Court File and Parties

Court File No.: 14-R1985 Date: 2017/04/11 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Jose Humberto Herrera, Accused

Counsel: A. Fitzpatrick, for the Crown M. Frouhar, for the Accused

Heard: March 20-22, 24, 2017

Reasons for Judgment

Aitken J.

Nature of Proceedings

[1] José Herrera stands charged with three offences under the Criminal Code, R.S.C. 1985, c. C-46 (Code) arising out of a stabbing incident that allegedly occurred on the evening of May 31, 2014 in the foyer of 159 Laval Street, Ottawa. Those offences are: (1) possessing a weapon, namely a knife, for a purpose dangerous to the public peace, contrary to s. 88(2) of the Code; (2) assault with a weapon, namely a knife or other sharp-edged object, contrary to s. 267(a) of the Code; and (3) aggravated assault, contrary to s. 268(2) of the Code.

Background Regarding the Relationship of José Herrera and Kenneth Kidd

[2] José Herrera and his girlfriend, Sheila, lived in apartment one on the ground floor of the semi-detached duplex at 159 Laval Street. Kenneth Kidd, his common law spouse, Shelley Lemoine, and Ms. Lemoine’s daughter, Rebecca Raad, lived in apartment two on the second floor of 159 Laval Street. The two sets of tenants shared a small common foyer on the ground floor. The door to the Herrera apartment was immediately to the left upon entering the front door of the building into the foyer. The door to the Kidd apartment was straight ahead at the end of the small foyer and, immediately upon entering that door, there was a stairway leading to the second floor. Located in the foyer at the time was an old projector stand along the right wall and a small air conditioning unit in the back left corner, both belonging to Mr. Kidd, and some oxygen tanks beside the air conditioning unit, belonging to Sheila. The door to Mr. Kidd’s apartment opened outward into the foyer area.

[3] Mr. Kidd and Ms. Lemoine moved into apartment two in 2008. By then, Mr. Herrera had already been living for a period of time in apartment one. The adults in both families saw one another regularly, as everyone had to pass in and out of the foyer and use the small landing and set of stairs at the front of 159 Laval Street to get in and out of the building and their apartments. The only evidence before me is that, for the most part, the four adults got along alright. They would say hello to each other. Ms. Lemoine attempted to communicate with Sheila, who is deaf, to some extent mute, and additionally disabled. The only complaint that Mr. Kidd and Ms. Lemoine voiced about Mr. Herrera was that, when Mr. Herrera drank to excess, he would play his music loudly and disturb them. Ms. Lemoine described how she had told Mr. Herrera on a number of occasions to lower the volume, and he had complied. Mr. Kidd described two occasions when he had made the same request and Mr. Herrera had come out of his apartment door and had threatened Mr. Kidd, once with a hammer and once with a knife. Mr. Kidd did not describe either incident as being something which caused him great consternation, and he had not reported either incident to the police. Aside from these two episodes, Mr. Kidd described Mr. Herrera as being an acceptable neighbour, with whom he chatted from time to time over a bottle of beer. Mr. Kidd had been in Mr. Herrera’s apartment to socialize, but Mr. Herrera had never been in Mr. Kidd’s apartment.

Witnesses

[4] Mr. Kidd, Ms. Lemoine, and Ms. Raad all testified, as did Neil McLaughlin, a neighbour residing across the street at 166 Laval.

[5] Ms. Lemoine, Ms. Raad, and Mr. McLaughlin testified in a straight-forward fashion, without embellishment, exaggeration, hyperbole, or emotion. They acknowledged that there were some things that they did not remember or had not noticed. They acknowledged that their estimates of the timeframe of events or the length of incidents might not be precise and that they were only giving their best estimates. None exhibited any particular bias toward Mr. Herrera when testifying. Their evidence was not challenged in any significant way under cross-examination.

[6] The evidence of Ms. Lemoine and Ms. Raad was consistent on the essential facts of the altercations between Mr. Kidd and Mr. Herrera and generally supported Mr. Kidd’s version of events. To the extent that the accounts of Ms. Lemoine and Ms. Raad differed, the differences were on insignificant points, namely whether Ms. Raad had attended the afternoon garage sales with Mr. Kidd and Ms. Lemoine and when, exactly, Ms. Raad’s boyfriend, Jacob, had arrived at the apartment.

