R. v. Augustin, 2017 ONSC 5156

CITATION: R. v. Augustin, 2017 ONSC 5156

DATE: 20170502

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Henry Poon for the Crown

• and -

EDSEL AUGUSTIN

Morrie Luft for Mr. Augustin

HEARD: November 9 – 21, December 15, 2016, February 10, 2017

REASONS FOR JUDGMENT

CORRICK J. (orally)

Overview

1On August 10, 2013, at about 3:00 in the morning, a minor scrape between two cars in a nightclub parking lot lead to a confrontation between two groups of men. At the end of the confrontation, one man, Kwok Fung Chiu, suffered serious head injuries, including a large laceration, and another man, Edsel Augustin, suffered lacerations to his upper body that required sutures.

2This event lead to a number of charges. Mr. Augustin and Cleus Ernest were jointly charged with aggravated assault against Mr. Chiu. Mr. Augustin was charged with two further counts of assault with a weapon and possession of a weapon dangerous to the public peace. They were tried together before me without a jury.

3Mr. Ernest pleaded guilty to aggravated assault following my ruling on the admissibility of his statement to the police.

4At issue in the trial is whether Mr. Augustin caused injury to Mr. Chiu, and whether he acted in defence of himself or others.

Evidence

5I heard evidence from the following witnesses:

• Raymion Balgrove, a security guard for a nearby nightclub
• Kwong Fung Chiu, the complainant
• Chun Hoa Chhin, a friend of Mr. Chiu’s, who was with him on August 10
• Officer Gerald Crane, one of the first officers to arrive at the scene
• Detective Nicholas Nei, the officer in charge
• Edsel Augustin, the accused man
• Officer Pamela Collins, who examined the two vehicles involved for the presence of blood

6In addition, video evidence from a number of security cameras mounted in the vicinity of the events was filed. Finally, two agreed statements of fact were filed.

7The events of the evening began with a minor traffic accident. On August 10, 2013, Mr. Augustin was driving a black BMW that he had leased a few weeks prior. On his way home, after spending a few hours at a club, he stopped his car in the parking lot of Club Ooraa to pick up some food from a nearby take-out stand. Three of his friends, and his girlfriend, were in the car with him.

8Mr. Chiu was driving a black pick-up truck that night. He and two male co-workers, Mr. Chhin and Mr. Lau, arrived at the Club Ooraa parking lot at 3:00 a.m., looking for a parking spot. Mr. Augustin testified that a fourth person, a female, was also in the truck. This person, if she existed, played no role in the later events. Mr. Augustin’s car was stopped in the parking lot ahead of Mr. Chiu. During Mr. Chiu’s attempt to go around Mr. Augustin’s car, the two cars came into contact. Mr. Augustin testified that his driver’s side-view mirror was scratched and broken. Mr. Chiu denied hitting Mr. Augustin’s car.

9Mr. Augustin approached Mr. Chiu once he was parked. The two men walked to the BMW to survey the damage. By this time, a small crowd had formed around the BMW. Mr. Chiu testified that he thought a small amount of money would fix the problem. He asked Mr. Augustin how much money he wanted. When Mr. Augustin said $3,000, Mr. Chiu suggested exchanging insurance information. He took out his wallet to get his information and someone in the crowd (not Mr. Augustin) snatched it. Mr. Chiu testified that it was a very expensive wallet, worth about $1,000 HK and it contained $2,000.

10Mr. Chiu left the crowd, walked to his truck, and retrieved a box cutter to defend himself because he thought that this was no longer a simple matter. Mr. Chiu testified that he held the box cutter in front of himself and told the crowd not to come near him. He saw some security guards and thought he should go over by the wall of the club. Once there, he said he was attacked by a group of people. He was struck once from behind, and lost consciousness. He woke up one or two days later in the hospital.

