Ontario Court of Justice

Date: May 27, 2024

BETWEEN:

HIS MAJESTY THE KING

— AND —

JARED BURKE

Before: Justice H. Borenstein

Reasons for Judgment released on May 27, 2024

Counsel: Ms. J. Walia.......................................................................................... counsel for the Crown Mr. D. Mideo and Mr. H. Tse.............................. counsel for the accused Jared Burke

BORENSTEIN J.:

[1] Jared Burke is charged with possession of a weapon for a purpose dangerous to the public peace, carry a concealed weapon, assault with a weapon and aggravated assault, all in relation to events occurring at 7:30 in the morning at Sam’s convenience store at Sherbourne and Dundas. Jared’s brother Jessie left Jared’s apartment nearby looking to buy crack cocaine. I will refer to Jessie and Jared by their first names to distinguish them.

[2] At Sam’s, Jessie was introduced to Omar Roberts who agreed to sell him cocaine. While inside Sam’s at the ATM, a disagreement arose as to the amount of cocaine being purchased and whether Jessie had money for the purchase. Jared phoned Jessie who spoke cryptically. Jared knew the area could be dangerous and was worried Jessie might be in trouble. Jared armed himself with a knife, placed it in a sheath and clipped it to his pants. He left his apartment and skateboarded to Sam’s arriving within two minutes. Inside Sam’s, he saw Omar Roberts and two others near Jessie. Jared approached Jessie, Roberts and two others by the ATM. Within seconds, a fight broke out. The events inside Sam’s were captured on the store’s video system without audio. Both Burke brothers immediately began fighting with Roberts. The two other people by the ATM, a store employee named Surjit Singh and Lisa Irving, tried to pull one or the other Burke brothers off Roberts during the fight as it was two on one. Roberts was carrying a satchel and its contents scattered on the floor. This included money and a knife which can be seen on the ground. Jared is seen on video punching Roberts repeatedly and, at one point, when he stops punching, Jared is seen holding his own knife in his hand. The Burke brothers left the store after the fight. Within a few seconds of their leaving, Roberts picked up his knife and chased them. The events outside Sam’s were also captured on video. Roberts runs toward Jessie who turns towards him. As he turns, Roberts stabs Jessie Burke twice in the chest. As he was doing so, Jared, who was steps in front of Jessie and still holding his knife, charged and tackled Roberts knocking him from Jessie. Jared’s knife cut Roberts in the face or chest. As Jared and Roberts fell to the ground, Jared stabbed Roberts three times within a second or two, in very quick succession in the side or torso. The flying into Roberts and stabbing all took less then four seconds. The Burkes then fled but Jessie collapsed around the corner. Jared threw away his knife and called 911. Roberts also collapsed. Both Jessie and Omar Roberts were seriously injured and hospitalized for considerable time. Jared and Roberts were both charged. This is Jared’s trial. Roberts is facing his own trial.

[3] I heard from Omar Roberts, the employee Surjit Singh, Lisa Irving and Jared. Medical records and the videos of the events were filed on consent.

[4] There is no issue concerning identity or injuries. The issue in this trial is primarily self defence or defence of others as it relates to the assault with a weapon and aggravated assault charges. With respect to the weapons charges, the defence argues Jared’s initial purpose for arming himself was self defence and therefore he is not guilty of either weapons charge.

[5] Turning to the evidence in more detail.

Omar Roberts

[6] Before Omar Roberts testified, he asserted protection under the Charter and Evidence Act as he is facing his own upcoming trial.

[7] He gave evidence in a calm, measured way and commented on events as the video was played. As noted, the video depicts much of what occurred, both inside and outside Sam’s.

[8] Roberts admits dealing drugs out of Sam’s. He called 7:30 in the morning the “Jonesing” hour where people who have been using drugs all night come looking for more. There are users who hang around outside Sam’s. Purchasers, if unknown to Roberts, usually approach one of them and they bring them to Roberts. Ironically, Roberts as well as the other witnesses, described the area of Sam’s and Sherbourne and Dundas as very dangerous.

