Her Majesty the Queen v. Vulnet Zejnelovski, 2017 ONSC 6076

CITATION: R. v. Zejnelovski, 2017 ONSC 6076

COURT FILE NO.: 15-224

DATE: 20171013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VULNET ZEJNELOVSKI

Defendant

Shannon Curry for the Crown

Bernard Cugelman for the Defendant

HEARD: October 2 – 5 and 10 - 12, 2017

reasons for judgment

Boswell j.

I. Introduction

[1] At closing time on any given Friday or Saturday night, the atmosphere outside the nightclubs on Dunlop Street in downtown Barrie might fairly be described as violently festive. By about 2:30 a.m., the streets are flowing with intoxicated patrons let loose on the city by its local taverns. Young men, jacked up on a combination of alcohol and bravado, regularly fight each other over issues like respect and masculine supremacy. Violent disturbances in the downtown core are a real blight on the city and have been for many years.

[2] This case is a story about four young men fighting after closing hour in downtown Barrie.

[3] In this story it is not easy to distinguish between the villains and the victims. The victims presented by the Crown – Mr. Barkho and Mr. Greco – are in fact the aggressors in this story. They confronted Mr. Zejnelovski and his friend, Mr. Bowman, at about 3:00 a.m. on Maple Street, just around the corner from Dunlop. Mr. Barkho threw a punch. Then other punches were thrown. Mr. Bowman and Mr. Zejnelovski tried to run away. Mr. Barkho and Mr. Greco gave chase. They were looking for a fight. They got one. It ended badly for them. Mr. Barkho and Mr. Greco were stabbed and seriously injured.

[4] Only Mr. Zejnelovski faces criminal charges as the alleged stabber. In fact, he faces four charges: aggravated assault in relation to Mr. Barkho’s injuries; assault causing bodily harm in relation to Mr. Greco’s injuries; assault with a weapon; and weapons dangerous.

II. POSITIONS OF CROWN AND DEFENCE

[5] The Crown concedes that a number of Crown witnesses did not provide particularly reliable evidence, but takes the position that there is still sufficient evidence, particularly in view of the statements of the accused and video surveillance from the area of the altercation, to conclude that Mr. Zejnelovski is guilty of assaulting both Mr. Barkho and Mr. Greco with a knife. Their injuries are agreed and clearly meet the threshold of aggravated assault and assault causing bodily harm respectively.

[6] The Defence takes the position that the evidentiary record is insufficient to support a finding, to the reasonable doubt standard, that Mr. Zejnelovski stabbed either of Mr. Barkho or Mr. Greco. If the court concludes otherwise, however, counsel asserts that Mr. Zejnelovski was clearly acting in self-defence and should be acquitted of all assault charges.

[7] In terms of the charge of weapons dangerous, counsel made only brief submissions, essentially taking opposite positions as to whether the essential element of “purpose” has been made out in the evidence.

[8] From here, I will proceed as follows. First, I will remark on the fundamental principles that apply to this and every other criminal trial that takes place in Canada. I will then provide a general overview of the events leading up to and occurring at the time of the stabbings, as disclosed in the evidence. I will make a number of straightforward factual findings based on that general overview. I will follow the overview with an outline of the essential elements of the charged offences and I will proceed with an analysis of those essential elements in light of the evidentiary record. I will make further factual findings as necessary, as I consider each offence and its essential elements.

[9] I begin with the fundamentals.

III. FUNDAMENTAL PRINCIPLES

[10] There are certain fundamental principles that must be kept foremost in mind in any criminal trial in Canada. They are as follows.

[11] First, Mr. Zejnelovski is presumed to be innocent of the charges against him, unless and until Crown counsel proves beyond a reasonable doubt that he is guilty of one or more of those charges.

[12] Second, the burden of proof at all times remains on the Crown.

[13] Third, because the burden of proof remains with the Crown at all times, Mr. Zejnelovski is under no obligation to prove anything in this case. He elected not to testify, which was his right and no inference may be drawn from that election.

[14] With these fundamental principles in mind, I will provide a brief overview of the incidents in issue.

IV. OVERVIEW

[15] The narrative of this case involves two factions. The first I will refer to as the “Barkho group”. This group was made up of six individuals who travelled from Woodbridge to Barrie on Saturday night, October 5, 2013, to celebrate the birthday of a seventh individual. The birthday celebrant spent virtually no time with the Barkho group and does not play any meaningful role in the night’s narrative. The Barkho group consisted of Saiver Barkho, Mario Greco, Adam Deliso, John Dallaguistina, Matthew Lorefice and Steven Georgas.

[16] The second faction in this story I will refer to as the “Zejnelovski duo”. It consisted of the defendant, Vulnet Zejnelovski and his friend, Jacob Bowman. Like the Barkho group, the Zejnelovski duo were downtown in Barrie on the night of October 5, 2013 patronizing one or more of the local taverns.

[17] Downtown Barrie is a busy place on Friday and Saturday nights. Dunlop Street is the main downtown thoroughfare and it is lined with bars and nightclubs over a stretch of three or four blocks. It runs east and west.

[18] For my purposes, the evening may be fast-forwarded to about 2:30 a.m. on October 6, 2013. The local bars were letting out onto the street. The Barkho group had been partying at the Queens Hotel, which is on Dunlop Street near the easterly end of the downtown core. They, and many other patrons, exited the Queens onto Dunlop.

[19] Mr. Barkho was very intoxicated. He was not a happy drunk. His behaviour was captured on a video surveillance camera on Dunlop Street and it was described by some of the friends he was out with. Mr. Greco, for instance, said he was provoking people. He appeared drunk, angry, or a combination of both. He was “amped up big time”. John Dallaguistina said he was being rowdy and angry. He was confronting people on the street, saying things like, “you don’t know who I am” and something about the “Toronto Bloods”. Steven Georgas said that he was being “lippy”, acting drunk and bumping into people. He was “yapping at people in not a nice way”.

[20] Heading west on Dunlop St., the Barkho group reached the five points, which, as the name suggests, is an intersection of five streets, more or less at the centre of the downtown core. A CCTV camera monitors the intersection twenty-four hours per day. Mr. Barkho was recorded arguing with a group of people outside a food stand on the north-east corner of the intersection. For reasons best known only to him, he took his shirt off and spent much of the remainder of the evening shirtless. It appears to me to have been part of his act as a provocateur.

