CITATION: R. v. John Kavinsky, 2017 ONSC 532

COURT FILE NO.: 113/15

DATE: 2017/01/20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

George Christakos for the Crown

• and -

JOHN KAVINSKY

Ron Ellis for the accused

HEARD: June 20-24, and June 27, 2016

Leach J. (Orally):

REASONS FOR JUDGMENT

Introduction

[1] For Mr Shannon Hilton, the celebration of his daughter Hailie’s pending 15th birthday began with hosting a party at the Hilton family’s home on the evening of December 14, 2014, and ended with his being stabbed repeatedly by one of the party guests. Fortunately, Mr Hilton survived the incident.

[2] The parties agree that the wounds were inflicted by the accused, John Kavinsky, who is before the court charged with a single count of aggravated assault, contrary to section 268 of the Criminal Code of Canada, (“the Code”). In particular, s.268(1) of the Code specifies that “Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.”

[3] It also was formally acknowledged by defence counsel that the underlying circumstances, (described below in more detail), included presence of the essential elements normally necessary and sufficient to make out the offence of aggravated assault. In particular, it was formally acknowledged by the defence, at the outset of trial, that:

a) John Kavinsky intentionally applied force to Shannon Hilton;

b) Mr Hilton did not consent to the force Mr Kavinsky applied; and

c) the force applied by Mr Kavinsky wounded Mr Hilton.

[4] The focus of this trial was instead on the question of whether Mr Kavinsky was acting in self-defence, and the possible application of section 34 of the Code.

Section 34 – General principles

[5] Given that focus, I think it useful to outline, before turning to the evidence, the provisions of section 34 and considerations relevant to its application.

[6] The section codifies the defence of use of force in protecting one’s self or another person, (i.e., thereby including “self-defence”), and reads in its entirety as follows:

34. (1) A person is not guilty of an offence if

(a) they (sic) believe on reasonable grounds that force is being used against them (sic) or another person or that a threat of force is being made against them (sic) or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves (sic) 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 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;

(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.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[7] The provisions of what is now section 34 of the Code came into force on March 11, 2013, as part of Parliament’s effort to overhaul the self-defence statutory regime by enacting a single unified section of the Code dealing with defence of a person. In particular, as emphasized in R. v. Bengy, 2015 ONCA 397, [2015] O.J. No. 2958 (C.A.), at paragraphs 28-29, the test for self-defence was simplified into three basic requirements:

i. reasonable belief, addressed by s.34(1)(a); i.e., the accused reasonably must believe that force or threat of force is being used against him or someone else;

ii. defensive purpose, addressed by s.34(1)(b); i.e., the subjective purpose for responding to the threat must be to protect oneself or others; and

iii. reasonable response, addressed by s.34(1)(c); i.e., the act committed must be objectively reasonable in the circumstances.

[8] When the first two prerequisites are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. To inform that inquiry, s.34(2) provides a non-exhaustive list of relevant considerations. None are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine.

[9] Other general principles and considerations relating to the application of section 34 include the following:

• The provisions of section 34 do not have to be considered unless there is an “air of reality” to a claim of self-defence; i.e., evidence before the court on the basis of which a properly instructed jury, acting reasonably, could base an acquittal if it were to believe the evidence to be true. See R v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595 at p. 682; and R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paragraph 47. In making that determination, a trial judge must not weigh evidence, determine credibility, draw inferences, or assess the likelihood of success. See R. v. Kong, 2006 SCC 40, [2006] 2 S.C.R. 347, adopting the dissenting opinion in R. v. Kong, [2005] A.J. No. 982 (C.A.).

• Section 34 describes a justification which would render the use of force lawful, based on the principle that it is lawful in defined circumstances to resist force or a threat of force with force; see R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14. As the prosecution must prove an unlawful act, it accordingly is for the prosecution, (where there is an air of reality to a claim of self-defence), to negative that defence beyond a reasonable doubt. See R. v. Cinous, supra, at paragraph 39.

• In other words, while self-defence does require evidential support, the defence bears no legal burden of establishing the defence; i.e., the accused is not required to prove that he or she acted in self-defence. The Crown instead bears the burden of establishing, beyond a reasonable doubt, that the defence is not available in the circumstances. In particular, the Crown must prove beyond a reasonable doubt that the accused does not meet all of the three cumulative and necessary conditions outlined in s.34(1) of the Code. If any one of those conditions is absent, the defence will not be available to the accused. See, for example: R. v. Avril, 2015 ONSC 2158, [2015] O.J. No. 1675 (S.C.J.), at paragraph 11; R. v. Levy, 2016 NSCA 45, [2016] N.S.J. No. 211 (C.A.), at paragraph 107; and R. v. Johnson, 2016 ABQB 633, [2016] A.J. No. 1183 (Q.B.), at paragraph 16.

• It must be borne in mind that a person defending himself or herself against an attack is not expected to weigh to a nicety the exact measure of necessary defensive action or the consequences of such action. It accordingly is impermissible to assess an accused’s response in that manner. The objective measure of proportionate force in self-defence cases requires a tolerant approach. See R. v. Baxter, 1975 1510 (ON CA), [1975] O.J. No. 1053 (C.A.), at paragraph 45; R. v. Kong, supra, (and in particular, paragraphs 208-209 of the dissenting opinion in the Alberta Court of Appeal, adopted by the Supreme Court of Canada); and R. v. Kraljevic, [2016] O.J. No. 5853 (C.A.), at paragraphs 14-15.

• In considering the responsive force used, it is also important to take into account the entire situation, pay sufficient attention to the factual context and the entire tableau of evidence, and not artificially separate out or slow down the sequence of events; e.g., by viewing a fast-paced event on a frame-by-frame basis. See R. v. Quinn, [2014] O.J. No. 4417 (C.A.), at paragraph 10; and R. v. Cunha, 2016 ONCA 491, [2016] O.J. No. 3321 (C.A.), at paragraphs 28 and 47.

Evidence – General comments

[10] At trial, the Crown presented testimony from the following witnesses:

• Shannon Hilton, the complainant;

• Melissa Hilton, the complainant’s spouse, who was co-hosting the relevant gathering at the couple’s residence to celebrate the birthday of their daughter Hailee;

• Hailee Hilton, the daughter of Shannon and Melissa Hilton, who was 14 at the time of the incident and 16 at the time of trial;

• Isaiah Falkins, (also known as “Isaiah Ballantyne”), formerly a close friend of the Hilton family, who was 18 when he attended the relevant celebration for Hailee’s birthday, and 20 years old at the time of trial;

• Martin Romanuk, an officer with the Ontario Provincial Police, who attended at the Hilton property following the stabbing, and participated in subsequent follow up investigation efforts that included searches for the knife used by Mr Kavinsky during the stabbing, and the clothing worn by Mr Kavinsky at the time of the stabbing;

• Jill Spencer, a forensic identification officer with the Ontario Provincial Police, who participated in the execution of a search warrant in relation to Mr Kavinsky’s residence and its surroundings, while documenting and photographing findings; and

• Monique Leget, who was Mr Kavinsky’s 17-year-old girlfriend at the time of the events in question, attended the relevant birthday gathering at the Hilton property, and thereafter accompanied Mr Kavinsky when he returned to his residence, (where she also was staying at the time), after the stabbing.

[11] In addition to subjecting the Crown’s witnesses to cross-examination, defence counsel called Mr Kavinsky as a witness to provide testimony on his own behalf.

[12] In the course of the proceeding, I also was presented with the following trial exhibits:

• two agreed statements of facts;

• an audio recording of a statement provided by Hailee Hinton;

• a series of eleven photographs taken at the Hilton property shortly after the stabbing had occurred;

• the knife, (variously described as a “folding knife”, “buck knife” and “lockblade knife” by Officers Romanuk and Spencer), admittedly used by Mr Kavinsky to stab Mr Hilton;

• CD discs with a video recording of Mr Kavinsky outlining, to the police, after his arrest, the route he claimed to have taken from the Hilton property to his Thamesville residence after the stabbing, as well as a video recording of a further and later extended statement made by Mr Kavinsky to the police while still detained in police custody following his arrest;

• a transcript of the latter video recorded statement provided to the police by Mr Kavinsky;

• photographs taken outside of Mr Kavinsky’s residence during police execution of a search warrant, the day after Mr Kavinsky’s arrest;

• a brief of medical records relating to Mr Hilton’s injuries and treatment; and

• a letter written by Mr Kavinsky to Mr Hilton.

[13] All but the last item formally were tendered as exhibits by the Crown. The letter to Mr Hilton, (written by Mr Kavinsky shortly after the stabbing, while still in police custody following his arrest), formally was tendered as an exhibit by the defence.

[14] I will have more to say about these various witnesses and exhibits during the course of these reasons, but think it advisable to make some further general comments now, before proceeding with further review of the evidence.

[15] First, I think it advisable to note and explain, in more detail, the circumstances in which Mr Kavinsky’s entire statement to the police, the transcript corresponding to that statement, various aspects of testimony from Mr Kavinsky, and the testimony of Ms Leget in its entirety, all came to form part of the substantive trial evidence. In particular:

• When the trial began, and for much of its duration, the parties had not yet agreed on whether and to what extent such evidence should be admitted as part of the substantive trial evidence; i.e., the evidence to be considered in my determination of whether or not Mr Kavinsky should be convicted of the single count of aggravated assault set forth in the indictment.

• In that regard, defence counsel indicated a desire to have at least some of the comments made by Mr Kavinsky to the police entered as trial evidence. In that regard, reliance was placed on authorities such as R. v. Edgar (2010), 2010 ONCA 529, 101 O.R. (3d) 161 (C.A.), and R. v. Laird, 2015 ONCA 414, [2015] O.J. No. 3000 (C.A.). Those decisions emphasize that it is open to a trial judge to admit, as an exception to the general rule excluding prior consistent statements, evidence of spontaneous out-of-court statements made by an accused upon arrest or when first confronted with an accusation, as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination.

• Crown counsel, on the other hand, indicated his intention to challenge the admissibility of such “previous consistent statement” evidence on the basis that not all of the indicated and necessary preconditions for application of the “Edgar exception” relied upon by the defence were satisfied in the underlying circumstances. In particular, questions were raised as to whether the statements in question really were made “when the accused was arrested” or “first accused of committing a crime”, and whether they were truly “spontaneous”.

• In the result, and for reasons of trial efficiency, (as the relevant prior statements by Mr Kavinsky and the circumstances surrounding their making were interspersed with other relevant and admissible evidence), matters proceeded by way of an intermittent voir dire during the course of the overall trial. In particular, that occurred after the Crown had completed its case, during the leading of evidence by the defence, and the testimony of Mr Kavinsky in particular. That was done with a view to my eventually making a decision, (after conclusion of all the voir dire evidence and receipt of counsel submissions in that regard), concerning the extent to which evidence from the voir dire would be admitted into the trial proper. The voir dire included testimony not only from the accused but also testimony from Ms Leget, (who initially was a contemplated defence witness, but ultimately was called as a witness by the Crown), as well as the statements given by Mr Kavinsky to the police.

• However, before I was called upon to make my ruling concerning the issues which prompted the voir dire, the parties formally indicated their mutual agreement that all evidence received by me during the voir dire, without exception, was to be admitted on consent into the trial proper for all purposes.

[16] As a second general observation, I note that, although most of the evidence at trial emanated from the Crown witnesses, I have in mind throughout my entire reasons and analysis that proper determination of cases is not achieved by simply counting witnesses, as quality of evidence may very well prevail over quantity. As the trier of fact, I therefore am entitled, for example, to prefer the testimony of just one witness, rather than a number of others, depending on my assessment of the evidence.

[17] Next, I also have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter of Rights, Mr Kavinsky is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to the alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to elements of the charges against Mr Kavinsky that are not admitted, as well as disproving elements of the section 34 defence raised by Mr Kavinsky, (as noted above), never shifts. In particular, Mr Kavinsky has no obligation whatsoever to establish his innocence.

[18] In that regard, although Mr Kavinsky chose to testify on his own behalf in this case, I also am mindful of the principles underscored by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized that reasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony given by an accused. For example, in this particular case:

• It would not be appropriate to decide this case by simply determining whether I accept or reject the testimony of Mr Kavinsky, including his assertions relating to necessary elements of the section 34 defence.

• I instead have to consider all the evidence, and decide whether I have been satisfied beyond a reasonable doubt that all the essential elements of the crime charged have been established, and that the Crown has disproven at least one of the elements required for a successful section 34 defence.

• Certainly, if I believe and accept Mr Kavinsky’s testimony, then I obviously must acquit him.

• However, even if I do not believe and accept Mr Kavinsky’s testimony, I must still acquit him of the crime charged if his testimony raises a reasonable doubt in my mind; e.g., as to whether the essential elements of the offence have been established, and as to whether the Crown has disproven any elements required for a successful section 34 defence.

• Moreover, even if I do not believe Mr Kavinsky’s testimony, and his testimony does not leave me with a reasonable doubt, I must still ask myself whether, having regard to the evidence I do accept, and looking at the case in its totality, I am convinced that he is guilty beyond a reasonable doubt; i.e., because the essential elements of the offence have been established beyond a reasonable doubt, and the Crown has disproven, beyond a reasonable doubt, at least one of the elements required for a successful section 34 defence.

[19] A reasonable doubt is not an imaginary or frivolous doubt. Nor is it a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense, logically derived from the evidence or absence of evidence. See R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at paragraph 39.

[20] With the above preliminary observations, I turn now to a more detailed review of the underlying evidence.

Evidence – General facts

[21] In that regard, while I will have more to say about particular evidence and factual findings in the course of addressing various individual issues, the following findings, (based primarily on party agreement, matters in respect of which there was little contradiction and the undeniable physical evidence, but in some respects my preference for the testimony of certain witnesses over others for the reasons outlined below), will provide a context for those more detailed considerations:

• At all material times, Shannon Hilton and Melissa Hilton lived with their children Hailee and Hunter, (a year younger than Hailee), at a large two acre semi-rural property located on the outskirts of the Town of Strathroy, and more particularly identified by the municipal address specified in paragraph 3 of Exhibit 1. The main entrance to the property is a long drive that passes through an opening in a tall extended fence, and heads straight on towards the longer side of a large, serviced and single-storied rectangular building; a building subdivided into numerous rooms intended to serve as garage, shop and office space. (Mrs Hilton repeatedly referred to it as a “five car garage”, and I will refer to it hereafter as “the garage” or “garage building”.) The side of that garage building facing the drive has two vehicle or “bay” doors, (one near each end of the building), two pedestrian doors, and a number of windows. In addition to a large tree, there is an extended paved area in front of the garage building, through which the drive bends left towards the Hilton’s principal residence.

• In mid-December of 2014, Mr and Mrs Hilton had just completed principal construction of an addition to the garage building, (leaving various construction materials and a sizeable temporary mound of earth in front of the building), and decided to use that opportunity to host a party celebrating Hailee’s pending 15th birthday. Hailee assumed primary responsibility for organizing the party, which was scheduled for the evening of December 13, 2014, (although Hailee’s actual birthday would occur some two weeks later). The area in and around the addition to the garage building was intended to be the main area in which people would gather and socialize. The contemplated attendees were Hailee’s school friends, who were mostly of a similar age; i.e., 14 or 15, although Hailee’s friend Monique Leget was 17 and also invited. Despite the relatively young age of the contemplated party guests, consumption of alcohol at the party also was contemplated, and not frowned upon or discouraged by Mr or Mrs Hilton. Guests were to bring their own alcohol, if desired.

• In the result, the party went ahead on December 13, 2014, starting at approximately 8pm or 9pm, and carried over into the early hours of the following morning. Although Mr and Mrs Hilton were both at the property for the duration of the event, Mr Hilton candidly acknowledged that he really played no role in its organization or supervision. He instead spent most of his time on the rear and side deck areas adjacent to his house, (from which most of the property was visible), sitting and talking with a number of adult friends who had brought their children to the party, and occasionally entering the house kitchen and a hot tub. He generally had no involvement with Hailee’s guests apart from saying an occasional “hello”. Active adult monitoring and supervision of the party was instead left primarily to Mrs Hilton. She regarded herself as being on “kid duty”, deliberately refrained from consuming alcohol, and “hovered” over the party to monitor the situation, diffuse tensions and arguments, and ensure that guests were fed.

• As noted above, the party had been intended primarily for Hailee’s 14-15 year old school friends. Moreover, Hailee and her friends were told that no one over the age of 18 was to attend the party. However, a number of the invited guests brought their older boyfriends to the party, and Mrs Hilton permitted them to stay so long as they complied with her rules. That included Mr Kavinsky, (Monique Leget’s boyfriend), who was 21 at the time and drove his own vehicle to the party.

