A. OVERVIEW

[1] In the Beaches neighborhood of Toronto, the Jazz Festival is an annual event. Thursdays are considered “locals’ night” for the neighborhood residents, leaving the weekend for others to enjoy.

[2] On Thursday, July 25, 2019, Dylan Cann, a general contractor living in the Beaches, was strolling Queen Street East with three friends holding a young puppy he was fostering. They were enjoying the music played by various bands in the closed-off street.

[3] The accused, Michael Jobe, a 19-year-old teenager, was with his friends at the corner of Hammersmith Avenue and Queen Street. This corner, in front of a convenience store, is where teenagers are known to hang out during the Jazz Festival. There, Mr. Cann and Mr. Jobe met by happenstance. They did not know each other. Both being dog lovers, they talked briefly about the puppy.

[4] Then, something happened.

[5] Within a very short time after meeting, Mr. Cann ran away to seek help, bleeding from wounds to his stomach. Mr. Jobe had stabbed him.

[6] Mr. Jobe now stands before me charged with attempt murder and aggravated assault. The single issue at this trial is self-defence.

[7] In deciding this issue, I will first make my findings of fact. Then I will apply the law of self-defence to those facts.

B. THE EVIDENCE

[8] The Crown called Mr. Cann and two of his friends, Landon Juul and Amanda Bortolan, who are a married couple, to give direct evidence about what happened. Also, the Crown presented photographs, medical evidence, and a video-taped statement given by Mr. Jobe to the police on July 30, 2019, after his arrest.

[9] Mr. Jobe testified in his own defence. His friend, Christopher Purvis, who was with Mr. Jobe at the festival that evening, also gave evidence.

[10] Like in most trials, the witnesses’ credibility and reliability are central to my fact-finding.

[11] Before I begin, I will state the obvious. The actual stabbing incident happened very fast and unexpectedly. It was a traumatic event. It took place over two years ago. Given these circumstances, inconsistencies in the evidence are to be expected. Not every inconsistency is significant. Even the most honest of witnesses can get it wrong. I must consider the whole of the evidence. I can accept all, some, or none of any witness’s evidence.

1. The Crown Evidence

[12] Dylan Cann is 29 years old. He met up with Mr. Juul and Ms. Bortolan at their place overlooking the lake, had dinner, and went up to Queen Street to enjoy the Jazz Festival. Up at the firehall, they met with their friend, David Moore, a firefighter. Together, they walked eastward enjoying the social atmosphere and the music played by bands. Mr. Cann had an eight-week-old puppy that he was fostering. Most of the time during their walk, he carried it in his arms.

[13] According to Mr. Cann, at the intersection where the Mac’s Milk store was, he was stopped by a young woman who wanted to pet the puppy. Ms. Bortolan and Mr. Moore were walking ahead a few feet. Mr. Juul was with Mr. Cann, hanging a bit back. As the woman petted the dog, Mr. Jobe came up to them. Mr. Cann did not know him, though he later came to understand that Mr. Jobe worked as a barista at the Starbucks where Mr. Cann bought his coffee. Mr. Cann testified that Mr. Jobe told him that his dog was way too “fucking young” to be at a street festival because it was too loud. Mr. Cann’s comment back was, “Are you a vet?” Mr Cann testified that Mr. Jobe replied, “Yeah, I am a fucking vet.” Mr. Cann said, “Cool, mind your own business.” Their voices were raised. Mr. Cann had the dog in his arms at the time. He then turned to go with his friends as he felt the conversation was pointless.

[14] Mr. Jobe got in front of Mr. Cann. Without any provocation, it felt like Mr. Jobe punched him in the chest. In fact, Mr. Jobe had stabbed him, although Mr. Cann saw no knife. Mr. Cann was pretty sure he was stabbed four times as he felt something make contact with his chest four times. It all happened very quickly, within 10 seconds. Mr. Cann testified he made no threats or physical gestures and threw no strikes at Mr. Jobe. There was no fight. He just got knifed. Mr. Cann realized he was bleeding and said to Mr. Jobe that he had stabbed him. Mr. Jobe said nothing and just smiled. At this point, Mr. Cann grabbed the dog and gave it to Mr. Juul. He then ran west to get help. He found it at a fire truck parked on the street. The police and an ambulance soon came. He was taken to St. Michael’s Hospital-Unity Health Toronto.

[15] Focusing on the physical interaction between Mr. Cann and Mr. Jobe, I do not accept Mr. Cann’s testimony. I find he was neither credible nor reliable about significant parts of it. Here are my reasons why.

[16] To begin, Mr. Cann was not a very good witness. Mr. Cann was at times combative, aggressive, and unresponsive in his answers. But demeanour is not the touchstone to determine credibility. It was the substance of his evidence and its conflict with the evidence of other witnesses that mattered more.

[17] Let me start with a small point. The defence cross-examined Mr. Cann on past incidents to show that he has been violent before. Mr. Cann denied most of the suggestions the defence put to him. Some he admitted. He had punched a friend while on vacation and had given him a black eye. There also was a road rage incident where he had chased down and damaged a car that cut him off. Overall, though relevant, I do not give this evidence that much weight. They do not show a consistent pattern of past conduct for violence.

[18] Mr. Cann also has a minor criminal record, one past conviction for failing to comply with a recognizance. This has little effect on his credibility. While he did not abide by a court order, it is a single conviction and the underlying facts of the conviction do not reveal significant dishonesty.

[19] That said, two areas of cross-examination on his past criminal conduct had greater effect.

[20] First, when he was questioned about the underlying charge that led to his failing to comply conviction (a weapons charge), his initial answers that he could not recall that charge, despite spending four days in pre-trial custody, were evasive.

[21] Second, he was subsequently questioned about current outstanding charges that he is facing including a charge of sexual interference. Mr. Cann was asked about an outstanding charge of assault with a weapon. Mr. Cann denied he was ever charged with an assault with a weapon offence. Indeed, he firmly denied it. He was then impeached on his preliminary inquiry evidence where he admitted that he was charged with this offence. I reject his explanation that he denied being charged with the offence because it did not ultimately lead to a conviction. He was not confused about the question.

[22] These areas of cross-examination diminished his overall credibility.

[23] Moving on, I find Mr. Cann’s description of the unprovoked attack on him somewhat implausible. I recognize that inexplicable violent acts are committed by random strangers, without any real provocation. However, in this instance, according to Mr. Cann, a very brief discussion took place in a crowded public place about whether it was appropriate to bring a young dog to a crowded music festival. Mr. Cann simply telling Mr. Jobe to mind his business is said to have enraged Mr. Jobe enough to stab Mr. Cann multiple times with a knife. Such a reaction is extreme; so much so that it does not easily accord with common sense.

[24] The defence points to several inconsistencies in Mr. Cann’s testimony.

[25] Mr. Cann was taken to some inconsistencies and omissions in his statement to the police taken at the hospital. These were minor. They can be explained by his physical and mental state at the time as well as by the passage of time. For instance, Mr. Cann’s memory of his conversation with the accused would have been better at the time of the police statement. Understandably, he has been inconsistent about the specifics of the conversation. Another example is whether Mr. Cann could tell the accused was intoxicated or not. These inconsistencies are not the result of dishonesty, though they might affect the accuracy of Mr. Cann’s evidence.

[26] But there are more significant inconsistencies.

