COURT FILE NO.: CR-18-50000147

DATE: 20181221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KAYLA MATTHIAS

Brady Donohue, counsel for the Crown

Frank Bernhardt, counsel for the Accused

HEARD: December 4-7, 2018

M.A. CODE J.

REASONS FOR JUDGMENT

A. OVERVIEW

1The accused Kayla Matthias (hereinafter, Matthias) is charged in a one count Indictment with aggravated assault, contrary to s. 268(2) of the Criminal Code. The offence alleged is particularized as “did wound… with a weapon, to wit, a knife”. The victim of the alleged aggravated assault is Simone Nelson and the offence occurred in Toronto on May 29, 2016.

2The accused Matthias elected trial by judge alone. There were three brief Motions at the beginning of the trial. They were all brought by the Crown. I allowed the victim to testify from behind a screen, pursuant to s.486.1 of the Criminal Code, and I allowed the Crown to introduce her sworn video-taped statement made a few days after the incident, pursuant to s.715.2. These two Motions were not opposed by the defence as there was evidence that Ms. Nelson suffered from PTSD. The third Motion concerned the admissibility of evidence of the accused Matthias’s discreditable conduct, both prior to and after the offence. I admitted the evidence of prior misconduct, as it had considerable probative value in relation to animus between the accused and the victim. I excluded the evidence of after the fact misconduct as it was less probative of animus at the time of the offence and it was much more prejudicial than the prior misconduct. The defence substantially agreed with this disposition of the third Motion, provided the defence could bring out similar prior discreditable conduct by the victim, which I allowed.

3The Crown then called its evidence, which was completed in two days. The defence evidence was completed in one day. The parties made closing argument on the fourth day of trial. I reserved judgment.

4The parties made substantial admissions, which shortened and focused the trial. The Court is grateful to both counsel for the responsible way in which they conducted the case. There was only one realistic issue, given the facts of the case, and that is whether the accused Matthias was acting in self-defence within the meaning of s.34 of the Criminal Code. The Crown and defence evidence overwhelmingly established that Matthias had armed herself with a large knife and caused at least two wounds to Ms. Simone during the course of a dispute between the two women.

5These are my Reasons for Judgment.

B. FACTS

(i) Introduction

6There were three persons present at the time of the relevant events, the accused Matthias, the victim Simone Nelson, and a man named Ramone Bascoe who was having sexual relations with both women. All three of these eye witnesses testified. They provided somewhat different versions of the events, although their accounts were broadly consistent on some of the basic facts.

7Aside from the viva voce testimony of the three eye witnesses, there were a large number of helpful photographs of the crime scene, located at Bascoe’s apartment on Jane Street in Toronto. A diagram of these premises prepared by the police was also an important exhibit. It showed a front hallway that led to two bedrooms and a bathroom at one end of the hall and to a kitchen, living room and dining area at the other end of the hall. As previously noted, there were a number of admissions. Finally, there was surveillance video of the accused Matthias in the apartment building elevator, as she was leaving the 18th floor corridor leading from the apartment shortly after the alleged assault. I will refer to these exhibits in the context of the viva voce testimony to which they relate.

(ii) Simone Nelson’s account

8Simone Nelson adopted her contemporaneous sworn statement to the police as the truth. She had driven over to Bascoe’s apartment at about 9:30 pm on the evening of May 29, 2016. Bascoe was her boyfriend and she had the keys to his apartment. She unlocked the door but the chain was attached on the inside of the door, preventing her from entering. She knocked repeatedly until Bascoe opened the door and let her in. She denied banging on the door. She walked into the living room, saw Matthias sitting on the couch, and said to Bascoe, “so this is the reason why you didn’t answer your phone”. Earlier in the evening, Bascoe had asked Ms. Nelson to come over. She had been attempting to call Bascoe on the telephone without success, prior to coming over. Ms. Nelson sat down in the living room. Matthias looked upset, according to Ms. Nelson.

9From this point in the chronology, once all three eye witness participants were assembled in the living room, there is a broad consistency to their accounts in that they all described three escalating incidents. The first incident involved a scuffle in the living room over a set of keys that belonged to Matthias. The second incident involved disarming Matthias, who had picked up a large knife in the kitchen. The third incident involved the actual stabbing in the vicinity of either the front hallway or Bascoe’s bedroom door, after Matthias had picked up a second large knife in the kitchen.

10Ms. Nelson’s account of the first incident was that the accused Matthias got up to leave shortly after Ms. Nelson’s arrival. She picked up “her stuff” and walked out of the living room. Matthias then returned to the living room and put “her stuff” down on the chair. Amongst Matthias’ “stuff” was a set of keys. Ms. Nelson picked up the keys and asked Bascoe, “is this your house key?” Bascoe smirked and replied, “so what if it is my key, don’t you have one too”. Ms. Nelson knew that Matthias had previously lived at Bascoe’s apartment and she knew that Matthias had a key to Bascoe’s apartment at that time. However, Ms. Nelson thought that Matthias had not been living there since about March 2016. Ms. Nelson also knew that Bascoe “cheated on me and lied to me” and she knew that Matthias was pregnant with Bascoe’s child. Ms. Nelson agreed, in cross-examination, that she was “upset” or “not happy” at this point.

11After Ms. Nelson had picked up Matthias’ keys, a scuffle over the keys ensued. Ms. Nelson’s description of the scuffle was that Matthias started it by hitting her, pulling at her hair, ripping her top, and saying, “give me my key”. The photographs taken subsequently by the police show two rips at the left shoulder of Ms. Nelson’s top. Ms. Nelson held the keys up in the air at this point, after Matthias had started attacking her. Ms. Nelson denied the defence version of these events, namely, that Matthias was simply asking for the return of her keys so that she could leave. Ms. Nelson is 5’5” tall. She is bigger and taller than Matthias, such that the inevitable effect of holding the keys up in the air was that Matthias was unable to reach them.

