COURT FILE NO.: CR-17-593 DATE: 2018 10 02 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN :
HER MAJESTY THE QUEEN Christina Sibian, for the Crown
- and -
PETER KORGBOR Jason Rabinovitch, for the Accused
HEARD: September 26, 2018
REASONS FOR RULING (SELF-DEFENCE)
COROZA J.
Overview
[1] Peter Korgbor is charged with aggravated assault and assault with a weapon.
[2] Peter and Natasha Biddy were once married to each other. In 2015, they were living in the same home in Brampton even though they were separated.
[3] Natasha met Jeffrey Saah and began a relationship with him.
[4] On December 16, 2015, Natasha and Peter were involved in a fight in their home. During this fight, Natasha called Jeffrey's cell phone but did not say anything. According to Natasha, Peter took her cell phone and discovered that she had called Jeffrey and left the home.
[5] As a result of this call, Jeffrey went to Natasha's home with his brother, Andrew Saah, and a friend, Mark Taylor, to check on Natasha. When they arrived, Natasha answered the door but asked them to leave. Peter was not present.
[6] While they were still present at the home, Peter returned. As he was walking towards the home, the Crown alleges that he called out: "is that you Jeffrey?"
[7] Andrew is alleged to have said something to Peter. According to Mark, someone asked Peter, "why are you hitting her?"
[8] As a result of this exchange of words, a confrontation between Peter, Andrew, Mark and Jeffrey took place. Andrew was stabbed by Peter in the left shoulder. Peter also swung the knife at Mark and Jeffrey. He hit Jeffrey in the arm with the knife and according to both Jeffrey and Mark, the knife broke. The knife was recovered at the scene in two pieces.
[9] The Crown called six witnesses. The defence did not present any evidence.
The Issue
[10] During an initial pre-charge conference on September 26, 2018, both counsel raised one issue: whether self-defence should be left with the jury in the final charge.
[11] I told the parties that same day that I declined to leave the defence with the jury for written reasons to follow. These are those reasons.
Positions of the Parties
[12] Mr. Rabinovitch, counsel for Peter, argues that there is an air of reality to the defence and that I should leave it with the jury.
[13] The Crown argues that there is no evidence that is capable of supporting self-defence and leaving the defence with the jury would invite jurors to engage in speculation.
The Law
[14] Before I turn to my analysis, I will briefly set out the law in relation to: i) the air of reality test; and ii) self-defence to provide context for the reasons that follow.
Leaving a Defence with a Jury: Air of Reality Test
[15] The jurisprudence from the Supreme Court of Canada states that if a defence does not have an "air of reality" it must be removed from consideration by the jury.
[16] Although there were six witnesses called by the Crown, the evidence of four witnesses are relevant to the issue of self-defence. They are: Natasha, Jeffrey, Andrew and Mark.
[17] Although Peter did not call evidence, this is not fatal to his argument because he is entitled to rely on the evidence that has been introduced at this trial. If I accept that self-defence has an air of reality to it, then the jury would also have to be told that the accused does not have to prove that he was acting in self-defence. It is for the Crown to satisfy the jury beyond a reasonable doubt that the accused was not acting in lawful self-defence.
[18] The leading case from the Supreme Court is R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.
[19] The Court describes the air of reality test in the following way at para. 86:
"The question is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted it as true.”
[20] As I read Cinous, self-defence should not go to the jury if it does not satisfy this test. The mischief that we seek to avoid by imposing an air of reality test is to prevent outlandish defences that have no air of the reality on the evidence from confusing the jury and muddy its deliberations. Therefore, these outlandish defences should be kept from the jury, so as to not invite confusion and unreasonable verdicts.
[21] The air of reality test must be applied to each component of the defence (see: Cinous, at para. 95).
[22] In short, my function here is to look at the evidence and consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence: Cinous, at para. 86. I do not determine the credibility of witnesses, weigh the evidence, make findings of fact or draw determinative factual inferences: Cinous, at paras. 54, 87. That is the role of the jury.
