ONTARIO COURT OF JUSTICE

DATE: February 5, 2026

COURT FILE No.: Barrie 24-38103166

BETWEEN:

HIS MAJESTY THE KING

— AND —

ALWAYNE SMART

Before Justice C.A. Brannagan

Heard on 9 October 2025 & 5 January 2026

Reasons for Judgment released on 5 February 2026

Mr. I. Kandola ..................................................................................... counsel for the Crown

Mr. P. Mota ................................................................................................ for the Defendant

C.A. Brannagan J.:

I. OVERVIEW

[ 1 ] On Friday, September 13 th , 2024, Alwayne Smart was walking in downtown Barrie. He was in possession of a large machete, sheathed within a case, that was concealed beneath his pants.

[ 2 ] Mr. Smart claims that he was in possession of this machete for a peaceful purpose – for culinary purposes, that is, to cut into coconut and sugar cane that he says he liked to purchase from a Jamaican cultural food store.

[ 3 ] But that afternoon, Mr. Smart used his machete for something else – he slashed another man in the face with it. The man’s cheek was cut, not enough that he required emergency medical services, but enough that his face was covered in blood.

[ 4 ] Mr. Smart says although he had never met this man, the man ran up to him and attacked him from behind. He claims that he used his machete in self-defence.

[ 5 ] The slashing of the man’s face was not the subject matter of this litigation, however – Mr. Smart was not charged with any weapon ‘use’ offence. Rather, police charged him with possessing a weapon for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code .

[ 6 ] The issue for this court to resolve is whether Mr. Smart possessed the machete for a peaceful purpose, or one that was dangerous to the public peace. That he used the machete in the manner described is relevant, though not dispositive, of this legal issue.

[ 7 ] These are my reasons for judgment on the trial that took place on October 9, 2025, and January 5, 2026.

II. SUMMARY OF THE EVIDENCE

[ 8 ] The Crown called three witnesses – one civilian, and two police officers.

[ 9 ] Mr. Smart testified in his own defence, after which the Defence called one further civilian witness.

[ 10 ] I start by noting that the testimony of the Crown’s witnesses was unchallenged by Mr. Mota. Neither their credibility nor their reliability was made an issue. Defence Counsel’s cross-examination of those witnesses was limited to expressing Mr. Smart’s theory of the case by way of the confrontation principle expressed through the rule in Browne v. Dunn : see R. v. McDonald , 2025 ONCA 807 , at para. 57 .

[ 11 ] The Defence sought to advance the following disputed factual issues only:

i. That Mr. Smart was attacked from behind before he withdrew and made use of his machete;

ii. That Mr. Smart swung his machete at the assailant but once, in self-defence; and,

iii. That the City of Barrie is host to a Jamaican-centric cultural food shop called TT’s Patty Shop.

[ 12 ] A summary of the prosecution’s uncontested evidence follows.

(i) The Prosecution’s Case

Witness #1 – Donna Cah-Henry

[ 13 ] The Crown’s first witness was Donna Cah-Henry. She was out front of Deluxe Taxi, at 98 Bayfield Street in Barrie, when something caught her eye near the intersection of Bayfield and Sophia Streets, just a stone’s throw away.

[ 14 ] She saw two men on the corner, one Caucasian and the other Black. She observed the Black man withdraw a machete from his pant leg and swing it at the Caucasian man. She described the machete as concealed beneath the Black man’s left pant leg, and it looked like he pulled the knife out from a sheath. The man had to bring his hand down into his pants, beneath his pant leg, to unsheathe it.

[ 15 ] She described the blade of the machete as being approximately 18” in length. She said it looked like a sword. It had a thicker blade, with a long and sturdy handle, unlike a kitchen knife. She identified this object in Exhibit #1, which was a black and white photograph of the machete and sheath later seized by police from inside a nearby Tim Hortons. The photograph is consistent with the witness’ description of the knife.

[ 16 ] Ms. Cah-Henry observed the Black man swing the machete once, outward and upward from his chest, leading with the back of his hand and towards the other man’s face. She observed the blade strike the other man in the face and observed blood trickling down his face. She testified that the strike was not solid, more of a scrape. She did not think the Caucasian man required emergency medical assistance. She said that after the incident, the Caucasian man walked past her and made some utterances about him belonging to a gang and referring to the Black man as a pedophile who was going to die.

[ 17 ] She did not see anything leading up to the incident. She did not see the Caucasian man either antagonize or strike the Black man in any way.

[ 18 ] She did observe the Black man re-sheathe his machete and then walk past her into the Tim Hortons that is next to Deluxe Taxi. She described that coffee shop as very tiny, no seating, and if there were two people inside it would be crowded. She next saw the Black man once the police showed up and brought him out in handcuffs.

[ 19 ] Ms. Cah-Henry recalls this incident because, having lived in the city her whole life (she is middle-aged), she was startled to see something like this happen in downtown Barrie. She believed that the Black man with the machete was the aggressor.

[ 20 ] She testified that she was not familiar with TT’s Patty Shop.

Witness #2 – Officer Robin Dore

[ 21 ] Officer Dore had been a police officer with Barrie Police Service (BPS) for close to 20 years, since 2007, and was on uniformed patrol on September 13 th , 2024.

