CITATION: R. v. Avril, 2015 ONSC 2158

COURT FILE NO.: CR14100001740000

DATE: 20150407

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

DEVAN AVRIL

Ms. R. Maxwell, for the Crown

Mr. A. Vaughan, for Devan Avril

HEARD: March 10th, 11th, 12th, 13th and 16th, 2015

FORESTELL J.

REASONS FOR JUDGMENT

Overview

1Devan Avril is charged with aggravated assault and assault with a weapon. His trial on these charges proceeded before me over five days. The charges arise out of an incident that took place on June 27, 2013. Mr. Avril stabbed Hannington Kogo three times on that date. The injuries that were inflicted on Mr. Kogo were serious and life threatening. Mr. Avril raises the defence of self-defence.

2I will set out an overview of the evidence and issues in this case before turning to a more detailed review of the evidence and my findings of fact and conclusions.

3In June 2013 the accused, Devan Avril, was staying at an apartment leased by Jane Mbua, the wife of the complainant, Hannington Kogo. Mr. Avril stayed in one bedroom of the two-bedroom apartment. Ms. Mbua and her five-year-old son, Alton, slept in the other bedroom. Mr. Kogo had been in Alberta working for four to five months but returned to Toronto two to three weeks before June 27^th, 2013, the date of the incident in question. Mr. Kogo stayed in the bedroom with Ms. Mbua and Alton when he returned to Toronto.

4After he returned to Toronto, Mr. Kogo became convinced that Mr. Avril was having an affair with his wife. On June 27^th, 2013 Mr. Kogo confronted Ms. Mbua and Mr. Avril with his suspicions that they were having an affair. The confrontation and ensuing argument occurred in the living room of the apartment. Ms. Mbua left the apartment. She left without taking the time to put on shoes.

5On the evidence of Ms. Mbua and that of Mr. Avril, Mr. Kogo attempted to prevent Ms. Mbua from leaving the apartment. He followed her to the door and pulled on her shirt and ripped the shirt.

6According to Mr. Avril, when Mr. Kogo was near the exit of the apartment unit, Mr. Avril went to his bedroom to use his phone to call the police. Mr. Avril testified that Mr. Kogo entered the bedroom, continued to accuse him of having an affair with Ms. Mbua and held him by the back of his shirt and punched him repeatedly in the back of the head. According to Mr. Avril, as Mr. Kogo was punching Mr. Avril he was saying, “I’m going to kill you.” Mr. Avril was able to retrieve a knife from a bag on his floor and he used it to strike Mr. Kogo until Mr. Kogo released him. Mr. Avril then fled the apartment without his shoes on.

7Mr. Kogo’s version of the events that led to the stabbing differs dramatically from that of Mr. Avril. Mr. Kogo testified that he remained calm throughout his conversation with Mr. Avril and Ms. Mbua about his suspicions that they were having an affair. Mr. Kogo testified that Ms. Mbua left the apartment angrily and unimpeded. He testified that Mr. Avril left the living room area shouting and speaking in Patois. Mr. Kogo then decided that he might take his five year old son for an evening walk. He walked with his son from the living room toward the bedroom he shared with his wife and son. This took him past the bedroom of Mr. Avril. Mr. Avril was standing in the doorway of the bedroom with most of his body in the hallway. Mr. Kogo had to squeeze past him. When Mr. Kogo attempted to pass, Mr. Avril pushed him. As Mr. Kogo tried to keep his balance he felt a piercing pain. Mr. Avril walked towards the apartment exit. Mr. Kogo’s son told him that he was bleeding and Mr. Kogo then realized he had been stabbed.

8There is no dispute in this case that Mr. Avril stabbed Mr. Kogo three times and that the injuries were life-threatening. The issue is whether Mr. Avril was defending himself when he stabbed Mr. Kogo.

Positions of the Parties

9Section 34 of the Criminal Code, R.S.C., 1985, c. C-46, provides that a person is not guilty of an offence if: they believe on reasonable grounds that force is being used against them or that a threat of force is being made against them; and, the act that constitutes the offence is committed for the purpose of defending or protecting themselves from that force or threat of force; and, the act committed is reasonable in the circumstances.