[9] Roberts testified that a male known as “Stinky” told him someone, Jessie as it turns out, was outside looking to buy $40 of crack cocaine. Roberts thought Jessie did not look the “type” who would hang around Sam’s as he was too clean cut but Stinky said Jessie had been hanging around earlier and Roberts agreed to sell him crack cocaine. As Jessie and Roberts walked to the ATM inside Sam’s, Jessie wanted to see the crack. Roberts showed Jessie a $40.00 piece of crack cocaine. Jessie said he had asked for $100.00 of crack, not $40.00. At trial, Roberts testified he now suspects Stinky probably told Jessie he would get him $100.00 of crack but then told Roberts Jessie wanted only $40 of crack and Stinky would keep the difference. In any event, once at the ATM, Jessie kept pressing its buttons saying the ATM not working. Roberts and his friend Lisa accused Jessie of not having any money. Jessie kept trying. Surjit, the store employee, tried to reset the ATM. As this was happening, Jessie called his brother Jared. Roberts asked why he was calling his brother.

[10] Jared entered the store within two minutes holding his skateboard. He walked up to Jared and Jessie at the ATM and asked what was going on. Jessie said “this guy” was trying to rip him off. Jared pointed at Roberts and said “who, this guy”? Roberts immediately denied the accusation and began to walk away. Jared blocked his path putting his foot out, holding his arm and pushing Roberts toward a chip stand. Roberts immediately reached out and grabbed Jared’s throat in response and a fight broke out. That can all be seen on video.

[11] Roberts testified at first, he thought this was a fight. He then heard racist comments and thought it was a racist attack. He testified Jared was holding him down as Jessie was punching him in the groin.

[12] The video shows both Burke brothers punching Roberts repeatedly and Roberts swinging at them. It is clearly a two on one attack. Lisa Irving and Surjit Singh were trying to hold one or the other Burke brothers back but the Burkes kept fighting. The fight took place in various places throughout the store. Roberts was wearing a satchel which opened and emptied on the floor. One can see money, papers and a knife strewn on the floor. Roberts admitted it was his knife. Roberts is not seen holding that knife.

[13] At one point, Roberts is seen running for the door to leave Sam’s but is pulled back in. Roberts is then knocked to the floor by Jared and Jessie. Punches were flying. Roberts testified Jared was punching him while holding the butt end of a knife. He testified he was holding Jared’s hand to prevent being hit with the knife but was lightly cut in the chest. Jared is seen on video getting up from punching Roberts and can be seen holding a knife. Jessie is seen on video kicking Roberts repeatedly. Roberts believed Jared wanted to get Jessie out of the store. Jared eventually grabbed Jessie to leave. Jared picked up his skateboard, Jessie picked up his hat and the Burkes left. Jared left first immediately followed by Jessie. As Jessie left, he told Roberts that if he goes outside, he is dead.

[14] The Burkes left Sam’s. Roberts got some paper towels from the cashier, wiped blood from his face, picked up his knife from the floor and ran out the store after the Burkes holding his knife.

[15] The events outside took well under 10 seconds.

[16] Roberts ran toward the Burkes. As Jessie turned toward Roberts, Roberts stabbed him directly in the chest. Jared, still holding his knife, lunged at Roberts knocking Roberts away from Jessie. As he lunged, his knife connected with Roberts’ face or collar bone. As they fell to the ground, Jared stabbed Roberts three times in the side and armpit within seconds. The Burkes then fled.

[17] Roberts agreed in cross-examination that he was not done stabbing Jessie when Jared knocked him away and he might have gone after Jared next.

[18] As a result of his injuries, Roberts spent a month in the hospital and a further month in a rehabilitation hospital.

Surjit Singh Aulakh

[19] Surjit Singh Aulakh, is 29 years old. He works in a pasta factory and has worked at Sam’s on and off for nine years. He described Sam’s clientele as drug dealers and addicts. He was working the morning when Jessie and Roberts were at the ATM. He saw Jared come in and place his shoulder against Roberts pushing him into the corner. He would not let Roberts go. Roberts grabbed Jared’s neck and they began fighting. It was two on one. Singh tried to pull them apart. Roberts was on the floor and the Burke brothers kept punching him. Singh did not see any weapon until Roberts picked the knife up from the floor and ran out the store.

Lisa Irving

[20] Lisa Irving was at Sam’s that morning. She testified she deals drugs. Jessie approached her outside Sam’s looking to buy cocaine. Roberts agreed to sell Jessie crack cocaine. Irving thought she would receive $50.00 from the $100.00 sale. When Jessie could not withdraw money from the ATM, she told him he did not have money. When Jared arrived, the two began beating up Roberts. Irving tried to hold Jared back. He told her he does not hit women. Jared was trying to get Jessie to leave Sam’s. Roberts was trying to get something from his satchel but everything fell out of his bag onto the floor, including his knife. Irving never saw Jared in possession of a knife inside the store.

