Court File and Parties

COURT FILE NO.: CR-17-10000432-0000 DATE: 20180625 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TIFFANY CLARKE

Counsel: Tania Monteiro for the Crown Alonzo Abbey for the accused

HEARD: May 8, 9, 10, 11, 14 and 15, 2018

FAVREAU J. :

Introduction

[1] The accused, Tiffany Clarke, is charged with one count of aggravated assault.

[2] On January 16, 2016, Ms. Clarke was involved in an altercation with the complainant, Tasheka Keslow, outside a nightclub on College Street in Toronto. A number of other people were involved. At the end of the altercation, Ms. Keslow had seven stab wounds and Ms. Clarke was holding a knife.

[3] The issue in this case is whether Ms. Clarke inflicted the stab wounds and, if so, whether she did so in self-defence.

Review of evidence

[4] At trial, the Crown called Ms. Keslow, two bystanders, two police officers and a bouncer who worked at the nightclub on the day of the incident. The Crown also introduced video footage from four different vantage points facing out onto College Street.

[5] Ms. Clarke testified in her own defence. Her mother also testified for the defence.

Ms. Keslow's evidence

[6] On January 16, 2016, Ms. Keslow went to a nightclub on College Street near Bathurst Street in Toronto. She went to the nightclub with her girlfriend and some friends. They arrived at the nightclub around 11:30 pm. She had a few drinks at the nightclub, and admitted on cross-examination that, before going out that night, she had taken a MDMA pill and may have smoked some marijuana.

[7] Around 2:00 am, Ms. Keslow went outside to smoke a cigarette. She passed a group of men outside the nightclub, and one of them made a comment about the weather after which she made a joke. Another man in the group immediately became aggressive, telling her to shut up and to leave. The aggressive man appeared to want to start a fight with Ms. Keslow. His friends were pulling him back, and she walked away toward the nightclub, where she stood outside with the bouncers for a few minutes. Ms. Keslow testified that she had never met the aggressive man or his friend before that day.

[8] Soon after this incident, Ms. Keslow walked away from the nightclub east, along College Street toward Lippincott Street, which intersects with College Street. As she was walking toward Lippincott Street, she saw the aggressive man standing in a group.

[9] The aggressive man started yelling and lunging at her, and people with him pulled him back. He then broke free, rushed toward her and punched her closed fisted in the face. Her response was to hold her ground and fight back. In chief, she said she did not have any weapons but in cross-examination she admitted to using an umbrella to hit the man. After the fight started, the man's friend jumped in and hit her too. She claims that two women then "randomly" got involved in the fight. One of them is Ms. Clarke. Her evidence was that she did not know Ms. Clarke and had never had any interactions with her before that day. She did not see where the women came from and she does not remember them saying anything to her.

[10] Ms. Keslow testified that, sometime after the two women got involved, the two men backed off and left. The two women got her to the ground, kicked and punched her, and pulled her hair. The women then got up and started running away.

[11] Ms. Keslow then got to her feet. At that point, she felt something warm on her stomach, but she did not know what it was. She chased the women. She explained that she chased them because she did not want people ganging up on her and getting away with it. As Ms. Keslow was chasing the women, she pulled her hand up to her face and saw blood on her hand. She still did not know she had been stabbed. Her girlfriend then caught up with her, and started screaming as she put her hand to Ms. Keslow's neck. At this point, Ms. Keslow became aware of stab wounds to her neck and stomach. She saw the two women, caught up to them and grabbed them. They started fighting again, but the fight did not last long because the bouncer "grabbed her off" Ms. Clarke and stepped on Ms. Clarke's hand, from which he retrieved a knife.

[12] After the fight, Ms. Keslow was taken to the hospital by ambulance. She had seven stab wounds - one in her neck, two in her upper left shoulder, two in her left arm, and two in her upper left abdominal area. One of the stab wounds punctured her lung. She has also had some ongoing nerve damage just above the wound in her neck.