11Mr. Chiu was seriously injured. He had a large laceration on his head extending from his forehead to his crown, and numerous other cuts, abrasions and contusions. Mr. Chiu testified that he believed that the injury to his head was caused by a knife. He did not however see any of his attackers with a weapon. He testified that his co-workers had told him that some people had weapons, including knives. His injuries are depicted in Exhibits 4A to 4G.

12Chun Hoa Chhin went with Mr. Chiu to Club Ooraa. He testified that he and Mr. Chiu surveyed the damage to the BMW. The group standing around the BMW demanded several thousand dollars for the damage. Mr. Chiu wanted to exchange insurance information, and began writing out his information on the hood of the car when his wallet was snatched. Mr. Chiu tried to grab the wallet back, and then chaos broke out.

13Mr. Chhin said that after the driver of the BMW asked for money, he saw a small knife in his hands. He was holding it as if he wanted to fight. He pointed it at Mr. Chiu, who took a step back. People separated the two men. Although Mr. Chhin did not remember Mr. Chiu having anything in his hand at the time, after seeing the surveillance video (Exhibit 13) during the trial, he testified that he thinks Mr. Chiu had something in his hand as well.

14Mr. Chhin testified that after this fight was broken up, a second fight broke out. He, Mr. Chiu and Mr. Lau moved to the back. The other group of people around the BMW came to the wall and beat him. He ran away and passed out in an alley way. When he regained consciousness, he looked for Mr. Chiu. He saw police cars. He and Mr. Lau left the scene by taxi, without speaking to the police officers. Mr. Chiu testified that he left because he had injured his foot and had a limp. He did not see what happened to Mr. Chiu, but he saw him being put into an ambulance. He thought Mr. Chiu had died.

15Mr. Balgrove was a security guard employed by Club Ooraa on August 10, 2013. His evidence was as follows. He saw Mr. Chiu’s truck hit the mirror of the BMW in the parking lot. He was about 20 feet away when he heard Mr. Augustin demand money from Mr. Chiu. Mr. Chiu said he had no money, showed Mr. Augustin his wallet, and said that he wanted to exchange insurance information. Mr. Augustin said he wanted money and knocked the wallet out of Mr. Chiu’s hand. A scuffle began when Mr. Augustin attacked Mr. Chiu.

16After the fight started, Mr. Augustin ran back to his car to get something. At one point, Mr. Augustin had a knife in his hand. He chased Mr. Chiu with the knife between two parked cars, to the wall of the club. Mr. Chiu had a sharp object in his hand, which Mr. Balgrove believed to be a box cutter. He thinks Mr. Chiu got the box cutter from his truck after Mr. Augustin had the knife in his hand.

17Four or five people beat Mr. Chiu, knocking him to the ground, and stomping on him. One of the aggressors, not Mr. Augustin, was hitting Mr. Chiu in the head with a brick.

18Mr. Balgrove saw Mr. Augustin run from the place where the beating was happening to his car. He was holding his left arm pit with his right hand. He had a knife in his hand and he was squirting blood. There was blood on his white t-shirt. Mr. Balgrove saw Mr. Augustin toss the knife to the ground on the other side of the parking lot from Club Ooraa before Mr. Augustin left in his car. He did not believe that Mr. Augustin closed the knife before tossing it. Mr. Balgrove described the knife as a long knife with a black handle and a five or six inch long blade.

19Officer Crane testified that when he arrived at the scene at 3:38 a.m. he saw Mr. Chiu lying on his back in a large pool of blood. Right near Mr. Chiu’s head, Officer Crane found a red baseball cap and two pieces of blade that had broken off from a box cutter.

20Detective Nei testified that Forensic Identification Unit officers arrived at the scene to take photographs. The photographs were entered as exhibits through Detective Nei, on consent of both counsel. Exhibits 2P, 2Q, 2R, and 2S depict the location where a switchblade knife was found, against the wall of the building on the other side of the Club Ooraa parking lot. It was an admitted fact that the knife was found in the open position.

