Ontario Court of Justice

Date: 2023 06 19 Court File No.: Central West Region 22-211000034

Between:

HIS MAJESTY THE KING

— AND —

William Davies

Before: Justice J. De Filippis

Heard on: March 15 – 17, 2023 Reasons for Judgment released on: June 19, 2023

Counsel: Mr. Leach, counsel for the Crown Mr. Zeeh, counsel for the accused

De Filippis, J.:

Introduction

[1] The defendant was charged with aggravated assault on Matthew Davies on April 10, 2022, in St. Catharines. The parties are cousins. The defendant stabbed the complainant with a knife, in the early hours of the morning, at the apartment of Sara Freeman. Also present was Riley Hutchings. The three men had arrived at the apartment shortly before the stabbing.

[2] The complainant claims he was attacked without warning. The defendant asserts that he acted in self-defence. The three men testified at this trial. All are drug addicts in various stages of recovery. In the hours leading up to the event in question, they had consumed alcohol and/or illicit drugs. The evidence of Ms. Freeman was received by her statements to the police, as she refused to enter the courtroom.

[3] These reasons explain why the charge must be dismissed.

Evidence

[4] Matthew Davies was 23 years old when he was stabbed by his cousin. He testified that they have associated with each other since they were children. Both have a history of substance abuse. Both have attended residential treatment programs to assist them in overcoming addiction. The complainant met Riley Hutchings at a substance abuse rehabilitation centre a couple of months before this incident.

[5] On the night in question, the complainant drove to Grimsby, Ontario to pick up the defendant. He did that at “around 9 or 10 PM”. Mr. Hutchings was with the complainant. The three men returned to the complainant’s apartment building and went to his girlfriend’s unit. She lived next door to him. The complainant testified that alcohol and marihuana was consumed by all. He could not say if anyone consumed illicit drugs; he said, “I drank two beers and they did what they did”. They stayed until 5 or 6 AM at which time his girlfriend asked all to leave as they were making too much noise.

[6] The complainant testified he had intended to drive the defendant and Mr. Hutchings back to Grimsby. However, they went to the apartment of Ms. Freeman in St. Catharine's instead. She is the defendant’s girlfriend and he wanted to visit her. The complainant confirmed the authenticity of photographs of this apartment. It is a small one room unit with a bed, table, chairs, fridge and stove. There is blood on the floor and walls, especially near the chair and table. The complainant noted that the defendant had been seated on this chair and he was standing beside him.

[7] The defendant had not been introduced to Ms. Freeman. However, when he learned she was 16 years old, he told the defendant that she was too young [to be his girlfriend]. The defendant replied that the complainant’s father – who had recently passed away – had “died of stress” and that the complainant “was the reason”. The complainant testified that this upset him but he “held it in” and gave the defendant “a little tap on the forehead” and turned to leave. He added that apart from the “tap” which he described as “not much force at all” he did not touch the defendant.

[8] The complainant testified that when he got to the door of the apartment, he was attacked by the defendant: “I felt something come around my body and I turned to defend myself... I saw a sharp object in [the defendant’s] hand. I tried to push him away my left arm was severely injured. I saw blood. I had not felt the stab”. The complainant added that he “might have punched him to defend myself”. Mr. Hutchings yelled at the defendant and Ms. Freeman ran from the room. The defendant followed her out.

[9] The defendant drove to his home with Mr. Hutchings. The latter lay on a couch. The defendant went to his girlfriend's unit and called for an ambulance. On route to the hospital he realized that he had been stabbed in the chest as well as the bicep. He was interviewed by the police soon after being admitted to the hospital. The complainant confirmed that accuracy of photographs showing injuries. There are three knife wounds; one to the chest requiring two staples, one to the arm, requiring nine staples and another one to the same arm, requiring three staples. Two knuckles to his right hand are red and bruised.

[10] At the time of this trial, the complainant was serving a conditional sentence for assault with a weapon. At the time of the events in question, he was on bail for that charge. The following exchange occurred about this matter:

Defence counsel: You shot someone lying on the ground with an air gun.

Complainant: Is this relevant?

Court: You must answer

Complainant: Yes

Defence counsel: And the reason?

Complainant: He [the victim] said something about my father.

Defence counsel: At time of this incident, you were on bail?

Complainant: Yes

Defence counsel: And bound by conditions?

Complainant: Not sure

[11] Following this exchange, the release order in question was produced and the complainant acknowledged that he was subject to a curfew of 10 PM to 6 AM, except for medical emergencies. He insisted that he picked up the defendant and Mr. Hutchings in Grimsby before 10 PM. He explained that the drive to Ms. Freeman’s apartment was a medical emergency as the defendant was intoxicated.

