Court File and Parties

Court File No.: 0090/20JJ Date: 2020-07-27 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Deidre Martin, Defendant

Counsel: A. Cox and B. McNaughton, for the Crown M. Addie, for the Defendant

Heard: July 20, 21, 22, 23, 24 and 27, 2020

Justice S. Nakatsuru

Judgement

[1] Ms. Deidre Martin stabbed her boyfriend, Mr. Alejandro Velez, on April 21, 2019. Mr. Velez survived. Ms. Martin stands trial charged with attempted murder, aggravated assault, assault with a weapon, and weapons dangerous. Ms. Martin claims that she acted in self-defence. This is the main issue in this trial.

[2] Although this case took less than a week and the Crown and the defence have been most cooperative, I will be frank and say deciding this case has not been easy. I have given it considerable thought.

[3] Before analyzing the evidence, I will set out the legal requirements for self-defence.

The Relevant Law

[4] Section 34 of the Criminal Code sets out the requirements for self-defence. Where there exists an air of reality to self-defence, the Crown must disprove self-defence beyond a reasonable doubt.

[5] The self-defence provisions have a blend of objective and subjective components that were recently reviewed by Doherty J.A. in R. v. Khill, 2020 ONCA 151. Self-defence consists of three components that can be summarized as follows:

a. The Trigger - The accused must reasonably perceive an application or threat of force against herself or another person. On this issue, the evidence has both a subjective and objective component; the accused must subjectively perceive the application or threat of force, but that perception must be based on reasonable grounds. Put another way, it must be objectively justified. However, the objective justification is not purely objective. It incorporates relevant subjective features of the accused’s personal characteristics and experiences: Khill, at paras. 48-51.

b. The Motive - The accused must respond with a defensive purpose. In other words, what she does must be in response to the perceived threat or application of force. It must not be to seek vengeance, impose punishment or vindicate honour. This component is assessed subjectively. This is an important inquiry because absent a defensive purpose, the rationale for the defence disappears; Khill at para. 54.

c. The Response - The accused’s actions must be reasonable in the circumstances, determined in accordance with the factors set out in s. 34(2) of the Criminal Code. This portion of the assessment is objective, but it too requires consideration of the relevant personal circumstances and experiences of the person and, as such, it maintains a subjective component. Proportionality of an accused’s response is a factor to consider. However, the accused’s response is not held to a standard of perfection viewed with the benefit of hindsight; R. v. Cunha, 2016 ONCA 491 at paras. 28 and 47. In assessing the reasonableness of the response, the court must be careful to not simply reason backwards from the nature of an injury and conclude that a response was unreasonable solely because it resulted in significant injuries; see R. v. Omand, [2005] O.J. No. 5006 (Ont. S.C.J.) at paras. 25-27.

[6] On the facts of this case, the Crown must prove beyond a reasonable doubt that the answer to at least one of the following questions is “No”: see Khill at para 64-65:

1. Did Ms. Martin believe on reasonable grounds that Mr. Velez was assaulting and/or sexually assaulting her?
2. Did Ms. Martin stab Mr. Velez for the purpose of defending herself from being assaulted and/or sexually assaulted by Mr. Velez?
3. Was it reasonable in the circumstances for Ms. Martin to stab Mr. Velez?

[7] Ms. Martin testified about what happened on April 21. Ms. Addie submits that the W.D. framework should apply to her testimony. When the primary issue is self-defence, there is a modification of the W.D. analysis. This is because there is both the objective and subjective component to the defence of self defence. This modified form applies to the first two principles of W.D. As Moldaver J.A. (as he was then) in R. v. Reid, [2003] OJ No. 2822 (C.A.) outlined, the proper way I must instruct myself is the following:

1. If I accept the accused's evidence and on the basis of it, I believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term, I will find the accused not guilty.
2. Even if I do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term, I will find the accused not guilty.

[8] The third step of W.D. still must apply even if the unaccepted evidence of the accused does not raise a reasonable doubt. In other words, the Crown must prove that the accused was not acting in lawful defence beyond a reasonable doubt based upon the whole of the evidence.

[9] These principles were recently affirmed in R. v. Brown, 2020 ONCA 462.

Analysis

[10] Without dispute, the credibility/reliability of Mr. Velez and Ms. Martin are central in this case. I will first make general findings. As I apply the law of self-defence to the evidence, I will make additional and more specific findings.

General Findings of Credibility

[11] There is no question Mr. Velez was repeatedly stabbed and suffered very serious wounds. It is fortunate he lived. The wounds that he received supports his credibility. However, the wounds he suffered are also not totally inconsistent with what Ms. Martin says happened. How those serious wounds occurred is very much contested. Answering the how, greatly depends upon testimony of Mr. Velez and Ms. Martin.

[12] Let me begin with Mr. Velez. On some points, Mr. Velez was quite candid. For instance, he did not hide he had been a drug dealer. He testified in chief about the attack in a straightforward way. The attack that he described was plausible.

[13] There were also some internal inconsistencies in his evidence. He was inconsistent about when Ms. Martin was physical in the past with him. Some inconsistencies like exact dates are minor.

[14] There is one material inconsistency that was potentially more important. Mr. Velez told police that Ms. Martin pulled a knife from under a pillow. At trial Mr. Velez said looking back on it, he did not see where the knife came from. This is inconsistent. It is material to how things took place. But it can be explained by honest mistake. Especially understandable given the police statement was taken on April 22, 2019, when he was no doubt still suffering from the mental and physical aftermath of the attack. I note that on July 16, 2020 when he met with the police and the Crown and was asked if he wanted to add anything, it was here he said that he did not see where the knife came from. At this meeting, he was shown photos of the scene. Likely at the time he saw there were no pillows in the bedroom. Thus, while a concern arises that he was reconstructing this memory based on the photos, the cross examination did not pursue this further.

[15] The defence makes much about the fact Mr. Martin did not go give a sworn video statement to the police. Mr. Velez explained he did not want to as he did not want to relive the trauma of the stabbing. On the surface, this strikes me as a reasonable explanation. That said, it is unusual for a victim of a serious crime like this, not to go to a police station to give such a statement, despite numerous attempts by the police. It shows a clear reluctance. The defence submits a reluctance that springs from the fact that Mr. Velez committed a wrong against Ms. Martin the morning of April 21, 2019. For the moment, I will just say standing alone, while consistent with the defence theory, it does not undermine Mr. Velez’s credibility. It must be considered along with the rest of the evidence.