[ 22 ] Around 4PM, he received a call for two males fighting, one with a machete. Several units responded. He attended at the area of Bayfield and Ross Streets, at the Tim Hortons. Upon arrival, he observed that another officer had a Black male suspect in-custody. He described the Tim Hortons as being walk-in and drive-thru only, the interior being very small, with a horseshoe or L-shape counter, and room for only 3-4 customers.

[ 23 ] He made an in-dock identification of Mr. Smart being the person who was in-custody when he arrived at the Tim Hortons.

[ 24 ] He testified that there were several officers on-scene who were trying to gather information, locate the victim of the machete slashing, locate the machete, and speak with witnesses. He testified that police could not locate the victim. Nor could they locate the machete. Pursuant to a search-incident to his arrest, the police located only a boxcutter on Mr. Smart’s person, inside a satchel. He was released unconditionally.

[ 25 ] Some minutes later, after Mr. Smart had left, PC Dore went into the Tim Hortons in furtherance of his investigation. He described a little counter, a small alcove to the left of the entrance, where he found the sheathed machete. He seized the weapon. He subsequently located Mr. Smart, about 15 minutes later, around Maple Avenue and Dunlop Street, where he arrested him.

[ 26 ] When asked about TT’s Patty Shop, he testified that it “does not ring a bell”.

Witness #3 – Officer Michael La Prada

[ 27 ] Officer La Prada had been a BPS officer for 6.5 years. He responded to the call for service concerning a male swinging a machete in the downtown core. He arrived at the Tim Hortons at Bayfield and Ross Streets.

[ 28 ] Officer La Prada was looking for a Black man with a machete. Upon arrival, a bystander directed him into the Tim Hortons, where the suspect was. He parked his cruiser in front of the entrance doors and immediately observed one male Black inside the coffee shop. Given the nature of the call, the officer drew his firearm and conducted a gunpoint arrest. The suspect exited the store, empty handed. He described the suspect as initially uncooperative and confrontational at the steps of the entrance door, although he did not elaborate further. The suspect eventually yielded, turned around, and gave the officer his hands for cuffing.

[ 29 ] He identified the suspect as Alwayne Smart. He made an in-dock identification of the defendant.

[ 30 ] Search-incident to arrest, Officer La Prada searched Mr. Smart’s satchel and person. He discovered a boxcutter inside the satchel, but no machete. After discussions with a BPS Sergeant, police determined that they lacked probable cause to arrest him, and Mr. Smart was released unconditionally.

[ 31 ] Subsequently, Officer La Prada learned that Officer Dore had discovered the discarded machete inside the Tim Hortons. The next time he saw Mr. Smart was while he was in the custody of Officer Dore on Maple Avenue. Officer La Prada received custody of Mr. Smart and transported him to the police station for charge processing.

[ 32 ] He acknowledged that there were several patty shops downtown, but that he was not familiar with TT’s Patty Shop.

(ii) The Case for the Defence

Witness #2 – Paul John Kelly

[ 33 ] The Defence elected to call two witnesses in Mr. Smart’s defence – first, the defendant himself, and then a civilian witness by the name of Paul John Kelly. I will describe Mr. Kelly’s evidence first.

[ 34 ] Mr. Kelly is a resident of Barrie. On September 13 th , 2024, he was driving southbound along Bayfield Street, approximately 40km per hour, on his way home from work. When he arrived at the corner of Bayfield and Sophia, he observed a Caucasian man approach a Black man from behind. He observed the Caucasian man run 5-10 feet before punching the Black man in the back of the head.

[ 35 ] He did not see anything before this assault, or after it. Nor did he testify to having heard any utterances made between either man.

[ 36 ] He drove on to the Tim Hortons. Minutes later, while in the drive-thru, with the customer service window to his left and the sidewalk along Bayfield to his right, the Caucasian man walked past him. He noticed, for the first time, blood on the right side of the man’s face. Mr. Kelly did not see how it was that the man’s face had become bloodied.

[ 37 ] Mr. Kelly went to the Deluxe Taxi and spoke with Ms. Cah-Henry, who had told him that she had seen a man attacked by a knife. Mr. Kelly told her that he had seen a Caucasian man punch a Black man in the back of the head, but that he had not seen any knife. Like Ms. Cah-Henry, Mr. Kelly did not know either of these men.

Witness #1 – Alwayne Smart

[ 38 ] Alwayne Smart elected to testify in his own defence.

[ 39 ] During his evidence-in-chief, Mr. Smart testified that he is Jamaican. He testified that on September 13 th , 2024, he was on his way to a Jamaican food store called TT’s Patty Shop in downtown Barrie.

[ 40 ] He said the store sells natural drinks, coconuts from the tree, and sugar cane. He testified that he frequents the store, almost daily, to buy and consume the coconuts and sugar cane sold there, and that he was headed there that afternoon for that purpose. After purchasing these natural products, Mr. Smart said that he would go down to the waterfront to enjoy them.

[ 41 ] He testified that the machete and sheath depicted in Exhibit #1 were his. He said that he possessed the machete for culinary purposes only. He testified that he used the machete for both cutting into the coconut and for shaving the sugar cane but emphasised that the machete was especially useful for the coconut. He testified that he always took the machete with him when he was going to TT’s Patty Shop, for these purposes.

[ 42 ] Mr. Smart did not identify where in Barrie TT’s Patty Shop was.

[ 43 ] He acknowledged that around 4PM on September 13 th , 2024, he was walking southbound along Bayfield Street when he saw a person coming in his direction along Sophia Street. They arrived at the intersection at roughly the same time, with Mr. Smart arriving at Sophia Street first. He was a bit in front of the other man.