Self-Defence
[23] Section 34 of the Criminal Code outlines the provisions of self-defence.
[24] In R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at para. 28, the Court of Appeal held that the concept of self-defence contains three basic requirements, applicable to all cases:
(i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;
(ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and
(iii) Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.
[25] If the first two prerequisites are met, the inquiry focuses on the question of the reasonableness of the responsive act (see s. 34(2)). There are many listed factors to consider under s. 34(2). The relevance of any factor will be a matter for the jury to determine.
Analysis
[26] As I have set out above, self-defence has three requirements. Watt's Manual of Criminal Jury Instructions identifies, in question form, the three requirements that a jury must consider if that defence is advanced in a criminal case (The Honourable Mr. Justice David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015)). The application brought by Peter in this case should be assessed by answering the following questions.
[27] The jury would be told that they should consider the following questions:
- Did the accused believe, on reasonable grounds, that force was being used or threatened against him?
- Did the accused do something for the purpose of defending or protecting himself from the use or threat of force?
- Was the accused's conduct reasonable in the circumstances?
Question 1: Did the accused believe, on reasonable grounds, that force was being used or threatened against him?
[28] On this record, is there evidence upon which a jury, acting reasonably, could conclude that Peter believed on reasonable grounds he was about to be attacked and that this belief was reasonable in the circumstances?
[29] I will briefly review the relevant evidence.
(i) Natasha Biddy
[30] Natasha testified that before the incident, Peter and Jeffrey had met once. She testified that Jeffrey attempted to pick her up one day and Peter tried to stop her from leaving the residence. She opened the door to tell Jeffrey to leave but the Peter charged out to where Jeffrey was. She stood between them and told Jeffrey to leave.
[31] On December 16, 2015, she had arrived home from work at around 6:45 p.m. Peter and their children were home. An argument began over money. According to Natasha, Peter grabbed her by the neck and threatened to cut her up. She decided to place a call to Jeffrey's cell phone. Jeffrey answered the phone but she did not say anything. Peter grabbed her phone, looked at who she had called and said, "oh so that is who you are calling" and left the home.
[32] Jeffrey eventually knocked on her front door. He was with his brother, Andrew, and Mark Taylor. She had met both men before. Jeffrey asked her what was going on. She asked them all to leave because she was afraid that Peter would come back.
[33] At some point, she heard someone say Peter was there. She closed the door and Jeffrey was still standing on the stairs outside. Twenty minutes later, she heard a banging sound and Jeffrey was at the front door with a police officer.
(ii) Jeffrey Saah
[34] Jeffrey believed he had met Peter sometime in November of 2015. He only met him once. As far as he could recall, the nature of the first meeting was that he was going to pick up Natasha and he interrupted a struggle between them. Peter was yelling and saying that Natasha could not be trusted.
[35] He received a phone call from Natasha the evening of December 16, 2015. He was home with his mother. Natasha did not say anything but he could hear the kids crying in the background.
[36] At the time he got the call, Andrew, his brother, and his friend, Mark, were stepping into the house. He asked them if they could come with him to go to her house. Jeffrey felt it was an emergency situation.
[37] On the way to her house, Jeffrey testified that he received a phone call from Natasha's phone. Peter was on the line yelling and he asked Jeffrey to meet him at the beer store.
[38] When they arrived at Natasha's place. He walked up to the front door and rang the doorbell. She came out and her children were at the stairs inside of the house. Andrew and Mark remained at the bottom of the stairs to the outer door.
[39] He testified that Natasha was very distraught and could barely speak. He testified that when he was on the porch, a few seconds after she opened the door, Natasha did mention that Peter was going to cut her up. Natasha told him to leave.
[40] According to Jeffrey, he returned to the car with Mark and Andrew. However, Mark had a hunch that Natasha may be lying and covering up for Peter so Jeffrey decided to return. He left Mark and Andrew alone at the car and went back to the house. Natasha answered the door a second time and they were having a conversation when he saw someone from the roadside going towards the parking lot where they were parked.