[27] Mr. Cann said he was never shoved by Mr. Jobe before he put the dog down. But in his police statement, he said he was. He was not able to explain the inconsistency. Further, at the preliminary inquiry, he said he was shoved. He eventually adopted that he was shoved by the accused when he had the dog in his arms.

[28] Another inconsistency stems from dishonesty and is material to the charges. It relates to Mr. Cann’s varying accounts of when he was holding his dog during the interaction between him and Mr. Jobe. It significantly affects the weight I can give Mr. Cann’s testimony about what happened between him and the accused.

[29] In his police statement, Mr. Cann said he had put the dog down after he had the conversation with Mr. Jobe. He told the police that he did that because he did not want the dog to get hurt. After he had put the dog down, Mr. Jobe came at him and stabbed him.

[30] Then, at the preliminary inquiry, Mr. Cann testified that he passed the dog over to Mr. Juul only after he was stabbed.

[31] Finally, at trial, Mr. Cann testified in chief that when the woman came up to pet his dog, he had the dog in his arms. Then he testified that after he was stabbed, he grabbed the dog off the ground and put it in Mr. Juul’s hands before he ran off for help. He was asked whether he made any threats, physical gestures, or attempts to strike Mr. Jobe during his interaction with Mr. Jobe. Mr. Cann replied that it was too difficult for him to do that as he had a 20-pound dog in his arms. He graphically demonstrated how he held the puppy as if he was cradling it like a baby.

[32] This all unraveled in cross-examination. When it was again suggested to him that he was holding the puppy when he was stabbed, Mr. Cann testified he had already put the puppy on the ground before being stabbed. Indeed, he testified that even before Mr. Jobe came up to him, Mr. Cann had put the puppy on the ground so that the woman could pet it. He was adamant about this, failing to recognize that it contradicted his evidence in chief. He denied the suggestion the puppy was in his arms the entire time. He repeatedly testified that he picked up the puppy only after he was stabbed to take the puppy to his friend. During the cross-examination in this area, Mr. Cann was argumentative.

[33] Defence counsel suggested to Mr. Cann that he had given the puppy to Mr. Juul before he was stabbed so that he could “clobber” Mr. Jobe. Mr. Cann denied this, since he only handed the puppy over after he was stabbed, when he was in no physical state to “clobber” anyone. When confronted with his statement to police, in which he had suggested he had put the dog down before the stabbing, he tried to explain the inconsistency by saying that he had just worded the statement wrong.

[34] I appreciate that in chief Mr. Cann also testified that he had grabbed the dog off the ground before going to his friend. There is consistency there. But what was inconsistent was his having the dog in his arms in his encounter with the accused. Overall, Mr. Cann’s varying accounts of this issue in his police statement, at the preliminary inquiry, and at trial diminish his credibility.

[35] Another instance of inconsistency is regarding the timing of when Mr. Cann called to Mr. Juul. After being confronted with the police statement and his testimony at the preliminary inquiry, Mr. Cann eventually agreed that he called Mr. Juul to get the dog before he got stabbed, as opposed to taking the dog to Mr. Juul after he got stabbed. It took some time to get to this point, but he admitted that was what happened.

[36] In addition, based on Mr. Cann’s own description of the encounter, there does not seem to be any reason for him to hand the puppy off to his friend before the attack. According to him, he was turning away from Mr. Jobe trying to leave the unpleasant verbal encounter. Why would he at that moment in time want to hand off the puppy to his friend? Given that there is no ready explanation as to why he would, this may have been the reason why Mr. Cann tried to say it was only after he was stabbed that he handed the dog to his friend. That would make sense if he was running off to seek help for himself. Handing the dog off to Mr. Juul before the stabbing is more consistent with the defence theory that he wanted to unencumber himself of the puppy in order to fight Mr. Jobe.

[37] After considering the entirety of his testimony, I was left wondering whether Mr. Cann was just a poor historian or whether there was more to it; that is, the inconsistencies originated from the fact that he was having trouble keeping the false parts of his story together and wanted to prevent the whole truth from surfacing. Mr. Cann said more than once that defence counsel was trying to confuse him. However, I find that defence counsel was fair in his questions. I also appreciate that this was a traumatic event, both at the time and likely still as an ongoing emotional issue for Mr. Cann. This could affect his recollection. However, given the substance of his answers and the way he answered the questions, I find Mr. Cann was deliberately misleading.

[38] This leads me to the evidence of Landon Juul. His evidence supported the above finding.

[39] Landon Juul is Mr. Cann’s friend. There was a natural tendency on his part to support his friend. Because of that tendency or due to a fading of his memory, initially, Mr. Juul was not all that detailed in what he saw of the encounter between Mr. Cann and Mr. Jobe. However, by the end of cross-examination, he adopted what he told the police and what he said at the preliminary inquiry.

[40] Mr. Juul’s testimony contradicts Mr. Cann in very significant ways. Mr. Juul testified that as the group went east on Queen Street, his wife and Mr. Moore were ahead of Mr. Juul and Mr. Cann. Mr. Cann was behind Mr. Juul at the corner where the Mac’s Milk store was. At that corner, there was a group of teenagers. Mr. Juul’s attention was brought to Mr. Cann, who was upset. He yelled to Mr. Juul to take the dog. Mr. Cann did not appear injured at that time. He handed the dog to Mr. Juul at chest level, holding the dog with both hands. Mr. Juul then saw Mr. Cann head back to the group of teenagers. Mr. Juul saw Mr. Cann take an overhead swing with his right closed fist — what he described as a “haymaker”— at someone. Mr. Cann looked angry. Mr. Juul did not see where the punch landed. He further did not see anyone take a swing at Mr. Cann. Mr. Juul then turned to call out for his wife as he wanted her to take the dog so that he could go help his friend. Within seconds, he heard Mr. Cann say he was stabbed. Mr. Juul turned back to his friend and saw him bleeding and holding his abdomen.

[41] I accept Mr. Juul’s testimony. He was candid and accurate. There is no motive for him to lie about this. His testimony makes sense and it is not something he could be mistaken about. He saw what he saw.

[42] When I compare his testimony to Mr. Cann’s, there are significant contradictions. Mr. Juul did not see any injury on Mr. Cann when he took the dog from him. Given the nature of the injury caused by the stab wounds, if Mr. Cann had been stabbed by that point, Mr. Juul would have seen some blood. Also, it would be highly unlikely that Mr. Cann could hand the dog over the way he did if he was injured in the stomach. Moreover, based on Mr. Juul’s testimony, Mr. Cann’s emotional state was of someone who was ready to fight and not someone who had just been stabbed.

[43] A more significant contradiction is the punch delivered by Mr. Cann. I find that Mr. Cann threw the first punch; the “haymaker,” as Mr. Juul described it in re-examination. Given how close Mr. Juul was and that his attention was on his friend, he could not be mistaken about this. This contradicts Mr. Cann’s version of what happened, a version that I already find implausible on its face.

[44] Ms. Bortolan, also testified for the Crown. Ms. Bortolan’ s testimony was that she and Mr. Moore were walking ahead of Mr. Juul and Mr. Cann. Mr. Juul called out to her, “Amanda. Amanda. Take the dog. Take the dog.” He ran to her and gave her Mr. Cann’s puppy. As he turned to head back, Mr. Juul said that Mr. Cann was in a fight. Ms. Bortolan saw Mr. Cann, but he was more in the roadway. There was a circle of people around him. As Mr. Juul headed to Mr. Cann, he again turned back and told Ms. Bortolan that Mr. Cann had been stabbed. She saw Mr. Cann’s arms go up and then down around his stomach. He then ran away from the scene. It all happened very fast.