[ 44 ] He described the man as Caucasian, short, a little shorter than himself, with low cut hair, scabs on his skin, sores on his face and his arm. He testified that he had never seen him before.

[ 45 ] He said the man was very angry, shouting words at him, and that he had struck Mr. Smart in the back of his head/neck, without cause or warning. He believed that man had a syringe, but he was not sure because he did not see a syringe. He did not describe being stabbed or stuck with a needle or other sharp object.

[ 46 ] Mr. Smart testified that after he was punched from behind, he turned around, pulled his machete out and swung it once in the direction of the man. He said the man was pursuing him, coming towards him, saying that he was going to kill Mr. Smart if he did not leave Barrie. He claims that he was defending himself from further attack from the man by swinging his machete at him. He denied that his machete contacted the man.

[ 47 ] He testified that after he swung his machete at the man, he put it away and walked into the Tim Hortons. He said that he did not know where the man went, or whether the man was following him, as Mr. Smart had just continued walking along his way.

[ 48 ] The Crown cross-examined Mr. Smart, which started with a recounting of his criminal record. His record includes the following entries:

i. 2007: Possession of Controlled Substance for the Purpose of Trafficking, $500 fine;

ii. 2013: Failing to Comply with Recognizance, 13 days pre-sentence custody and $50 fine;

iii. 2015: Assault, Suspended Sentence + Probation;

iv. 2020: Assault and Criminal Harassment, 90 days custody and probation;

v. 2023: Failing to Comply with Release Order (sentence not noted);

vi. 2025: Trafficking in Schedule I Substance and Possession of Controlled Substance for the Purpose of Trafficking, 4 years custody.

[ 49 ] During cross-examination, Mr. Smart claimed for the first time that he suffered from short-term memory loss, and that he takes medication for various mental health diagnoses. He claims to have had this memory problem since 2011. He admitted that his memory was weak. He testified that his medication impacts his ability to remember things, like details, particularly in respect of the kinds of questions that the Prosecutor was asking of him concerning the details of his criminal record.

[ 50 ] Mr. Kandola asked Mr. Smart what brought him to Barrie in September of 2024. His evidence on this point was equivocal. Mr. Smart said that he had been released from charges in Orillia and was staying at a local shelter. Initially, he could not or would not provide the address at which he had been staying at in Barrie. He repeatedly stated that he was having problems remembering where he was staying at that time. He testified that he did not want to give a wrong answer, did not want to lie, but that effectively he was of no-fixed-address, and that he had been staying between unnamed friends’ houses.

[ 51 ] The Crown pressed Mr. Smart about his memory and his ability to be truthful. Mr. Smart admitted that he had lied to the court in 2020 about his guilt with respect to those convictions. He said that he lied so that he could get out of custody to attend at his mother’s funeral. He described misleading the court as lying to himself: “I can’t lie to the court”. He agreed that there could be serious consequences in lying to the court, and that it was a serious thing to mislead a judge. He maintained that he did not mislead the judge in 2020, despite the court having canvassed the plea inquiry with him. He disagreed with the Prosecutor that he was capable of lying in circumstances that suited him.

[ 52 ] Mr. Smart testified that he had the machete in question for about a year prior to the incident at issue. He said he bought it from a friend. He admitted that he had concealed the machete on his person on September 13 th , 2024, but that he only carried it so that he could cut coconut and sugar cane from TT’s Patty Shop on that date.

[ 53 ] He testified that he only used the machete against the Caucasian male to defend himself, after the man had assaulted him from behind. He acknowledged that he could have continued walking away from the male, as opposed to having swung the machete at him, and that there were no obstructions preventing him from avoiding further confrontation or escalation by leaving.

[ 54 ] He denied that he possessed the machete to threaten or intimidate. He testified that he did not strike the man in the face with the machete because, he says, the man blocked it with his hands. He did not get the chance to hit him. He denied seeing any blood and denied that he made the man bleed. He swung the machete once and then the man walked away. Mr. Smart also walked away. He said that he didn’t see where the man went after this interaction.

[ 55 ] Mr. Smart acknowledged that he was in possession of two cell phones but claimed that only one of them was operational. He conceded that having a cell phone gave him the opportunity to call police for help. He testified that he did not call police, but that it was not like he didn’t choose to call police for help; he said he knew that the lady at the taxi depot (Ms. Cah-Henry) had called the police, so he knew that they would be coming.

[ 56 ] Mr. Smart denied that he intended to hide the machete because he knew police were en route. He claimed that the machete was not hidden at all, because there was nowhere inside the Tim Hortons to hide it. He acknowledged that the machete did not belong inside the Tim Hortons where he left it. He denied the suggestion that he had done anything wrong by swinging his machete in the direction of the man’s face.

[ 57 ] He testified that he left the machete inside the Tim Hortons because he knew the police were coming, and that he left it inside so as not to escalate conflict with the police when they arrived; he did not want to be perceived by police as being in possession of a weapon. Mr. Smart testified that when the police arrived, he was arrested at gunpoint; he did not want to get shot by the police.

[ 58 ] He did not tell the police that he was attacked. He did not remember telling police whether he suffered any injury from this attack. He did not tell the police where the machete was. He repeatedly denied trying to hide the machete.