12At this point, according to Ms. Nelson, Bascoe got up from the couch and intervened. He separated the two women, pushing Matthias away. Matthias fell onto the couch. Matthias looked at Bascoe and began crying, “oh my belly, my belly”. Ms. Nelson denied ever hitting Matthias during this initial scuffle over the keys. According to Ms. Nelson, she walked out of the living room at this point and put the keys in Bascoe’s bedroom. She denied throwing the keys.

13Ms. Nelson’s description of the second incident was that she walked out of Bascoe’s bedroom into the front hallway. When she reached the entrance to the kitchen, she looked through the kitchen towards the dining area and saw Bascoe and Matthias struggling over a knife. Bascoe was holding Matthias from behind, that is, with his front against Matthias’ back. Matthias had the knife in her right hand and Bascoe had ahold of Matthias’ right wrist. Ms. Nelson walked through the living room, approached Bascoe and Matthias, and took the knife which was “dangling” from Matthias’ right hand. Ms. Nelson heard Matthias say, “it’s all your fault”. Ms. Nelson later told the police that “she [Matthias] tried to stab me” during this second incident. Ms. Nelson described a “struggle” of some kind over the knife, before she succeeded in taking the knife from Matthias. It appears that Ms. Nelson was cut during this “struggle”, although she was not aware of the cut at the time. Subsequent photographs taken by the police show a small cut to Ms. Nelson’s left shoulder, in the area where her top was ripped.

14Ms. Nelson took the knife and put it in her blue purse on the living room couch. Subsequent photographs of the blue purse taken by the police show a large kitchen knife or butcher knife located underneath some other items in the purse. The knife is not visible in the open purse because of its location underneath the other items. Once Ms. Nelson had put the knife in her purse, she went out onto the apartment balcony and called Bascoe’s cousin Shanika who lived in a separate apartment down the hall. She told Shanika, “come over, this girl is trying to kill me”. Ms. Nelson then came back into the apartment from the balcony. She did not see Matthias anywhere. She thought that Matthias had left the apartment. Bascoe pointed out the cut to Ms. Nelson’s shoulder and said, “she tried to kill you, didn’t you see what happened?” Up until this point, Ms. Nelson had been unaware of the small cut to her shoulder.

15According to Ms. Nelson, some time passed between the second and third incidents. She estimated that it was minutes. Bascoe asked Ms. Nelson for the key to the apartment and she went into his bedroom to get it. Bascoe followed her. Once they were in the bedroom, Bascoe went to the bed and picked up his “Three Star” knife from the place underneath the mattress where he kept it hidden. He put the knife in his waistband, between his pants and his boxer shorts. Ms. Nelson asked why he was getting his knife and Bascoe replied, “you called somebody, I need to protect myself”. Ms. Nelson told Bascoe that it was his cousin who she had called. Ms. Nelson picked up the key from the top of a suitcase, where she had left it, and threw it at Bascoe. By this point, Bascoe had moved towards the bedroom door. They proceeded to argue over who Ms. Nelson had called. At some point, Ms. Nelson “just got fed up” and said to Bascoe, “you know what, I’m just going to leave”. Bascoe prevented her from leaving, as he had done on prior occasions. They were standing near the bedroom door but still inside the bedroom. They were never out in the front hallway, according to Ms. Nelson. They were facing eachother with Bascoe holding her lower arms while Ms. Nelson held his upper arms. Ms. Nelson was trying to leave the bedroom but Bascoe was holding her back. She was not trying to get at Matthias. She believed that Matthias had left the apartment.

16At this point, Matthias appeared in the front hallway, behind Bascoe’s back. Ms. Nelson only got a glimpse of Matthias because Bascoe is tall, Matthias is short, and Matthias was behind Bascoe. Ms. Nelson felt two or three stabs to her hand. She started screaming. She saw the knife on the floor. She did not see Matthias again. She picked up a towel in the bedroom and used it to apply pressure to her hand, which was bleeding profusely. She asked Bascoe to call an ambulance and she walked into the living room. Shanika arrived at the apartment and called an ambulance. When the police arrived, they found Ms. Nelson seated in the living room. She was screaming while Bascoe applied pressure to the area of her right wrist. The white towel was on the living room floor covered in blood. Detective Head sketched the trail of blood that he found in the apartment, as depicted in Exhibit 2, running from the bedroom to the point in the living room where the towel was located. The blood trail was heaviest in the bedroom and lighter in the living room. Ms. Nelson marked the location where the stabbing occurred. It was inside the bedroom door at the point where the blood trail is heaviest, as depicted in Exhibit 5.

17The medical evidence concerning Ms. Nelson’s injuries was set out in an Agreed Statement of Fact as follows: there was one 4 cm. long laceration just below the thumb of the right hand, with a tendon injury; there was a second 3 cm. long laceration on the palm of her right hand; both lacerations required sutures. The police photographs of the injuries indicate that the cut on the back of her wrist, just below the thumb, was quite deep. The police also photographed a relatively large steel steak knife that was found in the kitchen sink. Ms. Nelson testified that she received therapy for PTSD, that her life has been significantly affected by this incident, and that she suffers from stress, depression, and anxiety.

18Ms. Nelson agreed, in cross-examination, that she discussed the incident afterwards with Bascoe. He changed his account of the relevant events a number of times, according to Ms. Nelson. She felt that he could have done more to prevent the incident and she even accused him of “setting her up” because he had asked her to come over to his apartment. She felt it was almost as if he was “trying to have her killed”. She told him to tell the truth about the relevant events. According to Ms. Nelson, Bascoe was angry with her for giving evidence at the preliminary inquiry about his knife.