[16] On the other hand, at times during Mr. Velez’s testimony, I found he was lackadaisical with the truth; perhaps not because he was always trying to deliberately mislead; but rather he made little determined effort to recall, recall accurately or at certain points in his testimony, testify honestly.

[17] There were some points that affected his credibility adversely. Some of his responses on cross-examination about Brooke did not strike me as all that credible.

[18] There is his criminal record. In law, a record can be used in assessing credibility. It does not have to have a negative impact. But a trier of fact can use it in such a way. On February 17, 2015, Mr. Velez plead guilty to a number of offences. While his record does not contain offences of dishonesty, he was convicted of failing to abide by a court order. This offence occurred on December 10, 2013, where he had breached his curfew and had drugs when he was not supposed to. I find this conviction itself is not a significant factor on my assessment of credibility, but it has some effect.

[19] Furthermore, Mr. Velez even on his own admission, earned his living for some time as a drug dealer, which is discreditable conduct that affects his general credibility.

[20] Using common sense, supporting oneself as a drug dealer for such a long period of time, requires that person to act anti-socially without regard for legal norms and values and with deception to ply one’s trade in drugs, all the while knowing that the trade has serious corrosive consequences for addicts and communities. This should give a trier serious pause about unthinkingly trusting in the word of such a person.

[21] Of greater effect on his credibility than the mere substance of his record or his discreditable past conduct was some of Mr. Velez’s answers under cross-examination regarding that.

[22] The cross-examination of Mr. Velez on the allegations found in the synopsis for his convictions had more effect; his responses that he could not recall, that he could not contest what was written there and his denials of some of the drugs were evasive. His testimony he plead guilty without having reviewed the disclosure or knowing the allegations was not believable

[23] Moreover, Mr. Velez was significantly inconsistent about when he stopped selling drugs. He initially agreed he had been selling drugs in the summer of 2016 at the time of the incidents set out in the police occurrence reports. He then denied selling drugs in April of 2019. When asked when he stopped selling, he replied the last time he sold drugs was when he last got arrested. That occurred in 2013. Upon further questioning he then denied selling drugs in the summer of 2016. I find that this inconsistency was not merely a confusion in dates. Mr. Velez was not honest about this. His obvious motivation to lie was that he did not want to admit to continued drug dealing.

[24] Mr. Velez was cross examined about a fight outside Lee Chung bar on November 14, 2012. Mr. Velez admitted to the fight but denied ever threatening to shoot or stab the complainant as alleged in the synopsis. He further denied punching, grabbing or kicking the police officer when he was being arrested. Of course, there is no evidence contradicting what Mr. Velez did and the cross-examination on this was brief. That said, his responses and denials did not strike me as very convincing.

[25] The cross-examination of Mr. Velez about his plea of guilty to assault with intent to resist arrest negatively affected his credibility. It was his evidence that he only resisted arrest but did not assault the police. In my view, he shifted responsibility. He testified that he plead guilty to something he did not do. However, he denied lying to the court that he plead in front of. Although he testified that he did not assault the police, he agreed he told the judge he committed the assault. I do not accept that he did not understand what an assault was. He is not a young or naïve man. He was evasive under cross. If what he said before me was true that he did not assault the police, then he falsely pleaded in order to secure a plea deal and had no difficulty misleading a judge at the time. If what he testified to was not true, then his denial that he did not assault the police officer before me was deliberately dishonest. Moreover, when the facts of the alleged assault as found in the synopsis were put to him in cross, I found his testimony unconvincing. This area of cross-examination had a significant negative impact on his credibility.

[26] In sum, at this point, I will say that Mr. Velez’s evidence has not inspired me to have much confidence in all that he testified to. Put another way, I have significant credibility concerns about his testimony in general.

[27] Let me turn to Ms. Martin. Ms. Martin too was candid in her own way. Her account of what took place on April 21, is not as straightforward as Mr. Velez, but it is not inherently implausible. In brief, she stabbed Mr. Velez to defend herself from assault and sexual assault.

[28] But the cross-examination revealed a number of internal inconsistencies in her testimony; often made within minutes of each other. Some on more minor points, some on more major points. On some points, I can accept that she is a poor historian and unreliable. She is not good with dates. Especially about the past abuse. But overall, the cross-examination by Mr. Cox was effective. In submissions, the defence concedes as much.

[29] However, the defence submits that it can be explained by Ms. Martin’s Huntington disease. It is not disputed she suffers from it. Although no medical evidence was called, I do have Ms. Martin’s evidence of how it affects her cognitively and physically. She testified it is a brain disorder and affects her short-term memory. She testified in re-examination that as a result of it she does not always pay attention to questioning, she zones out at times, and she gets distracted. She is also taking medication for it, Risperidone. Aside from her testimony, I was in a position to observe her illness while she testified. It does visibly affect her movements and I believe also her cognition.

[30] Looking at this issue wholistically and realistically, I have no doubt that it is a significant illness. Even while treated with medication in custody, her physical mannerisms and gait remain affected. But it is difficult for me to determine how much it has affected her responses in cross-examination. I agree that there were times where she seemed unusually pliable and suggestible to rapid suggestions made in cross. But other times she was not. Also, she answered in a simple manner and appeared concrete in her thinking. There were times when she did appear, she was not paying close attention to the questions. The defence characterized it as zoning out. I may not describe it in the same way but at times I too felt something was going on. This was especially evident to me the second day she testified. Sometimes it was hard to understand her. There were times when she gave answers that were simply at variance at what is indisputable evidence. A good example highlighted by the defence is when in cross she eventually testified that she merely stabbed Mr. Velez once which is at variance with the actual wounds inflicted and what she said in chief.

[31] While I recognize the rational and potential merit of the defence position, as I pointed out in submissions, to attribute all the inconsistencies to her illness would make effective cross examination impossible. Moreover, it would not be right. Regardless of exactly the origin of these inconsistencies, they made accepting the reliability and/or credibility of her testimony difficult.