[ 59 ] Mr. Smart denied being the aggressor in the machete incident. He testified that he drew the machete in self-defence only and “that’s why I did not use excessive force”. He stated that he only ever possessed the machete as a tool for his food – coconut and sugar cane. He denied possessing the machete for anything other than peaceful purposes and rejected the notion that because he was involved in a criminal lifestyle, he had possessed it as an offensive weapon to intimidate, threaten, or harm others. He referred to his machete as “not a weapon, it’s a tool”.

[ 60 ] Mr. Smart acknowledged that, after the police released him unconditionally, he did not return to the Tim Hortons to recover his machete. He repeatedly claimed that he did not “hide” the machete. He denied that he left it inside the coffee shop to dissociate himself from it. He denied that he left it inside the coffee shop because he knew that he had just committed a crime with the machete and that he was evading arrest by leaving it there. He denied misleading the police about what had happened. He denied that he was a threat to anyone by possessing the machete as he did on September 13 th , 2024.

III. SUBMISSIONS OF THE PARTIES

(i) Defence Submissions

[ 61 ] Mr. Mota for the Defence provided the court with the Court of Appeal’s decision in R. v. Horner , 2018 ONCA 971 , which sets out the two elements that the Crown must prove beyond a reasonable doubt to make out the offence under s. 88 : (1) possession of a weapon; and (2) possession for a purpose dangerous to the public peace.

[ 62 ] Mr. Mota contended that it is the second element – whether the machete was possessed for a dangerous purpose – that is the issue for this court to resolve.

[ 63 ] To resolve this issue, the Defence submits that the court must ascertain Mr. Smart’s original intention in possessing the machete. To that end, Mr. Mota argued that Mr. Smart’s original intention was culinary, not offensive: he frequented TT’s Patty Shop to buy coconuts and sugar cane, and the machete was used to cut these items, which require a strong blade.

[ 64 ] On the facts of the case, Mr. Mota submits that Mr. Smart was walking peacefully in the area of Bayfield and Sophia when he was randomly attacked by a stranger. That this occurred was corroborated by Defence witness Paul Kelly, who testified that he saw the Caucasian male punch Mr. Smart in the back of the head.

[ 65 ] Mr. Mota argues that Mr. Smart reacted reflexively in self-defence, swinging the machete at the strange assailant only once before walking away.

[ 66 ] With respect to the self-defence claim, Mr. Mota submits that the swipe was not intended to injure but to create distance. There was no evidence of premeditation or intent to intimidate. Concealment of the machete was explained as the only practical way to carry the machete safely.

[ 67 ] With respect to the credibility issues raised by the Crown, Mr. Mota argued that past dishonesty (pleading guilty in 2020 for unrelated reasons) does not mean that Mr. Smart was lying now.

[ 68 ] Concerning the police interaction at the coffee shop, Mr. Mota submitted that Mr. Smart placed the machete down inside Tim Hortons to avoid escalating the situation with armed officers, not to hide evidence.

[ 69 ] Ultimately, Mr. Mota submitted that Mr. Smart’s original purpose in possessing the machete was for a peaceful, culinary purpose. His reaction to being assaulted from behind was reasonable under the circumstances. Therefore, the Crown has failed to prove possession for a dangerous purpose beyond a reasonable doubt.

(ii) Crown Submissions

[ 70 ] Mr. Kandola for the Crown emphasized that Mr. Smart’s intent in possessing the machete as a weapon, not as a culinary tool, can be inferred from his conduct and the surrounding circumstances, including that:

i. He was walking in downtown Barrie with a machete ;

ii. That the machete was concealed in his pant leg, and its ease of access, is some evidence of Mr. Smart’s intention in possessing the machete as a weapon, not as a culinary tool;

iii. The machete was quickly and seamlessly resorted to during the altercation;

iv. The machete was actually used as a weapon, in that it was swung and caused injury to the other man’s face. This was corroborated by the two independent witnesses who had observed blood on the man’s face;

v. Even if Mr. Smart used the machete in self-defence, the act was dangerous and disproportionate to the threat that he would have been defending against, which was a single punch;

vi. Mr. Smart hid the machete inside the Tim Hortons when he knew that the police were en route; and,

vii. His failure to retrieve the machete after being unconditionally released shows a conscious effort to dissociate himself from the weapon , showing consciousness of guilt.

[ 71 ] Mr. Kandola submits that Ms. Cah-Henry’s evidence corroborated the fact that Mr. Smart had the machete and swung it, striking the man in the face with it.

[ 72 ] Mr. Kandola submits that Mr. Kelly’s evidence did not establish a clear chronology, though he asks the court to accept that his observation of blood on the man’s face suggests machete use.

[ 73 ] Concerning Mr. Smart’s evidence, the Crown submits that his evidence was inconsistent, marked by long pauses and evasive answers. His admission that he had previously misled a court (by pleading guilty to an offence so that he would be released from custody to attend at his mother’s funeral) shows he is capable of lying when it suits him. Mr. Kandola submits that Mr. Smart’s claimed memory issues and mental health struggles were little more than convenient explanations to divert from his unwillingness to be forthright with the court.

[ 74 ] Mr. Kandola submits that the court should have no difficulty in finding Mr. Smart guilty of the offence beyond any reasonable doubt. From the machete’s concealment to its quick use and ultimate disposal, the Crown argues that Mr. Smart possessed the machete for a purpose dangerous to the public peace . That Mr. Smart is guilty of this offence is reinforced by the fact that he hid the weapon, he did not report having been attacked when the police arrived, and he declined to retrieve the machete to dissociate himself from it, given that it was used as a weapon just minutes earlier.

