COURT FILE NO.: CR-17-70000730 DATE: 20190104 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – DIEGO ALCARAZ

Counsel: Paul Kelly for the Crown Anthony Bugo for the Defendant

HEARD: November 20, 21, 22, 23, 26, 27 and 28, 2018

FAVREAU J.

Introduction

1The defendant, Diego Alcaraz, is charged with one count of aggravated assault and one count of assault with a weapon.

2In the early morning of August 13, 2016, David Valencia received two stab wounds to his left arm. There is no dispute that the defendant Mr. Alcaraz inflicted the stab wounds. The issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Alcaraz was not acting in self-defence.

Evidence presented at trial

3The evidence at trial included an agreed statement of facts that provided the following evidence about the circumstances of the August 13, 2016 incident:

a. Mr. Alcaraz and Mr. Valencia were in a domestic relationship at the time of the incident. They lived at 77 Charles Street, apartment 204, in Toronto.

b. On August 13, 2016, Mr. Alcaraz was 32 years old. He is 5 feet and 7 inches tall, and in August 2016 he weighed approximately 130 pounds. At that time, Mr. Valencia was 41 years old. He is 6 feet and 1 inch tall, and he weighed 215 to 220 pounds in August 2016.

c. On August 13, 2016, Mr. Alcaraz and Mr. Valencia were in the Charles Street apartment at approximately 12:50 am. At approximately 1:00 am, Mr. Alcaraz inflicted two wounds on Mr. Valencia's left forearm, using a knife taken from the kitchen in the apartment. One wound was approximately 2 inches long located on Mr. Valencia's inner forearm just below the elbow, and the other wound was approximately 3.2 inches long and was 2 to 3 inches below Mr. Valencia's elbow on his outer forearm. Both wounds resulted in significant blood loss.

d. At 1:03:09 am, after leaving the apartment, Mr. Alcaraz called 911. The 911 call lasted 12 minutes. Mr. Alcaraz made a second 911 call at approximately 1:17 am that lasted 23 seconds.

e. At 1:03:25 am, 16 seconds after Mr. Alcaraz initiated his first 911 call, Mr. Valencia called 911 from the apartment.

f. In response to the calls, the police arrived at 77 Charles Street at 1:12 am.

g. The police arrested Mr. Alcaraz at 1:17 am outside the building.

h. Mr. Valencia was taken to St. Michael's hospital by ambulance.

The Crown's evidence

4The Crown called three witnesses at trial: Officer Jason Tanouye, Officer Ladurantaye and David Valencia.

Evidence of Officer Tanouye

5Around 1:00 am on August 13, 2016, Officer Tanouye received a call to attend 77 Charles Street in Toronto. The information he was provided was that the complainant was Diego Alcaraz who claimed that his boyfriend, David Valencia, had threatened him and choked him.

6Officer Tanouye arrived at the building with another officer at 1:12 am. They tried to get into the building, but found the door was locked.

7Officer Tanouye then saw a man sitting on the curb approximately 20 paces away. The man had his shirt off and was talking on the phone. There is no dispute that the man was Mr. Alcaraz. Officer Tanouye asked Mr. Alcaraz to let him into the building. During his examination in chief, Officer Tanouye said that Mr. Alcaraz did not respond to this request and waived him away. However, during cross-examination, after listening to the 911 call placed by Mr. Alcaraz that captured the interaction between Mr. Alcaraz and Officer Tanouye, Officer Tanouye acknowledged that Mr. Alcaraz did respond that he did not have a key.

8Officer Tanouye then went back to see if he could access the building. At that point, more information came over the radio, after which Officer Tanouye returned to where Mr. Alcaraz was sitting. Officer Tanouye then noticed blood on Mr. Alcaraz's stomach, and he asked Mr. Alcaraz to stand up and told him that he was under arrest in connection with the stabbing of Mr. Valencia.

9The arrest took place at 1:17 am.

10Officer Tanouye's evidence is that, at the time of his arrest, Mr. Alcaraz said "I was defending myself. He had 100 pounds on me".

Officer Ladurantaye

11Officer Ladurantaye also responded to a call to attend 77 Charles Street early in the morning of August 13, 2016. The information he received was that a man had called 911, and that he was groaning and saying that he was bleeding. Officer Ladurantaye was aware that, around the same time, a 911 call had been received from Mr. Alcaraz.

12Sometime after arriving at 77 Charles Street, Officer Ladurantaye was able to enter the building, and he was the first officer to enter the apartment. When he entered, he saw a large man bleeding heavily from his arm. There is no dispute that the man was Mr. Valencia. The man was lying still on the floor, not saying much. There was a lot of blood. There was no one else in the apartment.

13The man said "I don't know why he stabbed me. He said he loved me and then he left".

14Officer Ladurantaye saw a bloody knife on the kitchen floor soon after he entered the apartment.

15Officer Ladurantaye accompanied Mr. Valencia to the hospital.

David Valencia

16In August 2016, Mr. Valencia worked in the construction industry as a labourer. He worked out regularly at the gym, lifting weights one to two times per week.

17He was living with Mr. Alcaraz at 77 Charles Street, in apartment 204. They had been living together for one and a half to two months.