[21] Minutes later, and just west of the five points, some of the members of the Barkho group were captured by the CCTV camera appearing to confront another group of males. During this confrontation, Mr. Barkho took a punch to the head from a larger man who then exited the scene. A hundred metres west another altercation took place. This time, witnesses say that Adam Deliso took a punch to the back of the head from a bouncer or at least someone big who appeared to be a bouncer. Mr. Barkho and Mr. Greco intervened.

[22] Eventually the Barkho group reached Maple Street, which is near the westerly end of the downtown strip. Maple runs north and south. The Barko group turned right and headed north. Another CCTV camera captured them walking as a group north on Maple Street and then coming back south again. Mr. Barkho was still without a shirt.

[23] Shortly after 3:00 a.m., the Zejnelovski duo arrived at the intersection of Maple and Dunlop Streets and turned north onto Maple. They were heading towards Mr. Zejnelovski’s car which was parked in a municipal lot on the west side of Maple Street, perhaps 250 metres north of Dunlop Street.

[24] As Mr. Zejnelovski and Mr. Bowman turned the corner from Dunlop onto Maple they encountered Mr. Barkho’s group. The initial encounter was captured and recorded by a CCTV camera mounted on a pole at the corner of Dunlop and Maple Streets. The recording shows Mr. Barkho and Mr. Greco face to face with Mr. Bowman and Mr. Zejnelovski. Mr. Barkho took a swing at Mr. Zejnelovksi but missed. He then pushed Mr. Greco into Mr. Bowman, then the camera moved to a different angle.

[25] There is no audio with the video surveillance. John Dallaguistina testified, however, that he was present at the time of this altercation. He confirmed that Mr. Barkho threw the first punch. He also testified that Mr. Zejnelovski and Mr. Bowman were both saying that they did not want to fight; they didn’t want trouble and just wanted to go home. But Mr. Greco and Mr. Barkho wanted to keep it going.

[26] Mr. Greco and Mr. Barkho also testified about how the fight began and who said what to whom. For reasons I will express a little later, I am not prepared to rely on much of what either of those two witnesses had to say. I accept Mr. Dallaguistina’s evidence on this point. It is consistent with the video evidence. He would have had no reason to be untruthful about it, particularly in light of the fact that Mr. Barkho and Mr. Greco were both his friends. Moreover, it is not a conversation he was trying to remember four years after the fact. He advised the police of these details when interviewed several hours after the incident occurred.

[27] The CCTV camera at the intersection of Dunlop and Maple Streets rotated around 360 degrees. It paused at eight second intervals over six different set perspectives as it rotated. In other words, it only focussed on the area of the incident in issue for eight seconds at a time, every 48 seconds.

[28] By the time the camera swung around again, after the initial confrontation was recorded, the confrontation had moved across the street. At this point, Mr. Bowman and Mr. Zejnelovski had moved from the east side to the west side of Maple Street, a little north of where the initial encounter happened. Mr. Greco was with them and appears to have been engaged physically with Mr. Bowman. Mr. Barkho, still shirtless, is observed walking across the road and joining the other three males. When he arrived on scene he began to bob and weave like a boxer as he stood before Mr. Bowman. Mr. Zejnelovksi was, at that time, standing a little farther back on the sidewalk.

[29] The CCTV camera did not record any further part of the confrontation, but there was a camera on a building on the east side Maple Street (on the back of the Ranch nightclub) which recorded events as they moved north up Maple. The Ranch camera was stationary. It recorded Mr. Bowman and Mr. Zejnelovski running at pace up the west side of Maple Street. Mr. Barkho and Mr. Greco were in hot pursuit and caught them about a hundred metres or so up the street, just as the foursome rounded the corner of a building housing a pawn shop. A physical altercation then took place. Mr. Barkho and Mr. Greco both received serious stab wounds.

[30] Mr. Zejnolvski and Mr. Bowman left the scene moments later in a Dodge Challenger. They were arrested a short time later. Two knives were recovered from the car.

[31] Mr. Greco stumbled down to Dunlop Street and collapsed. Mr. Barkho made it only a short distance down Maple Street and collapsed in another parking lot. Both were conveyed to hospital by ambulance.

[32] Over the course of the trial, all six members of the Barkho group testified about the stabbing incident and the period that preceded it. Mr. Zejnelovski did not call defence evidence, but the Crown did introduce into evidence a videotaped statement that he made to the police at about 11:40 a.m. on October 6, 2013, as well as utterances he made to police officers at and shortly after the time of his arrest.

[33] Having reviewed the video evidence in detail and having considered the testimony of the eyewitnesses, I draw the following conclusions:

(a) Though ultimately victims of the stabbings, Mr. Barkho and Mr. Greco were the instigators and aggressors of the physical confrontation between the two of them and the Zejnelovski duo. Both Mr. Zejnelovski and Mr. Bowman received injuries consistent with blunt force trauma. Mr. Zejnelovski had a cut and swollen face. Mr. Bowman had a broken jaw;

(b) The Zejnelovski duo clearly expressed to Mr. Barkho and Mr. Greco that they had no interest in a fight; and,

(c) The Zejnelovski duo attempted to flee from Mr. Barkho and Mr. Greco but were pursued and forced into a physical confrontation by them. It was only then that the stabbings occurred.

[34] With that general overview in place, I will turn now to the charged offences and their essential elements. I will examine additional trial evidence and make further findings of fact as and where necessary as the analysis proceeds.

V. ANALYSIS

THE ESSENTIAL ELEMENTS

[35] The outstanding charges are as follows:

• Count One: Assault with a weapon;
• Count Two: Weapons Dangerous;
• Count Three: Assault causing bodily harm to Mr. Greco; and,
• Count Four: Aggravated assault against Saiver Barkho.

[36] The assault charges require the Crown to prove beyond a reasonable doubt that Mr. Zejnelovski intentionally applied force to another person without that other person’s consent.