[41] Jeffrey testified that he did not know who it was when he first observed the individual. However, he heard conversation between this man and Andrew and he realized it was Peter. He also heard his name being called out. He left the porch to return to Andrew and Mark.
[42] Andrew was facing the roadside in the parking area. Mark was standing on the left side of Andrew. As he approached them, he saw Andrew and Mark make a sudden movement. They darted. He heard Andrew call out "he has a knife, he has a knife". He then started to move backwards. Peter then approached him and slashed and swiped. He had to dodge to evade the attacks. While he was dodging Peter's swipes, he heard a clatter, and he heard the knife hit the ground. He and Mark then tackled Peter. They punched him and put him in a head lock.
[43] Jeffrey testified that he had been hit on the right bicep as a result of the incident and he reviewed the photographs found at Exhibit 1 as pictures of his injuries.
[44] Although it was suggested to him in cross-examination that he had come up behind the Peter, he denied that suggestion.
(iii) Mark Taylor
[45] Mark Taylor was a friend of Jeffrey and Andrew and he lived at their place in December of 2015. He knew of Natasha Biddy. Prior to December 16, 2015, he had never met Peter.
[46] He was at the house when Jeffrey got a phone call. As a result of this call, the three of them left the house. He did not know what had happened, but Jeffrey had asked him to come with him. He explained that Jeffrey told them that Natasha was in a dangerous situation because she had been assaulted.
[47] They arrived at Natasha's house. When they got there, they parked in a parking area and walked towards Natasha's house. The door opened and he could see Natasha was very frantic and shivering.
[48] He explained that he returned with Andrew to the car leaving Jeffrey on the porch with Natasha. Peter then approached them from the main road.
[49] According to Mark, Peter was walking alongside a van and then he was holding a dark jacket. He pulled something out of the jacket and called out, "is that Jeffrey?” to Andrew. After hearing this, Mark whistled to Jeffrey to come back to the car. Mark testified that someone called out "yo". He also heard someone ask: "why are you hitting her?" All of this conversation occurred before Andrew had been stabbed. Andrew called out after he had been stabbed. It is at that point that Peter approached him and took a swipe at him with the knife. Mark evaded the swipe. He then saw Jeffrey in the area and saw Peter take a swipe at him that caused the knife to break in half when it hit him.
[50] The whole incident lasted about 30 seconds to a minute.
(iv) Andrew Saah
[51] On December 16, 2015, around 6:00 p.m., Andrew came back from school and he was at home when Jeffrey got a call from Natasha. He could hear her screaming and yelling.
[52] After the call, Jeffrey seemed concerned and he wanted to go over and see what was going on with Natasha. Jeffrey asked him to come.
[53] Andrew testified that he wanted to go with his brother and asked Mark Taylor to come along.
[54] They drove in the same car. He did not drive. He had his cell phone with him. They parked the car in a parking lot and they went to the house. Natasha was on the porch with her kids and she was crying. The kids were crying.
[55] Andrew testified that he told Jeffrey to take care of them and he would call the police, get the car and leave. He returned to the car with Mark to make the phone call.
[56] As they headed back to the car, Mark commented, “Peter is over there”.
[57] Andrew testified that Peter approached him. He had a hoodie on and one hand in his hoodie pocket. He was walking fast and he saw a hand in his pocket. Andrew testified that he remained still. Up to this point, he had never met Peter.
[58] As he approached, Peter called out "is that Jeffrey?" Andrew responded "what about Jeffrey?" He testified that Peter suddenly stabbed him. Andrew testified that his own hands were by his side when he was stabbed. During cross-examination, he denied concealing one of his hands in a pocket.
[59] Andrew had tried to avoid the stab but was stabbed in the left shoulder. Andrew testified that after Peter stabbed him, he saw Peter take a swing at Mark. Mark was dodging the knife. Andrew yelled out Jeffrey's name.
