ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: YC-18-0014-00

DATE: 20220630

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.S. (a young person)

Defendant

Lee-Anne McCallum and Vanessa Szirmack, for the Crown

Doug Holt and Kevin Kaczmara, for the Defendant

HEARD: March 2-11, 14-18, 21, 22 and 25, 2022

RESTRICTION ON PUBLICATION

Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related a young person, if it would identify the young person as having been dealt with under this Act. This judgment complies with this restriction so that it can be published.

Dawe J.

I. Overview

1Early on the morning of March 27, 2018, 19-year-old Keegan Blyth was stabbed outside his family home in a rural area north of Newmarket. He died from his injuries a few days later.

2Keegan and two of his friends had arranged to meet a man named Dimytri Ingram-Piruzevski that night, ostensibly to buy marijuana from him. Dimytri, who was also 19 years old, brought the 16-year-old defendant P.S. with him to the meeting.

3It is common ground that almost immediately after Dimytri and P.S. arrived outside the Blyth residence an altercation broke out during which P.S. stabbed and fatally injured Keegan. P.S. stands charged with second degree murder. One of the main contested issues in this case is whether, when P.S. stabbed Keegan, he was acting in lawful self-defence or defence of others under s. 34 of the Criminal Code.

4As I will discuss, the question of whether P.S. acted in self-defence is intertwined with a factual dispute between the parties over whether Keegan and his friends really meant to buy marijuana from Dimytri that night, or whether they instead lured him to the Blyth residence so they could rob him and steal his drugs.

5The evidence supporting the robbery scenario includes the direct evidence of Dimytri and P.S. They both testified that as they approached the house in the dark, they were attacked without warning by men who had evidently been hiding in wait for them.

6In response, the Crown relies on the evidence of two of Keegan’s friends who were with him that night. They both deny that they and Keegan had planned or tried to rob Dimytri, although neither can say exactly how the altercation started. The Crown’s theory is that P.S. pulled out a knife, and that Keegan tried to disarm him and was stabbed and killed during the ensuing struggle, although there is no direct evidence that this is what happened.

7The question of whether Keegan was killed during a robbery attempt gone wrong rather than a drug deal that for some reason turned violent is not dispositive of the critical legal question of whether P.S. was acting in lawful self-defence. However, it is still extremely important, since my analysis of the essential elements of self-defence must be informed by my conclusions about what the evidence shows happened and did not happen that night.

8My reasons are structured as follows. I will begin by briefly reviewing the case’s procedural history. I will then review in some detail the evidence that was presented at trial. Next, I will summarize the legal principles that govern my assessment of this evidence, and the essential legal elements both of the charge against P.S. and of the s. 34 Criminal Code defence of self-defence and defence of others.

9I will then explain the factual conclusions I have reached based on my assessment of the evidence that I heard and saw at this trial. Finally, I will turn to the question of whether, on the facts as I have found them, the Crown has established P.S.’s guilt beyond a reasonable doubt.

II. Procedural history

10P.S., Dimytri Ingram-Piruzevski and another 19-year-old named Justin Ryan, who drove Dimytri and P.S. to the Blyth residence that night, were all charged in relation to Keegan Blyth’s death. However, since P.S. was a youth and the other two defendants were adults the charges against P.S. have proceeded separately, as the law requires: see R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426.

11Among other things, this has meant that two separate preliminary inquiries were conducted, one in relation to the charges against the adult defendants and the other in respect of the charge against P.S. Some of the witnesses who testified at trial were cross-examined about testimony they gave at one or the other of these two preliminary inquiries. I will refer to the preliminary inquiry in Dimytri and Justin Ryan’s case as the first preliminary inquiry, and the preliminary inquiry in P.S.’s case as the second preliminary inquiry.

12P.S.’s trial was originally scheduled to be conducted with a jury in May 2021, but it had to be rescheduled because jury trials were suspended on account of the COVID-19 pandemic. On February 7, 2022 the parties agreed to have the trial proceed by judge alone. P.S.’s trial began before me on March 2, 2022 and continued for the next three weeks. After I heard final submissions from counsel I reserved my decision until today.

III. The evidence

13Sixteen witnesses testified at this trial. Four of these witnesses – Stephen Chanady, Mitchell Pepper, Dimytri Ingram-Piruzevski, and P.S., who testified in his own defence – were participants in the altercation during which Keegan was killed. They were the only eyewitnesses to the fight.

14Keegan’s mother did not see the altercation because she was asleep in the house at the time, but she testified about events beforehand, and about what she saw and heard afterwards.

15I also heard evidence from five police officers who gave evidence mainly about the observations they made when they attended the Blyth residence in the wake of the stabbing. This included evidence about various items they found on the ground outside, and other things they later found inside the house when they executed search warrants. One officer also gave evidence about items that were seized from Dimytri Ingram-Piruzevski when he was arrested the next day.

16Three witnesses were called to give expert evidence: (i) the doctor who conducted the post-mortem examination of Keegan Blyth; (ii) a Centre of Forensic Sciences toxicologist who gave evidence about drug screening tests that were conducted on samples of Keegan’s blood; and (iii) a police officer from the York Regional Police’s data recovery unit who gave evidence about text messages that were recovered from a cell phone belonging to another witness named Steven Stelnick, who was called to testify by the defence and who gave evidence bearing on the issue of whether Keegan and his friends had planned to rob Dimytri. The defence also called one other witness who gave evidence touching on this same issue.

17The sixteenth witness, called by the Crown, gave evidence about a conversation she had with P.S. a few days after the stabbing,

18The parties also filed a number of agreed statements of fact, some of which append photographs, reports and other documents, and various items were made exhibits.

A. People and places

19Throughout my reasons I will refer to most of the persons involved by their first names. I do this because this is how most of the witnesses who testified at trial referred to them. I would also note that publication of P.S.’s full name is prohibited by s. 110 of the Youth Criminal Justice Act.

20However, since Stephen Chanady and Steven Stelnick both have the same first name, albeit with different spellings, I will sometimes refer to them by their full names or as “Mr. Chanady” and “Mr. Stelnick”, except when it is clear in context which one of them I am talking about.

1. Keegan Blyth and his friends

21In March 2018 Keegan Blyth was 19 years old. He had graduated from high school and was living with his parents and his younger sister at their home in the countryside north of Newmarket and west of East Gwillimbury. The house, a bungalow with an attached garage on the west side, is located on the north side of Mt. Albert Road and is accessible by a driveway that runs north towards a barn before turning sharply to the right and continuing towards the garage and the house.

22In March 2018 three of Keegan’s friends were staying in the basement of the Blyth home, which had been converted to a separate apartment with its own kitchen and living area and two bedrooms. Only one of the bedrooms was furnished and occupied. Keegan’s friends were all having problems at their own homes, which is why Keegan’s parents took them in. Two of these friends, Emma Diamantakos and Stephen Chanady, were dating and shared the basement’s only furnished bedroom, while the third friend, Mitchell Pepper, slept on a couch in the basement living room area.

23Keegan’s father had a building demolition business and had hired Keegan to strip copper wire for salvage, which he did in the barn behind the house. After Mitchell and Stephen Chanady began living in the basement, Keegan’s father also hired them to help with the wire-stripping work, but they both acknowledged that they worked only sporadically and spent most of their time hanging out in the basement, playing video games and smoking marijuana.

24Stephen Chanady was facing drug trafficking charges and was on bail terms that required him to live with his own parents and not to possess any controlled substances. He was breaching these conditions by living at the Blyth residence rather than at his own home, and also by possessing illegal drugs, mainly marijuana but sometimes cocaine. (I note parenthetically that in March 2018 the possession of non-medical marijuana was still illegal in Canada).

25Steven Stelnick was a friend of Keegan’s from high school who was few years younger and had not yet graduated. He testified that he considered Keegan to be his best friend, explaining that he had been bullied at school and that Keegan had protected him. However, he testified that he and Keegan had been spending less time together since Mitchell Pepper and Stephen Chanady began living in the Blyth’s basement, because Steven Stelnick did not like them and was afraid of Stephen Chanady.

26Steven Stelnick sold marijuana, which he would buy from Dimytri Ingram-Piruzevski, who he knew by the nickname “Maverick”. Stephen Chanady and Mitchell Pepper both testified that while they were living in the Blyth’s basement, they and Keegan regularly bought marijuana from Steven Stelnick. Neither could recall them ever buying it from anyone else.

27Steven Stelnick initially denied that he was a drug dealer or that he routinely bought large quantities of marijuana from Dimytri, maintaining that he would only buy an ounce of marijuana from him every two to three weeks. As I will discuss, Dimytri’s evidence was that Mr. Stelnick regularly bought half a pound a week, and sometimes more, and Steven Stelnick eventually and with great reluctance acknowledged that this was true.

28This admission came about after he was questioned extensively about numerous text messages the police extracted from his phone in which he appears to have been either arranging drug sales or arranging to buy large quantities of marijuana. Mr. Stelnick initially claimed that the latter messages had just been talk and that he had never followed through, but as he continued testifying he eventually admitted that he did sometimes buy as much as a pound of marijuana from Dimytri, although not “all the time”.

29Mr. Stelnick’s evidence about his own drug dealing also evolved during his testimony. He went from initially denying that he ever resold any of the marijuana he bought, to admitting that he would “sell it once in a while”, to eventually acknowledging that in March 2018 he had for the past six months been regularly reselling marijuana that he bought from Dimytri, and agreeing that they could be considered to have been in business relationship. However, Mr. Stelnick denied selling any other types of drugs, and sought to explain outgoing text messages on his phone that seem on their face to be about selling cocaine by claiming that some other person must have been using his phone and sent these messages.