[12] The complainant could not be sure if he had consumed drugs when he shot the person with the air gun. He conceded that he had been drinking alcohol and that this “is a trigger” for him. He explained that the person had made a comment about his father that caused him to “lash out”. This happened at the complainant’s home. He added that he could not recall much as he had been drinking heavily. Nevertheless, when pressed about ‘thrashing out’, he admitted that he did not have the air gun in his personal possession at the time of the comment about his father and that he left the home to retrieve it from a storage room and returned with it to fire upon the victim.

[13] The complainant agreed that the defendant commented on his father after he had commented about the age of Ms. Freeman. He denied he punched the defendant in the face because of what he had said about his father and that he continued to punch him until he was stabbed. He repeated that his response to the comment about his father was to “touch [the defendant’s] forehead”.

[14] The complainant said he was stabbed at the door as he was attempting to leave the apartment. When confronted with the photographs showing blood on the walls and floor of the apartment, especially near the chair and table, he explained that the defendant “could have pulled me back” [from the door]. When pressed, he agreed that the confrontation had occurred near the chair and added that the “chair is near the door”. He could not explain the blood stains near the bed and other areas of the small apartment.

[15] The complainant admitted that he has used crack cocaine but not on the evening in question. He agreed that Mr. Hutchings was consuming crack cocaine. He could not say if the defendant had done so. He could not recall if alcohol was consumed by him or others at Ms. Freeman’s apartment.

[16] The complainant denied he picked up the defendant and Mr. Hutchings at a gas station in Grimsby because the defendant’s father does not approve of him. He said he is not aware of any animosity and added that he “does not have an issue” with the defendant’s father. However, in his prior statement to police, he described the defendant’s father as a “bum” and “a fucking loser”. He explained that this was said “in the heat of a moment”.

[17] In refreshing his memory from the prior statement, the complainant conceded that he had not called the ambulance; Mr. Hutchings did so.

[18] PC Bleich was dispatched to a home in Welland, Ontario to arrest the defendant. The officer was admitted by the defendant’s mother. The defendant was seated on a couch. He had a cut to his lip and blood stains on his hands. After being arrested and cautioned the defendant said, not in response to a question, he said he was attacked by his cousin after they had consumed crack cocaine. While being attended to by a paramedic, the officer heard the defendant say he had stabbed his cousin.

[19] Mr. Hutchings is 20 years old. He is currently in a residential treatment program for addiction and trauma. Following the incident in question, he overdosed on fentanyl and was in a coma for eight days. He claims it has impaired his memory. He confirmed he met the complainant at the Stillwater Treatment Centre before the incident in question. He recalls using drugs that night. He recalls running from an apartment. He can recall nothing else.

[20] Ms. Freeman did not attend court as required by the subpoena. She was found by police and taken to the courthouse by her mother. However, she refused to enter the courtroom. I stood down so the young woman could obtain advice about the penal consequences of her action. Ultimately, the Crown and Defence agreed that her prior statements to the police be tendered as evidence and that she be excused without further action by the Court.

[21] Ms. Freeman called 911 from her apartment on the night in question. The next day, reluctantly it seems, she was interviewed by the police. She reported that she lived alone in the apartment and had invited the defendant to visit her. He arrived at around 4 AM with his cousin and another man named Riley. The latter “was doing crack” and it was obvious the others “had been drinking”. The defendant said something about his cousin’s father and the cousin began punching the defendant. The defendant punched back, and the cousin yelled that he had been stabbed in the arm. Ms. Freeman added that the defendant had a green knife in his hand. She described it as “not too big”. After the stabbing, the men ran out of her apartment, and she ‘saw blood everywhere”. She said the fight happened quickly, and she was traumatized.

[22] The defendant is 20 years old. He lives with his father and grandparents in Grimsby. He suffers from borderline personality disorder, conduct disorder, generalized anxiety disorder, and depression. He is under the care of a psychiatrist. He began using marihuana about eight years ago and this progressed to “hard drugs”. He is now on the methadone program.

[23] The defendant testified that at the time of these events he was abusing alcohol and illicit drugs. He explained that he had signed up for a rehabilitation program and this was to be “one last bender”. He was drinking alcohol with his father and Mr. Hutchings visited. The latter was “high”. The complainant contacted him, and they agreed to meet at a nearby gas station at around midnight. The defendant and Mr. Hutchings left the home without his father’s knowledge because he had been “grounded pending the rehab program”.