18The two men met approximately twelve to thirteen years ago. They lived together twice for periods of approximately two to three months prior to their relationship in 2016. Both times, Mr. Alcaraz moved in with Mr. Valencia and Mr. Valencia paid the rent.

19Mr. Valencia's evidence is that both times the relationship ended because Mr. Alcaraz was having sexual relations with other men. The first relationship ended after Mr. Valencia was notified by the caretaker in his building that Mr. Alcaraz brought men home while Mr. Valencia was at work. The second relationship ended after Mr. Valencia came home and found things in his bed that led him to believe that Mr. Alcaraz had had someone over for sexual relations.

20Mr. Valencia testified that there had never been any physical violence between him and Mr. Alcaraz up until August 13, 2016.

21Sometime in 2016, Mr. Alcaraz started sending Mr. Valencia messages. Eventually, they went out and Mr. Alcaraz told Mr. Valencia that he was not happy with his current living situation. Mr. Valencia told Mr. Alcaraz that he could move in with him, which Mr. Alcaraz did two or three days later.

22Mr. Valencia's evidence is that they were "somewhat" getting along together in the month leading up to August 13, 2016. They had some differences. Initially, when they first got together in 2016, Mr. Valencia decided that he would try to have an "in the open" relationship with Mr. Alcaraz, which he described as an arrangement whereby other men would come to their apartment while they were both there for sexual encounters. Mr. Valencia testified that he agreed to this because he thought this would be a way to avoid the prior problems with Mr. Alcaraz's infidelity.

23Mr. Valencia testified that these encounters occurred approximately once per week. He also testified that every time other men came over for sexual encounters, Mr. Alcaraz used drugs, primarily crystal meth. Mr. Valencia admitted using crystal meth two or three times at Mr. Alcaraz's urging.

24Approximately two to three weeks prior to August, 2016, Mr. Valencia told Mr. Alcaraz that he did not like the "in the open" arrangement. Mr. Valencia felt that they were drifting apart and that the arrangement was not working for him. He suggested that they should end these sexual encounters and "regroup". Mr. Valencia testified that Mr. Alcaraz said that that is how he liked things, but Mr. Valencia held firm.

25On August 12, 2016, Mr. Valencia went home after finishing a ten to twelve hour work day. He and Mr. Alcaraz went shopping for clothes, and then they got something to eat. On the way home, Mr. Alcaraz suggested that they go to a club where Mr. Alcaraz wanted to meet a couple of female friends.

26They went home before going to the club. Mr. Valencia testified that they both drank alcohol before going out. Mr. Valencia drank two mixed drinks consisting of Malibu rum and orange juice, and Mr. Alcaraz had six to eight beers. Mr. Valencia did not take any drugs before going to the night club and he did not see Mr. Alcaraz take any drugs.

27They then went to the club, where Mr. Alcaraz met his friends. At the nightclub, Mr. Valencia and Mr. Alcaraz shared a pitcher of beer, each drinking approximately three glasses of beer. They also each had a shot of tequila. Mr. Valencia did not take any drugs at the club and he did not see Mr. Alcaraz taking any drugs. However, he testified that he saw Mr. Alcaraz go to the bathroom six to eight times and that, at one point, Mr. Alcaraz went outside with his friends and came back smelling of marijuana.

28Mr. Valencia estimates that they were at the nightclub for approximately two to three hours, after which they left because he was tired and he believed that Mr. Alcaraz was tired too. They walked home, stopping for a slice of pizza which they ate in a local parkette. At that point, Mr. Alcaraz suggested inviting people over, to which Mr. Valencia responded that he was tired and that he did not "want to deal with that".

29They arrived home somewhere between 12:50 and 1:00 am. Mr. Valencia said that he was not drunk and he could not tell if Mr. Alcaraz was impaired. Neither of them drank when they got home.

30After they arrived home, Mr. Valencia went to the bathroom to wash his hands. When he came out of the bathroom, Mr. Alcaraz was lying on the bed. Mr. Valencia described Mr. Alcaraz as lying over the covers, wearing black jeans without a top. Mr. Valencia testified that he then went out of the bedroom to remove his clothes near a closet by the front door. At that point, Mr. Alcaraz came out of the bedroom with an "angry face", asking Mr. Valencia why it was taking him so long to come to bed.

31Mr. Valencia testified that Mr. Alcaraz then charged at him, hitting Mr. Valencia on the side of the face and then pushing his chest in quick succession. Mr. Valencia then put his hand out, pushed Mr. Alcaraz away, and said "are you crazy". Mr. Alcaraz then yelled "why are you taking so long? Why are you touching me?" Mr. Valencia then told Mr. Alvaraz to go to bed and stop his "drama".

32Mr. Valencia then heard Mr. Alcaraz go to the bathroom. Mr. Alcaraz came out of the bathroom while Mr. Valencia was taking his shirt off in the living room. When Mr. Valencia turned around, Mr. Alcaraz was standing on the couch staring at Mr. Valencia. Mr. Valencia testified that Mr. Alcaraz then started yelling "It doesn't matter. You're black and I'm white. They will believe me." Mr. Valencia said that Mr. Alcaraz appeared very upset. Mr. Valencia asked him what was going on, and Mr. Alcaraz then jumped from the couch and punched Mr. Valencia very hard on the left side of his arm.

