DATE: September 7, 2023 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

IOSIF PAUCSEK

Before Justice T. Lipson

Reasons for Judgment released on September 7, 2023

Mr. D. Rodgers ...................................................................................... counsel for the Crown Mr. J. Addelman ......................................................... counsel for the accused Iosif Paucsek

Lipson J.:

REASONS FOR JUDGMENT

[1] Mr. Paucsek entered pleas of not guilty to charges of assault with a weapon and aggravated assault.

[2] Mr. Paucsek admits stabbing his wife, Irina Vasilescu with a three-foot samurai sword. The incident occurred during the early morning hours of April 19th, 2022. Ms. Vasilescu suffered one stab wound through her abdomen, with an entry wound on the lower left side of her abdomen and an exit wound on the right lower back. Emergency surgery was conducted upon her arrival at the hospital. A laparotomy procedure took place, and portions of her colon were cut and needed to be repaired. Fortunately, the surgery was successful.

[3] When this happened, Ms. Vasilescu was on bail for assaulting Mr. Paucsek and causing him bodily harm in a prior incident in their home in Gatineau Quebec. She was in breach of a bail condition on April 19, 2022, when she was with Mr. Paucsek in his apartment in Ottawa. She eventually pled guilty to this breach and was placed on probation. With respect to the Gatineau assault bodily harm charge, Ms. Vasilescu told the court that she was enrolled in a diversion program which included anger management counselling. I will have more to say about the February 18, 2022 Gatineau incident later in these reasons.

[4] In addition to the breach of release order charge, police also charged Ms. Vasilescu with two counts of assault arising from her alleged role in the incident that led to her stabbing on April 19th, 2022.

[5] In this trial, Mr. Paucsek claims that he acted in self defence when he stabbed his wife with the sword. He says that his wife violently attacked him which required him to stab his wife in self-defence.

[6] Section 34 of the Criminal Code provides that a person is not guilty of an offence if: (1) the person believes on reasonable grounds that force is being used against them or another person; (2) the force used in response is applied for the purpose of defending themselves or another person; and (3) the act committed is reasonable in the circumstances. The central issue in this case is focussed on the third criterion-whether Mr. Paucsek’s response was reasonable.

[7] The Crown concedes that it cannot disprove beyond a reasonable doubt that in the moments leading up to the stabbing, Ms. Vasilescu used force against Mr. Paucsek and that Mr. Paucsek stabbed the complainant to defend and protect himself.

[8] The Crown and defence differ with respect to the third prong of the s. 34 test for self-defence. The Crown says that the act taken by Mr. Paucsek to defend himself was not reasonable in the circumstances. The defence says it was.

[9] It is common ground that the burden of proof is upon the Crown to prove beyond a reasonable doubt that Mr. Paucsek’s act of self defence was not reasonable in the circumstances.

[10] Ms. Vasilescu and Mr. Paucsek married in 2021. He was born in 1959 and stands 5’6”. Ms. Vasilescu is 25 years younger than Mr. Paucsek and her height is approximately 5’11”. In a police interview room hours after the incident, the defendant appears on video to be a frail man who has mobility issues. He is also hard of hearing. He told the police that he suffers from cirrhosis of the liver. At the trial, Ms. Vasilescu appeared quite fit and in far better health than Mr. Paucsek.

[11] Ms. Vasilescu testified that on April 19, 2022, despite a condition in her release order prohibiting contact with him, she visited him at his apartment in Ottawa. Both parties were drinking. Ms. Vasilescu had several beers and a shot or two of sambuca. Both were intoxicated. They began to argue and she wanted to leave. Ms. Vasilescu said that the accused grabbed her phone and tried to prevent her from leaving his residence. She denied using any force against Mr. Paucsek. She testified that he grabbed her to prevent her from leaving. Mr. Paucsek, she said, told her that she was going “to die an honourable death”. Ms. Vasilescu said he then stabbed her with the sword. She managed to pull the sword out of her body before passing out.

[12] As Ms. Vasilescu testified, it became increasingly clear to the court and counsel that she was not a credible or reliable witness with respect to the events leading to the stabbing. She claimed to have problems remembering the sequence of events concerning, particularly when it came to whether she used of force against Mr. Paucsek. Ms. Vasilescu’s testimony was so problematic, that Crown counsel fairly conceded that her account of the incident lacked probative value and should be disregarded by the court.

[13] To prove its case, the Crown was left to rely on photographs of the scene and Mr. Paucsek’s largely exculpatory statement to Detective Marie Seguin following his arrest on April 19. I pause to comment that Detective Seguin’s interview of the accused was skilfully conducted and very fair.

[14] Mr. Paucsek told Detective Seguin that on February 18, 2022, just two months earlier, Ms. Vasilescu beat him up badly. She broke his nose and an orbital bone. He was urinating blood for two days. The police charged Ms. Vasilescu with assault causing bodily harm. There were photographs entered into evidence, exhibit 2, which depict the bloody state of both Mr. Paucsek and their Gatineau residence.

[15] With respect to the incident on April 19, 2022, Mr. Paucsek explained to Detective Seguin that Ms. Vasilescu became intoxicated. There was a heated argument concerning the complainant’s daughter. Ms. Vasilescu became very angry and began to assault Mr. Paucsek. She tried to force his head onto an open element of the kitchen stove. He said she was punching him and twisting his hand. Mr. Paucsek was able to get away from her and retreat into his bedroom.