[45] Ms. Bortolan saw no physical confrontation. She did not see any stabbing. After it happened, she got a glimpse of the person who she believed had done the stabbing, with his arms down by his side, not doing anything or holding anything.

[46] In assessing Ms. Bortolan’s testimony, there are a couple of matters I must highlight. First, I do not accept her identification in court of Mr. Jobe as the man who attacked Mr. Cann. She only saw him for a few seconds, the description she made of him to the police was scant, a significant amount of time has passed since the incident, and Mr. Jobe was wearing a mask in court. Despite those things, Ms. Bortolan did not hesitate in making an “in-dock” identification of the accused. In my view, this act shows the depth of her loyalty to her friend, Mr. Cann. Second, given that Ms. Bortolan previously discussed this matter with her husband and Mr. Cann, it is possible that her recollection is tainted. That said, given that the three witnesses do contradict each other, this is not a significant factor.

[47] I also appreciate that her initial statement to the police officer at the scene was cursory and just a summary of what had happened. Her next audio statement, which was taken when she came to court to testify at the preliminary inquiry, is much more detailed. I do not see anything nefarious about this. Clearly, the police officer did not write down everything Ms. Bortolan told her. Moreover, at the scene, Ms. Bortolan was upset. Nonetheless, I am mindful of the possibility that she may have unconsciously filled in details received from other sources given how her additional disclosure came about.

[48] Lastly, in the police statement that she signed, the officer noted down that Ms. Bortolan had said a fight had broken out and that Mr. Cann “went at the kid”. When her entire police statement was read to her, Ms. Bortolan agreed that she had said that to the police. She later agreed in cross-examination that the statement contained that phrase. Nevertheless, immediately afterwards, Ms. Bortolan refused to adopt what she had said in her statement and testified that she did not recall saying that to the officer. Given her testimony, I accept that Ms. Bortolan told the police that Mr. Cann “went at the kid.” I further find her in-court testimony at odds with her police statement. It has impacted the weight I can give in what she now says she saw.

[49] Overall, Ms. Bortolan’s testimony is relatively consistent with the evidence of her husband. Where there are differences, I accept the evidence of Mr. Juul. He was close by when the confrontation happened. Ms. Bortolan did not see much interaction between Mr. Cann and Mr. Jobe. She describes Mr. Cann’s arms going up and then back down to his stomach. Her description of this arm action is not one that I can rely upon given the frailties of her evidence. The arm movements could have been before the stabbing and therefore consistent with Mr. Cann throwing a punch. They could also have been after the stabbing, since on her own evidence, Mr. Juul had already said that Mr. Cann had been stabbed when she saw his arms move. Mr. Cann was no longer at the corner on the sidewalk but more in the middle of the street. It could be that Ms. Bortolan just saw some hand movements up and down as Mr. Cann was experiencing the pain caused by his injuries. Thus, she may have just seen the tail end of the interaction.

[50] The final Crown witness was Dr. Lawless. He was the trauma surgeon who treated Mr. Cann. Mr. Cann’s medical records were also made exhibits. Dr. Lawless had a recollection of the injuries Mr. Cann suffered. There are three factual findings I make from the medical evidence.

[51] First, Mr. Cann suffered two stab wounds. One was V-shaped, the other linear. They were not life-threatening. While medical investigations were performed, no operative procedure was conducted. They were lacerations closed by staples which were later removed at a clinic. The medical records show some clinical findings but Dr. Lawless was not asked to opine on whether they were significant.

[52] Second, Mr. Cann was in hospital for two days before he was discharged. During that time, he also left the hospital on a one-hour leave of absence. When he was discharged from hospital, he was ambulating well with minimal pain.

[53] Third, the blood alcohol concentration measured in Mr. Cann’s blood in hospital was over the legal limit for driving. The guideline provided in the report itself states that Mr. Cann’s blood alcohol concentration was in the impaired zone. However, Dr. Lawless could not opine whether Mr. Cann was impaired from a medical perspective, since his opinion depended on several factors in addition to the blood alcohol concentration and he had limited information about these other factors.

[54] This medical evidence will later factor into the self-defence analysis. For the moment, I will say that it has some impact on Mr. Cann’s testimony. Clearly, Mr. Cann is wrong about being stabbed four times. He is also wrong about being in the hospital for a couple of weeks. Finally, although I cannot say without toxicological expert evidence whether Mr. Cann is wrong about his alcohol consumption, I suspect that the alcohol he had consumed that day was affecting him more at the time of the incident than he has let on. He testified the alcohol had absolutely no effect on him, even though he was likely over the legal limit at the time of the incident.

[55] The statement of Mr. Jobe given to the police on July 30, 2019, was the last of the Crown evidence. Mr. Jobe told the police that Mr. Cann suddenly punched him in the temple and was about to take a second swing at him when Mr. Jobe stabbed him once in self-defence. In that sense, Mr. Jobe’s statement is both inculpatory and exculpatory.

2. The Defence Evidence

[56] Some parts of Mr. Jobe’s testimony are the same as Mr. Cann’s. Some are radically different.

[57] Mr. Jobe has no criminal or youth record. At the time of the incident, he worked as a barista at Starbucks. He used a folding knife at work to do things like cut boxes. He clipped this knife to his belt. After work on July 25, 2019, he did not change his clothes and left with his then girlfriend for the Jazz Festival, where they met up with some friends. They were enjoying the Festival. Mr. Jobe was sober. At the corner of Hammersmith and Queen, he and his girlfriend saw Mr. Cann with the puppy. Mr. Jobe, who had experience with dogs and wanted to become a dog trainer, felt that the puppy looked like it was in distress from all the noise of the festival and being close to speakers used by a band. He talked to his girlfriend about it. Then he went up to Mr. Cann. He asked to pet the dog and did so. He asked its age. Mr. Jobe then told Mr. Cann the dog was too young to be in that loud environment. Mr. Cann asked sarcastically if Mr. Jobe was a vet or a doctor. Mr. Jobe said he was an aspiring dog trainer. Mr. Cann then exploded in anger and told Mr. Jobe to “fuck off” and that he did not get to tell him what to do. Mr. Jobe kept trying to tell Mr. Cann it was not good for the puppy. Mr. Cann kept yelling and swearing until he said to Mr. Jobe, “How about I give my dog and my beer to my buddy and we go at it”. Mr. Cann looked intoxicated. Mr. Jobe was not sure what Mr. Cann meant by that as Mr. Cann did not look like the type of person to fight. However, Mr. Jobe said that he would defend himself. Although Mr. Jobe was prepared for a fight, he thought they would just have a loud yelling match or at worst that Mr. Cann might shove him.

[58] Mr. Cann yelled out a name and then handed the puppy and a can of beer he had been holding to a friend. Mr. Jobe at that point glanced back to his girlfriend. When he turned back, Mr. Cann came at him with his right fist cocked back behind his shoulder. Mr. Cann swung at him. Mr. Jobe testified he tried to duck but was struck on the temple. He staggered back a step. He testified that he was in shock. As he looked up, he saw Mr. Cann’s left fist as if he was going to punch him again. Mr. Jobe testified that he quickly grabbed his knife and opened it with one hand using its nub button. He was afraid for his life and safety as he had just been sucker punched. He testified that he wanted to show Mr. Cann the knife to back him off. There was no time to call for help. He stretched out his arm as Mr. Cann came at him. He only swung once with the knife and he pushed Mr. Cann off him. Mr. Cann eyes opened wide and he grabbed his stomach. Mr. Jobe grabbed his girlfriend and they ran from the scene. They made their way home.