Evidence of the bouncer and bystanders

[13] David Brown was working as a bouncer on the night of January 16, 2016. His work involved standing outside the door of the nightclub, monitoring people entering and leaving the nightclub. People entering the nightclub were patted down and searched for weapons.

[14] On January 16, 2016, Mr. Brown saw a verbal argument between a man and a woman between 1:45 am and 2:00 am. He does not remember any violence at that time. Sometime later, while he was standing outside the nightclub, he heard something about a knife. He went east along College Street to see what was happening. He testified that he saw two women fighting. He saw one of the women throwing "wild punches", which he also described as "haymaker" moves, at the other woman. He said that he saw her make seven "haymaker" punches. He identified the woman making the haymaker moves as Ms. Clarke and described her as the "aggressor".

[15] Mr. Brown testified that, as he watched from a distance of ten to fifteen feet, the fight moved into the middle of College Street. He decided that he needed to intervene because he was worried the women would be hit by a car. When he went over to break up the fight, the women were on the ground. He noticed Ms. Clarke had a knife. He stepped on her arm and took the knife out of her hand. He did not see Ms. Clarke stab Ms. Keslow, but when he broke up the fight and he saw the knife in Ms. Clarke's hand and that Ms. Keslow was bleeding, he then concluded that Ms. Clarke had stabbed Ms. Keslow when he saw Ms. Clarke making the haymaker moves.

[16] After Mr. Brown broke up the fight, Ms. Clarke tried to leave the area, but Mr. Brown followed her and another woman until the police arrived and arrested both women.

[17] In addition to the bouncer, the Crown called two other eyewitnesses. The first one said that she arrived at the nightclub around 2:00 am on January 16, 2016. When she arrived, she saw two women in a "scuffle" in the middle of College Street. She identified one of the women as Ms. Clarke. She testified that she saw the other woman chasing Ms. Clarke, after which both women were on the ground. She could not tell which of the women was the aggressor. She saw both of them rolling around on the ground.

[18] The other witness was also outside the nightclub on January 16, 2016. However, she had nothing to say about the fight itself other than to acknowledge that there was a commotion. She testified that during the commotion, she saw a woman run to a planter near the nightclub, and take something out of the planter. She did not confirm that the woman was Ms. Clarke nor was she able to identify what the person took out of the planter.

[19] As mentioned above, the Crown also called two police officers. They both arrived on the scene after the fight broke up. One of the officers took possession of the knife, and made arrangements to get Ms. Keslow to the hospital. The other officer was involved in arresting Ms. Clarke. He testified that, at the time she was arrested, Ms. Clarke had a "busted lip" and fresh blood around her face, although she did not complain about her injuries.

Ms. Clarke's evidence

[20] Ms. Clarke is 24 years old. At the time of the incident, she was 21 years old and she had never been charged criminally. Before the incident, she had never been involved in a fight.

[21] On January 16, 2016, she was at the nightclub with her girlfriend. She and her girlfriend left the nightclub around 2:00 am. She was planning to have a cigarette and head home in a taxi. She walked out of the club going east on College Street. When she got to the Lippincott Street, she saw a man she identified as "Ray", who she said was a friend she had known since middle school.

[22] When she saw Ray, he was with a group of people and he seemed very agitated. She pulled him away from the group. Ray said that he had been robbed, that there was a "girl trying to fight him", and that he wanted to fight her. Ms. Clarke saw that Ray was holding a closed knife in his hand. She told him "not to be stupid" and that "it wasn't worth the charges". He then put the knife in his waistband.

[23] Ms. Clarke's evidence is that Ms. Keslow then walked toward Ray, and started taunting him and calling him names. There was a back and forth between them, and people were pulling them in different directions. At that point, Ms. Clarke walked away looking for her girlfriend. She then came back and saw "scuffling"; she saw Ms. Keslow hitting Ray's head with an umbrella and pulling his shirt off. She claims that she did not see Ray hit Ms. Keslow. She got involved to try to help break up the fight.