[37] An assault causes bodily harm when it results in a hurt or injury that interferes with the victim’s health or comfort, provided that the injury is more than trifling or fleeting.

[38] An aggravated assault is one that results in the wounding of the victim. “Wounding” means maiming, disfiguring, or endangering life.

[39] In the case of either category of assault, the Crown need not prove that Mr. Zejnelovski meant to cause the harm inflicted, but must prove to the reasonable doubt standard that a reasonable person would, in the circumstances, realize that the force applied would put the victim at risk of suffering some form of bodily harm.

[40] An assault with a weapon, as the name suggests, means an assault that involves the use of a weapon.

[41] Finally, the charge of “weapons dangerous” requires the Crown to prove, beyond a reasonable doubt, that Mr. Zejnelovski possessed a weapon (in this case a knife), knew that what he possessed was a weapon, and that he possessed it for a purpose dangerous to the public peace.

[42] For purposes of efficiency, I am going to analyse the charged offences in a different order than laid out on the indictment. I will begin with counts three and four, which allege assaults against Mr. Greco and Mr. Barkho.

COUNTS THREE AND FOUR

Intentional Application of Force

[43] Again, the first essential element that the Crown must prove, to the reasonable doubt standard, in any assault case, is that the accused intentionally applied force to another person. I will accordingly review the evidentiary record in terms of the allegations of an intentional application of force by Mr. Zejnelovski.

[44] The Crown does not suggest, by the way, that Mr. Zejnelovski is guilty of assaulting Mr. Barkho or Mr. Greco at any point in time prior to when the stabbings occurred. In other words, the Crown does not take the position that Mr. Zejnelovski assaulted either of these gentlemen during the two confrontations on either side of Maple Street captured by the CCTV camera at the intersection of Dunlop and Maple Streets.

The Evidence

[45] There were four eyewitnesses to the alleged assaults which took place in the parking lot just north of the Hock Shop, when the stabbings occurred: Mr. Zejnelovski, Mr. Bowman, Mr. Greco and Mr. Barkho.

[46] While none of the other members of the Barkho group were present at the moment the stabbings happened, they each gave evidence of their observations of that time period.

The Barkho Group

[47] Mr. Deliso testified that all he remembers is seeing the four males run up the street. He could not remember any of them saying anything. He remembers that Matthew Lorefice told him, “don’t go”. And he waited. He eventually ran north, only to find Mr. Greco running south exclaiming that he had been stabbed.

[48] Mr. Lorefice testified that he was walking down the street talking to a girl. When he rounded the corner (presumably onto Maple Street) he saw Mr. Greco running down the street holding his stomach. He saw Mr. Barkho drop. He saw a red Dodge Charger and called the police.

[49] Mr. Dallaguistina testified that he saw the four males fighting on Maple Street (which he mistakenly described as Toronto Street). He saw Mr. Zejnelovski and Mr. Bowman run away up the street, pursued by Mr. Barkho and Mr. Greco. He said he stayed put initially, but eventually he and Steve Georgas ran up in their direction after they turned the corner into a parking lot. He said he saw them fighting again on the street. He said Mr. Barkho was fighting the taller guy (Mr. Bowman) and Mr. Greco was fighting the shorter guy (Mr. Zejnelovski).

[50] Mr. Dallaguistina claimed to have seen the smaller guy swinging something at Mr. Greco’s stomach, but he did not have his glasses on and could not see what it was. He said he saw Mr. Greco hunched over and the shorter guy was swinging something at his stomach repetitively in a stabbing motion. Mr. Barkho was still fighting the taller guy, he said, and was also being stabbed repeatedly.

[51] Under cross-examination, Mr. Dallaguistina was taken to the video recording from the Ranch surveillance camera. At 3:10:08 the four males are recorded running north on Maple Street. Mr. Greco and Mr. Barkho were chasing Mr. Bowman and Mr. Zejnelovski. Mr. Dallaguistina confirmed that, at that time, he was holding back with Mr. Lorefice, Mr. Deliso and Mr. Georgas. At 3:10:21 Mr. Deliso ran towards the altercation. Mr. Dallaguistino did not – he confirmed that he still waited. It was not until 3:10:33 that he and Mr. Georgas came running north on Maple towards the altercation. He did not get close to the combatants until 3:10:41. By that point, frankly, the altercation was over.

[52] Mr. Dallaguistina told the police that he saw the stabbing motions from about 100 metres away. He told the police that the tall guy was swinging the knife at Mr. Greco’s stomach. When asked what the shorter guy was doing, he answered, “I have no idea.” He repeated that evidence at the preliminary hearing. He explained at trial that he was a little bit drunk the night of the incident and was confused when speaking to the police. He added that at the preliminary hearing, he simply followed his statement to the police.

[53] I find that Mr. Dallaguistina was not present at the time of the stabbing. In fact he was some 100 metres away and not wearing his glasses. His evidence about what happened has been inconsistent over time. In my view, he has tried to piece together what he thinks happened, but inconsistencies in his story are the result of a lack of actual observation.

[54] Mr. Georgas testified that he observed the confrontation on Maple Street and heard someone say, “come here tough guys”. He then saw Mr. Barkho and Mr. Greco chasing two males up Maple Street. Then he heard screaming. He ran up the street and encountered Mr. Greco on his way back with blood on him. Mr. Barkho was on the ground holding his neck.

[55] He then testified that he saw that Mr. Greco was still fighting the shorter guy (Mr. Zejnelovski) and he saw a repetitive motion. The taller guy had, he said, already taken off. When he got up to Mr. Greco, the shorter guy took off.

[56] Under cross-examination, Mr. Georgas said that all he could see was fighting in the distance. He did not see anyone get stabbed and did not know anyone had a knife.

[57] I am not satisfied that any of the four members of the Barkho group, who were not directly engaged in the confrontation, had a reasonable opportunity to make accurate observations about who did what to whom. At its highest and best, two of them have given inconsistent accounts of seeing the shorter guy engaged in a fight with Mr. Greco.

[58] I will turn to the evidence of the stabbing victims, starting with Saiver Barkho.

Saiver Barkho

[59] Mr. Barko presented as an entirely untrustworthy and unreliable witness. While I am free to believe and rely upon all, some or none of his evidence, my choice would be next to none.