• The total number of guests attending the party, over the course of the evening, ranged from at least 25 to approximately 50.

• Guests at the party brought their own alcohol. As many of Hailee’s party guests were her age, they did not drive and instead arrived at the party on foot or through rides provided by others. However, some guests, (although not many), did drive themselves to the party, and Mrs Hilton had a standing and firm rule, known to Mr Hilton and made known to guests, that no one attending the party would be permitted to drink and drive. Mrs Hilton herself announced and enforced that rule by personally approaching each person who drove to the party, immediately upon the person’s arrival. In particular, after explaining her rule, Mrs Hilton would either take the driver’s car keys herself, or ensure that the keys were turned over to someone else who could be trusted to ensure that the keys would not be returned to anyone who had been drinking. That was done on the express understanding, conveyed repeatedly to all guests at the party, that anyone needing a ride would receive one; e.g., by the provision of taxis paid for by Mrs Hilton if and as necessary. It was also made clear that anyone not willing to comply with Mrs Hilton’s rule about drinking and driving would not be welcome at the party.

• The party rule against drinking and driving was enforced in relation to the accused upon his arrival at the party, (with Ms Leget and Mr Kavinsky’s friend “Alan”), when Mr Kavinsky parked his car in the paved area in front of the garage building, near to the tree in front of the pedestrian door entrance being used for the party. In particular, Mrs Hilton immediately approached Mr Kavinsky and explained her rule prohibiting drinking and driving. She then ensured and confirmed that Mr Kavinsky willingly had surrendered his car keys to one of his friends and passengers, (i.e., Alan), who was “going to make sure that Johnny didn’t drive”. In his testimony, Mr Kavinsky confirmed that account, adding that he knew and understood that agreed compliance with “the rule not to drink and drive” was a necessary condition for attendance at the party, that he gave his keys to his friend Alan because of that rule, and that he gave Mrs Hilton his word that he would not drink and drive. However, Mr Kavinsky also testified that he actually did not intend to take the rule seriously, and that he surrendered his keys primarily to get Mrs Hilton to “shut up” and leave him alone before he went in to the party. He wanted to “get rid” of the issue, so he could “go and do [his] thing”. He admittedly told Mrs Hilton “what she needed to hear to be part of the party”, while still intending to drive home if he felt like driving.

• Mr Falkins and Mr Kavinsky met and interacted for the first time during the early hours of the gathering, and Mr Falkins had positive things to say about Mr Kavinsky’s behavior during that interaction. In particular, Mr Falkins recalled that, at that stage of the evening, Mr Kavinsky was consuming a drink while they were talking, (although Mr Falkins fairly indicated he did not know what substance it was), but did not seem drunk “by any means” and “wasn’t anything to be worried about”. Having said that, Mr Falkins also recalled that, while Mr Falkins and Mr Kavinsky were talking in the presence of others, Mr Kavinsky pulled a knife from his pocket and opened it, before he then used it, uninvited, to “non-chalantly” stir the drink Mr Falkins was holding; a drink consisting only of Orange Crush soda that did not need stirring. (Mr Kavinsky testified that he could not remember the incident, but also did not deny that it happened.) Mr Falkins described the knife as black, but could not recall if it had any other colouring on it. He did recall that it had a knob on the end, used to make the blade “flip upward”. Although Mr Falkins ascribed Mr Kavinsky’s behavior with the knife to “boys being boys” and “just one of those things”, it did seem to him that Mr Kavinsky was “showing off” with it. Mr Kavinsky testified that he did not remember those particular events recalled by Mr Falkins, but also did not deny that they happened. I accept that they did, despite my misgivings about other aspects of Mr Falkins’ testimony, (for reasons outlined below). In particular, in relation to Mr Falkins seeing Mr Kavinsky produce and use the knife well before the stabbing, Mr Falkins was recalling events that took place during the early stages of the party, before the further alcohol consumption and confusion that took place later. Moreover, Mr Falkins’ account of seeing Mr Kavinsky produce and use the knife earlier that evening explains how Mr Falkins was able to provide an accurate description of the knife later used by Mr Kavinsky to stab Mr Hilton, before it was shown to Mr Falkins at trial, even though Mr Falkins and Mr Kavinsky had not met before, and there was no credible evidence or suggestion that Mr Falkins or anyone else at the party, (other than Mr Kavinsky), saw the knife during or immediately after the stabbing before it was taken into police custody. (As noted below, Hailee Hilton claimed to have seen the knife the day after the stabbing, but I find, for reasons I will indicate, that such a sighting simply could not have happened as Hailee says it did.)

• As the party continued, many of the young guests became very intoxicated. Some were taken home by their parents. Throughout the course of the party, taxis also were called to the property to provide rides home. A number of departing guests were asked to leave by Mrs Hilton, who felt obliged to “kick them out”. One of those guests was a friend of Mr Kavinsky named “Grant”. In that regard, Mrs Hilton candidly acknowledged, (and Mr Kavinsky confirmed), that Mr Kavinsky personally helped her with ensuring Grant’s departure. Moreover, up until the time of the later confrontation between the accused and Mrs and Mr Hilton, described below, Mrs Hilton felt that the accused was intoxicated but otherwise quiet and polite; i.e., a “nice kid” who kept to himself and generally presented no concerns warranting her attention, in contrast to other guests who were causing problems.

• At some point, Mr Kavinsky then left the party without his vehicle, and Mrs Hilton knew he had done so. There was some uncertainty and disagreement in the testimony as to when and how that happened; e.g., as to whether Mr Kavinsky left voluntarily in the same cab taken by his friends Grant and Alan, whether he may have walked away from the property on foot, and whether or not Ms Leget also left the party for a time with Mr Kavinsky. However, I think little or nothing turns on such matters. There was no dispute that Mr Kavinsky initially went away from the Hilton property at some point, leaving his vehicle behind. His doing so presented no concerns to Mrs Hilton, as it complied with her rule against party guests drinking and driving.

• However, at approximately 3:30am to 4:00am, (as the party was ending and the only party guests remaining either intended to sleep over at the Hilton residence, or lived within walking distance), Mr Kavinsky admittedly returned to the Hilton property with the intention of retrieving his car. He says he returned on foot. (At trial, Mr Kavinsky initially could not recall where he had gone in the meantime, but later said he probably had come from the house of his friend Alan.) Although Mr Kavinsky did not have his principal set of car keys, (as they were still in Alan’s possession), he intended to use a spare set of keys he always kept hidden underneath his car by way of a tied magnet.

• Whether or not Mr Kavinsky went back into the garage, after returning to the property and before his confrontation with Mrs and Mr Hilton, was not entirely clear. Mr Kavinsky testified that he remained outside, retrieving his spare car keys, while Ms Leget briefly went back into the building to say goodbye. Mr Falkins testified that he saw Mr Kavinsky quickly enter and exit the building, walking ahead of Ms Leget such that she effectively was left behind to speak with Mr Falkins. Again, I think little turns on such matters, except perhaps that all the witnesses, including Ms Leget, seemed to agree that she was inside the garage without Mr Kavinsky around the time of the altercation.

• Shortly thereafter, Mrs Hilton was outside the garage, encouraging the guests who were staying to go to the house and those who were leaving to walk home, when she noticed that Mr Kavinsky had returned to the property, and was demonstrating an intention to leave in his vehicle. In particular, Mrs Hilton saw Mr Kavinsky at his vehicle, with car keys. That prompted immediate intervention by Mrs Hilton, who approached Mr Kavinsky, reminded him forcefully that drinking and driving would not be allowed, and then engaged in efforts to prevent Mr Kavinsky from driving. My further findings of what was said and done in that regard are outlined in detail below. For now, I will simply say that, acting on her own, Mrs Hilton was unable to ensure that Mr Kavinsky definitely would not be driving, which led in turn to Mr Hilton’s involvement.

• In that regard, Mr Hilton was not present during Mrs Hilton’s initial efforts to prevent Mr Kavinsky from leaving in his car. In particular, as it was towards the end of the evening, and the party was winding down, Mr Hilton had instead been preparing for bed, back at the house. However, he then heard a loud discussion and “commotion” from the area in front of the garage building, (approximately 40-60 feet away), including his wife’s raised voice indicating she could not “deal with this anymore” and needed help. Wearing a shirt and trousers, but without donning a jacket, Mr Hilton therefore walked over to the area to see what was happening, and observed his wife standing in front of the garage area “with a couple of the kids”, including Mr Kavinsky.

• Mrs Hilton provided her husband with her perspective on what was happening, saying words to the effect of “Johnny thinks he’s going to drive” and “Take care of this”. Mr Hilton then joined in the discussion, arguing with Mr Kavinsky about his determination to drink and drive, before the two men then engaged in a progressively physical altercation. (My further findings concerning their verbal and physical interactions are outlined in detail below.) During the course of the altercation, Mrs Hilton briefly went inside the garage to summon assistance from other male guests.

• By the time Mr Hilton and Mr Kavinsky physically separated, Mr Kavinsky had caused the following injuries to Mr Hilton:

  • a metacarpal fracture to the right ring finger;
  • a complete laceration to the left wrist ECU tendon;
  • two stab wounds to the left tricep;
  • one stab wound to the left forearm;
  • a stab wound to the anterior chest wall; and
  • a stab wound to the liver that caused a liver laceration, requiring an exploratory laparotomy; i.e., a surgical operation where the abdomen is opened and the abdominal organs are examined for injury or disease.

• After Mr Hilton and Mr Kavinsky physically separated, Mr Hilton stepped back and was advised by someone in the crowd that he was visibly bleeding. Only then did Mr Hilton realize that he had been stabbed rather than punched. He reacted with surprise and anger, saying words to the effect of “You stabbed me!” and “I’m going to kill you!” A visibly bloody Mr Hilton then proceeded just inside the garage building, at the same time as Mrs Hilton was heading back outside, (after shouting to the “boys” inside for help to prevent “Johnny” from driving). Mr Hilton then kicked open the locked door to another interior room in the garage, in order to retrieve a broom to use as a weapon against Mr Kavinsky. In the meantime, Mr Kavinsky had moved quickly towards the pile of dirt and his car, calling for Ms Leget.

• Once he had retrieved the broom from the garage, Mr Hilton immediately came back out of the building to chase and hit Mr Kavinsky with it a number of times, before Mr Hilton then “blacked out” and collapsed owing to severe loss of blood. In particular, Mr Hilton dropped the broom in the drive and fell back into the wall of the garage, where he was cared for by his son Hunter and Mr Falkins. Mr Falkins then raised Mr Hilton’s bloody shirt to reveal the wounds to Mr Hilton’s torso, making it visibly clear to Mrs Hilton that her husband had been stabbed. Shortly thereafter, Mr Falkins led Mr Hilton, who was struggling to retain consciousness, back into the main party room of the garage to await the arrival of paramedics.

• At that point, a shocked Mrs Hilton then turned to confront Mr Kavinsky about what he had done. She repeatedly yelled and swore at him, saying words to the effect of “You fucking stabbed somebody?”, “You stabbed him?”, “Are you fucking kidding me?”, and “Who stabs somebody’s dad?” While yelling, Mrs Hilton also rushed at Mr Kavinsky, punching him forcefully in the face, and knocking him back into the nearby mound of dirt. (Mrs Hilton candidly said that she was not entirely sure if she actually managed to punch Mr Kavinsky in the face. However, she also said that definitely was her intention, that she raised her hand and came at Mr Kavinsky’s face with a “full force” punching movement, and that she hoped that she had succeeded in striking him in the face. I find that she did succeed, as confirmed by Mr Kavinsky’s indication that Mrs Hilton did hit or slap him in the face, knocking him backwards into the pile of dirt, and the injuries to Mr Kavinsky’s face noted and described during the course of his recorded statement to the police.

• Within seconds, Mr Kavinsky rose from the dirt pile and admittedly began repeatedly yelling “I’m fifteen! I’m only fifteen!” Mr Kavinsky acknowledges that was obviously untrue and a “silly” thing to suggest, (as he clearly was driving and had a full grown beard). Mrs Hilton says she also knew at the time Mr Kavinsky’s claim of being 15 was untrue. However, Mr Kavinsky says he was in a panic, and tried to suggest he was within what he understood to be the general young age limit for the party, in order to “get her [Mrs Hilton] off” of him, and because he thought it less likely that she and others at the party would attack or hit him for what he had done if they thought he was only fifteen. Although Hailee and Mr Falkins claimed that Mr Kavinsky also was screaming that he was the one who had been stabbed, (which was not true, but a comment which Mr Falkins said prompted him to check Mr Hilton’s hands for weapons), Mr Kavinsky could not recall making such a statement, (although he said it might have been possible), and Mrs Hilton made no mention of such a statement in her detailed testimony. I do not accept that Mr Kavinsky made such an additional statement after the stabbing. In particular, for the reasons outlined below, I believe Mrs Hilton was a more credible and reliable witness than Hailee, Mr Falkins and Mr Kavinsky, and feel certain that Mrs Hilton would have recalled and mentioned Mr Kavinsky screaming such a statement had it happened.

• At that point, Mr Kavinsky was still holding his car keys in his hand. He proceeded to his vehicle, calling loudly again for Monique Leget, (who was not outside the garage at the time of the stabbing), to come and “get the fuck in the car” as he was leaving. Ms Leget did so, while visibly upset and crying, and repeatedly yelling at Mr Kavinsky to ask what he had done; e.g., repeatedly saying, with apparent incredulity, “You stabbed somebody?” Mr Kavinsky then started the ignition and drove away in his vehicle with Ms Leget.

• Mr Kavinsky and Ms Leget then travelled directly from the Hilton property in Strathroy to a large rural property near Thamesville, in the Chatham-Kent area, (and identified by a specific municipal address at trial), where Mr Kavinsky lived with his parents. (It should be noted that Mr Kavinsky and his father apparently have the same first and last names. In these reasons, I will continue to use “Mr Kavinsky” when referring to the accused, and refer to Mr Kavinsky Senior as the “father”.) At the time of the incident, Ms Leget also was living at the Kavinsky property. The journey from the Hilton property to the Kavinsky property took approximately 45 minutes to an hour.