[24] Her evidence is that, after the fight broke up, she saw Ray's knife on the ground near a store on College and Lippincott. The knife was open and she picked it up. She then started to walk into College Street to find her girlfriend and a taxi. She claims that Ms. Keslow then came after her, telling Ms. Clarke that she wasn't going anywhere and saying "Tiffany, I've been looking for you".

[25] Ms. Clarke's evidence is that she tried to push Ms. Keslow away. At this point, she was holding the knife and she was trying to hit Ms. Keslow with the back of the knife to get her away. Ms. Clarke was able to break loose from Ms. Keslow, but Ms. Keslow caught up with her, pushed her to the ground and smashed Ms. Clarke's head into the ground. While on the ground, Ms. Clarke used her left hand to try to protect her head. She then felt her right hand being twisted, after which the bouncer took the knife out of her hand.

[26] Ms. Clarke then tried to leave with her girlfriend, and get into a taxi, but was prevented from doing so. Soon after, she was arrested on Bathurst Street.

[27] After Ms. Clarke was arrested and saw the charge sheet, she said that she recognized Ms. Keslow's name. She said she had met Ms. Keslow once before January 16, 2016. Ms. Clarke recounted an incident in which she had visited a friend named "Shelly". Ms. Keslow was also there and had evidently previously dated Shelly. Ms. Clarke recalled that Ms. Keslow had called Ms. Clarke by a derogatory racist term and told Shelly that she couldn't believe she would leave Ms. Keslow for Ms. Clarke.

[28] Ms. Clarke's mother also testified for the defence. She said that her daughter has never been in trouble and is very helpful at home. She said that Ms. Clarke is well liked by her friends and family.

Video footage

[29] The Crown has video footage from four different vantage points in front of the nightclub, starting at 2:00 am on January 16, 2016.

[30] The video footage shows some, but not all, of the events described by the witnesses. Most notably, the video footage does not include the part of the fight between Ms. Clarke and Ms. Keslow, when the Crown claims Ms. Clarke stabbed Ms. Keslow. Nevertheless, the videos include a number of relevant events. Chronologically, they are as follows:

a. From around 2:05 am to 2:07 am, there is footage showing a confrontation between Ms. Keslow and the aggressive man (Ms. Clarke confirmed Ray was the aggressive man when she viewed the video). By the end of the confrontation, Ms. Keslow is in front of the nightclub and Ray is going east along College Street toward Lippincott Street. b. Around 2:09 am, Ms. Clarke is seen walking out of the nightclub east on College Street, going in the same direction where Ray had been seen going. c. Around 2:11 am, Ms. Keslow is seen leaving the front of the nightclub, carrying an umbrella, and heading in the same direction along College Street as Ray and Ms. Clarke had previously gone. d. Around 2:14:45 am, the bouncer is seen running from the nightclub east along College Street. e. Around 2:15:01 am, Ray and his friend are seen walking quickly west on College Street. Ray has his shirt off. f. Around 2:15:15 am, in the corner of the screen of one of the videos, Ms. Clarke and Ms. Keslow are seen spilling into the middle of College Street. Based on the colour of their clothes, it is possible to see that Ms. Keslow reaches for Ms. Clarke, pushes or pulls her down on the ground and hits her from above. Soon after, the bouncer and others are seen getting involved and separating them.

Analysis

[31] Ms. Clarke is presumed innocent, and, before I can find her guilty of aggravated assault, I must be satisfied that the Crown has proven the charge against her beyond a reasonable doubt.

[32] I must assess all of the evidence before determining whether I have a reasonable doubt of Ms. Clarke's guilt.

[33] Ms. Clarke was not required to testify. Given that she chose to testify, the following approach applies:

a. if I believe Ms. Clarke's testimony that she did not commit the offence, I must find her not guilty; b. if I do not believe Ms. Clarke, but I am left with a reasonable doubt as to her guilt after considering her evidence in the context of the evidence as a whole, I must find her not guilty; and c. even if her assertion that she did not commit the offence does not leave me with a reasonable doubt, I must still determine, based on all of the evidence I do accept, whether Ms. Clarke is guilty beyond a reasonable doubt. (R. v. W.(D.), [1991] 1 S.C.R. 742, at para. 38; R. v. J.H.S., [2008] 2 S.C.R. 152; R. v. J.J.R.D., 2006 ONCA 809.)