33Mr. Valencia then pushed Mr. Alcaraz away. Mr. Alcaraz took a couple of steps backward and fell to the floor. Mr. Valencia testified that Mr. Alcaraz then said "you'll see, you'll see", and he heard Mr. Alcaraz walk into the kitchen. From the kitchen, Mr. Valencia heard the sound of utensils. He turned around and saw Mr. Alcaraz charging at him with a knife. Mr. Alcaraz kept saying "you'll see, you'll see", and he made a stabbing motion toward Mr. Valencia. Mr. Valencia backed up, and avoided contact. Mr. Alcaraz made another stabbing motion right away, hitting the inside of Mr. Valencia's left arm. Mr. Valencia then tried to walk away, but Mr. Alcaraz made a third stabbing motion, hitting the back of Mr. Valencia's left arm below the elbow.

34Mr. Valencia testified that, after the second stab wound, blood was flowing all over his arm. Mr. Valencia's evidence is that Mr. Alcaraz then started yelling "oh my god, oh my god, what have I done".

35Mr. Valencia testified that he then felt faint, and fell to the floor. He was unconscious for a period of time. When he regained consciousness, Mr. Alcaraz was sitting with Mr. Valencia's head in his lap, with some white towels or blankets that he assumed Mr. Alcaraz had gathered. Mr. Alcaraz then said "you're going to be ok. We'll call 911. We'll say it was an accident". Mr. Valencia's evidence is that at that point he believed that he was going to die, and he responded "you killed me. I'm going to tell the police". Mr. Alcaraz then got up, opened the door and left. Mr. Valencia believes that Mr. Alcaraz locked the door behind him. I note that Mr. Valencia did not tell the police about this interaction with Mr. Alcaraz that followed the stabbing during his initial police interview on the day of the incident. He only communicated this information to the police a few weeks before the preliminary inquiry, at which time he claimed that he remembered what happened after the incident during counseling sessions several months after August 2016.

36Mr. Valencia called 911 after Mr. Alcaraz left.

37As a result of the stab to his lower left arm, Mr. Valencia required surgery to repair nerve damage. In addition, the mobility in his fingers has been affected; he cannot fully open his hand and his wrist is weakened.

Photos and videos

38In addition to the viva voce evidence, with the defence's agreement, the Crown introduced a floor plan of the apartment at 77 Charles Street, and a number of photos showing the apartment after the incident and photos of Mr. Valencia's injuries.

The defence's evidence

39Mr. Alcaraz testified in his own defence. In addition, the defence's evidence consisted of a number of out of court statements made by Mr. Alcaraz admitted pursuant to my ruling on an application brought by the defence, and a toxicology report addressing Mr. Valencia's blood alcohol level following the incident.

Mr. Alcaraz's evidence

40Mr. Alcaraz is 34 years old. He was born in Argentina, and came to Canada 11 or 12 years ago. He has no family in Canada.

41Mr. Alcaraz met Mr. Valencia approximately ten years ago. They met on the street, in the Church and Wellesley area in Toronto. Mr. Alcaraz was in his early 20s when they met.

42After their initial meeting, they started dating and, soon after, Mr. Alcaraz moved in with Mr. Valencia. Mr. Alcaraz testified that, initially, they had a very close relationship, but as the relationship progressed, Mr. Valencia became increasingly jealous. For example, Mr. Alcaraz worked at The Bay when they first met, and Mr. Valencia was jealous when Mr. Alcaraz went out with a female colleague after work for coffee or to go shopping. Mr. Alcaraz also testified that Mr. Valencia would get jealous when Mr. Alcaraz said hello to friends on the street.

43With respect to the incident that ended the first relationship, Mr. Alcaraz's evidence is that he had a friend who came to visit him at the apartment during the day while Mr. Valencia was a work. They were just friends, and not in a sexual relationship. Mr. Valencia confronted Mr. Alcaraz about the relationship, but Mr. Alcaraz ended the relationship with Mr. Valencia because of the jealousy. This first relationship lasted two to three months.

44Mr. Alcaraz testified that he and Mr. Valencia later entered a second relationship, after they started communicating online. Again, after going out for dinner a few times, Mr. Alcaraz moved in with Mr. Valencia. After a while, Mr. Valencia started showing signs of jealousy. Mr. Valencia thought that Mr. Alcaraz brought other men home while he was away. Also, when they went out and ran into someone Mr. Alcaraz knew, Mr. Valencia assumed that Mr. Alcaraz had had sexual relations with that person. Again, Mr. Alcaraz ended the relationship due to Mr. Valencia's jealousy.

45Mr. Alcaraz testified that he and Mr. Valencia got together a few times between this second period of co-habitation and their relationship in 2016, but they did not live together and he did not consider that they were in a relationship at the time of those encounters.

46The 2016 relationship started after Mr. Valencia reached out to Mr. Alcaraz online, approximately three months before the August 13, 2016 incident. Mr. Valencia sent Mr. Alcaraz a message, asking how he was, after which they arranged to meet. They then started a relationship.