• When testifying at trial, Mr Kavinsky and Ms Leget gave significantly different accounts of what happened during the couple’s drive back to the Kavinsky property, and after their arrival there. In that regard:

  • Mr Kavinsky provided few details of what he and Ms Leget may have discussed in the car on their way to the Kavinsky property, emphasizing that they were both crying, and he generally was just focused on trying to calm her down. He denied any discussion, during the drive, of a strategy concerning what should be done or said in the circumstances. According to Mr Kavinsky, when the couple arrived at the Kavinsky residence, he was crying, upset and in a panic, with his clothes covered in blood, the knife used to stab Mr Hilton in his pants pocket, and asking his father for advice as to whether he should “run away” or turn himself in to the authorities. Mr Kavinsky says his father was crying and upset as well, but instructed to him to calm down, and assured him that it would be “all right”. Mr Kavinsky says he then handed his bloody clothes and the knife to his father, who removed and dealt with them in a manner unknown to Mr Kavinsky as he proceeded to take a shower and change into new clothing before the police arrived at the property shortly thereafter. Mr Kavinsky denied having any conversation with his father about strategy, and what should be said to the police. Mr Kavinsky also says Ms Leget remained with him the entire time, including standing in the bathroom with him as he was having his shower.
  • According to Ms Leget, she and Mr Kavinsky were both hysterically crying and “freaking out” during their drive back to Thamesville, and had a very intense, detailed and sustained conversation which lasted “pretty much the whole” way home. In that regard, Ms Leget says Mr Kavinsky began by repeatedly asking her what he should do in the circumstances. She answered with repeated indications that she had no idea, apart from wanting to “go home”, where Mr Kavinsky could speak to his father or both parents. There was also talk of possibly “running away”. As Ms Leget was angry and confused about what had happened, she also then yelled at Mr Kavinsky, asking him how he could stab her friend’s father. She says Mr Kavinsky’s responses included claims that Mr Hilton was “hitting him in the head up against the garage”. (I note in passing that the particular comment Ms Leget attributed to Mr Kavinsky does not make it clear whether Mr Kavinsky was saying Mr Hilton hit him in the head while the two men were located up against the garage, or whether Mr Hilton hit Mr Kavinsky’s head up against the garage. However, Ms Leget seems to have interpreted it as the latter, as she responded by indicating she did not believe Mr Kavinsky’s account, as she “did not hear anything of the sort from inside the garage”, where she was located at the time of the incident.) Ms Leget readily and candidly indicated that, after arriving at the Kavinsky property, she and Mr Kavinsky did not remain together for the entire time before the subsequent arrival of the police. For example, she says she and Mr Kavinsky each took a shower, and there also was a period when she was alone in the bathroom playing music on her computer, and trying to calm herself down. However, she had a firm recollection of Mr Kavinsky pacing nervously back and forth, and speaking with his father about what should be done in the circumstances. She repeatedly acknowledged without hesitation that she did not hear and/or recall all of that conversation. However, she had a definite recollection of Mr Kavinsky talking with his father about “hiding the evidence”. In particular, she says Mr Kavinsky’s father was very concerned about “hiding the knife and the clothes”, that Mr Kavinsky and his father both expressly agreed the items should be hidden, and that Mr Kavinsky then gave the knife and clothes to his father for that purpose. Moreover, she says there also was a discussion between her, Mr Kavinsky and his father about what should be said to the police in order to “protect Johnny”. She admits wanting to assist with such efforts at the time, as Mr Kavinsky was her boyfriend. She did not want him arrested, and feared that he might go to prison for a long time. She therefore went along with the “coaching” she received from Mr Kavinsky and his father in that regard. She says all of them collectively discussed what should be “added” to their comments, in order to “make up a story” to protect Mr Kavinsky, as none of them wanted him to go to jail.
  • I believe and accept Ms Leget’s account of what transpired after she and Mr Kavinsky returned to the Kavinsky property. My reasons for doing so include the matters, outlined below, concerning my general impression of the witnesses. However, I also think it incredible, in the circumstances, that Mr Kavinsky and Ms Leget had no serious discussion, during the 45-60 minute drive immediately after the stabbing, about their situation and what should happen next. Similarly, I think it incredible that Mr Kavinsky would have turned the knife and bloody clothes over to his father for removal without the two having some form of discussion about why that was being done, and in particular, about the father taking measures to dispose of them. No other rational explanation for giving the items to the father for removal was offered or suggested. Moreover, although Mr Kavinsky initially testified that conversation with his father was limited to a discussion of whether he should run away or turn himself in, and that they “weren’t talking about hiding the evidence or anything like that”, I thought it quite revealing that Mr Kavinsky, during testimony following that of Ms Leget, let slip that he “obviously knew why” his bloody clothing and the knife were being given to his father, and admittedly thought that his father would hide the items, although they “never conversated (sic) about where he was going to hide it or anything like that”. Even then, I note that, in his statement to the police, Mr Kavinsky eventually revealed that he actually did know that his father had taken the bloody clothes outside, and that the knife was hidden in the outside can where his family kept ash from the fireplace, acknowledging that he and his father had spoken about that. Moreover, although Mr Kavinsky initially suggested that he somehow may have been allowed to speak to his father while in custody at the police station, while both were being questioned, (which I think very unlikely in any event), Mr Kavinsky eventually conceded he actually did not think that had happened. In my view, that in turn means that Mr Kavinsky and his father must have discussed hiding of the knife while still at the Kavinsky property, before the police arrived and arrested Mr Kavinsky. For all these reasons, I find Mr Kavinsky was indeed complicit in efforts to hide or destroy relevant evidence.

• The police arrived at the Kavinsky property later that same morning, (i.e., on Sunday, December 14, 2014), and arrested Mr Kavinsky at 7:25am; i.e., approximately 3-4 hours after the stabbing, and approximately 2-3 hours after Mr Kavinsky and Ms Leget had returned to the Kavinsky property. Mr Kavinsky was taken into custody, and returned to the police station where he was questioned. (Ms Leget testified, and I accept, that she and Mr Kavinsky’s father also were taken to the police station for separate questioning, albeit in a police vehicle different from the one in which Mr Kavinsky travelled, as he was handcuffed and formally in custody.)

• Police questioning of Mr Kavinsky resulted in a series of statements to the police that were recorded on video, and eventually made exhibits at trial.

• Mr Kavinsky’s first recorded statement to the police began at 10:11am on December 14, 2014; i.e., more than six hours after the stabbing, and more than 2½ hours after Mr Kavinsky’s arrest. In the course of that statement, (described at trial as the “map route” video, and marked as Exhibit 9), Mr Kavinsky was questioned repeatedly about the knife he had used to stab Mr Hilton, and what had been done with it. In particular, the recording began with confirmation that Mr Kavinsky had told the police the knife was thrown from his vehicle during the drive from the Hiltons to his home. He was then asked to confirm the route he had travelled, (with the assistance of a county map), and the approximate location of where the knife might have been thrown from the car. In response, Mr Kavinsky reviewed and confirmed the route he had taken, and that he had thrown the knife out the driver’s side of his vehicle. However, in response to continued questioning, and requests for an approximate location of where disposal of the knife had happened so the police could narrow their search efforts, Mr Kavinsky repeatedly claimed he had “no idea”, could not say whether that had happened early in the drive or later, and “really couldn’t tell” the police where the knife might be. He repeatedly emphasized that he wanted “to do anything” he could to help the police, was “trying to participate”, and wished he could help, but could not do so for several proffered reasons; e.g., because the roads “all look the same”; because he had been “too in the moment”, “in shock”, and “not thinking about it”; and because he had been “really emotional because Monique was angry with him the whole way home”. During his answers, Mr Kavinsky admittedly lied repeatedly to the police. At trial, Mr Kavinsky initially testified that he did so because he did not want to “get into trouble”. However, he subsequently indicated that he lied to the police because he did not want his father to get into any trouble, emphasizing that his “instant reaction” was to protect his father.

• In any event, acting on Mr Kavinsky’s initial false indications of how and where he had disposed of the knife used in the stabbing, those investigating the incident dispatched Officer Romanuk, on the afternoon of December 14, 2014, to search for the discarded weapon along the route said to have been taken by Mr Kavinsky and Ms Leget from the Hilton property in Strathroy to the Kavinsky residence in Thamesville. Officer Romanuk searched the route for hours, but was unable to locate the knife.

• Recorded police questioning of Mr Kavinsky began again at 6:53pm that same day; i.e., approximately 15 hours after the stabbing, and more than 11 hours after Mr Kavinsky’s arrest. Matters addressed during that questioning included Mr Kavinsky’s account of events leading to the altercation, the altercation itself, and what had been done with Mr Kavinsky’s knife and bloody clothes. As addressed elsewhere in these reasons, Mr Kavinsky made numerous statements during the course of that lengthy period of questioning, (which concluded at approximately 8:21pm), that were consistent and inconsistent with his testimony at trial.

• In the course of that subsequent police questioning, it also was suggested to Mr Kavinsky that he write a note or letter to Mr Hilton, and he did so. The full text of the relevant letter can be found in Exhibit 8. However, it contains numerous expressions of apology and regret, as well as concern for Mr Hilton and his family. It also contains comments indicating that Mr Kavinsky was scared and did not want the incident to happen, along with indications that he was “very ashamed” of his behavior and felt “absolutely worthless” for doing what he had done.

• The following day, (i.e., December 15, 2014), members of the Middlesex Crime Unit, the West Region Forensic Identification Unit, (including Officer Spencer), and additional police assigned to secure the scene and provide assistance, (including Officer Romanuk), attended at the Kavinsky property and residence in Chatham-Kent to execute a search warrant. Specific items of interest were the knife used by Mr Kavinsky in the stabbing, as well as blood-stained clothing, including specified articles of described clothing Mr Kavinsky was thought to have been wearing at the time of the stabbing. In the course of executing the search warrant, Officer Romanuk was tasked with following up on information obtained by the police, indicating that the knife used in the stabbing may have been discarded in a fire pit or pail of ash somewhere in the exterior areas of the property. Officer Romanuk then located a pail, on the property, which was half-filled with wood ash from a fireplace. He toppled it over, sifted through the ash, and discovered the knife admittedly used by Mr Kavinsky to stab Mr Hilton. That was drawn to the attention of others, including Officer Spencer, who photographed the scene, and then seized the knife. It seems the clothes were never located.

Evidence – General witness assessment

[22] Before proceeding with my substantive analysis, (in the course of which I will be addressing further contentious and contradictory aspects of the testimony presented at trial), I think it appropriate to comment on certain general impressions of the various trial witnesses and their respective testimony.

[23] In that regard, dealing first with the witnesses called by Crown counsel:

• Officers Romanuk and Spencer gave their testimony in an entirely dispassionate, non-partisan and direct manner. Their respective memories of events and observations were refreshed and buttressed by their reference to contemporaneous or near contemporaneous notes, and the photographic exhibits. Their testimony was not seriously challenged or undermined by cross-examination, and in my view there was no apparent reason to question their credibility and reliability.

• Shannon Hilton’s testimony was soft-spoken, calm, direct, spontaneous, consistent and fair. In particular, it seemed to me that he made no effort to minimize or excuse some of his own possibly questionable behavior on the evening in question; e.g., his effective delegation of most if not all responsibility for organization and supervision of the party to others, his own alcohol consumption, his indication that he probably pushed Mr Kavinsky first, and his own violent reaction, threats and behavior after realizing that he had been stabbed. Nor was he inclined to attribute misconduct to Mr Kavinsky, (such as resort to the first hit, or a particular number of hits inflicted by Mr Kavinsky), when he admittedly was not sure of the correct answer. For all these reasons, Mr Hilton seemed very credible to me. As for Mr Hilton’s reliability, I am mindful of his acknowledged consumption of alcohol before relevant events, and the debilitating effects of his serious injuries. The latter certainly seemed to have clouded his memory of post-stabbing events. However, Mr Hilton emphasized that his alcohol consumption was not to the point where it impaired his recollection, and he was quite candid and specific in his indications of what he did and did not know or observe, (e.g., because he was not involved, not present or not paying attention), what he was and was not able to observe, (e.g., the knife used by Mr Kavinsky when the two men were grappling with each other), and what he simply could and could not recall. That general candour reinforced an impression of general reliability in relation to what Mr Hilton said he did observe and could remember. It also seemed to me that Mr Hilton’s recollection of what happened immediately before and during his physical contact with Mr Kavinsky inherently had heightened focus for him owing to its traumatic nature, and the reality that his interaction with others in and around the scene of the stabbing was somewhat limited and isolated to the incident involving Mr Kavinsky. In my view, cross-examination of Mr Hilton did not shake his recollection of events, or expose any significant inconsistencies. On balance, I therefore found Mr Hilton’s testimony about what he was able to recall both credible and reliable.

• Hailee Hilton and Melissa Hilton were inherently loyal to Mr Hilton, and both understandably were upset by the serious injuries inflicted on their father and husband, respectively. Similarly, at the time of the party, Mr Falkins was a close family friend of the Hiltons, but apparently had never met the accused before the evening of the party. The relationship of Mrs Hilton, Hailee and Mr Falkins to Mr Hilton arguably could provide a motivation to fabricate evidence to exact retribution against Mr Kavinsky. However, our appellate courts repeatedly have warned against the dangers of assuming that a witness will be untruthful solely on the basis of the relationship between that witness and the complainant (or the accused). The testimony of such a witness must instead be assessed in light of all the evidence, and in light of common sense and contextual probabilities. See, for example: R. v. Murray (1997), 1997 1090 (ON CA), 115 C.C.C. (3d) 225 (Ont.C.A.), at paragraph 8; and R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at paragraph 11.

• In her testimony, and the course of cross-examination by defence counsel in particular, Hailee Hilton nevertheless adopted a tone, demeanour and manner of response that struck me as combative, argumentative, and partisan. She emphasized that she had seen her “strong father stick up for himself and try to stay alive”. She seemed reluctant to provide evidence, address issues and acknowledge inaccuracies, inconsistencies or certain events, (even events acknowledged by her parents), when doing so might portray her father or mother in a negative or violent light. For example, Hailee seemed inclined to minimize conduct of her father; e.g., initially claiming at trial that he had retrieved the broom from an already open area in the garage, and denying that her father had kicked open a door, whereas the photographic evidence confirms other accounts – including Hailee’s own statement to the police hours after the incident - that a bleeding Mr Hilton had kicked open a door in the garage. Similarly, Hailee attempted to dismiss obvious inconsistencies between her earlier statements to the police and her testimony at trial concerning her father’s conduct, (e.g., her earlier statement to the police about her father “beating the shit” out of Mr Kavinsky with a broom), on the basis such earlier comments had simply been “panicked” or “drunken” inaccuracies or “overstatements” on the night in question. When asked whether she had seen her mother punch Mr Kavinsky in the face and knock him into the mound of dirt, Hailee was emphatic that those events “absolutely never happened”, when Mrs Hilton herself acknowledged her conduct in that regard. Conversely, Hailee seemed eager to offer answers and more expansive comments attributing various forms of misconduct to Mr Kavinsky that to me seemed at least exaggerated, if not fabricated. For example, she emphasized that Mr Kavinsky frequently smoked marihuana, was doing so throughout the party, and circulated around the party freely handing out marihuana joints to “everyone”; an assertion that seems inherently implausible to me for several reasons, including Mr Kavinsky’s financial self-interest and apparently limited familiarity with many at the party. Similarly, Hailee claimed to have seen Mr Kavinsky consume an entire 26 oz bottle of alcohol while at the party, which in my view likely would have rendered Mr Kavinsky not just drunk and unable to walk well, as Hailee alleged, but comatose.) Hailee similarly exaggerated the nature of the injuries inflicted on her father by Mr Kavinsky, claiming that her father’s “guts were all hanging out”. (Mrs Hilton says, and I accept, that there was merely “flared skin” visible on Mr Hilton’s bleeding stomach; a description which echoes that of Mr Falkins, who referred to a “protrusion”.) Hailee also seemed eager to describe Mr Kavinsky in highly pejorative terms; e.g., claiming that he resembled and was acting like a “wild ape”. All such considerations strongly suggested to me that Hailee was taking on an advocacy role favouring a particular narrative, rather than serving as a reliable reporter of what she had observed. I also had apprehensions regarding Hailee’s reliability as a witness, given that she was the focus of the birthday gathering, (held primarily for her enjoyment), understandably would have been concentrating on interaction with friends rather than responsibility for monitoring the evening’s events, and admittedly had been consuming both marijuana and alcohol during the party, at a rather young age. Although she downplayed her level of impairment during early parts of her testimony, she later mentioned that she already was “really out of it” well before the altercation, (e.g., at the time she claimed to have seen her father sending the accused home in a cab, earlier in the evening, because Mr Kavinsky was too intoxicated to remain at the party), and I already have made reference to her later repeated and express reliance on the fact she was “still drunk” at the time of her statements to the police, approximately four hours after the incident, as a means of explaining their inconsistency with her trial testimony. I also was struck by her repeated indications that she did not remember many details of who was where, and what may have been said or done, because the night was “all kind of a blur” to her, and became more confusing as her “shock” and adrenalin surged. Moreover, by her own initial indication during examination in chief, (repeated during cross-examination), she was inside the garage building and exited in response to someone entering and announcing that there had been a stabbing, which strongly suggests to me that Hailee simply was not present for most or all of the most crucial developments and events relating to the aggravated assault offence and claim of self-defence. That impression was buttressed by Mrs Hilton’s independent indication that Hailee was not outside to witness the events leading up to the stabbing, as well as other problematic aspects of Hailee’s testimony. For example, at trial, Hailee testified that the altercation between Mr Hilton and Mr Kavinsky took place entirely in the laneway and at the doorway of Mr Kavinsky’s car, (as he was trying to leave), and that the two men never left that area and were “never near the garage”, although Mr Hilton, Mrs Hilton and Mr Kavinsky all said otherwise – as Hailee herself did in her earlier statement to the police. Hailee also described alleged significant aspects of the confrontation between Mr Hilton and Mr Kavinsky, (e.g., Mr Kavinsky with his hands around Mr Hilton’s neck as Mr Hilton struggled to tell him that “drinking and driving was not worth it”), which not only seem unrealistic to me, but also were not mentioned by either man or Mrs Hilton when that would have been expected. Furthermore, prior to cross-examination, Hailee testified that she saw the knife used by Mr Kavinsky to inflict Mr Hilton’s wounds sitting in Mr Kavinsky’s car in Strathroy the day after the incident, even though she acknowledged having never seen the knife on the night of the altercation, and even though other evidence made it quite clear the actual knife used by Mr Kavinsky had been hidden in an ash can at the Kavinsky residence shortly after the incident, before then being found and seized by the police the following day. Similarly, Hailee was confident that Mr Kavinsky had stabbed Mrs Hilton in the leg, even though Mrs Hilton herself said she did not believe that had happened; that a cut on her leg had been caused by something else; and that a flippant comment by her to Hailee about that was not intended to be taken seriously. In other words, Hailee was quite willing and ready to testify confidently about matters really depending on demonstrably false memories, inferences and inaccurate hearsay. For all these reasons, I am not inclined to attribute much weight to Hailee’s testimony, particularly where it conflicts with that of witnesses I considered more credible and reliable, (such as Hailee’s parents), in relation to significant details.