19The final area of Ms. Nelson’s testimony concerned the prior animosity between her and Matthias. The past history between Bascoe, Matthias, and Ms. Nelson was set out at length in Ms. Nelson’s statement to the police. In summary, Ms. Nelson had been Bascoe’s girlfriend for two and a half years. She believed that Bascoe had been unfaithful to her but that Matthias was just someone who Bascoe had sex with and that she was never his “girlfriend”. When Matthias became pregnant, Bascoe initially denied being the father but Matthias eventually told Ms. Nelson the truth. According to Ms. Nelson, Bascoe let Matthias stay at his apartment as she had nowhere to go and he wanted to help her while she was pregnant. Bascoe would stay at Ms. Nelson’s home and they would visit his apartment to pick up clothes. However, this arrangement led to tensions. Matthias wanted Bascoe to love her and she became violent and threatening towards both Bascoe and Ms. Nelson. There was one incident when all three of them were in Bascoe’s apartment in March 2016. Matthias pulled a knife on Bascoe and threatened to kill him. She also began harassing Ms. Nelson with messages left on Facebook. A March 22, 2016 Facebook message from Matthias was put in evidence (Exhibit 9). It stated:

“Listen u dirty bitch u can have old fuck cause after am done having dis kid I’ll find u an fuck u up… I’ll fuck u up in ways u don’t even know…”

20Ms. Nelson went to the police after receiving this Facebook message. It was admitted that on March 30, 2016 the police attended at Ms. Nelson’s home, viewed the text message, warned Matthias “with respect to threatening,” and advised Matthias not to contact Ms. Nelson. It was after Ms. Nelson reported Matthias to the police in March 2016 that Matthias moved out of Bascoe’s apartment. Ms. Nelson believed it was sometime in May 2016, prior to the present incident, that Matthias moved out.

21A second text message was put into evidence. Ms. Nelson received it on “What’s App”. It was from “Kayla Island” and there is a picture of Matthias at the top of the message (Exhibit 10). It stated:

“some gal need to knw their fuckin place bitch u need to try run up an do somethin an u will see if I don’t kill u am quite but deadly”.

Ms. Nelson believed this text message was sent after the March 2016 incident with the knife described above.

22Ms. Nelson agreed, in cross-examination, that she had threatened to report Matthias to the immigration authorities if Matthias did not leave her alone. Ms. Nelson explained that she was trying to stop the harassment.

(iii) Ramone Bascoe’s account

23Bascoe testified that he had known Ms. Nelson for five years. She became his girlfriend and she was still his girlfriend at the time of the relevant events in May 2016. He could not recall how or when he met Matthias but she became pregnant with his child. Matthias brought their child to court on the day that Bascoe testified and he stopped to interact with the child before coming up to the witness stand to testify.

24Bascoe’s account of the background to the relevant events was that he had been at Ms. Nelson’s home, they had argued, and he had left and gone back to his own apartment. He called her, in an effort to resolve the argument, and asked her to come over to his apartment. However, Matthias then called him and wanted to meet. Bascoe told her to come over to his apartment. In the meantime, the battery on his cell phone had died and he surmised that he must have missed Ms. Nelson’s attempts to call him.

25Matthias arrived at the apartment and she talked with Bascoe in the living room. They went into his bedroom and talked some more, before returning to the living room. Bascoe told Matthias that he thought Ms. Nelson was coming over to the apartment. Matthias had been at the apartment for about an hour. She got up to leave but at this point Ms. Nelson arrived and started banging on the door to the apartment. Bascoe had put the chain on the door after Matthias arrived. Bascoe thought that Ms. Nelson would eventually give up and leave but she kept banging on the door. Matthias said to let Ms. Nelson in and then Matthias would leave. Bascoe opened the door and Ms. Nelson came into the living room. Bascoe was concerned that the banging on the door would wake his father who also lived in the same apartment and who was asleep in the second bedroom.

26Bascoe’s account of the first incident was that all three of them were seated in the living room. Ms. Nelson was angry that the door was locked and she was “not happy” to see Matthias at the apartment. Matthias’ purse and key were on a chair. Ms. Nelson noticed the key, picked it up, and said, “Ramone, I thought you took back the key from Kayla”. Bascoe made some “smart” response that upset Ms. Nelson. At this point, Matthias asked for her keys so that she could leave. The two women were standing in the living room. Bascoe was seated on the couch watching them. Matthias was trying to get the key and Ms. Nelson was holding it above her head, moving it back and forth. Ms. Nelson is much taller than Matthias, who was reaching for the key. The two women were speaking loudly and were “in eachother’s face”. Bascoe did not see Matthias strike Ms. Nelson. After a short time, Bascoe heard Matthias “cry out”, as if she was hurt. Bascoe did not see what had happened to cause Matthias to “cry out”. Bascoe knew that Matthias was pregnant. He saw her lying on the floor and assumed that she had been hit and that he would have to get Ms. Nelson to leave the apartment and he would then have to call an ambulance to take care of Matthias. He stood up and moved or walked Ms. Nelson back into the area between the kitchen and the living room. He did not touch either of the two women and he did not “part them” or “break them up”, contrary to his statement to Detective Gilbert on July 3, 2016.

27At some point during the above incident, according to Bascoe, he “thought” that Ms. Nelson threw the keys somewhere. Bascoe was not sure when she threw the keys, that is, whether it was before or after he heard Matthias “cry out”. He was also not sure where she threw the keys but he “thought” that it was towards the bathroom. After this first incident, Bascoe said to Ms. Nelson, “you’re going to go to jail” or “you’re getting into trouble”. He said this because he thought “something bad” had happened during the first incident in the living room, such as an assault, because he had heard Matthias “cry out” during the struggle over the key.

28Bascoe’s account of the second incident was that he and Ms. Nelson had ended up facing eachother just inside the kitchen, after the first incident concluded. Bascoe’s back was to the kitchen and Ms. Nelson’s back was to the dining area. He could hear Matthias crying in the living room and he said to Ms. Nelson, “see what you did”. Bascoe assumed that Matthias must have got up from the living room floor and must have come around into the kitchen through the front entrance hall, because she appeared behind him with a knife. Bascoe also assumed that Matthias must have obtained the knife from the kitchen. The first thing that Bascoe saw was the knife coming from behind him and cutting Ms. Nelson on the shoulder. Bascoe pushed Ms. Nelson backwards and away from the knife. Bascoe then took hold of Matthias’ wrist and Ms. Nelson was able to take the knife away from Matthias. Ms. Nelson put the knife in her purse.