21Mr. Augustin testified. His evidence was as follows. On August 10, 2013, he stopped his car in the parking lot of Club Ooraa to let his girlfriend pick up some food from a nearby food stand. Mr. Augustin waited in his car for his girlfriend. Mr. Chiu drove his truck in behind him. As Mr. Chiu attempted to pass him, his truck struck and cracked the side-view mirror of Mr. Augustin’s car.

22Once Mr. Chiu was parked, Mr. Augustin approached him and told him he had struck his car and asked him to look at the damage. At first, Mr. Chiu denied striking Mr. Augustin’s car. Eventually, he was persuaded after the security guards confirmed it. Mr. Chiu said that he did not want to call the police or go through insurance because the damage was minimal. He asked Mr. Augustin the cost of the damage. When Mr. Augustin said $800 or $1,000, Mr. Chiu said he had no money and he took his wallet out. Someone in the crowd snatched Mr. Chiu’s wallet.

23Mr. Augustin described Mr. Chiu as acting “weird” and “paranoid.”

24Mr. Chiu went to the passenger side of his truck to search for something. As Mr. Chiu walked back to the group, someone said, “watch it, he has something in his hand.” When Mr. Augustin saw a yellow box cutter in Mr. Chiu’s hand, he reached through his car window and retrieved a switch blade, which was in the side pocket. When he saw that Mr. Chiu had the blade of the box cutter extended, Mr. Augustin flicked open his knife.

25Mr. Augustin asked Mr. Chiu what the knife was for, and tried to grab it from him. Mr. Chiu swung at Mr. Augustin and cut him on his left tricep causing him to bleed. Other people separated the two of them, and Mr. Augustin went back to his car. He was holding his injury with his right hand, which also held his knife. Mr. Augustin wanted to leave at this point. He got into his car and put the knife on the floor mat.

26As Mr. Augustin sat in his car, Mr. Chiu moved back to the wall of the club in front of his truck. The security guards were trying to persuade Mr. Chiu to come in their direction.

27Mr. Augustin got out of his car to talk to his friends. He was trying to find the friends he came with so that he could leave. He realized that one of his friends was between the parked cars talking to Mr. Chiu. Mr. Chiu chased Mr. Augustin’s friend with the box cutter in his hand around the front of the parked cars and out into the open parking lot. Mr. Augustin approached Mr. Chiu and attempted to kick the knife out of Mr. Chiu’s hand to defend his friend, who had no weapon. Mr. Augustin did not have the knife in his hand at this point. He was unable to disarm Mr. Chiu. He walked back to his car, leaving Mr. Chiu swinging at the crowd. As he walked to his car, Mr. Augustin saw Mr. Ernest, a friend, walking toward Mr. Chiu. Mr. Augustin stood beside Mr. Ernest, who had approached Mr. Chiu with his arms spread, telling him to “cool out.” Mr. Chiu struck Mr. Ernest in the head with the box cutter. Mr. Ernest fell. When Mr. Augustin tried to kick the box cutter out of Mr. Chiu’s hand, Mr. Chiu struck him with the box cutter under his left shoulder.

28Mr. Augustin ran past his car feeling like he should leave, but instead ran back to Mr. Chiu. Mr. Augustin was pushed to the back wall, and Mr. Chiu cut him again across the right side of his chest. His blood was spurting from his wound. He ran past his car to his friend’s truck. He became dizzy and dropped to the ground. Two men picked him up, helped him to the truck, and drove him to the hospital.

29Mr. Augustin was treated in the hospital. He had four slash wounds that required stitches. His injuries are depicted in Exhibits 5A to 5F.

30Mr. Augustin denied arming himself with a switchblade anytime after the first altercation with Mr. Chiu during which Mr. Augustin was cut on the left arm. He testified that he armed himself because he feared for his safety. Mr. Chiu was armed and acting strangely. He testified that he left the knife on the floor mat of his car. He also denied encouraging anyone to assault Mr. Chiu.