[34] In assessing the witnesses' evidence, I considered the plausibility of each witness's evidence, the inconsistencies within the witness's evidence, and the way in which each witness's evidence fits within the other evidence given. I also considered the video evidence, in accordance with the principles set out in R. v. Nikolovski, [1996] 3 S.C.R. 1197, at paras. 35-36.

[35] In order to find Ms. Clarke guilty of aggravated assault under section 268(2) of the Criminal Code, I must be satisfied beyond a reasonable doubt that Ms. Clarke intentionally applied force to Ms. Keslow, that Ms. Keslow did not consent to the force Ms. Clarke intentionally applied, that Ms. Clarke knew that Ms. Keslow did not consent to the force, and that the force wounded, maimed, disfigured or endangered Ms. Kelsow's life.

[36] In this case, Ms. Clarke does not dispute that she was involved in an altercation with Ms. Keslow and that she was holding a knife for at least part of that altercation, but she says that she was acting in self-defence, that she remembers using the butt of the knife and not the blade of the knife to defend herself, and that if she did use the blade, it was accidental and she did not intend to stab Ms. Keslow. In order to find Ms. Keslow guilty, I must therefore be satisfied beyond a reasonable doubt that she inflicted the stab wounds on Ms. Keslow and, if so, that she did not do so in self-defence.

Did Ms. Clarke inflict the stab wounds?

[37] Nobody saw Ms. Clarke holding the knife and stabbing Ms. Keslow, and there is no video footage of her doing so. The part of the fight when Ms. Clarke allegedly stabbed Ms. Keslow occurred off camera. Even Ms. Keslow had no specific recollection of when she was stabbed and she could not confirm that it was Ms. Clarke who stabbed her. She only said that she believes it was Ms. Keslow.

[38] As mentioned previously, Ms. Clarke acknowledges that she was holding the knife during part of the altercation with Ms. Keslow, but her evidence is that she was trying to defend herself, and that she was using the butt of the knife defensively; she claims that she was not intentionally using the blade of the knife for the purpose of hurting Ms. Keslow. She acknowledges that she may have stabbed Ms. Keslow, but if that happened she did not do so intentionally.

[39] In isolation, Ms. Clarke's evidence seems implausible. She was involved in a fight with Ms. Keslow, she acknowledged that she had a knife during the fight, and at the end of the fight Ms. Clarke was holding the knife after which Ms. Keslow had seven stab wounds. However, these facts cannot be assessed in isolation, but must be looked at in the broader context of what happened in the fifteen minutes or so before Mr. Brown took the knife out of Ms. Clarke's hand.

[40] While there is some conflict in the evidence, the events can generally be broken down into five stages: 1) the initial confrontation between Ms. Keslow and Ray, 2) the period when Ms. Keslow and Ray are apart, 3) the first part of the physical fight involving only Ms. Keslow, Ray and Ray's friend, 4) the second part of the fight when Ms. Clarke was involved and Ray and his friend left, and 5) the third part of the fight caught on video when Ms. Clarke and Ms. Keslow were in the middle of College Street and the bouncer broke up the fight.

[41] The Crown claims that Ms. Clarke stabbed Ms. Keslow during the fourth stage, namely when Ms. Clarke became involved, and Ray and his friend left. However, in my view, what happened before and after this third stage is relevant to my assessment of whether I have a reasonable doubt that Ms. Clarke stabbed Ms. Keslow. While Ms. Clarke is on trial for aggravated assault, much of the trial focused on the ongoing dispute between Ms. Keslow and Ray. Ray was not called as witness at trial, so the evidence of his involvement is based on what Ms. Keslow and Ms. Clarke had to say, and the video footage.