[60] Andrew testified that Jeffrey came over and Peter then began to swing at Jeffrey.
[61] In cross-examination, he denied asking Peter, “why are you hitting her?”
Analysis on Question 1
[62] Mr. Rabinovitch acknowledges that there is no direct evidentiary basis for self-defence. However, counsel argues that, nevertheless, it is open to this jury to find that the defence is available as a result of inferences that flow logically from the circumstantial evidence.
[63] I disagree. In my view, there is no air of reality to the submission that Peter believed, on reasonable grounds, that force was being used or threatened against him.
[64] As I understand counsel’s argument, the jury could accept that the three men went to the complex to seek out Peter because of the assault on Natasha. If the jury accepted this fact, they could find that the three were aggressive and intent on controlling the situation. Presumably, part of the plan to control the situation would be to engage in threatening or assaultive behavior towards Peter.
[65] Given that he was outnumbered, and aware that Jeffrey was responding to Natasha's call, Mr. Rabinovitch submits that there is an air of reality that a person in Peter’s circumstances would perceive that force could be used or threatened against him.
[66] In support of his position, counsel relies a decision of the Ontario Court of Appeal in R. v. LaKing, [2004], 185 C.C.C. (3d) 524 (Ont. C.A.).
[67] In LaKing, the deceased, Martin, was stabbed to death in an altercation with fellow prisoners at the Kingston penitentiary. As a result of the killing, LaKing and Simpson were tried for murder.
[68] Moments before the stabbing, Martin was alleged to have uttered some words to both men. The trial judge found that these words, uttered in the context in which all these men found themselves, constituted an assault on him and provided a basis for self-defence.
[69] LaKing and Simpson did not testify at trial and they were acquitted.
[70] The Crown appealed the acquittal and argued that it was an error for the judge to find an air of reality to the claim of self-defence on the basis of the words that Martin uttered without any accompanying gestures.
[71] Simmons J.A. rejected this argument and found that the context in which the words were uttered supported the trial judge’s findings that when Martin uttered the words he did, this constituted an assault.
[72] In my view, LaKing does not assist Mr. Rabinovitch. The context in that case was entirely different. The altercation took place in a penitentiary which had a history of violence. As Simmons J.A. noted, there was also evidence that Martin was violent and aggressive. He also started a fire earlier in the day and directed that security cameras be covered so that correction guards could not see. Martin also carried a knife earlier in the day. Finally, witnesses testified that Martin was drunk and was acting in an aggressive fashion before he was stabbed.
[73] This case is quite different from LaKing.
[74] First, in this case, there is no evidence of any history between Andrew and Peter.
[75] Second, although Jeffrey met Peter once before the incident, that meeting did not result in violence or threatening behaviour between the two men.
[76] Third, there is no evidence that Andrew, Jeffrey or Mark did anything to provoke the attack on them. It cannot be said that there is any evidence on this record, direct or circumstantial, that would lead Peter to believe on reasonable grounds that force was being used or threatened against him by any of the men.
[77] Fourth, there is nothing about the movements of Jeffrey, Andrew or Mark before the altercation that suggests they were threatening or provoking Peter.
[78] Fifth, the mere fact that the three men attended the area of Natasha’s house tells us nothing about whether force or threats were contemplated to be used against Peter. All three men denied that they were looking to confront Peter about Natasha.
[79] Sixth, the mere question "why are you hitting her?" does not imply a threat or an assault being made against Peter.
[80] Seventh, there is no evidence as to the tone of the words that were said. There is no evidence that any words that Andrew or Jeffrey used were in a menacing or threatening manner.
[81] Eighth, there is no evidence that the words were accompanied by any gesture.
[82] Finally, assuming that the jury accepts that the three males were present at Natasha’s house to confront and deal with the situation, it does not mean that the confrontation would be accompanied by force or a threat of force.
[83] For these reasons, there is no basis to find an air of reality to the claim that a reasonable person would believe on reasonable grounds that force or the threatened use of force was going to be used against them.