Jared Burke

[21] Jared Burke testified. He is 32 years old and lives in an apartment near Sam’s. His 10-year-old daughter lives with him part time. His peripheral vision is impaired due to a congenital condition.

[22] Jared does mixed martial arts, has a black belt in karate and trains in the gym four times a week. It was clear from his evidence, including the language he uses, that he is very familiar with combat tactics and can well take care of himself.

[23] He has been to Sam’s before and considers the area rough. He thinks everyone is armed with some sort of weapon.

[24] Jared has a criminal record consisting of a drug possession charge from 2010, assault causing bodily harm in 2011 and an assault from 2019.

[25] On the date in question, Jared planned to spend the night with Jessie to celebrate Jessie’s three years of sobriety. Jessie threw himself a party and bought tickets to a bar for himself and friends. Many did not show up and Jessie became depressed. Jessie and Jared went to a bar and, unbeknownst to Jared, Jessie was drinking. They left the bar around 3:00 or 3:30 in the morning and walked for hours ending up back at Jared’s apartment near Sam’s. On the walk back, Jessie was stopping strangers asking where he could buy cocaine. Jared thought Jessie was “wasted” and was upset with him. They arrived back at Jared’s apartment with a friend named Heath. In Jared’s apartment, Jessie kept trying to leave to buy drugs. Jared physically held him back telling him he could get killed out there and could not leave. At one point, Jared slapped Jessie in the face to get through to him. In doing so, he knocked Jessie unconscious. Jared apologized and Jessie said he wanted to go home. Jared told Heath to call Jessie a cab. Shortly thereafter, a car honked and Jessie said it was his cab and left. After he left, Jared asked Heath which cab company he called and Heath said he never called Jessie a cab.

[26] Jared became angry and punched a table breaking it. He phoned Jessie who was speaking cryptically and said he was at Sam’s having trouble at the ATM. Jared knew Jessie was in trouble and panicked. He told Jessie to stay on the line and Jared would be right there. Jared left his apartment and grabbed his utility knife which was in a sheath by the front door. The knife had a fixed 7-8 inch blade marked with a US Marine Corps insignia. Jared clipped the knife and sheath to his waist. He testified he took the knife for protection in case it was needed. He felt a peace and stillness in the elevator which he knew would be broken as soon as he got outside. He skateboarded to Sam’s arriving in under two minutes and called Jessie again as he entered. Jessie said he needed Jared’s help. Jared entered and saw a group of who he called “gangsters” surrounding Jessie. We now know it was Roberts, Lisa and Surjit. Jared went up to the group. He testified Surjit “disengaged” and Jared did not consider him a threat. Jared testified he just wanted to grab Jessie and leave.

[27] Roberts was shouting, not disengaging. Jessie looked like he wanted to leave but Roberts would not let him. Jessie said Roberts was trying to rip him off. Jared replied “who, this guy, this is not happening”. He thought the gang were there to rob Jessie.

[28] Jared locked Roberts’ arm and stepped behind him. Roberts grabbed or punched Jared in the neck or jaw and the fight started. Jared did not want to fight with people he was pretty sure were armed and he considered everyone an enemy. Jared threw a jab and Roberts went down but got back up. Jared and Roberts scrambled down. He heard a blade hit the floor.

[29] Jared testified he did not see Roberts with a knife but, given his combat experience, Roberts looked like he was going to throw an “underhand penetrative move”. As a result, he put Roberts in what he called a “submissive” position where Roberts could not move. Jared took stock of the situation and was scared and being pulled from behind. We know now that it was Lisa and Surjit trying to pull Jared off Roberts. While Jared was holding Roberts, Roberts poked him in the eye. Jared thought he would lose his eye and swatted Roberts’ hand away. Roberts went for the knife so Jared stuck his fingers in Roberts’ eyes, Jared then got off Roberts and went to help Jessie who was engaging with someone else. Lisa “intercepted” Jared and put him against the fridge. She was strong. Jared told her he does not hit women. She said he would have to. He pushed her away and tackled Roberts who had just tackled Jessie. He knocked Roberts off Jessie and tried a “control and domination tactic” which is a chokehold. He was trying to figure out how he and Jessie could get out of Sam’s.