[7] Mr. Kidd, as the complainant, was the witness most implicated in the incident in question. He was not an ideal witness in that his memory of the day’s peripheral events was weak. He placed the two altercations he had with Mr. Herrera as being in the early afternoon instead of the early evening when, based on all the evidence, the altercations clearly occurred. He forgot that he and Ms. Lemoine had attended two sets of garage sales that day – one in the morning in Manor Park and the second in the afternoon just down the street. In this regard, he conflated the two outings and assumed that the events that actually occurred later in the day after the second outing, had happened earlier after the first outing.

[8] I also conclude that Mr. Kidd underestimated how many beers he had consumed prior to the first altercation with Mr. Herrera. I find that he would have consumed two to three beers, as reported by Ms. Lemoine, not the single beer reported by Mr. Kidd. I do not believe that Mr. Kidd misled the Court on purpose as to his alcohol consumption. I find that his evidence of how many beers he had consumed prior to the altercation with Mr. Herrera was based on his assumption that the altercation happened at lunchtime, rather than dinnertime. In terms of Mr. Kidd’s level of intoxication at the time of the incident, there is no evidence from Ms. Lemoine, Ms. Raad, or Mr. McLaughlin to the effect that Mr. Kidd was inebriated. There is no evidence from the police who attended the scene or the medical staff who tended to Mr. Kidd’s injuries that he smelled of alcohol or appeared to be inebriated. The only evidence was that it was quite normal for Mr. Kidd and Ms. Lemoine to consume a few beers in a day, and that level of consumption did not result in their being inebriated. Therefore, whether Mr. Kidd had consumed one, two, or three beers prior to the stabbing is not of particular significance in the scheme of things.

[9] Constable Nadine Branchaud took a verbal statement from Mr. Kidd when she arrived on scene. Constable Jennifer Biondi interviewed Mr. Kidd at the hospital at 10:22 p.m. and made notes of her questions and his answers. This happened after Mr. Kidd had been examined, probed, and scanned, and the stab wound had been stitched. Mr. Kidd reviewed Constable Biondi’s brief notes and signed the statement. Constable Biondi wrote that Mr. Kidd spoke of having had a friend over drinking earlier in the day and the friend had left before Mr. Kidd’s altercation with Mr. Herrera. At trial, Mr. Kidd had no recollection of any friend drinking with him on the veranda earlier and remained unshaken in this regard. Neither Ms. Lemoine nor Ms. Raad were asked if they had observed anyone else being there earlier. In my assessment, nothing turns on this discrepancy.

[10] According to Constable Biondi’s notes, Mr. Kidd said that after the first altercation with Mr. Herrera: “I went back outside – he went back into apartment.” At trial, the evidence of Mr. Kidd, Ms. Lemoine, Ms. Raad, and Mr. McLaughlin was that, following the first altercation, Mr. Kidd went upstairs to his own apartment with Ms. Raad. I accept that evidence as being accurate.

[11] When it came to evidence of central importance in the case, namely the two altercations with Mr. Herrera, Mr. Kidd’s evidence was, to a great extent, consistent with that of Ms. Lemoine, Ms. Raad, and Mr. McLaughlin. That being said, there were some inconsistencies which I will discuss later.

[12] Mr. McLaughlin’s evidence corroborated that of Mr. Kidd in regard to how the first altercation started, the nature of that altercation, how Mr. Herrera had retreated into his apartment, how Mr. Kidd had retreated up to his apartment, how quickly the second altercation ensued, and how Mr. Kidd yelled that he had been stabbed as soon as that second altercation commenced. His evidence also added credence to Mr. Kidd’s evidence that he had not been in any fights with neighbours in his community.

[13] The fact that there were some minor, though ultimately insignificant, differences in the evidence of Mr. Kidd, Ms. Lemoine, Ms. Raad, and Mr. McLaughlin put paid to the efforts of Defence counsel to portray these witnesses as having colluded amongst themselves in order to concoct a version of events supportive of Mr. Kidd and harmful to Mr. Herrera. Although I have no doubt that there were some discussions among these witnesses shortly after the events of May 31, 2014 to try to make sense of what happened, I note that all gave statements to the police on the night of May 31, 2014, and those statements were available for purposes of cross-examination. Also, to the extent that the witnesses subsequently spoke of the incident, such conversations did not result in them all describing the events of the day in precisely the same terms.