31Mr. Augustin testified that he did not leave the scene because he felt responsible for the people he had come with, given that the conflict began with an issue related to his car.

32In reply, Mr. Poon called Officer Collins, a member of the Forensic Identification Unit with the Toronto Police Service. She searched Mr. Augustin’s BMW and the Ford Explorer in which he was transported to the hospital for blood. She used a polylight to search for any trace of blood in both vehicles and found none.

Positions of the Parties

33Mr. Poon, on behalf of the Crown, submits that when Mr. Augustin’s attempt to extort money from Mr. Chiu failed, he lead an attack on Mr. Chiu, engaging physically with him several times, while armed with a knife, ultimately causing Mr. Chiu’s significant injuries.

34Mr. Luft, on behalf of Mr. Augustin, submits that Mr. Chiu initiated the physical confrontation by arming himself with the box cutter before he had physical contact with anyone. Mr. Luft submits that Mr. Augustin took reasonable steps to defend himself and others from Mr. Chiu, who was acting erratically and paranoid that night.

Legal Analysis

General Principles

35My analysis of the evidence in this trial is governed by some fundamental principles that apply to all criminal trials.

36The first is that the Crown must prove beyond a reasonable doubt that Mr. Augustin is guilty of the offences charged. This standard is a high one. It is not enough for me to believe that Mr. Augustin is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.

37The second is the presumption of innocence. This presumption stays with Mr. Augustin throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged.

38The presumption of innocence also means that Mr. Augustin does not have to prove that he is innocent of these crimes.

39I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

40Mr. Augustin testified. In determining whether the Crown has proven his guilt beyond a reasonable doubt, I must apply the principles set out in the Supreme Court of Canada’s decision of R. v. W. (D.)¹. If I believe Mr. Augustin’s evidence, I must acquit him. If I do not believe Mr. Augustin’s evidence, but am left in reasonable doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Augustin’s evidence, I must still be satisfied beyond a reasonable doubt on the basis of all of the evidence that I do accept that he is guilty. Finally, if I am unable to determine exactly where the truth lies, I will be left with a reasonable doubt, and must acquit Mr. Augustin².

Self-Defence

41Self-defence justifies the use of force in order to resist force or threatened force. A person is not guilty of an offence if the following three requirements, which are set out in s. 34 of the Criminal Code, are met:

1. the person believes 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;

2. 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

3. the act committed is reasonable in the circumstances.

42The Crown bears the onus of proving beyond a reasonable doubt that Mr. Augustin was not acting in self-defence or in defence of others.³

43The Criminal Code sets out in s. 34(2) some of the factors that the court must consider in determining whether the act committed by Mr. Augustin was reasonable in the circumstances. It includes the following:

(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.

Credibility and Reliability of Witnesses

44I begin with some general observations about the witnesses.

45I agree with Mr. Poon that Mr. Balgrove’s credibility is beyond reproach. I believe that he made his best effort to honestly recount the events of that evening. I do, however, have concerns about the reliability of some of his evidence. As he indicated, he was testifying for the first time about events that had occurred 3½ years previously. He gave a statement to police the day of the events and was not involved with the case again until two weeks prior to the giving of his evidence when the police contacted him.

46Some of his evidence conflicts with the evidence of Mr. Chiu, and some of it is contradicted by the video surveillance evidence. I note the following matters that trouble me about his evidence:

1. Mr. Balgrove testified that Mr. Chiu needed no assistance to park his truck that night. The video shows a number of security personnel assisting Mr. Chiu to park.

2. Mr. Balgrove testified that Mr. Augustin knocked Mr. Chiu’s wallet out of his hand. Mr. Chiu testified that it was someone other than Mr. Augustin who snatched his wallet.

3. Mr. Balgrove testified that Mr. Augustin made an immediate demand for money from Mr. Chiu and Mr. Chiu replied that he had no money. Mr. Chiu testified that, after surveying the damage, he asked Mr. Augustin how much money he wanted. He also testified that he had $2,000 in his wallet.