IV. THE LAW

(i) The Offence of Weapons Dangerous

[ 75 ] Section 88 of the Criminal Code reads:

88(1) 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.

[ 76 ] The section creates two separate 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”. The offence as alleged in this case is charged as the former.

[ 77 ] The definition of “weapon” is found in s. 2 of the Code :

weapon means any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person.

[ 78 ] The governing law for s. 88 offences is set out in the reasons of Major and Bastarache J.J. in R. v. Kerr , 2004 SCC 44 . In that case, the Justices found that the offence requires the Crown to establish two things to make out this offence: (1) that the accused possessed a weapon; and (2) that the purpose of that possession was one dangerous to the public peace: Kerr , at paras. 23-24 .

[ 79 ] Justices Major and Bastarache determined that a hybrid subjective-objective test is the proper approach to be applied in the determination of purpose: the trier of fact must first determine subjectively what the accused’s purpose was. This determination may involve a consideration of objective criteria. The question is what the accused knew would probably flow from his possession, regardless of whether he desired it or not. Subsequently, the trier of fact must determine objectively whether that purpose was, in all the circumstances, dangerous to the public peace.

[ 80 ] The Justices found that, within s. 88 , the concept of “public peace” refers generally to a state of order or to the normal state of society, but violence is not always and without exception a danger to the public peace. It is for the trier of fact, based on all relevant factors, to determine whether the purposeful act would, in the circumstances, have endangered the public peace.

[ 81 ] The use of a weapon in a dangerous manner, without more, is insufficient to establish that the purpose for which it was possessed was dangerous to the public peace: R. v. Haraszti (1980), 5 W.C.B. 238 (Ont. C.A.) .

[ 82 ] The law requires that there must be some proof of the formation of the intent to possess the weapon for a dangerous purpose, with that intention having been formed preceding its actual use: R. v. Bissonnette (1990), 10 W.C.B. (2d) 253 (Ont. C.A.) ; R. v. Cassidy , [1989] 2 S.C.R. 345; R. v. Proverbs (1983) , 9 C.C.C. (3d) 249 (Ont. C.A.); R. v. Flack , [1969] 1 C.C.C. 55 (B.C. C.A.).

[ 83 ] There is no obligation on the defendant to prove that he had a lawful excuse for carrying an item that could be used as a weapon; it is always for the Crown to prove that the item was a weapon and to prove the dangerous purpose: R. v. Rent , [1999] O.J. No. 3688 (Ont. C.A.).

[ 84 ] In assessing the circumstances to determine whether the weapon was possessed for a purpose dangerous to the public peace, the following factors have been identified to assist trial judges:

i. The conduct does not have to occur in a public place to constitute a danger to the public peace;

ii. Conduct directed at only one person can constitute possession for a purpose dangerous to the public peace;

iii. The court must look beyond the actual use of the weapon and consider whether the defendant intended to use it for that purpose;

iv. A defendant’s innocent intent in initially taking the possession of a weapon may shift to a dangerous one;

v. If a defendant is lawfully in possession of a weapon, its unpremeditated use for a purpose dangerous to the public peace out of sudden anger or annoyance does not make out the offence. The formation of the unlawful purpose must precede the use of the weapon by a meaningful interval;

vi. A defendant may possess a weapon for defensive purposes as well as for a dangerous purpose. It depends on all the circumstances, including the nature of the weapon, the circumstances in which it came into the defendant’s possession, the defendant’s explanation for possessing the weapon, and the actual use made of the weapon.

See: R. v. Culleton , 2008 MBQB 315 , [2008] M.J. No. 411 (Q.B.); R. v. Kerr , supra; R. v. Nelson (1972) , 8 CCC (2d) 29 (Ont. C.A. ) ; R. v. Calder (1984), 1984 ABCA 45 , 11 C.C.C. (3d) 546 (Alta. C.A.); R. v. Chomenko (1974) , 18 CCC (2d) 353 (Ont. C.A. ) ; R. v. Sulland (1982) , 2 CCC (3d) 68 (B.C. C.A).

[ 85 ] The general principle is well established that in the absence of evidence proving a purpose dangerous beyond a reasonable doubt, the defence of self-defence avails the accused: R. v. Leschyshyn (1973) , 11 C.C.C. (2d) 13 (Ont. C.A.).

[ 86 ] However, the possession of a weapon for a defensive purpose must be considered on the totality of the evidence heard at trial, and even where used defensively the initial possession of the weapon, if for a purpose dangerous, can still sustain a finding of guilt: R. v. Nelson (1972) , 8 C.C.C. (2d) 29 (Ont. C.A.).

(ii) Admissibility and Use of an Accused’s Previous Convictions

[ 87 ] Evidence of “bad character” unrelated to the charge for which a criminal defendant is on trial is generally inadmissible at trial: R. v. Corbett , [1988] 1 S.C.R. 680, at para. 27 .

[ 88 ] A legislative exception to that general rule is found in section 12 of the Canada Evidence Act , which permits the questioning of a defendant about whether they have been convicted of an offence. The cross-examination of an accused person about their prior record is conducted as part of the “usual course” of criminal proceedings: R. v. Marshall , 2025 ONCA 638 , at para. 47 , citing R. v. R.D. , 2019 ONCA 951 , at para. 13 .