[16] Ms. Vasilescu followed him into the bedroom. More than once during the interview, Mr. Paucsek told the detective, “She kept coming at me” and that he was afraid. There was a sword in the bedroom near his bed. He said it was a present from a former chess student of his. Mr. Paucsek said that he considered the sword to be an “ornament” and not a weapon. He planned to mount the sword on the wall after he unpacked his other belongings. When Ms. Vasilescu followed him into the bedroom, Mr. Paucsek said that he grabbed the sword, showed it to her and told her “Stay like that” but she did not back away. Ms. Vasilescu had her fists clenched and she was angry. Mr. Paucsek told the detective “And when I saw that there’s no way I’m gonna be put again like it happened on the 18th of February in Gatineau… and I defended myself.” He stabbed her with the sword and then “took it out of her”. He then called 911.

[17] The Crown submits that Mr. Paucsek’s act of self defence was unreasonable. Mr. Rodgers contends that the accused should have left his apartment after being assaulted in the kitchen. Mr. Rodgers also argues that Mr. Paucsek used excessive force in the manner he defended himself against the attack from Ms. Vasilescu.

[18] The central issue is whether the Crown has proven beyond a reasonable doubt that Mr. Paucsek’s act was not reasonable in the circumstances. A majority of the Supreme Court of Canada in R. v. Khill, 2021 SCC 37 at para. 67 held that s. 34 (1) (c) of the Criminal Code requires an objective assessment that should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused’s qualities and experiences. The law expects the person to behave reasonably, including in the person’s assessment of threats to himself or herself, or others.

[19] The question is what an ordinary person who shares Mr. Paucsek’s attributes, experiences and circumstances would have done in his position. Reasonableness is not considered through the eyes of individuals whose perceptions are based on factors such as intoxication, excessive fear, or abnormal vigilance.

[20] In determining whether an accused’s act was reasonable, s. 34 (2) requires the court to consider the relevant circumstances of the accused, the other people involved and the act, including, but not limited to, the following factors:

1. the nature of the force or threat;
2. the extent to which the use of force was imminent and whether there were other means available to the accused to respond to the potential use of force;
3. the accused’s role in the incident;
4. whether any of the people involved used or threatened to use a weapon;
5. the size, age, gender and physical capabilities of those involved in the incident;
6. the nature, duration and history of any relationship among the people involved in the incident, including any prior use or threat of force, and the nature of that force or threat;
7. any history of interaction or communication among the people involved in the incident;
8. the nature and proportionality of the accused’s response to the use or threat of force; and
9. whether the accused’s act was in response to a use or threat of force that the accused knew was lawful.

[21] In my view, most of these factors favour Mr. Paucsek’s claim of self-defence. I accept Mr. Paucsek’s statement that he and his wife were drinking and arguing. I accept his statement that Ms. Vasilescu was intoxicated and became enraged with him. I accept that Ms. Vasilescu attacked him in the kitchen with her fists. She tried to push his face onto an open element of the stove. Ms. Vasilescu assaulted Mr. Paucsek causing a laceration over his left eye. She punched him several times that resulted in extensive bruising. All these injuries are clearly visible in the photographs of Mr. Paucsek. Ms. Vasilescu was younger, bigger, and stronger person than Mr. Paucsek. Just two months before, she severely beat Mr. Paucsek. She broke his nose and an orbital bone. I believe Mr. Paucsek’s statement to Detective Seguin that when Ms. Vasilescu attacked him on April 19th, the memory of that beating was with Mr. Paucsek when he grabbed the sword to defend himself. He did not want a repeat of the Gatineau event. Regarding the April 19th I am satisfied on the evidence that Ms. Vasilescu was not only the aggressor but there is also no evidence that Mr. Paucsek played a contributing or provocative “role” in the events leading up to the stabbing.

[22] I also note that Mr. Paucsek was under attack in his own home. In my view, it was reasonable for Mr. Paucsek to retreat to his bedroom to try and defuse the situation. Of course, in hindsight, it would have been better had he left the apartment entirely. However, Mr. Paucsek was not obliged in law to leave his own home. In my view, he acted reasonably by leaving the kitchen area and going into his bedroom.

[23] I accept what Mr. Paucsek said his statement that, instead of leaving him alone, Ms. Vasilescu followed him into his bedroom. Given the previous beating he suffered two months earlier and the attack in the kitchen moments before, it was reasonable for Mr. Paucsek to reach for the closest weapon to defend himself. The only weapon available to him was the sword. Mr. Paucsek picked up the sword and warned Ms. Vasilescu to stay away but she did not retreat. She was very angry and raised clenched fists. The photographs show that the bedroom was a very small and cluttered area. Mr. Paucsek reasonably believed that Ms. Vasilescu was going to continue her assault on him. It was in these circumstances that Mr. Paucsek stabbed the complainant and did so in self-defence. In the dire situation he found himself, Mr. Paucsek could not reasonably be expected to surgically pinpoint a less vulnerable area than the torso of Ms. Vasilescu. He stabbed Ms. Vasilescu once and the force used was not excessive. Moments later he called 911.

[24] I appreciate that Mr. Paucsek’s use of samurai sword to defend himself is a unusual feature of this case. There is no evidence that the accused deliberately put it by his bed for either an offensive or defensive purpose. His statement to Detective Seguin suggests that he was aware the sword was accessible in the bedroom. However, given the violent attack he had suffered in February and Ms. Vasilescu’s attack upon him in the kitchen moments before, it was reasonable for him to grab the nearest weapon in order to defend himself. And that is what he did. In all the circumstances, I am of the view that his response was proportional to the use of force that Ms. Vasilescu was using against him.

[25] On all of the evidence, I am satisfied that this is far more likely a case of self-defence within the meaning of s. 34 than not. Of course, Mr. Paucsek is not required to prove anything. The onus is upon the Crown to disprove each of the elements of self-defence beyond a reasonable doubt. I have more than a reasonable doubt.

[26] I find Mr. Paucsek not guilty. The charges are dismissed.

Released: September 7, 2023 Justice T. Lipson