Court File and Parties

Court File No.: CR-16-30000203-0000 Date: 2017-03-24 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Alexander Climent, Accused

Counsel: Jackie Garrity, for the Crown Christopher Assie, for the Accused

Heard: January 3, 4, 5, 6, 9, 10 & 12, 2017

B.A. Allen J.

Reasons for Decision

Overview

[1] Alexander Climent stands charged with assault with a weapon and aggravated assault against Aaron Gauthier. These charges arise from an incident that occurred on September 19, 2014.

[2] There was a history of antagonism between Mr. Climent and Mr. Gauthier. In his testimony Mr. Gauthier attempted to downplay the adversarial relationship between him and Mr. Climent. However, other witnesses attested to their much less than amicable relationship. Jennifer Morrissey, perhaps not of her own choosing, stands at the centre of the dispute between the two men.

[3] In 2013 Mr. Gauthier and Ms. Morrissey ended a four-year relationship. Several months before the incident occurred he and Ms. Morrissey had moved into the housing complex where the incident occurred. The housing complex is located at the intersection of Ellesmere Rd. and Dolly Varden Blvd. in Scarborough.

[4] Mr. Gauthier and Ms. Morrissey have a son together who was about three years of age in September 2014. Mr. Climent had been living in the housing complex for several years. Mr. Gauthier did not know Mr. Climent but had seen him on occasions outside Ms. Morrissey’s unit while Mr. Gauthier was still living there. Mr. Climent had lived in the complex with his wife and children until his marriage broke down. His wife left him and he remained in the unit until before Christmas 2013. He started a relationship with Ms. Morrissey in around the summer of 2013, some months after Mr. Gauthier moved out of Ms. Morrissey’s home.

[5] By September 19, 2014, Mr. Climent was basically staying at Ms. Morrissey’s. She was about eight months pregnant with Mr. Climent’s child when the assault took place. Ms. Morrissey also had two teenaged children, Bemmen and Sydney Morrison, who visited her on weekends. They were visiting their mother on the weekend of the incident.

Witnesses and Other Involved Persons

[6] The Crown called several witnesses. Mr. Gauthier testified. As well, Travis Penney, a resident in the complex, and Timeisha Hankey and Victoria Oneka, also residents in the complex, and Bremmen Morrison, Ms. Morrissey’s 15 year old son, testified. Mr. Penney is best friends with Mr. Gauthier but he was also a longtime friend of Mr. Climent. The defence called Mr. Climent. Except for Mr. Gauthier’s relationship with Mr. Climent, all persons who testified were friends or acquaintances who had known each other for several years.

[7] Deborah James is the person who resided at 2055 Dolly Varden Blvd. where the incident giving rise to Mr. Climent’s charges occurred. Brian is Ms. Oneka’s boyfriend who was at Ms. James’ home on the night of the incident.

Previous Altercations

The Brick Incident

[8] There is evidence of two previous incidents that occurred between Mr. Gauthier and Mr. Climent before the September 19th incident. Mr. Gauthier, Mr. Climent, Mr. Penney, and Ms. Oneka testified about what I will refer to as “the brick incident.”

[9] Mr Gauthier testified this incident occurred in 2013 after he and Ms. Morrissey broke up. The other witnesses testified convincingly that it happened in the spring or summer of 2014 months before the incident before the court. I find it more likely the brick incident happened in the summer of 2014.

[10] According to Mr. Gauthier, after he and Ms. Morrissey had broken up he would occasionally go to her home to deliver diapers and formula for their son. On one such occasion Mr. Gauthier stated that he entered the home through the front door and went into the backyard through the back patio door. He found Mr. Climent barbequing with several others present. He was unclear about whether Mr. Penney was there.

[11] Mr. Gauthier testified he and Mr. Climent exchanged words and that he and Mr. Climent ended up outside the back gate. His evidence was that Mr. Climent went over to some bushes and retrieved a knife and pointed it toward Mr. Gauthier. Mr. Gauthier said as he was advancing toward Mr. Climent that Mr. Climent had the knife in his hand. Mr. Gauthier testified he took off his jacket, wrapped it around his arm, and kept moving toward Mr. Climent. Mr. Gauthier testified that Mr. Climent picked up a brick and threw it at him hitting him in his shoulder. He then ran away from Mr. Gauthier.

[12] Mr. Gauthier denied having an argumentative and aggressive posture on this occasion.

[13] Unlike Mr. Gauthier’s evidence, Mr. Penney testified that he and Mr. Gauthier left Ms. James’ home in the early afternoon after drinking there for some time. His evidence was that they arrived at the back gate of Ms. Morrissey’s home together. Ms. Hankey also arrived there.

[14] Mr. Penney was not sure whether Mr. Gauthier entered the yard or not. Mr. Climent and Ms. Hankey confirmed that Mr. Climent was barbequing. Unlike Mr. Penney’s and Mr. Gauthier’s evidence, Mr. Climent and Ms. Hankey testified that Mr. Penney came over when Mr. Climent was barbequing before Mr. Gauthier arrived.

[15] Mr. Climent and Ms. Hankey both testified that Mr. Penney asked if Mr. Climent and Mr. Gauthier could make amends and whether Mr. Gauthier could come over to Ms. Morrissey’s. Mr. Climent responded that he did not want Mr. Gauthier to come over because he always caused trouble and “he did not need any new friends”.

[16] I accept these witnesses’ evidence on Mr. Penney’s role as a peacemaker. However, for some reason, Mr. Penney denied trying to be a peacemaker before the incident before the court occurred. The other witnesses’ evidence is consistent with Mr. Climent’s evidence that a couple of days before the incident before the court Mr. Penney invited him over to Ms. James’ place when Mr. Gauthier was there to persuade him and Mr. Gauthier to shake hands. Mr Climent testified Mr. Penney always wanted to be an intermediary. Mr. Climent said he shook Mr. Gauthier’s hand. Mr. Climent said he thought everything was alright between them and he left for home.