[32] As a counter to this, I am also struck by the fact that when she testified about the incident in chief, her account came out more coherently and rationally except for certain details like the blow that allegedly knocked her out on the bed. She testified that while asleep, Mr. Velez poured the beer on her, told her to wake up, punched her, took her clothes off, and put his hand in her vagina without her consent. She fought back and they struggled on the bed. They then stumbled onto the floor near the end of the bed. She felt around for her phone close to the outlet where she normally put it to hit him with it and she felt the knife. She was just looking for something to protect herself. She stabbed at him. She was not aiming anywhere. She was just trying to make him stop what he was doing. She did not intend to kill him. She stopped when he got off her and took the knife from her. She followed him as he made his exit and then locked the door behind him.

[33] Let me now enumerate some of the inconsistencies and implausibilities in her testimony. She testified that she was punched and knocked out by Mr. Velez. This did not strike me as accurate. The medical records do not record any injury or bruising that could have resulted from such a blow. Ms. Martin’s explanation she was still covered with mud does not ring true given how unlikely this would be in the hospital setting where she was for the length of time she was and given the number of investigations conducted on her. It may be that she was struck by Mr. Velez but not likely the kind of blow she testified to.

[34] She was inconsistent about the reason she left the Velez’s condo saying in cross that it was the Brooke incident that caused it not the domestic abuse by Mr. Velez. But she then in cross she repeated Brooke was not the only reason, but it was also the abuse. In re-examination she came back to the abuse as being the reason.

[35] She was inconsistent about how they got onto the floor in the struggle.

[36] There was the cross-examination on the one stab that lead to 6 injuries as I have noted. This is inconsistent with what she said before and the wounds the complainant suffered. I do though note that the question asked of her was one stab “up”. She was confused when asked how the one stab wound could cause that many wounds.

[37] In cross, she accepted that the stabbing took place at the foot of the bed and that after the stabbing she did not go up to the top area of the bed. When shown the blood staining and spots at that end of the bed in the photos, she could not give an explanation as to how they could have gotten there.

[38] She was inconsistent about where she got the knife and in cross agreed with a suggestion, she pulled the knife from the pocket of Mr. Velez’s pants which in my view is highly unlikely and inconsistent with what she said in chief that she found the knife in the area. In re-examination, this changed again when she testified, she did not know if the knife was in the pants but found it in the area of the clothes.

[39] Looking at this body of her cross-examination, while some of these inconsistencies could relate to memory and involve details, overall collectively, they stand as a reason why I cannot wholly accept her testimony. It is simply too inconsistent and variable. Even after taking into account her illness.

[40] Before moving on, I will deal with the Crown’s submission that Ms. Martin’s jump from the balcony is evidence that supports the Crown’s theory of the case. While logically an inference of a consciousness of guilt is available, I do not draw it and do not find this evidence probative in the circumstances. Her attempted suicide is not inconsistent with the defence theory she acted in self-defence. Unquestionably she was distressed about what happened and what she had done, even if it was in self-defence. She testified she panicked when she heard the sirens. Even on her self-defence account, she had just seriously stabbed and possibly killed someone. A man that she had conflicting feelings about, but which also included love and affection. Blood was all around her. She was intoxicated and tired. While the medical reports about her state of mind by the paramedics and at the hospital must take into account any trauma, she suffered from the fall itself, I have little doubt that they are also probative about what her mind was like before she jumped. Those records reveal a very agitated and mentally ill woman. There is then evidence she suffers from Huntington’s disease, although given the lack of medical evidence, I cannot speculate how that specifically factors into her decision to jump. When I assess the whole of the evidence, I find that her jump was simply a product of an irrational and impulsive suicidal urge that just overwhelmed her in the moment, not an act from which I can reasonably infer or connect to her level of criminal liability.

[41] With these preliminary findings, I will turn to the legal and factual analysis I must conduct in order to determine whether the Crown has disproven self-defence.

The Trigger

[42] The first thing I must decide is did Mr. Velez apply force to Ms. Martin; more specifically, did he commit an assault and/or a sexual assault against her? This depends upon the evidence of Ms. Martin. Mr. Velez denies it. He testified that after spending the evening in the bedroom, doing drugs, drinking beer, and having sex, they were arguing about him cheating and without any application or threat of force, she grabbed the hunting knife and stabbed him.

[43] There is a stark difference in their versions of what happened. The first stark difference is how the evening started.

Did they go to the laundry room or directly to her apartment?

[44] Although Mr. Velez first did not recall it, it was later agreed that it started at a bar. Then Ms. Martin invited Mr. Velez over to her place where they went by cab that she paid for.

[45] It diverges from there. Ms. Martin testified that they drank beer, did coke, and kissed, in the laundry room on the 7th floor of her building. At around day break, she allowed Mr. Velez to use the washroom, she did as well, and they then did some cocaine on the plate in her bedroom, before going back to the laundry room where she left Mr. Velez rolling a joint as she ultimately went to her bedroom to fall asleep.

[46] According to Mr. Velez, they went directly to the bedroom and stayed there. They went nowhere else. He did not even go to the washroom.

[47] Resolution of this significant difference is not simply a matter of reconstructing the proper narrative. The finding of one or the other version will have an obvious impact on credibility. It also is significant in that the circumstances in which the stabbing takes place will be impacted. On Ms. Martin’s testimony, she would be woken up by Mr. Velez committing an assault where he was an uninvited intruder. On Mr. Velez’s testimony, this was a mutually consensual late night get together in the intimacy of her bedroom that deteriorated into an unprovoked act of violence.

[48] Let me start this way. While on its surface, going to the laundry room seems odd, this evidence must be place into context of the past history of the two. When I do, it does not seem so odd. Even on Mr. Velez’s evidence, aside from bars and hotel rooms, in the recent past the two would get together in unusual places such as stairwells. Ms. Martin also confirms that they would meet in such places.

[49] In addition, both confirm that since Ms. Martin moved into her place at 90 Parma Court, she had been reluctant to ask Mr. Velez up to her apartment. Mr. Velez had dropped her off at Parma Court building but had never before gone up to her place.