4. After the first fight started at the BMW, Mr. Augustin ran a few feet back to his car, according to Mr. Balgrove. This is not borne out by the surveillance video.

5. Mr. Balgrove testified that he saw the beginning of the physical altercation between Mr. Augustin and Mr. Chiu when Mr. Augustin threw the first punch at Mr. Chiu. The video shows that Mr. Balgrove was walking away from the scene of the initial scuffle. He had his back to it when it started. He did not turn around to look at what was happening until the altercation was underway.

6. Mr. Balgrove testified that he never saw Mr. Chiu wave a box cutter at the crowd. This is contrary to the video surveillance evidence and Mr. Chiu’s evidence. He also testified that he believed that Mr. Chiu obtained the box cutter near the end of the altercation, not at the outset. This is contrary to the surveillance video and to Mr. Chiu’s evidence.

7. Mr. Balgrove testified that when Mr. Augustin emerged from behind the parked cars, he was clutching his right side and he was “squirting” blood. He had a knife in his hand. In cross-examination, he was presented with his statement to the police, which was contrary to this evidence. In his statement, the police officer asked Mr. Balgrove, “Can you tell me anything else.” In response, Mr. Balgrove said, “Just to clarify, I did not see a knife in the hand of the BMW driver when he was stumbling back to the other side. The right side of his arm, it was squirting blood.” Mr. Balgrove agreed that this was his answer.

Mr. Balgrove further expanded on his evidence and said that he saw Mr. Augustin toss the knife into the corner on the other side of the parking lot from Club Ooraa. He did not tell the police that. At first, Mr. Balgrove resisted the suggestion that his evidence was inconsistent with his statement. He admitted that the events were fresher in his mind when he gave his statement to the police than when he was testifying about them at trial, 3½ years later. He later agreed that it was an omission but testified that he did not think it was a big omission. Finally, he said that he may have missed that detail because he was trying not to think of what had happened to Mr. Chiu and he just wanted to get his statement over with.

8. Mr. Balgrove testified that Mr. Augustin tossed the knife before he got into his car and drove away. The video surveillance shows that Mr. Augustin did not go into his car, but rather walked towards Beverly Hills Drive until he fell to the ground and was helped into a nearby truck.

47These are significant issues with Mr. Balgrove’s evidence and for this reason I am unable to place a great deal of weight on it.

48I have grave concerns about Mr. Chiu’s evidence. Mr. Chiu lied to the court when he testified that he had not used any drugs on August 10, 2013. A medical record from Humber River Regional Hospital filed as Exhibit 25 indicates that Mr. Chiu’s urine drug screen was positive for MDMA, methamphetamine, amphetamines and THC. A pill bottle with a prescription label with Mr. Chiu’s name on it, containing 24 ecstasy pills, was found in the cup holder of the centre console of Mr. Chiu’s truck.

49In examination-in-chief, Mr. Chiu testified that he has never used any kind of drug and that the pill bottle in his truck was from a long time ago, and was empty. In cross-examination, he denied knowing what MDMA was and denied smoking marijuana that day. When asked about the pill bottle, he testified that the truck was a company truck that everyone in the company drove.

50It is obvious to state that having found that Mr. Chiu has lied under oath about this matter, I must approach his evidence with a great deal of caution.

51In general, I found Mr. Chiu’s evidence to be vague and unresponsive. When asked a question that he did not want to answer, such as why he did not leave the situation with the security personnel, he simply repeated that the situation was chaotic and he was surrounded. He did not appear to make an effort to view the video during his cross-examination and answer questions about his actions, saying that he could not see it as a result of the injuries he sustained that night. Instead, he replied that he cannot see anything, but in any event he was in danger.

52Mr. Chiu’s evidence that black people rushed over to his truck as he was parking, and started banging aggressively on his truck and that Mr. Augustin was calling people all the time on his cell phone to come to the scene as they were surveying the damage is not borne out by the video surveillance evidence.