[17] Mr. Penney’s and Mr. Climent’s evidence is in accord with Mr. Gauthier’s that Mr. Climent had a meat carving knife in his hand while he was barbequing. Everyone’s evidence was in agreement that Mr. Gauthier and Mr. Climent exchanged angry words, that Mr. Gauthier was antagonistic. Mr. Gauthier was shouting about wanting access to his son. Similar to Mr. Gauthier, these witnesses said Mr. Climent left the yard with the knife in his hand and Mr. Gauthier followed him into the laneway. Mr. Penney contradicted Mr. Gauthier’s evidence about Mr. Gauthier taking off his jacket and wrapping it around his arm. Mr. Penney stated that this did not happen.

[18] Mr. Climent testified that as Mr. Gauthier was pursuing him, Mr. Gauthier had a broken beer bottle in his hand. Mr. Gauthier did not deny he had a broken beer bottle. He said he simply did not recall. All witnesses testified Mr. Climent retrieved a brick from the laneway and threw it at Mr. Gauthier and hit him in the shoulder at which point Mr. Climent ran away.

The 2013 Incident

[19] Only Mr. Climent testified about another altercation between him and Mr. Gauthier.

[20] Mr. Climent testified Ms. Morrissey had invited him over sometime around July or August 2013. This was before Mr. Climent moved in with Ms. Morrissey. Mr. Gauthier came over when Mr. Climent was in the backyard. According to Mr. Climent, Mr. Gauthier became very hostile when he saw Mr. Climent and shouted, “Who the fuck is this?” Mr. Climent said he told him not to question him and to ask Ms. Morrissey.

[21] Mr. Climent then got up to leave. As he walked past Mr. Gauthier, Mr. Gauthier threw a sucker punch at which point he dodged, the punch grazing him. Mr. Climent testified he then walked through the gate and Mr. Gauthier closed the gate on him. His foot got caught in the gate and he fell backwards hurting his toe. He limped away and went across the laneway to Ms. Hankey’s home.

[22] Mr. Gauthier testified he does not recall that incident.

[23] Mr. Climent testified there were no other altercations between him and Mr. Gauthier. However, he indicated he knew Ms. Morrissey had received Facebook and text messages from Mr. Gauthier threatening to crush his skull and push his teeth in. Mr. Gauthier was shown screen shots of some messages which he did not adopt. This is second hand hearsay and is not accepted for its truth. However, it is Mr. Climent’s evidence that those messages confirm his fearful state of mind in relation to Mr. Gauthier.

The Incident Before the Court

Circumstances Leading up to the Assault

[24] Ms. James’ unit is a place where friends drop in, have drinks and play darts. This was the setting for the incident on September 19, 2014 that resulted in the injuries to Mr. Gauthier.

[25] Mr. Climent testified he went over to Ms. James’ place after lunch. He said Ms. James was there as were Ms. Hankey and Ms. Oneka. His friend, Mo, came over as well. Mr. Climent and Mo decided to make some food for Ms. James’ family. He said everyone was drinking. He said he had two beers at about 1:00 p.m. when he first arrived at Ms. James’ and two more beers before he went home at about 4:30 p.m. to prepare dinner for Ms. Morrissey’s family. Mr. Climent said that after 4:30 p.m. he had two or three more beers. He agreed that in total he had about six or seven beers during that day before the altercation. Mr. Climent was also quite candid that he had also smoked marijuana throughout the day.

[26] Mr. Climent indicated he returned to Ms. James’ home at about 6:30 p.m. Ms. James, Ms. Oneka and Ms. Hankey were there. Mr. Penney arrived about 7:30 p.m. to 8:00 p.m. They started drinking and playing darts. Mr. Climent said the mood was good but all that changed when Mr. Gauthier arrived between 9:00 p.m. and 10:00 p.m.

[27] Mr. Climent’s and Mr. Gauthier’s evidence is in accord that Mr. Climent extended his hand to shake Mr. Gauthier’s hand. Mr. Climent said he was trying to honour Mr. Penney’s attempts to have them make peace, to make it easier for Mr. Gauthier to see his son. Their evidence is consistent that Mr. Gauthier refused to shake his hand saying that Mr. Climent was not his friend.

[28] Mr. Climent said he ignored Mr. Gauthier and continued playing darts. Ms. Hankey’s evidence is in accord with Mr. Climent’s that Mr. Gauthier started insulting Mr. Climent and making sarcastic remarks calling him a user and a bum. In contrast, Mr. Gauthier denied being angry or antagonistic and contended he was not there to cause trouble.

[29] However, consistent with Mr. Climent, Mr. Gauthier admitted he told Mr. Climent to stop drinking, get a job and stop using Ms. Morrissey. Mr. Gauthier insisted that all he wanted was for Mr. Climent to help Ms. Morrissey. He said he was upset but not yelling at him. Ms. Hankey testified that Mr. Climent’s voice was calm whereas Mr. Gauthier was shouting at the top of his voice over the music.

[30] Mr. Climent testified he got scared because he could sense that Mr. Gauthier’s aggravation was growing. Both men were around the same height at approximately six feet tall. However, at the time, Mr. Gauthier weighed about 240 lbs. and Mr. Climent was about 160 lbs. Mr. Gauthier admitted to being very strong from working for many years in heavy construction. He admitted to not fearing Mr. Climent. Mr. Climent testified that because of Mr. Gauthier’s attitude he decided to go outside onto the back deck to get away from Mr. Gauthier.

[31] Mr. Gauthier and Mr. Penney testified that Mr. Climent left the party for a brief period and returned. Mr. Gauthier said there were a couple more verbal exchanges between them when he returned. Mr. Climent denied he left the party and returned. He said he went out onto the deck with the intention of leaving the party.

The Assault before the Court

Mr. Climent’s Evidence

[32] Mr. Climent testified that he walked through the sliding glass doors to the back deck. He said when he was putting on his shoes Mr. Gauthier yelled: “Ha, ha. You better take care of my girl.” Ms. Morrissey was over eight months pregnant at the time. Mr. Climent testified that he thought what Mr. Gauthier meant by that comment was that Mr. Gauthier believed the unborn child was his and was telling Mr. Climent to take care of Ms. Morrissey.

[33] Mr. Climent said he responded: “I’ll take care of my belly. You take care of your kid.” Mr. Climent explained what he meant by his response was that he will take care of his child in Ms. Morrissey’s belly and Mr. Gauthier should take care of his son with Ms. Morrissey.

