COURT FILE NO.: 16-A12911
DATE: 2020/09/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Vincent Verin
Appellant
S. Donoghue and Lindsay Little, for the Crown
Michael Johnston, for the Appellant
HEARD: January 30, 2020
Reasons for judgment
on appeal from of the decision of justice Wadden of the Ontario court of justice at ottawa dated June 28, 2018.
MARANGER J.
[1] This is an appeal from convictions on one count of assault with a weapon and one count of assault causing bodily harm contrary to sections 267 (a) and 267(b) of the Criminal Code, R.S.C., 1985, c. C-46, registered by R. Wadden J. of the Ontario Court of Justice, on June 28, 2018.
[2] This decision was set to be released on March 16, 2020. The release date was postponed at the behest of counsel for the Appellant and with the consent of the Crown because of the Covid-19 pandemic and its specific threat to incarcerated individuals. The 6 months delay allowed for a reduction of inmate population at the Ottawa Carleton Detention Centre thus reducing the risk. The Appellant had no criminal record. The sentence of 4 months incarceration was not appealed. It was an unprecedented delay in unprecedented times.
[3] The appellant raised 4 grounds of appeal in written form. They were essentially argued as the following two grounds; 1) That the trial Judge misapprehended the evidence as it relates to the retrieval and use of a knife by the appellant in the altercation that took place on September 24, 2016, with David Liliefeldt ; and 2) That the trial judge’s verdict was unreasonable as he erred in law in his consideration and application of the defence of self-defence in regards to this altercation.
[4] It is fair to say that the trial judge’s reasons for decision are subject to the interpretation proffered by the appellant when parts are excised and examined in isolation. However, when considered as a whole and juxtaposed to the seemingly unequivocal evidence at trial, including video footage of what took place, the appeal in my view should be dismissed.
[5] The crux of the matter came down to whether the crown had disproved the application of self-defence to the facts of this case. The trial judge in my estimation analysed the facts and applied the correct test/law in his determination of the issue of self-defence. The reasons that follow form the basis of this conclusion.
The nature of the trial and evidence presented:
[6] The trial of this matter lasted 4 days. The essence of the matter concerned a fight at a wedding between the complainant, Mr. David Liliefeldt, and the appellant, Mr. Vincent Verin. Mr. Liliefeldt was stabbed by Mr. Verin. The defence of self-defence was raised and argued.
[7] The evidence consisted of the testimony of the complainant, the appellant and several eye witnesses. In this case there was also video evidence of what transpired shortly before, during and just after the altercation, as the trial judge noted “[t]here was excellent video footage from surveillance cameras recording the events from several angles. The video recording is reliable, dispassionate and accurate evidence referred to by both the Crown and defence.”
[8] The essential findings of fact resulting in the two convictions can be summarised as follows:
I. The complainant (Mr. Liliefeldt) and the appellant (Mr. Verin) were both guests at a wedding on September 24, 2016 at a banquet hall on Carling avenue in the city of Ottawa.
II. Mr. Lilifeldt, was 47 years old, stood 5 foot 8, weighed 230 pounds and was a long-time martial artist. Mr. Verin was 21 years old, 5 foot 5 weighing 150 pounds.
III. On the night in question by 7:20 pm, Mr. Liliefeldt was very intoxicated, and he approached Mr. Zenuga, a friend of Mr. Verin and the groom’s brother, to discuss an ongoing family conflict and to set him straight.
IV. Mr. Zenuga was 5 foot 5 and weighed 108 pounds. At Mr. Liliefeldt’s behest, the two men began sparring in the parking lot.
V. The sparring caught the attention of Mr. Verin and a group of young men who were outside. At one-point, Mr. Zenuga is thrown to the ground and his hands are injured. Mr. Liliefeldt wanted the sparring to continue and he was the aggressor; Mr. Verin wanted it to stop. Ultimately, the two men got into a fight.
VI. Mr. Verin got the better of him at one point knocking him to the ground. Mr. Liliefeldt was drunk Mr.Verin was not. Others who were present attempted to calm Mr. Liliefeldt down. He did for a moment but then decided to go after Mr. Verin.