10The onus is on the Crown to disprove self-defence beyond a reasonable doubt.

11The issue to be determined therefore is whether the Crown has proven beyond a reasonable doubt that at least one of the conditions for lawful self-defence was not present when Mr. Avril stabbed Mr. Kogo. In other words, has the Crown disproven either:

i) That Mr. Avril believed on reasonable grounds that Mr. Kogo was using force against him or threatening to do so; or

ii) That Mr. Avril stabbed Mr. Kogo for the purpose of defending or protecting himself from Mr. Kogo; or,

iii) That the act of stabbing Mr. Kogo three times with a knife was reasonable in the circumstances.

12The position of counsel for Mr. Avril is that Mr. Avril’s evidence should be accepted and that on his evidence he acted in lawful self defence when he stabbed Mr. Kogo. In the alternative, counsel submits that Mr. Avril’s evidence should at least raise a reasonable doubt. In the further alternative counsel submits that Mr. Kogo’s evidence is so lacking in credibility and reliability that I should not be satisfied beyond a reasonable doubt that Mr. Avril did not act in self-defence.

13The position of the Crown is that the evidence of Mr. Avril should be rejected and that the evidence of Mr. Kogo should be accepted. Crown counsel submits that Mr. Avril’s testimony was internally inconsistent and inconsistent with the other evidence in the case, particularly with the physical evidence. She further submits that Mr. Kogo’s testimony was credible and reliable. If Mr. Avril’s evidence is rejected and Mr. Kogo’s evidence is accepted none of the conditions necessary for lawful self-defence could be found to be present. In the alternative, the Crown submits that even if I accept the evidence of Mr. Avril, I should find that the force used by Mr. Avril was grossly disproportionate to the threat that he faced from Mr. Kogo and therefore I should find that self-defence has been disproven beyond a reasonable doubt.

14For the reasons that I will explain below, I have concluded that Mr. Avril must be found not guilty of the charges against him. I accept the central aspects of the evidence of Mr. Avril. When I consider his testimony in the context of the totality of the evidence I find it to be generally credible and reliable. Accepting that the stabbing occurred in the context of the struggle described by Mr. Avril I find that the act of stabbing Mr. Kogo was committed for the purpose of Mr. Avril defending or protecting himself and that the act was reasonable in the circumstances.

15In these reasons, I will review the evidence in detail and explain why I accept the evidence of Mr. Avril and reject Mr. Kogo’s account. I will then address the issue of the reasonableness of the force used by Mr. Avril.

The Evidence and Findings of Fact

Relationship between the parties and Living Arrangements

16Before reviewing the evidence of the stabbing, I will review the evidence of the relationship between the parties and the living arrangements at the time of the stabbing.

17Mr. Kogo and Ms. Mbua were married in September 2006. Their son Alton was born in 2007.

18Mr. Kogo acknowledged being charged with an offence against his wife about seven and a half years ago when she was about to give birth to their son. He testified that he did not remember the nature of the charge. He believed that this charge resulted in a peace bond. He was asked whether this was the only time he was charged with an offence in relation to his wife and he testified that he did not remember.

19Ms. Mbua testified that Mr. Kogo had been charged with assaulting her shortly before her son was born. The assault charge related to Mr. Kogo striking Ms. Mbua in her ‘belly’. She testified that Mr. Kogo was also charged with threatening her in a later incident.

20Mr. Kogo, Ms. Mbua and Mr. Avril all testified that they met in 2010 when Mr. Avril was a tenant in the home of a friend of Mr. Kogo’s and Ms. Mbua’s. In 2010 Mr. Kogo and Ms. Mbua and their son Alton were living together.