[30] Jared did not want anyone to know he had a knife as he did not want this to turn into a knife fight. He said he was outnumbered. He threw Roberts against the cash area, “slammed” him once or twice, threw him on the ground and began punching him in the head. He testified Roberts was trying to fight back and Roberts was the aggressor not letting the Burke brothers leave.

[31] Jared testified he tried to pull Jessie out many times but “they” would not let them go until they got what they wanted. Roberts kept getting up and Jared thought he had to knock him unconscious in order to leave. Jared noticed his own knife fell to the floor. He retrieved it and tried to put it in his waist band hoping no one would see it but it was broken and he could not place it in its sheath. He thought Roberts was knocked unconscious so he got Jessie and his skateboard and the Burkes left Sam’s. He held his knife in his hand but pointed it up toward his inner forearm, or “chambered” it as he left Sam’s so no one would see it. Jessie was behind him. When he was outside, he heard Sam’s door chime open. He knew “they” were coming and testified he had been anticipating this the entire time.

[32] Roberts exited Sam’s and immediately stabbed Jessie in the chest. As soon as he pulled the knife out, Jared lunged at Roberts knocking him away from Jessie. Jared was still holding his knife and it hit Roberts in the collar bone area as he tackled him. When they went down, he stabbed Roberts three times in his torso or back very quickly as they fell to the ground. Jared testified he was only trying to stop Roberts from stabbing and killing Jessie and his hands were moving faster than his brain. Jared testified as he tackled Roberts, their arms hit which prevented Roberts knife from striking Jared in the neck. Jared thought his knife broke after it hit Roberts in the collar bone but it did not. The entire exchange outside took under four seconds. He testified he pulled his punch on the 3rd occasion as he did not want to kill Roberts.

[33] Jared and Jessie then ran. Jessie became heavier and collapsed. Jared discarded his knife over a fence and called 911 which was initially busy. When he got through, he told the operator their location and that he stabbed someone. He was giving Jessie chest compressions and thought Jessie was going to die.

[34] In cross-examination, Jared agreed he has trained extensively in martial arts. He testified he armed himself with the knife because he did not know what he was getting into and did not want he or Jessie to die. He was going on a rescue mission. He was cross-examined as to why he did not call the police from his apartment when he thought Jessie was in trouble. He replied he did not think there was time and no crime had been committed. He also testified he did not think there would be violence though he knew violence was likely. He testified he was clearheaded throughout this incident although his adrenaline was at its maximum.

Submissions

[35] The Crown submits Jared Burke left his apartment, armed with a knife for a purpose dangerous, namely, looking to support Jessie in any fight that might occur, concealed that knife and, once he got to Sam’s, assaulted Roberts with a weapon inside Sam’s. The Crown submits that, once outside, Jared committed an aggravated assault in retaliatory anger. The Crown submits Jared’s evidence should be rejected as incredible. Any act of defence of self or others was excessive and unreasonable in all the circumstances.

[36] Burke submits he should be found not guilty of all charges. He acknowledges Roberts was largely credible in his testimony and most events were captured on video but submits there is a need for caution in accepting Roberts’ evidence given he is also facing charges. Jared submits he initially possessed the knife for defensive purposes, not for a purpose dangerous to the public peace and submits that is a complete defence. He further submits that same defensive purpose should apply to the carry concealed weapon charge. He submits that, inside the store, he was attacked first and he was defending himself or it was a consensual fight. He submits he never used a weapon inside Sam’s. He just retrieved it when it fell to the ground. Once outside, he submits he was acting in defence of his brother and his conduct was not excessive or unreasonable.

Analysis

[37] The onus is on the Crown to prove any of these charges beyond a reasonable doubt. Where defence are raised, such as defence of others, the Crown must disprove those defences beyond a reasonable doubt.

[38] There is no issue Burke carried a knife in a sheath without authorization. There is also no issue he fought with Roberts inside Sam’s and stabbed Roberts outside Sam’s and caused life threatening injuries to Robert.

[39] The real issues in this trial are, with respect to possessing the knife for a purpose dangerous, whether I have a doubt about Jared’s initial possession – was it for self defence and, if so, is that a defence and whether that defence also applies to the carry concealed weapon?

[40] With respect to the assault with a weapon charge inside Sam’s, whether this was a consensual fight, or self defence or defence of others and whether Jared used a weapon. With respect to the aggravated assault charge, whether I have a reasonable doubt about whether Jared was acting in lawful defence of his brother.