53Mr. Chhin’s evidence reporting on what was said between Mr. Chiu and Mr. Augustin is not reliable. He testified that he does not understand English and that Mr. Chiu was reporting to him what was being said. He did not recall Mr. Chiu having anything in his hand. He testified that Mr. Chiu went back to his truck to get a paper and pen. This is contrary to Mr. Chiu’s evidence that he retrieved a box cutter from his truck and waved it at the crowd and told them to stay away from him.

54I will deal later more specifically with Mr. Augustin’s evidence. As I will indicate, I find that much of the video surveillance supports Mr. Augustin’s evidence.

The Surveillance Evidence

55This case has been very difficult. It is clear that Mr. Chiu was severely beaten and received grievous injuries and that he and his two friends were outnumbered by a group of people that appeared to support Mr. Augustin. However, there is no evidence that Mr. Augustin directed or encouraged anyone to assault or to hurt Mr. Chiu. I do not accept Mr. Chiu’s and Mr. Chhin’s evidence that Mr. Augustin was calling people on his cell phone to come to the scene.

56Both counsel have pointed to the specific portions of the video surveillance that support their position. Frequently, they refer to the same portion in support of their position. Their submissions are not unreasonable, and highlight the difficulty with the video surveillance evidence. It is capable of raising more than one inference.

57Mr. Poon submits that each time Mr. Augustin physically engaged with Mr. Chiu, Mr. Augustin was the primary aggressor, when there was no indication that he or anyone in his group was in imminent danger from Mr. Chiu. Mr. Chiu and his friends were constantly retreating and trying to escape Mr. Augustin and his hostile crowd, according to Mr. Poon. This, he says, is supported by the evidence of Mr. Balgrove, Mr. Chiu and Mr. Chhin. I have already outlined my concerns with their evidence.

58In my view, the video surveillance is equally capable of supporting Mr. Augustin’s evidence that Mr. Chiu was acting strangely and was threatening him and others with the box cutter. Mr. Chiu left the group after his initial discussion with Mr. Augustin when his wallet was snatched, and with his back to the group, opened his truck door and retrieved the box cutter. He testified that he held it in front of himself and returned to the group. Mr. Poon submits that Mr. Augustin’s evidence that Mr. Chiu, a middle-aged man, would walk into the middle of a hostile crowd with a box cutter in his hand is not believable. However, based on the video surveillance, the evidence of Mr. Chiu and Mr. Augustin, that is what he did.

59A physical altercation broke out between Mr. Augustin and Mr. Chiu at 3:23:28. It is unclear from the video how it started. Although Mr. Balgrove testified that Mr. Augustin initiated it, I find that Mr. Balgrove did not see the start of the altercation. Both men had weapons. Mr. Augustin testified that he armed himself after being warned that Mr. Chiu was armed. This initial confrontation lasted 10 seconds. The two men were separated by others. Mr. Augustin attempted to confront Mr. Chiu again, but was restrained. Mr. Augustin entered his car.

60While Mr. Augustin was in his car, Mr. Chiu retreated against the wall behind the parked cars where the security personnel were standing. From 3:24:55 to 3:25:33, Mr. Chiu is being encouraged by security personnel to come in their direction. Security personnel are seen going off screen without Mr. Chiu, who instead, chased one of the other men in the opposite direction. Mr. Poon described this as Mr. Chiu trying to escape, and being preceded by a male from the accused’s group. I see it as Mr. Chiu chasing someone.