Context in which Incident Occurred

[14] May 31, 2014 was a glorious day, with many neighbourhood garage sales to entice Ottawa residents. In the morning, Mr. Kidd and Ms. Lemoine went to garage sales in Manor Park, a neighbouring community. They returned home for a light lunch, at which time they chatted with Ms. Raad and showed her what they had purchased. In the afternoon, they headed out again on foot to garage sales down the street in their own neighbourhood. They returned home later in the afternoon, taking their new possessions upstairs. After spending some time in their apartment, they went downstairs to enjoy a few beers in the shade on the front stoop. At some point, it was decided, upon consultation with Ms. Raad, and her boyfriend Jacob, who was visiting at the apartment, that the family would have hot dogs and hamburgers on the barbecue for dinner. Mr. Kidd was tasked with lighting the barbecue. Ms. Lemoine prepared the meat.

[15] Meanwhile, Neil McLaughlin, a neighbour living across the street at 166 Laval, was outside on his front stoop, enjoying the lovely weather and watching his dog explore the front yard. Although he knew Mr. Kidd and Ms. Lemoine as neighbours and chatted with them from time to time, he was not a close friend at that time, had never been in their home, and had never invited them into his home. Mr. McLaughlin knew Mr. Herrera at the time, but somewhat less than he knew Mr. Kidd. Mr. McLaughlin recalled the incident in question occurring after dinner but while it was still daylight. Dusk had not yet descended.

[16] Approximately an hour before the events of interest in this case, two police officers had attended at 152 Laval Street in regard to an unrelated incident. Neither Mr. Kidd nor Ms. Lemoine noticed this. Mr. McLaughlin was unaware of it as well. Defence counsel cross-examined Mr. Kidd, Ms. Lemoine, and Mr. McLaughlin about the fact that police had been on the street earlier in the day; however, no evidentiary connection was ever drawn between this fact and the incident in question in this case.

Evidence Regarding the Incident

[17] By all accounts, at approximately 7:30 p.m. on the evening of May 31, 2014, while Mr. Kidd was sitting on the landing in front of 159 Laval Street and while Ms. Lemoine was barbecuing hot dogs and hamburgers for the family’s dinner just around the side of the building, Mr. Herrera repeatedly shouted to Mr. Kidd through the open front window that he was a rat. He yelled this in a mean, confrontational, and aggressive fashion. I accept the evidence of Mr. Kidd and Ms. Lemoine that neither of them understood why Mr. Herrera was hurling this accusation at Mr. Kidd. Mr. Kidd repeatedly asked Mr. Herrera why he was saying that and he told Mr. Herrera to “shut his fucking mouth”. Ms. Lemoine, as well, told Mr. Herrera to stop calling Mr. Kidd a rat. Such edicts were to no avail.

[18] According to Mr. Kidd, Mr. Herrera beckoned him to come inside. I am not convinced that this occurred, but whether or not it did, Mr. Kidd entered the foyer from the outside landing, likely as he was yelling at Mr. Herrera to shut up and, for some reason, Mr. Herrera came out of his apartment into the foyer. I accept Mr. Kidd’s evidence that Mr. Herrera lunged at him. The two quickly got into a wrestling match. The bruises on Mr. Kidd’s upper body and arms, as displayed in the photo album, attest to the fact that there likely was significant pushing, shoving, and holding during the course of the fight, with Mr. Herrera being an active combatant. In order to end the skirmish, Mr. Kidd put Mr. Herrera down on the floor, held him there, and told him to shut up and get back into his apartment. Mr. Herrera stopped struggling at this point. Mr. Kidd let Mr. Herrera up, held him against the wall, told him he did not want to hurt him, and then let him go. Mr. Herrera went into his apartment.

[19] Ms. Raad, who was upstairs in the apartment, heard Mr. Herrera yelling at Mr. Kidd that he was a rat and she heard Mr. Kidd yelling back. Then she heard the commotion down in the foyer. She went down the stairs and partially opened the apartment door. She observed Mr. Kidd and Mr. Herrera shoving each other up against walls and yelling at each other. Then Mr. Kidd held Mr. Herrera against the wall and told him to get into his apartment, as he did not want to hurt him.