Carry concealed weapon. Possession of a weapon for a purpose dangerous

[41] I begin with the carry concealed weapon and possession of a weapon for a purpose dangerous charges.

[42] There is no doubt the knife in question was a weapon as defined in the Criminal Code. It was also concealed in a sheath. Indeed, in Jared’s own evidence, he wanted it concealed.

[43] Burke testified he took the knife because the area is dangerous and he might need it for protection. He, like most witnesses, described the area as dangerous with everyone carrying a weapon. As it turns out, Roberts himself had a knife not that Jared would have known that when he initially took it.

[44] Burke submits if I accept or have a doubt about Jared’s initial defensive purpose in possessing and carrying the knife, that ends the matter. He submits that purpose is a defence to both charges.

[45] The law is more nuanced than that. His initial purpose in possessing the knife is one important factor but not the only factor.

[46] The leading cases are Nelson (1972), 8 CCC 2d 29 (ONCA) from the Ontario Court of Appeal and Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371 from the Supreme Court of Canada.

[47] In Nelson, the Court held that a defendant’s subjective purpose of self defence was one factor but not determinative of the issue. All the circumstances must be considered in determining if an accused’s possession of a weapon, even for self defence, amounts to possession for a purpose dangerous to the public peace. There are sound policy reasons for this.

[48] Following Nelson, the Supreme Court decided Kerr.

[49] Kerr and Garon were inmates in a maximum security penitentiary. Garon and members of his gang threatened Kerr’s life. Even though Kerr routinely carried a weapon, on the day in question, he concealed an ice pick and knife in his pants to be ready to defend himself against Garon. Garon came up to Kerr and produced a knife. Kerr and Garon fought and stabbed each other. Garon died as a result. Kerr was charged with second degree murder and possessing a weapon for a purpose dangerous to the public peace. The trial judge accepted that Kerr possessed the weapon for self defence in order to deter or defend himself and acquitted Kerr of both the murder and weapons charges. The Alberta Court of Appeal upheld the acquittal on murder but overturned the weapons acquittal. The Supreme Court restored that acquittal (Binnie, J dissented) issuing four separate rulings on the point. Of three rulings which restored the acquittal. Bastarache, J. (Major, J. concurring) held the Court must first determine Kerr’s subjective purpose in possessing the weapon and then objectively determine whether that purpose was, in all the circumstances, dangerous to the public peace. He wrote, (para 38),

In my view, 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 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.

[50] Justices Fish and Deschamps also upheld the acquittal and agreed possessing a weapon for self defence does not, in and of itself, necessarily make the possession lawful. They found the trial judge did consider all the circumstances.

[51] Justice Lebel also acquitted Kerr but on the basis that the purpose in question was to be determined wholly subjectively with no objective assessment.

[52] Justice Bruce Duncan, in the 2012 decision of Ontario Court of Justice decision in Canning, reviewed the law in this area and held:

6. For a brief period of time in Ontario, it was the law that possession of a weapon for the purposes of self defence was not a purpose that was dangerous to the public peace. In fact it was considered to be the opposite, that is, a possession designed to preserve the peace: R. v. Thornton, [1971] 2 CCC 2d 225 (ONCA).

[53] He then reviewed Nelson and Kerr and held at paragraph 10,

On further appeal to the Supreme Court of Canada, the seven member Court restored the acquittal but was divided 2:2:2:1 in its reasoning. All members of the Court cited and agreed with Nelson that a defensive purpose was not determinative of the issue and the question of whether the possession was for a purpose dangerous to the public peace depended on all of the circumstances. All members of the Court agreed that in the circumstances immediately surrounding the fatal attack, the possession was not for a purpose dangerous to the public peace. Bastarache J. (Major J concurring) held that the crucial issue was whether the attack which the accused defended against was avoidable, which issue in turn involved a consideration of location, atmosphere, nature of the threat, imminence of the danger and actual use of the weapon (Para 38). Possession in a particular situation on a particular day to meet an immediate threat to one’s life with no real opportunity of avoiding it is not a threat to the public peace as such (Para 53) [2] [emphasis mine]

[54] He then wrote:

13. It really comes back to the “all of the circumstances” test from Nelson and the words of the section – is the possession for a purpose dangerous to the public peace or, to put it in negative terms, can it be said that it is not contrary to the public interest in the maintenance of peace and the control of violence and harm that the accused possess the particular weapon in the particular circumstances? The answer may involve several considerations: Is the possessor of the weapon unacceptably vulnerable without it (woman walking home at night); Can the situation of vulnerability be avoided by alternative means; Is the weapon potentially lethal (Nelson) or is it “modest”: (jack knife as in Sulland): Is it almost certain to be used, if at all, only in defence (woman at night) or might it readily be used as an instrument of aggression as well (gang members); Will its use in defence likely be excessive and potentially cause greater harm than the initial attack (Nelson)?