The initial confrontation

[42] The video footage of the initial verbal altercation between Ms. Keslow and Ray makes it clear that Ray was very agitated and aggressive toward Ms. Keslow. Initially, they are both face to face, with Ray jumping around and balling his fists. At one point, they lunge toward each other with some quick shoving, after which they are pulled apart by people around them. The portion of the video in which Ray is being restrained from attacking Ms. Keslow shows that, at times, three people had difficulty restraining him. Even once Ray stopped trying to lunge at Ms. Keslow, the video shows a group of people directing him away from Ms. Keslow moving east on College Street as Ray makes moves to go back toward Ms. Keslow. During that altercation, Ms. Keslow is not shown trying to get out of the situation, but rather she does appear to be egging Ray on and she too had to be restrained by others and drawn away from Ray. Eventually, she appears to calm down. Initially, she walks west, back toward the nightclub where she spends some time talking with people. But, a few minutes later, she is seen holding an umbrella, walking in the direction where Ray has been taken by his friends.

The time when Ms. Keslow and Ray are apart

[43] Ms. Clarke was not involved in any of these earlier interactions. In fact, she is seen exiting the nightclub for the first time around 2:09 am, at least two minutes after the first altercation between Ray and Ms. Keslow, and after Ray was drawn away from Ms. Keslow and seen going toward Lippincott Street. Based on the footage showing Ray's state of agitation as he was being drawn away, I believe Ms. Clarke's evidence that, when she saw Ray, he was very agitated and that he said that there was a girl he wanted to fight. This also lends credibility to Ms. Clarke's account that, when she saw Ray, he was holding the knife with which Ms. Clarke was ultimately stabbed.

The first part of the physical fight involving Ray and his friend

[44] Ms. Clarke and Ms. Keslow offer very different accounts of what happened once Ms. Keslow approached Ray's group on Lippincott Street.

[45] Ms. Keslow says that, once she got close to Ray, he broke free from his friends and charged at her. She says that Ray yelled at her, she stood her ground, and then Ray punched her in the face closed fisted. While she says Ray was the first to throw a punch, she did not try to get out of the situation, but rather says that she defended herself by hitting back. Initially, she said that she hit back with her fists. In cross-examination, she admitted to using an umbrella. Ms. Keslow also claims that, once she and Ray were fighting, Ray's friend got involved and was also hitting her.

[46] Ms. Clarke claims that it was Ms. Keslow who first taunted Ray. She claims that Ray was not being particularly aggressive, and that it was Ms. Keslow who was getting the better of Ray, hitting him on the head with her umbrella.

[47] Having seen the footage involving Ms. Keslow and Ray during the verbal altercation that occurred minutes earlier, I do not believe Ms. Clarke's evidence that Ray was passive during the physical fight with Ms. Keslow. I do not find credible or plausible her evidence that Ray did not hit Ms. Keslow and that he was not aggressive towards Ms. Keslow when she hit him. What this suggests to me is that Ms. Clarke is not being truthful about Ray's role in the altercation. What it does not suggest is that she is being generally untruthful. It is not in her self-interest to suggest that Ray was passive during the physical fight with Ms. Keslow, especially given her evidence that Ray originally had the knife. I do not know whether she is motivated by loyalty or fear; what I do know is that I do not believe this aspect of her evidence. Based on his very aggressive and agitated demeanor a few minutes earlier, it is simply not plausible that Ray was not actively involved in the physical fight with Ms. Keslow.

[48] This context is important because it comes just before the part of the fight when the Crown alleges Ms. Clarke stabbed Ms. Keslow.

The second part of the fight when Ms. Clarke becomes available

[49] I heard three very different versions of the part of the fight when the Crown claims Ms. Clarke stabbed Ms. Keslow.

[50] Ms. Clarke's evidence is that, while Ray and Ms. Keslow were fighting, she got involved to try to keep them apart. She claims that the fight then broke up, after which she found the open knife on the street and then started walking away from the scene intending to find her girlfriend and go home. She says that this is when Ms. Keslow first attacked her, claiming that she then defended herself with the butt of the knife and might, at that point, have inadvertently inflicted stab wounds on Ms. Keslow.