30Steven Stelnick’s cell phone was seized by the police on March 28, 2018 and submitted to the York Regional Police’s Cybercrime and Technical Data Recovery Unit for examination. An extraction report was filed at trial as an agreed statement of facts, and the report’s author, Det. Cst. Mike Morrison, also testified. He explained that the police had been able to recover many deleted incoming and outgoing text messages from the phone, but that when messages were recovered “it is not uncommon that not everything is going to be there”. Many of the recovered text messages from Mr. Stelnick’s phone are missing information about the other phone number that sent or received the message, and in some instances the contents of the messages themselves could not be recovered.

2. Dimytri Ingram-Piruzevski

31Dimytri Ingram-Piruzevski acknowledged at the start of his testimony that he had pleaded guilty to manslaughter in connection with the death of Keegan Blyth and that he had received an effective seven-year penitentiary sentence.

32In March 2018 Dimytri was 19 years old and was supporting himself by selling marijuana and other drugs. He lived in a house in Newmarket that he shared with two housemates. One of his housemates, Yashar Sadeghi, had gone to high school with Keegan Blyth, but Dimytri did not know Keegan personally. He had also never met Stephen Chanady but knew his name. However, Dimytri knew Mitchell Pepper well enough to recognize him because they had attended summer school together a few years earlier.

33Dimytri described Steven Stelnick as one of his “runners”, by which he meant a regular customer who bought large quantities of drugs at a discounted price, presumably to resell. He testified that most weeks he sold Steven Stelnick a half pound of marijuana, but sometimes sold him as much as a pound. Mr. Stelnick also sometimes bought smaller quantities of other drugs that Dimytri assumed were for his personal use. Dimytri ordinarily did not let his customers visit his home, but Steven Stelnick was an exception because Mr. Stelnick and Yashar were friends from high school. However, Dimytri did not socialize with Mr. Stelnick himself.

34Dimytri did not have his own vehicle and relied on other people to give him rides, both when he was delivering drugs and meeting his supplier to restock, as well as when he had to go places for non-drug related reasons. He regularly got rides from Justin Ryan, but generally did not let Justin come with him to meet his clients or his drug supplier, explaining:

[I]f I was going to someone’s house, and I wanted to sell [to] them and Justin was driving me there, I wouldn’t want Justin just sitting out front of his house while I run in and do the deal. I would want him to drop me off, and then like I would either meet him around the corner or get him to pick me up after a certain amount of time. Just to kind of keep it as low profile as possible and, in regards to Justin … he had a kind of awkward personality, so like when I’m selling drugs it’s very serious right. There’s money and drugs involved. It gets serious and Justin is not necessarily the kind of person you’d want in some of those situations.

35Dimytri testified that in 2017 he had been attacked by a group of men, one of whom had pulled a knife and stabbed him. In 2017 he had not yet started selling drugs, and the attack was not drug related. It left him with life-threatening injuries, and he required a medical airlift and multiple surgeries that led to his spending more than a week in hospital. Dimytri testified that he still suffers pain from his injuries and sometimes has difficulty breathing, and these side effects were “a lot worse” in March 2018 than they are now.

36Dimytri explained that after he was stabbed he became “paranoid about [his] own safety” and began routinely carrying weapons for self-defence. He usually kept an extendable baton in one jacket pocket and a Taser in his other jacket pocket, and folding knives in each of the two back pockets of his pants. He explained that he started doing this even before he began selling drugs, and that his habit was to carry these weapons whenever he went out, even when he was not planning any drug-related business. Dimytri explained further that the prospect of having to use his weapons during a drug transaction “wasn’t a thought that came across my mind a lot”, explaining:

It’s better to have it and not need it than to not need it and have it, that’s the way I look at it. So … it’s not like on a daily I was contemplating the fact that I might have to use these weapons, it’s more of the fact that I felt more safe knowing that I had the weapons in case I was in a situation where I needed them.

37Dimytri acknowledged that once he started selling drugs this heightened his safety concerns. He explained that one of the main dangers faced by drug dealers is that “people want to target you and take what you have”. He had never been robbed, but people had made robbery threats against him and then backed down. Dimytri explained that reputation is important in the drug culture, and that if other people perceive you as “a nobody” or “scared” they will be “more likely to target you”.

3. P.S.

38P.S. was 16 years old in March 2018. By the time he testified at trial in March 2022 he was 20 years old. He testified that he had been physically much smaller four years ago than he is now. In March 2018 he had been approximately 5’ 8” tall and weighed 130 pounds, whereas he now stands 5’ 11” tall and weighs 190 pounds. His evidence about his size and build in March 2018 is confirmed by the testimony of other witnesses and by contemporaneous photographs.

39P.S.’s father died when he was a young child, and when he was 14 years old the CAS removed him and his siblings from his mother’s care and put them in foster care. At one point P.S. lived in a foster home with Yashar Sadeghi and another of Dimytri’s friends, which is how he and Dimytri first met. When Dimytri and Yashar became housemates in the fall of 2017 P.S. often went to visit them, and he frequently stayed overnight or for several days at a time. Dimytri testified that he considered P.S. to be “like a little brother”.

40P.S. explained that in March 2018 he was living in a group home in Scarborough, but he was unhappy there and his social worker had arranged for him to move to a different group home in Markham, where his sister was already living. P.S. testified that he was supposed to meet with his social worker on the morning of March 27, 2018 to finalize this move. He explained that for the past week he had been staying at Yashar and Dimytri’s house because he did not feel safe at the Scarborough group home after another resident had accused him of theft and threatened to beat him up.

41P.S. testified that he was aware that Dimytri had been stabbed and badly hurt in 2017, and that after this incident Dimytri had become “abnormally paranoid” and had taken to carrying weapons everywhere, even if it was just the two of them going out together to Tim Horton’s.

B. Evidence that Keegan Blyth and his friends discussed robbing Dimytri

42Steven Stelnick testified that at some point prior to March 27, 2018 – he could not recall exactly when – he had been at the Blyth residence with Keegan, Mitchell Pepper and Stephen Chanady, and they had asked him where he bought his marijuana. When he named “Maverick” as his supplier, the others began talking about perhaps robbing Maverick. They asked Mr. Stelnick to give them more details, including Maverick’s phone number, but Mr. Stelnick says that he refused to provide it. One of the others then took Mr. Stelnick’s phone and obtained the number without his permission from either his contacts list or his text messages.

43Mr. Stelnick had previously given inconsistent explanations about how this happened, and whether one of the others forcibly took his phone from him or merely picked it up off a counter where he had left it. He testified at trial that he could no longer remember exactly what had happened, or why he previously gave inconsistent accounts about it. However, he then testified that his phone was “probably” grabbed out of his hand and that it was “probably” taken by Stephen Chanady, because he was the one in the group who Mr. Stelnick feared the most.

44Mr. Stelnick did not agree with the suggestion put to him by Crown counsel that his account of Keegan and his friends discussing robbing Maverick was a story that he made up and told the police to protect himself and Dimytri.

45As I will discuss further later, the text messages retrieved from Steven Stelnick’s phone include an exchange with an unknown person on March 19, 2018 in which the unknown person told Mr. Stelnick that Keegan had called “out of nowhere” asking to buy a large quantity of drugs, which the unknown person believed was an attempt to “line [him] up” for Stephen Chanady. Mr. Stelnick interpreted “line up” to mean “set up to be robbed”.

46Christopher Theobald was another friend of Keegan’s who sometimes visited the Blyth residence. He had previously testified at the second preliminary inquiry that he had been present during a conversation in which Keegan and the friends living in his basement had talked about robbing Dimytri, although later in his preliminary inquiry evidence he admitted that he couldn’t remember the word robbery being used and only remembered the others talking about “taking a pound from someone”. By the time Mr. Theobald testified at trial he could no longer remember this conversation at all, and his memory was not refreshed by reviewing his previous testimony, even though he agreed that he had been trying to tell the truth at the time. When he was cross-examined by the Crown at trial he also acknowledged that the conversation might have been about “grabbing” a pound of marijuana, which could have meant buying it rather than stealing it. (I should note that many of the other witnesses who testified at trial used the term “grab” to refer to buying drugs).

47Stephen Chanady and Mitchell Pepper denied that they ever had any conversation about robbing Dimytri, or that they ever took his phone number from Steven Stelnick’s phone without Mr. Stelnick’s permission. Rather, as I will discuss later, they both maintain that Mr. Stelnick voluntarily gave Dimytri’s phone number to Keegan Blyth at some point on or before March 26, 2018.

C. Events leading up to the March 27 meeting and altercation

48Keegan Blyth’s mother testified that on the afternoon of March 26, 2018 she saw Keegan and his two male friends out at the barn working and “goofing around”. She thought that Emma was away from the house and at work. After dinner she drove Keegan to Emma’s house, intending to pick her up and bring her back to the Blyth residence, but Emma ended up getting a ride back with someone else and was already back at the Blyth home when they returned. The rest of the evening was uneventful, and Ms. Blyth went to bed at around 10:00 p.m.

1. Keegan Blyth’s initial phone call to Dimytri Ingram-Piruzevski

i) The conflicting evidence about how Keegan got Mr. Ingram-Piruzevski’s phone number

49Stephen Chanady and Mitchell Pepper both had only a vague recollection of what they did during the day and early evening of March 26. However, they both recalled that later in the evening the subject of buying marijuana came up. According to Mr. Chanady, they all wanted to smoke and realized that they had no marijuana or only a very small amount left, so they decided “to put [their] money together and grab”. Mitchell gave a similar account, although he recalled Stephen Chanady not being present when the topic first came up between him and Keegan, and only joining the discussion later.