[59] In terms of credibility Mr. Jobe did well under the pressure of cross-examination. He did not sway from his testimony that he acted in self-defence. However, there were other parts of his testimony that were more problematic.

[60] I accept some parts of Mr. Jobe’s account of the conversation between him and Mr. Cann about the puppy. I disagree with the Crown that the location of the speaker is important. Regardless of where the speakers were, I find it was a noisy environment given the crowd and the music playing. I also accept that Mr. Jobe was motivated by genuine concerns for the puppy’s welfare given Mr. Jobe’s experience with dogs and his desire to become a trainer. Overall, Mr. Jobe’s account of the conversation is more plausible than Mr. Cann’s.

[61] However, I believe that the conversation got more heated than what Mr. Jobe recalls or is prepared to admit. Some of his responses to the Crown on this point struck me as evasive. Eventually, he did admit that he was a bit hostile and he swore and raised his voice. While I appreciate the defence position that Mr. Cann became unhinged without any reason, it seems more plausible to me that something was said during the conversation that Mr. Cann took offence at. What that was, I do not exactly know, given that I cannot accept Mr. Cann’s version and I am not entirely certain about Mr. Jobe’s. It may well have been a perceived insult, but I cannot say whether that perception is reasonably justifiable.

[62] The Crown submits that Mr. Jobe is just not credible and his testimony about what happened between the two men should be rejected. The Crown theory is that Mr. Jobe did not act in self-defence but rather he wanted to fight Mr. Cann and that he used the knife to win that fight. The Crown points to several areas of the cross-examination of Mr. Jobe. He points to inconsistencies between Mr. Jobe’s testimony and the police statement that he gave on July 30, 2019. In that police statement, the Crown submits that Mr. Jobe did not say he staggered backwards after the punch or that he looked back at his girlfriend before the punch. Moreover, Mr. Jobe was also not ambivalent when telling police about how he stabbed Mr. Cann, in contrast to his testimony.

[63] Regarding the first two omissions, I do not find them significant.

[64] First, Mr. Jobe did not mention that he staggered backwards but I accept he just forgot to say so. It is clear from the statement that he told the police that Mr. Cann forcefully struck him on the temple.

[65] Second, I agree that Mr. Jobe looking back at his girlfriend before being punched is not in the statement. However, I do not accept the Crown’s argument that Mr. Jobe only added this fact to his testimony at trial to falsely support his claim that Mr. Cann sucker punched him. The Crown points to a statement Mr. Jobe made to the police that when Mr. Cann was giving his puppy to Mr. Juul, Mr. Jobe “wanted to keep [his] eyes on him” so he would not get hit in the back of the head. However, Mr. Jobe was clear in his statement that Mr. Cann quickly and unexpectedly came at him and punched him. The essence of the attack remains the same regardless of whether he mentions his girlfriend. Given how quickly everything happened, I can see why Mr. Jobe might forget to mention this detail. Moreover, immediately after saying he wanted to keep his eyes on Mr. Cann, Mr. Jobe tells the police that at the time he thought he should talk to his friends. He said that two of his friends were in the crowd and his girlfriend was the only one “kinda on the sidelines”. Inferentially, if he knew where his girlfriend was, he must have looked to where she was, consistent with his trial testimony.

[66] However, there is more substance to the third Crown submission. There was not the same ambivalence in his police statement about the stabbing motion Mr. Jobe made as there was when Mr. Jobe testified at trial.

[67] Mr. Jobe’s trial description of how Mr. Cann came to be stabbed lacks internal coherence and is inconsistent. There were times in his evidence where Mr. Jobe testified as if it was nearly an accident that Mr. Cann got stabbed. As he initially described it, Mr. Jobe merely held the knife up and Mr. Cann fell into it. However, by the end of cross-examination, Mr. Jobe agreed that he had intended to stab Mr. Cann and the wounding was not accidental. Mr. Jobe eventually adopted the police statement in which he said he wanted to “inflict a bit of damage so he would back off and not attack him anymore”. This was not an accidental wounding.

[68] This aspect of the cross-examination hurt Mr. Jobe’s credibility. He was trying to distance himself from his actions. At the same time, I can appreciate, given how quickly and astonishingly the events took place, that since July 25, 2019, Mr. Jobe has been trying to justify in his own mind how he could have been capable of inflicting such wounds on a stranger. This may be why he came up with this notion that Mr. Cann fell onto his knife.

[69] Also, I can see when a man is rushing at someone to punch them, his forward momentum could carry him into the blade. This does not mean that Mr. Jobe did not intend to stab Mr. Cann. But it could have been a combination of the two physical causes that led to the stab wounds.

[70] Finally, there is a portion of Mr. Jobe’s police statement where his confusion about how the wounds were inflicted, consistent with his testimony, is apparent:

DC CHADWICK: Was it a — when you hit him was it like a slice or was it a stab?

MICHAEL JOBE: I just threw…

DC CHADWICK: Just a punching…

MICHAEL JOBE: ... my arm with the knife.

DC CHADWICK: Okay.

MICHAEL JOBE: It, it felt like it hit him, but I don’t know if it was my fist that hit him and the knife had just cut by, or if it had actually pierced. But then, now I know it is [sic] pierced.

DC DE GUERRO: And how many times did you swing at him?

MICHAEL JOBE: I just swung once. And I’m seeing that he’s saying four and that makes no sense whatsoever.

DC CHADWICK: Are you sure you just swung once?

MICHAEL JOBE: I’m 100 percent sure.

[71] In sum, while Mr. Jobe’s credibility suffered on this last point raised by the Crown, it does not lead me to reject his evidence totally.

[72] Other inconsistencies or omissions in his testimony, whether internally or when compared to his police statement, are relatively minor. I accept Mr. Jobe’s explanation regarding his state of mind at the time of the police statement, having not eaten since that morning and then only being given a bag of chips by the officers when he brought this to their attention. Fundamentally, Mr. Jobe’s overall narrative is consistent with the testimony he gave in court: that he was attacked by Mr. Cann and that he acted in self-defence.

[73] I will deal with some other submissions made by the Crown.

[74] I do not find it telling against Mr. Jobe’s credibility that even though Mr. Cann proposed that they “go at it” and Mr. Jobe said he would defend himself, Mr. Jobe did not expect a fight. Mr. Jobe testified that although he was prepared for a fight, he did not believe it would come to that. I do not find it unusual that he did not think Mr. Cann would resort to physical violence. At most, Mr. Jobe thought he might be pushed, and at that point it was his intention to walk away.