[51] For her part, Ms. Keslow says that she does not know when she was stabbed nor does she recall Ms. Clarke stabbing her. Her evidence does not contain a gap in time between when Ray and his friend left the fight and when she and Ms. Clarke became involved in a fight. Rather, she claims that Ray and his friend left the fight, and that Ms. Clarke and another woman remained, got her to the ground, punching and kicking her, and pulling her hair.

[52] The third account of this part of the fight is from the bouncer, who says he saw two women fighting standing up, and he saw Ms. Clarke making the seven "haymaker" moves at Ms. Clarke.

[53] Given that Ms. Keslow is unable to confirm when she was stabbed and that it was Ms. Clarke who stabbed her, the Crown relies heavily on the bouncer's evidence as evidence that Ms. Clarke stabbed Ms. Keslow at the point in the fight when Ray and his friend were no longer involved. I have difficulty with Mr. Brown's evidence. While I have no doubt that he is a disinterested party and that he intended to be truthful, his evidence is too perfect to be reliable. Mr. Brown says that he did not see the knife in Ms. Clarke's hand when he saw Ms. Clarke making the seven haymaker moves at Ms. Keslow. When Mr. Brown stopped the fight a little later, he found the knife in Ms. Clarke's hand and Ms. Keslow had seven stab wounds. As recognized by the courts, eyewitness evidence can be very unreliable: R. v. Miaponoose, 1996 ONCA 1268, at para. 9. What Mr. Brown thought he observed occurred on a dark rainy night in a matter of instants. I am concerned that what he thinks he saw was influenced by what he saw once he broke up the fight.

[54] During closing argument, the Crown also relied on video footage showing a person wearing a jacket similar to Ms. Clarke's jacket retrieving something from a planter sometime after Ms. Clarke had exited the nightclub. The Crown suggested that Ms. Clarke was then retrieving the knife used to stab Ms. Keslow. I have serious concerns with the Crown's reliance on this evidence. First, the evidence was never put to Ms. Clarke, and she was therefore not given an opportunity to confirm that she is the person seen in that brief segment of the video and explain what, if anything, she was retrieving from the planter. This is a clear violation of the rule in Brown v. Dunn, and given the seriousness of the inference the Crown seeks to have me make based on this evidence, I give no weight to this part of the video footage. In any event, it is impossible to see whether it is Ms. Clarke in the video and what she is retrieving from the planter, if anything at all.

[55] Ultimately, I am left with Ms. Clarke's and Ms. Keslow's respective accounts of what happened. In some ways, their accounts do not conflict. Ms. Keslow did not dispute that she went after Ms. Clarke. First, she ran after her immediately after the altercation on the ground because she did not want Ms. Clarke to get away with anything. She was then interrupted by her girlfriend, discovered she had been stabbed, and then again went after Ms. Clarke, caught up with her, got her to the ground and hit her.

[56] Ms. Clarke's evidence is that Ms. Keslow went after her twice, and that in both cases she had to defend herself against Ms. Keslow's aggression. As reviewed above, Ms. Keslow does not dispute that she went after Ms. Clarke at least once.

[57] The issue comes down to whether Ms. Keslow had been stabbed before the altercations with Ms. Clarke or whether Ms. Clarke intentionally stabbed Ms. Keslow with the knife once Ms. Clarke was involved in the fight.

[58] The Crown's evidence against Ms. Clarke is circumstantial; there is no direct evidence from anyone who saw Ms. Clarke stabbing Ms. Keslow. As recently held in R. v. Zekarias, 2018 ONSC 2588, at para. 139, "to find guilt on the basis of circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the defendant's guilt is the only reasonable inference that can be drawn from the evidence. See R. v. Griffin, [2009] 2 S.C.R. 42."