[34] Mr. Climent said he was not fully out of the sliding door when Mr. Gauthier grabbed him by the neck with his left hand and started punching him with his right hand. They tussled around. Mr. Climent testified that Mr. Gauthier then “tossed” him. He said that while he was in the air he grabbed onto Mr. Gauthier’s shirt and they both fell down the deck stairs to the ground. Mr. Climent denied hitting Mr. Gauthier before they fell down the stairs.

[35] Mr. Climent testified that when he arrived on the deck, Ms. Hankey was in the left corner of the deck sitting on a stool to the left of the door and Brian was in the right corner having a cigarette.

[36] Mr. Climent testified the next thing he recalls is lying on the ground with Mr. Gauthier on top of him choking him with both hands. Mr. Gauthier was bleeding and spitting on him. Mr. Climent testified he felt like he was “having a miniature dream” about being under water and drowning. He described himself as being unconscious.

[37] Mr. Climent stated that when he was “coming out of it” his hand was coming off Mr. Gauthier’s head. He said he saw Ms. Hankey’s boyfriend, Brian, at the scene.

[38] Mr. Climent said that after a few seconds Mr. Gauthier began wobbling and fell off of him. When Mr. Gauthier tried to get up Mr. Climent pushed him farther away. Mr. Climent testified he then got up in a confused stated not knowing what had happened.

[39] Mr. Climent testified he did not recall hitting Mr. Gauthier after they fell down the stairs. He denied having the knife in his hand before they fell down the stairs. He does not deny having the knife and stabbing Mr. Gauthier but he does not recall stabbing Mr. Gauthier. He also admitted he must have put the knife in the soap dish after returning home but he does not recall doing that either.

[40] A knife with a blue handle was put in evidence. During a search of Ms. Morrissey’s home on September 20th the police retrieved a knife from the built-in soap dish on the bathtub wall in Ms. Morrissey’s home. Forensic testing revealed the knife contained both Mr. Climent’s and Mr. Gauthier’s blood.

[41] When shown the knife Mr. Climent said he recognized it as his. He stated that he always carries a knife. Although he said he did not recall if he carried the knife that evening, he conceded that he must have. Mr. Climent testified that his memory of what happened was affected by the fact he was petrified of Mr. Gauthier.

[42] Photographs put in evidence show injuries to several parts of Mr. Gauthier’s body. The most serious injury was to the left side of his neck for which he received an undetermined number of stitches. There were also cuts and scratches on his inner arms, a cut to his right elbow under his arm, and four cuts to different areas of his head which also required stitches. He remained in the hospital for one-and-a-half days.

[43] The Crown put to Mr. Climent on cross-examination that he had reached a point of zero - tolerance for Mr. Gauthier’s harassment. The Crown suggested that Mr. Gauthier had both hands around his neck to stop him from wielding the knife and that in retaliation Mr. Climent attacked Mr. Gauthier by stabbing him on the left side of his neck. Mr. Climent responded that he has the capacity to maintain his composure and he did so that evening while Mr. Gauthier was shouting insults at him.

[44] The Crown further suggested that based on the number of injuries Mr. Gauthier sustained Mr. Climent kept stabbing him with the knife. Mr. Climent accepted that he stabbed Mr. Gauthier a number of times but insisted that he did not recall this because he was “unconscious”. Mr. Climent insisted that that he did not have the knife in his hand while on the deck and that the stabbing would have occurred at the bottom of the stairs.

[45] Mr. Climent walked with Brian across the pathway and entered Ms. Hankey’s and Brian’s home through the back door. He said it was then that he realized he was bleeding. He did not want to get the home all bloody so he left and went to Ms. Morrissey’s to take a shower. He changed his clothes and left to stay with a friend who lived nearby. He testified he left because he was scared and because he thought the police would arrest him.

Mr. Gauthier’s Evidence

[46] Mr. Gauthier testified he had one beer at lunch on the day of the incident and was at his ex-spouse’s father’s home before he arrived at Ms. James’ place and could have had as many as four beers there before he arrived at the party, although he was not counting. He brought a 12-pack of beer to the party. He estimated he might have drunken half of them. He testified he really was not counting the number of beers he consumed at Ms. James’ place. It is not in dispute that Mr. Gauthier’s blood alcohol level was 179 mg. of alcohol to 100 ml. of blood, nearly twice the legal limit. Mr. Gauthier did not deny being drunk.

[47] Mr. Gauthier’s evidence in some areas is in accord with that of Mr. Climent.

[48] Mr. Gauthier’s evidence is consistent with Mr. Climent’s that when he arrived at Ms. James’ home, Mr. Climent and Mr. Penney were there playing darts. Like Mr. Climent, he testified Mr. Climent put out his hand to shake hands and Mr. Gauthier refused saying he is not Mr. Climent’s friend. Mr. Gauthier acknowledged that he told Mr. Climent to get a job, stop drinking, to take care of Ms. Morrissey and stop using her.

[49] Mr. Gauthier said he repeated those words a couple of times but he was not yelling. He was just upset. This downplay of his antagonism toward Mr. Climent was reflected in Mr. Gauthier’s statement to the police on September 20th. He told the police he has “no beef with the guy.” Mr. Gauthier testified the argument back and forth lasted for about 15 to 20 minutes. He said he just ignored Mr. Climent and started talking to others. He said he knew Mr. Climent got irritated by what he was saying.

[50] Mr. Gauthier testified Mr. Climent left the apartment for four to five minutes, which as I noted earlier, Mr. Climent denied. Mr. Gauthier said after Mr. Climent returned a few more words were exchanged between them. Mr. Gauthier testified that Mr. Climent’s response to his accusations was: “Even when I don’t provide, I provide.” Then Mr. Climent went out to the deck. Mr. Gauthier indicated he did not know what Mr. Climent’s words meant so he got up from the couch and went to the sliding glass door and told Mr. Climent that he does not know what that means.