[60] His principal problem is a lack of meaningful recollection on any topic of significance.

[61] He either has a failing recollection or, more likely, a reticence to be candid about his alcohol consumption on the night in question. He suggested he was essentially sober, with maybe “a bit of a buzz”. Evidence of his medical reports was filed by way of admission. It is an admitted fact that his blood alcohol content at the time of the stabbing was over 200 mg of alcohol in 100 ml of blood. The videos of him walking on Maple Street reveal him to be staggering. He was running about shirtless. He was seriously intoxicated and his ability to recall and recount evidence is significantly compromised.

[62] The available video surveillance clearly demonstrates that he was behaving in an aggressive manner on the night in issue. I infer that he was looking for a fight. Mr. Barkho denied that he has been involved in fights before, other than in elementary school, yet he said at both the preliminary hearing and in his original statement to the police that he has experience in fights, including in high school. His best friend, Mr. Greco, testified that Mr. Barkho is no stranger to fighting.

[63] Mr. Barkho denied that he and Mr. Greco were chasing Mr. Bowman and Mr. Zejnolovksi but obviously he was captured on video surveillance camera doing just that. Moreover, other witnesses do not support his denial. On his version of events, Mr. Bowman and Mr. Zejnolovksi “lured him” up to the parking lot where he was stabbed. I reject this version of events entirely.

[64] Mr. Barkho could not say whether he and Mr. Greco fought with the same person or different people. Though he claimed to recognize Mr. Zejnelovski’s face as a person he fought with, my view is that this “recognition” is nothing more than an in-dock identification which has virtually no evidentiary value. He testified, under cross-examination, that when he arrived in court at the preliminary hearing he was aware that only one male had been charged with the stabbing. So when he saw Mr. Zejnelovski in court, he knew that must be the guy.

[65] Mr. Barkho was not able to say who stabbed him. The best he could say was that he was “pretty sure he went toe to toe with [Mr. Zejnelovski] or the other guy”. He was also unable to say who stabbed Mr. Greco. He said that as he was arriving at the scene of the fight, Mr. Greco was already leaving and had already been stabbed.

[66] I turn to the evidence of Mr. Greco.

Mario Greco

[67] Mr. Greco was only marginally more reliable and trustworthy than Mr. Barkho as a witness. He suffered from a poor recollection of the events of the night in question and, in my view, has reconfigured them in a format that portrays him in a more positive light than was the real case.

[68] He began by understating his alcohol consumption. It is an admitted fact that his blood alcohol content at the time of the stabbing (3 a.m.) was in the range of 150 mg of alcohol in 100 ml of blood. He said he had two shots of vodka in tiny plastic shot glasses at 11:30 p.m. After that he had only 2 beers and 2 additional shots of vodka. Despite his protestations to the contrary, I find that he was not sober.

[69] He candidly admitted that he was using marijuana on a daily basis at this point in his life. He said that it impaired his memory. He was less candid about his drug use on the night in issue. He said he was almost 100% sure that all he had consumed that night was a couple of drinks. He told paramedics who attended to him, however, that he had consumed MDMA at about 11:30 p.m.

[70] He was reasonably candid in his assessment of Mr. Barkho’s condition. He described him as aggressive and confrontational with people on the street after the bars closed. He said Mr. Barkho was amped up for sure. That said, there is ample video evidence of Mr. Barkho behaving in an obnoxious and aggressive fashion.

[71] Mr. Greco held himself out as the peacemaker that evening. He described an altercation involving his Mr. Deliso, where Mr. Deliso was punched by a large male for reasons not entirely clear to Mr. Greco. But Mr. Greco stepped in and apologized on behalf of his friend and cooled things off.

[72] His description of events involving the altercation with Mr. Zejnelovski and Mr. Bowman was, however, internally inconsistent and also not consistent with the video evidence.

[73] In chief he said that he and his group of friends were sitting on a bench on Dunlop St. Two males yelled something at Mr. Barkho from across the street. Mr. Barkho ran across the street and got into an altercation with the taller one of these two guys. Punches were exchanged, though he does not know who threw the first one. Mr. Greco said he got between the two protagonists and the fight stopped. According to him, the two guys ran around the side of a building and the shorter guy said “come here tough guys”. Mr. Barkho ran, so he chased after him because he was afraid his friend might get hurt. The other two guys were sort of jogging; not running at all. He said he approached the shorter guy and saw that he had a black knife in his hand. He said he stopped about a foot in front of the guy and guesses this is where he got stabbed.

[74] When asked by the Crown if he could have left the situation and not run after Mr. Barkho, he denied that that option was open to him. He thought Mr. Barkho was going to get hurt and as his friend, he had an obligation to help him.

[75] In cross-examination, Mr. Greco was taken to the CCTV recording on Maple Street which recorded the initial altercation between the two groups of men. The camera recorded the time as 3:07:57 a.m. Mr. Greco testified that this is the incident where he first encountered Mr. Zejnelovski and Mr. Bowman. He denied that he was present at the encounter before any fighting began. The video, however, clearly shows him and Mr. Barkho standing virtually face to face with Mr. Zejnelovski and Mr. Bowman. Mr. Barkho is observed to throw the first punch; the only punch recorded on video. Mr. Barkho then pushed Mr. Greco into Mr. Bowman. The recording does not reflect Mr. Greco attempting to intervene in any way.

[76] To be fair, the video camera rotated, as I said, and events continued to unfold even when the camera was not looking.

[77] Mr. Greco was next taken to the video recording of the altercation on the west side of Maple Street. Mr. Greco testified that he was trying to keep Mr. Barkho and the other two males apart. At the preliminary hearing, however, he testified that he came across the street and punched one of the two guys in the face. He said he then had Mr. Barkho in a bear hug to prevent further fighting. But the two males taunted them by saying, “come here tough guys”. He then let Mr. Barkho go and they chased the males up the street. This testimony is clearly inconsistent with his trial testimony.

[78] In cross-examination, when confronted with the Ranch video showing the foot chase, Mr. Greco conceded that no one was “jogging” and that all four of the males involved were running. He also accepted that he was not chasing behind Mr. Barkho as he suggested. In fact, he was initially side-by-side with Mr. Barkho, then overtook him.