[20] When Ms. Lemoine heard the commotion in the foyer, she came onto the landing outside the door to the building and observed Mr. Kidd pinning Mr. Herrera down on the floor and then hauling him up and pinning him against the wall. She heard him tell Mr. Herrera to get into his apartment, as he did not want to hurt him. Mr. McLaughlin described the encounter in much the same way and emphasized how quickly the skirmish was over.

[21] After Mr. Herrera went into his apartment, Mr. Kidd followed Ms. Raad up the stairs to his own apartment. Mr. Kidd, Ms. Lemoine, Ms. Raad, and Mr. McLaughlin all testified to this effect and there is no contradictory evidence. Mr. Kidd was upset and angry at the time and could not understand why Mr. Herrera had accused him of being a rat and had gotten into a fight with him.

[22] According to both Mr. Kidd and Ms. Raad, within a very short period of time, Mr. Herrera was knocking on their apartment door in the foyer and telling Mr. Kidd to come out. Neither knew what he wanted. Mr. Kidd went down his apartment stairs, which end at the door with no inside landing. He opened the apartment door, holding it with his left hand so that it would not automatically shut. According to Mr. Kidd, just as he was doing that, Mr. Herrera immediately stabbed Mr. Kidd in his lower right abdomen. Mr. Kidd felt the area and it was wet. Mr. Herrera pulled out whatever he had stabbed Mr. Kidd with and retreated to his apartment. As this was happening, Mr. Kidd took a swing at Mr. Herrera with his left hand, but did not think that he had connected. In the few seconds as this was happening, Mr. Kidd’s ring finger on his left hand was lacerated. Mr. Kidd started yelling that Mr. Herrera had stabbed him.

[23] Ms. Lemoine, who had been barbecuing at the time, ran up to Mr. Kidd and together they applied pressure to the wound. Neil McLaughlin, who had observed the events from across the street, immediately called 911. Mr. Kidd and Ms. Lemoine went to the far side of the car parked outside 161 Laval Street and waited for the first responders.

[24] Ms. Raad observed Mr. Kidd going down their apartment stairs and opening the door to the foyer. She saw Mr. Herrera near the door. Mr. Kidd exited the apartment door and it automatically slammed behind him. Ms. Raad heard a bang and then “almost right away” heard Mr. Kidd say that he had been stabbed. She ran down the stairs and out the door and found Mr. Kidd and Ms. Lemoine standing by the vehicle parked in front of 161 Laval Street.

[25] In that there were no blood droplets on the floor immediately outside Mr. Kidd’s door, it is likely that, at least when Mr. Herrera pulled the sharp object out of Mr. Kidd’s abdomen, Mr. Kidd was standing on the red carpet in the foyer, which was in front of Mr. Herrera’s door, close to the outside door to the building, and approximately three feet from Mr. Kidd’s apartment door. Having Mr. Kidd in that locale when the knife was pulled out of his abdomen would also explain the blood splatter on the main door into the building.

[26] Ms. Raad’s evidence differed somewhat from that of Mr. Kidd in that Mr. Kidd described having been stabbed as soon as he opened the door at the bottom of his apartment stairs to see what Mr. Herrera wanted. Ms. Raad testified that she watched from the top of the stairs as Mr. Kidd went down and out of the door, and the door had closed before she heard any altercation between Mr. Kidd and Mr. Herrera. She thought about 45 seconds had elapsed before she raced downstairs to see what had happened. By then Mr. Kidd was saying that he had been stabbed and he was already out of the building and standing with Ms. Lemoine.

[27] I do not find the difference in time to be significant. Estimating the passage of time during the course of a dynamic, fluid, surprising event is an extremely difficult task, and such estimates are notoriously unreliable. What might feel like five seconds to one witness could feel like forty-five seconds to the next.

[28] In regard to exactly when and where the stabbing occurred, even if the Kidd apartment door was still open when the stabbing occurred, Ms. Raad would not have been able to observe Mr. Herrera stabbing Mr. Kidd in his abdomen because Mr. Kidd would have blocked her view. Ms. Raad did see Mr. Herrera standing there when Mr. Kidd opened the door. According to Mr. Kidd, as soon as he had been stabbed, he took a swing at Mr. Herrera with his left arm – the arm he had been using to open the door. The door may have closed at this time. There would have been a fluidity to these events.