21Mr. Kogo testified that he was asked by his wife to leave the family home in 2011 or 2012 because they were having marital problems. He testified that he was out of the home for about 6 months. During the time that he was not in the home he became aware that Mr. Avril was staying with his wife and son. He testified that his wife explained to him that Mr. Avril was a roommate. Mr. Kogo subsequently moved back into the home. When he moved back in, Mr. Avril left the apartment. Mr. Kogo testified that he stayed with his wife in the apartment until he left to find work in Alberta in January 2013.

22Mr. Kogo returned from Alberta for a visit in April 2013. When Mr. Kogo returned to the apartment in April 2013 he discovered that his wife had rented one of the two bedrooms of the apartment to Mr. Avril. He was unaware of the financial arrangements between his wife and Mr. Avril.

23Mr. Kogo acknowledged that he was living away from the home for about six months in 2011 or 2012, but did not agree that he was ever ‘separated’ from his wife. Mr. Kogo’s evidence was not consistent on the issue of his separation from his wife. He initially testified that at the time of his testimony in this trial he was living in Waterdown, Ontario. In cross-examination he testified that Waterdown was his mailing address and that he lived with his wife in Toronto. He testified that he had been living with his wife since she came out of a shelter four months ago. At another point in his evidence he testified that he resided ‘on and off’ with his wife.

24Jane Mbua, Mr. Kogo’s wife, testified that she and her husband had been separated on and off since 2010. She testified that they are currently separated. They are not living together and she has filed for a divorce. When asked if there was a reason that Mr. Kogo might claim that he was not separated from her, Ms. Mbua testified that there is a stigma attached to divorce in their culture.

25Ms. Mbua agreed that she and her husband were living together at the time of the June 27^th, 2013 incident. She had invited her husband to live with them when he returned from Alberta. They were sharing the bedroom of the apartment and Mr. Avril was living in the second bedroom. Ms. Mbua testified that Mr. Avril had been staying in her apartment for about two months before the incident and that he had not stayed with her before that time. She testified that she did not receive any rent money from Mr. Avril, but was just helping him get settled.

26Mr. Avril testified that he had previously stayed in Ms. Mbua’s apartment for one to two months in 2012. He was not sure of the exact dates, but believed it was sometime between August and October. He was married and his wife lived in Timmins. He came to Toronto to work. He returned to Timmins because his wife needed surgery. He did not return to Toronto until 2013. When he returned he rented a room from Ms. Mbua. Mr. Avril testified that he paid Ms. Mbua $400 a month in rent. The evidence of Mr. Avril and Ms. Mbua was not consistent with respect to whether Mr. Avril paid rent for the apartment. I prefer the evidence of Mr. Avril on this issue. Mr. Kogo believed, as a result of what he was told by Ms. Mbua, that Mr. Avril was paying money for the room. In any event, whether Mr. Avril paid rent or how much he paid is not an issue that is important in my assessment of the events or of the credibility of any witness.

27At the time that Mr. Avril lived in the apartment, Mr. Kogo was not living in the apartment. During the period that he lived in the apartment in 2013, Mr. Avril saw Mr. Kogo only when he came for a visit in April and then when Mr. Kogo returned in June of 2013.

28Mr. Kogo testified that he was suspicious of the relationship between his wife and Mr. Avril. It had been suggested to him by friends that there was ‘something going on’ between Ms. Mbua and Mr. Avril. Mr. Avril, Mr. Kogo and Ms. Mbua all testified that prior to June 27, 2013 there had been no hostility or problems between Mr. Kogo and Mr. Avril.

29Mr. Avril and Ms. Mbua both testified that they had no romantic relationship. Mr. Avril was a tenant in the apartment and they were friends.

30I find that Mr. Kogo’s evidence with respect to his marital status was not credible or reliable. Crown counsel argued that any weakness in this aspect of Mr. Kogo’s evidence was not material to an overall assessment of his credibility and was explained by the cultural stigma adverted to by Ms. Mbua. I do not agree that this was a minor issue. Mr. Kogo’s attitude toward his wife and his marriage was a central factor in the confrontation that occurred on June 27, 2013. Mr. Kogo’s willingness to misrepresent that relationship in the witness stand is an important factor in assessing his overall credibility.