47Soon after, Mr. Alcaraz moved into Mr. Valencia's apartment. Mr. Alcaraz was not on the lease and he did not pay rent, although he testified that he offered to pay rent. His evidence is that Mr. Valencia insisted that he did not have to contribute to rent. Instead, Mr. Alcaraz did the shopping and cooking.

48Mr. Alcaraz testified that the "in the open relationship" was Mr. Valencia's idea. It was usually Mr. Valencia who invited men over to the apartment.

49Mr. Alcaraz testified that Mr. Valencia's jealousy resurfaced after they started living together in 2016. Mr. Valencia would get jealous if Mr. Alcaraz was on the phone or if he ran into someone he knew.

50Mr. Alcaraz also gave examples of specific incidents of jealousy.

51In one instance, after Mr. Valencia came home from work and went to the bathroom, he confronted Mr. Alcaraz about what he saw as evidence that Mr. Alcaraz had douched in preparation for sexual relations with another man. Mr. Valencia would not stop talking about this suspicion. Eventually, Mr. Alcaraz left the apartment. It took a number of hours before Mr. Valencia let him back into the apartment.

52Another time, Mr. Alcaraz told Mr. Valencia that he knew one of his friends in Mexico. Mr. Valencia then accused Mr. Alcaraz of having sex with the friend, and called the friend at 11:00 pm about his suspicions.

53Mr. Alcaraz testified that, closer to August 13th, there were two occasions when Mr. Valencia forced Mr. Alcaraz to have non-consensual anal sexual intercourse. On both occasions, the incidents occurred after friends invited by Mr. Valencia had left the apartment.

54Mr. Alcaraz testified that Mr. Valencia's jealousy was affected by alcohol. He indicated that each of the incidents he described involved circumstances when Mr. Valencia had been drinking. He expected Mr. Valencia to get angry whenever he had been drinking. He indicated that Mr. Valencia did not just drink Malibu rum, but he drank "anything".

55Mr. Alcaraz's evidence was that things were getting "unbearable" in the period before August 13, 2016. He said "anything" could lead Mr. Valencia to think that Mr. Alcaraz was cheating on him.

56Mr. Alcaraz said that he stopped seeing his friends. This is also around the time when Mr. Valencia said that he wanted to stop having an "in the open" relationship.

57Mr. Alcaraz testified that, on August 12, 2016, Mr. Valencia came home from work and started drinking. They then went shopping together, and things were fine. On the way home, Mr. Alcaraz told Mr. Valencia that he had two girlfriends that he wanted to meet at a club. Mr. Valencia agreed to this suggestion.

58They went home. Mr. Alcaraz had two beers. They then went to the club. Mr. Valencia ordered a pitcher of beer. During the evening, Mr. Alcaraz danced with his friends and went to the bathroom a few times to touch up his makeup. He denies that he went to the bathroom to take drugs. He also denies smoking any marijuana with his friends; he says that he went outside with one of his friends while she had a cigarette.

59Over the course of the night, he noticed that Mr. Valencia was separating himself from the group, looking less and less happy. Mr. Alcaraz became worried about Mr. Valencia's mood, and suggested that they leave.

60On the way home, they stopped for pizza and ate it in the neighbourhood parkette. At that point, Mr. Valencia's mood had lightened and he asked Mr. Alcaraz if he wanted to invite some people over, to which Mr. Alcaraz said no.

61When they got home, Mr. Alcaraz took his top off, after which he got into bed with his pants on. Mr. Valencia then came into the bedroom, and he asked Mr. Alcaraz why he was wearing pants in bed. Mr. Valencia kept asking Mr. Alcaraz about the pants, suggesting that Mr. Alcaraz intended to go out to meet someone. Mr. Alcaraz told Mr. Valencia to come to bed, that he was not going anywhere. But Mr. Valencia accused Mr. Alcaraz of planning to go out to meet someone to do drugs or have sex.

62Mr. Alcaraz said that he was not planning to go anywhere, that he could not believe Mr. Valencia was accusing him, and then he threatened to leave. Mr. Alcaraz's evidence is that, after he said he was leaving, Mr. Valencia's eyes got red and he moved in front of Mr. Alcaraz, and said "you're not going anywhere". He then pushed Mr. Alcaraz against the sofa. Mr. Alcaraz then got up, and Mr. Valencia pushed him again after which Mr. Alcaraz landed on the floor. Mr. Alcaraz got up, and Mr. Valencia then went for Mr. Alcaraz's throat, putting his hands around his throat.

63Mr. Alcaraz does not know how he got away from Mr. Valencia, but he was able to get into the kitchen. Mr. Valencia was right behind him in the entrance to the kitchen. Mr. Alcaraz thought Mr. Valencia was going to kill him. He grabbed a knife from a dish rack. Mr. Valencia was coming at him, and Mr. Alcaraz started swinging the knife because he thought Mr. Valencia was going to kill him. Mr. Valencia did not back off until he saw that Mr. Alcaraz had cut him with the knife.

64Once Mr. Valencia started bleeding, Mr. Alcaraz dropped the knife and ran for the door. Mr. Alcaraz then left the apartment wearing only pants and flip flops. He also had his phone and a charger in his pocket.