29Bascoe denied that any struggle with Matthias over the knife had taken place before Matthias swung the knife at Ms. Nelson. The above summarized “struggle” over the knife occurred after Matthias had swung the knife and cut Ms. Nelson. Bascoe denied that Ms. Nelson was some distance away, prior to this second incident. All three of them were in close proximity in the kitchen. Bascoe changed his account, during cross-examination, as to who had actually disarmed Matthias during this second incident. Initially, his evidence was that Ms. Nelson disarmed Matthias while Bascoe held Matthias’ wrist, as summarized above, but he later testified that he disarmed Matthias himself and then gave the knife to Ms. Nelson, and that there was no “struggle” over the knife.

30Bascoe’s account of the events between the second and third incidents was that he heard Ms. Nelson on her phone telling someone, “Kayla tried to stab me”. Ms. Nelson appeared to be unaware that she had been cut on the shoulder during the second incident. After making this phone call, Ms. Nelson went through the kitchen and into Bascoe’s bedroom. Bascoe followed Ms. Nelson into his bedroom and they had a discussion in the bedroom about the key. Bascoe heard the front door to the apartment slam. He thought that Matthias must have left the apartment. Bascoe agreed that some time passed between the second and third incidents, although he could not estimate the amount of time.

31In cross-examination, Bascoe’s prior oral statement to a police officer at the scene was put to him (as recorded in the officer’s notebook). The officer’s note was that Bascoe said, “I pushed Simone further into living room, protecting her with my back, Kayla had cut her blouse in that swing, I asked Simone are you stupid because she wanted to attack Kayla, I walked Simone into my bedroom, we stopped at the doorway”. Bascoe disagreed with the suggestion in this statement that Ms. Nelson “wanted to attack Kayla”. He testified that Ms. Nelson never tried to attack Matthias, at this point between the second and third incidents. He did agree that he said to Ms. Nelson, “you see what happened, what you caused” and “you almost got yourself killed”. He said this because Ms. Nelson did not appear to realize that she had been cut during the second incident. Bascoe then walked Ms. Nelson into his bedroom. He was trying to get her away from Matthias. His intention was to get Ms. Nelson away from Matthias and then return and see if Matthias was in need of medical assistance.

32Bascoe’s account of the third incident was that he and Ms. Nelson were in his bedroom, looking for the key. He was bending down and looking on the floor because she had previously thrown the keys. In this regard, the diagram of the apartment (Exhibit 2) indicates that the keys could not have been thrown from the general vicinity of the living room (as Bascoe seemed to recall) and then landed in Bascoe’s bedroom. The configuration of the rooms made this impossible. As he was bending down, Ms. Nelson punched Bascoe in the back and said something. She was angry with him. He could not recall what she said but he became very angry and wanted to fight her in response. He was standing just inside the doorway to the bedroom, a little past the light switch that can be seen in the police photograph of the entrance to his bedroom (Exhibit 3, photo 10). Ms. Nelson was in front of him, farther into the bedroom. They were facing eachother. At this point, Bascoe once again saw a knife coming over his right shoulder and stabbing Ms. Nelson. He briefly saw Matthias behind him but his attention was on Ms. Nelson. He was trying to push Ms. Nelson away from the knife but he was too late. He believed there was only one stab with the knife but there could have been a second very quick stab. There was blood everywhere. Ms. Nelson began to cry. Bascoe again heard the door to the apartment slam. He looked around and Matthias was gone. The knife was on the floor near the entrance door to the apartment. It was later placed in the kitchen sink where the police found it.

33In cross-examination, Bascoe was pressed as to whether Ms. Nelson was trying to push past him and get out into the entrance hallway and as to whether the third incident could have occurred in the entrance hallway. Bascoe insisted that the stabbing occurred in the bedroom and that Ms. Nelson was not trying to push past him in order to get into the hallway. Matthias appeared in the entrance hallway and came from behind Bascoe with the knife. Matthias never actually entered the bedroom as Bascoe was standing in the doorway. She reached over and around him. Bascoe had wanted Ms. Nelson to leave from the beginning and he would not have stopped her, if she had wanted to leave the apartment. His intention throughout was to have Ms. Nelson leave so that he could then attend to Matthias and see if Matthias needed an ambulance, as a result of whatever had happened to her during the first incident.

34The police photographs of the crime scene, in addition to the pattern of blood on the floor (already summarized above at para. 16), showed a number of blood splatters and dripping blood on the oustide of the bedroom door frame, on the inside of the bedroom door frame, and on the wall inside the bedroom door, including quite high up on the wall well above the light switch (as depicted in Exhibit 3, photos 10, 11, and 26 to 30). The location of these blood splatters and dripping blood is in the general vicinity where Bascoe placed the third incident, that is, at the doorway to his bedroom and just inside the bedroom door.

35Bascoe agreed that he “always has a knife”, either on his person or at his side. He could not recall where the knife was on this particular evening and whether he ever took it out. He agreed that he said “a lot of things” to the police about the various incidents that occurred on this evening and that he felt “pressured” at the time. He and Ms. Nelson would discuss what happened. They each have their own version as to what happened. She would become angry with him when his account diverged from hers. She went so far as to say that she could bring a civil law suit against him, because of what had happened, and Detective Gilbert appeared to agree with this proposition. Bascoe would eventually just agree with Ms. Nelson in order to keep the peace.

36Bascoe’s account of the prior acrimony between Matthias and Ms. Nelson was that the two women had been friendly at first but they developed differences. Both he and Ms. Nelson had “jealousy issues” and she would become concerned whenever he was involved with another girl. She was upset when he got Matthias pregnant. He let Matthias stay at his apartment. He would stay at Ms. Nelson’s place and try to avoid his own apartment. Matthias and Ms. Nelson texted back and forth and had “their differences”. The only prior time that Matthias had a knife, to Bascoe’s knowledge, was once when he had been asleep. He awoke and found her with a knife. She was not threatening him but he thought that it was “weird”.