[55] Duncan went on to find Canning guilty based on his assessment of all the circumstances.

[56] Returning to Burke, based on Jared’s evidence and other witnesses’ on this point, I accept Jared’s initially took possession of the knife should he need it to defend himself or Jessie.

[57] But that does not entitle him to a defence in this case.

[58] An attack on Jessie was not imminent. It was completely avoidable. There is no suggestion an attack was imminent. There was no evidence Jessie told Jared he was being threatened, or could not leave. And the video shows Jared’s presence escalated the matter when he confronted and blocked Roberts. Then Roberts escalated it further by grabbing at Jared’s throat. This was not an imminent unavoidable attack. Far from it. From the very beginning, Roberts wanted to leave and was stopped by Jared.

[59] In all the circumstances, while I accept Jared initially took possession of the knife for potential defence, that does not amount to a defence as this was not an unavoidable situation, like in Kerr, where his possession was not for a purpose dangerous to the peace.

[60] Burke submits the same “defensive purpose” defence applies as well the carry concealed weapon charge. That defence has failed. Turning to whether he concealed the knife, the leading case is the Supreme Court’s decision in Felawka where the majority held the offence will be made out where the Crown proves beyond a reasonable doubt that the accused concealed an object he knew was a weapon. In order to prove concealment, the Crown must prove the accused took steps to hide the weapon so that it would not be seen by others. In the Ontario Court of Appeal decision of Gallagher, the Court affirmed the following instruction to the jury.

The second element of this offence, concealment is satisfied if a weapon is concealed to prevent others from knowing that the accused is carrying a weapon.

[61] In this case, according to Jared Burke’s own evidence, he intended to conceal the knife so no one would know he had it. He will be found guilty of carry concealed weapon.

Assault With a Weapon Inside Sam’s

[62] Turning to the assault with a weapon count relating to the fight inside Sam’s. Was Jared acting in self defence, was this a consensual fight and did he use a weapon?

[63] The fight inside Sam’s is seen on video. Initially, this might be seen as a consensual fight. However, it very quickly became two on one, with the Burkes repeatedly punching and kicking Roberts and they refused to stop even when Roberts was down or trying to leave the store. They refused to stop and kept delivering more punches and kicks. Jared’s conduct far exceeded any consent that may have been present when Roberts initially struck out at Jared by the chip stand. And if this was self defence, the amount of force used was excessive and unreasonable. It is clear from the video that the Burkes kept this fight going by continuing to repeatedly punch and kick Roberts even when Roberts tried to leave the store. Even if Jared did not initially appreciate that Singh and Irving were just trying to stop the attack on Roberts, that became clear within seconds.

[64] I reject much of Jared’s evidence about the fight inside Sam’s as inconsistent with what is plain on the video. He would often not admit what can be seen on the video. For example, he would not admit Roberts was trying to leave the store when he can clearly be seen to be trying to do so at 2:20 on the video. Jared would not agree the fight was two on one, he and his brother on Roberts. He would barely admit he was holding a knife when he got up from punching Roberts even though it could be seen on the video. He was asked if he was upset when Jessie left his apartment when he broke his table. He replied he was not and that he hated that table anyway and figured that was as good a time as any to break it. As a result of those answers, I reject much of his evidence concerning the fight inside Sam’s, but not all of it.

[65] Turning next to whether Jared used his knife during this assault. On the video, Jared is seen bending over Roberts, who is down, and punching him. When Jared stands up and steps away, he is holding his knife in his hand. Jared denies using it during this fight. Roberts testified Jared was butting him with the knife as he was punching him. Jared testified his knife fell to the floor and he reached down, picked it up and concealed it hoping no one would see it. The defence submits the video supports both Jared and Roberts. Based on the video, Roberts is very likely telling the truth, however, I am not sure beyond a reasonable doubt. Jared’s evidence that he picked it up is possibly true especially in light of Singh’s and Irving’s evidence that they never saw a weapon used. While I believe Roberts’ evidence on the events inside Sam’s, I have a doubt and Jared will benefit from that doubt. He will be found guilty of assault but not guilty of assault with a weapon.