[29] The key point is that, what occurred, happened within seconds of Mr. Kidd opening the door into the foyer.

[30] Sergeant Sauvé was the first officer on the scene, with Constables Branchaud and Bowie arriving shortly thereafter. Constable Branchaud was tasked with remaining with Mr. Kidd. The paramedics ensured that the flow of blood from Mr. Kidd’s stab wound, which had drenched much of his shirt, was controlled. They then transported Mr. Kidd at full speed to the Civic Campus of the Ottawa Hospital. Dr. Jacqueline Parker and her resident were waiting for Mr. Kidd’s arrival in the trauma bay. Because Mr. Kidd had a stab wound to his abdomen of unknown seriousness, the trauma team was assembled. Ultimately, after a CT scan and an examination of the wound, it was determined that Mr. Kidd had a laceration to his right abdomen measuring three centimetres wide by six centimetres deep with a hematoma around the wound. In addition, Mr. Kidd had a one centimetre laceration to the ring finger on his left hand. The stab wound had not gone through the abdominal wall muscle into the abdominal cavity. Had that happened, the situation could have been dangerous, with potential damage to organs such as the liver, kidney, or bowel, or with damage to large blood vessels. Throughout the whole period following the stabbing, Mr. Kidd remained calm, conscious, and ambulatory. His vital signs remained within normal range.

[31] Meanwhile, Sergeant Sauvé and Constable Bowie had followed the trail of blood to the foyer at 159 Laval Street. They knocked on Mr. Herrera’s door. Mr. Herrera followed their instructions to take the chain off the door, open the door, and lie on the floor, as they were arresting him for assault with a weapon. Constable Bowie determined that there were no other individuals in Mr. Herrera’s apartment at the time. He observed a knife on the stove top but, not seeing any blood on the knife, he did not seize it. No knife or other sharp-edged object that could have been used as a weapon was seized from Mr. Herrera’s apartment.

[32] In that Mr. Herrera is Spanish speaking, Sergeant Sauvé asked Constable Correa, who is fluent in Spanish, to attend at the scene. Constable Correa took custody of Mr. Herrera, reading him his rights and the appropriate cautions in Spanish. After Mr. Herrera had been cautioned, he said to Constable Correa: “Seniorita – please forgive me, I am sorry”. There is no issue that this was a voluntary statement. It is admissible in evidence; however, I am not relying on it in any respect. Mr. Herrera could have made this statement for any number of innocent reasons. It has no probative value in regard to his responsibility for any offence.

[33] Initially, when Sergeant Sauvé and Constable Bowie arrested Mr. Herrera, they did not notice any injuries on him. Later, Sergeant Sauvé observed that Mr. Herrera had a swollen eye. Constable Correa reported that following his arrest, Mr. Herrera complained that his head hurt from having been punched in the face. She also noted that he had scrapes to his face and lip. There was no evidence that Mr. Herrera sustained any other injuries during the altercation with Mr. Kidd. Mr. Herrera was seen by paramedics at the scene and cleared. Constable Correa then took Mr. Kidd to cell block.

[34] According to the evidence, Mr. Kidd and Mr. Herrera are of approximately the same height, though Mr. Kidd is stockier. Mr. Kidd acknowledged having no difficulty putting Mr. Herrera down on the ground. His evidence was that Mr. Herrera was intoxicated at the time, slurring his words and being unstable on his feet. Ms. Lemoine confirmed that Mr. Herrera was inebriated and Sergeant Sauvé, the first officer on the scene, detected the smell of alcohol on Mr. Herrera’s breath.

[35] According to Mr. Kidd, no punches were thrown during the first encounter and he, in particular, was careful not to punch Mr. Herrera because he was aware that a couple of years ago, Mr. Herrera had had a heart attack. Mr. Kidd had been one of the neighbours who had tried to assist him prior to the arrival of the paramedics. Mr. McLaughlin, observing from across the street, did not see any punches being thrown and described the incident as being of a wrestling nature. Mr. Kidd was left with significant bruising on his arms and torso, though no apparent injuries to his face. After the first scuffle, neither Ms. Lemoine nor Ms. Raad noticed any injuries to either combatant. After the second scuffle, Mr. Herrera’s injuries were not significant enough for Constables Bowie or Biondi to make note of them or for Sergeant Sauvé to initially see them. There is no evidence that Mr. Herrera sustained any injuries, aside from a slightly swollen eye and some scrapes to his face and lips. If any punches were thrown during the course of the first scuffle, they were not significant. The second scuffle was extremely brief and likely the only punch thrown was that of Mr. Kidd, after he had been stabbed – a punch which he did not think had hit its mark.