50They both testified that the conversation about buying marijuana eventually led to Keegan either calling Steven Stelnick or sending him a text message. Mr. Stelnick gave Keegan Dimytri’s phone number and Keegan then phoned Dimytri. However, Mitchell acknowledged that it was possible that Keegan had obtained Dimytri’s number from Mr. Stelnick earlier.

51In cross-examination Mitchell Pepper initially agreed that Keegan did not call anyone else that night to try to get marijuana from them before contacting Steven Stelnick to get Dimytri’s number. He was then cross-examined about the contrary testimony he had given about this issue at the second preliminary inquiry, where he had said that Keegan had first tried unsuccessfully to contact “all our regulars”. Mitchell’s initial response at trial was to assert that this was the truth, but he eventually agreed that it was not true, and that his evidence at the preliminary inquiry about this having happened had been “intentionally designed to deceive”, by making it seem as if Keegan only got Dimytri’s number as a last resort after his attempts to buy from his other regular sources failed.

52As I have already discussed, Steven Stelnick maintains that on an earlier date one of the group obtained Dimytri’s number from his phone by taking it without his permission. He denies ever giving any of them Dimytri’s phone number voluntarily, and specifically denies that he gave it to Keegan on the evening of March 26.

53The phone reports and records show that there were multiple phone calls and text messages exchanged between Keegan and Steven Stelnick’s phones earlier in the day on March 26. However, these text messages were among those retrieved from Mr. Stelnick’s phone after being deleted where the contents of the messages could not be recovered. The police were also unable to find Keegan’s phone when they searched the Blyth residence. They did later obtain his phone records from his cell phone service provider, but these records only show the times and duration of his calls and text messages, not their contents.

54However, the data available on Steven Stelnick’s phone and Keegan’s phone records show that the communications between their phones stopped after 6:22 p.m. and did not resume until 9:58 p.m., when Keegan called Mr. Stelnick. As I will now discuss, this was after Keegan made his first telephone call to Dimytri Ingram-Piruzevski that evening.

ii) Mr. Chanady and Mr. Pepper’s inconsistent accounts about the size of their proposed marijuana purchase

55Stephen Chanady and Mitchell Pepper’s accounts about how much marijuana they and Keegan planned to buy from Dimytri that evening have both changed over time, and in Mr. Chanady’s case continued to evolve during his trial testimony.

56Mitchell Pepper testified at trial that he and his friends had decided to buy a pound of marijuana from Dimytri, and he agreed in cross-examination that it was possible they might have planned to buy as much as a pound and a half. He maintained that the drugs were to be for their own personal use, explaining that it was cheaper to buy in bulk. On Mitchell’s account, Keegan first tried to make the purchase from Steven Stelnick, but he could not supply them with such a large quantity so he referred them to his own supplier, Dimytri. Mitchell testified that he expected the drugs to cost around $1,200 or $1,300, “which was solid for a pound at the time”, and that he contributed $400 or $500 of the purchase money himself, with Keegan putting in between $600 and $800.

57Mitchell acknowledged that when he first spoke to the police after Keegan was stabbed he had lied and said they had only planned to buy a quarter-ounce of marijuana from Dimytri. He had then gone to give the police a detailed account about how Keegan had approached the person who had arrived with Dimytri and had tried to do a “slick handshake” transaction where he gave the man the purchase money and received the drugs in return. He told the police how a fight then started when the other man didn’t give Keegan anything back.

58At the first preliminary inquiry Mitchell revealed that he and his friends had really been planning to buy a pound of marijuana that night, and that the story he told the police, including his account of how the altercation started after a failed hand-to-hand transaction, was a fabrication. He acknowledged at trial that a pound of marijuana was much too bulky to be exchanged hand-to-hand in the way he had described to the police.

59Mitchell insisted at trial that even though he had lied to the police he could be counted on to tell the truth in court. In response to the suggestion that he would lie to keep himself out of trouble, he replied:

Well, I mean, not on the stand, but you know, in, in an interrogation room, maybe. You know — yeah, you might need to get out the water board or something for this guy. Like, yeah, you know, but on the stand’s completely different, you know.

60Mitchell also denied that he and Stephen Chanady had coordinated the changes in their stories about the size of the marijuana purchase, dismissing it as coincidental that they had both first told similar lies to the police and then both changed their evidence in the same way at the two preliminary inquiries.

61At trial, Stephen Chanady initially testified in chief that he and his friends had pooled their money and planned to buy “a couple ounces” of marijuana, which would have cost around $200 to $300. He added that they had been buying similar quantities from Steven Stelnick “at least once a week”. While still testifying in chief, Mr. Chanady was reminded that his evidence at the second preliminary inquiry had that Keegan had talked that evening about buying a pound, but he responded that this did not refresh his memory.

62In cross-examination Mr. Chanady was questioned further about his evidence at the first preliminary inquiry, where he had also testified that they had planned to buy a pound of marijuana that night. He eventually agreed that they had indeed planned to buy “at least a pound” that night, but he could not recall if it might have been as much as a pound and a half. He explained further that Keegan had wanted to resell some of the drugs and denied that he had been planning to do this himself, testifying that he had stopped selling drugs after being charged with trafficking in 2017. Mr. Chanady eventually also agreed that he had lied to the police when he told them that they had only been planning to buy a half-ounce of marijuana that evening.

iii) The first phone call from Keegan to Dimytri

63Dimytri Ingram-Piruzevski testified that P.S. spent the evening of March 26 at his and Mr. Sadeghi’s house. At some point Justin Ryan came over and drove Dimytri to meet with his own drug supplier at a shopping plaza and to make a delivery to one of his own customers. The phone records show Dimytri arranging these meetings in a series of text message exchanges between 9:00 p.m. and 10:00 p.m.

64The phone records also show that Keegan Blyth first called Dimytri at 9:53 p.m., and that this call lasted for nearly four minutes. Dimytri recalled getting the call shortly before he left to go meet his supplier. He did not recognize the incoming phone number but decided to answer it anyway. Keegan identified himself by his first name, said he had obtained Dimytri’s number from Steven Stelnick, and said that he wanted to buy a pound and a half of mid-grade marijuana. Dimytri told him this would cost $2,400. Dimytri also recalled that during this initial conversation with Keegan:

[O]ne thing I did say to him, I said “Listen I’ve been stabbed before. I’m not playing no funny games like, you know, I’m bringing my people with me to go make this deal, but I’m not playing any games”. And from what I recall he was like “Oh, okay yeah. No, I’m not playing any – you know, I’m not doing anything stupid”, or something along the lines of that.

Dimytri could not remember if Keegan suggested during this first phone call that they meet at his house in the countryside north of Newmarket, or whether he only proposed this in a later conversation.

iv) Ensuing phone calls and text messages

65The phone records show that Keegan then called Steven Stelnick at 9:58 p.m. This call lasted only six seconds and may have gone to voicemail. A few seconds later Dimytri also called Mr. Stelnick, who again did not answer. Dimytri explained that he called because he wanted to see if Mr. Stelnick would vouch for Keegan.

66Keegan called Steven Stelnick again at 10:01 p.m. and they had a conversation that lasted for almost 30 seconds, followed almost immediately by a second call that lasted for more than three minutes. Mr. Stelnick recalled Keegan phoning him that evening but initially testified that he did not remember what they had talked about. However, he later adopted his evidence at the first preliminary inquiry, where he had testified that during this phone call Keegan had asked him how well he knew Dimytri and “asked a bunch of questions” about him. Mr. Stelnick explained at trial that he thought this was “sketchy”, adding that he ended the call by warning Keegan against “planning to do anything dumb.” Mr. Stelnick explained further:

Cause before [Keegan] asked me about robbing him and then he calls me randomly asking me about Dimytri. I, kind of, put puzzles together, like, something like that and then I was like, don’t do anything dumb. And since I was younger, they … would never listen to me.

67At 10:01 p.m. Dimytri made a phone call to a number listed in his contacts as “Zen20”. He explained at trial that this call was to a friend named Brad who was older and larger and sometimes acted as “essentially my muscle”. Brad was visiting a friend named Colton at the time, and both men agreed to accompany Dimytri to the planned meeting with Keegan. Dimytri explained a trial that he did not want to meet with Keegan alone because his call had given him “a little bit of an odd feeling right off the bat”, since it was unusual for a stranger to call and order such a large quantity of marijuana.

68Between 10:09 p.m. and 10:20 p.m. Steven Stelnick and Dimytri exchanged the following text messages:

STELNICK: U called?

DIMYTRI: Yee, keagen called me

STELNICK: Keegan who

STELNICK: A lot of them loll sorry

DIMYTRI: Askin bout a p n and a half idk which one

STELNICK: Ahlie did he say he knows me

DIMYTRI: Yea said u gave him my number

STELNICK: Ohhhhh yeahh Kegan

STELNICK: B

DIMYTRI: Word he cool?

STELNICK: Yeah I’m pretty sure I chill with him a little but I’m not tight with him he just told me he needed and I didn’t have to I linked your number to him when I was ot

DIMYTRI: Word ok i’m bringing my boys with me to chop him tn

69Dimytri explained at trial that “chop him” meant “sell him drugs”, and that his comment about “bringing my boys” was a reference to Brad and Colton, who had agreed to come with him to meet Keegan. He understood Steven Stelnick to have been explaining that he could not supply Keegan himself because he was out of town, and that this was why he had given Keegan Dimytri’s phone number.