[50] Ms. Martin explains that the reason for this is that she had been abused by Mr. Velez in the past, feared him, and until that evening did not want to let Mr. Velez know which unit, she lived in. She further did not trust him enough to spend the night with him in sanctity of her home. The Crown argues that this does not make sense given that she had instigated the evening together, spent a nice time at the bar with Mr. Velez, and even paid for the cross-town cab to have him over. In this submission, the Crown argues she was intending to have sexual relations with him at her place so, like Mr. Velez testified to, she just invited him in to her place and they went directly to the bedroom. In my mind, when I look at the life experiences of Ms. Martin, who she is, and her history with Mr. Velez, I do not think these prior actions by Ms. Martin as pointed to by the Crown can lead so readily to this determination as proposed by the Crown. I agree it is scenario that I think most average middle-class people living everyday lives could envision the two doing that night and, indeed, see themselves doing. But it ignores Ms. Martin’s own lived experiences and personality.

[51] The history of the relationship was canvassed with both. On both their evidence, there were ups and downs in their relationship. Looking at the whole of that evidence, I can readily conclude theirs was a volatile and rocky relationship.

[52] Ms. Martin testified that Mr. Velez had a temper and was abusive to her. She saw him in fights with others at bars and that when he drank or used drugs, he became more aggressive. This is partially confirmed by Mr. Velez’s admission to being in one bar fight that was subject to the police attending. He also has run from the police and has assaulted one officer to prevent his arrest.

[53] While Mr. Velez denied abusing or assaulting her and claimed that he had been punched by her before, I do accept Ms. Martin’s testimony about the incident in 2016 where he slammed her face into the concrete that gave her a black eye and broke her two front teeth. She also testified that he threatened to kill her and her son if she went to the police. She testified that this was one of the reasons why she moved out and went to the shelter. Again, under cross, as I previously noted, this reason for her leaving the condo was contradictory at other times in cross. Nevertheless, I conclude that Mr. Velez did assault her in this way. Ms. Martin was straightforward and candid about it. She had a good recollection of it. It made sense. It is also partially confirmed by her subsequent lengthy stay at a shelter though she kept some things with Mr. Velez. Given the credibility concerns I had with Mr. Velez, I do not accept his denials. Ms. Martin’s evidence, not his, was clear, straightforward, and had the ring of truth. The commission of this alleged assault on her was not impeached in cross.

[54] Moreover, while I appreciate Ms. Martin under cross was not always consistent about all the abuse, she suffered at Mr. Velez’s hands, I can accept that there were other incidents. It may well also be true that she has struck Mr. Velez as he testified to.

[55] Ms. Martin also testified that she was afraid of Mr. Velez. While there is conduct on her part (i.e., her continued contact and her willingness to be alone with him), pointed to by the Crown as being inconsistent with an overriding fear that should have governed all her past behavior vis-à-vis Mr. Velez, on the facts of this individual case, I accept her testimony about her fear. The conduct of a victim of domestic abuse, must be appreciated properly. It is not unusual that victims of abuse return to their abusers. This is especially so given Ms. Martin’s situation. On this point, I refer to her testimony which rang very true to me though it is tinged with considerable pathos that she continued seeing Mr. Velez because she was lonely. She had no friends and was not in contact with her near family except her teenage son.

[56] Given this history, why she did not let Mr. Velez into her apartment is understandable. Why they hung out in the laundry room of her building that night. There was not any highly articulate reason given by her about that “why” much beyond her not wanting him to be in her home. But I get that. Given her history and who Ms. Martin is, I accept this unusual narrative. It may feel odd to those who do not share Ms. Martin’s life experiences or the contradictory feelings co-existing in her about Mr. Velez. But I appreciate it. While on occasion he was violent to her, Mr. Velez was also kind. Accepting of her, her illness, and its unfortunate prognosis. I can see her wanting to be with Mr. Velez that night but not in her home, resorting to a laundry room to drink, use drugs, and socialize.

[57] I also find little reason why Ms. Martin would contrive this narrative. If she was to fabricate a story of being assaulted or sexually assaulted, it makes little sense to fabricate this out-of-the-ordinary narrative about spending the evening in the laundry room. She could easily have said it happened while they were drinking and using drugs in her room or elsewhere in the apartment. On the other hand, Mr. Velez may have wished to avoid admitting he was not allowed to spend time in her apartment to avoid the suggestion he was in any way an unwanted visitor in her home.

[58] As a part of the process of analyzing the evidence, I note there is no physical evidence to contradict Ms. Martin on this. The police never went into the laundry room. I am not being critical. There was no reason to. However, no evidence such as the finding or not finding of beer bottles or cans in the laundry room to confirm or deny her story has been presented in court.

[59] Relatedly, the photos of the bedroom do not show the beer cans that Mr. Velez said he drank in the bedroom. Only one Old Milwaukee can on a grey sweater is visible in the photos. Mr. Velez was not consistent with how many beers they drank in his statement to the police and his testimony at trial. Regardless though it was more than one.

[60] On this issue, I found one part of Mr. Velez’s cross-examination telling. Ms. Addie was questioning him about how they had directly gone to the bedroom when they first got to the apartment. Mr. Velez testified that the hallway and the bedroom was dark and there was no light. He denied anyone turned the lights on. Then Mr. Velez simply volunteered as if to explain why he did not turn on the lights that it was early in the morning, there was bright light coming in now, and the sun was basically up. But when Ms. Addie quizzically noted that this was one in the morning, Mr. Velez shifted into saying it was dark and that they took off their clothes and started drinking in the dark. What struck me both then and upon further reflection about this testimony was that this seemed like a spontaneous and truthful admission which slipped out. It did not come out under the pressure of cross or in confusion. I considered whether this was just an honest mistake, but I could not conclude it to be so. It was striking given how it was consistent with Ms. Martin’s testimony that Mr. Velez first entered the apartment, not at one in the morning, but when the sun was coming up to first use the bathroom and then again later, when the sun was even higher closer to nine a.m.

[61] Finally, despite the frailties of her testimony, on this point, Ms. Martin was not shaken. She was thoroughly crossed on this, but she maintained this was what happened. I can accept, save for the time they used the bathroom, Ms. Martin did not want Mr. Velez to be in her home. Not to cross this boundary that she set in her mind. Looking at the whole of the evidence, I accept this part of her testimony.

The knife

[62] Ms. Martin testified that this large hunting knife used in the stabbing belonged to Mr. Velez. Mr. Velez testified that he had never seen the knife and that Ms. Martin pulled it out from behind him.