[79] When asked in cross-examination whether he was chasing the two males with the intention of “filling them in”, he testified that he may have been. He said he was not intending to kill anyone, but conceded that Mr. Zejnelovksi and Mr. Bowman would not have known his intention.

[80] In his preliminary hearing testimony, which he adopted in his cross-examination, he said that when he caught up to the males, he saw that the shorter one had a knife and he punched that person in the face. That’s when he thinks he got stabbed. He agreed that in a statement he gave to the police on October 6, 2013 he had told the investigating officer that he is pretty sure he and the stabber both went to the ground and that’s when he got stabbed.

[81] He was also pretty sure that Mr. Zejnelovski was the person who stabbed him, though he could not be certain. He agreed that it is hard to say who stabbed him. It’s possible that he could have been stabbed by the taller guy.

Vulnet Zejnelovski

[82] Finally, I will review the evidence tendered by the Crown from Mr. Zejnelovski’s statements to the police. The statements came in two forms: utterances made at or near the time of his arrest; and a more formal, videotaped statement taken some eight hours after the incident occurred.

[83] PC Ronald Hunt is the officer who arrested Mr. Zejnelovski. He testified, and I accept, that Mr. Zejnelovski made a number of spontaneous utterances to him at the time of the arrest and then while PC Hunt was providing him with his right to counsel and caution. Those utterances include:

• “I feared for my life. The fucking guy said he had heat.”
• “I’m getting charged for this? The guy said he had heat man.”
• “We got jumped by ten guys. I didn’t want to die.”

[84] PC Shane Keers transported Mr. Zejnelovski to the Barrie police station from the site of his arrest. He testified, and I accept, that Mr. Zejnelovski made a number of spontaneous utterances during the ride, including:

• “He kept saying he had heat.”
• “They came up to us saying, ‘do you want heat’?”
• “I didn’t mean to stab him. I just meant to scare him.”
• “If I didn’t do it, I could have been killed. How would that scene be?”

[85] There are numerous points in his police statement where Mr. Zejnelovski made statements that tend to support the conclusion that he stabbed at least one of Mr. Greco and Mr. Barkho. For instance, and with reference to the transcript of the interview:

• At page 12 he said, “It was just so scary. I thought I was gonna die, man. Like I would’ve never pulled that knife if I…If I didn’t like fear for my life.”
• At page 30: “Then I get clobbered, I just get hit and like it goes black but I come back in and then, uh, they’re like…started yelling at their boys or whatever to come I think, and then we just started running. And then I just pulled my knife out thinkin’ it would just scare him, like so I can just leave so I can go home. But no, he still wanted to fight me. He still up close, tried to punch me.” When asked what happened next he said, “then I cut him”. When asked which guy, he said, “The smaller one I think. Do you know which ones have like the wounds?”
• At page 37, when asked what the surveillance video will show he said, “…you’ll see that guy chasing us, and then you’ll see us running, then you’ll see us stop, then you’ll see me pull out a knife, then you’ll see the rest.” When asked what the rest is he said, “as in me stabbing him.”
• At page 38 when asked if the short guy with the leather jacket and no shirt was one of the guys who got stabbed he said, “Yes. I’m just trying to think now though. ‘Cuz like I honestly don’t even remember stabbing that kid, it was just too quick I think.”
• At page 39 when asked if he remembered stabbing both guys he said, “No. It’s kind of like a blur.”
• At page 41 when asked if he stabbed “the other guy” (meaning Mr. Greco) he said, “I don’t believe so. Like I don’t even remember stabbing the other guy, I don’t remember stabbing, like holy fuck.”

Conclusions

[86] None of the witnesses who testified at trial said that Mr. Zejnelovski stabbed Mr. Barkho, including Mr. Barkho. The most compelling evidence against Mr. Zejnelovski in terms of whom he stabbed comes from Mr. Zejnelovski’s own statement to the police. Even then, he is somewhat equivocal about it. His statements are not, in my view, sufficient to satisfy me beyond a reasonable doubt that Mr. Zejnelovski stabbed Mr. Barkho.

[87] There is marginally more evidence that Mr. Greco engaged Mr. Zejnelovski and was stabbed by him. That was Mr. Greco’s evidence, though he ultimately was not sure who it was who did the stabbing. Two of the Barkho group purported to see Mr. Zejnelovski tangling with Mr. Greco and making repeated stabbing motions, but I have already indicated that I do not consider their evidence on this point to be reliable. The Crown conceded as much in submissions.

[88] Nothing in Mr. Zejnelovski’s statement to the police, or in his spontaneous utterances upon arrest, assist in establishing – to the reasonable doubt standard – that he stabbed Mr. Greco.

[89] A significant difficulty for the Crown is that there were two combatants involved on both sides of this fight. There were two knives found in the red Challenger when it was pulled over by the police. Mr. Zejnelovski admitted one knife was his and said the other belonged to Mr. Bowman. Both had blood on them.

[90] The knives were sent to the Centre of Forensic Sciences for analysis. A male DNA profile (profile 1) was found on the blade of Mr. Zejnelovski’s knife. A different male DNA profile (profile 2) was found on the handle of Mr. Zejnelovski’s knife, and on the blade and handle of the second knife. Neither DNA profile was matched to Mr. Greco or to Mr. Barkho. To be clear, a match to Mr. Barkho was made impossible by his refusal to provide a DNA sample.

[91] It is curious that Mr. Zejnelovski’s knife yielded two male DNA profiles, neither of which were a match to Mr. Greco’s DNA. This is not conclusive evidence of anything, but it is a curious piece of circumstantial evidence that tends to support a reasonable doubt about whether Mr. Zejnelovski is the person who stabbed Mr. Greco.

[92] It is possible that Mr. Zejnelovski stabbed Mr. Barkho. It is also possible that he stabbed Mr. Greco. His utterances upon arrest and in his statement to the police satisfy me that he stabbed someone. On this evidentiary record, however, I am unable to conclude who that someone was, to the reasonable doubt standard.