65Mr. Alcaraz testified that he ran downstairs, and that he was scared and crying. He did not stop to help Mr. Valencia because he was scared that Mr. Valencia would hurt him. He called 911 from the side of the building. He said that he called 911 because he was scared for his life.

Mr. Alcaraz's prior consistent statements

66During the trial, the defence brought an application to admit a number of statements made by Mr. Alcaraz immediately following the incident on August 13, 2016. As a result of the application, I admitted the two 911 calls made by Mr. Alcaraz immediately after he left the apartment as res gestae or spontaneous utterances. The two statements made by Mr. Alcaraz at the time of his arrest were admitted pursuant to the exception to the hearsay rule arising from the Court of Appeal for Ontario's decision in R. v. Edgar, 2010 ONCA 478.

67During the first 911 call, Mr. Alcaraz stated that his boyfriend was threatening him. He said that his boyfriend was "pulling" him. He said a number of times that he was scared for his life and that he grabbed a knife. After the 911 operator asked Mr. Alcaraz if he had been choked, he said that his boyfriend tried to strangle him. Initially, he said that his boyfriend was always attacking him, but then he clarified that up to then he would just threaten him verbally, but that this time he came at him physically and he was scared for his life. He said a number of times that he was scared and that his boyfriend was close by.

68During the second 911 call, Mr. Alcaraz stated that he did not know what to do, and that he had left without "everything".

69As mentioned above, at the time of his arrest, Mr. Alcaraz said to Officer Tanouye that he was defending himself and that Mr. Valencia had one hundred pounds on him.

70Immediately after his arrest, Mr. Alcaraz was placed in a police vehicle with a video camera. Soon after he was placed in the car, Mr. Alcaraz stated that he was defending himself and that he was scared of Mr. Valencia.

Toxicology report

71As mentioned above, the defence filed a toxicology report as part of Mr. Alcaraz's case. The report was prepared by Dr. Joel Mayer, an expert in toxicology, and was marked as an exhibit at trial with the Crown's consent.

72At the time Mr. Valencia was taken to the hospital following the stabbing, a sample of his blood was tested for alcohol.

73The defence provided the results to Dr. Mayer.

74In his report, Dr. Mayer estimated that, having regard to the rate of elimination by the time Mr. Valencia's blood sample was taken, his total consumption of alcohol on the evening of August 12 and the early morning of August 13, 2016, would have been 11 to 13 fluid ounces of spirits or 8 to almost 10 regular beers.

75Dr. Mayer provided the following opinion on the potential effect of this level of alcohol consumption:

Alcohol is a primary and continuous depressant of the central nervous system (CNS). The degree of alcohol-induced intoxication and impairment of behavioral, cognitive, and motor functions is correlated with the BAC. For individuals with occasional to moderate experience with alcohol, a BAC in the range of 135 - 155 mg/100 mL will produce a moderate degree of intoxication that could be associated with euphoria or other changes in mood disinhibition and increased socialization, possible cognitive impairment and poor impulse control, possibly impairment of gait and motor movements, and depression of the CNS and sedation. Greater experience with alcohol can result in the development of functional tolerance and attenuation of the intoxicating effects of alcohol.

Analysis

Fundamental principles

76Mr. Alcaraz is presumed innocent, and, before I can find him guilty of aggravated assault or assault with a weapon, I must be satisfied that the Crown has proven the charges against him beyond a reasonable doubt.

77I must assess all of the evidence before determining whether I am satisfied that Mr. Alcaraz is guilty.

78Mr. Alcaraz was not required to testify. Given that he chose to testify, in accordance with the Supreme Court of Canada's decision in R. v. W.(D.), [1991] 1 S.C.R. 742, at para. 38, the following principles apply:

a. if I believe Mr. Alcaraz's testimony that he did not commit the offences, I must find him not guilty;

b. if I do not believe Mr. Alcaraz, but I am left with a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole, I must find him not guilty; and

c. even if his evidence does not leave me with a reasonable doubt, I must still determine, based on all of the evidence I do accept, whether Mr. Alcaraz is guilty beyond a reasonable doubt.

79In assessing the witnesses' evidence, I considered the plausibility of each witness' evidence, the inconsistencies within the witnesses' evidence, and the way in which each witness' evidence fits within the other evidence given.

80In order to find Mr. Alcaraz guilty of aggravated assault under section 268(2) of the Criminal Code, I must be satisfied beyond a reasonable doubt that Mr. Alcaraz intentionally applied force to Mr. Valencia, that Mr. Valencia did not consent to the force Mr. Alcaraz intentionally applied, that Mr. Alcaraz knew that Mr. Valencia did not consent to the force, and that the force wounded, maimed, disfigured or endangered Mr. Valencia's life.

81In order to find Mr. Alcaraz guilty of assault with a weapon under section 267(a) of the Criminal Code, I must be satisfied beyond a reasonable doubt that Mr. Alcaraz intentionally applied force to Mr. Valencia, that Mr. Valencia did not consent to the force that Mr. Alcaraz intentionally applied, that Mr. Alcaraz knew that Mr. Valencia did not consent to the force that Mr. Alcaraz applied, and that a weapon was involved in Mr. Alcaraz's assault of Mr. Valencia.