[75] In addition, I do not accept the Crown’s assertion that Mr. Jobe is lying about swinging only once, given that there were two stab wounds. I conclude this for the following reasons. First, this all happened very quickly. Mr. Jobe would not have had a lot of time to make two separate stabbing motions. In any event, Mr. Jobe could simply be mistaken about making a single swing and thus not lying about this. Second, a single swing of the knife could have caused the two stab wounds. The wounds were both located in the same area of Mr. Cann’s body, and one is an unusual V-shaped wound. Third, it is plausible that the dynamic situation described by Mr. Jobe could lead to two stab wounds since Mr. Cann’s body would be shifting and moving about after he had thrown the punch. If the knife was still in the location of his abdomen, it could have come into contact with Mr. Cann twice though Mr. Jobe only swung it upwards once. Fourth, while Mr. Jobe did not waiver from his certainty that he just swung once, as he later described, the second stab could have occurred when Mr. Jobe pushed Mr. Cann off him. In the end, I am not sure how the wounds came about. What I can say is that the fact there were two stab wounds did not diminish Mr. Jobe’s credibility as a witness.

[76] My final consideration regarding Mr. Jobe’s evidence is the post-offence conduct. In fairness, the Crown did not allude to this in final submissions. I will just say that the fact Mr. Jobe dyed his hair that night and threw the knife away into a garbage truck the next morning does not assist me in determining the key issue of self-defence in this case.

[77] Mr. Christopher Purvis also testified for the defence. He has been a friend of Mr. Jobe’s for six years. They are close. I must be careful because of his potential bias. They have also talked about the incident since it occurred. Like with the Crown witnesses, I must be cautious about the possibility that Mr. Purvis’s recollection is tainted.

[78] I found Mr. Purvis to be a good witness. He was straightforward, candid, and had a good recollection. His testimony was consistent, internally and with the other evidence. Although Mr. Purvis testified that he would do anything for his friend, I accept that he meant this more generally and lying for him on the stand would not be included.

[79] Regarding collusion, conscious or unconscious, I find none. Mr. Purvis testified that he spoke with Mr. Jobe about the puppy’s welfare before Mr. Jobe went up to Mr. Cann. This is not something Mr. Jobe mentioned in his testimony. If there was some collusion, one would have expected greater similarity between their evidence.

[80] Mr. Purvis testified that he met up with Mr. Jobe and his then girlfriend at the Jazz Festival. He admitted to having consumed three mixed drinks and was mildly intoxicated. The intersection at Hammersmith and Queen was crowded with young people. There was a loud band playing near the intersection. Mr. Purvis saw Mr. Cann holding a puppy which was jumpy and moving a lot. It looked nervous. Mr. Jobe mentioned to him that the puppy should not be there. Mr. Purvis moved off with his other friend. A minute later, he saw Mr. Jobe and Mr. Cann talking for a few seconds. He could not hear what they were saying, and his attention moved away from them as he thought nothing of it. Then moments later, he saw Mr. Cann take a running lunge of about five feet at Mr. Jobe. As he came at Mr. Jobe, Mr. Cann threw a punch at him. Mr. Purvis could not see if it landed or not. Mr. Jobe ducked down, and Mr. Cann hunched over Mr. Jobe after he threw the punch. He did not see any further punches or Mr. Jobe doing anything. Mr. Purvis started to go to help his friend. He then saw blood starting to seep out of Mr. Cann’s yellow shirt and him grasping his stomach. Mr. Purvis ran away as he did not know what had just happened and he did not want to be involved.

[81] Cross-examination did not impeach Mr. Purvis’s testimony. I can understand why Mr. Purvis may not have gone to the police to tell them what he saw. At the time, he did not want to be involved. Ultimately, he did offer his testimony to Mr. Jobe’s defence lawyers.

[82] Mr. Purvis’s testimony is consistent with the evidence of Mr. Juul and Mr. Jobe himself. I accept it.

3. My Factual Findings

[83] These are my factual findings. I do not apply the reasonable doubt standard to my fact-finding process. This fundamental principle applies only at the end of the case when it comes to assessing the Crown’s ultimate proof.

[84] While Mr. Cann and Mr. Jobe gave somewhat similar accounts of how the conversation between the two men went, there are some differences. The differences in their testimony does not mean either man was dishonest. I appreciate that each of their testimony may be affected by self-interest. What I have no doubt about is that their conversation at the Jazz Festival on July 25, 2019 led to Mr. Cann becoming very angry at Mr. Jobe. Given my credibility issues with Mr. Cann, I find that Mr. Jobe’s recollection of that conversation is likely more accurate and honest. I reject Mr. Cann’s testimony that Mr. Jobe appeared intoxicated and was immediately hostile.

[85] I cannot determine how close the nearest band was given the witnesses’ differing recollections on this point. However, regardless of exactly how close the band was, I find that the noise of the music and the crowd at the corner was sufficiently loud that Mr. Jobe felt that the puppy was bothered by it. Mr. Jobe went to speak to Mr. Cann because of his concern for the puppy.

[86] I accept that Mr. Jobe would have started out the conversation in the manner he testified to. It was not confrontational from the beginning. I find this makes sense given what Mr. Purvis said Mr. Jobe spoke to him about and how a person would ordinarily approach a situation such as this. While I do not believe Mr. Jobe can give me a verbatim account of this conversation, I accept the broad outlines of what he testified to. Although I cannot say for sure what was said, I do conclude that Mr. Jobe used swear words, raised his voice, and did not back down from his firmly held opinions. In my view, the account of the conversation that he gave to the police, although not fundamentally different than his testimony, sets out a more unvarnished and realistic version of how that conversation went.

[87] Specifically, I accept Mr. Jobe’s testimony that Mr. Cann handed the dog off to his friend and proposed that he and Mr. Jobe should “go at it”. Mr. Juul’s testimony about Mr. Cann calling him over to hand the dog to him supports that conclusion. I also accept Mr. Jobe’s testimony that he told Mr. Cann he was prepared to defend himself. But I also find that the knife was still clipped to Mr. Jobe’s belt and he had no intention of using it at that time.

[88] I find that Mr. Cann was not shoved before he handed his dog over. On top of my general credibility concerns about Mr. Cann’s evidence, his testimony on this specific point was most unreliable. Moreover, although a shove could be easily missed, no other witness confirmed it took place. Mr. Jobe denied ever shoving Mr. Cann and he was not impeached on this.

[89] A key factual issue in this case is who the aggressor was. Most fairly, the Crown concedes that the evidence cannot establish that Mr. Jobe attacked Mr. Cann like Mr. Cann testified he did.

[90] Even if Mr. Cann lied about starting the fight, it theoretically remains possible that he did not strike Mr. Jobe like Mr. Jobe testified he did. However, I do not accept that possibility. First, Mr. Cann’s lack of candour leads me to find that he was aggressive and belligerent at the time of the incident and he wanted to conceal his true role in the matter in court. Second, I find it plausible that Mr. Jobe’s comments would make Mr. Cann very angry. This reaction is consistent with what it seems his attitude and personality is like as it was displayed at times during his cross-examination. Third, both Mr. Juul’s and Mr. Purvis’ testimony as to how they observed Mr. Cann throwing a punch is consistent with Mr. Cann striking Mr. Jobe and with what Mr. Jobe told police in his statement. Overall, I accept Mr. Jobe’s account on this key point.

[91] Thus, without hesitation, I find that Mr. Cann was the aggressor and threw the first punch which forcefully impacted Mr. Jobe on the temple.

[92] Mr. Juul and Mr. Purvis do not see a second punch or a gesture as if Mr. Cann was going to throw a second punch. But I am mindful of how surprising and quickly this was happening. Clearly the first punch stood out. The second may not have. I accept Mr. Jobe’s testimony about this as I find him to be credible on this point. Even based upon what Mr. Juul and Mr. Purvis observed, it is highly unlikely that Mr. Cann would just be content with throwing one very forceful punch. Mr. Cann was angry, and he had told Mr. Jobe they should go at it. It is much more likely that he would have followed up on the punch like Mr. Jobe testified he did.