70Steven Stelnick acknowledged at trial that much of what he told Dimytri in this text message exchange was not true. He considered Keegan to be his best friend, not merely a casual acquaintance with whom he was “not tight”. Mr. Stelnick was also not out of town, and on his account Keegan and his friends had taken Dimytri’s number from his phone without his permission. Mr. Stelnick testified that he lied to Dimytri because he “was scared to be caught up in between the middle of them”, explaining:

One was my best friend, and one was my drug dealer. I didn’t know what was going to happen. So, if I said, “Oh, this guy took my phone, took my number and he’s going to rob …”. … I didn’t know how Keegan and them would pursue it. I mean, what would happen after that. If it would start a beef or something or something that would happen, I don’t know. I didn’t want to be in the middle of it.

I assume there’s a drug dealer going to get robbed and there’s kids trying to rob him, something bad pans out of that situation. I didn’t want to be stuck in the middle. I didn’t want to say anything because I didn’t want something to be bounced back to me.

71Mr. Stelnick explained further that a few years earlier he had been labelled a “snitch” on social media and been bullied for it, and that he was afraid something similar might happen now if he warned Dimytri that he thought Keegan and his friends planned to rob him.

v) Further phone contacts between Dimytri and Keegan

72At 10:38 p.m., Dimytri sent Keegan a text message stating: “Yo still want that p and a half for 2400? I’ll be omw in bout 25m”. He testified that he was no longer sure why he had told Keegan he needed 25 minutes, explaining that he might have been budgeting extra time to go pick up Brad and Colton, or might simply just been stalling because he was “a bit of a loaf” and “like[d] to take [his] time”.

73A few minutes later, at 10:41 p.m., Keegan made a phone call to Steven Stelnick that lasted nearly a minute and a half. Mr. Stelnick testified that he could no longer remember what this call was about.

74At 10:44 p.m. Dimytri phoned Keegan, in a call that lasted for 44 seconds. Dimytri testified at trial that he made this call because Keegan had not replied to his 10:38 p.m. text, and explained:

I believe what I said to him, I said “Hey you need that me and my boys are gonna come drop that off to you soon”, and then he would have – he said “Oh, my boys left and they took the money with them. We’ll just have to grab off you another time.” So, I said “Okay no problem I’m around all day tomorrow”, and that was the end of the phone call.

75At 10:53 p.m., Brad texted Dimytri: “what’s the word, fam”, and followed this up by phoning Dimytri three minutes later, in a call that lasted 24 seconds. Dimytri explained at trial that Brad had been expecting Dimytri to come pick him up, but that when they spoke on the phone Dimytri told Brad that the deal that night was off, and he no longer needed Brad and Colton’s help.

76Between 10:52 and 11:03 p.m. Mr. Stelnick and Dimytri exchanged a further series of text messages that read as follows:

STELNICK: Ahlie ok just my sure your blessed cuz that’s a lot and I don’t chill with him much.

DIMYTRI: Ok you he might be tryna hit a lick but I got my riders so im not worried

STELNICK: Like I’m kinda thinking that too but like as long as you have boys your good lmk what happens brotha I’m just probably gonna k cuz I got school

DIMYTRI: For sure homie stay safe

STELNICK: Ahlie did he say he knows me

DIMYTRI: Yeah yo u too

77Dimytri testified that it was important in the drug business not to give an impression of weakness. He explained that “hit a lick” meant “rob”, and that he had been trying to “portray to Stelnick … that I’m a big guy, basically”, and he was not worried about robbery because he would have people with him. He explained further:

So, like I’m basically saying to him I have people that are ready to ride out, like they’re ready to get involved like if there’s problems is what I’m trying to portray to Stelnick, and the reason that I worded it like this was because I was kind of like, I was a little suspicious of Stelnick for sending my number to Keegan in the first place. So, I was just kind of like in my head I’m thinking like “okay you know I’m trying to show Stelnick that like I have people.” Like I have what I was referring to as riders … [L]ike what I’m trying to say to him is I’m not afraid to deal with problems.

78Mr. Stelnick testified that in his texts to Dimytri he was still to try to distance himself from Keegan and his friends because he thought they meant to rob Dimytri. He explained that his agreement with Dimytri’s suggestion that Keegan might be planning to rob him had been his “way of trying to say don’t go, don’t do it”. Mr. Stelnick agreed that he then sent Dimytri a further text expressing his own interest in buying a pound of marijuana from Dimytri in the next few days.

vi) Further texts and phone calls between Keegan and Dimytri

79Starting at 11:14 p.m. Keegan and Dimytri exchanged a further series of phone calls and text messages. The first was a 3 minute and 40 second call from Keegan to Dimytri that began at 11:14 p.m., half an hour after their last phone conversation. Dimytri testified that during this call Keegan asked if they could still do the deal tonight, explaining that his “boys left the money with me” and that he wanted some weed to smoke. Dimytri confirmed that Keegan still wanted to purchase a pound and a half, and said he would come over and they could “talk about future business”.

80Dimytri testified further that during this call Keegan told him not to bring as many as three or four people with him, because Keegan’s parents were asleep and he did not want them seeing so many people going into the basement. The call ended with Keegan saying that he would text Dimytri his address. He then did so half an hour later, at 11:44 p.m., along with a text apologizing and explaining that he thought he had already sent it.

81Keegan then phoned Dimytri again at 11:51 p.m., in a call that lasted for slightly less than a minute. Dimytri’s recollection is that Keegan called because Dimytri had not replied to Keegan’s most recent texts, and Keegan wanted to confirm that he was still coming. A few minutes later, at 12:03 a.m. on what was now the morning of March 27, Keegan texted to ask Dimytri to let him know when he was five minutes away.

82Dimytri sent a reply text saying that he had just left and that he would be bringing two different kinds of mid-grade marijuana for Keegan to examine, to which Keegan responded “Aight that’s cool”. A few minutes later, at 12:11 a.m., Dimytri sent a further text apologizing and saying that he was “just droppin my boy off then coming”, to which Keegan replied OK, and reminded Dimytri to text him when he was close. Dimytri testified at trial that despite what he told Keegan in these text messages he had not actually left his house yet. He explained that he was “a bit of a loaf” and was taking his time about getting to the meeting, but did not want Keegan to know this, adding:

I’ve never met this guy right so first impressions are pretty big. So, I don’t wanna be like “Oh yeah, sorry.” You know I wasn’t gonna be like “Yeah, I’m just getting high and watching tv first” or something like that, right. Like instead I’d much rather him think he’s waiting because I’m busy and I’m doing something, not just because I’m being slow.

vii) Dimytri enlists P.S. to come with him to the “chop”

83Dimytri testified further that even with the deal with Keegan now back on for that night he did not return to his original plan of bringing Brad and Colton with him to the meeting, since Keegan had asked him not to bring multiple people. Dimytri decided that he would instead try to get either his roommate Yashar or P.S. to come with him. He asked P.S. first, but he declined. He then asked Yashar, who also said that he did not want to go. However, when Dimytri expressed his concern to Yashar about whether he was being set up, Yashar replied that Keegan was an old friend from high school and that Dimytri should give him a good deal and say hi for him.

84Dimytri testified that this eased his concerns and made him wonder if he had been “just being paranoid”. His fears were also allayed by Keegan having proposed that they meet at what Keegan said was his parents’ house. Dimytri explained:

[A]nother thing to mention he was doing it at his address, which at the time I didn't know it was his specific, like his family’s address, right, but in my head if someone’s going to set you up …. Like, to me, I wouldn’t think you would do it on your driveway. I thought … it would make more sense to do it somewhere where no one is going to know where you live. … [S]o … to kind of sum it up, I had some red flags, but then there were also some things that made me think that, you know, maybe it’s okay.

85Dimytri still did not want to go to the deal alone, nor did he want his driver, Justin Ryan, to go into the house with him, both because he thought it would look suspicious to leave a car parked outside the house late at night, and because he usually tried to keep Justin away from his customers because of his personality. Dimytri accordingly went back to P.S. and “basically [told] him to come with me… to this chop”. He explained at trial:

[T]he reason I’m taking him over Yashar is because like they both didn’t wanna go, but Yashar lives at the house. … [So] ... out of the two, I was like, okay, if Yashar wants to stay here, P.S. wants to stay here, I’m gonna take P.S. So, I was like “Hey, P.S., come with me.”

Dimytri did not share with P.S. the concerns about the deal he had discussed earlier with Yashar.

86P.S. testified that one of the reasons he did not want to go with Dimytri was that he had to get up early the next morning to see his social worker about his upcoming move to the new group home. However, Dimytri told him that he “had to go” and that it was “going to be quick”. P.S. felt that he owed Dimytri for having let him stay at his house for the past week, so he decided not to argue and to just do what Dimytri asked.

87Dimytri and P.S. both testified that before they left the house Dimytri handed P.S. one of the two knives that he habitually carried in his back pockets. Dimytri recalled giving P.S. this knife just as they were leaving, and testified that when P.S. looked puzzled, he told him: “Just to stay safe”. Neither of them then said anything further about it.

88P.S.’s recollection is somewhat different. He testified that Dimytri first handed him the knife while they were still in Dimytri’s bedroom, but that P.S. left it on a table because he didn’t want to take it with him. However, when they were leaving the house Dimytri asked if P.S. had the knife, and then told him to go get it. P.S. explained at trial that he did not want to argue with Dimytri so he got the knife from the bedroom and put it in his left jacket pocket. Dimytri agreed in cross-examination that he might have told P.S. to go get the knife from the bedroom, although he did not recall doing this.