82In this case, Mr. Alcaraz does not dispute that the elements of both offences are made out. However, he takes the position that he was acting in self-defence.

83Section 34 of the Criminal Code sets out the pre-conditions for a defence of self-defence:

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

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

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

(c) the act committed is reasonable in the circumstances.

84Self-defence is an affirmative defence. There must be an "air of reality" to the defence before the Court is obliged to consider it and before the Crown is obliged to prove that an accused was not acting in self-defence: R. v. Osolin, [1993] 4 S.C.R. 595, at para. 912. The threshold for finding an air of reality such that the court must consider a defence is low. The trial judge must be satisfied that there is some evidence upon which a court or a reasonable jury could find that self-defence applies. However, at this stage, the Court is not to weigh the evidence to determine the merits of the defence: R. v. Budhoo, 2015 ONCA 912 at paras. 42-49.

85If there is an air of reality to the defence of self-defence, the reasonable doubt standard applies. The Crown then bears the burden of establishing beyond a reasonable doubt that the defence of self-defence is not available in the circumstances of the case. As described by Leach J. in R. v. Kavinsky, 2017 ONSC 532 (Sup. Ct.), at para. 9, "the Crown must prove beyond a reasonable doubt that the accused does not meet all of the three cumulative and necessary conditions outlined in s.34(1) of the Code. If any one of those conditions is absent, the defence will not be available to the accused". Accordingly, if I have a reasonable doubt that self-defence applies on the facts, I must acquit.

86In this case, the Crown concedes that Mr. Alcaraz's defence of self-defence has an air of reality. I agree. Therefore, the Crown must prove beyond a reasonable doubt that Mr. Alcaraz was not acting in self-defence. In order to do so, the Crown must prove beyond a reasonable doubt that at least one of the following pre-conditions for self-defence does not apply:

a. Mr. Alcaraz had reasonable grounds to believe that force was being used or threatened against him by Mr. Valencia;

b. Mr. Alcaraz stabbed Mr. Valencia for the purpose of protecting himself from the use or threat of force by Mr. Valencia; and

c. Mr. Alcaraz's use of force was reasonable in the circumstances.

87The Crown argues that Mr. Alcaraz did not have reasonable grounds to believe that Mr. Valencia was using force or threatening him, and that he did not stab Mr. Valencia for the purpose of protecting himself. However, the Crown concedes that Mr. Alcaraz used reasonable force in the circumstances if the other elements of the defence are made out.

88Therefore, the determination of the charges against Mr. Alcaraz turns on whether the Crown has proven beyond a reasonable doubt that Mr. Alcaraz did not have reasonable grounds to believe that Mr. Valencia was using force or threatening him, or that Mr. Alcaraz stabbed Mr. Valencia to protect himself.

Assessment of credibility

89The versions of events provided by Mr. Alcaraz and Mr. Valencia differ significantly. Accordingly, the determination of whether Mr. Alcaraz was acting in self-defence depends on an assessment of credibility. As indicated above, in accordance with R. v. W.(D.), if I believe Mr. Alcaraz or if his evidence in light of all of the evidence leaves me with a reasonable doubt, I must find him not guilty. If I do not believe Mr. Alcaraz or if his evidence does not leave me with a reasonable doubt, I must nevertheless consider the evidence as a whole to determine if the Crown has proven beyond a reasonable doubt that the defence of self-defence is not available.

90A trier is not required to consider the evidence in the order set out in R. v. W.(D.), and doing so may not always be the best way to proceed: R. v. J.M., 2018 ONSC 344, at paras. 4-20. However, in this case, given that my assessment of Mr. Alcaraz's evidence may be determinative of the case, in my view it makes most sense to start with an assessment of his testimony.

91Before doing so, I want to first address the role of the witnesses' demeanour in assessing their credibility. In R. v. C.C., 2018 ONSC 1262, at paras. 61 and 62, Schreck J. of this Court discussed the general unreliability of demeanour when assessing credibility:

61 The assessment of credibility is not an easy task. People are not generally good at being able to determine who is telling the truth, and justice system professionals such as judges or police officers are not better at it than anybody else: S. Porter & L. ten Brinke, "Dangerous Decisions: A Theoretical Framework for Understanding How Judges Assess Credibility in the Courtroom" (2009) 14 Legal and Criminological Psychology 119; C.E. Bond & B.M. DePaulo, "Accuracy of Deception Judgments" (2006) 10 Personality and Social Psychology Review 214; P. Ekman & M. O'Sullivan, "What Can Catch a Liar?" (1991) 46 American Psychologist 913.

62 One particularly poor indicator of credibility is a witness's demeanour when testifying. While once relied on routinely by courts, there is now a growing body of appellate authority signalling the need for caution in considering demeanour as an indicator of credibility: R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66. Suggestions that a witness was "forthright" or that his or her evidence had "the ring of truth" are really no more than invitations to rely on demeanour. While the law permits me to consider a witness's demeanour in assessing credibility, given its unreliability I see no advantage to doing so in this case. As a result, during my assessment of the witnesses' credibility, I have assigned very little, if any weight to their demeanour while testifying.

