicted must be less than the harm sought to be avoided".

[261] Reasonable Fear

Mr. Trotman testified that he was afraid that Mr. Banfield would knock him out and pummel him, thereby potentially causing serious injury to him and possibly killing him. Given Mr. Banfield's personality and penchant for violence, especially when intoxicated, as he was on the day in question, this was a reasonable fear. The risk of harm from a fall outside on concrete where they likely would have run into each other is greater than on the floor of Mr. Trotman's room. Moreover, there was no indication that should Mr. Banfield attack Mr. Trotman anyone would have come to Mr. Trotman's aid.

[262] Reasonable Fear of Mr. Banfield

Mr. Trotman's fear of Mr. Banfield was reasonable given the frantic aggressiveness and bellicose attitude that Mr. Banfield exhibited, including the threats that he was making against Mr. Trotman. Moreover, Mr. Banfield got drunk and smoked crack cocaine frequently. When he did he behaved in crazy, violent manner. Mr. Trotman had seen him behave this way before when he had consumed drugs and alcohol.

[263] Harm Comparison

In these circumstances, I find that the harm that Mr. Trotman inflicted on Mr. Banfield was less than that which he sought to avoid.

[264] Defensive Purpose Not Determinative

However, the Kerr court held that "the fact that an accused person possessed a weapon for a defensive purpose is not itself determinative of guilt or innocence under s. 88 ".

[265] Hybrid Subjective-Objective Test

The proper test is a "hybrid subjective-objective test .... The trier of fact must first determine what was the accused persons purpose; this is a subjective determination. The trier of fact must then determine whether that purpose was in all the circumstances dangerous to the public peace; this is an objective determination". (emphasis added)

[266] Meaning of Purpose

In s. 88, the term "purpose" means "intention". The court held that "the question under the first stage of the purpose analysis is what object (or objects) that the accused person know (sic) would probably flow from his possession, whether he desired it (or them) are not".

[267] Objective Factors in Determining Purpose

It is appropriate to consider objective factors that arise from the circumstances in determining an accused person's subjective purpose for possessing a weapon.

The subjective purpose of the accused, as testified to by him, is a factor, but only one of the factors, which must be considered by the trial judge in deciding [what] was the "purpose of the possession". (emphasis added)

A final conclusion as to what the purpose was is to be arrived at after considering all of the relevant circumstances of the case, including the nature of the weapon, the circumstances under which the accused had it in his possession, his own explanation for that possession, and the use to which he actually put it, if that sheds light on what his purpose was in originally having it.

[268] Drawing Inferences from Use

The court may draw "inferences as to purpose … from objective factors, such as actual use".

[269] Defensive Purpose Established

I find that all the circumstances support the conclusion that Mr. Trotman possessed the knife for defensive purposes. The way in which he used the knife reinforces this conclusion.

[270] Subdued Display

At first, he held it quietly to his side, just to show it to Mr. Banfield in hopes that it would make him back off. This was after Mr. Trotman's verbal efforts to temper Mr. Banfield's combative mood failed. I do not agree with the Crown that this was an unlawful intimidation tactic. I find that it was a defensive move that was meant to achieve its purpose in part through intimidation, but that was more in the sense of a deterrent than an aggressive act of intimidation.

[271] Defensive Swinging

Then, only after Mr. Banfield attacked him and started to proceed slowly towards him, did he resort to simply swinging it in Mr. Banfield's direction. There is no evidence to support a finding that he intended to cut Mr. Banfield. He testified that he just wanted to hold him at bay. I accept his evidence. It is consistent with all the circumstances, including his own behaviour in the situation.

[272] Subjective Purpose Satisfied

I conclude that the subjective part of the test is satisfied by my finding that Mr. Trotman possessed the knife for the purpose of self defence against Mr. Banfield.

[273] Objective Determination

Next, I must determine on an objective basis "whether that purpose was in all the circumstances dangerous to the public peace" (emphasis added).

[274] Two-Stage Analysis

Kerr held that "the determination of the accused person's subjective purpose is only the first part of a two-stage analysis. The trier of fact must in the second stage determine whether the purpose was, from an objective standard, dangerous to the public peace" (emphasis added).

[275] Public Peace Standard

The court held that "public peace refers generally to a state of order or to the normal state of society". They rejected the notion that "violence is always and without exception a danger to the public peace". They said that "It is for the trier of fact, on the basis of all relevant factors, to determine whether the purposeful act would have, in the particular facts, endangered the public peace".

[276] Actual Use Not Determinative

Regarding the use to which a weapon is put, "actual use of a weapon in a manner which is dangerous to the public peace does not establish that the weapon was possessed for a purpose dangerous to the public peace. Actual use is but one factor to be considered".

[277] Crucial Issue - Avoidability of Attack

The court held that,

… the crucial issue in those cases where the accused person is found to have possessed a weapon for a defensive purpose is whether or not the attack which the accused purported to thwart was of avoidable. Thus, only where the attack is completely inescapable is possession of a weapon to thwart the attack not possession for a purpose dangerous to the public peace.

[278] Objects Flowing from Possession

I find that that it is reasonable to conclude from all the circumstances that Mr. Trotman knew that the "object (or objects)" that would flow from his possession of the knife were that if Mr. Banfield attacked or threatened him, he would be able to ward him off with the knife. This was the object of his possession of the knife.

[279] Intent Not to Use Unless Necessary

This may or may not have entailed actual use of the knife, although I am satisfied by his evidence and by his behaviour in general towards Mr. Banfield that, other than to dissuade Mr. Banfield from attacking him, he did not intend to use the knife if he could avoid it.

[280] Attack Was Inescapable

As stated above, an attack by Mr. Banfield was not avoidable in the sense that, given his volatile and hotheaded manner of treating Mr. Trotman, it could not be predicted. He could pop up anytime in a nasty, bellicose mood, which is what happened in this case.

[281] Inescapable in Practical Sense

And in this sense the attack was inescapable. How can one escape what has been threatened and is likely, but which cannot be predicted? One does so by preparing oneself for the eventuality, which is all that Mr. Trotman did.

[282] Finding on Section 88 Charge

Therefore, based on all the above, I find that the Crown did not prove beyond a reasonable doubt that Mr. Trotman is guilty of an offence under s. 88. The charge is dismissed.

Utter Threats

[283] Crown's Position

The Crown very fairly said that I must rely solely on Mr. Banfield's testimony to establish the utter threats charge. The Crown also concedes that there are "two significant issues with Banfield's reliability as it pertains to the slashing, being his level of intoxication and the number of swings Trotman took".

[284] Crown's Submission

The Crown takes no position regarding this charge, "other than to say … if the Court accepts [Mr.] Banfield's testimony, then it should find [Mr.] Trotman guilty. If the Court is left in doubt by [Mr.] Banfield's testimony, then the court must find [Mr.] Trotman not guilty".

[285] Finding on Utter Threats

I thank the Crown for his reasonable approach and fairness. As I stated above, I found Mr. Banfield to be an untrustworthy witness. Consequently, I do not accept his testimony regarding this charge. Therefore, I find that the Crown did not prove the charge beyond a reasonable doubt. The charge is dismissed.

Released: August 22, 2019

Signed: Justice J.W. Bovard