89P.S. explained at trial that he did not think he and Dimytri would be in any danger or that he would have to use the knife, because he had overheard Dimytri asking Yashar if the person he was going to meet was a cool guy, and Yashar had said he knew him from high school. Dimytri then told P.S. during the car ride that they were going to meet one of Yashar’s high school friends at the friends’ house, where they would all have a smoke and Dimytri and the friend would talk future business. P.S. also thought that Dimytri had been excessively worried about his safety ever since the 2017 stabbing incident. He did not bother bringing his phone with him because Dimytri said they would not be gone long.

90Justin Ryan drove Dimytri and P.S. to the Blyth residence north of Newmarket. At 12:18 a.m. Dimytri sent a text to Keegan that read:

Im bout 5m away my driver is gonna drop me and my boy off and we will chill abit and talk numbers then ill text him to come get me.

Five minutes later, at 12:23 a.m., he sent another text reading simply: “Here”. Justin dropped Dimytri and P.S. off at the end of the driveway and drove away, and they both began walking up the driveway towards the house.

91Dimytri was carrying a backpack, secured with a padlock, in which he had a pound and a half of marijuana, divided into three separately bagged half-pounds. Dimytri understood that they would be going down to the basement so that Keegan could try the different strains of marijuana Dimytri had brought, and they could discuss whether he wanted to become a regular customer.

92As I have already mentioned, the driveway that leads up to the Blyth residence goes north for some distance before turning sharply to the right and continuing east towards the attached garage and the house. To the left of the garage there is a fence covered with dense vegetation that runs parallel to the driveway. There is a gap between the end of this fence and the side of the garage. It was a dark night, and the only light in the area was a single bulb over the front door of the residence, which is situated on the south side of the house at roughly the mid-point of the building.

D. The conflicting accounts of the altercation

1. Stephen Chanady and Mitchell Pepper’s evidence

93As I have already discussed, Stephen Chanady and Mitchell Pepper maintain that they and Keegan had pooled their money to buy marijuana together, and that Keegan arranged the meeting with Dimytri because they genuinely meant to make a substantial drug purchase from him. They deny that there was any plan to rob Dimytri, or that any of the three of them were armed with a weapon that night.

94They both testified that when Keegan got the text from Dimytri saying that he was five minutes away they all went outside to wait. They were having a smoke near the front door when the car pulled up at the end of the driveway. The people they now know to be Dimytri and P.S. got out and started walking up the driveway towards the house. As I have already mentioned, Mitchell knew Dimytri, but P.S. was a stranger to them both. Neither purported to positively identify P.S. as the second man, but his identity is not in dispute.

95Stephen Chanady and Mitchell Pepper give somewhat different accounts about what then happened. According to Mr. Chanady, Mitchell and Keegan walked down the drive together to meet the arriving men, while he stayed on the front porch. However, Mitchell maintains that Keegan went down the driveway by himself, and that he and Mr. Chanady stayed on the porch together.

i) Stephen Chanady’s evidence

96Stephen Chanady testified that within a minute of Keegan and Mitchell walking down the driveway to meet the two men he saw that a fight had broken out between them, but he did not see or hear how it started. Mitchell was fighting the man wearing a backpack, who Mr. Chanady now knows to be Dimytri, and Keegan was fighting the other man, who Mr. Chanady now knows to be P.S. P.S. seemed to be punching Keegan in the stomach, and Keegan punched P.S. in the face twice. Mr. Chanady ran over and grabbed P.S. from behind by the “back of his shoulders” and either pulled him off Keegan or “tried to throw him off of him”. P.S. then turned and “came at” Mr. Chanady from about a metre away. He slashed at Mr. Chanady several times and cut his left arm, just above his elbow. At this point Mr. Chanady heard Keegan say he had been stabbed. Mr. Chanady, Keegan, and Mitchell Pepper all went back toward the front door of the house while Dimytri and P.S. ran off in the opposite direction, down the driveway towards the road.

ii) Mitchell Pepper’s evidence

97Mitchell Pepper testified that as Keegan approached Dimytri and P.S. he saw movements that might have been a handshake, but that it was dark and he was not sure what he saw. It was at that point that “things got out of hand”. Mitchell testified:

It looked to me like they were trying to, like, shake the money down from Keegan, like, telling him, like, give me the money or something.

Mitchell did not see exactly what happened, and initially testified:

It was pretty dark out that night, but — I don't know, I guess they were doing the transaction and I don't know. Like, from what it looked like to me, like, I don't know. Like, they took the money from him, and then Keegan started, like — I don't know. I'm not even — I don't even know. Like, I could just tell, like, something was happening.

He later acknowledged that he was not sure if Keegan handed over any money, explaining that his “perspective on the situation is a little jumbled”.

98Mitchell, who has martial arts training, maintains that he then ran over from the porch and tackled Dimytri. He explained that he did a “spin-tackle” in which he grabbed Dimytri and threw him some ways closer towards the porch. He followed this up by going over to where Dimytri was now lying and getting on top of him and continuing to beat him. Mitchell acknowledged that he never saw Dimytri touch Keegan before Mitchell tackled him, and that Dimytri also never punched Mitchell, who on his own account was “kicking his ass”.

99Stephen Chanady also ran over from the porch. Mitchell did not need help handling Dimytri, so he told Stephen to go to Keegan, who Mitchell agreed was also someone who knew how to fight. About 30 to 45 seconds later Mitchell heard Keegan saying he had been stabbed, but he did not see what had happened. Mitchell got off Dimytri and went to help Keegan, who he saw had blood on his hands. When Mitchell got off him Dimytri stood up and left. Mitchell later learned that Stephen Chanady had also been stabbed in the arm, but he did not see how this happened.

2. Dimytri Ingram-Piruzevski and P.S.’s evidence

i) Dimytri Ingram-Piruzevski’s evidence

100Dimytri Ingram-Piruzevski testified that he and P.S. walked down the driveway towards the house, with Dimytri in the lead and P.S. walking slightly behind him and to one side. As they came around the bend in the driveway Dimytri could see a man wearing a grey baseball cap smoking on the front porch, standing under the only light in the area. He could not see anyone else, but it was very dark. Stephen Chanady acknowledged that he was wearing a grey baseball cap that night. A grey cap with what look like bloodstains on it was later found in his bedroom in the basement, and Mr. Chanady identified it in a photo as the one he had been wearing that night.

101At this point Dimytri “started getting a really bad feeling”, and he briefly reached for one of the weapons he had in his jacket pockets until it occurred to him that this “would just look really bad” to the man on the porch, so he took his hand back out of his pocket. He then yelled “Yo” to the man on the porch as a greeting.

102At this point Dimytri heard footsteps to his left and turned his head but could not see anything in the dark. Someone he could not see then punched him in the face and pushed him to the ground. Once Dimytri hit the ground he could feel that there were two men punching and kicking him, and he thought one of them said “Gimme your bag”. One of the men grabbed the handle of Dimytri’s backpack and used it to pull him across the driveway. This man then resumed punching and kicking him. Dimytri thought that there was now only one man attacking him.

103Dimytri then heard someone yell: “He’s got a knife”, and thought he was about to be stabbed. He reached for the knife he kept in his right back pants pocket, but it was gone. The man who was still attacking him punched and kicked Dimytri a few more times and then “jumped off me and ran”. Dimytri picked himself up and saw P.S. standing nearby. He did not see where the other men had gone.

104Dimytri and P.S. both started running towards the road, but Dimytri, who has asthma as well as breathing difficulties caused by his 2017 injuries, had to slow to a jog. He tried to call Justin but could not find his cell phone it in his pocket, and P.S. said he had not brought his own phone with him. When they got to the end of the driveway Dimytri asked P.S. if he had stabbed anybody, and P.S. replied: “I don’t know”.

105Dimytri and P.S. came out of the driveway and turned right onto the road. They saw a parked car some distance away, and when they got closer Dimytri recognized it as Justin’s vehicle. Dimytri got into the front passenger seat and P.S. got in the back. Dimytri told Justin: “Let’s go, we got jumped”, and Justin drove off at high speed.

106Dimytri then noticed that his nose was bleeding and that he had blood on his sweater. He testified:

I look back in the back seat and P.S.’s dealing with his nose. His face is covered in his blood. It’s just pouring out of his nose and he’s trying to like wipe it off and I turn to him and I said “What happened? Did you stab him?”, and he said “I don’t know”. I said: “Let me see the knife” and then he pulls it out of his pocket and it had blood on it so then we were kind of like “holy fuck”.

He could not recall any further conversation taking place in the car.

107They drove back to Dimytri’s house. At some point Dimytri took his knife back from P.S. and when they were at the house he gave it to another man who was visiting Yashar, who cleaned the blood off it and returned it. Dimytri told Yashar and his guests what had happened and tried to get P.S. to talk about it, but P.S. seemed stunned and didn’t say very much. The only things Dimytri could recall P.S. saying were that “there were multiple guys hitting him or something along those lines”, and that they wouldn’t stop and that he had been swinging the knife.

ii) P.S.’s evidence

108P.S. testified that when Justin dropped them off he followed Dimytri up the driveway towards the house. After they rounded the bend in the driveway P.S. saw a man who he now recognizes as Stephen Chanady standing on the front porch smoking a cigarette. He noticed that the man had his right hand in the pocket of his hoodie. He did not see anyone else other than Dimytri, who was walking a short distance ahead of him.