[ 89 ] The prosecution is circumscribed in the extent to which the prior convictions of an accused who testifies may be used. Questioning is limited to the facts of the conviction, including the offence of which the accused was convicted, the date and place of the conviction, and the punishment imposed. Cross-examination of the accused cannot extend to the conduct on which the conviction was based, unless the accused puts their character in issue: R. v. M.C. , 2019 ONCA 502 , at para. 55 ; R. v. Hussein , 2026 SCC 2 , at para. 49 .

[ 90 ] Generally, the convictions on an accused’s record go only to the accused’s credibility, that is, to their testimonial trustworthiness: Marshall , supra , at para. 48 ; M.C. , supra , at paras. 53-54 ; R . v. Farrell , 2011 ONCA 572 , at paras. 5-6 ; Hussein , supra , at para. 58 .

[ 91 ] The weight to be assigned to an accused’s criminal record in assessing their credibility is variable. Convictions for offences involving dishonesty or false statements will have a greater bearing on the likelihood of an accused’s truthfulness, as will offences that demonstrate a disregard for court orders or the administration of justice: M.C. , supra , at para. 56 ; Hussein , supra , at paras. 79-81 .

[ 92 ] When weighing the probative value of a given conviction, judges should consider “whether the accused’s criminal record makes it more likely that the accused is not the type of person to tell the truth or respect the authority of the law”: Marshall , supra , at para. 57 , citing R. v. King , 2022 ONCA 665 , at para. 185 .

[ 93 ] For a conviction to have sufficient probative value, “it must permit the trier of fact to infer that the accused has a specific capacity or willingness to be dishonest”: Hussein , supra , at para. 79 (italics in original).

[ 94 ] The prior convictions of an accused are not to be used for propensity reasoning: the fact of their prior offending conduct cannot be used to find that they are the type of person to have committed the offence with which they are now charged: Marshall , supra , at para. 49 ; King , supra , at para. 141; R. v. Hamilton , 2009 ONCA 267 , at paras. 7-9 ; Hussein , supra , at para. 36 .

(iii) After-The-Fact Conduct Evidence

[ 95 ] Generally, “[a]fter-the-fact conduct evidence will be relevant if it makes a particular inference more likely, as a matter of logic and human experience”. However, such evidence will not be relevant “when the conduct is ‘equally consistent’ with the proposed inference and an alternative inference”, meaning “that the conduct is not capable, as a matter of logic, common sense, and experience, of favouring one inference over another”: Marshall , supra , at para. 110 , citing R. v. Ethier , 2023 ONCA 600 , at para. 59 , citing R. v. Calnen , 2019 SCC 6 , at paras. 106 , 108-12 and 124.

[ 96 ] However, “[t]hat there may be a range of potential inferences does not render the after-the-fact conduct null. In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them”: Marshall , supra , at para. 113 , citing Calnen , at para. 112 .

[ 97 ] If the conduct cannot be said to be “equally consistent” with any alternative inference (i.e., if the conduct favours an inference of guilt), it is up to the jury to decide which inference (if any) it accepts, and how much weight to give to it. This may require determining whether the post-offence conduct is related to the crime before the jury rather than some other reaction or culpable act: Marshall , supra , at para. 114 , citing Calnen , supra , at paras. 124, 133, 135, 144-45 .

(iv) Self-Defence

[ 98 ] The law of self-defence is set out in section 34 of the Criminal Code :

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.

[ 99 ] Subsection 34(2) sets out a list of factors that triers must consider in relation to the third factor, 34(1)(c), being the reasonableness of the act in the circumstances at issue.

[ 100 ] The three inquiries under s. 34(1) are helpfully conceptualized as:

i. The Catalyst : Did the accused reasonably believe that force or the threat of force was imminent?

ii. The Motive : Was the act committed to defend or protect?

iii. The Response : Was the act reasonable in the circumstances?

See: R v Khill , 2021 SCC 37 , at para. 51 (and through to para. 67).

[ 101 ] The self-defence criteria are to be assessed through a modified objective lens, where reasonableness is ascertained in view of the defendant’s personal circumstances, but anchored in contemporary social norms of acceptable behaviour: Khill , supra , at paras. 54-56 .

[ 102 ] Importantly in this case, the final inquiry under s. 34(1)(c) examines the accused’s response to the use or threat of force and requires that “the act committed [be] reasonable in the circumstances”. The law of self-defence requires proportionality and rejects excessive self-help violence. The ultimate question is what a reasonable person would have done in similar circumstances: Khill , supra , at para. 62

[ 103 ] As the Supreme Court of Canada stated at paragraph 67 of Khill : “If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person’s assessment of threats to himself or herself, or others .”

V. APPLICATION OF THE LAW TO THE FACTS OF THIS CASE

[ 104 ] The Information upon which Mr. Smart was tried before this court alleges that he “did have in his possession, a weapon, to wit a knife, for a purpose dangerous to the public peace”. There is no question that the machete seized was a large knife, which was a weapon, or that Mr. Smart possessed it. The only question is the purpose for which Mr. Smart possessed it.

[ 105 ] In scrutinizing a witness’ evidence, the court considers the witness ’s credibility and their reliability. This is a notoriously “difficult task that requires trial judges to ‘articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events’”: R. v. Ramdeo , 2025 ONCA 492 , citing R. v. Gagnon , 2006 SCC 17 , at para. 20 .