[63] On the one hand, it is common sense that someone who regularly plies the drug trade may arm themselves. Mr. Velez while denying he did, recognized that it was a dangerous business. Ms. Martin testified that she knew he did and in fact the knife she used was one that she had seen Mr. Velez arm himself with.

[64] On the other hand, as Ms. Martin admitted, her building and her neighborhood was dangerous, although she later gave contradictory evidence and back-slid on that opinion. Thus, it does not surprise me that someone in her circumstances may wish to arm themselves with such a knife.

[65] Moreover, as I have said previously, her testimony about discovering the knife had implausibilities and contradictions.

[66] In trying to decide this issue, I first conclude that Mr. Velez did not stop dealing drugs as he testified to when he was last arrested. He was inconsistent in his evidence on this. His reference to how he presently supported himself with odd jobs was vague. On his own evidence he continued to have and use cocaine that night. Ms. Martin struck me as quite credible on this point when she testified that he continued to traffic in drugs up to April of 2019. Thus, I find that Mr. Velez had a reason to arm himself.

[67] Ms. Martin testified that she saw the knife in Mr. Velez’s backpack earlier at the bar. The Crown submits that the backpack is not visible in the photos in the exhibits. Ms. Martin agreed she did not see it in any of the photos and could not say where the backpack was. Mr. Velez was not asked about it. The absence of any confirmation of the existence of this backpack could be telling against Ms. Martin’s credibility on this point. Alternatively, the backpack could have been somewhere the photographer did not take a photo of. I also note that in slide 47 of Exhibit 4 there appears to be a dark cloth item underneath what was identified as Mr. Velez’s vest. This item was never identified, and I cannot speculate what it is.

[68] About the knife, whose it was, and where it came from, is not readily resolvable. It is a factual matter that is dependent upon final considerations of credibility and the determination of whether the Crown has met its onus of proof. Put another way, resolution, if possible, is best deferred until consideration of the whole of the evidence.

Other Factual Considerations

[69] There are two factual matters raised by the parties I wish to deal with before I move onto photos of the scene.

[70] The first are the wounds suffered by Mr. Velez. They are consistent with Mr. Velez’s account. In particular, the two stab wounds to the back which he felt as if they were punches. Of course, the wounds are inconsistent with Ms. Martin’s version of a single stab. Her account may not be that reliable given the heightened circumstances and her present lack of recall. However, the wounds are not necessarily inconsistent with a stabbing during a struggle on the floor in front of the bed. Such a struggle can readily involve shifting body positions which could expose Mr. Velez’s back to stabbing motions, either through the twisting of his body as he struggled with her or as he turned away to get into a different position or as he tried to get off her. On her evidence, it was a very dynamic situation at the bottom of the bed. Stabbing in self-defence can also lead to defensive wounds to the arm of the attacker. I find the wounds themselves not to be of much help to me.

[71] The second factual point was highlighted by the defence. At the end of his audiotaped police statement, when asked if there was anything else, Mr. Velez volunteered “All I know is that I am innocent. I didn’t do shit.” When it was suggested to Mr. Velez in cross-examination that at the time of the statement, he knew he had assaulted Ms. Martin who had acted in self-defence and that he was worried that she would say so to the police so that he wanted his denial out there first, he testified this suggestion was incorrect. While overall this comment to the police is a denial of any wrongdoing, I agree with the defence that in context this is an unusual thing to say to the police. One wonders why someone who was stabbed without any provocation, would make an utterance such as this. It is further consistent with the defence theory about why Mr. Velez did not go give a sworn video-taped statement. However, while this raises questions, it is far from having significant impact.

The scene evidence

[72] The scene evidence is important in my decision. This evidence comes mainly from the photos. Both Crown and defence rely on them. They are relatively good photos; clear and from different angles. They are also objective and can be a good source of circumstantial evidence to infer what might have actually happened that early morning.

[73] There is blood. In places a lot of it. I agree that by using common sense inferences and from the evidence of Mr. Velez and Ms. Martin, I can confidently say what appears to be blood (except for perhaps small spots here and there), is blood. However, in the absence of any expert blood spatter opinion evidence, interpreting the blood at the scene must be done cautiously. On the other hand, such inferences, if done carefully, still can be made by a trier of fact.

[74] This evidence is important given the significant difference between the evidence of Ms. Martin and Mr. Velez as to where and how the stabbing took place.

[75] In making this assessment, I must sensitive to the circumstances in which the event happened and how it might affect the recollections of both Ms. Martin and Mr. Velez. On either version, this was a sudden and traumatic event. It would be difficult for anyone even if testifying honestly to be able to give an accurate and internally coherent account of what happened. It would be difficult for anyone to be able to compellingly explain everything found in the scene photos. I also observe that both had been drinking, using drugs, and up all night. Finally, there is the potential effect of the passage of time on memory.

[76] Another important consideration is that after the stabbing and Mr. Velez’s exit, Ms. Martin stayed in the apartment. While in the apartment, at the very least, she got dressed and then jumped off the balcony. Thus, what she may have done in the apartment may have affected what the scene looked like at the time of stabbing. For instance, there appears to be blood on the door handle of the bathroom, the floor of the bathroom and on the handle of a brush on the bathroom floor. Given there is no evidence that Mr. Velez went into the bathroom, it is likely that the blood was left there by the actions of Ms. Martin. Thus, regardless of the testimony of Ms. Martin, it seems that she did not simply get dressed and immediately jump off the balcony.

[77] After carefully looking at the photographs and considering this evidence along with the whole of the evidence, I am left significantly troubled by it. I am not being critical of either the investigation or the prosecution, but to be blunt, expert evidence would have been helpful.

[78] That said, given the evidence and the submissions of the parties, I must do the best I can in making appropriate inferences where I can, exercising due caution so that I do not make erroneous inferences even though they may appear to be at first glance, common sense ones.

[79] When I do, I find that the blood found at the scene is inconsistent with Mr. Velez’s testimony about how the stabbing took place.

[80] There is blood in a number of areas of the bedroom, some large amounts, some appear to be small or spatter. But looking at the whole of the bedroom, I agree with the defence that the most significant amount of blood is found at the bottom of the bed area consistent with the main bloodletting event having occurred there. There is also a substantial quantity of blood leading out into the hallway from the bottom of the bed area then to the front door of the apartment, consistent with Mr. Velez bleeding badly and making his way out of the unit. Put another way, it is consistent with Mr. Velez being stabbed at the bottom of the bed area, losing a lot of blood, and then making his way directly out the apartment losing a lot of blood along the way.