• Melissa Hilton, in contrast to her daughter, seemed generally intent on being truthful and accurate, despite her admitted feelings for her husband and acknowledged inability to understand why Mr Kavinsky had done something she viewed as unwarranted and inappropriate. Her testimony was clear, precise, detailed and offered without hesitation. In my view, her testimony also generally was consistent, with reasonable explanations offered for suggested inconsistencies with her earlier statement to the police. (For example, she clarified and confirmed that her earlier statement referring to her “thought” that Mr Hilton would “throw Johnny up against the wall and that would be the end of it” was a reference to her expectation or speculation at the time, and not a reference to what she actually saw take place. Similarly, she explained that her reference to her husband grabbing the accused and throwing him into the garage door, and “guessing” that her husband was stabbed at that point, were really assumptions and speculation on her part, after she had been speaking with others about the events of the evening. More generally, she emphasized that she was exhausted, distracted and not being careful at the time of her statement to the police, as it was 11am the next morning, (approximately seven hours after the incident), she had been up all night, and she was hurrying to complete the interview so that she could get to the hospital and see her husband. In her trial testimony, Mrs Hilton readily indicated and acknowledged her inability to recall certain details or observe certain events, especially when her focus and efforts were directed elsewhere. She similarly was candid in acknowledging Mr Hilton’s swearing, as well as her own swearing and resort to violence on the evening in question, once she realized her husband had been stabbed. She also was unwilling to attribute further misconduct to the accused, (e.g., by suggesting that the cut to her own leg was an additional stab wound inflicted by Mr Kavinsky), where she believed that was unjustified. On the whole, I accordingly found her to be quite credible. Moreover, her reliability as a witness was enhanced by the clearly serious and attentive manner in which she approached her role as a responsible social host that evening; e.g., limiting her own alcohol consumption, repeatedly circulating amongst the guests at her daughter’s party, actively intervening when she perceived situations of enhanced risk and potential danger, and calling for assistance from her husband and others when her assessment of situations suggested such assistance was necessary and appropriate. (Mrs Hilton was adamant and I accept that she did not consume any alcohol whatsoever on the evening and morning in question until shortly before the stabbing; i.e., within the preceding 30 minutes, at a time when she felt the party effectively was over apart from making final arrangements for those who were staying, and those who lived nearby and were just about to walk home. Mr Kavinsky himself indicated that Mrs Hilton seemed sober throughout the evening. I therefore also accept that she was entirely sober or nearly so at all material times.) In broad terms, Mrs Hilton seemed intent on fulfilling the role of primary sober and responsible “grown up” at the party. In my view, her key recollections at trial were not shaken in cross-examination, and I am inclined to put considerable weight on her testimony.

• Isaiah Falkins was only two years older than Hailee, but seemed much more mature, calm and dispassionate. In my view, various aspects about his testimony spoke to his credibility. For example, while he had positive things to say about the Hiltons and Mr Hilton in particular, he also said commendable things about Mr Kavinsky’s behavior at the party earlier in the evening, was not inclined to say that Mr Kavinsky was intoxicated “by any means”, and in certain ways downplayed the significance of Mr Kavinsky’s display and use of a knife earlier in the evening. Mr Falkins also was reluctant to confirm that what he saw Mr Kavinsky drinking was alcohol, or that the knife shown to him at trial definitely was the one Mr Kavinsky had in his possession prior to the stabbing, (as opposed to a knife that was at least similar to what Mr Falkins had seen). For such reasons, I formed an impression that Mr Falkins was trying to be fair, in spite of any loyalties he might have to the Hilton family. However, in my view, other aspects of Mr Falkins’ testimony gave rise to significant concerns about his reliability as a witness, particularly in relation to Mr Falkins’ memory of events surrounding the stabbing. Reasons for my concern about the reliability of Mr Falkins were varied. For example, the answers he gave during examination and cross-examination generally were quite brief and lacking in detail, compared to the far more detailed testimony of witnesses such as Mr and Mrs Hilton. While Mr Falkins downplayed his own alcohol consumption on the night of the party, (e.g., saying that he prefers to remain sober and level-headed), he also acknowledged having consumed at least 3-4 beers and 1-2 shots of alcohol. He also indicated at one point that he admittedly was having difficulty recalling details, owing to the intervening passage of time. Moreover, he also made certain assertions that seemed highly questionable or demonstrably false. For example, he initially suggested that there may have been only 8 guests at the party the whole night, which seems unlikely to me, particularly given the other indications I received, from Mr Hilton, and from Hailee and Mrs Hilton, (who organized and supervised the party), that the total attendance of Hailee’s friends and their boyfriends was significantly higher. At the very least, it seemed that Mr Falkins was inclined to stay inside the garage and interact with a very limited number of people during most of the evening, thereby significantly limiting his ability to observe what may have been going on elsewhere. Mr Falkins also said he did not see anyone intoxicated at the party, despite considerable other testimony and admissions indicating that a number of young attendees, including Hailee, were drunk, throwing up and/or sent home with parents or in taxis. Mr Falkins similarly claimed that he spoke with Mr Hilton throughout the evening, never saw a drink in Mr Hilton’s hands, and that Mr Hilton was entirely sober, although Mr Hilton himself confirmed that he actually spent most of his time near the house rather than the party in and around the garage, had very little interaction with Hailee’s party guests, and admittedly was drinking and intoxicated. Moreover, various aspects of Mr Falkins’ account of events around the time of the stabbing seemed inherently implausible to me. For example, Mr Falkins said he did not see Mrs Hilton in or around the garage at any time, (including during the time of the altercation between Mr Hilton and Mr Kavinsky, and the events that followed immediately thereafter), until Mrs Hilton entered the garage with her children sometime after Mr Hilton eventually had been taken into the building to await the arrival of paramedics. In my view, such an extended absence by Mrs Hilton from the vicinity of the party seems very unlikely, given her testimony, which I accept, about her determination to exercise supervision over the party. (Mr Kavinsky himself confirmed that she had been at the party, serving food, and taking steps to enforce the prohibition against drinking and driving.) Moreover, Mrs Hilton’s unquestioned efforts to stop Mr Kavinsky from driving make it clear that she was indeed around the garage shortly before the stabbing, still intent on exercising parental supervision, and obviously very much involved and interested in the efforts she and her husband were making to prevent the accused from driving. Any suggestion that Mrs Hilton then effectively abandoned her husband, and vanished from the scene in and around the garage for an extended period of time, therefore not only seems incredible to me, but also suggests that Mr Falkins himself was either not present where and when he says he was, was otherwise not able to make accurate observations in relation to certain matters, or does not have a reliable memory of those matters for other reasons, such as a lack of sobriety. Similarly, Mr Falkins outlined a sequence of events around the time of the stabbing that was different and more prolonged, in significant ways, to that described by Mr and Mrs Hilton, and by Mr Kavinsky. In that regard, the account of Mr Falkins was not only significantly different, but also struck me as implausible. In particular, according to Mr Falkins, Mr Hilton was stabbed, then separated from Mr Kavinsky for a period of time, (during which Mr Falkins entered a group of people surrounding Mr Hilton, proceeded to calm Mr Hilton down, check both of Mr Hilton’s hands for weapons, put his hand on Mr Hilton’s stomach, lift Mr Hilton’s shirt to reveal and examine Mr Hilton’s torso injuries, and announce to all present and for the first time that Mr Hilton had been stabbed), before Mr Hilton then became angry and animated, broke open the storage area to retrieve “a broom or mop”, and used that item to attack Mr Kavinsky. In my view, Mr Hilton would have been and clearly was bleeding profusely after receiving his wounds, making it immediately obvious to Mr Hilton that he had been stabbed, (once the bleeding was drawn to his attention). Moreover, the injuries were such that Mr Hilton’s ability to remain active and conscious were fading rapidly, resulting in his complete incapacitation within a fairly short period of time. In the circumstances, the accounts provided by Mr Hilton, Mrs Hilton and Mr Kavinsky of Mr Hilton’s almost immediate anger and retaliation vis-à-vis Mr Kavinsky, before the collapse of Mr Hilton and Mr Falkins’ subsequent ministrations, seem far more realistic to me than Mr Falkins’ account of an intervening period of a group gathering around Mr Hilton, and calm pacifying involvement and/or treatment by Mr Falkins. I therefore think it likely that Mr Falkins has confused the order of events in that regard, elevating his level of involvement in the process, even though that may not have been deliberate. I also was struck by Mr Falkins’ initial indication that he witnessed no distinct punches and “no anything” but shoving when he allegedly saw Mr Hilton and Mr Kavinsky “holding” each other, followed by subsequent indications that he saw Mr Kavinsky, during that same time, make two movements which looked like Mr Kavinsky was punching Mr Hilton twice in the stomach. On that point, the testimony of Mr Falkins was not only significantly inconsistent, but also suggests to me that Mr Falkins really may have been drawing inferences from the two torso wounds he saw when he eventually lifted Mr Hilton’s shirt. Certainly, the objective evidence suggests to me that Mr Kavinsky realistically must have made more than two stabbing movements to inflict the total number of wounds actually received by Mr Hilton. (In that regard, I note and accept the possibility, raised by defence counsel, that one particular stabbing motion effectively may produce more than one wound. However, in my opinion, the location of Mr Hilton’s separate wounds, their nature, and their severity all indicate that there realistically must have been significantly more than simply two stabbing motions, and I think the number of stabbing motions was close if not equal to the number of wounds inflicted.) Moreover, since all the wounds were inflicted within a very short span of time, I think Mr Falkins likely would have seen more than two stabbing movements by Mr Kavinsky had Mr Falkins actually been outside to observe the physical altercation. As noted above, there were indications that Mr Falkins was credible, and trying to be truthful and fair in his testimony. However, he also acknowledged having numerous discussions with others, both on the night in question and since that time, about what may have happened. For all such reasons, I therefore have serious doubts about Mr Falkins’ reliability, particularly in relation to his account of witnessing events later in the evening/morning, and especially the altercation between Mr Hilton and Mr Kavinsky when the stabbing occurred. I believe Mr Falkins was instead drawing inferences and piecing together accounts supplied to him by others, along with his own possible observations as to what happened in the wake of the stabbing.

• As for Monique Leget, she acknowledged that, while she had loved Mr Kavinsky at one point, she believed their relationship was “abusive”, felt that Mr Kavinsky had done unforgiveable things to her, and admittedly did not like him at the time of her testimony. She freely admitted that she therefore had not wanted to cooperate with defence counsel in advance of trial. More generally, Ms Leget was clearly a troubled and fragile witness, who admittedly has been formally diagnosed as suffering from depression, anxiety and post-traumatic stress disorder. (That formal diagnosis was made approximately one year after the events giving rise to this proceeding, but Ms Leget candidly indicated her belief that her condition had been “more or less the same” at the time of the events in question.) Throughout her testimony, Ms Leget exhibited what appeared to be genuine anxiety and apprehension. She obviously and expressly did not wish to be present in court, and indicated that she was “terrified” by the prospect of testifying in this proceeding, to the point of asking for the court’s “protection” after she had given her evidence. However, her apparently sincere fear of retaliation if she said anything adverse to the accused, (whether or not there was any real basis for that fear), strongly suggested to me that Ms Leget also honestly believed in the truth of what she was willing to say in that regard. Moreover, that impression of honesty and fairness was reinforced by her readiness to acknowledge that her memory was “hazy” in certain respects, and that she was unable to hear or witness certain conversations or actions; e.g., because she was out of the room or otherwise not present at certain times. Although firm in certain answers, (such as her confirmation of Mr Kavinsky’s express agreement with contemplated hiding of evidence, and his participation in forming plans in that regard), Ms Leget was not argumentative, and was quite willing to agree with other propositions casting Mr Kavinsky in a more positive light; e.g., confirming that Mr Kavinsky’s father had led the discussion about hiding or destroying evidence, and that there had not been time for the discussion of detailed plans before the police arrived. More generally, I also was impressed by the emotional, artless and spontaneous manner in which Ms Leget answered questions. In short, Ms Leget struck me as being a credible witness, notwithstanding her current feelings about the accused. As for her reliability, Ms Leget readily confirmed that she was young at the time of the incident, and that she had been consuming alcohol; e.g., sharing in the consumption of a 26oz bottle of liquor. Having said that, she also noted that, while she therefore had been “pretty drunk” earlier in the evening, several hours had passed between that time and the post-stabbing events described in her testimony. Apart from intoxication, she repeatedly indicated that she was extremely stressed by the events of the evening, “in shock” at certain times, and could not remember certain details of what had happened. Moreover, aspects of her presentation were at times somewhat immature and childlike, and occasionally very emotional. However, looking beyond presentation and focusing on substance, I think the underlying developments outlined in her testimony actually formed an ordered, consistent and rational sequence of events in respect of which Ms Leget’s account was not really shaken in cross-examination. Moreover, insofar as the police witnesses effectively confirmed that there were indeed apparent efforts taken to hide or destroy evidence, and there was no evidence to suggest that Ms Leget was aware of what the police had found in that regard, her testimony about hearing discussions regarding the proposed hiding of evidence was to some degree corroborated. In the result, I believe she provided me with a credible and reliable account of events occurring after she and Mr Kavinsky left the Hilton property.

[24] Again, all of the witnesses I have just described generally were called by the Crown. The only witness called by the defence was the accused, Mr Kavinsky.

[25] As emphasized in my earlier comments and self-direction concerning R. v. W.(D.), supra, belief in the testimony of an accused may result in an acquittal, but the possibility of acquittal does not depend on such a belief. The testimony of an accused may not be believed but still raise reasonable doubt. Even if it does not have that effect, the remaining evidence accepted by the trier may be sufficient to raise reasonable doubt.

[26] However, assessing the credibility and reliability of an accused who testifies obviously is still a relevant and important consideration in the required overall analysis.

[27] In my view, Mr Kavinsky generally was not a credible or reliable witness for a number of reasons.

[28] In saying that, I want to expressly acknowledge and underscore the importance of rejecting completely any presumption that Mr Kavinsky should be disbelieved just because he is facing a criminal charge, and therefore would lie to secure his acquittal. As emphasized in R. v. Laboucan, supra, at paragraph 12, both innocent and guilty accused persons have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Any assumption that an accused will lie to secure his or her acquittal therefore flies in the face of the presumption of innocence.

[29] However, while a testifying accused is not presumptively unbelievable, neither is he or she presumptively believable. In particular, an accused who testifies is not immunized from a finding that he or she lied in testimony, or gave evidence lacking in credibility or reliability, based on other proper and relevant considerations. See R. v. Laboucan, supra, at paragraph 20.

[30] In my view, such considerations exist in this case.

[31] To begin with, I think various aspects of Mr Kavinsky’s “after the fact” conduct raise some rather obvious concerns, when it comes to accepting Mr Kavinsky as a truthful and believable witness.

[32] In that regard, I am very mindful of the reality that “after the fact” conduct evidence is often imprecise, and often consistent with a variety of competing inferences, some of which may be incriminating and some of which may not.

[33] For example, in this case, Mr Kavinsky fled the scene immediately after the stabbing. Evidence of flight may have probative value based on a common sense inference that innocent people ordinarily would not flee such a scene, but instead remain to assist with any injuries caused by their conduct and to deal with authorities. On the other hand, leaving the scene arguably may have been a reasonable response in the circumstances; e.g., if Mr Kavinsky was facing threats and possible attack from a broom-wielding Mr Hilton, (after Mr Hilton realized he had been stabbed), accusations and physical attacks by Mrs Hilton, and an accusatory, emotional and hostile crowd of people sympathetic to the Hiltons. All of that reasonably may have made Mr Kavinsky genuinely concerned about a further altercation before the police arrived, suggesting that leaving the scene was the wisest course of action.