31I find that Mr. Kogo was not forthright when he asserted that he had no memory of the charges against him in relation to his wife. Mr. Kogo has no other criminal history. I do not accept that he would not remember when and why he was criminally charged. I find that he deliberately lied when he said that he could not remember the details of the charge against him. I find that this was part of a pattern of lying to present himself in the best possible light. I accept that he believed that his wife was having an affair with Mr. Avril. I find that this was upsetting to him.

Events leading up to the stabbing

32I will now move to the accounts of Mr. Kogo, Ms. Mbua and Mr. Avril with respect to the confrontation that preceded the stabbing.

33Mr. Kogo had attended an orientation at his new workplace on June 27^th, 2013. He visited a friend in Waterdown after the orientation. He consumed three tall cans of beer while visiting his friend. He left Waterdown at around 6:30 and arrived home about one hour later.

34Mr. Kogo testified that he had been speaking to Ms. Mbua about Mr. Avril in the weeks leading up to June 27^th, 2013. He asked Ms. Mbua to ask Mr. Avril to leave the apartment. Ms. Mbua had not agreed to ask Mr. Avril to leave. Mr. Kogo had asked Ms. Mbua if she and Mr. Avril were having an affair and she had always denied it. Mr. Kogo testified that he had been thinking about his suspicions about Mr. Avril on the day of the incident and on his drive back to the apartment before the incident. Mr. Kogo testified that his concerns about an affair between Mr. Avril and his wife had been ‘disturbing’ him for a while. He described his thought process about the relationship between his wife and Mr. Avril as a ‘build-up’. He had been thinking about it over the week and it culminated that day.

35Mr. Kogo and Ms. Mbua both testified that Mr. Kogo returned to the apartment on June 27^th, 2013 and went to take a shower. After his shower he came out to the living room. He asked his son to go to the bedroom because they were going to have an adult conversation. Ms. Mbua recalled that Mr. Kogo gave his son Timbits that he had picked up and asked him to go and eat them in the bedroom.

36Mr. Kogo testified that he told Ms. Mbua, “I have a question bothering me but I want to ask it in front of him (referring to Mr. Avril)”. Ms. Mbua then said “okay go ahead”. Mr. Kogo knocked on Mr. Avril’s door and said that he had something he wanted to discuss. Mr. Kogo testified that from the look on Mr. Avril’s face he appeared angry. Mr Avril came out to the living room.

37In the living room, after Mr. Avril came out and sat down, Mr. Kogo asked Ms. Mbua and Mr. Avril whether there was anything that he should know about them. He asked whether they had a relationship. Mr. Kogo testified that at the time that he asked Mr. Avril and Ms. Mbua whether they were having an affair he was fairly sure that they were having an affair. Mr. Kogo testified that if Mr. Avril had agreed that they were having an affair he would have said to Ms. Mbua, “Why do you need me? Let me go.”

38Mr. Kogo testified that after he asked the question, Mr. Avril immediately said “what kind of stupid question are you asking?” Mr. Kogo testified that Mr. Avril was visibly angry. His voice was raised, he gestured and he had an angry expression. Mr. Kogo testified that Ms. Mbua was also very angry. She responded to him in Swahili essentially saying, “What a stupid question.” Mr. Kogo said that he calmly said to them that no one had answered his question and that he had called them in to have a conversation.

39At this point, according to Mr. Kogo, his wife got up and walked to the door. At some point Mr. Avril also stood. Ms. Mbua was yelling. Mr. Avril had changed to Patois and was yelling and walking towards his bedroom. Mr. Kogo testified that Mr. Avril became visibly angry and Ms. Mbua ‘went ballistic’ but that he remained calm and was merely interested in having a conversation.

40When the voices were raised, Mr. Kogo and Ms. Mbua’s son, Alton, ran into the living room. Alton son asked why they were yelling and Mr. Kogo told him that they were not yelling but were just having an adult conversation.

41Ms. Mbua left the apartment. According to Mr. Kogo, she walked out of the apartment and he did not follow her or touch her or her clothing. According to Mr. Kogo, Mr. Avril went angrily to his bedroom yelling in Patois.