[51] In a further effort to minimize the level of his hostility, Mr. Gauthier told the police that during their exchange at the party, he asked Mr. Climent to go out and talk about their situation, giving the impression he was being conciliatory. When confronted with this at trial Mr. Gauthier denied saying this to the police. He said he was in the hospital all drugged up and did not recall what he said to the police.

[52] Mr. Gauthier’s evidence departs substantially from that of Mr. Climent at this point.

[53] Mr. Gauthier said Mr. Climent was on the deck having a cigarette when Mr. Gauthier approached him. Mr. Gauthier said he was about to enter the deck and had his left foot on the deck and when he looked back into the apartment talking to someone Mr. Climent stabbed him in the neck. Mr. Gauthier said he did not see the attack coming. Mr. Gauthier said he did not know if anyone else was on the deck at the time. He said he did not see a knife and he did not have a weapon himself.

[54] Mr. Gauthier said he retaliated by putting his hands around Mr. Climent’s neck “for a second.” Then he put his arms around Mr. Climent and squeezed him in a bear hug and then they both rolled down the deck stairs. Mr. Gauthier testified he rolled down the stairs intentionally because “he didn’t know what else to do.” He said he did not feel any other blows to his body.

[55] It is evident the inconsistencies between Mr. Gauthier’s and Mr. Climent’s testimonies about the fall down the stairs. Mr. Climent said Mr. Gauthier raised him in the air and threw him down the stairs and Mr. Gauthier fell because he grabbed onto Mr. Gauthier’s clothing as he fell.

[56] Mr. Gauthier said he landed on his knees and Mr. Climent landed on his back at the bottom of the stairs. Mr. Gauthier said he got up and dragged Mr. Climent toward him. He testified he bent over him holding his left hand on Mr. Climent’s right hand and his right hand on his throat. He said he saw nothing in Mr. Climent’s hand.

[57] Mr. Gauthier said he then realized he was bleeding from his neck and dripping blood on Mr. Climent. Consistent with Mr. Climent’s evidence, Mr. Gauthier testified he became wobbly and fell over. He said things got foggy and he could not hear anything. Medical assistance arrived and he was transported to Sunnybrook Hospital.

Mr. Penney’s, Ms. Hankey’s and Ms. Oneka’s Evidence

Mr. Penney’s Evidence

[58] Mr. Penney testified he arrived at Ms. James’ at about 7:00 p.m. and Mr. Climent arrived around 8 p.m. He testified that when he arrived, Ms. James, Ms. Hankey and Ms. Oneka were there. Mr. Penney estimated that he had about five beers that evening.

[59] Like Mr. Climent’s evidence, Mr. Penney said the mood changed when Mr. Gauthier arrived at about 10:00 p.m. Mr. Penney said anytime the two of them are together the mood changes. He indicated he did not see Mr. Climent greet Mr. Gauthier when he arrived. Mr. Penney confirmed he and Mr. Climent were playing darts and drinking. Mr. Penney said he could tell by Mr. Gauthier’s demeanor that he had had “a few beers”. According to Mr. Penney, Mr. Climent got quiet and, like Mr. Gauthier testified, Mr. Climent left the party for five to ten minutes and came back.

[60] Mr. Penney confirmed that Mr. Gauthier and Mr. Climent started arguing about Ms. Morrissey and that Mr. Gauthier was telling Mr. Climent to get a job and support Ms. Morrissey. Mr. Penney said Mr. Gauthier has a loud voice and was speaking loudly that evening. He also confirmed Mr. Gauthier’s evidence that Mr. Climent said: “Even when I don’t provide, I provide.”

[61] According to Mr. Penney, the exchange between the two went on for about five minutes. Like Mr. Gauthier, Mr. Penney testified that it was after Mr. Climent’s statement that Mr. Gauthier and Mr. Clement went outside. Also similar to Mr. Gauthier’s evidence, Mr. Penney testified Mr. Climent went out to the deck first and Mr. Gauthier followed him asking what he meant by his statement. Mr. Penney said he did not know what Mr. Climent was planning to do. He said right away he heard wrestling and women screaming “blood, blood”. He said everything happened very quickly. By the time he got to the deck Mr. Gauthier and Mr. Climent were already at the bottom of the stairs. He did not see the fight on the deck. He did not see who else was on the deck.

[62] Mr. Penney said when he got to the bottom of the stairs he saw blood everywhere. He testified that Ms. Hankey, Ms. James and her daughter, and Ms. Oneka were also on the scene. He saw Mr. Climent and Mr. Gauthier on the ground across from each other. Like Mr. Gauthier, he said Mr. Gauthier pulled Mr. Climent’s leg toward him.

[63] Mr. Penney testified he saw no one throwing any blows. He did not see a knife or any other type of weapon. He saw Mr. Gauthier bent over Mr. Climent with a great amount of blood dripping onto him. He described the blood as flowing like a faucet. He saw Mr. Gauthier fall over and Mr. Climent get up and walk away and go to Ms. Hankey’s home.

Ms. Hankey’s Evidence

[64] Ms. Hankey was eight months pregnant at the time of the assault at Ms. James home. She testified she first went over to Ms. James’ place on September 19th at about 4:00 p.m. and she left at about 5:30 p.m. to pick up her children at daycare. She said Ms. James, Mo, and Mr. Penney were there drinking. She said she did not feel good because of her pregnancy and only had one glass of wine. She said she started feeling better and went over to Ms. James’ place at 10:45 p.m.

[65] Ms. Hankey walked up the back deck steps of Ms. James’ home to smoke a cigarette. She testified she heard a fight in progress and heard an argument going back and forth. She did not get an opportunity to enter the apartment. She looked inside and saw two people arguing, Mr. Gauthier and Mr. Climent. She also saw Mr. Penney, Mo and Ms. James.

[66] As dealt with below, contrary to Ms. Oneka’s evidence that she was not at the party during the evening, Ms. Hankey said Ms. Oneka was out on the deck having a cigarette with her. She said she (Ms. Hankey) was sitting on a stool on the left and Ms. Oneka was standing near the sliding glass door and they were speaking to each other. Ms. Hankey said her boyfriend, Brian, was also on the deck to the right in the opposite corner. Mr. Climent was standing by the railing with his back towards the stairs. Ms. Hankey testified everyone at the party was drinking. She only had one drink.