[93] Also, I find that what took place afterwards is what Mr. Jobe testified to. Mr. Purvis saw Mr. Cann over top of Mr. Jobe. I accept that Mr. Jobe then took out the knife. Although it is unclear whether Mr. Jobe actually swung the knife once or twice, Mr. Jobe may have simply been mistaken on this point. But given his testimony and the police statement, I accept that he believes he was swinging just once at Mr. Cann. Exactly how the two stab wounds occurred, I cannot say for certain. Regardless, I do find that the wounds happened during the very brief time that Mr. Jobe said he swung at Mr. Cann.

[94] Finally, I accept Mr. Jobe’s testimony regarding his state of mind at the time. I will elaborate more upon this when I undertake the second line of inquiry under the self-defence analysis.

C. ANALYSIS OF SELF-DEFENCE UNDER S. 34

[95] Section 34 of the Criminal Code governs the law of self-defence. It states:

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.

(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.

[96] This provision has recently been considered by the Supreme Court of Canada in R. v. Khill, 2021 SCC 37. My discussion of the legal principles is based on that authority.

[97] Mr. Jobe’s claim of self-defence rests on three questions: (1) whether Mr. Jobe believed on reasonable grounds that force was threatened or being used against him; (2) whether Mr. Jobe acted for the purpose of defending himself; and (3) whether Mr. Jobe’s actions were reasonable in the circumstances. The Crown bears the onus of convincing me beyond a reasonable doubt that the answer to at least one of these questions is “no”.

1. The Catalyst: Whether Mr. Jobe believed on reasonable grounds force was threatened or being used against him

[98] The first element of self-defence considers the accused's state of mind and the perception of events that led them to act. Unless the accused subjectively believed that force or a threat thereof was being used against their person or that of another, the defence is unavailable.

[99] This element is not purely subjective. The accused’s actual belief must be held on reasonable grounds. The objective component is modified in that the accused’s belief is assessed from the perspective of an ordinary person who shares the attributes, experiences, and circumstances of the accused where those characteristics and experiences are relevant to their belief and actions. However, not all personal characteristics and experiences are relevant to the modified objective inquiry. For example, racist attitudes cannot inform an objectively reasonable perception of a threat.

[100] The question is not what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive.

[101] The Crown concedes that this element of the test is met. Furthermore, given my factual findings, I accept that Mr. Jobe believed that force was being used against him. Mr. Cann punched him in the head. Moreover, very quickly it appeared to Mr. Jobe that Mr. Cann was coming back for a second punch with his left hand. This belief was based on reasonable grounds.

2. The Motive: Whether Mr. Jobe acted for the purpose of defending himself

[102] The second element is subjective. Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This inquiry goes to the root of self-defence. If there is no defensive or protective purpose, the rationale for the defence disappears.

[103] The motive provision thus makes sure that the accused did not act out of vigilantism, vengeance, or some other personal motive.

[104] The Crown submits that it has proven beyond a reasonable doubt that Mr. Jobe did not act in self-defence. Of course, I have direct evidence of Mr. Jobe’s motive. There is also circumstantial evidence that can be relied upon.

[105] The Crown submits that Mr. Jobe’s testimony on this point should be rejected. He submits that the circumstances lend themselves to a finding that Mr. Jobe’s act in stabbing Mr. Cann was not for the purpose of defending himself. Rather, Mr. Jobe was a willing participant in a consensual fight, and he resorted to the knife to ensure that he quickly came out on top. The comment made by Mr. Cann that they “go at it” was an invitation to a fight. Mr. Jobe admitted that though he did not think Mr. Cann would fight, he was nonetheless prepared for one. The circumstances show that a fight was about to take place. The two men quickly went from a conversation about a puppy, to taking offence at each other’s words, and then to a fight. In other words, Mr. Jobe stabbed Mr. Cann not to defend himself, but out of anger or ill will towards Mr. Cann.

[106] Since Mr. Jobe testified, the doctrine of reasonable doubt applies to the assessment of his credibility. When it comes to self-defence though, there is a modification of the W.D. analysis. This is because there is both the objective and subjective component to self-defence: R. v. Reid, 2003 CanLII 14779 (ON CA), [2003] O.J. No. 2822 (C.A.).

[107] After careful consideration, I accept that Mr. Jobe stabbed Mr. Cann to protect himself from force.

[108] First, contrary to the Crown’s submission, the circumstances support Mr. Jobe acting in self-defence. A conversation about a puppy suddenly led to an extreme reaction from a man Mr. Jobe did not know. The man, although not taller, was older and significantly heavier. Mr. Jobe testified that he was scared of the man as he was twice his size. As he described it, the interaction had very quickly gone from talking to a punch — and not just a punch, but a “sucker punch” to the head without any real warning and delivered with significant force. Mr. Jobe staggered backwards, and Mr. Cann was on top of him. Mr. Cann kept coming to throw a second punch. In these circumstances, resorting to a knife to protect oneself, as Mr. Jobe did, is plausible.

[109] Second, Mr. Jobe was not shaken on this part of his evidence. He has always maintained he was afraid and acted in self-defence. I find there is no reason to disbelieve him on this.

[110] Third, the Crown led Mr. Jobe’s police statement. The Crown relies upon it to argue Mr. Jobe acted in order to win in the fight and not to defend himself. However, the statement supports the defence on this issue.

[111] The statement was given voluntarily. Mr. Jobe had spoken to duty counsel. It was a few days after the event. Looking at the circumstances of that statement, once Mr. Jobe decided to speak to the police, he spoke freely and naturally. The officers did not lead his conversation or cross-examine him. While I appreciate that Mr. Jobe may have had an interest in painting himself in the best light, what he told the police is internally consistent and coherent. I appreciate that he might have been tired and hungry, but the basic thrust of his statement comes across clearly. I find that weight can be placed on it.

[112] In that statement, Mr. Jobe says Mr. Cann came running at him and “clocked” him as he tried to go under the punch. He says Mr. Cann was a “big fuckin’ guy”. When he came at Mr. Jobe again, Mr. Jobe’s brain just automatically went to getting the knife as he felt he was in danger. Mr. Jobe said further:

I just swung my arm. Like I just wanted him away. I didn’t, I didn’t know if I was tryin’ to slash, or if I was tryin’ to stab — I just had a knife and I wanted to inflict a bit of damage so that he would back off and not attack me any further. And then when he looked up like I had gotten him, I knew that was my chance and I ran so he wouldn’t keep coming at me.

[113] While the Crown relied upon his statement that he “wanted to inflict a bit of damage” as evidence that Mr. Jobe did not stab for a defensive purpose, this comment must be read in its entire context. Mr. Jobe was saying he wanted to do that so that Mr. Cann “would back off and not attack [him] further”. In other words, it was for a defensive purpose. Moreover, the whole of Mr. Jobe’s statement to police was exculpatory, and this comment is consistent with that.

[114] In addition, the Crown submits that because Mr. Jobe stuck around after Mr. Cann, who was freeing up his hands, told him that they were going to get into it, Mr. Jobe’s intent was to fight Mr. Cann. Thus, Mr. Jobe resorted to the knife so there would be no uncertainty as to the ultimate victor. The Crown points to a passage of Mr. Jobe’s statement in which he told police that he “wanted to finish our interaction” as evidence of his true design.