42Ms. Mbua and Mr. Avril give a very different account of the discussion that preceded the stabbing of Mr. Kogo. Ms Mbua testified that Mr. Kogo, after returning home and showering, sat in the living room with her and said “how do you know this guy?” Pointing at Mr. Avril’s room. Before she could answer him he said he should ask ‘this guy’ and he went to knock on Mr. Avril’s door. Mr. Avril came into the living room and sat down. Mr. Kogo asked Mr. Avril, “you – how do you know this woman?” Ms. Mbua testified that she became upset about being called ‘this woman’ and said that her name was Jane. She also asked why he was asking such a stupid question. Ms. Mbua testified that Mr. Avril said words to the effect of, “you brought me here to ask these questions? I am going back.” Ms. Mbua testified that all three of them had raised voices. She testified that Mr. Kogo appeared angry and that Mr. Avril also appeared angry.

43Around this time all three people in the room ended up standing. Mr. Kogo was positioned between Ms. Mbua and Mr. Avril and the exit. There was an argument between Mr. Kogo and Mr. Avril. At some point her son came in to the room and asked everyone to keep quiet. Ms. Mbua told Mr. Kogo to look at the child because he was scared. When Mr. Kogo turned his attention to their son, Ms. Mbua ran out of the apartment. She testified that she left because she felt that things could ‘get ugly’. She had a history of dealing with violent situations in her past and did not want to be around any violence. She was afraid. When she tried to leave the apartment Mr. Kogo grabbed the back of her tank top. The shirt ripped. Ms. Mbua continued out of the apartment and took the stairs to the lobby. She left the apartment without any shoes. She called 911.

44Ms. Mbua was asked to provide details of the argument between Mr. Kogo and Mr. Avril before she left the apartment and her reason for saying that she thought things would ‘get ugly’. She testified that she had blocked the memory and could not provide any details of what Mr. Avril or Mr. Kogo did to lead her to believe that there would be violence.

45Mr. Avril testified that he was in his room when Mr. Kogo knocked on his door and opened the door and asked “Can I have a word with you?” Mr. Avril came to the living room and sat down. Mr. Kogo said that he had some questions to ask. Mr. Kogo asked Mr. Avril how long he had known Ms. Mbua. Ms. Mbua asked “what kind of a question is that?” Mr. Avril said that it was okay and answered that he had known Ms. Mbua for a while or a year or two. Then Mr. Kogo asked how they met. Mr. Avril asked what kind of question that was. Mr. Avril testified that Mr. Kogo then asked “if I am dumb, answer the dumb question.” Mr. Avril testified that he then said, “no disrespect, I will not sit down talking to you and you calling me dumb and expect I will answer you. As a matter of fact I am done talking.” Mr. Avril then stood up to walk out of the room. Mr. Avril testified that Mr. Kogo then punched him in the back of the head. At that point, Mr. Kogo and Ms. Mbua’s son, Alton, ran into the room.

46Mr. Kogo was standing in a way that Mr. Avril could not pass him to get out of the living room. Mr. Kogo said that they were not finished talking. Mr. Kogo told his son to go back to the bedroom. At that point, Ms. Mbua ran out the apartment door. Mr. Kogo ran after her and grabbed her shirt. Mr. Avril went to his room to get his mobile phone. He intended to call the police. He also heard Ms. Mbua say that she was going to call the police.

47I accept the evidence of Mr. Avril and Ms. Mbua that Mr. Kogo stood in a way that blocked them from leaving the living room and that he grabbed Ms. Mbua’s shirt as she ran from the apartment. I reject Mr. Kogo’s evidence that Ms. Mbua walked from the apartment and that he did not follow her. I do not accept Mr. Kogo’s evidence that he was calm during the discussion. He testified that he had been thinking about the relationship between Mr. Avril and Ms. Mbua for some time. He was sure that there was an affair. It is not credible that he was calm about this belief. This evidence is not consistent with the evidence of Ms. Mbua. It is not consistent with the evidence that Alton came out of the living room and asked why they were yelling. I find that all three of the participants raised their voices. I find that Mr. Avril somewhat downplayed his level of emotion at the point of the confrontation. I accept Mr. Avril’s evidence that Mr. Kogo punched him. I find that following the punch, Mr. Avril attempted to retreat from the confrontation into his bedroom. This part of his account is supported by Ms. Mbua’s testimony that Mr. Avril said that he was going back to his room.