[67] Similar to other witnesses, Ms. Hankey said she could hear over the music Mr. Gauthier saying: “You’re a loser, a bum. You should take care of your kids”. She heard Mr. Climent respond: “Don’t worry. I will take care of my kids.”

[68] Consistent with Mr. Climent’s evidence, Ms. Hankey testified Mr. Gauthier was shouting at the top of his voice and Mr. Climent was talking in a much calmer voice.

[69] Ms. Hankey testified Mr. Climent came out onto the deck where she was. Unlike Mr. Climent’s evidence that he did not go out to smoke, Ms. Hankey testified Ms. Climent was standing near the steps having a cigarette. She said Mr. Gauthier then came to the sliding glass door and continued the insults against Mr. Climent. It was Ms. Hankey’s evidence, inconsistent with Mr. Penney’s, that Mr. Penney was standing behind Mr. Gauthier looking over his shoulders behind him egging him on.

[70] Ms. Hankey said she and Ms. Oneka were on the deck with Mr. Climent when Mr. Gauthier charged out onto the deck towards Mr. Climent and grabbed Mr. Climent’s neck with both hands. She did not see Mr. Climent hit Mr. Gauthier. Ms. Hankey confirmed that the altercation developed quickly. Mr. Climent was facing Ms. Hankey and Mr. Gauthier’s back was toward her and she could see Mr. Gauthier’s hands on Mr. Climent’s neck. She testified she then saw them suddenly tumble down the stairs. Ms. Oneka disappeared at some point.

[71] Ms. Hankey testified she and Brian walked down the stairs stepping over the two men on the ground. Mr. Penney followed them. She said she saw Mr. Gauthier on top of Mr. Climent with his hands around his neck. She asked them to stop fighting. Mr. Climent said: “Get this guy off of me.” Ms. Hankey testified she did not see injuries on either of them. She estimated the whole incident from the back and forth conversation between the two men inside the house to them being on the ground lasted about 20 minutes.

[72] Ms. Hankey said she went back home and then over to Ms. Morrissey’s place to tell her about the fight. When she went back home and while in her backyard, she could hear Ms. James and Ms. Oneka screaming and Ms. Oneka crying over Mr. Gauthier.

Ms. Oneka’s Evidence

[73] Ms. Oneka testified she was over at Ms. James’ place for a few hours earlier in the day on September 19th. She, Ms. James, Ms. Hankey and Mr. Climent were there drinking and playing darts. She said she left around 5:00 p.m. to pick up her kids at daycare.

[74] Ms. Oneka said she did not go back to Ms. James’ house except for a very brief time at around 6:00 p.m. On cross-examination she said this brief period could have been later. She insisted she was not at the party during the course of the evening. She said she stayed home until about 9:30 p.m. to 10:00 p.m. at which point she decided to go to Ms. James’ home. This is contrary to the evidence of other witnesses who testified Ms. Oneka was at the party the evening of the incident and was in the apartment and on the deck that night when the fight occurred.

[75] What Ms. Oneka saw at the rear of Ms. James’ home is consistent with that of other witnesses. Ms. Oneka testified that on her way to Ms. James’, she saw someone lying in the grass at the rear of Ms. James’ house. As she got closer, she realized it was Mr. Gauthier on the ground. When she saw he was bleeding she started screaming. She said she was traumatized by the amount of blood she saw. She observed Ms. James and her daughter come down the deck stairs and saw Mr. Penney and Ms. Hankey at the bottom of the stairs. She said she and Ms. James were trying to stop the bleeding. Ms. James’ daughter called 911.

The Forensic Evidence

[76] The evidence is that both Mr. Gauthier and Mr. Climent were bleeding from the fight. Mr. Climent left the area where he had fallen at the bottom of the deck stairs and walked through Ms. Hankey’s backyard, through her back door and then left through the front door and went into Ms. Morrissey’s home. He went up the stairs to the second floor to the bathroom. He cleaned up in the shower and left his bloodied shirt, underwear and jeans behind. He did not recall putting the knife into the soap dish in the shower but conceded that he must have done this. Mr. Climent also admitted that he must have cut himself with the knife.

[77] D.C. Robert Armstrong, an officer with the Toronto Police Forensic Investigation Services, conducted a forensic investigation and took photographs at Ms. Morrissey’s home. He testified about what he found. Of particular interest is the knife with the blue handle, clothing containing blood and blood droplets inside and outside the home. There is no dispute that the blood droplets that were found on the sidewalk, the front steps, and into the home leading up the stairs to the bathroom and inside the bathroom were from Mr. Climent’s wounds.

[78] The blood droplets followed the path Mr. Climent said he walked after he left Ms. Hankey’s home.

[79] D.C. Armstrong testified about the mechanics of the knife. He explained the knife has a spring in its handle. The blade can be released and locked in place using one hand. Notches on the handle and at the base of the blade allow it to be gripped and maneuvered with one hand.

[80] D.C. Stephen Sutherland, also an officer with the Forensic Investigation Services, investigated the scene at Ms. James’ home. He understood that the fight between Mr. Gauthier and Mr. Climent had started on the back deck. His tasks involved examining the scene, photographing, marking, documenting and collecting evidentiary findings to be sent to the forensics unit to be analyzed.

[81] D.C. Sutherland placed markers in the areas where he found blood. Photographs were taken of this evidence. He found blood from the bottom of the stairs of the rear deck at Ms. James’ home which continued southward in the grassy area between Ms. James’ and Ms. Hankey’s homes. The blood continued southward toward the rear sliding glass door of Ms. Hankey’s home and resumed at the front door of Ms. Hankey’s home.

[82] Near the bottom of the deck stairwell D.C. Sutherland found bloodied articles in the grass, among them a bloodied t-shirt and a white top with brown sleeves. The officer took swabs of the blood from each area and item.

[83] The trail of blood droplets followed the path Mr. Climent said he walked when he got up from the altercation.

[84] The evidence of critical interest is a reddish spot on the first step at the bottom of the back deck at Ms. James’ home. D.C. Sutherland testified he found a reddish spot on that step. D.C. Sutherland testified he thought that stain was blood. If that fact were established that would be the only blood found that was connected to the deck.