[93] I have a reasonable doubt about whether Mr. Zejnelovski intentionally applied force to Mr. Barkho. Similarly I have a reasonable doubt about whether Mr. Zejnelovski intentionally applied force to Mr. Greco. In the result, there will be an acquittal registered on counts three and four.

[94] I will move on to consider count one, the charge of assault with a weapon.

COUNT ONE

[95] Count one alleges that Mr. Zejnelovski committed an assault upon Savier Barkho and Mario Greco and used a weapon while doing so.

The Offence is Made Out

[96] As I noted a moment ago, I am not sure which of Mr. Barkho and Mr. Greco was stabbed by Mr. Zejnelovski. I am, however, satisfied beyond a reasonable doubt that he stabbed at least one of them, based on the following evidence:

(a) There was a confrontation between four males. Mr. Barkho and Mr. Greco were stabbed. Mr. Barkho did not have a knife. Mr. Greco did not have a knife. Mr. Bowman may have had a knife. Mr. Zejnelovski did have a knife;

(b) Mr. Zejnelovski’s knife has blood on it; and,

(c) Mr. Zejnelovski made a number of important admissions when speaking to the police. He said he had a knife. He described it. He said he used the knife. And he said he stabbed someone.

[97] In relation to count one is it not necessary that I be able to identify the particular person that Mr. Zejnelovski stabbed. He may be found guilty of assault with a weapon provided I am satisfied that he stabbed one or the other of Mr. Greco and Mr. Barkho.

[98] For the reasons I have stated, I am satisfied beyond a reasonable doubt that he did intentionally apply force to one of those two men by way of stabbing him. I am further satisfied beyond a reasonable doubt that the male stabbed did not consent to the stabbing. I am also satisfied beyond a reasonable doubt that the knife is a weapon, that Mr. Zejnelovski knew it was a weapon, and that he intentionally used it during the course of the assault.

[99] The Crown has made out a prima facie case of assault with a weapon against Mr. Zejnelovski. But there is more to the story. He raises the defence of self-defence.

Self-Defence

[100] Self-defence is a complete defence, if the evidence supports it. It does not excuse the conduct of an accused person who commits an assault, but it may justify it from a criminal law point of view.

[101] The defence is provided for at s. 34(1) of the Criminal Code which provides as follows:

A person is not guilty of an offence if

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

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

c) the act committed is reasonable in the circumstances.

[102] As s. 34(1) reflects, there are three essential elements to the defence of self-defence. They are briefly described as reasonable belief; defensive purpose; and reasonable response.

[103] It is important to remember, as I noted at the outset of this ruling, that Mr. Zejnelovski is under no obligation to prove anything in this case. It is not his onus to prove that he acted in self-defence. It is the Crown’s onus to prove, beyond a reasonable doubt, that he was not acting in lawful self-defence when he stabbed one or more of Mr. Barkho and Mr. Greco. I will consider the essential elements of the defence in light of that onus. I will be brief in respect of the first two elements because they are not particularly contentious on the facts of this case.

Reasonable Belief

[104] Although it is an awkward way to describe it, to negate the defence of self-defence, the Crown must first satisfy me, to the reasonable doubt standard, that Mr. Zejnelovski did not believe, on reasonable grounds, in the circumstances as he knew or believed them to be, that force was being used or threatened against him. In this instance, the evidence does not meet that mark.

[105] I have already found that Mr. Barkho and Mr. Greco were the aggressors on the evening in question. The CCTV camera at Maple Street records Mr. Barkho taking a swing at Mr. Zejnelovski.

[106] Mr. Dallaguistina testified, and I accept, that Mr. Barkho and Mr. Greco were intent on fighting notwithstanding that Mr. Zejnelovski and Mr. Bowman said they did not wish to fight and didn’t want trouble.

[107] Moreover, the Zejnelovski duo attempted to flee and were chased by Mr. Barkho and Mr. Greco in full flight. Mr. Greco himself accepted that he may well have had the intention to “fill them in”.

[108] I am satisfied that it was entirely reasonable for Mr. Zejnelovski to believe, in all the circumstances, that force was being used and threatened against him. Said another way, I am not satisfied beyond a reasonable doubt that Mr. Zejnelovski did not believe, on reasonable grounds, in the circumstances as he knew them to be, that force was being used or threatened against him.

Defensive Purpose

[109] Here, the Crown must satisfy me beyond a reasonable doubt that Mr. Zejnelovski did not act for the purpose of defending or protecting himself or another person from the use of force of threatened force by Mr. Barkho and/or Mr. Greco. Again, the evidence fails to meet that standard.

[110] Mr. Zejnelovski told the police, and I accept, that he pulled his knife out as he ran. He feared for his safety and he wanted to defend himself. At this stage, I am not drawing any conclusion about whether it was a reasonable response to the threat or perceived threat, but only determining whether the purpose of drawing and using the knife was for defence. I am satisfied that it was.

[111] The knife was only drawn and used when Mr. Barkho and Mr. Greco ran the Zejnelovski duo down. Prior to that the Zejnelovski duo had unequivocally stated that they did not wish to be involved in a fight. Their subsequent actions support those statements. They were trying to run away. When caught, Mr. Zejnelovski used a knife to defend himself.

[112] I will move on to the final element, the reasonableness of Mr. Zejnelovski’s response. This is the real litigious issue.

Reasonable Response

[113] Section 34(2) of the Criminal Code provides a measure of guidance when assessing whether the acts of the accused person were reasonable. It provides as follows:

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, including any prior use or threat of force and the nature of that force or threat;

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

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

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

[114] I am quite satisfied, on the evidence provided by the video surveillance, as well as by Mr. Barkho’s companions, that he was acting in an aggressive and provocative manner on Dunlop Street after the bars closed. Steven Georgas testified that he was bumping into people. One of the people he bumped into appears to have been Mr. Zejnelovski. Mr. Zejnelovski told D/C Storey that somewhere down near the Queens “this short guy bumps into me”. The short guy he referred to was later identified by features that make it apparent he is Mr. Barkho. Angry words were exchanged and it was apparent that Mr. Barhko was looking to start a fight. The Zejnelovski duo did not take the bait, however, and moved on.