92In this case, similarly I have given little weight to the demeanour of the witnesses in my assessment of their credibility. Rather, as indicated above, I have considered the plausibility of each witness' evidence, the inconsistencies within the witnesses' evidence, and the way in which each witness' evidence fits within the other evidence given.

Mr. Alcaraz's testimony

93I have carefully considered Mr. Alcaraz's testimony.

94There are a number of inconsistencies or improbabilities in his evidence. For example, he said that Mr. Valencia's jealousy caused him to stop seeing friends, and yet his evidence is that he suggested going to the night club on August 12, 2016, for the purpose of introducing Mr. Valencia to his friends. Similarly, he claimed to have cooked and cleaned the apartment on August 12th before Mr. Valencia came home from work, when it is evident from the photos that the apartment was in a state of disarray and it is also evident that they went out to eat after Mr. Valencia returned from work. There are a number of other similar examples.

95However, despite these weaknesses in his evidence, I find that Mr. Alcaraz's evidence about what occurred on August 13, 2016, nevertheless leaves me with a reasonable doubt as to whether Mr. Alcaraz was acting in self-defence. I make this finding having regard to the evidence as a whole, including Mr. Valencia's evidence.

96My assessment of Mr. Alcaraz's evidence is based on a number of considerations.

97First, Mr. Alcaraz described a pattern of behaviour on Mr. Valencia's part that provides an explanation for his version of what occurred. Mr. Alcaraz claims that Mr. Valencia attacked him on August 13, 2016, because he was jealous as he believed that Mr. Alcaraz intended to go out to meet other men. Mr. Alcaraz described a history of jealousy, providing some detailed examples of prior instances when Mr. Valencia was jealous.

98While Mr. Valencia denied being jealous when confronted with the suggestion during cross-examination, his evidence in fact supports Mr. Alcaraz's assertion that he was jealous. For example, Mr Valencia volunteered that the prior relationships with Mr. Alcaraz ended because Mr. Valencia was having sexual relations with other men. Mr. Valencia also stated that he was having a hard time with the "in the open relationship". In addition, Mr. Valencia gave one example of a situation when he was at a bar with Mr. Alcaraz, and Mr. Alcaraz left with another man. Mr. Alcaraz denies that he was ever unfaithful. However, the issue is not whether Mr. Alcaraz was or was not faithful, but rather whether the Crown has proven that Mr. Alcaraz was not acting in self-defence when he stabbed Mr. Valencia. Mr. Valencia's own evidence that he was bothered on repeated occasions by the prospect of Mr. Alcaraz being unfaithful supports Mr. Alcaraz's testimony that Mr. Valencia was jealous. Whether the jealousy was justified or not, it supports Mr. Alcaraz's evidence that Mr. Valencia was jealous and therefore lends credibility to Mr. Alcaraz's contention that Mr. Valencia was motivated by suspicion and jealousy on August 13, 2016.

99While the test in R. v. W.(D.) does not permit me to decide the case on the basis of whether I prefer Mr. Alcaraz's evidence over Mr. Valencia's evidence, I do note that Mr. Alcaraz's explanation for what motivated the altercation on August 13th is far more plausible than Mr. Valencia's explanation. Mr. Alcaraz described an escalating pattern of jealousy that is supported by Mr. Valencia's own evidence, whereas Mr. Valencia suggested that Mr. Alcaraz flew at him in a rage without any precipitating event or occurrence. Mr. Valencia himself admits that Mr. Alcaraz had never been violent in the past; the only explanation he provided for Mr. Alcaraz's behaviour is an unproven suggestion that Mr. Alcaraz was taking some kind of drug in the bathroom at the club. Despite this suggestion, Mr. Valencia testified that he did not notice that Mr. Alcaraz was impaired on the way home from the club.

100The second consideration that leads me to find that Mr. Alcaraz's evidence raises a reasonable doubt is his evidence that what precipitated Mr. Valencia's anger and consequent attack was the fact that Mr. Alcaraz was wearing his pants in bed. In his evidence in chief, Mr. Valencia mentioned this fact without being prompted. During cross-examination, he denied that this led him to be jealous or to attack Mr. Alcaraz. However, the fact that he remembered and voluntarily mentioned what to many people would no doubt be an unremarkable event supports Mr. Alcaraz's evidence that Mr. Valencia was set off by this incident.

101The third consideration that leads me to have reasonable doubt is that Mr. Alcaraz's version of what happened is supported by the statements he made immediately after leaving the apartment on the 911 call. During the call, he was very emotional, telling the operator that he was scared, that he feared for his life, that Mr. Valencia had threatened him and that Mr. Valencia had tried to strangle him. The Crown suggests that Mr. Alcaraz made these statements because he was trying to get ahead of Mr. Valencia by telling his own false version of events. Given that Mr. Alcaraz made the call immediately after he left the apartment and his evident emotional state, I am not satisfied that Mr. Alcaraz concocted this story. I find support for this perspective from the fact that Mr. Alcaraz did not exaggerate the history of his relationship with Mr. Valencia during the call. For example, initially, he said that Mr. Valencia had attacked him before, but then he corrected himself, saying that up to that point the threats were verbal.