[115] Again, this comment must be seen in context. Mr. Jobe told the police he wanted to finish the interaction because he was afraid if he turned away, he would get hit on the head. His comment is not strong evidence that he wanted to win a fight.

[116] Moreover, it is evident from other parts of the police statement that Mr. Jobe was not expecting the kind of physical violence he was subjected to:

Like enough that right when he turned he closed the distance and just — like I was just standing there like is this guy — I thought he was gonna come back and be like come on let’s let’s fight and I’d be no like fuck off, like I’m not, I’m not here to fight, I was here to tell you that what you’re doing to his puppy is hurting him. And then he literally turned and was already coming at me.

He did not seem like the type of person actually but then I started cluing in and factoring that he was drunk, but he didn’t seem like the type of person — that’s why I actually stood around, why I stuck around when he said we’re gonna do this, otherwise I would have backed out and been hey guys he’s gonna try and fight me, we should not be here. But I didn’t think he was actually going to ‘cause he had a puppy and didn’t look like a fighter guy, had a beard, I was like okay he’s probably just gonna go do this, come back yell, we’re gonna exchange words or whatever, he’s gonna push me and then we’re gonna leave.

I accept Mr. Jobe’s testimony and his statement to the police. His account makes sense. Arguments between strangers in the street seldom lead to physical fights. Commonly, after the participants verbally blow off steam and testosterone, they go their separate ways without physical violence.

[117] In conclusion, I accept Mr. Jobe’s testimony that he acted for the purpose of defending himself.

3. The Response: Whether Mr. Jobe’s actions were reasonable in the circumstances

[118] The destiny of this case turns on this inquiry. Martin J. in Khill expressed the underlying purpose of this important element in the following way (at para. 62):

The final inquiry under s. 34(1)(c) examines the accused's response to the use or threat of force and requires that “the act committed [be] reasonable in the circumstances”. The reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The law of self-defence might otherwise “encourage hot-headedness and unnecessary resorts to violent self-help” (Roach, at pp. 277-78). That the moral character of self-defence is thus now inextricably linked to the reasonableness of the accused's act is especially important as certain conditions that were essential to self-defence under the old regime — such as the nature of the force or threat of force raising a reasonable apprehension of death or grievous bodily harm — have been turned into mere factors under s. 34(2).

[119] In assessing the factors under s. 34(2), the focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time. “Relevant circumstances of the accused” in s. 34(2) can also include any mistaken beliefs reasonably held by the accused. The reasonableness inquiry under s. 34(1)(c) is primarily concerned with the reasonableness of the accused's actions, not their mental state. The objective assessment of s. 34(1)(c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused’s qualities and experiences.

[120] I must consider all factors set out in paragraphs (a) to (h) of s. 34(2) that are relevant in the circumstances. This list of factors is not exhaustive. It is for the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise. No single factor is necessarily determinative.

[121] The first factor I consider under s. 34(2)(a) is the nature of the force and threat. The force used by Mr. Cann was significant physical force. Moreover, it was unexpected. Any reasonable person in Mr. Jobe’s situation would have been surprised by the force used. It was not a jab or a slap. It was a closed fist running punch thrown in an overhead manner: Mr. Juul described it as a “hay-maker”. Mr. Cann had his weight behind it, and he is a heavy-set man. It was also thrown at a vulnerable part of the body, the head. It connected. It staggered Mr. Jobe backwards. No doubt, it hurt. The force Mr. Cann used was intended to surprise, hurt, and disable. It was not thrown in a manner that would signal the beginning of a “fair fight”.

[122] The threat posed by Mr. Cann was objectively significant. Regardless of the exact nature of the conversation Mr. Jobe and Mr. Cann had previously, Mr. Cann’s actions were out of proportion to any upset caused by Mr. Jobe. Given that Mr. Cann was a stranger, a reasonable person would not know with any certainty the extent of the force Mr. Cann might use. The first punch was very quickly followed up with the threat of another punch on the way. It would be reasonable for a person to feel that the force and threat was not that of an isolated punch, but perhaps the beginning of a sustained beating.

[123] The second factor I consider under s. 34(2)(b) is the imminence of the force and other available means to respond. The force here was very imminent. It was happening in the very moment when Mr. Jobe resorted to the knife. More force by Mr. Cann was on the way.

[124] Whether there were other means to respond is a more complicated question. The Crown cross-examined Mr. Jobe on these other options. I agree that other means existed, mindful that the incident took place in a public space with many other people present. Mr. Jobe could have sought help from his friends or tried to walk or run away. However, two factual matters must be considered in determining whether these other means should have been reasonably resorted to in the circumstances. The first is how unexpected the physical violence perpetrated by Mr. Cann was. The second is the speed of his onslaught on Mr. Jobe. These two circumstances limited the reasonable availability of the other means to respond. It would be an understandable concern that resorting to these other means would not have allowed Mr. Jobe to stop the attack before he suffered further harm. In my opinion, while there were other ways to respond, it was reasonable to respond physically in self-defence in these circumstances.

[125] The third factor I consider under s. 34(2)(c) is Mr. Jobe’s role in the incident. This encompasses not only provocative or unlawful conduct, but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds.

[126] In Khill, Martin J. said the following about this concept (at para. 85):

The analytical purpose of considering the person's "role in the incident" is its relevance to the reasonableness assessment where there is something about what the accused did or did not do which led to a situation where they felt the need to resort to an otherwise unlawful act to defend themselves. Only a full review of the sequence of events can establish the role the accused has played to create, cause or contribute to the incident or crisis. Where self-defence is asserted, courts have always been interested in who did what. The fact that the victim was the cause of the violence often weighed heavily against them. As this Court explained in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, at para. 50:

In cases of self-defence, the victim of the otherwise criminal act at issue is himself or herself the originator of the threat that causes the actor to commit what would otherwise be an assault or culpable homicide (bearing in mind, of course, that the victim's threats may themselves have been provoked by the conduct of the accused). In this sense, he or she is the author of his or her own deserts, a factor which arguably warrants special consideration in the law. [Emphasis deleted.]

[127] Undoubtedly, Mr. Jobe instigated the conversation with Mr. Cann regarding the welfare of the puppy. This ultimately led to the physical conflict. But an important contextual factor is that Mr. Jobe was concerned about the welfare of the puppy in the midst of the Jazz Festival. Whether he was right or wrong about this or whether he should have minded his own business, as Mr. Cann told him to do, being confronted about the puppy should not have spurred Mr. Cann to respond with acts of physical violence. Even if Mr. Jobe played a role in continuing the argument, a reasonable person would not have been provoked to instigate a fight or an attack to the extent Mr. Cann was. It was not Mr. Jobe who wanted to fight. Continuing to steadfastly and adamantly express his concern about the puppy when his opinion was unwanted, while perhaps unwise, was not unlawful, threatening, harassing, or reckless behaviour.

[128] Looking at the whole of the circumstances, the community would reasonably conclude that Mr. Cann was the originator of the violence that caused Mr. Jobe to react in self-defence. It was not Mr. Jobe who, by arguing with Mr. Cann about the puppy’s apparent discomfort, caused, created, or contributed to the violent incident. There may be a minor contribution by Mr. Jobe in persisting and failing to back away, but his actions were not the true cause of this crisis. The true cause was Mr. Cann’s decision to “go at it” and then launch a running attack at his critic. Put another way, while Mr. Jobe did contribute in a minor way, his overall conduct does not significantly colour the reasonableness of his ultimate act. What really happened here was that Mr. Cann was the author of his own misfortune by initiating physical violence without good reason. Once that happened, a reasonable person would have little chance to re-assess or de-escalate the incident.