61Mr. Augustin testified that when he saw Mr. Chiu, still armed with the box cutter, chasing one of his friends, he approached Mr. Chiu, and kicked Mr. Chiu’s arm in an attempt to disarm him. The video shows Mr. Chiu continuing to wave his box cutter in front of him. He was indeed behaving strangely as Mr. Augustin described. Although Mr. Poon submitted that Mr. Chiu continued to fend off a number of men, including the accused, the video shows that after he kicked Mr. Chiu’s arm, Mr. Augustin returned to his car. He did not confront Mr. Chiu again until Mr. Ernest, one of Mr. Augustin’s friends, approached Mr. Chiu with his arms spread open and asked him to “cool out.” Mr. Chiu struck Mr. Ernest in the head with the box cutter, cutting him. Mr. Ernest fell to the ground, and Mr. Augustin attempted to kick the knife out of Mr. Chiu’s hand once again. At 3:25:57 on the video, Mr. Augustin is seen kicking and pushing Mr. Chiu with both of his arms. He is not armed with a knife.

62Up to this point in the interaction, Mr. Augustin has assaulted Mr. Chiu three times. Each time, I find that he acted in self-defence or in defence of others. The first assault occurred when Mr. Chiu approached the crowd armed with a box cutter. Mr. Augustin armed himself and attempted to disarm Mr. Chiu. The second assault occurred when Mr. Chiu chased Mr. Augustin’s friend from behind the parked cars with the box cutter. Mr. Augustin kicked Mr. Chiu’s arm to disarm him. When that was not successful, Mr. Augustin returned to his car. The third assault followed Mr. Chiu striking Mr. Ernest’s head with the box cutter. Mr. Augustin kicked and pushed Mr. Chiu.

63I accept Mr. Augustin’s evidence that Mr. Chiu was acting bizarrely, and was not merely engaged in passive resistance as Mr. Poon submitted. For whatever reason, Mr. Chiu chose not to take advantage of the assistance of the security personnel when they attempted to persuade him to follow them from behind the parked cars. Instead, he chased Mr. Augustin’s friend from behind the parked car, and he struck and cut Mr. Ernest, who had approached him unarmed in a non-threatening manner.

64I find that Mr. Augustin had reasonable grounds to believe that force was being used against him or others and that he assaulted Mr. Chiu for the purpose of disarming him and thereby protecting himself and others from Mr. Chiu’s use of force. I also find that Mr. Augustin’s use of force was reasonable given Mr. Chiu’s bizarre behaviour, his consistent brandishing of the box cutter and his demonstrated willingness to use it, even on an unarmed person.

65Following Mr. Augustin’s attempt to disarm Mr. Chiu after he assaulted Mr. Ernest, Mr. Augustin removed himself briefly from the situation. Mr. Chiu can be seen retreating between the parked cars. Mr. Augustin then re-emerges running towards Mr. Chiu’s location and can be seen on the video striking someone. At this point, there is no indication that Mr. Chiu was assaulting or threatening anyone. Mr. Augustin had left the situation. He had no explanation for returning to Mr. Chiu. I accept Mr. Luft’s submission that people in stressful and dangerous situations are not required to measure with nicety the amount of force necessary to defend themselves nor are they expected to act in a way that they would after proper reflection. However, in these circumstances, Mr. Augustin had left the situation and for reasons known only to himself, returned to it. I am satisfied that Mr. Augustin assaulted Mr. Chiu at this time and that he was not acting in self-defence or in defence of others.

The Offences

66I have given this case anxious consideration. I remind myself of the Crown’s heavy burden of proof and the principles set out in R. v. W. D. Although I do not accept the entirety of Mr. Augustin’s evidence, it raises a reasonable doubt in my mind about whether he was armed with a knife throughout these events and whether he acted in self-defence or the defence of others.

67I turn now to the offences in the indictment. The first is aggravated assault. I am not satisfied beyond a reasonable doubt that Mr. Augustin was not acting in self-defence or in defence of others when he assaulted Mr. Chiu, other than the final time between the parked cars.

68I have reviewed the surveillance videos more than several times. It is not of sufficient quality or clarity for me to safely conclude that Mr. Augustin had a knife in his hand at the end of these events. For the reasons I have already articulated, I am not prepared to rely on Mr. Balgrove’s evidence that Mr. Augustin had a knife in his hand when he emerged from between the parked cars.