[85] On cross-examination it became evident that the officer’s opinion that the stain was blood was not based on forensic analysis. D.C. Sutherland did not swab that stain. The defence put to the officer that he cannot be sure it was blood. The officer testified that it appeared to be blood but acknowledged he could not be sure because it was not tested.

Analysis

Who was the Aggressor?

Leading Up to the Assault before the Court

[86] Mr. Climent was charged with assault with a weapon and aggravated assault. He admits he stabbed Mr. Gauthier several times with the blue-handled knife but insists he was defending himself from Mr. Gauthier’s aggression.

[87] There was antagonism between Mr. Climent and Mr. Gauthier over the course of the year before the incident. The hostility stemmed from a trope as old as mankind, two men in a battle over the affections of a woman. There is evidence of two other altercations between the two, one occurring during the summer of 2013 and the other, the brick incident in 2014 about two months before the altercation before the court. Determining who the perpetrator was resides in large part in the broader context of the relationship between the two men.

[88] None of the witnesses except Mr. Climent spoke of the 2013 incident. However, there was accord among the witnesses that whenever Mr. Gauthier entered a space occupied by Mr. Climent trouble would ensue. The general consensus was that between the two of them Mr. Climent was the calmer, quieter and more controlled one and Mr. Gauthier the more rowdy and provocative one. Mr. Gauthier generally attempted to downplay his hostility toward Mr. Climent but even he admitted when he came upon Mr. Climent he would goad him, hurling insults and invectives his way.

[89] Mr. Gauthier described himself as not being hostile or loud but rather as being just “upset” on these occasions because he thought Mr. Climent was taking advantage of Ms. Morrissey. This simply does not square with the other witnesses’ observations of Mr. Gauthier’s behaviour and attitude.

[90] I am prepared to accept Mr. Climent’s evidence about the 2013 incident. I did not find in general that he embellished or exaggerated his evidence when speaking of his relationship with Mr. Gauthier. His was for the most part in accord with other witnesses. On questioning, Mr. Gauthier said, besides the brick incident, he did not recall any other incidents preceding the altercation before the court. It may indeed be the case that he did not recall it or “this lapse of memory” might be a reflection of his general posture of trying to diminish the level of his anger toward Mr. Climent.

[91] In assessing the credibility of Mr. Climent’s account of the 2013 incident, I also considered the timing of that incident. It occurred only a few months after Mr. Gauthier’s four-year relationship with Ms. Morrissey ended and before Mr. Climent moved in with Ms. Morrissey. Mr. Gauthier and Ms. Morrissey had a small son together at the time.

[92] It is not hard to imagine Mr. Gauthier’s anger would be at a peak when he saw another man in Ms. Morrissey’s backyard before the breakup. This would especially be the case when through the kitchen window he had spotted the same man in Ms. Morrissey’s backyard helping her to catch her rabbit.

[93] So it would not stretch the imagination, when seeing Mr. Climent in Ms. Morrissey’s backyard, that Mr. Gauthier would shout: “Who the fuck is this?” and follow those words with aggressive actions. Mr. Climent’s response was consistent with what he and other witnesses testified to in relation to the other incidents. Mr. Climent retreated through the gate attempting to get away from Mr. Gauthier and Mr. Gauthier threw a sucker punch which grazed him and closed the gate on Mr. Climent’s foot injuring him.

[94] I accept as credible Mr. Climent’s evidence that Mr. Gauthier was the aggressor in this incident.

[95] A year later, after Mr. Climent had begun to live with Ms. Morrissey and she was nearing the end of her pregnancy with Mr. Climent’s child, Mr. Gauthier showed up at Ms. Morrissey’s. Mr. Climent was right at home barbequing in the backyard where Mr. Gauthier used to be. The witnesses present during the brick incident, including Mr. Gauthier, testified that he came into the yard arguing with Mr. Climent. He was shouting about wanting access to his son. They exchanged angry words.

[96] Mr. Climent retreated from the yard to get away from Mr. Gauthier. According to witnesses other than Mr. Gauthier, Mr. Climent still had the carving knife in his hand when he left the yard. He did not retrieve it from the bushes. As well, Mr. Gauthier was the only witness who testified he removed his jacket and wrapped it around his arm as he followed Mr. Climent.

[97] I do not accept Mr. Gauthier’s account of the brick incident where it departs from the evidence of the other witnesses. I find that Mr. Gauthier was attempting to over dramatize the incident to make Mr. Climent appear more aggressive. The fact is Mr. Gauthier testified he did not fear Mr. Climent during this incident or at all. He did not retreat when he saw the knife. He just kept advancing on Mr. Climent.

[98] Mr. Climent testified that Mr. Gauthier had a broken beer bottle in his hand as he trailed him. When questioned, Mr. Gauthier did not deny he had a broken beer bottle. He said he did not recall. I am prepared to accept Mr. Climent’s evidence that Mr. Gauthier followed him with a broken beer bottle and Mr. Climent picked up a brick and threw it at Mr. Gauthier hitting him in the shoulder. Then he ran away.

[99] I also accept the defence’s position that Mr. Gauthier was the aggressor in this incident.

[100] There are some common features between the incident before the court and the two previous incidents.

[101] Mr. Gauthier walked into the party at Ms. James on September 19th. Everyone was having fun, drinking, playing darts and listening to music. Mr. Climent was enjoying some laughs while playing darts and drinking beer with Mr. Gauthier’s best friend, Mr. Penney. Witnesses said the mood changed when Mr. Gauthier arrived. I accept Mr. Climent’s evidence that days before the party, Mr. Penney had invited Mr. Gauthier and Mr. Climent to Ms. James’ to make amends and shake hands. They shook hands. This explains why at the party Mr. Climent extended his hand in friendship to Mr. Gauthier. Mr. Gauthier rebuffed Mr. Climent refusing to shake his hand saying Mr. Climent is not my friend.

[102] Then as he had done with the previous incidents, Mr. Gauthier began shouting insults accusing Mr. Climent of drinking too much, not having a job and taking advantage of Ms. Morrissey. Though Mr. Gauthier indicated he was not yelling, other witnesses said he was talking loudly, yelling at the top of his voice over the music. Ms. Hankey could hear him from the deck.