[81] It is not just the amount of blood that is noteworthy. Significantly, at the bottom of the bed, there are not only droplets of blood as if falling from an open wound, there are also significant smears which I can infer the blood was moved around by something or someone. It is not a few smears but a number of them in different shapes and in different directions. Moreover, it appears that on top of a number of the smears, there are unsmeared droplets of blood, some relatively large and some smaller. From that, a natural inference can be drawn that the droplets fell on floor after the smears were made. And this is not an isolated unsmeared drop or two. There is a pattern of them as if the droplets that were left on top of the smears came from a large or steady source of blood. In addition, there is blood on the wall, the grey item of clothing on the floor, and the interior part of the bedroom door. Some are drops and some are larger areas of blood as if something or someone came into contact with it.

[82] Mr. Velez testified in cross that there was no struggling or stabbing on the floor at the bottom of the bed. All of the stabbing and struggling took place on the bed. He was adamant about this.

[83] I have considered Mr. Cox’s submission that it was Mr. Velez struggling to open the bedroom door that resulted in the blood on the door and the quantity of blood on the floor. Ms. Martin agreed that he so struggled. Although Mr. Velez did not testify directly about this, I can see this happening, especially given his arms were not completely functional and he was carrying a knife, phone, and charger. I agree that this could support why blood was on the door and in the area and can account for some of the markings, but I have great difficulty in seeing how that could cause the nature and extent of the smearing and other blood stains found on the floor at the bottom of the bed. Even a number of attempts by Mr. Velez to open the door and get out could not reasonably account for it. Just as an example, there is smearing on the floor at the left bottom corner of the bed that goes near the wall and indeed under the bed. There is also blood staining on the lower mattress raised from the floor in that area. I cannot see how Mr. Velez struggling to get out the bedroom door could have caused this.

[84] I have also carefully considered whether the smears could have been made by Ms. Martin after Mr. Velez left. By her own travels or acts within the bedroom. I have also considered whether she could have attempted to clean the blood causing the marks. Of course, there is no direct evidence of this. It was not suggested in cross-examination. Ms. Martin made no such admission. I avert to this given the presence of a towel in the area although I appreciate Ms. Martin testified unchallenged that she had left it on the floor after earlier showering; I should add that testimony is not implausible given the overall state of the abode. But careful consideration of the smearing and blood stains do not support that it was Ms. Martin who caused them after Mr. Velez exited. Especially in those instances where the undisturbed blood droplets appear on top of a smear. Put another way, the blood drops fell on top of the smeared blood meaning the smear came first. Blood from Mr. Velez could not have dropped on any smears made by an attempt to clean the blood because Mr. Velez had exited the apartment by that point. Finally, I have considered whether Ms. Martin, who was likely blood covered herself may have been the source of the blood that dropped on the smears after Mr. Velez left the bedroom. However, again given the number of blood droplets and their pattern, those drops must have come a larger and steady source of blood like an open wound of Mr. Velez.

[85] Therefore, Mr. Velez’s evidence is not consistent with the blood staining found at the bottom of the bed.

[86] On the other hand, using common sense, this scene at the bottom of the bed is consistent with Ms. Martin’s account of a struggle and stabbing in that area. It is consistent with a finding that the main bloodletting event occurred there. It is consistent with two individuals struggling there at the time Mr. Velez was being stabbed, leaving the pattern of smearing and blood. It is consistent with him still bleeding, struggling to get away from Ms. Martin and then struggling to open the door. It is consistent with Ms. Martin getting up from that area of the bedroom after the event.

[87] The defence submits that in addition to this that the blood staining on the bed is inconsistent with the stabbing having occurred there in the manner testified to by Mr. Velez.

[88] First of all, there is blood on the bed. On the duvet or bed covering. But there is blood also near the top of the bed but in a far less significant amount. One blood stain looks like it was created by contact with something or someone. Fabric or perhaps a body. It is something I cannot reasonably infer without more assistance.

[89] There are also droplets on the wall and bed at the top of the bed.

[90] Looking at this evidence and the evidence as a whole, it leads me to conclude the following. Yes, there is blood on the bed which is consistent with what Mr. Velez testified to. Also, it could well be that the duvet or cover got shifted so that some of the blood found its way to what appears to be the lower part of the duvet/cover which could have been placed more centrally on the bed if the stabbing occurred on the bed.

[91] That all being recognized, it does strike me that the blood on the bed is not in an amount that one could reasonably expect given the blood found elsewhere in the apartment, the nature of the injuries Mr. Velez suffered, and the significant amount of blood Mr. Velez said he saw as soon as the stabbing took place.

[92] On the other hand, the existence of the blood on the top portion of the bed and bed area is contrary to Ms. Martin’s testimony under cross that she did not go beyond around the middle of the bed. She cannot explain how those stains, however less they may be, got there.

[93] There are other potential explanations for how the blood got to this area other than a stabbing testified to by Mr. Velez: some could have been caused by blood being cast off either by Mr. Velez or Ms. Martin during or after the stabbing on the floor at the bottom of the bed; Mr. Velez said he took his phone upon exiting. According to Mr. Velez, his phone was on the bed near where his jeans were, and blood could have been left there when he retrieved it; Ms. Martin could have been the source due to her actions after Mr. Velez left. While she denies it, there is evidence that suggests she is not recalling accurately. For example, there are visible blood footprints around the bedroom in that area of the bedroom that could be attributed to her. On these possibilities, I cannot speculate. The possibility of Ms. Martin causing these blood marks does not arise directly from the evidence beyond what I have remarked on.

[94] The Crown pointed out that one of the larger marks on the sheet near the center of the bed looks like a hand or arm imprint. Mr. Cox argues that it could have been left by Mr. Velez as he got off the bed. Shape wise, that could be so. However, there are limits to common sense inferences I can make from the blood staining. It certainly does look like blood was transferred there by contact with another object. But to conclude that it was transferred there by skin, fabric, or something else, in the absence of expert evidence, is going beyond my common-sense capabilities. Indeed, making inferences like that could be very erroneous.