102The Crown points to a couple of details in the first call to suggest that Mr. Alcaraz is not telling the truth. For example, Mr. Alcaraz used the word "pulling" several times when referring to Mr. Valencia's actions during the altercation. In addition, Mr. Alcaraz only mentioned that Mr. Valencia tried to strangle him after the operator asked whether his boyfriend had tried to choke him. While these are indeed details that do not fully support Mr. Alcaraz's version of events, they are not sufficient to lead me to completely disbelieve Mr. Alcaraz. Again, from the outset, during the call which was made minutes following the incident, Mr. Alcaraz consistently said that Mr. Valencia was jealous and that he threatened him, and that Mr. Alcaraz grabbed the knife because he was scared. Given his emotional state, his failure to get the details right is not sufficient for me to find that he was lying.

103The Crown also argues that Mr. Alcaraz's demeanour as he was leaving the building belies his evidence that he was scared. In making this argument, the Crown relies on video footage that shows Mr. Alcaraz exiting the building and walking away from the building immediately after the incident. While he is not running, he is walking quickly. In fact, as he is walking away from the building, he is focusing on his phone. We know that he called 911 almost immediately after leaving the building. Again, in my view, Mr. Alcaraz's demeanour and actions as he was leaving the building are not inconsistent with his evidence that he got out of the building quickly and called 911 because he was scared. Given his fear, it may have been more sensible for him to run and to get further away from the building, but this consideration is not sufficient for me to reject Mr. Alcaraz's evidence.

104The fourth consideration is that Mr. Alcaraz's evidence of how the stabbing occurred is consistent with the physical evidence of Mr. Valencia's injuries. Mr. Alcaraz stated that he grabbed the knife from the kitchen and brandished it in figure eight motions as Mr. Valencia was coming toward him with outstretched arms. The smaller cut to Mr. Valencia's inner arm is consistent with the knife hitting Mr. Valencia as his arm is being raised and the larger cut to the outer arm is consistent with the knife hitting Mr. Valencia once his arm is raised.

105Again, while I am not required to consider whether I prefer Mr. Alcaraz's evidence over Mr. Valencia's evidence, I note that Mr. Valencia's evidence about how Mr. Alcaraz injured him lacks an air of reality. At trial, he testified that his arms were essentially down when Mr. Alcaraz first made contact, and that he then turned around to get away when Mr. Alcaraz made the second stab wound. I note that this evidence is different from the evidence during his police statement about the position of his arms. In addition, I agree with Mr. Alcaraz's lawyer that it is improbable that Mr. Valencia turned his back on Mr. Alcaraz as he was swinging a knife.

106Before concluding my assessment of Mr. Alcaraz's evidence, I want to address another point raised by the Crown. The Crown suggests that Mr. Alcaraz lied when he said he took the knife out of the dish rack; that, instead, Mr. Alcaraz took the knife out of a drawer in the kitchen. The suggestion is that Mr. Alcaraz did not quickly grab the knife to defend himself but that he took the time to search for a knife for the purpose of attacking Mr. Valencia. Indeed, the photos from the apartment show that a drawer in the kitchen was open, and Mr. Valencia testified that this was the drawer where knives were kept. In my view, this open drawer and Mr. Valencia's evidence do not lead me to reject Mr. Alcaraz's evidence. As mentioned above, the apartment was in a general state of disarray, suggesting that the drawer could have been already open. In addition, there are no knives visible in the open drawer. Rather, what is visible are cutting boards and cloths. Mr. Valencia's explanation that knives were kept at the back of the drawer under the cutting board lacks an air of reality, especially given that the photos of the kitchen show that the dish rack was full of dishes and it is therefore plausible that the kitchen knife was readily available in the dish rack.

107Accordingly, while I do not accept all of Mr. Alcaraz's evidence, cumulatively and in combination with the other evidence at trial, it leaves me with a reasonable doubt. Based on the evidence reviewed above, I find that the Crown has not proven beyond a reasonable doubt that Mr. Alcaraz did not have a reasonable basis for believing that Mr. Valencia was trying to hurt him and I find that the Crown has not proven beyond a reasonable doubt that Mr. Alcaraz inflicted the knife wounds on Mr. Valencia for the purpose of protecting himself.

Mr. Valencia's testimony

108Given my finding that Mr. Alcaraz's evidence leaves me with a reasonable doubt, I do not need to separately assess Mr. Valencia's credibility. But, as noted throughout my assessment of Mr. Alcaraz's evidence, I had some difficulties with Mr. Valencia's evidence. There were important discrepancies between the information he provided to the police immediately after the incident and the evidence he provided at the preliminary inquiry and at trial. In addition, in a number of significant respects, his evidence lacked an air of reality. Accordingly, even if Mr. Alcaraz's own evidence had not left me with reasonable doubt, I would still have had reasonable doubt based on Mr. Valencia's evidence and the evidence as a whole.

Conclusion

109For the reasons given above, I find that the Crown has not proven beyond a reasonable doubt that Mr. Alcaraz did not act in self-defence, and, accordingly, I find him not guilty of aggravated assault and assault with a weapon.