The stabbing

48I will now review the evidence of the stabbing. At the time of the stabbing, Ms. Mbua had left the apartment. The only people in the apartment were Mr. Kogo, Mr. Avril and Alton, Mr. Kogo and Ms. Mbua’s five year-old son.

49The evidence of the events at the time of the stabbing consists of the testimony of these three individuals and the physical evidence gathered at the scene.

50Mr. Kogo testified that after Ms. Mbua left the apartment and Mr. Avril went into his room, Mr. Kogo was left in the living room with his son. He decided that they might take an evening walk. He told his son, “let’s go to the bedroom”. He intended to change his clothes for a walk. His son walked ahead of him into the bedroom. As he passed the bedroom of Mr. Avril he saw Mr. Avril in the doorway. Mr. Avril was placed in a way that made it hard for Mr. Kogo to pass. He had to squeeze by and as he did, Mr. Avril pushed him on his chest. Within a split second of the push Mr. Kogo had a piercing pain in his chest. Just after this occurred his son came to the door of the bedroom and told him he was bleeding. He saw Mr. Avril moving toward the kitchen. He realized that he had been stabbed and went toward the kitchen to wash off the blood. When Mr. Kogo got to the kitchen he saw Mr. Avril near the doorway. Mr. Avril appeared to be smiling and had a knife in his hand.

51Mr. Kogo denied touching, grabbing or striking Mr. Avril at any point.

52Mr. Kogo tried to wash away the blood at the kitchen sink and then made his way with his son to the elevator and down to the lobby to get help. He collapsed in the lobby.

53Mr. Avril gave a different account. He testified that he was in his bedroom when Mr. Kogo came through the door to his bedroom and began punching him in the back of the head. Mr. Kogo was accusing him of having an affair with his wife and said, “I am going to kill you”. All that Mr. Avril said was “drop me”. Mr. Kogo held him by the back collar of his shirt. On about the fourth punch, Mr. Avril fell to the ground at the foot of his bed. Mr. Kogo continued to punch the back of his head. Mr. Avril saw his bag on the floor. It was a bag he usually took to work. He kept a knife in the bag to cut fruit. He looked into the bag and took the knife out of the bag. They wrestled on the floor. Mr. Avril pushed backwards and pushed Mr. Kogo into the closet. Mr. Kogo held onto Mr. Avril’s shirt and Mr. Avril was pulled back into the closet as well. Mr. Avril tried to get up but Mr. Kogo pulled him back and said he was going to kill him. Mr. Avril testified that he was afraid for his life. He believed that his life was in danger. He turned and swung the knife two to three times at Mr. Kogo. He felt Mr. Kogo release him and he ran from the apartment without any shoes. His shirt was torn during the struggle.

54Mr. Avril’s account of the details of the struggle was not entirely consistent. He said in examination in chief that he looked in the bag and saw the knife and that he then used the knife. In cross-examination he said that he merely reached in to the bag and did not know what implement he had grabbed until after the struggle was over. His explanation for this difference in his testimony was that everything happened very fast.

55After he left the apartment, Mr. Avril went into the stairwell. He took off his shirt because it was torn and hanging off of him. He put the knife on a ledge under the stairs between the second and third floors. When he heard voices and a radio he came out of the stairwell. A police officer asked if he was Devan and then asked him to turn around. He was arrested and handcuffed. Mr. Avril’s statements to the police following his arrest were conceded to be voluntary. The police asked him to show them where the weapon was and he did so.