VII. Mr. Verin retrieved a knife from his car. The two men approached each other. Mr. Verin held out his empty hand saying “Yo, stop”. When they reached each other, Mr. Liliefeldt kicked at the Appellant. The kick was blocked but it hit the knife, which cut the appellant who then swung the knife stabbing the complainant.
VIII. Mr. Liliefeldt still wanted to pursue the appellant after he was stabbed. He was enraged. Bystanders calmed the situation down. The complainant went to the hospital to be treated. He required eighteen stitches to treat the wound.
IX. The evidence on the whole supports the proposition that the aggressor throughout these events was the complainant.
The law of self-defence governing principles:
[9] The Criminal Code provides:
Defence — use or threat of force
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.
Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[10] The current self defence provisions were introduced by way of amendments to the code in 2013. In R. v. Bengy, 2015 ONCA 397, 335 O.A.C. 268, at paras. 28 and 29, Hourigan J.A. succinctly explains their application:
The test for self-defence was, therefore, simplified into three basic requirements, applicable to all cases:
(i) Reasonable belief (34(1)(a)): the accused must reasonably believe that force or threat of force is being used against him or someone else;
(ii) Defensive purpose (34(1)(b)): the subjective purpose for responding to the threat must be to protect oneself or others; and
(iii) Reasonable response (34(c)): the act committed must be objectively reasonable in the circumstances.
When the first two prerequisites are met, the success of the defence will hinge on the question of the reasonableness of the responsive act. To inform this inquiry, s. 34(2) provides a non-exhaustive list of relevant considerations. None are requirements. The relevance of any factor, enumerated or not, will be a matter for the trier of fact to determine.
[11] Once engaged as having an air of reality, for the defence to fail it must be disproven by the Crown beyond a reasonable doubt.
[12] The Crown is only required to prove beyond a reasonable doubt that any one of the elements of self defence is not present for the defence to be rejected: R. v. Mateo-Asencio, 2018 ONSC 173, at para. 144.
[13] In Bengy, the court dealt with the retrospectivity issue of the new amendments. In doing so Hourigan J.A. commented on some of the differences between the new sections and the old. One commentary in particular is noteworthy, as it has relevance to the decision at hand. At para. 48 Hourigan J.A. offered the following:
There are also less generous elements of the new provisions. Most significantly, they require that certain “pro-conviction” factors be considered in every claim of self-defence, such as whether other means of response were available to the accused, the nature and proportionality of the accused’s response, and the accused’s role in the incident (i.e. provocation). Such considerations were not always relevant under the old regime. For instance, the former s. 34(2) had no proportionality requirement and arguably justified excessive force if the accused was under a reasonable apprehension of death. The former provisions also did not require consideration of alternative means of response, which made it possible for self-defence to be based on “stand your ground” righteousness.
Analysis of trial judge’s decision, arguments raised by appellant, and principles applied:
[14] The appellant in this case points to the reasons of the trial judge and raises the following issues of concern:
The trial judge misapprehended or failed to consider separately the evidence relating to the acquisition, threatened use and use of the knife.
The trial judge failed to apply the tolerant approach to the reasonableness inquiry.
The trial judge failed to take account of the entire situation from the appellant’s perspective.
[15] It seems to me that the trial Judge’s decision, and the record of the evidence at trial reflected that each of the areas of concern were adequately addressed with respect to issues 1) and 3) that the trial judge misapprehended the evidence relating to the acquisition, threatened use and use of the knife and failed to take account of the entire situation from the appellant’s perspective. In his reasons the trial judge stated the following:
He [Verin] testified that he felt scared of Mr. Liliefeldt, who was persistently coming after him, yelling at him and threatening him. Mr. Verin testified that his instinct was to go to the trunk of his car to get the knife he kept there with the hope he could scare Mr. Liliefeldt away by showing him the knife. He says that once he got the knife he saw Mr. Liliefeldt storming towards him so Mr. Verin then went towards Mr. Liliefeldt held the knife up, cocked back his arm and told Mr. Liliefeldt to stop. Mr. Liliefeldt didn’t stop but kicked at the knife causing a serious cut on Mr. Verin’s arm. Mr. Verin testified that he was now of the view that Mr. Liliefeldt was unstoppable. Mr. Verin testified that he was scared of Mr. Liliefeldt he said his reaction was just to stab him.