(iv) The video surveillance evidence, Yeshka Bascoe’s testimony, and the arrest of Kayla Matthias

37The police obtained video surveillance footage from one of the elevators at the apartment building on Jane Street where the relevant events occurred. It shows Matthias entering the elevator at 9:29 pm on May 29, 2016 on the floor where these events took place. She is talking to another young black female as she enters the elevator. The appearance of her dress and her hair is neat and tidy. In particular, her hair is pulled up tightly into a bun and there appears to be no hair that is out of place. She is initially on her cell phone. She looks at her right arm a few times. A man gets on the elevator at a lower floor. She again looks at her right arm and then touches her lip and shows her lip to the man and appears to speak to him, perhaps asking him some question about her lip. There are no apparent injuries or marks that are visible and no apparent damage to her clothing. At 9:32 pm, Matthias exits the elevator on the ground floor and walks directly towards the lobby doors. When the elevator doors first open on the ground floor, a number of uniformed police officers are waiting to get on the elevator. More uninformed police officers can be seen arriving in the lobby. Matthias walks directly past the police officers without interacting.

38The Crown’s last witness was Yeshka Bascoe. She is the sister of Ramone Bascoe. She was visiting their cousin Shanika Reid at the time of the relevant events on May 29, 2016. Shanika has an apartment down the hall from Ramone on the 18th floor of the same building. Kayla Matthias had dropped by to visit with them before going to Ramone Bascoe’s apartment. A few hours later, there was a phone call to Shanika, apparently from Simone Nelson. When Shanika got off the phone she said, “there’s fighting”. About five minutes later, there was a second phone call. Yeshka Bascoe and Shanika Reid both proceeded down the hall towards Yeshka’s father’s apartment (where Ramone Bascoe also lived). In the hallway, Yeshka heard Simone Nelson yelling from the apartment and she saw Kayla Matthias with no shoes on coming down the hall.

39Yeshka Bascoe asked Matthias, “what happened”? Matthias replied, “I stabbed her”. Shanika Reid had gone down the hallway and into the apartment where the stabbing occurred. Yeshka went back into Shanika’s apartment and got a pair of sandals for Matthias. In addition to saying “I stabbed her”, Matthias told Yeshka that Simone Nelson “tried to fight her”, that Matthias wanted her keys in order to leave but Ms. Nelson “put her hands on me and pushed me down”. Matthias was angry and looked upset, according to Yeshka. Her hair seemed a little “raggedy”.

40After exiting the elevator of the Jane Street building at 9:32 pm, Matthias was arrested at Jane Street and Lawrence Avenue at 10:16 pm that same evening.

(v) The account of Kayla Matthias

41Matthias is 25 years old. She was 23 at the time of the relevant events. She had no criminal record at that time. She and Bascoe met in 2014 on a dating website. They became boyfriend and girlfriend and lived together during 2015 and 2016, according to Matthias’ account. She gave birth to Bascoe’s child on June 22, 2016, which was three months premature.

42Matthias testified about the past animosity between her and Ms. Nelson in some detail. Their inter-action began at some point by text messaging eachother. Sometimes they would message eachother in an “adult” manner and sometimes it was rude and threatening. Ms. Nelson had been dating Bascoe prior to Matthias. Matthias’ understanding was that Bascoe was “on and off” with Ms. Nelson and that he never really “claimed” Ms. Nelson. They just slept together on occasion but Ms. Nelson was not “his girlfriend”. Ms. Nelson was jealous of Matthias and her initial text messages threatened Matthias to leave Bascoe alone or else Ms. Nelson would kill Matthias. None of these text messages from Ms. Nelson were produced in evidence. Matthias initially insisted in her testimony that it never bothered her or hurt her when Ms. Nelson was with Bascoe. However, in cross-examination, an August 10, 2015 text message that she sent to Ms. Nelson was put to her. It stated:

“…I need to find out something so I can be able to move on with my life. Cause am hurting an it’s not right for dis to be happening… I need to know if ur still with Ramone please cause I had enough of dis crying an hurting”.

After reviewing this text message, Matthias agreed that Bascoe was a liar and that sometimes she was hurt and upset by the situation that existed between her, Bascoe, and Ms. Nelson.

43When Ms. Nelson learned in 2016 that Matthias was pregnant with Bascoe’s child, Ms. Nelson became particularly threatening. Bascoe and Ms. Nelson were dating and Matthias was living at Bascoe’s apartment. There was an incident in February or March 2016 when Ms. Nelson pulled a knife on Matthias at Bascoe’s apartment, while he was not there. Matthias was able to talk to Ms. Nelson and persuade her that Bascoe was just helping her out. As a result, there was no actual violence during this incident. On another occasion around the same time, Bascoe stayed with Matthias at his apartment for a few days when he was sick. She looked after him but when he got better he went back to Ms. Nelson. When Matthias and Ms. Nelson returned to the apartment, in order to pick up clothes, Matthias was upset and said to Bascoe, “you come and have sex with me and then go back to Simone”. Ms. Nelson intervened in the argument and Matthias taunted her about not being able to get pregnant. On another occasion, Matthias proudly rubbed her tummy in front of Ms. Nelson and said that she was pregnant.

44In relation to these prior incidents, Matthias testified that she was not afraid of Ms. Nelson if Bascoe was present in the room. According to Matthias, she and Bascoe never argued. He looked upon her as his “baby Mamma”. As long as Bascoe was present, she had nothing to worry about with Ms. Nelson. Matthias never went to the police concerning any of Ms. Nelson’s threats because Matthias does not like the police. She agreed that Ms. Nelson did go to the police. As a result, Matthias was cautioned by the police not to be with Ms. Nelson.