[34] In this case, however, Mr Kavinsky’s after-the-fact conduct also includes condoning and/or actively participating in measures obviously designed to frustrate a search for the truth in relation to the events which bring him before the court. In particular:

• relevant or potentially relevant evidence, (the knife used to stab Mr Hilton and the bloody clothes worn by Mr Kavinsky at the time of the stabbing), was deliberately hidden or destroyed; and

• Mr Kavinsky repeatedly lied to the police, in an elaborate and sustained way, over an extended period of time, in a manner that actively misdirected their efforts to locate relevant evidence.

[35] In my view, these are not the actions of a truthful person, and raise serious doubt about whether Mr Kavinsky was being truthful when testifying at trial.

[36] For related reasons, I also place little weight or value on Mr Kavinsky’s statements to the police, and letter to Mr Hilton, as prior consistent statements forming persuasive evidence of his credibility and/or innocence. In particular, while those prior statements consistent with Mr Kavinsky’s testimony at trial have been formally admitted into evidence in accordance with the parties’ agreement, I think the circumstances of their making do not give rise to the considerations of relevance and probative value highlighted in authorities such as R. v. Edgar, supra, and R. v. Laird, supra.

[37] Those authorities emphasize that a person’s “spontaneous” and “immediate” reaction, upon arrest or otherwise first being accused of having committed a crime, might be of vital relevance, and one of the best pieces of persuasive evidence that an innocent person can produce; e.g., something with more reliable and probative value than an accused’s testimony given years later in a courtroom.

[38] In this case, however, as Mr Kavinsky himself acknowledged, he was first accused of wrongdoing right after the stabbing, by Mrs Hilton, and his immediate response was not a claim of self-defence but an exculpatory fabrication that he was “only fifteen”.

[39] Furthermore, his statements to the police, and the statements in his letter to Mr Hilton, in relation to the altercation, were hardly spontaneous. They were made more than 15 hours after the stabbing and Mr Kavinsky facing initial accusations of wrongdoing, and more than 11 hours after Mr Kavinsky’s arrest on a charge of aggravated assault. They also were made many hours after Mr Kavinsky had thought about and discussed his situation and recommended course of action with Ms Leget and his father, before then participating in and/or condoning efforts to conceal or destroy relevant evidence, and misleading police with repeated and/or sustained lies. In my view, once Mr Kavinsky demonstrably had turned his mind and efforts in such directions, hours before his proffered “previous consistent statements” to the police, any circumstantial presumption or suggestion of truth flowing from spontaneity had evaporated.

[40] It was argued that the demeanour exhibited by Mr Kavinsky during his statements to the police was, by itself, evidence consistent with and supportive of Mr Kavinsky’s assertions that he was highly emotional and afraid at the time of the incident, and that he had been acting in legitimate self-defence. In particular, reliance was placed on Mr Kavinsky’s crying during the course of questioning by the police, his repeatedly expressed questions and concerns regarding Mr Hilton’s health after the stabbing, and Mr Kavinsky’s emotional reaction when told that Mr Hilton was going to survive the stabbing injuries.

[41] While I accept that evidence of demeanour during post-conduct statements might very well have relevance in the sense suggested, it seems to me that the demeanour evidence relied upon by the defence in this case is nevertheless essentially ambiguous. In particular, while I think there is no question Mr Kavinsky was stressed, upset and tearful at various points during questioning by the police, anxious when repeatedly inquiring about the health of Mr Hilton, and highly emotional when he received news that Mr Hilton would survive, Mr Kavinsky’s emotions and reaction give rise to at least two competing inferences:

• On the one hand, it arguably reflected a continuation of Mr Kavinsky’s professed intention not to inflict serious harm on Mr Hilton or anyone, and his professed extremity of emotions at the time of the altercation, including confusion, claustrophobia and fear for his life, that effectively led him to do otherwise.

• On the other hand, Mr Kavinsky arguably knew that he had acted improperly and without any serious fears or other emotions giving rise to adequate justification, thereby exposing him to the possibility of serious punishment, and punishment that was likely to be more severe if Mr Hilton died from his wounds. In the circumstances, Mr Kavinsky therefore had concerns of self-interest which may have prompted his upset and anxiety, inquiries about Mr Hilton’s health, and his reaction to news of Mr Hilton’s survival, with that reaction simply reflecting overwhelming relief that the consequences for Mr Kavinsky would not be as serious as they might have been had Mr Hilton died.

[42] In my view, the latter inferences frankly seemed more consistent with extended periods of calm behavior during Mr Kavinsky’s recorded statements to the police, including the initial stages of that process, (suggesting that any extremity of emotion felt during the altercation had passed), as well as his repeated emotional focus, during questioning, on the possible consequences he was facing as a result of his conduct; e.g., emphasizing that he was scared of being “in some kind of shit”; that he was “really worried about how much trouble [he’d] be in”; that he was “just trying to know what’s going to happen to [him]”; that he was wondering if he would get leniency; that he really did not want “to go to jail”; that he was “just worried” and “afraid” about “going to jail”, “going straight to jail”, and being “locked up”; and that he had been sitting in his holding cell “scared shitless” that he would be in a cell “for … the rest of [his] life”. Moreover, it seemed to me that, at certain times during discussion of his confrontation with Mr Hilton, Mr Kavinsky seemed more angry than fearful.

[43] On the whole, I nevertheless am not inclined to accord weight one way or the other to the demeanour Mr Kavinsky exhibited while giving his recorded statements to the police, given the inherently ambiguous nature of that evidence.

[44] In my view, similar considerations apply to the letter written by Mr Kavinsky, to Mr Hilton, while in police custody after the stabbing. While parts of the letter suggest altruism, and are consistent with Mr Kavinsky’s contention at trial that he acted out of fear, other parts suggest that Mr Kavinsky knew and conceded that he had acted and reacted inappropriately. In the result, I am inclined to regard evidence of the letter as being similarly neutral in weight and significance.

[45] In addition to the above considerations relating to Mr Kavinsky’s credibility and reliability as a witness, it seemed to me that the entirety of his statements to the police and testimony at trial involved numerous significant inconsistencies, as well as admitted lies and demonstrable inaccuracies. In my view, that too substantially undermined Mr Kavinsky’s credibility and/or reliability. For example:

• In his statement to the police, Mr Kavinsky initially suggested that Mr Hilton confronted him when he returned to the party to “pick up” Ms Leget. Later in his statement to the police, Mr Kavinsky indicated, (as he did at trial), that he and Ms Leget left the party for a while before they returned to it together on foot.

• In his statement to the police, Mr Kavinsky repeatedly claimed Mr Hilton initiated the confrontation, becoming angry and physical in response to Mr Kavinsky’s “back-talking”, simply because Mr Kavinsky refused to leave the party immediately, as instructed by Mr Hilton, without waiting for Ms Leget. Mr Kavinsky also claimed that he “didn’t disagree with [Mr Hilton] or anything” before Mr Hilton became physical. Mr Kavinsky failed to mention, and then expressly denied, in response to further questioning by the police, that Mrs and Mr Hilton had any discussion with him about drinking and driving. He also indicated that he did not know why Mr Hilton had grabbed him. At trial, Mr Kavinsky indicated that he had been informed of the drinking and driving rule, had surrendered his keys accordingly, and was confronted later by Mrs Hilton and Mr Hilton when he returned to the party, tried to leave in his vehicle, and refused to comply with their demands that he surrender his car keys. In cross-examination, Mr Kavinsky acknowledged that his account to the police was deliberately inaccurate because he “wanted to stay out of trouble”, “didn’t want to admit to drinking and driving”, and therefore was prepared to tell what he considered to be “a little white lie” about the actual circumstances of the confrontation. Similarly, he acknowledged lying about the Hiltons efforts to communicate and enforce their drinking and driving rule, as he wanted to “keep that out”.

• In his statement to the police, and initially at trial, Mr Kavinsky claimed that Mr Hilton “just grabbed [him] and started hitting [his] head against the garage”, and that he did not know why Mr Hilton had grabbed him. At trial, Mr Kavinsky acknowledged that physical contact near the garage had been preceded by shoving back and forth, while the two men moved towards the garage, and that Mr Hilton was trying to grab Mr Kavinsky’s keys.

• In his statement to the police, Mr Kavinsky claimed that he had to go underneath his car to retrieve his spare key “in the midst of all the … fighting and everything”. At trial, Mr Kavinsky initially indicated that he already had retrieved his spare keys from underneath his car before any confrontation with Mrs Hilton or Mr Hilton. In later cross-examination, Mr Kavinsky suggested that he may have retrieved his spare key after Mrs Hilton approached him, following his return to the party, to remind him of her rule about drinking and driving. However, I think it clear Mrs Hilton would not have approached and confronted Mr Kavinsky again about the rule unless he already had engaged in retrieval of his car keys.

• In his statement to the police, Mr Kavinsky claimed that he merely had a couple of drinks that evening, and “didn’t really get drunk”, because he was sick. At trial, Mr Kavinsky indicated during examination-in-chief that he had been drinking alcohol, that his level of intoxication was at least a five on a scale of one to ten, (with one being complete sobriety and ten being complete intoxication), and that he might not have been sober enough to operate a motor vehicle. In cross-examination, he then agreed that he should not have been driving, and acknowledged that his statements to the police about alcohol consumption had been another lie.

• In his statement to the police, Mr Kavinsky claimed to have yelled phrases such as “Please stop” and “Let me go” as much as “20 times” before the stabbing, but made no mention of expressing any warning whatsoever that he had a knife, (even though the officer questioning Mr Kavinsky suggested that might have happened). Indeed, Mr Kavinsky said this: “I’m just yelling, ‘Stop, please stop Sir, please’. Like I’m going, like, ‘Let me go”. Like it’s all I kept yelling.” [Emphasis added.] At trial, Mr Kavinsky claimed that he had warned Mr Hilton “at least five times” that he had a knife, before resorting to its use.

• At trial, Mr Kavinsky claimed to have jabbed Mr Hilton with his knife “once or twice” before running back to his car. In my view, (for reasons noted above in relation to the assessment of Mr Falkins as a witness), the suggestion is belied by the number of stab wounds actually inflicted on Mr Hilton.

• At trial, and prior to cross-examination, Mr Kavinsky said he used his right hand to wield the knife while he and Mr Hilton were facing each other, and knew he cut at Mr Hilton’s left arm; i.e., the arm Mr Hilton was using to hold Mr Kavinsky’s right shoulder up against the garage. However, Mr Hilton’s wounds included significant torso wounds towards the right side of his body, including one deep enough to lacerate Mr Hilton’s liver, and in his statement to the police, Mr Kavinsky said he knew he had cut Mr Hilton “on the arm”, and “on his belly, because his shirt had blood on his stomach”. (In cross-examination at trial, Mr Kavinsky similarly acknowledged having such knowledge at the time of the incident.)

• In his statement to the police, Mr Kavinsky indicated that Mr Hilton had hit him “just once” with the object retrieved from the garage after the stabbing. At trial, Mr Kavinsky claimed Mr Hilton had struck him with the object three times.

• At trial, Mr Kavinsky admitted having told his father and Ms Leget that Mr Hilton had hit him with a hammer. In his statement to the police, Mr Kavinsky indicated he thought the object may have been a shovel. At trial, it was made clear that Mr Hilton had in fact hit Mr Kavinsky with a broom.

• In his statement to the police, Mr Kavinsky said “everyone” was yelling at him to “get the fuck” out of there, after the stabbing, as Mr Hilton was “getting his guns”. At trial, Mr Kavinsky said a lone male voice had said that.

• As noted above, Mr Kavinsky repeatedly indicated, in his statement to the police, that he had thrown the knife out his car window on the way home, and that he did not know where it was. However, later in his statement, (and after being told by the questioning detective that she knew the truth), he admitted not only that he had given the knife to his father, but also that he knew it was located in the outside can where the family kept ash from the fireplace.

• Similarly, in his statement to the police, when asked what he had done with his bloody clothes, Mr Kavinsky initially indicated that he had “just put them in the laundry”, before later admitting, (again, after indications by the questioning detective that she knew the truth), that he had given the clothes to his father, and that he knew his father had taken them outside.

• At trial, and as noted above, Mr Kavinsky initially testified that he lied to the police about the knife because he did not want to “get into trouble”, but subsequently revised his answer to indicate that he had lied to the police because he did not want his father to get into any trouble.

[46] All such admitted lies, inconsistencies and demonstrable inaccuracies, especially when coupled with the other concerns I have outlined, led me to regard Mr Kavinsky as a witness who was neither credible nor reliable.

Analysis

[47] With those further observations in mind, I turn to my final analysis of whether the Crown has proven beyond a reasonable doubt all essential elements required to establish a section 268 offence of aggravated assault, whether the section 34 defence raised by Mr Kavinsky has an air of reality, and if it does, whether the Crown has disproven beyond a reasonable doubt at least one of the three essential elements required for a successful section 34 defence.

ESSENTIAL ELEMENTS OF AGGRAVATED ASSAULT

[48] As mentioned above, defence counsel formally acknowledged, at the outset of trial, that the underlying circumstances included presence of the essential elements normally necessary and sufficient to make out the offence of aggravated assault.

[49] For the sake of completeness, I nevertheless note my independent conclusion that, but for the possibility of a section 34 defence, the evidence received at trial was sufficient to establish, beyond a reasonable doubt, all three essential elements of an aggravated assault contrary to s.268 of the Code. In particular:

i. In the agreed statement of facts marked as Exhibit 1, it was acknowledged and agreed that Mr Kavinsky was the person who caused the injuries sustained by Mr Hilton, at the Hilton property, on December 14, 2014. Those injuries, including the multiple stab wounds described in the second agreed statement of facts marked as Exhibit 2, self-evidently resulted from the application of force to Mr Hilton. In his testimony, Mr Kavinsky indicated that he meant to apply stabbing force to Mr Hilton. Mr Kavinsky therefore intentionally applied force to Shannon Hilton.

ii. It was abundantly clear from Mr Hilton’s testimony, (not contradicted on this point), that he did not consent to the force Mr Kavinsky applied.

iii. The force applied by Mr Kavinsky to Mr Hilton wounded Mr Hilton, as confirmed by the multiple stabbing injuries described in the second agreed statement of facts marked as Exhibit 2, and the medical records of Mr Hilton marked as Exhibit 7. Certainly, the injuries inflicted by Mr Kavinsky pierced the skin of Mr Hilton’s body, and were more than trifling, fleeting or minor.

AIR OF REALITY TO SECTION 34 DEFENCE

[50] As noted above, the provisions of section 34 of the Code do not have to be considered unless there is an “air of reality” to a claim of self-defence; i.e., evidence before the court on the basis of which a properly instructed jury, acting reasonably, could base an acquittal if it were to believe the evidence to be true.

[51] In my view, (without weighing evidence, determining credibility, drawing inferences, or assessing the likelihood of success), there is an air of reality, in the sense required, to the section 34 defence raised by Mr Kavinsky. In particular, Mr Kavinsky testified:

a) that Mr Hilton was using force against him;

b) that the stabbing of Mr Hilton came about as Mr Kavinsky was attempting to protect himself; and

c) that Mr Kavinsky did so for reasons which, if true, could be found to be reasonable.

[52] There accordingly is evidence before the court which a properly instructed and reasonably acting jury could believe to be true, and use as the basis for an acquittal; i.e., by concluding that the Crown had failed to disprove, beyond a reasonable doubt, at least one required element of the section 34 defence.

[53] Further consideration of the section 34 defence therefore is required in this case. In particular, the issue becomes whether the Crown has disproven, beyond a reasonable doubt, any of the three essential elements of self-defence set forth in s.34(1) of the Code.

SUBSECTION 34(1)(a) – REASONABLE BELIEF

[54] In the context of this case, a successful section 34 defence requires, pursuant to s.34(1)(a) of the Code, that Mr Kavinsky believed, on reasonable grounds, that force was being used against him, or that a threat of force was being made against him.

[55] In my view, the Crown did not disprove that element of the offence beyond a reasonable doubt.

[56] To the contrary, the evidence made it clear to me that, in the time leading up to and during the stabbing, force was indeed being threatened or used in relation to Mr Kavinsky by Mrs Hilton and Mr Hilton, to ensure adherence to the party rule of “no drinking and driving”, relieve Mr Kavinsky of his car keys, and otherwise prevent Mr Kavinsky’s intended operation of his motor vehicle. In particular, I think only the precise nature and degree of force threatened and used by Mrs Hilton and/or Mr Hilton effectively were disputed.