Aggravated Assault

[66] Turning to the most serious charge, the stabbing of Roberts by Jared in response to Roberts stabbing Jessie.

[67] Jared stabbed Roberts four times, once as he lunged and then three times as they hit the ground. The injuries were extremely serious. Roberts was hospitalized for more than a month. When Jared stabbed Roberts, Roberts was in the process of stabbing Jessie in the chest when Jared pounced, knocking Roberts off Jessie and quickly stabbing him four times. The Crown submits Jared acted in retaliatory anger for stabbing Jessie, not in defence of Jessie. Alternatively, the Crown submits Jared used excessive and unreasonable force.

Self Defence

[68] Self defence and defence of others is codified in s. 34(1) of the Criminal Code.

[69] In assessing this defence, certain principles must be in mind.

[70] The burden rests on the Crown to disprove the defence beyond a reasonable doubt.

[71] It is important not to focus too heavily on a second-by-second assessment of the events as if someone in that kind of situation has the luxury of time and reflection, where they can pause and evaluate every second. No one, including Jared Burke, is expected to weigh with nicety the precise amount of force needed in defending himself or another and this is particularly so given the nature of the force used against Jessie in this case. It is therefore important to look at the events as a whole in assessing the defence.

[72] When assessing the reasonable of the force used by Jared, which is the real issue in this case, the Court to consider what a reasonable person would do in Jared’s circumstances. It is not enough that Jared Burke thought he was acting in defence of Jessie.

[73] Section 34(1) of the Criminal Code which provides:

Defence — use or threat of force

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.

[74] The Crown concedes the first factor has been met in this case, not the second two.

[75] As for the second factor, Jared’s purpose in stabbing Jessie, I am satisfied Jared acted, almost immediately, to prevent Roberts from stabbing and very likely killing Jessie and not in retaliation. And I accept the three stabs in the Torso, all within a couple of seconds, was to keep Roberts down and prevent the continuation of the stabbing.

[76] The issue is whether the Crown has disproved Jared’s actions were reasonable. S. 34(2) provides:

Factors

(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;

[77] Roberts was in the process of stabbing Jessie right in the chest. And he was attempting to continue to do so. It was happening very quickly. Roberts appears to be motivated by anger and revenge.

(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;

[78] Roberts’ use of force was not imminent, it was occurring. Something had to be done to stop him. There was no other option beyond immediate force.

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

[79] Jared and Jessie began this incident by inflicting a joint assault on Roberts. They left Sam’s and the assault appeared over. However, Roberts was determined to get revenge. Jared’s presence began this violent exchange.

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

[80] While both had weapons inside Sam’s, neither used them. Roberts however was using his knife with deadly force and intent.

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

[81] Jared is a very capable fighter and sees himself that way. He works out often and has a black belt. His outlook and manner of speech shows he sees himself as a military operative or combatant.

(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;

[82] The events outside were directly related to the assault inside. Roberts was seeking revenge.

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

[83] Just the events inside Sam’s.

(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.

Factor G is the Real Question to be Answered in this Case.

[84] Balancing these factors, and even bearing in mind Jared’s role in the incident, the events outside presented a lethal urgent situation. Roberts was in the process of stabbing and potentially killing Jessie. Roberts himself testified he was not finished. There was no option such as contacting the police or asking others for help other than force. I accept Jared’s evidence that he acted immediately to stop the potentially lethal attack that was occurring. The lunge, tackle and stabs all occurred for that purpose. While the 3rd stab to the torso may have been excessive, Jared was trying to keep Robert down so the attack would stop and the Burkes could leave. A finding that the third stab was excessive, in these circumstances, would be weighing with nicety the precise amount of force needed, a luxury Jared did not have. I come to this conclusion even bearing in mind Jared’s role in beginning this cascade of violence.

[85] To conclude, the Crown has not persuaded me that the force used by Jared to prevent this attack was unreasonable and Jared Burke will be found not guilty of aggravated assault.

[86] To summarize, Jared Burke will be found guilty of possession of a weapon for a purpose dangerous to the public peace, carry a concealed weapon and assault. He will be found not guilty of assault with a weapon and aggravated assault.

Reasons rendered: May 1, 2024 Reasons released: May 27, 2024 Signed: Justice H. Borenstein