[115] Later, they were to encounter the Barkho group again. They were already familiar with the aggressiveness of the group – or Mr. Barkho at least – when they met up on Maple Street. According to Mr. Zejnelovski, Mr. Barkho confronted them immediately as they rounded the corner. He said, “let’s go; put your dukes up”. He took a swing at Mr. Zejnelovski and missed.

[116] The Zejnelovski duo tried to leave but were pursued. More punches were thrown. Mr. Zejnelovski said that he thought there were as many as ten males in the Barkho group. During the confrontation someone said, “you don’t know where we’re from; we’re from B-Town”. He thought they were acting like gangsters.

[117] Mr. Dallaguistina testified that Mr. Barkho had been making similar comments to others earlier in the night, associating himself with the Toronto Bloods.

[118] Mr. Zejnelovski told the police at the time of his arrest and later during his video statement that Mr. Barkho claimed to have “heat” which he said he understood to mean a gun. He did not see a gun, but was not willing to wait around. He and Mr. Bowman ran, in an obvious attempt at self-preservation and to avoid any further confrontation. They were pursued at pace by Mr. Barkho and Mr. Greco.

[119] It is clear, in my view, that Mr. Barkho and Mr. Greco presented an imminent threat of force as they caught up to Mr. Zejnelovski and Mr. Bowman at the Hock Shop. Mr. Zejnelovski made the decision to use his knife in self-defence. He stabbed at least one of the assailants. Each of them had multiple stab wounds so it stands to reason that Mr. Zejnelovski inflicted multiple piercings on at least one of them.

[120] The central issue seems to me to be whether this was a proportionate response. The assailants were roughly the same age and size as the Zejnelovski duo. They had not shown any weapons. One might reasonably argue that Mr. Zejnelovski brought a knife to a fist fight.

[121] It is, of course, well-settled that a person is not expected to “weigh to a nicety” the exact measure of defensive force that is called for in any particular, dynamic scenario where they are under attack, or the threat of attack. Strict proportionality is not required: see R. v. Kong, 2005 ABCA 255, [2005] A.J. No. 981. I must be alive, as Lauwers J.A. held in R. v. Cunha, 2016 ONCA 491, [2016] O.J. No. 3321 (C.A.), “to the fact that people in stressful and dangerous situations do not have time for subtle reflection”.

[122] This is a tough case. Regular fights downtown are a chronic problem in Barrie. I certainly do not want to deliver a message that it’s okay to bring a knife to the clubs just in case things get dodgy. I really am troubled by the fact that Mr. Zejnelovski was carrying a knife and that the altercation in this incident got so ugly so fast.

[123] But having said that, Mr. Zejnelovski cannot be accused of being quick to pull out the knife. He did not use it, or threaten to use it, when initially swung at by Mr. Barkho. He preferred to remove himself from the situation. He did not use it, or threaten to use it, when confronted again on the west side of Maple Street when further punches were thrown. Again, he attempted to remove himself from the situation.

[124] By the time he was being chased up Maple Street, it would have been clear to Mr. Zejnelovski that these two guys – Barkho and Greco – intended to do him and Mr. Bowman harm. He was afraid for his safety and rightly so. I accept that Mr. Barkho had made comments connecting himself and his comrades to gang-related activity. And that he suggested he had “heat”. It was not unreasonable for Mr. Zejnelovski to fear that perhaps someone in the group had a gun.

[125] Even if Mr. Zejnelovski was wrong about the presence of a gun, such a mistaken belief, being reasonable in my view, does not bar an argument of self-defence: R. v. Cunha, as above, at para. 8.

[126] This was a stressful and dangerous situation for Mr. Zejnelovski. He reacted instinctively and out of fear.

[127] I confess that I am not prepared to find that his actions in inflicting numerous, potentially life-threatening stab wounds on another young male or males were reasonable. But his evidence, when considered in the context of the evidence on the whole, leaves me with a reasonable doubt about whether they were reasonable.

[128] Again, it is the Crown’s onus to establish, to the reasonable doubt standard, that Mr. Zejnelovski’s actions in defending himself were not reasonable in the circumstances. I am not satisfied, on this evidentiary record, to the requisite standard, that Mr. Zejnelovski was not acting in lawful self-defence.

[129] In the circumstances, there will be an acquittal on count one.

COUNT TWO

[130] I come now to the final charge: weapons dangerous. Almost invariably, Criminal Code offences are comprised of a conduct element and a state of mind element. In this instance, they may be briefly described as possession and purpose. Both must be established to the reasonable doubt standard in order to support a conviction. Moreover, the elements of possession and purpose must meet at some point to constitute an offence.

Possession

[131] The conduct element in this case engages the question of whether Mr. Zejnelovski knowingly possessed a weapon. In other words, did he possess a weapon and did he know that it was a weapon?

[132] These first two questions are easily answered. First, I think it axiomatic that the knife was a weapon. Equally axiomatic is the question of possession. Mr. Zejnelovski told D/C Storey, and I accept, that he had the knife in his pocket.

[133] Second, and as to whether Mr. Zejnelovski knew what he possessed was a weapon, in my view, anyone with an operating mind, and that includes Mr. Zejnelovski, would know that the knife was a weapon. When asked by D/C Storey why he was carrying a knife on the night in question he replied, “I don’t know, it just seemed like one of those nights, going downtown, there’s drunk people. I usually carry a lot of money on me.” I infer from this comment that he intended the knife to be available as a defensive weapon. He surely knew that the knife could be used to kill, hurt, threaten or intimidate another person.

Purpose

[134] The state of mind component to the offence is not so easily answered. Here the Crown is required to prove, beyond a reasonable doubt, that Mr. Zejnelovski had the knife for a purpose dangerous to the public peace.

[135] The term “public peace” has a long pedigree. I am proceeding on the basis that it generally refers to an orderly state of affairs. It is the opposite of a state of violence or unrest.

[136] There isn’t a great deal of jurisprudence on the interpretation and application of the weapons dangerous offence. The leading case appears to be the Supreme Court’s decision in R. v. Kerr, 2004 SCC 44. We are all the poorer for it.