[95] Detective Constable Albrecht testified that he looked under the duvet/ cover but due to an oversight, he took no photo of what was underneath. He did not testify about what he observed in terms of blood on the sheet underneath. He agreed there was no evidence of the amount of blood under the duvet/cover. In my view, that kind of evidence would have been useful. Had there been greater blood found on the sheets under the duvet/cover this would have been confirmative of Mr. Velez’s evidence. If there was no blood, it may be contrary to his evidence.

[96] The Crown submits that I can conclude given a frenzy of stabbing on the bed and the short time spent on the bed by Mr. Velez and Ms. Martin that the amount of blood found on that portion of the bed is not inconsistent with Mr. Velez’s account. I am not so certain. Given the areas of the bodies that were stabbed, the serious injuries sustained including cuts to some blood arteries in the neck, and the large amount of blood found elsewhere, I would reasonably expect more blood be found in the area that Mr. Velez said he was stabbed, even if he had not remained there on the bed for long. Mr. Velez himself described a significant amount of blood he saw when he was being stabbed especially after he was stabbed in the neck. The Crown could be right, but the whole of the evidence points away from that being the reason for the blood pattern that exists in the area of the bed that Mr. Velez said he was stabbed.

[97] In addition, there is another area of the bedroom where the nature and quantity of blood-staining is important. Mr. Velez testified that after he was stabbed, he pushed Ms. Martin onto the floor with her back against the dresser. He then went over to her and took the knife away from her while she was on the floor. I have looked at the area by the dresser where this is said to have happened. There is some blood and blood droplets, but it is not at all a significant amount. There are no significant smears or droplets like that which is found at the bottom of the bed, into the hallway of the apartment and then out into common hallway. If Mr. Velez’s evidence is to be believed, he had received all his wounds and was bleeding significantly by the time he went to Ms. Martin to get the knife. Ms. Martin also would have had some blood on her as testified to by Mr. Velez as she was sitting on the floor in front of the dresser. Again, while nothing is impossible, this scenario seems highly unlikely given the blood evidence found in that location. That scene is more consistent with Ms. Martin’s evidence that while they may have gone to that area in front of the dresser while the two struggled, no bloodletting took place in front of the dresser. What blood staining that appears in the area could have been left there after the stabbing took place at the bottom of the bed and Mr. Velez had exited. For instance, by Ms. Martin tracking the blood there with her feet.

[98] Taking all of this evidence into account, assessing it carefully and the best that I can, I find that the scene evidence does not support Mr. Velez’s account. However, it does support Ms. Martin’s.

Conclusion on the Trigger

[99] I have looked at the whole of the evidence. I conclude that the Crown has not proven beyond a reasonable doubt that Mr. Velez did not assault and sexually assault Ms. Martin. I have that reasonable doubt based upon: 1. The credibility concerns about Mr. Velez’s testimony 2. The scene evidence which is inconsistent with Mr. Velez’s description of the attack and more consistent with Ms. Martin’s, 3. The unaccepted evidence of Ms. Martin’s description of what took place where although I cannot fully accept it, there are material parts of it that are reasonably true. I also observe that while there are numerous frailties in her evidence, her testimony of being so assaulted and acting in self defence was not impeached in a fundamental way. As the defence puts it, the central elements that she was sexually assaulted and acted in self-defence remained intact.

[100] Thus, I am not certain that Ms. Martin was not initially attacked by Mr. Velez in the manner that she has described in her testimony.

[101] I am mindful that I need not accept everything Ms. Martin has testified to. That said, given the whole of the evidence, the scenario where she was attacked is one that the Crown has failed to disprove. Ms. Martin may well not have the exact details correct, may be exaggerating the blow she received and its effects, but the essential scenario is one that the evidence as a whole including the scene evidence supports. That she was woken up by Mr. Velez, likely by beer poured on her, he digitally penetrated her without her consent, and a struggle ensued whereby Mr. Velez was stabbed at the bottom area of the bed.

[102] Put another way in the words of s. 34(1)(a), the Crown has not proven beyond a reasonable doubt that Ms. Martin did not believe on reasonable grounds that force was being used against her. Thus, both the subjective and objective portions of this part of the legal test for self-defence have been met.

The Motive

[103] The next question is why did then Ms. Martin stab Mr. Velez. Absent a defensive or protective purpose, she cannot avail herself of the defence. This is a subjective inquiry.

[104] The Crown has relied on the scenario of events that Mr. Velez testified to. In particular, that Ms. Martin, however the stabbing took place, did so out of anger and jealousy and not for her own protection.

[105] At the end of July and August 31, 2016, both parties admit there were arguments about Mr. Velez’s alleged infidelity with Brooke, Ms. Martin’s best friend at the time. Without question under cross, Ms. Martin agreed this alleged infidelity with Brooke pre-occupied her beyond that point in time. She agreed it continued to April of 2019. However, she denied it was in her mind when she stabbed Mr. Velez. While Mr. Velez testified about her utterances at the time of the stabbing that could support this jealous motive for the stabbing, I am not certain that she made them given my conclusion about what had transpired in the bedroom that night. Moreover, I am mindful that this event with Brooke was over three years old by then and on both their evidence, they had seen each on a number of occasions since then without incident.

[106] In my view, the Crown has not proven beyond a reasonable doubt that the stabbing was not for self-defence. Ms. Martin denied she stabbed Mr. Velez out of jealousy or anger due to any view he was cheating. She testified she believed she was in physical danger when she stabbed him, and she did so in order to stop the ongoing assault. Given that she had been assaulted and sexually assaulted by him, and that in the moments of the stabbing she was still physically engaged with Mr. Velez, it is reasonable to infer that she would have stabbed in order to prevent any further harm to her and any further violation of her personal security of the person and physical integrity.

[107] Put another way, it is consistent with being assaulted and sexually assaulted that Ms. Martin would pick up a knife and do the stabbing to defend herself. It is noteworthy that the struggle between the two was continuing at the end of the bed. As I have concluded, the blood smearing is consistent with that. I cannot be certain that the Crown has shown that she acted for any other motive than the one she testified to.

[108] Thus, I find that the Crown has not proven beyond a reasonable doubt that Ms. Martin did not stab Mr. Velez in order to protect herself from being assaulted or sexually assaulted by him.