Count One: Possession of a Knife for a Purpose Dangerous to the Public Peace

[36] In charging Mr. Herrera with possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(2) of the Code, the Crown particularized that the weapon was a knife. Crown counsel did not seek to amend this count on the indictment to include the alternative weapon of “a sharp-edged object” as she did in regard to count two on the indictment. The Crown failed to prove beyond a reasonable doubt that Mr. Herrera used a knife to stab Mr. Kidd. The police did not seize any knife (or, in fact, any sharp-edged object) from Mr. Herrera’s possession at the time of his arrest or subsequently. I find Mr. Herrera not guilty of count one.

Count Two: Assault with a Weapon

[37] I am satisfied beyond a reasonable doubt that Mr. Herrera intentionally applied force to Mr. Kidd when he stabbed him, Mr. Kidd did not consent to the force that Mr. Herrera was using, Mr. Herrera knew that Mr. Kidd was not consenting to the force that he applied, and Mr. Herrera used a weapon – namely some form of sharp-edged object – to apply that force to Mr. Kidd.

[38] Although Mr. Herrera was described by Mr. Kidd and Ms. Lemoine as being inebriated at the time, and although Sergeant Sauvé could smell alcohol on his breath, the evidence satisfies me that Mr. Herrera’s actions were still intentional. He knew what he was doing and intended to be doing it. When the police came to his door, Mr. Herrera complied with their instructions. He was able to converse with Constable Correa.

[39] Defence counsel has raised the issue of self-defence. As I will discuss shortly, there is no air of reality to that defence.

[40] I find Mr. Herrera guilty of assault with a weapon under s. 267(a) of the Code.

Count Three: Aggravated Assault

[41] I am satisfied beyond a reasonable doubt that Mr. Herrera intentionally applied force to Mr. Kidd in the form of stabbing, and that the stabbing wounded Mr. Kidd. The nature of the wound has already been described above. It was not of a minor or trifling nature. The depth of the wound meant that paramedics and hospital personnel could not determine its significance until a CT scan had been done. The depth was such that medical personnel feared the wound may have punctured the wall to the abdominal cavity. A reasonable person, in Mr. Herrera’s circumstances, would inevitably have realized that the stab wound he inflicted on Mr. Kidd would have put Mr. Kidd at risk of suffering some kind of bodily harm.

[42] The wound was of such a nature that Mr. Kidd bled profusely. He had to be rushed to the hospital. He was immediately seen at the hospital. After the CT scan and the administration of antibiotics and a tetanus booster, Mr. Kidd received two internal stitches and several external stitches to close the abdominal wound. The internal stitches dissolved on their own. Mr. Kidd had to attend at his family physician’s office to have the external stitches removed. The laceration to Mr. Kidd’s finger was closed with two stitches. The wound to Mr. Kidd’s abdomen healed in two to three months. The wound to his finger healed in one to one and a half months.

[43] For reasons that I will explain shortly, I am also satisfied that the application of force was unlawful; in other words, self-defence does not come into play in the circumstances of this case.

[44] I find Mr. Herrera guilty of aggravated assault under s. 268(2) of the Code.

Self-Defence

[45] The burden of proof in regard to the defence of self-defence lies with the Crown. The Crown must prove beyond a reasonable doubt that the defence of self-defence does not apply.

[46] However, as emphasized by the Supreme Court of Canada in R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.), before the trier of fact is obliged to consider the defence of self-defence, the trial judge must determine whether there is an air of reality to this defence in the circumstances of the particular case. Could a properly instructed jury, acting reasonably and on the basis of evidence on the record, acquit Mr. Herrera on the basis of self-defence? (Cinous, at paras. 2 and 49). The question is “whether there is evidence (some evidence, any evidence) on the basis of which a properly instructed jury acting reasonably could base an acquittal if it believed the evidence to the true” (Cinous, at para. 83). “Where evidence does not permit a reasonable inference raising a reasonable doubt on the basis of the defence, the defence must be kept from the jury” (Cinous, at para. 86).