45By the time of the relevant events on May 29, 2016, Matthias had moved out of Bascoe’s apartment. She was living with her sister. Bascoe had been away in Jamaica and when he returned he wanted to see his “baby”. He asked Matthias to come over. She stopped in to see Bascoe’s cousin Shanika and his sister Yeshka on her way to see Bascoe, as they lived in the same apartment building. Matthias had a good relationship with these two relatives of Bascoe, especially once they knew that she was carrying Bascoe’s child. Matthias still had keys to Bascoe’s apartment but she knocked on the door and he let her in. She also had keys to her sister’s apartment where she was now living. It was late afternoon. They sat in the living room and watched television. She was upset by the way that Bascoe was treating her but she sat on his lap and then she went to his bedroom and they had sex. They returned to the living room and talked about things that he would get for the baby.

46Matthias’ account of the first incident was that she heard a knock at the door and Bascoe went to see who was there. He returned and said that it was Ms. Nelson. Matthias panicked as they always argued and she had been cautioned by the police not to be in the same room as Ms. Nelson. Ms. Nelson kept banging on the door. Matthias told Bascoe to let Ms. Nelson in and that Matthias would leave. Ms. Nelson came in and sat on the couch near Bascoe. Matthias’ purse and keys were on a chair nearby and she had asked Ms. Nelson not to sit there. Matthias said she was leaving and got up to get her shoes, which she had taken off when she first arrived. She returned to the living room with her shoes, intending to ask Bascoe to help her put them on because she was about six months pregnant and needed help. The subsequent police photographs show Matthias’ shoes in the hallway near the front door. Matthias estimated it would take her a minute or three minutes to go from the living room to the front door. Neither of these estimates is realistic, given the relatively small size of the apartment. At this point, Ms. Nelson picked up Matthias’ keys off the chair and asked Bascoe, “I thought you took back your keys from her”. Bascoe replied, “why would I take them back, you have your own”. Ms. Nelson was angry and the atmosphere in the room was tense.

47Matthias testified that she asked for her keys four or five times and started to cry. Ms. Nelson held the keys up in the air and waved them. Matthias touched Ms. Nelson’s shirt and tried to pull her hand down (gesturing as if grabbing the shirt, when she gave this evidence). Ms. Nelson pushed Matthias away with an open hand on her belly. Matthias fell onto the couch. She immediately felt a lot of pain and was afraid for her baby, thinking to herself that “my child could die”. Her baby meant everything to her. Her first priority was to protect her baby. If there was any risk of injury to the baby she wanted to see a doctor. At this point, Matthias wanted to leave.

48Bascoe did not intervene in the scuffle over the keys. He was “entertained” by it, according to Matthias. But once Ms. Nelson pushed Matthias and she fell onto the couch, Bascoe got up. He said to Ms. Nelson, “what are you doing, are you stupid”. Bascoe did not really separate the two women but he stood in front of Ms. Nelson with Matthias behind him. This allowed Matthias to run to the dining area and into that end of the kitchen. She intended to run through the kitchen and out into the front hallway, and to then leave the apartment at the entrance door. However, Ms. Nelson ran through the living room to the other end of the kitchen that gives onto the front hallway and “blocked me off”, as Matthias put it. Bascoe took the same route to the kitchen as Matthias had taken. He was now standing behind Matthias. These various routes and locations are all marked on Exhibits 15 and 18.

49Matthias’ account of the second incident was that she grabbed a knife from the kitchen sink because Ms. Nelson was now in her way. Matthias had run to the kitchen in order to leave the apartment. Ms. Nelson had “hit” her during the first incident and was bigger than Matthias. In addition, Matthias’ movement was limited by her pregnancy. In all these circumstances, Matthias picked up the knife in order to protect herself. She thought that Ms. Nelson would move out of her way if Matthias had a knife. At this point, Bascoe put one arm around Matthias’ neck from behind, grabbed her right wrist where she was holding the knife, and restrained her. Matthias agreed that she said something to the effect, “I am tired of you coming here and bothering me”. Ms. Nelson moved towards Matthias and Bascoe in the kitchen, grabbed the hand that was holding the knife, twisted it, and Matthias let go of the knife. Ms. Nelson took the knife. Matthias was not sure what Ms. Nelson did with the knife. Matthias denied cutting Ms. Nelson with the knife during this second incident. There was a struggle over the knife and Ms. Nelson was twisting and turning the knife while Matthias held onto it. Matthias suggested that Ms. Nelson may have cut herself during this struggle over the knife.

50Matthias’ account of the events between the second and third incidents was that Bascoe let Matthias go, once Ms. Nelson had secured the knife. Bascoe moved in front of Matthias and he pushed Ms. Nelson out of the kitchen and into the front hallway. Matthias knew that Ms. Nelson was now out in the hallway with the knife but she could not see what Ms. Nelson was doing with the knife. Bascoe was standing between the two women, blocking Matthias’ view. At this point, Matthias turned and went back into the living room to look for her phone. She wanted to call the police and she wanted to call a taxi to take her to the hospital, due to her concern for her child after Ms. Nelson “hit me in the belly” during the first incident. She could not estimate how long it took her to find her phone but it was “a couple of minutes”. She eventually located the phone underneath a living room couch. She did a Google search for a taxi company and called a taxi to take her to the hospital. During this period of time, while Matthias was in the living room, she was out of sight of Bascoe and Ms. Nelson.

51At this point, Matthias returned to the kitchen. Her account of the third incident was that she picked up another knife from the dish rack as she walked through the kitchen. Once again, her purpose in picking up the knife was to protect herself and to get out of the apartment. She knew that Ms. Nelson was angry and had taken the first knife from Matthias. She thought that Ms. Nelson still had the knife. She also testified that she could hear Bascoe and Ms. Nelson arguing out in the front hallway about a knife. Ms. Nelson asked Bascoe, “what are you [Bascoe] doing with that knife”? Matthias explained during examination in chief that she knew Bascoe always carried a pocket knife, which he used to cut fruit. In cross-examination, Matthias elaborated on what she took from this overheard argument about a knife. She initially testified that she did not think Bascoe would use the knife on her, because she was his “baby Mamma.” However, she went on to explain that she now assumed both Bascoe and Ms. Nelson had knives, that she did not know what they would do, that she thought both of them were “setting up something”, and that she thought Bascoe would “do anything” for Ms. Nelson. Matthias only picked up the second knife from the kitchen after she heard the above comment about Bascoe having a knife. She picked up the knife because she heard them speaking about Bascoe having a knife.