56The arresting officers confirmed that Mr. Avril had taken them to the knife. Mr. Avril had his shirt over his shoulder when he was arrested. The shirt was seized and retained by the police. Although the police officers could not recall the state of the shirt at the time of the arrest, when the shirt was removed from the property bag at trial it was ripped. The body of the shirt was torn from the arm at the back and around the front of the shirt.

57The arresting officers confirmed that Mr. Avril complained of soreness to his head or a headache. Officer Davydova testified that she looked at the side of Mr. Avril’s head and saw what could have been swelling. However, she also looked at the right side and it appeared the same. She did not know if his head was swollen or if this was the shape of his head. Neither officer saw any obvious injuries on Mr. Avril.

58D.C. Jeff Johnston was the Forensic Identification Officer who attended the scene to take photographs and look for any physical evidence. He documented drops of blood on the floor of the hall outside the bedroom occupied by Mr. Avril. The blood led into the kitchen where there was a great deal of blood in the kitchen sink. There was also blood leading to the door of the apartment and to the elevator. He did not see any bloodstains on the carpet of Mr. Avril’s bedroom.

59D.C. Johnston was asked by the Crown whether he would expect to find blood in the bedroom if the stabbing occurred in that room. D.C. Johnston said, “It all depends. It is very difficult to say in any one situation. I’ve seen…circumstances where somebody gets stabbed and they really don’t bleed at all or they may not bleed right away because if they’re wearing clothes it starts to absorb some of the clothing, so they don’t start to bleed until later on. And in other circumstances somebody could bleed right from the start. So it’s very difficult to …make any sort of assumptions based on where the blood is as to where the actual stabbing occurred.”

60Detective Constable Johnston testified that he saw no apparent disturbance in either of the two bedrooms. D.C. Johnston was asked about the closet area of the bedroom. The photographs show bags on the bottom of the closet on top of other items. D.C. Johnston testified that he did not look in the bags and could not say where any of the items had been before the stabbing.

61Mr. Avril testified that there were two suit bags on the floor of the closet that had been hanging up prior to the struggle. Mr. Avril also pointed to a jean jacket that was on the floor and had been hanging up. He pointed out two items that had been stored on the top of the closet but that were on the floor in the photographs.

62Alton, the five year-old son of Mr. Kogo and Ms. Mbua, was present in the apartment at the time of the stabbing. Alton was seven when he testified at the trial. His videotaped police statement was played and adopted by him. Initially, Alton denied that he was the boy on the video, but eventually admitted that he was the boy on the video. He was clearly uncomfortable testifying and expressed his wish to leave on more than one occasion. In his testimony, he added details to the account that he had given to the police. He said that he saw Mr. Avril with a knife. He also said that he had come out of the room to see if ‘his brother’ was alright. He referred to Mr. Avril as his brother. In his police statement, Alton described seeing Mr. Avril ‘hit’ his father and then seeing blood. He demonstrated the motion of the ‘hit’ by Mr. Avril by drawing his closed fist across the front of his body at about chest level. Near the beginning of the interview Alton was asked by the police if he knew how the blood got on his father. He said, “by hitting on Devan then he ripped his shirt then he run away then Devan look sad going jail.”

63The evidence of Alton is consistent with and supports the version of events described by Mr. Avril. The motion demonstrated by Alton during his videotaped police statement is consistent with the motion described by Mr. Avril of reaching across his own body and slightly behind to strike Mr. Kogo.

64Alton’s evidence is also consistent with the evidence of Mr. Avril that his shirt was ripped during the struggle. There is no explanation for the ripping of Mr. Avril’s shirt based on the account given by Mr. Kogo. Crown counsel has argued that I should find that Mr. Avril ripped his own shirt while he was in the stairwell to make it look as if there had been a struggle. There is no evidence to support this scenario. It is also inconsistent with Alton’s statement about the shirt ripping. If Mr. Avril did that in the stairwell, Alton could not have seen it.