[47] The air of reality test imposes an evidential burden on an accused. The trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true (Cinous, at para. 53). That evidence does not have to come from the accused or from defence witnesses but can arise in any of the evidence tendered at trial. “The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences” (Cinous, at para. 54).

[48] If there is direct evidence as to every element of self-defence under s. 34(1) of the Code, whether or not it was adduced by Mr. Herrera, I must consider whether the Crown has proven beyond a reasonable doubt that Mr. Herrera did not act in self-defence. Here, the evidentiary record does not disclose direct evidence as to every element of the defence of self-defence. As well, self-defence includes an element that cannot be established by direct evidence, namely an objective reasonableness component. Therefore, I have to determine whether those elements of the defence that cannot be established by direct evidence, may reasonably be inferred from the circumstantial evidence. In doing this, I am engaging in a limited weighing of the evidence to decide whether the evidence, if believed, is reasonably capable of supporting the inference that Mr. Herrera is asking me, as the trier of fact, to draw. (Cinous, supra, at paras. 89-91)

[49] Under s. 34(1) of the 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.

[50] Here there is no evidence that, during the second scuffle, Mr. Kidd applied any force to Mr. Herrera or threatened to do so prior to Mr. Herrera stabbing Mr. Kidd. There is no evidence that the stabbing of Mr. Kidd by Mr. Herrera was done by Mr. Herrera for the purpose of defending or protecting himself. The only evidence is that Mr. Herrera provoked the first scuffle between himself and Mr. Kidd by repeatedly calling Mr. Kidd a rat, refusing to stop, and going out into the foyer to confront Mr. Kidd. The only evidence is that the first scuffle came to an end by Mr. Herrera retreating to his apartment and Mr. Kidd retreating upstairs to his apartment. The only evidence is that Mr. Herrera came out of his apartment and knocked on Mr. Kidd’s door, telling him to come out. The only evidence is that within seconds of Mr. Kidd opening the door of his apartment to see what Mr. Herrera wanted, Mr. Kidd was stabbed. There was no evidence that Mr. Kidd hit, punched, otherwise attacked, or threatened to harm Mr. Herrera in any way before Mr. Herrera stabbed him.

[51] Defence counsel relied on the fact that Mr. Kidd was stockier than Mr. Herrera and had had no difficulty pinning him to the ground during the first scuffle as evidence raising a doubt as to whether Mr. Herrera believed on reasonable grounds that he was under threat of being harmed by Mr. Kidd during the second scuffle, as evidence that he acted to defend himself from that threat, and as evidence that the act of stabbing was reasonable in all the circumstances. This evidence, in the context of all of the evidence tendered at trial, is insufficient to allow these inferences reasonably to be drawn.

[52] The other evidence was that Mr. Herrera initiated the first confrontation between the two men by calling Mr. Kidd a rat, by refusing to stop, and by going out in the foyer to confront Mr. Kidd. The only evidence is that he also initiated the second encounter by knocking on Mr. Kidd’s door and telling him to come down. There was evidence that, in the past, when Mr. Herrera had been similarly intoxicated, and Mr. Kidd had asked Mr. Herrera to turn down his music or turn off the fire alarm, Mr. Herrera had belligerently confronted Mr. Kidd with a weapon – not exhibiting fear of Mr. Kidd. There was evidence of Mr. Herrera calling Mr. Kidd a “goof” from time to time, a slur returned by Mr. Kidd, indicating again that Mr. Herrera was not inhibited by fear from taking verbal pokes at Mr. Kidd. The evidence was that Mr. Kidd and Mr. Herrera had been neighbours in the same building for six years – without serious incident. In fact, they had socialized over a beer on a few occasions.

[53] In these circumstances, the meagre evidence upon which Defence counsel sought to rely as being some evidence – albeit circumstantial – to provide an air of reality to each component of the defence of self-defence under s. 34(1) of the Code simply does not allow the required inferences reasonably to be made.

Disposition

[54] I find Mr. Herrera not guilty of count one and guilty of count two and three on the indictment.

Aitken J.

Released: April 11, 2017