[103] Mr. Climent was described as low-key and calm. Mr. Climent could feel Mr. Gauthier’s level of antagonism rising. Mr. Gauthier admitted, and the forensic evidence shows that he was intoxicated. Mr. Climent admitted to having about seven beers for the day and was candid in saying he smoked marijuana all day. He testified he decided to go home so he walked out to the deck. Before he walked away he responded to Mr. Gauthier’s insults with words Mr. Gauthier claimed he did not understand. Wanting to know what Mr. Climent meant by his words provided Mr. Gauthier with an excuse to follow Mr. Climent to the deck.

[104] As noted earlier, Mr. Gauthier’s version of the altercation on the deck is that when he was about to enter the deck and looked back into the apartment speaking to someone Mr. Climent stabbed him in the neck when his head was turned. Mr. Gauthier said he did not know if anyone else was on the deck at the time. He said he did not see a knife and he did not have a weapon himself. Mr. Gauthier testified he reacted by putting his hands around Mr. Climent’s neck “for a second” and then put his arms around Mr. Climent and squeezed him in a bear hug. He testified he rolled down the stairs on purpose because he did not know what else to do. They both tumbled down the deck stairs.

[105] Ms. Hankey testified she was on the deck when Mr. Climent came out as was her boyfriend, Brian, and Ms. Oneka. She was sitting on a stool very close to where Mr. Climent was standing. Contrary to Mr. Gauthier’s testimony, Ms. Hankey said Mr. Gauthier quickly charged out onto the deck towards Mr. Climent and grabbed Mr. Climent’s neck with both hands. Mr. Climent was facing Ms. Hankey and Mr. Gauthier’s back was toward her. She could see Mr. Gauthier’s hands on Mr. Climent’s neck. Ms. Hankey had only one drink that night because of her pregnancy. She did not see Mr. Climent hit Mr. Gauthier.

[106] Mr. Climent’s version is more in accord with Ms. Hankey’s. Mr. Climent’s evidence was that he was not fully out of the sliding door. Mr. Gauthier quickly approached him and grabbed him by the neck with his left hand and punched him with his right. They tussled around and Mr. Gauthier “tossed” him up. Mr. Climent grabbed Mr. Gauthier by his shirt and they both fell down the deck stairs to the ground. Mr. Climent denied hitting Mr. Gauthier before they fell down the stairs.

[107] I am more inclined to accept Mr. Climent’s view of the fall down the stairs. I believe the evidence that Mr. Gauthier was the one displaying aggression on the deck, not Mr. Climent. It stands to reason that after chasing after Mr. Climent and choking him on the deck they fell down the stairs because of Mr. Gauthier’s hostile action of pushing or tossing Mr. Climent. It does not make sense in the circumstances that Mr. Gauthier would intentionally roll down the stairs. I find Mr. Gauthier’s account is just another attempt to minimize his hostility.

[108] The evidence is that once Mr. Climent and Mr. Gauthier were on the ground at the foot of the steps, Mr. Gauthier bent over him with his hands on Mr. Climent’s neck choking him. Mr. Gauthier admits he had one hand on Mr. Climent’s neck and the other on his right hand. Witnesses at the scene including Mr. Gauthier stated that as he leaned over Mr. Climent he was bleeding on him. All attested to the tremendous amount of blood at the scene.

[109] I cannot leave the topic of Mr. Gauthier’s aggressive disposition without giving a picture of his background. He has a history of aggression not limited to Mr. Climent. He has a criminal record that contains several convictions for assault, the majority of which involve arrests for assaults on a previous ex-spouse in 2002 and 2003. Also, in August 2014 he was arrested for assault with a weapon for throwing a beer can at Ms. Morrissey and was released on condition he not be within 500 metres of her. This means that every time he was at Ms. James’ or at Ms. Morrissey’s after August 2014 he was violating the terms of his release.

[110] Mr. Climent also has a dated criminal record dating back to when he was a young person, the most recent conviction being 12 years ago. Most of the offences were non-violent, non-compliance offences and possession of stolen property. There is one assault 12 years ago for which he received a suspended sentence and probation.

The Assault with the Knife

[111] Mr. Climent admits he stabbed Mr. Gauthier but does not recall this because he was unconscious. However, he did recall he did not stab him on the deck. The evidence is that the altercation on the deck happened very quickly, and I assume unexpectedly to Mr. Climent. It appears that what Mr. Climent meant is that the passage of time between Mr. Gauthier lunging at him on the deck, grabbing his neck, punching him, and falling down the steps was very brief and did not leave enough time for Mr. Climent to access the knife and stab him on the deck. I accept this as having reasonably been the case.

[112] Ms. Hankey who was on the deck in close proximity to the altercation testified she did not see Mr. Climent hit Mr. Gauthier on the deck. I acknowledge that she was facing Mr. Gauthier from behind and Mr. Climent was in front of Mr. Gauthier. However, together with Mr. Climent’s evidence and other evidence, Ms. Hankey’s evidence supports a finding that the stabbing did not take place on the deck. I also note that Ms. Hankey’s observations would be more reliable as she only had one drink that night.

[113] I considered Mr. Gauthier’s credibility problems with exaggerating and fabricating evidence to make Mr. Climent appear to be the aggressor in the brick incident and his attempts to create the impression that he was not hostile towards Mr. Climent. I feel he was trying to create the same impression with the altercation on the deck by saying Mr. Climent stabbed him there. He downplayed putting his hands on Mr. Climent’s neck and minimized the fall down the stairs. I do not accept Mr. Gauthier’s account about the stabbing occurring on the deck.

[114] The most compelling evidence, or lack of evidence, in my view is the fact there is no blood on the deck or steps. The only suggestion there was blood in connection with the deck was the reddish spot D.C. Sutherland spoke of on the bottom step. But of course this spot was not analyzed and cannot be found to be blood.

[115] I think ordinary common sense dictates that some blood would have been left on the deck or steps if the stabbing happened there − either droplets that would have fallen while the two men were on the deck or smudges of blood on the deck or stairs left during the men’s fall. The fact is there was actually a substantial amount of blood at the bottom of the stairs where the men landed. Mr. Penney described the blood as flowing like a faucet. Ms. Oneka said she was traumatized by the amount of blood she saw.