109At this point P.S. heard running footsteps and saw someone tackle Dimytri. He was not sure which direction the attacker came from. Someone else then punched P.S. on the left side of his face. He stumbled and spun fully around so he was now facing away from the porch, but stopped himself from falling by grabbing onto a parked vehicle that was now to his left. His attacker continued to punch him in the face, and P.S. tried to block the blows by putting up first his right hand, and then both hands. His attacker was now in front of him and slightly to his right. At this point another person started hitting P.S. from behind, striking him hard in the back of the head with what felt like something other than a fist. Although P.S. did not affirmatively identify either man it is clear on the evidence that the man who on P.S.’s account was standing in front of him must have been Keegan Blyth, and the man who was attacking him from behind must have been Stephen Chanady.

110P.S. testified that at this point he thought he was going to die. He dropped his hands and used his left hand to pull the knife out of his left jacket pocket, and then opened the knife using his right hand. Still holding the knife in his left hand – P.S. is right-handed – he began jabbing it at the attacker who was in front of him. He did not know at the time if any of his blows made contact. The man said something like: “He’s got a knife” and stopped punching him and ran off. P.S. then turned around and slashed at the man who had been hitting him from behind, and he ran off as well. P.S. then noticed Dimytri lying on the ground, and saw another man get up from on top of him and also run off.

111P.S. testified that his intention when he used the knife on his attackers was “[j]ust to get them to stop”. He did not see any way he could have escaped, since the two attackers were positioned in front of and behind him in what he described as the 1:00 and 5:00 positions, and the path to his left was blocked by the parked vehicle. P.S. explained that “everything happened fast” and that “it was a lot to process”, and he could not estimate how long the attack lasted from start to finish.

112P.S. and Dimytri ran down the driveway together and turned right when they got to the road. They continued down the road until they found Justin parked at the next intersection. P.S.’s nose was bleeding badly, and at trial he described himself as “in shock”. He recalled at one point giving the knife to Dimytri and seeing blood on it. When they got back to Dimytri’s house P.S. used a shirt from his dirty laundry to stanch the flow of blood from his nose.

E. Events at the Blyth residence after the altercation

113After the altercation Keegan, Mitchell and Stephen Chanady all went back to the front porch. Keegan was saying that he had been stabbed. Stephen Chanady testified that he then ran downstairs to the basement and told Emma to call an ambulance. He took off his hoodie because his arm was bleeding and maintains that he threw it into the bedroom he and Emma were sharing without going any further into the room than the doorway. Photographs the police took later show a trail of blood leading across the floor of the basement kitchen from the stairs to the kitchen sink.

114Mitchell Pepper testified that he followed Stephen Chanady down to the basement and helped him try to dress the cut on his arm. He denies that they talked about what they would say to the police.

115Keegan’s mother Carmen Blyth testified that her husband woke her up and told her that Keegan had been stabbed. As she went outside Emma handed her a cell phone to call 911. Carmen recalled that Keegan was sitting on the front steps being tended to by her husband, that Mitchell Pepper and Stephen Chanady were also both still outside, and that both looked upset and confused. Stephen Chanady had blood all over his sweater, and she recalled him saying that he had to go change his shirt, and also commenting that he could not be seen by the police because he was on charges. Ms. Blyth, who by this time was on the phone with the 911 operator, told Mr. Chanady that he had to talk to the police and tell them the truth. She also recalled him and Mitchell Pepper both saying that Keegan had gone out by himself to meet the person who came to the house and that they had been both on the porch when the altercation started.

116Police and paramedics arrived at the house in response to Ms. Blyth’s 911 call. Keegan was taken to Sunnybrook hospital. He had a seizure in the ambulance and lost consciousness. Stephen Chanady also went to the hospital to have the cut on his arm stitched. He then made a police statement, as did Mitchell Pepper. Later that night they both returned to the Blyth residence, but the police would not let them go back onto the property because they were still searching the area. Stephen Chanady wound up going back to his parents’ home, and Mitchell Pepper ended up staying with him for some time.

F. Items found at the Blyth residence

117The police searched the driveway and front yard of the Blyth residence and found a number of items that Dimytri Ingram-Piruzevki identified at trial as ones that fell out of his pockets or came off his person during the struggle, including his knife and his cell phone. These items were found on the southern edge of the driveway in front of the garage, a few metres in front of where an SUV was parked on the south side of the driveway, opposite the fence.

118The next night the police executed a warrant to search the inside of the residence. In the basement bedroom that Stephen Chanady and Emma had been using they found a bloodstained grey baseball cap, which Mr. Chanady identified at trial as the cap he had been wearing that night. In an alcove under the stairs on the far side of the bed, the entrance to which was partly concealed by a set of shelves, they found a bloodstained hoodie, which Mr. Chanady also identified as the top he had been wearing when he was stabbed in the arm. He insisted that he had simply thrown the hoodie into the bedroom from the doorway after taking it off, and he could not explain how it came to be hidden in the alcove on the far side of the bed.

119Also in the alcove, beside the bloodstained hoodie, the police found a grey backpack that contained various items, including two pellet guns and a starter’s pistol, all three of which resemble real handguns. The butt of one of the guns was sticking out of the backpack when the police found it in the alcove. The backpack also contained various other items, including a sheath knife, several pairs of men’s underwear, assorted drugs and drug-related paraphernalia and two birthday cards, one addressed to “Steven” and wishing the recipient a happy 19th birthday, signed by “Leslie, Mark, Masey and Morgan”.

120Stephen Chanady acknowledged that at least one and probably two of the replica handguns belonged to him, but he claimed to have no idea how they wound up concealed in the backpack, or how the backpack came to be hidden in the alcove in the bedroom where he and Emma had been sleeping. He testified that he had last seen the pellet guns a few weeks earlier when he and his friends thought about shooting at targets outside, although they never got around to doing this. Mr. Chanady initially testified that the grey backpack was one that he and Emma had been using, but then resiled from this the next day, testifying that he now thought that it was not his backpack. although he acknowledged that he might be wrong about this.

121Stephen Chanady also denied ownership of most of the items the police found in the backpack, including the knife and the birthday cards. He agreed that he had recently celebrated his 19th birthday but denied that the birthday card addressed to “Steven” was his, noting that he spelled his first name differently. He was then cross-examined on his testimony at the first preliminary inquiry, when he had acknowledged that Masey was a friend’s brother and that his friend’s parents were named Leslie and Mark. Mr. Chanady had admitted at the preliminary inquiry that the birthday card might have been his, although he had still denied knowing what it was doing in the backpack. However, at trial Mr. Chanady would not adopt this prior testimony, explaining that he “wasn’t in the right mind-state” when he gave his preliminary inquiry evidence. His position at trial was that he could not remember if he knew anyone with the names Leslie, Mark, Masey and Morgan, although he eventually acknowledged that the card might perhaps have been his.

122Mr. Chanady denied the suggestion put to him in cross-examination that after the altercation, thinking that the police might search the house, he had put the imitation handguns and his other belongings into the backpack and hidden the backpack and his bloodstained hoodie in the alcove in his bedroom.

G. Steven Stelnick’s text message exchange the next day

123During the early afternoon of March 27, starting shortly after 1:31 p.m., Steven Stelnick exchanged a series of text messages with an unknown person or persons. These messages were deleted from his phone before the police examined it but were recovered during the examination, but the information about the other phone number or numbers involved could not be retrieved. Accordingly, the extraction report does not show whether these messages were all exchanged the same phone number.

124The messages read as follows:

INCOMING (12:02 p.m.) Yo

INCOMING (12:03 p.m.) I need to talk to you

INCOMING (12:03 p.m.) Like this is important

INCOMING (1:04 p.m.) U better not grip off hi

INCOMING (1:04 p.m.) Him

STELNICK (1:31 p.m): Why my mouth is shut he’s my only plug

STELNICK (1: 32 p.m.): How are u

INCOMING (1:45 p.m.) I’m ok but idk weird he called u

INCOMING (1:45 p.m.) And I can get u another plug.

INCOMING (1:46 p.m.) He might be down to spot u have of what you grip and jus pay for the rest

STELNICK (1:56 p.m) Loll ha its weird he called u guys told him I gave you his number

STELNICK (1:56 p.m.) Like

INCOMING (2:18 p.m.) He did

STELNICK (2:22 p.m.) Yes

Steven Stelnick testified that “plug” meant “drug supplier”, as did several other witnesses.

125The defence argues that these messages can be read as an electronic conversation with a single other person, and that it can be inferred from their contents that this other person was Stephen Chanady. Steven Stelnick testified that he did not remember who he had been communicating with on this occasion, and Stephen Chanady denied that it was him.

H. Medical and other scientific evidence

126Keegan Blyth was unconscious when he arrived at the hospital. He underwent surgery that night, after which he remained on life support in a medically induced coma. He died two days later, on the morning of Thursday, March 29, without ever regaining consciousness.

127Dr. Jayantha Herath, who conducted the post-mortem examination, testified that Keegan died from stab wounds to his torso. There were four such stab wounds, the most serious being a wound to the left side of his chest that went through the diaphragm and penetrated his liver and spleen. Three of these stab wounds would in Dr. Herath’s opinion have required “severe force” to inflict. These latter injuries were all capable of causing death, depending on how quickly Keegan received medical treatment and whether infection set in, but the wound to the left side of his chest was the most likely to be fatal. Keegan also had a cut on the back of his left upper arm, and several cuts on his hands, none of which would have contributed to his death. Dr. Herath could not provide any opinion about the order in which Keegan received the knife injuries, or about the positions he and his assailant were in at the time each wound was inflicted.

128Blood tests conducted of samples of Keegan Blyth’s blood taken at the hospital revealed the presence of benzoylecgonine, which is a metabolite of cocaine. Daryl Mayers, a Center of Forensic Science toxicologist, explained that this showed that Keegan had taken cocaine at some point, but that it was impossible to say whether he had done so within hours of his death or at some earlier point, such as the previous day.