52At this point, Matthias went out of the kitchen and into the front hallway. She drew the path that she took on Exhibit 19, from the living room through the kitchen and out into the front hallway. She ended up in front of the near side (the side closest to the kitchen and living room) of the door at the entrance to the apartment, as indicated by the position she marked on Exhibit 19. She agreed that the door knob on the entrance to the apartment is located on that same near side of the door (as depicted in Exhibit 3, photo 8).

53Matthias could now see Bascoe and Ms. Nelson. They were in the hallway between the front door and the storage closet. They were not in Bascoe’s bedroom. Matthias marked the locations in the hallway of all three persons on Exhibit 15 (the police diagram) and Exhibit 16 (a copy of one of the police photographs). Both of these Exhibits show Matthias in a position closest to the apartment entrance door, Ms. Nelson in a position closest to the bedroom door, and Bascoe in between the two women. The lights in the kitchen were on but it was dark in the hallway. Bascoe’s back was towards Matthias throughout this third incident. Ms. Nelson was on the other side of Bascoe facing Matthias. Both Bascoe and Ms. Nelson were pushing each other with open palms. Matthias could see one of Ms. Nelson’s hands, pushing against Bascoe’s shoulder, but she could not see Ms. Nelson’s other hand. This other hand was the right hand and it was down by Ms. Nelson’s side where it was out of sight. Matthias then saw Ms. Nelson raise her right hand and reach over Bascoe’s right shoulder. She heard Ms. Nelson say, “let me get that fucking bitch.” At this point, Matthias stabbed Ms. Nelson’s right hand. Matthias was pregnant, she was concerned for her baby, and she knew that Ms. Nelson had previously had a knife. She thought that Ms. Nelson still had a knife and was going to attack her. She was vulnerable and felt that she could not defend herself while she was trying to leave the apartment. After stabbing Ms. Nelson, she dropped the knife and ran out the front door of the apartment without her shoes. She was both angry and afraid as she left, although she denied being angry at the time of the stabbing.

54Matthias repeatedly refused to give a direct answer when questioned as to whether she ever saw a knife in Ms. Nelson’s raised right hand. She replied variously that it was dark, that she could not see the right hand when it was down at Ms. Nelson’s side, and that everything happened fast. Her eventual answer was, “I don’t know what I saw.” In cross-examination, Matthias also repeatedly insisted that she was not in front of the entrance door to the apartment and was not closest to the door knob, that it was Bascoe who was in front of the entrance door, and that Matthias could not go to the entrance door in order to leave.

55It was about 9:30 pm when Matthias left the apartment, after the third incident. She denied leaving the apartment between the second and third incidents. She had gone to the living room to look for her phone at this earlier point in the chronology. When she eventually did leave at 9:30 pm, she saw Yeshka in the hallway. Yeshka, who can be seen speaking to Matthias at the elevator door at the beginning of the video surveillance, told Matthias to call an ambulance. Matthias testified that she had already called a taxi and that she felt it would take too long to call an ambulance. Matthias agreed that she looked at her arm in the elevator. She did this because she thought she had been stabbed in the arm or hurt in some fashion. She also showed her face to the man in the elevator as she thought that she was hurt. As she exited the elevator, she did not ask the police officers to call an ambulance because she thought it would take too long and that it was faster for her to call a taxi herself and have the taxi take her to the hospital. She walked about 500 metres to the intersection of Jane Street and Lawrence Avenue and waited there for the taxi. She had called a taxi from the apartment and she called again, once she was outside the apartment building. The dispatcher told her that it would take some time. When she was arrested at 10:16 pm, the taxi had still not arrived.

C. ANALYSIS

56The parties are agreed on two preliminary points. First, the aggravated assault particularized in the Indictment alleges that the offence was committed by “wounding”. This could only refer to the third incident. Accordingly, the evidence relating to the second incident is simply relevant background or context for third incident. It is not part of the actus reus of the offence charged. Second, the only live issue in the case is whether the Crown has negatived self-defence beyond reasonable doubt. The burden of proof remains on the Crown in relation to this issue. Absent self-defence, the parties agree that the third incident constitutes all the essential elements of the s. 268 offence. I agree with the parties concerning both of these preliminary points.

57In deciding the issue of self-defence, any concerns about the credibility and reliability of the three eye witness accounts must be resolved at the outset. In this regard, I found Ms. Nelson to be a generally credible and reliable witness. She minimized her role in the first incident but her account was otherwise detailed and coherent, there were no real improbabilities or inconsistencies, she was willing to be open and concede some points that favoured the defence concerning her animosity and jealousy towards Matthias, as a result of Bascoe’s infidelity, and most importantly, there was corroboration of her account on critical points relating to the third incident (as will be explained below).

58Bascoe, on the other hand, was in the difficult position of having caused this entire incident. He appeared to be trying not to offend either of the two women, one of whom had been seriously injured and one of whom was facing a serious criminal charge. In the result, his account contained a number of obvious improbabilities, such as claiming not to have seen what happened during the first incident when it unfolded directly in front of him, claiming not to know anything about his knife on the night in question, and claiming to have seen Ms. Nelson throw the keys from the living room and having them end up on his bedroom floor. There were also a number of serious inconsistencies in his account, such as changing his story about whether he had to “part” the two women or “break them up” during the first incident, and changing his story about who had disarmed Matthias during the second incident. In spite of these obvious difficulties, there were a number of important parts of Bascoe’s account that were detailed, coherent, and corroborated in relation to the third incident (as will be explained below).