[57] In that regard, I generally prefer the testimony of Mrs Hilton and Mr Hilton to that of Mr Kavinsky, for the reasons outlined above, but my particular findings in that regard are as follows:

• When Mrs Hilton noticed that Mr Kavinsky had returned to the property, and was at his vehicle with keys apparently intent on driving, she immediately approached him and expressly made it clear to Mr Kavinsky that would not be permitted. More specifically, she asked Mr Kavinsky what he thought he was doing. He responded by saying “I’m getting my fucking car”. Mrs Hilton said “No you’re not.” Mr Kavinsky said “Yeah, I am”. In my view, it was implicit in Mrs Hilton’s comments that she intended to use a degree of force, if necessary, to prevent Mr Kavinsky from driving.

• Indeed, Mrs Hilton then resorted to the use of force almost immediately, as Mr Kavinsky insisted that he was leaving, proceeded to sit in the driver’s seat of his car, and made attempts at using his keys to start the ignition. In particular, Mrs Hilton leaned over through the driver’s door, reached into the vehicle, and struggled to stop Mr Kavinsky physically by attempts to grab the car keys from his hand. Mr Kavinsky admittedly knew Mrs Hilton was making those efforts because he had been drinking.

• Mrs Hilton did not succeed in taking the keys from Mr Kavinsky, but did manage to get her hand on the car keys, which in turn prompted Mr Kavinsky to exit his vehicle, leaving his car door open. (Although Mr Kavinsky suggested he exited his car because Ms Leget was not yet there, I think not. Had finding Ms Leget been a priority for him, he would not have been sitting in his car trying to start the ignition.) Mrs Hilton and Mr Kavinsky then continued to stand near the open driver’s door of Mr Kavinsky’s vehicle where, “for a couple of minutes”, they continued to argue about his intention to drive while Mrs Hilton attempted to take away his keys.

• At that point, Mr Hilton arrived on the scene. Although Mr Kavinsky initially suggested that Mrs Hilton left to get her husband, he subsequently acknowledged that Mr Hilton already was on his way to the location, and more than half way there, when Mrs Hilton turned to speak with him. In particular, Mrs Hilton turned to her husband and said, in Mr Kavinsky’s presence, (although Mr Kavinsky denied hearing or knowing what was said), “Johnny thinks he’s going to drive”, “Can you talk to him?” and “Don’t let him drive”. Once again, I think the implicit indication to Mr Kavinsky, if able to hear what was being said, was that he eventually would be prevented from driving, which in turn carried a connotation that a degree of force would be used, if necessary, in an effort to ensure that result. In that regard, Mrs Hilton confirmed, and I accept, that she in no way expected a fight, but she did expect her husband to take control of the situation and “get the keys from the drunken kid who wants to drive”. She also agreed that she anticipated Mr Hilton “imposing his physical stature” on Mr Kavinsky to effectively say “You’re not taking the car off our property”. However, if Mr Kavinsky was not able to hear the precise exchange between Mrs Hilton and her husband, it would lessen the extent to which he was aware of being threatened with the use of force.

• Mr Hilton then approached Mr Kavinsky, asking him where he thought he was going. Mr Kavinsky replied that he was going home, and taking his car. Mr Hilton told Mr Kavinsky to hand over his car keys, and Mr Kavinsky refused.

• Mr Kavinsky alleged that Mr Hilton was “instantly pissed off” when he approached Mr Kavinsky, “got mad right away”, and “snapped” like a “switch flicking on”, with anger immediately flaring to a sustained level of “8 out of 10” and higher for the rest of the encounter once Mr Kavinsky refused to turn over his keys. However, I prefer and accept the testimony of Mr and Mrs Hilton, who indicated that Mr Hilton’s level of anger rose more gradually over the course of the altercation, and reached intense levels only after Mr Hilton realized he had been stabbed. In that regard, Mr Hilton denied being “upset” when he initially approached Mrs Hilton and Mr Kavinsky, and I accept that was so. (Mr Kavinsky himself acknowledged that Mr Hilton walked up to him at a normal pace, without anything in the nature of “charging”, and initially spoke to Mr Kavinsky in a tone that was stern and “a little agitated”, but not upset or “bad”.) I also accept Mrs Hilton’s testimony that her husband did not approach the situation aggressively. However, Mr Hilton also acknowledged that he felt a bit of rising anger as discussion and disagreement with Mr Kavinsky about his intention to drive then continued, and that he probably then spoke to Mr Kavinsky in forceful words to the effect of “You’re not fucking driving”. Mrs Hilton had a similar memory of her husband initially saying “You’re not going anywhere buddy”, but increasing the force of his comments as the argument with Mr Kavinsky continued; e.g., telling Mr Kavinsky that he was “not going anywhere”, and “not driving off this fucking property”, (both of which are similar to the “You’re not fucking going anywhere” comment attributed to Mr Hilton by Mr Kavinsky). I find that Mr Hilton made such statements and, once again, I think such comments carried an implicit indication to Mr Kavinsky that a degree of force would be used, if necessary, in an effort to stop him from driving. Indeed, Mrs Hilton confirmed that, by making such statements, her husband was attempting to exert his authority as “the big guy”.

• Mr Hilton and Mr Kavinsky then continued to have a verbal argument about whether Mr Kavinsky would be driving, with Mr Kavinsky insisting that he was going home and taking his car. Mrs Hilton observed and I accept that, while that initial verbal argument between the two men was going on, both men were engaged in figurative “chest puffing”; i.e., attempts to assert their dominance and ensure compliance with demands without yet making any sustained physical contact. In particular, Mr Kavinsky was saying he “wasn’t giving up the keys”, (which he continued to hold in his hand), and Mr Hilton was making it clear he “wasn’t giving up either”. Mrs Hilton described the two men as being “chest to chest”, “face to face”, and “in each other’s space”. This too, I think, was an implicit threat to Mr Kavinsky that Mr Hilton was prepared to use some degree of force in an effort to ensure Mr Kavinsky’s compliance with the Hiltons’ rule prohibiting drinking and driving.

• Physical contact between Mr Hilton and Mr Kavinsky began while Mrs Hilton was still present with the two men. However, it initially was limited to what Mrs Hilton described as “heated discussion” and “competition as to who was going to get the keys”, with their chests touching each other, their arms making contact with each other as Mr Hilton tried to take away Mr Kavinsky’s car keys, (by lumbering and alternating left and right grasping movements of Mr Hilton’s arms and hands over and around Mr Kavinsky), and “some shoving” back and forth, which started to move the two men away from Mr Kavinsky’s vehicle and closer to the garage. Mr Kavinsky says, and I accept as likely, that during Mr Hilton’s persistent attempts to grab the car keys from Mr Kavinsky’s hands, (while Mr Kavinsky just as persistently kept the keys behind his back, switching them from hand to hand while moving away, in order to keep the keys from Mr Hilton), Mr Hilton also said words to the effect of “Give them to me” and Mr Kavinsky said words to the effect of “No, back off”.

• Mr Hilton candidly acknowledged that he probably applied force to Mr Kavinsky first; i.e., by pushing him, as a deliberate gesture to emphasize that the party rule prohibiting drinking and driving was reasonable and “very clear”, and that enforcement of the rule should be expected. He says that somewhat modest initial contact between the two men then evolved into what Mr Hilton described as a “little bit of a tussle” and “shoving match type of thing”, with he and Mr Kavinsky “just kind of pushing each other around”. In other words, Mr Hilton acknowledged he continued to apply force to Mr Kavinsky, (although the reverse also was true). Mrs Hilton says, and I accept, that while she was still present with the two men, not a single punch was thrown.

• However, Mrs Hilton then left briefly to go inside the garage, in order to seek additional assistance from other males still at the party, including friends of Mr Kavinsky. At the time, she still thought the confrontation between her husband and Mr Kavinsky would be limited to verbal argument and “maybe a little bit of shoving”, as Mr Kavinsky was being uncooperative and quite insistent on driving. She was still expecting that her husband’s role as an “authority figure” eventually would prevail, (as teenage boys had respected Mr Hilton’s authority regarding drinking and driving in the past), and that neither she nor her husband would “get into a fight with a kid”. Having said that, she nevertheless thought it advisable, in her words, to “get the boys to help Shannon with getting Johnny not to drive”. When she last saw her husband and Mr Kavinsky, before she entered the garage, the two men were still near the mound of dirt, and not yet near the garage.

• Unfortunately, the confrontation between Mr Hilton and Mr Kavinsky escalated very rapidly during Mrs Hilton’s brief absence. In that regard:

  • In the initial stages of the “tussle” or “shoving match”, Mr Hilton could not recall hitting or punching Mr Kavinsky, but does acknowledge eventually grabbing Mr Kavinsky by his coat to “throw him up against the wall” of the garage building, (or “push” Mr Kavinsky “up against the wall”, as Mr Kavinsky described it, as he confirms Mr Hilton never physically lifted him off the ground to literally “throw” him anywhere), at which point the two men started “hitting each other”, including some form of blows by Mr Hilton to Mr Kavinsky’s head, (with Mr Kavinsky himself acknowledging\ that Mr Hilton was never “punching” him). Mr Hilton candidly acknowledged that he could not recall who hit the other first. However, he does recall that Mr Kavinsky seemed to be hitting him pretty hard before the two men separated, at which point a bystander drew Mr Hilton’s attention to the fact he was bleeding, and Mr Hilton then realized that he had been stabbed rather than punched.
  • I find that the time between Mr Hilton’s grabbing of Mr Kavinsky to put him against the wall, and the point where the two men separated after the stabbing, was very brief, and no more than a minute. In that regard, I accept Mr Hilton’s testimony that all of the perceived punches and corresponding stab wounds were inflicted “within a minute”. Similarly, I accept Mrs Hilton’s independent testimony that, after she walked away from the two men to the garage, (when she would not have been looking behind her at what was happening), she was inside the garage building for no more than 30 seconds, (i.e., simply to call out for help in preventing “Johnny” from driving), when her husband then entered the building with his shirt “covered in blood”, and that the entire physical altercation between her husband and Mr Kavinsky must have taken place “within a minute, max”.
  • Mr Kavinsky claimed that Mr Hilton put Mr Kavinsky up against the wall of the garage building immediately after making physical contact, and thereafter forcefully and repeatedly “smashed” Mr Kavinsky’s head against the wall of the building. (At trial, Mr Kavinsky initially said Mr Hilton had done that at least a “couple of times”, after the two men had turned such that both had a side to the wall, but then also said it could have happened “three or four” times, or “two to five” times.) However, any such conduct was firmly denied by Mr Hilton, apart from his candid acknowledgment that he did put or “throw” Mr Kavinsky up against the garage wall, at a particular point during the altercation. Given that acknowledgment, I think it reasonable to infer and find that Mr Kavinsky’s head likely did come into contact with the exterior of the garage, at least once. However, for numerous reasons that include the following, I accept Mr Hilton’s denial of immediately putting or throwing Mr Kavinsky up against the garage, as well as his denial of then repeatedly and deliberately smashing Mr Kavinsky’s head against the garage wall or door:
    • First, when Mrs and Mr Hilton confronted Mr Kavinsky, he was trying to leave in his vehicle. He accordingly would have been located near his vehicle, approximately 25-30 feet away from the garage building, and not in the immediate vicinity of that building’s wall. It therefore would not have been physically possible for Mr Hilton to throw Mr Kavinsky “immediately” up against the building. I think the two men instead necessarily engaged in escalating pushing and shoving, (as described by Mr Hilton and Mrs Hilton), that gradually brought the two men closer to the building. In my view, that was confirmed by Mr Kavinsky’s own indication that his first contact with the garage wall resulted from his backing into it during ongoing efforts to prevent Mr Hilton from grabbing his car keys.
    • Second, Mr Hilton was firm in his denial of having smashed Mr Kavinsky’s head against the building wall, yet readily and repeatedly acknowledged having hit Mr Kavinsky in the head numerous times during the altercation. His candour in relation to the latter made me more inclined to accept and believe his adamant denials in relation to the former. (Incidentally, Mr Hilton was completely unable to state the precise number of times that he had hit Mr Kavinsky in the head, as “it all happened so fast”. Although he added that it could have been “5 times” or “100 times”, in my view that obviously was a facetious response, given his repeated emphasis on the speed with which the final violent stage of the altercation happened.)
    • Third, there was no evidence of Mr Kavinsky sustaining any apparent injuries to his head or face, apart from the facial area where Mrs Hilton punched him after the stabbing, with sufficient force to knock Mr Kavinsky down. That suggests to me that Mr Kavinsky’s head was not struck repeatedly by a hard object during the altercation with Mr Hilton, and that the hits Mr Hilton managed to land on Mr Kavinsky’s head with his hands were not that severe.
    • Fourth, none of the other witnesses, whether inside or outside of the garage at the relevant time, could recall hearing any banging sounds of the sort which reasonably might have been expected had Mr Kavinsky’s head really been banged forcefully and repeatedly against the solid wall or doors of the garage. In that regard, I think the resulting noise would have been fairly loud and noticeable if, as Mr Kavinsky alleged, his head actually was being banged repeatedly against one of the vehicle doors to the garage.
    • Finally, I think the short span of time between the final stages of the “shoving match” and complete infliction of the multiple stab wounds by Mr Kavinsky would not have allowed sufficient time for Mr Kavinsky’s head also to be smashed against the wall multiple times, in the manner alleged. In particular, the manner in which Mr Kavinsky described it, with successive head banging occurring at rapid but somewhat regular intervals, interspersed by alleged regular and repeated warnings that Mr Kavinsky had a knife, seemed implausible to me.
    • In the result, I find that, while there is an element of truth to Mr Kavinsky’s claim that Mr Hilton brought Mr Kavinsky’s head into contact with the wall of the garage, (i.e., when he “threw” or put Mr Kavinsky up against that wall), Mr Kavinsky’s account of that happening immediately, deliberately, repeatedly and forcefully was significantly exaggerated and untrue.
  • According to Mr Kavinsky, his altercation with Mr Hilton against the garage, and unsuccessful efforts to get away from Mr Hilton, put him “in a panic” and made him feel “afraid and claustrophobic”. He described what happened next in the following words: “So I pulled out my knife and just kind of jab at him while I’m walking back, walking away.” Although that account and comment might suggest that the stabbing occurred after the two men had separated, I find that was not the case. Mr Hilton testified, and I accept, that the wounds were inflicted while the two men were still grappling with each other; i.e., when Mr Hilton was hitting Mr Kavinsky, and thought he was being punched hard by Mr Kavinsky. Moreover, in further testimony, Mr Kavinsky clarified that, when he pulled out his knife, he was being held by Mr Hilton’s left arm, and that Mr Hilton was still holding him when the stabbing occurred, (although Mr Kavinsky was also walking or backing away another “one or two feet”, with Mr Hilton coming along with him). Furthermore, the number and nature of the wounds confirms that the two men must have remained in very close proximity while the multiple wounds were being inflicted.

[58] I will have more to say about certain aspects of the events that did and did not take place immediately before and during the stabbing.

[59] For present purposes, i.e., in the context of considering s.34(1)(a) of the Code, the above findings make it clear that Mrs and Mr Hilton both threatened and used force against Mr Kavinsky before and during the stabbing. Mr Kavinsky therefore had reasonable grounds for believing that to be the case.

[60] The Crown accordingly has not disproven, beyond a reasonable doubt, that essential s.34(1)(a) element of a self-defence justification.

[61] I nevertheless also find and wish to make it clear that the force threatened and used against Mr Kavinsky, and reasonably believed by Mr Kavinsky to be threatened and used, was limited to the force necessary to relieve him of his car keys or otherwise prevent him from driving away in his vehicle, (in the form of grabbing, pushing, shoving, and forcing Mr Kavinsky up against a wall), and the force Mr Hilton then applied, (in the form of hitting), primarily in response to the perceived punches being inflicted on him by Mr Kavinsky.

[62] Certainly, after Mr and Mrs Hilton realized that Mr Hilton had been stabbed rather than punched, threats of force and use of force against Mr Kavinsky escalated considerably. In particular:

• Mr Hilton admittedly then threatened to kill Mr Kavinsky, and retrieved a broom he used as a weapon to strike Mr Kavinsky. (As Mr Hilton put it, he may have become a bit angry during the course of his initial argument and physical interaction with Mr Kavinsky, but he only became quite angry after realizing that he had been stabbed.)

• For her part, once she realized her husband had been stabbed, Mrs Hilton clearly abandoned her earlier reservations about “fighting with a kid”, and confronted Mr Kavinsky with verbal accusations before physically attacking him, striking him in the face, and knocking him backwards into the pile of dirt.

[63] In my view, however, Mr Hinton and Mrs Hinton in no way contemplated the threat or use of such heightened force against Mr Kavinsky prior to realizing that Mr Hilton had been stabbed, and there were no intimations or indications of such threats or use of force prior to the stabbing. Prior to the stabbing, there accordingly were no reasonable grounds for Mr Kavinsky to believe that such heightened force was being threatened or used against him.