I. Hailey Barnes’s conversation with P.S.

129Hailey Barnes lived in the group home where P.S.’s sister was living, and she had met P.S. when he came to visit. As I have already mentioned, P.S.’s social worker had arranged for P.S. to move into this same group home during the week after Keegan Blyth was stabbed.

130Ms. Barnes recalled that on the Thursday of that week – that is, on March 29 – she had come home for lunch and run into P.S., and they went outside to smoke cigarettes together. P.S. seemed “really scared” and proceeded to tell Hailey that he had been in a situation where he and his friends were getting jumped and that he didn’t know what to do and had hurt someone. He had explained further that they had been outnumbered and that he had pulled out a knife and used it to stab someone in self-defence. Hailey encouraged P.S. to go to the police and turn himself in. She found out a few days later that he had been arrested.

131During Hailey’s evidence in chief Crown counsel had her refresh her memory by reviewing her police statement, in which she had said that P.S. had told her that the stabbing took place inside the house, and that he had only stabbed the other person once. However, she later testified that when she made her police statement she was not sure whether she could still distinguish between the details P.S. gave her and things she had read online. She acknowledged in cross-examination that she might have been mistaken about P.S. saying he had only stabbed the other person once.

J. The arrests of Dimytri Ingram-Piruzevski, Justin Ryan and P.S.

132Dimytri Ingram-Piruzevski and Justin Ryan were arrested on the night of Wednesday, March 28, 2018 while driving together in Justin’s car. The police seized Dimytri’s backpack incident to arrest. Inside it they found a knife and a quantity of marijuana. Dimytri identified this knife at trial as the one he had given to P.S. before they went to the Blyth residence. It is undisputed that this is the knife P.S. used when he stabbed Keegan and cut Stephen Chanady’s arm. Blood was found on the knife, but insufficient amounts of DNA were extracted to allow any comparison with either Keegan or P.S.’s DNA.

133The next day the police executed a search warrant at Dimytri’s residence and seized a bloodstained white shirt. DNA testing showed that the blood on the shirt came from P.S., and he identified it at trial as the shirt he had used to tend his bloody nose after they got back from the Blyth residence. P.S. was then arrested the next evening, on Friday, March 30.

K. Cell phone evidence

134The police found Dimytri Ingram-Piruzevski’s phone on the ground in front of the Blyth residence on March 27, 2018, and an extraction report was subsequently prepared of its digital contents. The police also obtained a production order from his service provider. As I mentioned earlier, the police were unable to find Keegan Blyth’s phone when they searched the Blyth residence, but they later obtained a production order for his phone records from his own service provider.

135Later, on March 27, 2018, Steven Stelnick was arrested for drug offences and his phone was seized incident to the arrest. As I have already mentioned, it was later analysed pursuant to a judicial authorization. The police were able to recover many deleted text messages and calling records, although not always in their entirety. The missing information often includes the phone number of the other party to the call or text message, and the contents of some text messages could not be retrieved.

IV. Analysis

A. General principles

1. The standard of proof

136The parties have elected to have me try this case without a jury. My task as the trier of fact is to decide whether the evidence presented at this trial proves P.S.’s guilt, either of the charged offence of second degree murder or of the included offence of manslaughter, on the criminal standard of proof beyond a reasonable doubt. Since P.S. relies on the defence of self-defence and defence of others in s. 34 of the Criminal Code, I must also decide whether the Crown has disproved at least one of the three essential elements of this defence beyond a reasonable doubt.

137A reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence: R. v. Lifchus, 1997 319 (SCC), [1997] 3 SCR 320 at para. 39. It is not enough for me to conclude that P.S. is probably guilty of an offence, and although I do not have to be absolutely certain of his guilt, the standard of reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, 2000 SCC 40 at para. 242. In short, to find P.S. guilty I must be sure of his guilt, based on the evidence before me and taking due account of the absence of evidence.

138The Crown bears the burden of proof, and this never shifts. The Crown bears this burden in relation to both proving the essential elements of an offence and disproving the essential elements of a defence. Although P.S. chose to call evidence, including his own testimony, he is not required to prove anything. In particular, he does not have to prove that he killed Keegan in lawful self-defence. Rather, the Crown must prove that he did not kill Keegan in lawful self-defence.

139The basic rule in criminal cases that the Crown must prove the defendant’s guilt beyond a reasonable doubt has implications for how I must assess any evidence that favours the defence, since a reasonable doubt can arise even from evidence that I do not entirely accept. This critically important point is often made using the three-part formulation that was suggested by Cory J. in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 at pp. 757-58. However, the first branch of the standard W.(D.) instruction, in which triers of fact are directed that “if you believe the evidence of the accused, obviously you must acquit”, is not entirely accurate in cases where self-defence is in issue, because the essential elements of this defence are partly objective. The trier of fact may completely believe the defendant’s evidence about what happened but still reject self-defence on the grounds that the defendant’s use of force was not reasonable in all the circumstances: see R. v. Ryon, 2019 ABCA 36 at para. 31. As my colleague Di Luca J. explained in R. v. Theriault, 2020 ONSC 3317 at para. 29, aff’d 2021 ONCA 517:

[W]here the defence advanced contains an objective component, as is the case with self-defence … the W.(D.) analysis must be modified accordingly. The defendant’s evidence will, in such instances, only result in an acquittal where that evidence establishes or leaves the trier of fact with a reasonable doubt about the objective component of the defence.

2. Homicide, self-defence, and defence of others

140P.S. admits that he killed Keegan Blyth by stabbing him. It is undisputed that in so doing he committed “homicide”, which is defined in s. 222(1) of the Criminal Code to mean causing the death of a human being, directly or indirectly, by any means. However, s. 222(2) goes on to state that homicide can be either “culpable” or “not culpable”, and s. 222(3) then further clarifies that “[h]omicide that is not culpable is not an offence”.

141P.S.’s primary position is that his killing of Keegan Blyth, while a “homicide”, was not culpable because he was acting in lawful self-defence or the defence of others within the meaning of s. 34 of the Criminal Code. As a convenient shorthand I will refer to the s. 34 defence as “self-defence”, while keeping in mind that it also authorizes the use of force in defence of other people. Self-defence and the defence of others were at one time separate defences, but the current version of s. 34 has merged them into a single defence.

142Section 34(1) 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.

143When assessing the reasonableness of a defendant’s conduct under s. 34(1)(c) courts must consider all of the relevant circumstances, including the non-exhaustive list of factors set out in s. 34(2). I will discuss these factors later in my reasons.

144It is the Crown’s burden to prove beyond a reasonable doubt that P.S. was not acting lawfully under s. 34(1) when he killed Keegan Blyth. In other words, the prosecution must prove beyond a reasonable doubt that at least one of the three essential requirements for self-defence in s. 34(1)(a), (b) or (c) is not met. If the Crown cannot satisfy this burden, I must find P.S. not guilty.

3. Murder, manslaughter and provocation

145If the Crown meets its burden of proving that P.S. was not acting in lawful self-defence under s. 34(1) when he stabbed and killed Keegan Blyth, it will follow that Keegan’s death was a culpable homicide. I would then have to go on to consider whether the evidence proves that P.S. is guilty of committing second degree murder, which is the offence charged against him. If I am not satisfied beyond a reasonable doubt that all the essential elements of second degree murder have been established on the evidence, I would have to find P.S. not guilty of second degree murder but guilty of the included offence of manslaughter, since s. 234 of the Code provides that “[c]ulpable homicide that is not murder or infanticide is manslaughter.”

146Section 229(a) of the Criminal Code provides:

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not

147Section 231(1) provides that “[m]urder is first degree murder or second degree murder”, and s. 231(7) declares further that “[a]ll murder that is not first degree murder is second degree murder.”

148In this case, P.S. is charged with committing second degree murder. To establish his guilt of this offence, the Crown must prove beyond a reasonable doubt that when P.S. stabbed Keegan Blyth he did so with one of the two alternative subjective mental states set out in s. 229(a)(i) and (ii). That is, the Crown must prove either that P.S. meant to cause Keegan Blyth’s death, or that he meant to cause him bodily harm that he knew was likely to cause his death, and that he was reckless about whether Keegan Blyth died or not.

149If I were to find beyond a reasonable doubt that P.S. did have one of these two specified culpable mental states when he killed Keegan, I would have to go on to also consider the partial defence of provocation in s. 232 of the Code, which sets out conditions under which “[c]ulpable homicide that otherwise would be murder may be reduced to manslaughter”. It would be the Crown’s burden to prove beyond a reasonable doubt that this partial defence does not apply in this case.

4. What the Crown must prove

150In summary, for me to find P.S. guilty of second degree murder, the Crown must prove four essential things beyond a reasonable doubt.

151First, the Crown must prove that P.S. caused Keegan Blyth’s death. As I have discussed, the defence acknowledges that this essential element has been proved beyond a reasonable doubt. Indeed, P.S. testified and admitted stabbing Keegan, and it is undisputed that the injuries P.S. inflicted were what caused Keegan’s death.

152Second, the Crown must prove that Keegan’s death was a culpable homicide. As I have already discussed, in this case this means that the Crown must prove beyond a reasonable doubt that P.S. was not acting in lawful self-defence under s. 34 of the Code when he killed Keegan. If I am not satisfied about this, I must find P.S. not guilty.