[ 106 ] Some of the intangible elements perceived by trial judges in assessing a witness’ credibility (i.e., truthfulness), include their responsiveness, candour, and whether their evidence is internally and externally consistent. Reliability assessments relate to the accuracy of their evidence, including their ability to perceive, recall, and recount events reliably.

[ 107 ] Intentions can be inferred from the objective circumstances in which conduct occurs. Credibility findings may be informed by any number of factors, including but not limited to prior inconsistent statements, implausible explanations, motive to fabricate, and conduct that is consistent with consciousness of guilt.

[ 108 ] I begin with an assessment of Mr. Smart’s evidence.

(i) Prior Dishonesty in Court Proceedings

[ 109 ] Mr. Smart was cross-examined at length by the Crown about his prior criminal convictions. He admitted that in March of 2020, he pleaded guilty to assault and criminal harassment not because he was guilty, but to secure his release from custody to attend at his mother’s funeral. He acknowledged that he told the court he was guilty even though, by his account, he was not – an admission that he minimized as “lying to himself”, while simultaneously accepting the seriousness of misleading a judge.

[ 110 ] While it may be that he was motivated to plead guilty for the reason stated, the validity of that plea cannot be called into question in the absence of something more than the kind of emotional pressure described: R. v. Debouk , 2025 ONCA 427 , at para. 8 .

[ 111 ] Mr. Smart’s acknowledgment of his prior dishonesty in court proceedings is direct evidence of his willingness to make false assertions in a courtroom when it suits his interest, and it materially undermines his credibility in these proceedings. I find that he has a specific capacity or willingness to be dishonest.

(ii) Criminal Record Bearing on Credibility

[ 112 ] Mr. Smart’s criminal record reflects multiple convictions – for assault, criminal harassment, failures to comply with court orders, and serious drug offences. While the fact of his record alone does not automatically render him incredible, and the crimes of violence offer little probative value about his capacity for honesty, his convictions for offences that demonstrate a disregard for court orders and the administration of justice have the greatest adverse impact on his credibility: M.C. , supra , at para. 56 ; Hussein , supra , at paras. 79-91 .

(iii) Evasive, Non-Responsive, and Internally Inconsistent Evidence

[ 113 ] Mr. Smart’s manner of testifying under cross-examination was marked by long pauses , reluctance to answer , and evasive formulations such as “I don’t want to say something that is a lie.” He struggled with basic, objective details – including where he was living and where he was coming from – offering tentative guesses rather than clear answers. He stated that he had short-term memory problems; however, the selective nature of his uncertainty – precise when helpful in-chief, vague when unfavourable in cross – reduces the reliability of his account. I find him to be an unreliable historian.

(iv) Implausible Explanations about the Machete

[ 114 ] Mr. Smart says he carried the machete for “culinary” purposes related to coconuts and sugar cane. Yet he concealed the machete inside his pant leg , easily allowing him to reach down inside of his pants to draw it – conduct more consistent with concealment of a weapon than with innocently transporting a kitchen tool.

[ 115 ] He further acknowledged carrying the machete in this concealed fashion on any day he claimed to be heading to TT’s Patty Shop, which he said was almost every day. In other words, he walked through downtown Barrie almost daily with a large machete concealed in his pants, a practice that is objectively inconsistent with a benign purpose. He did not testify as to where TT’s Patty Shop was, nor did he testify that he had either gone there before 4PM that day, or after his unconditional release from Tim Hortons. Other than Mr. Smart’s testimony, which I largely reject, the defence presented no evidence to support the assertion that TT’s Patty Shop exists, that they sell coconuts and sugar canes, or that Mr. Smart had ever been there.

[ 116 ] I find Mr. Smart’s explanation in this regard to be implausible. I find his claim about carrying the machete to cut coconuts from TT’s Patty Shop to be little more than a convenient device through which to cloak his true intentions, being that his possession of the machete was intended for offensive use if deemed necessary.

(v) Conduct Consistent with Consciousness of Guilt

[ 117 ] After the altercation, Mr. Smart left the machete in an alcove inside the Tim Hortons , he did not identify its location to the police who were actively looking for it, and he left it there after he was released – all conduct strongly suggestive of an effort to dissociate himself from the weapon he had used just minutes earlier. But this is not the only inference that can be drawn from Mr. Smart’s disposition of the weapon.

[ 118 ] Mr. Smart’s testimony that he left the machete where he did to avoid conflict, escalation and ultimately to avoid being shot is compelling. To discard a machete when faced with a police officer seeking to arrest him at gunpoint is an eminently reasonable action for anyone in Mr. Smart’s shoes to have taken.

[ 119 ] But that explanation does not end the inquiry. Where there are a range of potential inferences it will be for the trier to determine which inferences they accept and the weight to be ascribed to them: Marshall , supra, at para. 113 , citing Calnen , supra , at para. 112 .

[ 120 ] If Mr. Smart’s true intention in discarding the machete was to avoid conflict with responding officers, he could have simply dropped the machete as soon as he walked away from the man he had used it against, having already neutralized the perceived threat. He did not. Instead, he walked into the nearby coffee shop rather than continuing onward to his purported destination of TT’s Patty Shop. He did not testify that he stopped into Tim Hortons for a double-double and a donut, or for any reason other than to discard the machete.