SUBSECTION 34(1)(b) – DEFENSIVE PURPOSE

[64] In the context of this case, a successful section 34 defence also requires, pursuant to s.34(1)(b) of the Code, that Mr Kavinsky’s repeated stabbing of Mr Hilton, (i.e., the act that constitutes the offence of aggravated assault in this case), was committed for the purpose of defending or protecting Mr Kavinsky from the use or threat of force he reasonably believed he was facing at the time.

[65] In my view, the Crown did not disprove that element of the defence beyond a reasonable doubt.

[66] To the contrary, I think it clear that Mr Kavinsky used his knife and inflicted wounds on Mr Hilton in order to terminate the force Mr Hilton was in the process of actually applying against Mr Kavinsky. As Mr Kavinsky put it, Mr Hilton was “controlling” him, “holding” him, and “stopping [him] from leaving”, and he stabbed Mr Hilton because he “couldn’t get away” from Mr Hilton, get in his car and go home.

[67] In that sense, the stabbing was committed for the purpose of defending or protecting Mr Kavinsky from the use of force Mr Hilton was applying. Moreover, Mr Kavinsky obviously succeeded in his purpose, as the two men separated almost immediately after the multiple stab wounds had been inflicted, and Mr Kavinsky was able to get in his car and drive away shortly thereafter.

SUBSECTION 34(1)(c) – REASONABLE RESPONSE

[68] The final essential element of a successful section 34 defence, required by s.34(1)(c) of the Code, is that the repeated stabbing of Mr Hilton, (i.e., the relevant “act committed” by Mr Kavinsky), was reasonable in the circumstances.

[69] As noted above, a determination as to whether the Crown has disproven that essential element of a section 34 defence beyond a reasonable doubt requires consideration of the relevant circumstances of Mr Kavinsky, other parties, and Mr Kavinsky’s actions, including a consideration of the non-exhaustive list of factors enumerated in s.34(2) of the Code.

[70] As for “the nature of the force or threat”, I already have addressed this above, in the context of my determination regarding s.34(1)(a) of the Code.

[71] As for “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”:

• The use of force against Mr Kavinsky was not only imminent but had already commenced at the time of the stabbing.

• Mr Kavinsky testified that, after use of force against him was underway, he repeatedly and loudly pleaded with Mr Hilton to stop what he was doing, as Mr Kavinsky was afraid, but his pleas in that regard were all ignored by Mr Hilton. Mr Kavinsky also says he repeatedly warned Mr Hilton that he had a knife, in an effort to persuade Mr Hilton to stop what he was doing, but that too proved ineffective. Indeed, Mr Kavinsky claimed that a good many comments passed back and forth between Hilton and Mr Kavinsky during the period between initial contact with the garage wall or door and the stabbing. In particular, he says that, in addition to saying “You’re not going anywhere” and other remarks Mr Kavinsky could not remember, Mr Hilton repeatedly called Mr Kavinsky a “punk” and a “puke”, and repeatedly made comments to the effect of “You think you’re tough”, while Mr Kavinsky, “trying to be nice”, repeatedly yelled numerous comments such as “Sir, please stop”, and “Please Sir, let go”, while also indicating, “at least five times”, “Let go, I have a knife” and “I have a knife, let go”. For numerous reasons, I do not believe and reject Mr Kavinsky’s testimony about the insulting words alleged to have been said by Mr Hilton, and that Mr Kavinsky made numerous pleas and warnings in the loud and noticeable manner suggested:

  • First, for the reasons outlined above, the span of time between Mr Hilton and Mr Kavinsky reaching the wall of the garage and the stabbing was relatively brief, and in my view simply not long enough for all the verbal exchanges and repeated self-serving statements and warnings alleged by Mr Kavinsky. Nor do I think the circumstances, (involving two men actively struggling with and hitting each other), were conducive to the sort of repeated exchanges alleged by Mr Kavinsky, or his repeated use of niceties such as “Sir” and “please”.
  • Second, Mr Hilton testified, and I accept, that he never accused Mr Kavinsky of thinking he was “tough”, or called Mr Kavinsky names. In my view, the persuasive force of that denial was underscored by Mr Hilton’s readiness to indicate and acknowledge that he used profanity in demanding Mr Kavinsky’s car keys, and while making it clear that Mr Kavinsky would not be permitted to drive. Similarly, Mr Hilton was willing to fairly acknowledge the possibility of an isolated comment such as “let go” or “stop” being made by Mr Kavinsky but missed by Mr Hilton in the confusion, although Mr Hilton frankly could not recall ever hearing that, or words to that effect.
  • Third, Mr Kavinsky himself confirmed that, while up against the wall of the garage, Mr Hilton was still trying to obtain his car keys, (while Mr Kavinsky was still trying to keep them from being taken). In my view, at the material time, Mr Hilton obviously was still fixated on that goal of obtaining the car keys, rather than insulting or demeaning one of his daughter’s party guests.
  • Fourth, and more generally, everything done and said by Mrs Hilton and Mr Hilton prior to the altercation, and during the time leading up to the two men struggling against the garage wall, made it abundantly clear, in my view, that their goal was to overcome Mr Kavinsky’s intended defiance of the rule prohibiting drinking and driving. In the circumstances, I think it very unlikely that any loud and repeated indications of submission on the part of Mr Kavinsky, (instead of continued resistance), would have been ignored.
  • Fifth, the realization that Mr Hilton had been stabbed clearly came as a complete surprise to Mr Hilton, and everyone else in the vicinity, which in my view clearly would not have been the case if Mr Kavinsky had given any audible indication that he had a knife and was prepared to use it.
  • Despite his assertions to the contrary, I accordingly do not think Mr Kavinsky made any real effort, before the stabbing, to communicate any pleas or warnings before resorting to repeated use of his knife. In my view, effective delivery of such pleas and warnings was certainly another means, available to Mr Kavinsky, of responding to the threats or use of force being directed towards him by Mrs Hilton and Mr Hilton. In that regard, I accept and agree with Mrs Hilton’s indications that such a warning, about Mr Kavinsky having a knife, would have been effective to end the efforts being made to prevent Mr Kavinsky from driving. In particular, Mrs Hilton emphasized that she was prepared to “try really, really hard” to get Mr Kavinsky to view things her way, in relation to drinking and driving, but also realized and accepted that she had “no control over somebody’s end decision”. The Hiltons accordingly were not committed to stopping Mr Kavinsky from driving at all costs. In particular, Mrs Hilton testified, and I accept, that had Mr Kavinsky insisted on driving and pulled out a knife, she and Mr Hilton would have let him leave.

• Apart from such possible pleas and warnings, in my view there clearly were other means available to Mr Kavinsky to address and respond to the threat and use of force being directed against him. In that regard, Mr Kavinsky was keenly aware that Mrs and Mr Hilton were motivated by their desire to prevent Mr Kavinsky from drinking and driving. In particular, they had made that clear in their express comments, and there was absolutely no evidence or suggestion of any other reason whatsoever why the couple otherwise would be upset with Mr Kavinsky or his behaviour, or why they otherwise would be paying any attention to him. In the circumstances, I think it should have been and was in fact quite obvious to Mr Kavinsky that all he had to do to end the confrontation was provide a verbal indication that he would comply with the rule against drinking and driving, and surrender the keys to his vehicle. Although Mr Kavinsky claimed he “never thought of it at the time”, I find that assertion quite incredible, as Mr Hilton was expressly and repeatedly demanding and grabbing for Mr Kavinsky’s car keys, (effectively putting the possibility of Mr Kavinsky surrendering his car keys to Mr Kavinsky again and again), and Mr Kavinsky responded by indicating, again and again, by words and conduct, his deliberate and determined choice not to surrender the keys. In other words, the possibility of surrendering the car keys clearly crossed Mr Kavinsky’s mind, but it was simply not something he was prepared to do. Indeed, Mr Kavinsky confirmed in cross-examination that he knew “that was what the whole argument was about”, but never offered to give the car keys to Mr Hilton. He instead opted for continued non-compliance and determined resistance, culminating in his stabbing of Mr Hilton. In that regard, Mr Kavinsky emphasized in cross-examination that he “wanted to go home in his car”; that his car was “what [he] came there for”; that he had walked 15-20 minutes “across town” to get it; and that he “wasn’t giving the keys” to Mr Hilton.

[72] As for Mr Kavinsky’s “role in the incident”:

• Mr Kavinsky was a guest of the Hiltons. He clearly and admittedly knew about their sensible rule which prohibited drinking and driving, and required driving guests to surrender their car keys as a condition of attending the party. He also admits knowing the Hiltons were calling cabs to ensure that guests got home safely, and that they had made it clear to Mr Kavinsky he was “not going to drive drunk that night”. Moreover, by word and deed, (in turning over his car keys and attending the party), Mr Kavinsky indicated his acceptance of that rule and his intended compliance.

• By his own admission, Mr Kavinsky nevertheless returned to the party with the intention of breaking that rule and driving home, even though he knowingly had been drinking while taking antibiotics, was aware that he was intoxicated, and he himself felt that he might not be sober enough to operate a motor vehicle.

• In cross-examination, Mr Kavinsky initially admitted and then denied that, as he was walking back to the party, he knew it certainly was possible that the Hiltons would try to stop him from driving if they saw him. In any event, he confirmed that he knew the Hiltons were serious about the “no drinking and driving rule”, but he thought he could “just get in the car and do what [he] wanted to do”.

• When then confronted with the parental authority of his hosts, and reminders of the sensible rule he previously had accepted, Mr Kavinsky was both rude and defiant, indicating his determination to follow through with his intended drinking and driving, thereby posing a danger to himself and others.

• Even as he recalled the events during the course of his testimony, it was clear to me that Mr Kavinsky resented the Hiltons “trying to tell [him] what to do”. In the result, he persisted with his defiance, refusal to turn over his car keys, and determination to drive though intoxicated. He did so even though he admittedly knew that Mr and Mrs Hilton were pursuing, as hosts of the party, a benign goal that was essentially focused on safety, (including Mr Kavinsky’s own safety), and the prevention of an illegal and dangerous activity.

• Over the course of the confrontation and altercation, Mrs and Mr Hilton swore at Mr Kavinsky and grabbed at his keys, and Mr Hilton shoved and hit Mr Kavinsky. However, Mr Kavinsky was swearing, shoving and hitting in return.

• On the whole, I think Mr Kavinsky’s own conduct played a very significant role in the incident.

[73] As for “whether any party to the incident used or threatened to use a weapon”:

• Up to and including the time of the stabbing, Mr Hilton did not have any weapon on his person, had no object whatsoever in his hands, and in no way threatened to use a weapon of any kind. (Again, after the stabbing, Mr Hilton retrieved a broom and used it to strike Mr Kavinsky repeatedly. However, that was a reaction to the stabbing, and in my view would not have happened but for the stabbing.)

• It was suggested in cross-examination that Mr Hilton may have owned guns, or told others that he owned guns, and that in turn may have made Mr Kavinsky fear a threat to his safety as far as Mr Hilton was concerned. However, Mr Hilton firmly denied such suggestions, (as did Hailee and Mr Falkins), and in my view there was absolutely no evidence to support them, apart from a claim by Mr Kavinsky, (denied by Mrs Hilton), that a male voice in the crowd yelled, (after the stabbing, and after Mr Kavinsky had then been struck and knocked down by Mrs Hilton), something about the need for him to leave because Mr Hilton was going to get his gun. Mrs Hilton was standing next to Mr Kavinsky at that point, and I think she would have remembered and acknowledged such a comment, had it been made. I do not believe that it was. Moreover, even if that hearsay assertion of gun ownership by Mr Hilton was made, it occurred only after Mr Kavinsky is said to have acted in self-defence. There is no evidence whatsoever that Mr Kavinsky received any indication of gun ownership by Mr Hilton before the stabbing, or that such a concern played any role whatsoever in Mr Kavinsky’s decision making in relation to his suggested self-defence. Indeed, Mr Kavinsky himself acknowledged that, before that alleged comment from a male voice in the post-stabbing crowd, there had been no earlier comments about guns, and he himself had no concerns or knowledge about Mr Hilton having a gun.

• In short, there really is no evidence whatsoever of Mr Hilton possessing, using or threatening to use any weapon prior to the stabbing, or demonstrating any inclinations in that regard. Nor is there any evidence to substantiate any suggestion that Mr Kavinsky had a reasonable basis for fearing that prior to the stabbing.

• In contrast, Mr Kavinsky brought a folding “buck knife”, “hunting knife” or “lockblade knife” with him to a birthday party for a young teenage girl, and carried it on his person throughout the event. The knife was entered as an exhibit, and is depicted in the photographs taken by Officer Spencer, along with a measuring device indicating the knife had a length of approximately four inches when folded. Mr Kavinsky testified that it has a spring mechanism such that it opens easily with a flick of a thumb, which is why Mr Kavinsky was able to retrieve, open and use the knife with one hand when stabbing Mr Hilton. Although not a restricted weapon, it seems to me that the knife also was unlikely to have any practical use at Hailee Hilton’s birthday party, apart from its possible use as a weapon.

• Moreover, in my view, prior to the verbal and physical confrontation with Mrs Hilton and Mr Hilton, Mr Kavinsky already was demonstrating a readiness to produce, display and use his knife at the party. In that regard, I think the only reasonable explanation for Mr Kavinsky’s bizarre use of the knife to stir another young male’s drink was an intended display of machismo.

• Furthermore, Mr Kavinsky clearly had the knife in a relatively accessible location at the time of his physical confrontation with Mr Hilton, as Mr Kavinsky was able to produce, open and use the knife effectively even though he and Mr Hilton were grappling with each other.

• Again, Mr Kavinsky claimed that he gave a number of repeated and clear warnings, before resorting to use of his knife, that he had such a weapon in his possession. However, I reject those claims, for the reasons outlined above.

[74] As for “the size, age, gender and physical capabilities of the parties to the incident”:

• At the time of the incident, Mr Hilton was a 42 year old male, who made his living as the owner of a construction company. (There was no evidence that he himself engaged in physical construction activities.) His height was approximately 6’1”, and his weight approximately 230-235 pounds. (He had put on additional weight by the time of trial, when he weighed 245 pounds.) I accept Mrs Hilton’s characterization of her husband as someone capable of being “big and imposing”, but who also generally is a “calm authoritative figure” and “generally a quiet person”. Certainly, that was consistent with my impression of Mr Hilton during his sustained time in the witness box. That impression was buttressed by the testimony of Mr Falkins, who testified that he had been to the Hilton home many times, and had often seen Mr Hilton be firm in requiring respect for “the rules of the house” without ever being aggressive.

• Mrs Hilton testified, and I accept, that there nevertheless had been a previous occasion where Mr Hilton had been involved in a bar fight with adults, (although no details were provided to indicate whether or not Mr Hilton had been the instigator or aggressor on that occasion), and another past occasion where Mr Hilton had demonstrated his ability to prevent drinking and driving by a 20-year-old friend of Hailee through the application of force; i.e., by grabbing the shoulders of the inebriated young man’s shirt and forcing him to the ground, at which point the young man agreed to go home in a taxi.

• On the evening of Hailee’s birthday celebration, Mr Hilton acknowledges that he consumed a few drinks of alcohol over the course of the event, and estimated his level of intoxication at the time of the incident to be approximately 4-5 on a scale of 1-10, (with 1 being complete sobriety and 10 being complete intoxication).

• As for Mr Kavinsky, he was 21 years old at the time of the incident. He has a grade twelve education, and has made his living as a labourer; e.g., working at a quail farm. At the time of the incident, and at trial, his height was approximately 5’10”. I received no evidence concerning his weight at the time of the incident.

• As noted above, Mr Kavinsky also admittedly had been consuming alcohol over the course of the evening. In cross-examination, he also acknowledged that, contrary to known prescription advice, he had been drinking alcohol while taking antibiotics, and that doing so was not a good combination because it “fucks with you more”. I already have made reference to Mr Kavinsky’s other testimony at trial, rating his own level of impairment at the time of the incident as being a five on the same “one to ten” sobriety scale, with Mr Kavinsky claiming that he was “drunk but still controllable”, although “maybe not” sober enough to drive a vehicle. However, Mrs Hilton testified that, when Mr Kavinsky returned to the Hilton property, he clearly was impaired and in no condition to drive, (and as noted above, Mr Kavinsky agreed in cross-examination that he should not have been driving). Moreover, when asked to estimate Mr Kavinsky’s level of impairment on the same sobriety scale of one to ten, (with one being complete sobriety and ten being complete intoxication), Mrs Hilton indicated without any hesitation whatsoever that Mr Kavinsky was an “eight”, or perhaps a “seven to eight”, but “not sloppy”. I prefer and accept her testimony in that regard. In particular, she had just spent the entire evening as the sober adult monitoring the relative behavior and level of intoxication of scores of young party guests, was well placed to make an accurate assessment of Mr Kavinsky’s relative condition, and fairly indicated that there were other guests more inebriated than Mr Kavinsky; e.g., a number of girls who were so drunk that they were vomiting and had to be picked up by their parents.