[16] The reasons clearly show an appreciation of what Mr. Verin said concerning his perception of the situation.
[17] In his reasoning the trial judge did not accept the appellant’s description of Mr Liliefeldt as unstoppable or the threat as imminent and found that there were other means of responding available.
[18] In the s. 34 (2) reasonableness analysis, the trial judge applied his mind to factors a, b, d, e, f, and g. The analysis encompassed the appellant’s stated perception but rejected it based on evidence that in my estimation allowed for that rejection.
[19] The following excerpts from the decision demonstrate this finding:
• I find that Mr. Verin’s actions were not reasonable in the circumstances. Making this finding I apply the factors set out in section 34 (2) factor (a): the nature of the threat posed by Mr Liliefeldt was not deadly and did not merit Mr. Verin’s response with deadly force. Mr Liliefeldt was a large man, and he was angry and hard to stop. However, I do not agree that he was “unstoppable” as the phrase has been used. I note that ordinary people who have been involved with him were able to calm him down, at least temporarily, and separate him from fighting with Mr. Verin. Mr. Liliefeldt’s worst actions were after he got stabbed. That is the point he became enraged and grabbed a kitchen knife.
Up to the point of the stabbing, he was, in spite of his size in martial arts training, a very ineffective fighter. He was easily being bested by Mr. Verin and his friend. He was drunk and slow moving. He was not able to land a single blow on Mr. Verin.
• Turning to factor b: at the point that Mr. Verin went to the car and got the knife the physical threat from Mr.Liliefeldt was not imminent. There was a pause in the aggression as Mr. Liliefeldt rested against the wall. I acknowledge that Mr. Liliefeldt then immediately then immediately began to walk towards Mr. Verin, but even then Mr. Verin was a fair distance away in the parking lot.
More importantly, the risk of physical contact was not imminent until Mr. Verin left his car and walked directly and purposefully towards Mr. Liliefeldt. It was only at this point that Mr. Verin was within striking distance of Mr. Liliefeldt. In other words, only at that point Mr. Verin put himself in that situation.
• As to whether there were other means available there were other means available to respond to the potential use of force, it was clear that Mr. Verin had effectively responded to Mr. Liliefeildt’s prior aggression by avoiding his blows. Mr. Verin was a fit athletic sober young man. The video shows he was easily able to avoid Mr. Liliefeildt’s blows on the lawn, and at one point he literally danced around him like a quick box around a lumbering opponent.
There was plenty of room on the property that Mr. Verin could’ve used to keep away from Mr. Liliefeildt.
• Considering factor e the size, age gender and physical capabilities of the parties to the incident, I note that although Mr. Verin is a trained martial artist fighter, he was certainly not at his fighting peak on this night due to his extreme intoxication. The video shows that Mr. Verin was slow disoriented and off-balance. Missed… Mr.Liliefeldt at the physical advantage he was younger faster and more effective and he was sober.
• And finally, it is my finding of Mr. Verin’s response to the threat posed by Mr.Liliefeldt which was stabbing him in the parking lot at a wedding reception was disproportionate to the risk that Mr.Liliefeldt posed. Stabbing an unarmed man, no matter I agree was was surrounded by numerous other wedding guests and staff who could help Mr. Verin and, in a context, where he could have easily gotten away avoiding danger was not a justified active self defence on his behalf”
[20] With respect to the issue of the tolerant approach to the reasonableness inquiry, the principle need not be explicitly stated, and there is nothing in the trial judge’s decision and approach to the issue to suggest reversible error occurred. The appeal is therefore dismissed. As requested in the written material, the sentence order is varied to the extent that the victim fine surcharge is set aside in accordance with R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.
Justice Robert L. Maranger
Date: September 16, 2020
COURT FILE NO.: 16-A12911
DATE: 2020/09/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Vincent Verin
Appellant
REASONS FOR JUDGMENT
Maranger J.
Released: September 16, 2020