69Mr. Augustin testified that he left the knife on the mat in his car after his first interaction with Mr. Chiu. He was bleeding after this interaction because he had been cut across the arm by Mr. Chiu. He held his injury with the same hand that held the knife. Mr. Poon submits that this is not borne out by the evidence of Officer Collins, who found no trace of blood on the mats of the BMW. However, I am unable to place any weight on the absence of blood in the BMW. It is to be remembered that Officer Collins found no trace of blood in the vehicle that transported Mr. Augustin to the hospital. At that point, Mr. Augustin had suffered severe injuries and was, according to Mr. Balgrove, squirting blood that had soaked through his white tank top.

70There is no direct evidence that Mr. Augustin struck Mr. Chiu in the head with a knife or that he caused the injuries to Mr. Chiu. The evidence is circumstantial. To be satisfied beyond a reasonable doubt that Mr. Augustin caused Mr. Chiu’s injuries, I must be satisfied that that is the only reasonable inference that I can draw from the evidence. Given Mr. Balgrove’s evidence that someone, other than Mr. Augustin, struck Mr. Chiu with a brick, and the evidence that people, other than Mr. Augustin, stomped on Mr. Chiu’s head, I am not satisfied that the only reasonable inference is that Mr. Augustin caused Mr. Chiu’s injuries.

71When I consider the evidence as a whole and apply the principles articulated in R. v. W. D., Mr. Augustin’s evidence raises a reasonable doubt in my mind about whether he was armed with a knife when he assaulted Mr. Chiu at any time after the first scuffle. I am however satisfied beyond a reasonable doubt that Mr. Augustin assaulted Mr. Chiu between the parked cars in circumstances where he was not defending himself or others, and I therefore find him not guilty of Count 1, aggravated assault, but guilty of the offence of assault.

72For the same reasons, I find Mr. Augustin not guilty of assault with a weapon. I am not satisfied beyond a reasonable doubt that Mr. Augustin possessed the knife other than during the first interaction with Mr. Chiu. I have already indicated why I find that Mr. Augustin was acting in self-defence during that interaction. I therefore find Mr. Augustin not guilty of count #2.

73With respect to the possession of a weapon dangerous to the public peace charge, the Crown must prove three things beyond a reasonable doubt: 1) that Mr. Augustin possessed the knife, 2) that it was a weapon as defined in the Criminal Code, and 3) that the purpose for which Mr. Augustin possessed it was one that was dangerous to the public peace.⁴ The first two elements are not in dispute. The question is whether the Crown has proven the third element.

74In R. v. Proverbs,⁵ the court held that the purpose for which an accused person possesses the weapon must be determined at a time that precedes the use of the weapon. The use of the weapon in a manner dangerous to the public peace is not sufficient to constitute the offence of possession of the weapon for a purpose dangerous to the public peace.⁶

75Mr. Augustin testified that he used the knife as a tool at work to cut the straps off of skids of cement blocks and wood. He usually carried it in his work pouch with other work tools. He also used it for cutting oranges and food. There is no contrary evidence of Mr. Augustin’s purpose for possession of this knife. He did not use it or brandish it until after Mr. Chiu armed himself with the box cutter. I am not satisfied beyond a reasonable doubt that Mr. Augustin possessed this knife for a purpose dangerous to the public peace and I find him not guilty of Count 3.

76In summary, I find Mr. Augustin not guilty of Count 1, aggravated assault, but guilty of the lesser and included offence of assault, and not guilty of Counts 2 and 3.

77I want to thank and commend Mr. Poon and Mr. Luft for their able, helpful and thorough submissions in this difficult case.

Corrick J.

Footnotes

1. 11991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
2. 2R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209, at para. 7 (Ont. C.A.)
3. 3R. v. Cinous, 2002 SCC 29 at para. 39
4. 4R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345
5. 5(1983), 1983 CanLII 3547 (ON CA), 9 C.C.C. (3d) 249 (Ont. C.A.)
6. 6Proverbs at p. 251