The Response

[109] Section 34(1)(c) requires that Ms. Martin’s act of stabbing Mr. Velez to be reasonable in the circumstances. The relevant circumstances in making this determination include those factors specifically set out in s. 34(2). In determining this, the principles found in W.D. also applies. It applies with respect to the subjective component of this determination. However, the requirement must be objectively assessed although it is modified by explicitly taking into account some of the characteristics and experiences of the accused.

[110] Even on the factual findings that favour Ms. Martin, this component of self-defence is the one that causes me the greatest concern,

[111] In terms of the force used, I have concluded based upon the whole of the evidence that reasonable doubt should be afforded to the factual issue of whether the Crown has disproven the assault and sexual assault. Thus, the type of sexual assault perpetrated on Ms. Martin was a serious violation of her physical integrity. Mr. Velez was an unwanted surprise visitor to her apartment. The pain was bad when he put his hand in her vagina. While there were some further assaults the extent to which I cannot make certain findings, I am satisfied that the physical assaults continued at the bottom of the bed area were sustained. Despite resistance by Ms. Martin, they continued. Mr. Velez wanted to continue the sexual assault. They were both naked. In addition, the whole of the struggle must be contextualized. This was not a bar fight. This was a struggle whereby the force was applied in a context involving gender/domestic/sexual violence. Moreover, this was not a brief application of force or one that readily could be repulsed. Thus, some significant response was reasonable to stop him and to get him off her.

[112] The force used by Mr. Velez was imminent and ongoing. It continued and showed no sign of stopping. It was happening very quickly. Given the close proximity of the parties to each other, there does not appear to be an obvious alternative means to respond to the force except by force. The only other one would be the continuation of the struggle with the hope that she could break free. This would have entailed some risk to her.

[113] Based on these facts, Ms. Martin did not do anything to instigate or provoke the use of force upon her. The application of force on her was not consensual and there is no air of reality to any suggestion there was a mistaken belief in consent. I have looked at Ms. Martin’s conduct throughout the event and it has little consequence on the reasonableness of her actions.

[114] It is the use of the large hunting knife and the extent of the force she used that causes me the greatest difficulty and one that supports the Crown position that her response was not reasonable in the circumstances. The extent of the force used was significant. This is what makes the response potentially excessive or more than necessary. The wounds Mr. Velez received were serious and life-threatening; they were to vulnerable parts of his body including his neck. However, I accept that the stabs were delivered in quick succession; perhaps in a frenzy. At most there would have been six stabbing motions; even less if one stabbing motion caused more than one wound such as a single stab causing both injury to a part of the left arm and at the same time to the neck. I accept Ms. Martin’s testimony that she did not specifically aim for his neck or indeed aim her stabs. I accept she did not intend to kill him. She was unimpeached on these assertions and the circumstances support it. The grabbing of the knife was opportune. While more than one wound was caused by her actions, they are not in a number that would obliterate any acceptance of the position that her response was reasonable. As the authorities show, I cannot simply reason backwards from the gravity of the injuries to conclude that the force was unreasonable. That said, I realize this is a significant factor.

[115] Moving on to the next factor. Mr. Velez testified that he was 5 feet 9 inches and 150 pounds at the time and that Ms. Martin was 5 ft 6 inches and 140 pounds. Mr. Velez is 41 years old. Ms. Martin is 43 years old. While there are no great discrepancies, the fact remains that Mr. Velez is male, younger, taller and bigger. More importantly, as far as I know, he was at the time fit and without any health issues. Ms. Martin suffers from impairing physical symptoms of her illness including involuntary movements and an impaired gait such that she is prone to falling. In this situation, she would no doubt feel and indeed be more vulnerable to any attack upon her. Her resort to a weapon must be seen in this context.

[116] The nature, duration, and history of their relationship as well as the history of interactions or communications are factors. I have outlined my findings about this earlier. While I do not find the evidence establishes extreme or continuous domestic violence suffered by Ms. Martin, her fear of Mr. Velez was real and based on reasonable grounds given this history of volatility and violence. Placed in the context of the events of April 21, 2019, this history is a factor that supports the reasonableness of her actions. When she was attacked it is reasonable that she did not try to reason with Mr. Velez or look for other ways to extricate herself and instead resorted to a weapon that was nearby to stop him.

[117] The final relevant consideration is the nature and proportionality of Ms. Martin’s response to the use of force against her. Again, she committed serious violent acts against Mr. Velez. As I said, I have a concern whether this was proportional. I appreciate the Crown submission that she would not have stopped if Mr. Velez did not take the knife from her. That said, once taken from her, she did not try to attempt to get it back despite Mr. Velez’s obviously wounded state. She did not continue her assault on him as he struggled to get out of the bedroom. While she followed him, she did not continue out into the hallway but locked the door after him.

[118] Looking at the whole of the evidence, while this final component of self-defence causes me deep concern, I must be certain that after objectively balancing all of the factors that the force used was not reasonable in the circumstances. When I do, I cannot say that I am so certain. Ms. Martin was a vulnerable smaller woman with a serious illness that affected her at the time, who had suffered some domestic violence in the past from her attacker, who was surprised by a violent assault and sexual assault by her domestic partner in the sanctity of her home, who she had reason to fear him especially when he drank or used drugs like he did on the night in question. She responded with several stabs which although were committed most forcefully and resulted in very serious wounds, were committed spontaneously and quickly. The law does not demand a person who acts in self-defence to measure the force they use to defend themselves with exacting precision.

[119] Given the onus on the Crown, the factors that must be balanced, and the strict standard of proof beyond a reasonable doubt, I conclude that the Crown has not met this proof.

[120] As a result, the acts committed by Ms. Martin are not culpable pursuant to s. 34 of the Criminal Code. Ms. Martin is found not guilty of attempt murder, aggravated assault, and assault with a weapon.

[121] This leaves the offence of possession of a weapon for a purpose dangerous to the public peace. The Crown must prove that possession of the knife at the moment just before its use was for this prohibited purpose. Here it was for self-defence. While that subjective purpose is only a factor to consider, I find in the circumstances, consistent with my conclusions on self-defence itself that the Crown has failed to prove this essential element beyond a reasonable doubt: see R. v. Proverbs, (1983) 9 C.C.C. (3d) 24 (SCC). She is found not guilty of this offence as well.

[122] The charges are therefore dismissed.

Justice S. Nakatsuru Released: July 27, 2020