[59] Again, in isolation, the circumstantial evidence in this case does lead to a strong inference that Ms. Clarke stabbed Ms. Keslow. However, I cannot ignore the context in which the altercation occurred. While the Crown suggests that the only possible inference is that Ms. Clarke stabbed Ms. Keslow, in my view there is another possible inference, and that is that Ms. Keslow was stabbed in the melee involving Ray and his friend before Ms. Clarke became involved. I don't have to find that this happened. I only have to find that it is another possible reasonable inference to be made from the available evidence.

[60] Based on my review of what occurred in the fifteen minutes at issue, there are a few factors that lead me to find that it is reasonably possible that Ms. Keslow was stabbed during the part of the fight when Ray and his friend were involved, in which case one of them may have stabbed Ms. Keslow:

a. First, it is worth repeating that Ms. Keslow did not know when she was stabbed. b. Second, as indicated above, I find Ms. Clarke's evidence that Ray had a knife when she first saw him credible. c. Third, it is hard to ignore the level of animus Ray displayed toward Ms. Keslow earlier in the evening, which is confirmed by the video, Ms. Keslow's evidence and Ms. Clarke's evidence. d. Fourth, the bouncer ran east on College Street toward the fight after being alerted that there was a knife involved. A few seconds later, Ray and his friend are seen running west on College Street away from the area where the fight was occurring. Given Ray's aggression toward Ms. Keslow, it is hard to understand why they ran away unless they had a reason to get away urgently such as a fear of getting caught after using a knife during the fight. e. Fifth, while I am not sure that I believe Ms. Clarke's evidence that when she found the knife on the ground she did not know how it got there, I do find it plausible that she picked up the knife to get it away from the scene to protect her friend.

[61] Under the circumstances, I believe enough of Ms. Clarke's evidence to find it possible that Ms. Keslow was stabbed during the initial fight involving Ray and his friend and that it was not Ms. Clarke who stabbed Ms. Keslow.

[62] Accordingly, while I do not entirely believe Ms. Clarke's evidence, I believe some of her evidence, and it is sufficient to leave me with a reasonable doubt as to whether Ms. Clarke inflicted the stab wounds sustained by Ms. Keslow.

Was Ms. Clark acting in self-defence?

[63] Even if Ms. Clarke inflicted some stab wounds to Ms. Keslow during the part of the fight when Ms. Clarke acknowledges holding a knife, I am not satisfied that the Crown has proven beyond a reasonable doubt that Ms. Keslow was not acting in self-defence.

[64] Ms. Clarke does not have the burden of proving that she was acting in self-defence. Rather, the Crown has the burden of proving that she was not acting in self-defence: R. v. Cinous, [2002] 2 S.C.R. 3 at para. 39. Self-defence is available as a defence if Ms. Clarke had reasonable grounds to believe that force was being applied to her, that what she did was for the purpose of defending herself against Ms. Keslow, and that her conduct was reasonable in the circumstances: section 34 of the Criminal Code.

[65] As indicated above, the video footage of Ms. Clarke and Ray shows Ms. Keslow taunting Ray and trying to lunge at him. During her evidence, she admitted that she fought him back and she also admitted that she went after Ms. Clarke because she didn't want her to get away. In the final video footage, where the two women are seen fighting on the street, it is evident to me that Ms. Keslow is the aggressor and that she is hitting Ms. Clarke. Under the circumstances, I find that Ms. Clarke's evidence that she was attacked by Ms. Keslow and that she had reason to defend herself against Ms. Keslow plausible.

[66] Based on all of the evidence, including the video footage, it is evident to me that Ms. Keslow is capable of being very aggressive, even after she was stabbed. Ms. Clarke's evidence was that she used the butt of the knife to defend herself and that she may in that context have also inadvertently used the blade. I am not satisfied beyond a reasonable doubt, given the surrounding circumstances of how the fight occurred and Ms. Keslow's admission that she went after Ms. Clarke, that Ms. Clarke was not acting in self-defence.

Conclusion

[67] For the reasons above, I am not satisfied that the Crown has proven the case against Ms. Clarke beyond a reasonable doubt and I find her not guilty of aggravated assault.

FAVREAU J.

RELEASED: June 25, 2018