• In comparative terms, I therefore find that Mr Hilton and Mr Kavinsky had both been drinking, but the latter was more intoxicated and impaired by the combined effects of alcohol and medication. Mr Kavinsky clearly was a younger man, who made his living doing physical labour, and in that sense arguably was more agile and fit than Mr Hilton. However, Mr Hilton was a relatively tall and large man. In that regard, I accept that Mr Hilton was three inches taller than Mr Kavinsky, and Mrs Hilton’s assessment that Mr Kavinsky was “much smaller” than Mr Hilton. On that point, Mrs Hilton candidly indicated that, at the time of the incident, she thought any “competition” for the keys between the two men would end with her husband taking the keys from Mr Kavinsky. She also believed that, “if Johnny started a fight, Shannon would deal with it”. However, Mrs Hilton also emphasized, and I accept, that Mr Kavinsky’s conduct and demeanour at the time made it quite clear “Johnny was not afraid of Shannon”, and that Mr Kavinsky was confident of his ability to keep his car keys and “make darned sure of that”. (In cross-examination, Mr Kavinsky himself indicated that he was not really frightened when Mr Hilton was demanding and grabbing for Mr Kavinsky’s car keys, and he obviously was standing up to Mr Hilton and defying his authority.) I also think it notable that, when the argument was escalating, Mrs Hilton made a sober contemporary assessment of the situation between her husband and Mr Kavinsky, and thought it advisable to seek assistance from other males in the garage to “help Shannon with Johnny”. To me, that suggests a reasonable inference that Mrs Hilton was not entirely sure of Mr Hilton’s ability to dominate Mr Kavinsky on his own, in the particular circumstances she was observing.

[75] As for “the nature, duration and history of any relationship between the parties to the incident”:

• At the time of the incident, Mr Hilton was not an invited guest to the birthday party. However, he nevertheless was attending the event, and on the Hiltons’ property, with the knowledge and apparent consent of the Hiltons. In other words, he may not have been an invited or intended guest, in terms of plans for the event, but he effectively had been welcomed as a guest at the time of the incident.

• Although Mrs Hilton did not think her husband had met the accused before the birthday gathering, and Hailee stated emphatically that her father had “never” met Mr Kavinsky before the night of the party, Mr Hilton himself testified and I accept that he had met Mr Kavinsky once before; a meeting that was nothing more than a very brief and entirely benign introduction, and possibly perfunctory greeting, when Mr Kavinsky attended the Hilton house for a brief “in and out” visit with “one of Hailee’s friends”. (This accords with Mr Kavinsky’s testimony that, before the night of the stabbing, he had seen Mr Hilton “really quick” only once before; on an occasion two weeks to a month before the birthday party, when he had stopped by the Hilton property, for no more than 5 minutes on Mr Kavinsky’s estimate, to pick up his girlfriend Ms Leget.) I also accept Mr Hilton’s testimony that nothing about the encounter or visit had raised or caused any concern on the part of Mr Hilton, and the encounter apparently did not create any lasting or significant impression as far as he was concerned. (For example, at the time of the birthday party altercation, Mr Hilton did not know Mr Kavinsky’s age, and had no sense of how old he was.) Mr Kavinsky suggested that, during his earlier brief encounter with Mr Hilton, Mr Hilton was being “really rude” because he was asking friends of Hailee who were “rowdy”, “drunk” and “acting up” to leave the Hilton property, and swore at them during the course of doing so. That particular suggested account was not put to Mr Hilton during the course of cross-examination, which in my view gives rise to Brown v. Dunn concerns. In any event, Mr Kavinsky himself confirmed that Mr Hilton did not resort to any sort of violence during the course of Mr Kavinsky’s short attendance at the property, and I find that nothing that transpired during that brief earlier encounter caused Mr Kavinsky to have any fear of Mr Hilton before the night of the birthday party.

• Moreover, I find that, before the night of that birthday gathering, Mr Kavinsky’s relationship with other members of the Hilton family was similarly indirect, tangential and inconsequential. In that regard:

  • Hailee testified that she had met Mr Kavinsky only briefly before the birthday party, and knew him only as the boyfriend of Monique Leget, with whom Hailey was only starting to form a friendship. Mr Kavinsky himself said he knew Hailee primarily as someone who had been dating one of his friends.
  • Mr Kavinsky had no more than a passing and uncertain memory of having “seen” Mrs Hilton perhaps a “couple of times” before the birthday party, without being able to describe any particular interactions with her, and without being able to say with certainty where such sightings may have happened, although he thought she “seemed nice”. For her part, Mrs Hilton said, and I accept, that she too had met the accused only once before the night of the birthday party, when Mr Kavinsky had attended at her home “for five minutes to drop off Monique”, (whom Mrs Hilton also “barely knew”), and was introduced to her as “Johnny”. Mrs Hilton also confirmed that she had no issues with Mr Kavinsky prior to the birthday party. To the contrary, as noted above, Mrs Hilton fairly acknowledged that Mr Kavinsky had helped her, earlier in the evening, with ensuring the departure of one of Mr Kavinsky’s inebriated friends.

• In the course of his testimony, Mr Kavinsky also alleged that, on or about the same date as the aforesaid occasion of his picking Ms Leget up from the Hilton property, he was told by Hailee and/or Ms Leget that Hailee was fearful of her parents because they were abusive, and by Ms Leget that Hailee had accused her parents of having killed a three-year-old sibling through abusive behavior. This in turn was said to be the reason given by Ms Leget for her desire to be picked up from the Hiltons, as she had intended to stay but now feared Mr and Mrs Hilton. However, Mr Kavinsky himself could not recall with certainty whether he had ever heard such statements directly from Hailee, (or whether she even had come away with him and Ms Leget on the day in question). Moreover, Hailee herself vehemently denied having ever made such statements, and denied absolutely having ever had a sibling that died. (The suggestion was never put to Mr or Mrs Hilton in the course of their testimony.) Furthermore, Mr Kavinsky himself dismissively characterized the alleged story about Mr and Mrs Hilton killing their own child as “weird”, “silly”, and something he did not believe. Nor did anything in the alleged accounts suggest that Mr or Mrs Hilton were abusive to anyone but their own children. Mr Kavinsky confirmed that nothing prior to the birthday party had suggested to him that Mrs and Mr Hilton were “mean” people. He thought Mrs Hilton “seemed really nice”, and that Mr Hilton “had a bit of authority” but “that was about it”. In particular, Mr Kavinsky thought Mr Hilton “didn’t really seem that aggressive, or anything that bad”. Mr Kavinsky and Ms Leget also obviously were both quite willing to voluntarily return to the Hilton property for Hailee’s birthday gathering just a few weeks later, which strongly suggests that neither was apprehensive about seeing Mr or Mrs Hilton again. In the result, I find that, even if such allegations of prior abusive conduct by Mr and Mrs Hilton were made, (which I doubt for the reasons outlined), they did not cause Mr Kavinsky to have any fear of Mr or Mrs Hilton before the night of the birthday party.

• As for the night of the party itself, Hailee claimed to have a definite memory of her father, during the party, forcing Mr Kavinsky to leave the party and go home in a cab earlier in the evening, (before Mr Kavinsky’s later return), and her father then expressly explaining to her, in perhaps graphic and pejorative terms, that Mr Kavinsky was “too drunk” to remain at the party. However, I do not believe or accept Hailee’s testimony in that regard. Hailee herself acknowledged that her memory of such events was very unclear, as she was pretty “out of it” by that point. Moreover, the suggestion of such an earlier confrontation between Mr Hilton and Mr Kavinsky is at odds with the testimony of Mr Hilton, who said he had little interaction with Hailee’s guests before the incident, and I think Mr Hilton almost certainly would have remembered and mentioned any encounter with Mr Kavinsky earlier in the evening. Similarly, it arguably would have been in Mr Kavinsky’s interest to suggest an earlier interaction with Mr Hilton on the evening in question, wherein Mr Hilton had dominated Mr Kavinsky, but Mr Kavinsky’s testimony included no mention of such a prior encounter. To the contrary, Mr Kavinsky described only a brief prior interaction with Mr Hilton that was entirely benign; i.e., when Mr Hilton is said to have appeared for a brief time with the family dog, making it do tricks, at which point Mr Kavinsky said he spoke with Mr Hilton and they were “having a good time”. In particular, he confirmed that Mr Hilton was not being mean, rude or disrespectful, but polite and welcoming. As noted above, Mr Kavinsky similarly confirmed that Mrs Hilton was being nice to him earlier in the evening, before the confrontation.

• In the result, I find that the nature of Mr Kavinsky’s relationship with the parties threatening or using force against him on the night of the party, (i.e., Mrs and Mr Hilton), was limited, almost entirely, to the relatively short interactions between Mr Kavinsky, Mrs Hilton and Mr Hilton as Mrs and Mr Hilton endeavored, respectively, to secure Mr Kavinsky’s car keys and otherwise prevent him from drinking and driving. In my view, that reality in itself has certain additional implications. In particular, it means that the fundamental nature of the relationship between the parties was prompted and dominated by an inherently benevolent purpose on the part of Mr and Mrs Hilton; i.e., to prevent harm to Mr Kavinsky or others that might result from Mr Kavinsky drinking and driving. The nature and purpose of the relationship between Mrs Hilton, Mr Hilton and Mr Kavinsky therefore effectively was the antithesis of one wherein Mr and Mrs Hilton set out to inflict harm, on Mr Kavinsky or anyone else, and I think any reasonable person in Mr Kavinsky’s position would have realized that. Indeed, Mr Kavinsky himself acknowledged in cross-examination that he knew Mrs and Mr Hilton were trying to stop him from driving because they cared about Mr Kavinsky, and did not want him to hurt himself.

[76] As for “the nature and proportionality of the person’s response to the use or threat of force”:

• I already have listed and described the general nature of the stab wounds inflicted by Mr Kavinsky on Mr Hilton. A number of them were severe, requiring not only stitches but significant surgery and follow up treatment, documented at length in the medical records filed as exhibits.

• In cross-examination, Mr Kavinsky tried to suggest he had stabbed or swung his knife at Mr Hilton “with not much force”. In my view, however, that is belied by the nature and depth of Mr Hilton’s wounds, and the reality that the force applied was sufficient to sever tendons.

• As noted above, Mr Kavinsky also inflicted the wounds sustained by Mr Hilton within a very brief span of time; i.e., within a minute. That in turn means that Mr Kavinsky must have lashed out repeatedly with his knife, stabbing Mr Hilton numerous times in the arm and torso in fairly rapid succession, without pausing to see what the effect of any individual wound might have been in deterring Mr Hilton’s continued application of force against Mr Kavinsky. In cross-examination, Mr Kavinsky also indicated that, from his perspective, Mr Hilton already had stopped banging Mr Kavinsky’s head when Mr Kavinsky drew his knife and stabbed Mr Hilton.

• In short, the force threatened by Mrs Hilton and/or Mr Hilton was limited to taking Mr Kavinsky’s car keys, and preventing Mr Kavinsky from driving while intoxicated. The force actually used by Mr Hilton was limited to shoving, grabbing, holding Mr Kavinsky in place, and hitting Mr Kavinsky with his hands as he thought Mr Kavinsky was hitting him back in a similar fashion. It inflicted no discernible injuries on Mr Kavinsky, and certainly nothing serious or life-threatening. However, Mr Kavinsky responded with potentially lethal force, rapidly inflicting multiple and serious stab wounds upon Mr Hilton.

[77] As for “whether the act committed was in response to a use or threat of force that the person knew was lawful”:

• I was provided with no authorities to assist with interpretation or application of this required s.34(2)(h) consideration. However, on its face, it seems premised on a determination that the force being used or threatened against the accused “was lawful”. That must be so, as it is the accused’s knowledge of such lawfulness which the court is directed to consider.

• In this case, the force being used or threatened against the accused involved efforts by Mrs Hilton and Mr Hilton to physically stop Mr Kavinsky from driving while intoxicated. That in turn raises the question of whether it is lawful for a social host to resort to the use of force to prevent a guest from driving while intoxicated.

• In cross-examination, Mr Kavinsky agreed with the proposition that Mr and Mrs Hilton had responsibilities as hosts that evening, which included not allowing people to drive home while drunk, with all its attendant dangers to the drunk driver and others.

• In my view, however, neither counsel suggestions regarding the state of the law, nor an accused’s agreement in that regard, are determinative of whether, in relation to s.34(2)(h) of the Code, an accused was responding to a threat or use of force that was indeed lawful. Whether or not conduct is lawful or unlawful is something for legislatures and courts to decide.

• In that regard, I would not want my decision in this case to be interpreted as a sweeping pronouncement on the precise measures a social host may or may not lawfully undertake to prevent an intoxicated guest from driving, particularly when counsel presented me with no authorities or detailed submissions in that regard. For present purposes, I think it sufficient to note the following:

  • In Canada, the law is clear that commercial establishments such as bars owe a duty to guests and third parties, and that duty imposes an obligation to take positive steps in order to prevent injuries caused by patrons. See, for example, Jordan House Ltd. v. Menow, 1973 16 (SCC), [1974] S.C.R. 239; and Crocker v. Sundance Northwest Resorts Ltd., 1988 45 (SCC), [1988] 1 S.C.R. 1186.
  • However, important distinctions are drawn between such “commercial host” situations and those involving what has been described as a “social host”; for example, a homeowner who gratuitously provides a venue for a social gathering, at which alcohol consumption is expected and tolerated, but with guests bringing and serving their own alcohol. Such distinctions were emphasized in Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, which highlighted realities such as commercial establishments standing to profit more when a person gets drunk, monitoring drinks consumed in order to render appropriate charges, and having to comply with numerous rules and regulations not applicable to the average person having friends over to a home for alcohol consumption. Such considerations called for a different approach to the imposition of duties on social hosts, having regard to different “proximate relationship” and foreseeability concerns. In that regard, the Supreme Court of Canada noted that, while a positive duty to act may arise in law where one “intentionally attracts and invites third parties to an inherent and obvious risk that he or she has created or controls”, hosting a party at one’s home is not an inherently risky activity on its own, and “more is required” to create a dangerous environment in the sense required. In particular, before a positive duty to act arises in law, the social host needs to take part in the “creation or exacerbation of risk”. For example, a social host who continues to serve alcohol to an intoxicated guest, knowing the guest will be driving, may then have a positive duty to act so as to prevent the possible consequences.
  • In short, the lawful duties and obligations which may fall upon such a particular social host are inherently fact specific. Given that reality, it seems to me that, at the time of the confrontation between the Hiltons and Mr Kavinsky, there was a corresponding inherent uncertainty as to the legal obligations, if any, that Mr and Mrs Hilton had in relation to preventing Mr Kavinsky from drinking and driving. In my view, that in turn makes it difficult, if not impossible, to say fairly, or with any certainty, that Mr Kavinsky knew, or even ought to have known, that the force being used and/or threatened against him by Mr and Mrs Hilton was “lawful”, at least in the sense of their having a legal duty to act which in turn may have justified their use of force. Likewise, and by extension, I think similar uncertainty existed in relation to whether Mrs and Mr Hilton may or may not have been entitled to use force, in the particular circumstances of this case, to prevent what they perceived to be imminent criminal conduct; i.e., driving while impaired.
  • In the particular circumstances of this case, I therefore regard this s.34(2)(h) factor as a neutral consideration in my broader section 34 analysis. On a somewhat related point, I note, for the sake of completeness, and before moving on to my final s.34(1)(c) determination, that there was no suggestion in the case before me, (perhaps for similar reasons), that s.34(3) had any application in the circumstances, so as to render s.34(1) inapplicable. To the contrary, both parties clearly approached this case on the basis that application of section 34 to the aggravated assault charge faced by Mr Kavinsky was to be determined through a focus on subsections 34(1) and [34(2)](https://www.canlii.org/en/ca/laws/stat/rsc