[137] Kerr involved a killing of one inmate by another in the Edmonton Institution. The deceased was a member of a prison gang and had made threats to the life of the accused. Each of the accused and the deceased were in possession of makeshift knives. The deceased confronted the accused in the dining hall with his knife. The accused pulled his own knife and the two men stabbed each other multiple times. The deceased died from his wounds. The accused was charged with murder and weapons dangerous. He was acquitted of murder on the basis of self-defence. The trial judge similarly acquitted him of the weapons dangerous charge, but the Alberta Court of Appeal overturned the acquittal and entered a conviction on that charge. The accused appealed to the Supreme Court.

[138] The Supreme Court was divided 6-1 in the result, which was to overturn the Court of Appeal and restore an acquittal. The majority, however, was unfortunately divided 2-2-2 in the reasoning supporting the result.

[139] Justice Bastarache (Justice Major concurring) would impose a hybrid subjective-objective test for determining whether an accused person’s purpose in possessing a weapon posed a danger to the public peace. He held that a subjective purpose approach was not sufficient. The court must go further to determine if, objectively, the subjective purpose was, in all the circumstances, dangerous to the public peace. He would have granted the appeal and restored the acquittal.

[140] Justice LeBel (Justice Arbour concurring) concurred in the result, but would impose a wholly subjective test to determine if an accused had possession of a weapon for a purpose dangerous to the public. He held that such a purpose is the equivalent of “an intent to do harm to person or property, or being reckless in that regard.”

[141] Justice Fish (Justice Deschamps concurring) also concurred in the result. He did not subscribe to either the subjective intent test or the hybrid subjective-objective test. He held that the court must consider all of the evidence, including any declared purpose, in determining the real intent or purpose for which the accused had possession of the weapon at the relevant time. The court must then go on to determine if that real intent or purpose was dangerous to the public peace.

[142] Justice Binnie dissented in the result and would have dismissed the appeal on factual grounds.

[143] One could be forgiven for scratching one’s head at the end of a good reading of the Kerr decision. I, like other judges in the years that have followed its release, am left in a quandary about the proper test to apply.

[144] I will take the same approach as others have: see, for instance, R. v. M.D., 2008 BCCA 538. I find that there was some common ground between the Supreme Court judges. They all agreed that possession of a weapon for defensive purposes was a factor, but only one factor, to consider in determining whether possession was for a purpose dangerous to the public peace. Moreover, they all appeared to agree that our Court of Appeal’s decision in R. v. Nelson (1972), 8 C.C.C. (2d) 353 set out the proper test to be applied.

[145] In Nelson, former Chief Justice Gale said as follows:

The subjective purpose of the accused, as testified to by him, is a factor, but only one of the factors which must be considered by the trial Judge in deciding [what] was the “purpose of possession”.

A final conclusion as to what that purpose was is to be arrived at after considering all the relevant circumstances of the case, including the nature of the weapon, the circumstances under which the accused had it in his possession, his own explanation for that purpose, and the use to which he actually put it, if that sheds light on what his purpose was in originally having it.

[146] I will, in the result, apply the test enunciated in R. v. Nelson and adopted as correct by the Supreme Court in Kerr.

[147] Mr. Zejnelovski’s stated purpose for possessing the knife was self-defence. I accept his stated purpose. I believe his statement that he had the knife in his pocket only for the purpose of defending himself if need be. But that finding is not determinative. I may accept Mr. Zejnelovski’s subjective intent, but at the same time find that, in all the circumstances, his possession of the knife with that intent, or purpose, was still dangerous to the public peace.

[148] I am mindful of Justice Bastarache’s admonition that “a general atmosphere of violence or a simple fear of an attack do not alone justify the possession of weapons…” (Kerr, para 56). It seems to me that this statement is really only meaningful, however, if there is an objective component to the purpose element of the offence.

[149] Mr. Zejnelovski said that he thought he should take a knife downtown because of a vague concern about possible violence when the bars emptied drunk patrons onto the street. Objectively, such a purpose would not justify the possession of a weapon in the context of a night out clubbing.

[150] The tension between subjective and objective tests is readily apparent in this case. If it is permissible to carry a knife in one’s pocket when going out to nightclubs in downtown Barrie, due to subjective concerns about self-defence, then it may not be long before scores of drunken pub-hoppers are walking the streets armed with knives. Such a situation would, in my view, clearly be dangerous to the public peace. Unless, of course, one subscribes to the theory of deterrence through mutually assured destruction. I do not. Indeed, I consider such a scenario entirely bleak and to be avoided.

[151] Having said that, the majority of the court in Kerr did not adopt a hybrid subjective-objective test. Moreover, R. v. Nelson, which I am determined to follow, does not explicitly import an objective standard to the determination of the purpose element of the offence.

[152] In the result, I do not intend to apply a hybrid subjective-objective test. Instead, I will consider Mr. Zejnelovski’s stated intention as one of the factors to consider in the context of determining his purpose for possession of the knife, at the time he possessed it. As I said, his stated purpose, which I accept as genuine, was to have the knife in the event he needed it to defend himself.

[153] I find that at no time did Mr. Zejnelovski brandish his knife recklessly or offensively. He appears to have kept it in his pocket all night long. He did not utilize it during the initial confrontations with the Barkho group. In fact it stayed in his pocket during those confrontations even though he and his friend were being punched. He utilized it only in circumstances where he was essentially cornered and as a last resort out of fear for his life.

[154] The actions of Mr. Barkho and Mr. Greco were dangerous to the public peace. Mr. Zejnelovski’s response was restricted to thwarting the attack of these two dangerous individuals.

[155] Having heard evidence of Mr. Zejnelovski’s demeanour at the time of his arrest and having observed it in his videotaped statement, I am persuaded that he had no desire to use the knife. He was distraught that he had used it and that he had hurt someone. He appeared traumatized by the events of that night.

[156] I have huge concerns about young men pouring out of bars at 2:30 a.m. with knives in their pockets. That is a practice to be discouraged in no uncertain terms. But on the facts of this case, applying the law as it presently stands, I am not persuaded - certainly not to the reasonable doubt standard - that Mr. Zejnelovski possessed the knife for a purpose dangerous to the public peace.

[157] In the result, there will be an acquittal on count two.

Boswell J.

Released: October 13, 2017