59Finally, Matthias was generally not a credible witness. She was often argumentative, evasive, or defensive. She refused to give direct answers to difficult questions, she sometimes resorted to speculative answers that might help her, and on some occasions she argued angrily with the Crown during cross-examination. Most importantly, there were serious improbabilities and inconsistencies in her account on important issues relating to the third incident. In particular, I note the following: her explanation as to why she picked up the knife prior to the third incident evolved such that she ultimately seemed to testify that it was because she feared Bascoe and she thought that he had a knife that he might use against her, contrary to all her prior evidence; her denials that she was in front of the entrance door to the apartment or that she was closest to the door handle, and her insistence that she was unable to leave the apartment, were all contradicted by her own demonstrative evidence set out on Exhibits 15, 16, and 19; her concern for her child and her desire to call the police or an ambulance were belied by her post-offence conduct; and her account to the effect that she saw Ms. Nelson raise her right hand above Bascoe’s right shoulder means that she must have seen that Ms. Nelson was unarmed, contrary to her asserted belief that Ms. Nelson had a knife. In addition, Matthias’ evidence on the critical issue concerning the location of the third incident (in the front hallway and not in Bascoe’s bedroom) is contradicted by the testimony of both Bascoe and Ms. Nelson. It is also contradicted by the blood trail on the floor and by the blood splatters and blood drippings on the bedroom door frame and on the bedroom wall just inside the door frame, which all tend to infer that the location of the third incident was where Bascoe and Ms. Nelson placed it. In other words, it did not occur in the front hallway. For all these reasons, I completely reject Matthias’s account of the third incident.

60Having said that, there were other parts of Matthias’ evidence that were detailed, coherent, and corroborated, such as the fact that Bascoe generally stood between her and Ms. Nelson and he generally appeared to be trying to help Matthias. In addition, her account of the second incident was similar to certain parts of the others’ accounts, in particular, all three accounts were broadly consistent to the effect that Ms. Nelson disarmed Matthias while Bascoe restrained her, Ms. Nelson then took the knife away, and Ms. Nelson did not retaliate by attacking Matthias with the knife after having disarmed her. Unfortunately for Matthias, these credible and corroborated parts of her account do not assist her claim of self-defence.

61It can be seen that I accept parts of the evidence of all three eye witnesses and reject other parts of their evidence. In the result, I am satisfied that the following facts relating to the issue of self-defence have all been proved:

• The first incident involved pushing and grabbing by both Ms. Nelson and Matthias. Although Ms. Nelson was behaving badly, by withholding Matthias’ keys for some period of time, there was nothing in this minor scuffle that would justify taking up a large butcher knife in self-defence, nor did Matthias suggest that the first incident standing alone caused her to arm herself with a knife. Both Matthias and Ms. Nelson have shown themselves, in this incident and in prior incidents, to be capable of taunting behaviour;

• The three accounts of the second incident all differ in relation to the surrounding details. It is Bascoe’s account that is the most damaging to Matthias, portraying her as the obvious aggressor. I need not resolve the various conflicts between the three witnesses in relation to this second incident. The important points about it, as context leading up to the third incident, are that Bascoe and Ms. Nelson successfully disarmed Matthias, Ms. Nelson ended up in possession of the knife, Ms. Nelson did not retaliate and use the knife against Matthias, and instead Ms. Nelson moved away from the altercation with the knife. All three accounts are consistent on these critical points. The obvious inference that emerges, which must have been apparent to Matthias, was that Ms. Nelson was not behaving like an aggressor who wanted to engage her with a knife. Rather it was Ms. Nelson who proceeded to call Bascoe’s cousin Shanika, apparently asking for Shanika’s outside intervention and help;

• There are a number of critical points about the third incident. First, I am satisfied that it must have occurred at the door to Bascoe’s bedroom and just inside that bedroom. Bascoe’s account, Ms. Nelson’s account, the blood trail on the floor, and the blood splatters and blood drippings on the bedroom door frame and bedroom wall all lead overwhelmingly to this conclusion. Matthias’ contrary account is not credible, for reasons already explained above. Second, Bascoe was continuously standing between the two women during this incident. All three accounts are consistent on this point. Third, Matthias was standing close to the entrance door, according to her own demonstrative evidence as set out in Exhibits 15, 16 and 19. In these circumstances, she was not in any danger and she could easily have left the apartment, if this had been her intention. Fourth, she must have seen that Ms. Nelson was unarmed. It is uncontrovertible that Ms. Nelson was, in fact, unarmed. Matthias’ account was that she could see Ms. Nelson’s left hand pushing against Bascoe’s shoulder and she saw Ms. Nelson raise her right hand above Bascoe’s shoulder. In other words, both of Ms. Nelson’s hands were visible before Matthias attacked her with the knife. In these circumstances, it must have been apparent to Matthias that Ms. Nelson did not have a knife;

• In light of the above findings, I am satisfied that Matthias advanced on Ms. Nelson from the front entrance hallway and stabbed her inside the bedroom doorway, at a time when Matthias was not in any danger and when she knew that Ms. Nelson was unarmed and was standing inside the bedroom on the far side of Bascoe. Matthias must have been acting out of anger, either in retaliation for the first incident or due to the general animosity that existed, as expressed in her earlier text messages to Ms. Nelson (Exhibits 9 and 10), or due to a combination of all these circumstances.

62In light of the above findings of fact, the Crown has negatived all three branches of self-defence pursuant to s. 34(1). Only one of these conjunctive branches needs to be negatived, but all three have been disproved beyond reasonable doubt. Matthias did not believe on reasonable grounds that force was being used against her by Ms. Nelson or that a threat of force was being made against her by Ms. Nelson. Matthias did not act for the purpose of defending or protecting herself against force or the threat of force from Ms. Nelson. And finally, Matthias’ act of stabbing Ms. Nelson twice in her right hand was not reasonable in the circumstances.

D. CONCLUSION

63Absent self-defence, the parties agree that the s. 268 offence has been proved. I agree with this joint submission. Accordingly, I find Matthias guilty as charged of aggravated assault.

M.A. Code J.