[24] According to the defendant, he and the complainant used to see each other two or three times a month and went on fishing trips with their fathers. They also “did drugs together”. Several months before the events in question, the complainant’s father passed away. After this, the cousins “fought more often”.

[25] The complainant drove the defendant and Mr. Hutchings to his apartment building. They went to the unit occupied by the complainant’s girlfriend. They played video games. The defendant was drinking vodka. He said the complainant and Mr. Hutchings were “doing drugs”. After several hours, the complainant’s girlfriend told the men to leave. By this time the complainant and Mr. Hutchings had “run out of drugs”. The defendant testified that the complainant “called his dealer” and believes he obtained more drugs. They arrived at Ms. Freeman’s apartment at around 4:30 or 5 AM. Ms. Freeman and the defendant had been in contact during the previous hours.

[26] The defendant testified that Ms. Freeman became upset because the complainant and Mr. Hutchings were smoking crack. She was sitting on her bed. The defendant sat on a chair near the table. The other two men were standing. In the ensuing conversation the complainant learned that Ms. Freeman was 16 years old and on her own because of family issues. The complainant told her that he also had had issues with his father. The defendant called the complainant “a piece of shit” and added, “how can you blame your father for all this, he is dead”. Following these words, the complainant punched the defendant in the face. The defendant shielded himself from the blows and said, “I have a knife and will use it”. The defendant explained that he warned the complainant about the knife because he was “scared and I know what he is capable of and his past history of charges and violence...he was a stronger older cousin”.

[27] The defendant testified that he believed “the knife was the only way to stop the attack”. He recalls stabbing him once in the left arm, but having seen the photographs, he now knows he stabbed him twice in that arm. He then ran from the apartment to the home of a nearby friend. He telephoned his father to be picked up. The latter could not do so. He then telephoned his mother and stepmother. His stepmother picked him up and took him to their home in Welland. From there he surrendered to the police.

[28] The defendant sustained these injuries; marks and bruises to the face and a cut lip. He added that his family doctor suggested he had suffered a concussion.

[29] The defendant was pressed by Crown counsel to explain the position of the parties in the apartment and why it was necessary to resort to stabbing the complainant. The defendant insisted that during the confrontation, he was seated in the chair by the table and the complainant was standing over him. He never stood up while being punched. He had a utility knife clipped to his waistband and grabbed it while being assaulted. The defendant explained that the knife had “bump on the blade” that allowed for it to be easily unfolded. He does not recall stabbing the defendant in the chest and added that he was not aiming for that part of the body.

[30] Crown counsel suggested that the defendant had other options, such as punching back or running from the apartment. The defendant explained that he could not get up from the chair because the defendant was standing over him and punching him. He conceded that his immediate reaction was to use the knife. He said, “it happened so fast”.

Applicable Legal Principles

[31] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the Defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.(D.), [1991] 1 S.C.R. 742.

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

[33] One of the issues in the present case is whether the defendant, in his confrontation with the complainant, was acting in lawful defence of himself. Section 34 of the Criminal Code provides a defence based upon reasonable belief, defensive purpose, and reasonable response. Thus, three questions arise:

1. Did the defendant believe, on reasonable grounds, that force was being used against him?
2. Did the defendant use the knife for the purpose of defending himself?
3. Was the defendant’s conduct reasonable in the circumstances?

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

[35] The first question addresses the defendant’s belief. The belief may be mistaken, provided it is honestly held. To determine his state of mind, all the evidence must be considered, including the words and actions of the complainant. What must next be considered is whether a reasonable person in these circumstances would have a similar belief.

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

[37] The third question also addresses the defendant’s conduct – and asks if it was reasonable. The inquiry is not about whether the defendant’s conduct was the only option available to him but whether it was reasonable in the circumstances as he knew them or believed them to be. In this regard, a reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful. Moreover, such person cannot be expected to know exactly what course of conduct or how much force is necessary in defence of another.

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

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

(a) the nature of the force or threat;

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

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

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

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

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

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

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

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

Submissions

[39] Crown and Defence counsel agree that the issue in this case is step three in the self-defence analysis; that is the parties agree that the defendant reasonably believed that force was being used against him and used a knife to defend himself. In the debate about whether the use of that knife was reasonable in the circumstances, Crown and Defence counsel reviewed the evidence with respect to the enumerated factors in s. 34(2) and explained why, in their submission, the defendant’s use of the knife was or was not reasonable.

[40] The Crown points out that Ms. Freeman reported that “they were fighting” and that the defendant “started punching back” while both men were standing. The Crown argues that this shows the defendant had other options rather than using his knife.