[129] Where an accused had no prior interaction with the victim and was subjected to an unprovoked assault, the very absence of the accused's role in the confrontation may militate strongly in favour of the accused: see cases cited in para. 101 of Khill (R. v. Vaz, 2019 QCCQ 7447, at para. 31; R. v. Trotman, 2019 ONCJ 591, at para. 225; R. v. Lewis, 2018 NLSC 191, at para. 66; R. v. S(H), 2015 ABQB 622, at para. 73; R. v. Fletcher, 2015 CM 1004, at para. 40; R. v. Williams, 2013 BCSC 1774, at para. 98).

[130] The fourth factor I consider under s. 34(2)(d) is weapon use. Mr. Jobe used a weapon and Mr. Cann did not. This factor supports the conclusion that his self-defensive action was unreasonable. That said, I accept that Mr. Jobe carried this knife as a tool that he used at work, wore it openly on his belt, and left for the Festival with it in his possession simply because he did not change after work. It was not being carried as a weapon. Moreover, it was also not of a nature or a size that would aggravate its use. The knife was a folding knife with a 3.5-inch blade.

[131] The fifth factor I consider under s. 34(2)(e) is the physical capabilities of the parties. Mr. Cann was 27 years old at the time. He is a mature man who works in contracting. The photographs taken of Mr. Cann at the hospital in his bed reveal him to be broad-shouldered, well-nourished, and muscular. He may be the same height or an inch shorter than Mr. Jobe.

[132] Mr. Jobe had just turned 19 years old less than a month before July 25, 2019. He was not yet fully physically mature. His videotaped statement to the police, taken a few days after the incident, showed he had a slim build. He testified he weighed only about 135 lbs. Mr. Jobe estimated that he was about 70 pounds lighter than Mr. Cann. I appreciate the video also shows Mr. Jobe’s build to be wiry and muscular — consistent with his interest in personal training — but I have no doubt that he would be at a physical disadvantage to Mr. Cann.

[133] The sixth factor I consider under ss. 34(2)(f) and (f.1) is any history between the men. Given that they had no relationship before this incident, there is no prior use or threat of force that is relevant. At the same time, the lack of any relationship between them is not totally irrelevant. This lack of relationship, on the facts of this case, could reasonably increase Mr. Jobe’s perception of the threat Mr. Cann posed to him. Here was a man who got very upset by what should have been a benign conversation about a puppy at a festive public setting. He then explosively resorted to fisticuffs in a quick and surprising attack. Objectively, any person subject to that attack may wonder how far this stranger would go in harming him.

[134] The seventh factor I consider under s. 34(2)(g), and one of the most important factors in this case, is the nature and proportionality of Mr. Jobe’s response to the use or threat of force. This factor must be considered objectively.

[135] The proportionality of an accused's actions in response to a threat is always a discrete factor to be considered under s. 34(2)(g). Even where the accused is an innocent victim of circumstance, this factor may be a deciding factor against them.

[136] Mr. Jobe’s use of a knife is troubling to me. When faced with a physical assault, although it was surprising and forceful, Mr. Jobe quickly resorted to a knife without any intermediary steps and inflicted two significant stab wounds. It is hard to say this was a proportionate response.

[137] At the same time, there are considerations in favour of the defence on this factor.

[138] First, an accused is not required to “weigh to a nicety” the amount of force used under the rubric of proportionality: R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111; see also R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272, at para. 18.

[139] Second, I must carefully scrutinize the degree of force Mr. Jobe used in swinging his knife. I have accepted that Mr. Jobe believed he swung only once, although whether he in fact swung once or twice or the exact mechanism of how the two wounds were caused is unclear. Also, I find that he did not use overpowering force in stabbing Mr. Cann. In his police statement he said he wanted to inflict a “bit of damage”. I appreciate that the wounds were inflicted to a very vulnerable area of the body and it was at the very least most reckless to swing out in the way Mr. Jobe did. However, it does not approach the kind of force that evinces an intention to kill or cause grievous bodily harm.

[140] I have given careful consideration to the medical evidence. The Emergency Department Consult Report dated July 25, 2019, at 1:10 a.m., by Dr. Wolpert provides relevant information. She describes two wounds to the anterior abdomen. She notes:

There was one approximately 4 cm straight laceration to his anterior chest on the left side of the distal sternum. There is no active bleeding from this wound. There is a second V-shaped laceration approximately 10 cm in total length in the epigastric area below the xiphoid. This wound was actively bleeding and direct pressure was applied, but there was no pulsatile blood flow.

[141] The ultrasounds were negative for free fluid or abnormalities. The wounds were irrigated and just stapled.

[142] These wounds were not minor, but they were not the most serious that could have been inflicted had Mr. Jobe wanted to do more harm.

[143] Moreover, Mr. Jobe did not keep stabbing. After inflicting the wounds, Mr. Jobe stopped. He did not attack Mr. Cann further. Instead, Mr. Jobe turned and ran away.

[144] I find it difficult to conclude that the force used was proportionate. Using a knife against a man punching you in the head appears disproportionate on its face. But, given the circumstances I have noted, I also recognize that the community may not objectively view the force Mr. Jobe used as unreasonable.

[145] In the final analysis, taking into account all the relevant factors in s. 34(2), I conclude that the Crown has not proven that Mr. Jobe’s response was unreasonable in all the circumstances. Mr. Jobe was a young man who was aggressively attacked suddenly and unexpectedly by an older, heavier man. Beyond being opinionated, persistent, and perhaps impolite about his concern for a puppy’s welfare, he played little role in instigating the incident. When struck in the head forcefully, he had little time to think — mere seconds — as the attack was continuing. When he found himself crouched over and in a vulnerable position, he resorted to a folding knife he used for work. He swung once, or twice at the most. The wounds he caused were not minor, but they were not grave. He immediately desisted and ran away.

[146] The Crown has not proven that the answer to the third inquiry of self-defence is “no”.

D. DISPOSITION

[147] I cannot fully condone the actions Mr. Jobe took on July 25, 2019. Still, the Crown has not proven that I should condemn them. Measured against the objective community standards of reasonableness, it has not been proven beyond a reasonable doubt that his actions were not justified or excusable in the eyes of society. Thus, the right verdict is not guilty.

[148] Both counts are dismissed.

Justice S. Nakatsuru

Released: November 24, 2021

COURT FILE NO.: CR-20-70000388-0000

DATE: 20211124

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL JOBE

Defendant

REASONS FOR JUDGMENT

NAKATSURU J.

Released: November 24, 2021

R. v. Jobe, 2021 ONSC 7508

Case Summary

A. OVERVIEW

B. THE EVIDENCE

1. The Crown Evidence

2. The Defence Evidence

3. My Factual Findings

C. ANALYSIS OF SELF-DEFENCE UNDER S. 34

1. The Catalyst: Whether Mr. Jobe believed on reasonable grounds force was threatened or being used against him

2. The Motive: Whether Mr. Jobe acted for the purpose of defending himself

3. The Response: Whether Mr. Jobe’s actions were reasonable in the circumstances

D. DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1