Question 2: Did the accused do something for the purpose of defending or protecting himself from the use or threat of force?
[84] This question has to with Peter’s purpose for doing what he did. His purpose for stabbing Andrew and assaulting Jeffrey with the knife must be for the purpose of defending himself from Andrew or Jeffrey’s use or threatened use of force. If Peter did not act for the purpose of defending or protecting himself, then he was not acting in lawful self-defence when he stabbed Andrew and assaulted Jeffrey.
Analysis on Question 2
[85] Although Peter did not have to testify to raise self-defence, the practical reality is that there is really no direct evidential link between the force used (stabbing Andrew and assaulting Jeffrey with a knife) and the purpose (defence or protection). For the reasons I have already set out, there is no evidence to suggest that force was being used or threatened against him. It follows that that there is no evidence that Peter stabbed Andrew or took a swipe at Jeffrey to protect or defend himself.
[86] The evidence discloses a very quick attack on Andrew and Jeffrey after the following words were said:
- Is that Jeffrey?
- Yo
- Why are you hitting her?
[87] When Peter stabbed Andrew, these actions were not accompanied by any words that would suggest that Peter was defending himself.
[88] With respect to Jeffrey, the evidence also discloses a very quick attack on Jeffrey without any words that suggest that Peter was defending himself. Jeffrey testified that he went towards Andrew and Mark after observing Peter speaking to Andrew. However, Jeffrey remained steadfast in his evidence that he was not the aggressor and started to back up when Andrew called out that he (Peter) has a knife and Peter approached him. Jeffrey testified that he had to dodge the knife that was being used.
[89] I find no air of reality to self-defence under this issue.
Question 3: Was the accused's conduct reasonable in the circumstances?
[90] This question relates to Peter’s conduct and whether it was reasonable. As stated by Martin J.A. in R. v. Baxter (1975), 15 O.R. (3d) 450 (C.A.), at p. 111, a person acting in lawful self-defence is not expected to "weigh to a nicety the exact measure of necessary defensive action" (citations omitted). The law recognizes that an accused may be mistaken about the nature and extent of the force necessary, provided the mistake was reasonable in the circumstances.
[91] One must look at the circumstances to consider what a reasonable person in Peter’s situation might do.
Analysis on Question 3
[92] The evidence most favourable to Peter includes the evidence that three men showed up to confront him in response to Natasha's call. There is evidence that Peter knew that Jeffrey had been notified about the altercation when Natasha phoned him and likely expected Jeffrey to show up at the house.
[93] However, in my respectful view, a properly instructed jury acting reasonably could not conclude that a reasonable person in Peter’s situation would have stabbed Andrew and swiped at Jeffrey with a knife. There is nothing in the Crown’s evidence to suggest that the three males were a threat to Peter when they arrived or that Peter was in immediate peril when he returned to the home and saw the three men. In such circumstances, a reasonable person would have retreated. Peter was not being surrounded or confined by any of these men when he stabbed Andrew and assaulted Jeffrey.
[94] In this case, the following evidence reveals that Peter’s conduct was not reasonable:
(i) Peter approached Andrew and asked “is that you Jeffrey?” (ii) Peter then stabbed Andrew in the left shoulder when Andrew or Jeffrey said “why are you hitting her?”; (iii) After stabbing Andrew, Peter swung the knife he was holding at Mark and Jeffrey; (iv) Jeffrey was struck by the knife because his jacket had a tear in it and his skin broke in that area; and (v) Andrew, Jeffrey and Mark were not armed.
I am alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection. However, there is no evidence here that would suggest that Peter’s actions were reasonable.
Conclusion
[95] There is no air of reality to the claim of self-defence on the evidence introduced at this trial. The Crown's submission that leaving self-defence with the jury would be to invite speculation and may confuse the jury is persuasive. The evidence falls far short from meeting the air of reality test. I decline to leave self-defence with the jury.
Coroza J.
Released: October 2, 2018