[116] I find Mr. Gauthier was the indisputable aggressor. Mr. Gauthier entered the deck and put either one or both of his hands around Mr. Climent’s neck and punched Mr. Climent. Mr. Gauthier tossed or pushed Mr. Climent down the steps, with Mr. Climent holding onto him. At the bottom of the stairs he pulled Mr. Climent towards him, climbed on top of him and put his hands around his neck. Mr. Climent pulled out his knife and stabbed Mr. Gauthier.

[117] Mr. Climent testified he does not recall stabbing Mr. Gauthier but does not deny doing it. The Crown posed as a credibility issue for Mr. Climent his evidence that he was in a dream - like state of consciousness. This was Mr. Climent’s evidence in spite of the fact he had the ability to retrieve the knife and stab Mr. Gauthier several times and then get up and walk away.

[118] But I do not think I can in fairness take Mr. Climent’s description of his mental state to be akin to a loss of consciousness finding by a doctor. He is an ordinary man, not a doctor. I will not regard this as a strike against his credibility. Mr. Climent freely admitted to having several beers throughout the day and to smoking marijuana all day. It stands to reason that the consumption alcohol and drugs, combined with being choked twice, punched several times, and falling down the stairs could have had some effect on his mental state. It may or may not be that he blacked out momentarily or suffered temporary delirium. It nonetheless appears Mr. Climent had the presence of mind at some point to pull the knife from his pocket, negotiate it with one hand, stab Mr. Gauthier several times, and then get up and walk away.

[119] In the final analysis, Mr. Climent stabbed Mr. Gauthier. The question is whether there are sufficient grounds to support self-defence.

The Law of Self-Defence

The Legislation

[120] The statutory requirements for self-defence are found in s. 34 of the Criminal Code. It is not the burden of the defence to prove self-defence. The Crown bears the burden of proving beyond a reasonable doubt that Mr. Climent did not act in self-defence: R. v. Mulder, 1978 ONCA 2496, at paras. 5 and 9. The Crown must prove the defence did not satisfy the factors set out below in s. 34.

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.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there 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;

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

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Application of the Factors

Was There Reasonable Grounds to Believe Force Was Being Used?

[121] Mr. Gauthier walked into the party with a bad attitude, with antagonistic feelings toward Mr. Climent. He hurled insults at him in front of all of their friends at the party and kept it up until Mr. Climent did what he had always done in these circumstances. He walked away. He retreated to the deck. Mr. Gauthier did what he has done before. He followed Mr. Climent shouting insults and ultimately attacked him. What had happened during the previous altercations after Mr. Gauthier pursued Mr. Climent was that Mr. Gauthier attacked him.

[122] Based on the facts I have accepted there is no question Mr. Climent had reasonable grounds to believe force was being used against him.

Was the Stabbing Done for the Purpose of Defending Himself?

[123] The facts as I have found them fairly well speak for themselves. Mr. Climent was at the bottom of the stairs after being choked on the deck, was thrown or pushed down the stairs, was pinned under Mr. Gauthier on the ground and choked again. Despite the fact Mr. Climent does not recall the stabbing, I can only conclude that he pulled out his knife and stabbed Mr. Gauthier for the purpose of defending himself.

Was the Stabbing Reasonable in the Circumstances?

[124] The Ontario Court of Appeal made it clear that the test of reasonableness of a defensive action is a subjective one, not based in the perspective of the reasonable person. The starting point is the accused’s state of mind:

The accused’s subjective belief that he is in imminent danger of death or grievous bodily harm and that his action was necessary in self-defence was, however, required to be based on reasonable grounds. In deciding whether the accused’s belief was based on reasonable grounds the jury would necessarily draw comparisons with what a reasonable person in the accused’s situation might believe with respect to the extent and the imminence of the danger by which he was threatened, and the force necessary to defend himself against the apprehended danger.

R. v. Baxter, 1975 ONCA 1510, at para. 43

[125] Mr. Gauthier was 80 lbs. heavier than Mr. Climent. He has an imposing physique. Mr. Gauthier admitted that his years of heavy construction work has made him very strong and fit. He had taken bullying postures towards Mr. Climent in the past. Mr. Climent is considerably less daunting in size. Mr. Gauthier did what he had done before. He attacked Mr. Climent. After dragging Mr. Climent towards him at the bottom of the stairs, he leaned his bulky body over Mr. Climent while Mr. Climent was prone on his back. Having choked Mr. Climent on the deck and after tossing him down the stairs, Mr. Gauthier again choked him on the ground.

[126] Mr. Climent first called out to friends: “Get this guy off me”. No one helped. No one helped get Mr. Gauthier off of him. Mr. Climent was being choked. Then, as he described, in some altered state of mindfulness, he resorted to what he likely regarded as his only resort. He pulled his knife from his pocket and did what he could do to get this hulking guy off of him. He stabbed Mr. Gauthier several times.

[127] Defensive action against an apprehended physical assault often arises in pressured, fleeting and life-threatening settings where an accused in the throes of a physical attack faces danger that affects their decision on how to defend themselves. R. v. Baxter cautions that a jury be mindful of the exigencies often involved in defensive action: “… a jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action”: R. v. Baxter, at para. 45.

[128] I find in the circumstances Mr. Climent’s stabbing of Mr. Gauthier was reasonable.

Conclusion

[129] I find on the totality of the evidence that the Crown did not prove Mr. Climent’s guilt of assault with a weapon and aggravated assault beyond a reasonable doubt. The Crown did not succeed in proving that Mr. Climent was not defending himself when he stabbed Mr. Gauthier. Nothing in the evidence raises a reasonable doubt in my mind about this.

Verdict

[130] For the foregoing reasons, I am satisfied the Crown has failed to prove Alexander Climent’s guilt beyond a reasonable doubt on counts 1 and 2 on the indictment.

[131] I therefore find Alexander Climent not guilty on both counts on the indictment and acquittals will be entered accordingly.

B.A. Allen J. Released: March 24, 2017