[ 121 ] Mr. Smart testified in cross that he did not call the police because he knew that Ms. Cah-Henry had done so. He immediately went into the Tim Hortons and placed the machete where police ultimately discovered it. I find that Mr. Smart did so to hide the machete before the police arrived; I reject the submission that he discarded it only after their arrival. The coffee shop alcove became a close and convenient hiding spot, out of public view, where Mr. Smart could easily dissociate himself from his machete.

[ 122 ] His decision not to bring the machete out with him during the gunpoint arrest was a sensible one, but it was secondary only to his initial purpose in secreting the weapon in the alcove. That he failed to disclose its location to police, or retrieve it after his unconditional release, is further evidence of his intention to dissociate himself from the item that he knew was both possessed by him, and used, as a weapon.

[ 123 ] I find this conduct to be consistent with his consciousness of guilt of having possessed and used the machete for a purpose dangerous to the public peace.

(vi) Inconsistency with Independent Civilian Evidence

[ 124 ] Mr. Kelly’s testimony corroborated Mr. Smart’s evidence that he was struck from behind by the Caucasian male. However, Mr. Kelly did not see any interaction between the men either before or after the assault, and his evidence is chronologically incomplete in that regard. It was only later that Mr. Kelly observed blood on the man’s face when he walked past him in the Tim Hortons drive-thru. His evidence was candid, reliable, and credible, and I have no difficulty accepting it in-full.

[ 125 ] Ms. Cah-Henry observed Mr. Smart draw his machete from concealment and swing it at the other male, striking him in the face. She observed blood on the man’s face. Her evidence was also chronologically incomplete. But it was also candid, reliable, and credible, and I believe her.

[ 126 ] I find that Mr. Kelly observed the first part of the described interaction between Mr. Smart and the Caucasian man, and Ms. Cah-Henry saw the second part. Neither saw the entire incident, including the possibility of any interaction between the two men that might have led up to the interaction, but together their evidence paints a coherent narrative of what happened at the intersection of Bayfield and Sophia.

[ 127 ] Mr. Smart, by contrast, denied that he had struck the man at all. He denied that he made the man bleed. He minimized his swinging of the machete in the direction of the man’s head as merely trying “to create distance”. He denied knowing what had happened to the man after this interaction, which flies in the face of the corroborated fact that they both continued in the same direction of the Tim Hortons, at the same time. That Ms. Cah-Henry had observed Mr. Smart enter the Tim Hortons around the same time that Mr. Kelly had observed the Caucasian male walk past him while in the drive-thru confirms this.

[ 128 ] I reject Mr. Smart’s evidence on these bases. I accept that of the independent civilian witnesses.

(vii) Self-Defence Narrative not Persuasive

[ 129 ] Mr. Smart asserts he was punched from behind and feared that his assailant had a syringe , yet he conceded he did not see a syringe and provided no corroboration for that belief. Even accepting that a punch occurred, the proportionality of responding by drawing a concealed machete and swinging it on a public street at the head of another man weighs against a benign purpose of possession.

[ 130 ] While I accept that the first two inquiries for a self-defence claim under s. 34(1)(a) and (b) are met in this case, I reject the submission that Mr. Smart’s response was in any way proportionate to the threat faced, for the following reasons:

i. Mr. Smart acknowledged that his assailant was smaller than him;

ii. Mr. Smart acknowledged that he suffered a punch to the head only;

iii. Mr. Smart acknowledged that his assailant was unarmed;

iv. Mr. Smart acknowledged that he had two cell phones in his possession, one of which was functional and with which he could have called for help; and,

v. Mr. Smart acknowledged that there were no obstructions preventing him from running away from the man, rather than engaging him with a large knife.

[ 131 ] It is also telling that Mr. Smart claimed he did not call police to report what had happened to him because he knew that Ms. Cah-Henry had already done so. And yet, when police did arrive, he failed completely to mention to them what had happened to him. In other words, he did not call the police or tell them about what had happened because he wanted to distance himself from having used his machete as a weapon.

[ 132 ] In short, I find that in these circumstances, Mr. Smart’s swinging of the machete at another man’s face was unreasonable, disproportionate, and was nothing more than a gratuitous act of self-help violence. A reasonable person in similar circumstances would not have conducted themselves in this way and certainly would not have meandered off in the same direction as their assailant, claiming to have no regard as to where their attacker had gone or was going, as Mr. Smart testified to having done in this case.

[ 133 ] Accordingly, I reject Mr. Smart’s exculpatory explanations and assign limited weight to his factual assertions only where the independent civilian witnesses corroborate them. I do not believe Mr. Smart, and his evidence does not raise any reasonable doubt.

[ 134 ] I accept in-full the independent and credible evidence in the record, which is the unchallenged evidence of the two police officers, and the two independent civilians.

[ 135 ] Based upon the totality of the evidence in this case that I accept and the reasonable inferences to be drawn therefrom — including: the nature of the weapon (a large machete); the circumstances under which the accused had it in his possession (concealing the machete in his pants, as he walked through downtown Barrie); his own explanation for that possession (to cut open a coconut and to shave sugar cane); and the use to which he actually put it (he slashed a man in the face with it in response to being punched) — I am not left with any doubt whatsoever that Mr. Smart possessed his machete for a purpose dangerous to the public peace.

VI. DISPOSITION

[ 136 ] In the result, I find that Mr. Smart’s machete was intended for use if deemed necessary, and that use was for a purpose that was dangerous to the public peace.

[ 137 ] He is guilty of the offence as charged.

Released: February 5, 2026

Signed: Justice Craig A. Brannagan