65Overall, while recognizing that there are some inconsistencies in Mr. Avril’s evidence I accept his version of the stabbing. He was inconsistent with respect to whether he knew that he was holding a knife rather than another implement. I do not accept that he was unaware that he was holding a knife. He had no real explanation for hiding the knife in the stairwell. He simply said that he was not thinking straight. I do not attach much weight to the evidence that Mr. Avril hid the knife. He testified that he was not thinking straight. He had to be aware that he had injured Mr. Kogo. His actions are consistent with an initial panicked reaction. However, he surrendered himself to the police almost immediately and he led the police to the knife.

66Mr. Avril’s account of the details of the struggle was otherwise consistent and credible. Mr. Avril’s evidence that there was a struggle in which he was held by the shirt and struck by Mr. Kogo in the bedroom is consistent with the physical evidence of the ripped shirt. It is consistent with the evidence of Alton. While D.C. Johnston did not see obvious signs of disturbance in the bedroom, he could not say whether things had fallen from the hangers in the closet. The absence of bloodstains in the bedroom is not inconsistent with Mr. Avril’s account.

67I reject Mr. Kogo’s account of the incident based on his lack of general credibility and his lack of candour with respect to the events that preceded the stabbing. I also reject his evidence because it is not consistent with the ripped shirt of Mr. Avril. I do not accept that Mr. Kogo was calm. I find that he was enraged and that he reacted violently to his belief that Mr. Avril was having an affair with Ms. Mbua.

Summary of Findings of Fact

68I find that Hannington Kogo was not a credible witness. He was not honest about his past or present relationship with Ms. Mbua. I do not accept that this can be explained by cultural factors such as the stigma associated with separation and divorce. Even if I accepted that Mr. Kogo misrepresented his relationship because of his concern over cultural stigma, this would not enhance the credibility or reliability of his evidence. The relationship between Mr. Kogo and Ms. Mbua and Mr. Kogo’s reaction to his belief that Ms. Mbua was having an affair with Mr. Avril are central issues in the trial. If Mr. Kogo was willing to misrepresent these factual matters in order to avoid stigma it is a factor that undermines his credibility and reliability.

69I find that Mr. Kogo was sure that there was a relationship between Mr. Avril and his wife. He was angry about the relationship and he reacted violently. He tried to prevent his wife from leaving the apartment and ripped her shirt. When she escaped he turned his attention on Mr. Avril. I find that he punched Mr. Avril while holding him by the shirt and saying that he would kill him. I find that Mr. Avril believed that his life was in danger. He had no history with Mr. Kogo and the attack was sudden and unexpected. Mr. Avril attempted to retreat from the conflict but was followed into his room by Mr. Kogo. I find that Mr. Avril retrieved his knife from his bag in the course of the struggle. He used the knife only after he was unable to get away from Mr. Kogo.

Reasonableness of the Force

70The remaining issue is whether these facts lead to an acquittal based on the defence of self-defence. The Crown has argued that even if I accept the evidence of Mr. Avril I should find beyond a reasonable doubt that the force used by Mr. Avril was not reasonable.

71Section 34(2) of the Criminal Code sets out a non-exhaustive list of factors to be considered in determining whether an act committed in self-defence is reasonable in the circumstances. That list includes the following factors:

(a) the nature of the force or threat;

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

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

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

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

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

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

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

72I have considered these factors. Mr. Avril used considerable force against Mr. Kogo. He put Mr. Kogo’s life in danger. Mr. Avril used a weapon while Mr. Kogo had no weapon. However, I find that the force used by Mr. Avril was reasonable in the circumstances. Mr. Avril had attempted to avoid Mr. Kogo and to retreat from the conflict. He was facing a threat of death and had no way to assess the risk of Mr. Kogo carrying out the threat. Mr. Avril was unable to escape because Mr. Kogo held him by his shirt. Mr. Kogo was bigger than Mr. Avril and had the advantage of surprising Mr. Avril and attacking him from behind. In all the circumstances, I find that Mr. Avril used such force as he reasonably believed was necessary to extricate himself from Mr. Kogo’s grip and to escape.

Conclusion

73I therefore find Mr. Avril not guilty of both counts.

Forestell J.