[41] Defence counsel submits that the evidence from Ms. Freeman confirms that the complainant started the physical fight and that he repeatedly punched the defendant. Counsel adds that there is no doubt, on all the evidence, that this occurred while the defendant was seated in a chair by the table and that he sustained facial injuries from being punched. Counsel also suggests that Ms. Freeman may have confused the stabbing motion by the defendant as retaliatory punches. In this regard, the photographs of the defendant’s injuries depict stab wounds but not bruises consistent with being punched.

Conclusion

[42] I accept the issue as framed by counsel. However, determining the issue is more difficult because of the mental state of everyone except Ms. Freeman. She was the only sober person in this drama. She reported that Mr. Hutchings was smoking crack and that the other two men “had been drinking”. I draw the inference that what she meant is that they were intoxicated. This is supported by the other evidence. Mr. Hutchings has little memory of the events. Although the defendant and complainant have not been as damaged by substance abuse as is the case with Mr. Hutchings, the reliability of their evidence must be approached with caution. There are other credibility concerns.

[43] The complainant demonstrated that he should not be readily trusted. For example, he testified that he had “no issues” with the defendant’s father and, thus, had no reason to pick up the defendant and Mr. Hutchings at a nearby gas station, rather than at the defendant’s home. However, he told the police that the defendant’s father was “a bum” and “a fucking loser”. His explanation at trial that he told the police this “in the heat of the moment” does not resolve the inconsistency.

[44] In addition, the complainant has a criminal record for assault with a weapon. This is of some relevance in assessing credibility. Moreover, he was on bail for that conviction at the time of these events and was in violation of the curfew imposed by that release order. The complainant testified that he picked up the defendant and Mr. Hutchings in Grimsby before 10 PM. Even if I disregard the testimony of the defendant who said he was picked up around midnight, the complainant was out of his home, in travelling to, and being at, the apartment of Ms. Freeman. His explanation for this – that he considered the need to drive the intoxicated defendant to be a medical emergency, and, thus, an an exception to the curfew – cannot be believed. Equally incredible is the complainant’s description of his physical response to the defendant’s comments about his father.

[45] The complainant testified that he was upset by what the defendant had said but “kept it in” and gave him “a little tap on the forehead”. This would be a marked departure from his response in previously assaulting another man who had made comments about his father. Then, as now, the defendant had consumed alcohol, a substance he admits is a “trigger” for him. His testimony about the “little tap” is contradicted by Ms. Freeman and the bruises on the complainant’s knuckles confirm her account.

[46] The complainant’s criminal record is also relevant in assessing the defendant’s state of mind. I accept that the defendant was aware that the complainant had previously assaulted a man with a weapon because the victim had made a comment about his father. I also acknowledge that in assessing the defendant’s response to the complainant’s assault, the test is not whether it was the only available response, but whether it was a reasonable one.

[47] Ms. Freeman confirmed the defendant’s testimony that the complainant initiated the assault by punching him. However, contrary to the defendant, she reported that he punched back. I accept the Defence suggestion that what she saw as punches could be stabbing motions. The defendant also insisted he warned the complainant he had a knife and would stab him [if he continued the assault]. Ms. Freeman did not report hearing this. Although she was not specifically asked this by the police – and did not testify at trial – she was shocked when the complainant said he had been stabbed. A fair reading of her statement persuades me that she did not hear the defendant utter the warning and that she would have reported this fact, had it occurred. I am confident that the defendant did not do so and that, like the complainant’s testimony about the “little tap” on the forehead, the defendant attempted to mislead me.

[48] In applying the criminal law standard of proof set out above, I am entitled to believe some, none, or all evidence given by a witness, including the defendant. If I am unable to decide whom to believe, the defendant must be acquitted. Moreover, I cannot treat conflicting testimonial accounts as a credibility contest in the sense of deciding whether to accept one or the other and a finding that the defendant is not credible does not equate to proof beyond a reasonable doubt. R. v. J.H.S., 2008 SCC 30.

[49] One of the arguments presented by the Crown is that the defendant should be found guilty on his own version of events because he brought a knife to a fist fight. In other circumstances this might be a compelling submission. The events in question unfolded amongst addicts who had stumbled on the road to recovery. The accuracy of the accounts is tainted because they were intoxicated. Moreover, the parties, especially the complainant, were not always truthful in giving evidence. In these circumstances, it is not possible to determine the events and the Crown cannot meet the high burden it faces in proving guilt. That is, the Crown has not proven beyond a reasonable doubt that the defendant did not act in self defence.

[50] The charge is dismissed.

Released: June 19, 2023 Signed: Justice De Filippis