153Third, if the Crown succeeds in disproving self-defence, the Crown will then have to prove that when P.S. killed Keegan he did so with either one of the two alternative subjective states of mind set out in ss. 229(a)(i) and (ii) of the Criminal Code. If I am not satisfied that the Crown has proved this beyond a reasonable doubt, I would have to find P.S. not guilty of second degree murder but guilty of the included offence of manslaughter.

154Fourth, and finally, even if the Crown were to that P.S. did not kill Keegan in lawful self-defence, and that he did so with the subjective mental state necessary to make the killing second degree murder, the Crown would also have to prove beyond a reasonable doubt that P.S.’s culpability is not reduced to manslaughter by the partial defence of provocation in s. 232 of the Criminal Code.

5. The irrelevance of Dimytri Ingram-Piruzevski’s guilty plea and conviction

155When analysing whether the Crown has met its burden of proof in this case, I can attach no significance whatsoever to Dimytri Ingram-Piruzevski’s plea of guilty to a charge of manslaughter. I cannot reason backwards that because Dimytri pleaded guilty to manslaughter and was found guilty of that offence, P.S.’s killing of Keegan must have been a culpable homicide, such that he cannot have been acting in lawful self-defence.

156I must decide the question of P.S.’s guilt solely on the evidence that was presented at this trial. Dimytri’s decision to enter a guilty plea in the separate proceedings against him is not evidence against P.S. I cannot speculate about why Dimytri, who was charged with second degree murder as an adult and faced a mandatory life sentence, may have decided to enter a plea to the lesser included offence of manslaughter, or why the Crown chose to accept this plea from him.

157I would add that Dimytri’s own evidence at this trial was that after Mitchell Pepper knocked him to the ground he no longer noticed what was going on around him. He did not see P.S. stab Keegan, and accordingly is in no position to say one way or the other whether P.S. was acting in lawful self-defence when he did so. Dimytri’s plea of guilty to manslaughter would not be evidence against P.S. in any event, but it is also clear in this case that Dimytri simply does not know for sure what happened.

B. The disputed facts

158As I have explained, it is the Crown’s burden to prove P.S.’s guilt, either of second degree murder or the included offence of manslaughter, on the criminal standard of proof beyond a reasonable doubt.

159However, this burden only applies to the essential elements of the offences and defences that are in issue in this case. It does not apply to individual pieces of evidence, or to contested facts that are not essential elements of an offence or defence. The Crown does not have to prove beyond a reasonable doubt exactly how events unfolded.

160The question of what happened in this case is still extremely important. A critical part of my task as the trier of fact is to assess the evidence that was presented and make findings of fact. Some of the witnesses in this case gave diametrically opposed accounts. I must consider how much I accept of their evidence, taking into account both the way in which they testified and all of the other evidence that was presented. When I am deciding if the Crown has proved the essential elements of an offence beyond a reasonable doubt, or disproved beyond a reasonable doubt any of the essential elements of self-defence, I must apply the law based my findings about what happened and did not happen.

161Crown and defence counsel have both presented competing theories about how the fight that led to P.S. stabbing and killing Keegan Blyth started and then unfolded. However, as I will explain in more detail later, this dispute over what happened does not map precisely onto the legal dispute between the Crown and defence over whether P.S. is guilty of a criminal offence, either second degree murder or manslaughter. Even if Keegan and Stephen Chanady attacked P.S. in a robbery attempt, as the defence contends, P.S. will still be criminally culpable for killing Keegan if the defensive force he used was not reasonable in the circumstances. Conversely, even if the Crown’s theory is correct that fight started because P.S. pulled a knife in a manner that Keegan perceived as threatening, this does not rule out the possibility that P.S. was still acting in lawful self-defence when he stabbed Keegan.

162When I discuss the evidence in this case I am going to sometimes find it convenient to state my conclusions about what I think probably happened or did not happen. When I do this, I am mindful that the ultimate question I must decide is whether the evidence proves P.S.’s guilt beyond a reasonable doubt, either of second degree murder or manslaughter. The criminal standard of proof beyond a reasonable doubt is a much higher standard than the civil standard of proof on a balance of probabilities. However, as I will explain, my findings about what probably happened or did not happen can sometimes shape the conclusions that I can properly reach about whether the essential elements of the offences in issue in this case have been proved beyond a reasonable doubt, or whether any of the essential elements of self-defence have been disproved on this same high standard.

C. How did the altercation start?

1. The parties’ competing theories

163As I have already said several times, one of the major contested factual issues in this case is the question of how and why the altercation between P.S. and Keegan Blyth started.

164The Crown’s theory is that Keegan and his friends really did plan to buy marijuana from Dimytri Ingram-Piruzevski that night, and that they did not lure Dimytri to the Blyth residence so that they could rob him. The Crown urges me to accept the evidence of Stephen Chanady and Mitchell Pepper, who both deny that they and Keegan had any plan to rob Dimytri or that the three of them “jumped” Dimytri and P.S. after they came up the driveway and reached the front of the house.

165The Crown suggests further that the altercation probably started because P.S. was frightened and pulled out and opened the folding knife Dimytri had given him before they left Dimytri’s house. The Crown theorizes further that Keegan probably saw the knife, interpreted it as a threat, and tried to disarm P.S. The Crown acknowledges that it has no direct evidence that this is what happened, since Mr. Chanady and Mr. Pepper both maintain that they were over by the front porch when the fight began and that they did not see clearly how or why it started.

166The defence’s theory is that Keegan and his friends never had any intention of buying a pound and a half of marijuana from Dimytri, which cost much more than they could afford. Instead, they induced Dimytri to bring the drugs to the house so they could rob him. When Dimytri texted to say he would be arriving soon, Keegan and Mitchell hid behind the fence beside the garage while Stephen Chanady waited on the front porch. When Dimytri and P.S. then came up the driveway and passed by the garage, Keegan and Mitchell came out of their hiding place and attacked them as they walked past, while Stephen Chanady came over from the porch and joined in the fight. Mitchell tackled Dimitry, and Keegan and Mr. Chanady were both attacking P.S. when he pulled out the knife that Dimytri had given him earlier and stabbed Keegan several times, and then turned and slashed Stephen Chanady’s arm. The defence contends that when P.S. did this he was acting in lawful self-defence.

167The defence suggests further that Stephen Chanady, who P.S. describes as hitting him with an object of some sort, was probably carrying one of his replica handguns. Before the police arrived at the house he then put the gun in the backpack along with the other replica guns and his other property and hid it in the alcove in his basement bedroom, beside the hoodie he had been wearing during the altercation, which was now stained with blood from his cut arm. He then lied about this at trial.

168The defence also suggests that Steven Stelnick participated in planning the robbery and that he is telling the truth at least when he says that there was a discussion about robbing Dimytri, although much of the rest of his evidence is untrue.

2. Testimonial presentation of the key witnesses

169The four witnesses who were present when the altercation started – Stephen Chanady, Mitchell Pepper, Dimytri Ingram-Piruzevski, and P.S. – give essentially two conflicting versions of how and why the altercation started. Stephen Chanady and Mitchell give one version, although some details of their accounts vary. Dimytri and P.S. give a very different version. Resolving the dispute between the Crown and the defence about what happened thus turns largely, although not entirely, on my assessment of the reliability and credibility of these four witnesses.

170By nearly any measure Stephen Chanady was an exceptionally poor witness. There are many reasons to doubt both the reliability of his memories and his testimonial credibility.

171With respect to his reliability, Mr. Chanady’s ability to recall relevant events was extremely poor. During his testimony, which lasted for more than two days, he repeatedly responded to questions by saying that he did not know or did not remember. Indeed, this reached the point where it raises significant concerns in my mind about whether his purported lack of recall is real or feigned. This has implications for his credibility as well as his reliability.

172Moreover, some of the things Mr. Chanady does purport to remember, even in non-contentious areas, are contradicted by the evidence of other witnesses. To give one example, he testified that he believed that in late March 2018 he had been living at the Blyth residence for two or three months. Keegan’s mother testified that he had only been living there for about two weeks, and she was able to relate this to a vacation trip she recalled the Blyth family taking earlier in March, before Mr. Chanady moved in. I think her recollection is far more likely than his to be accurate. I also accept that Mr. Chanady is genuinely confused about this and is not deliberately lying about it. However, his confusion about such a basic matter does not speak well to the quality of his memory. It is especially troubling that he gave what I think was a wildly inaccurate time estimate instead of acknowledging that he simply did not remember. This causes me concern about how well he can assess the limits of his own memories.

173However, some of Stephen Chanady’s other purported memory failures and inconsistencies raise serious concerns about his credibility. For instance, as I have already discussed, his account about the amount of marijuana he and his friends meant to buy from Dimytri has changed repeatedly and continued to evolve during his multiple days of trial testimony. He plainly lied about it when testifying before me.

174Even when I consider Mr. Chanady’s testimony in isolation, without assessing his evidence against the evidence as a whole, I have substantial reservations about both his reliability and his believability.

175Mitchell Pepper was also a problematic witness, although in a somewhat different way than Mr. Chanady. He was frequently hostile and argumentative during cross-examination. Even more concerning, Mitchell acknowledged lying to the police about how much marijuana he and his friends had meant to buy that night, but then tried to rationalize this at trial by explaining that he considered lying to the police to be “completely different” from lying on the witness stand under oath. This explanation rings hollow in view of Mitchell’s eventual acknowledgement in cross-examination that he had also deliberately lied at the second preliminary inquiry when he testified that Keegan had only called Dimytri as a last resort, after first trying “all our regulars”. The clear implication is that Mitchell’s insistence that he would never lie in a courtroom was a lie. I have no confidence that Mitchell Pepper will not lie, even under oath, if he thinks that doing so will serve his interests.

176On the other hand, Dimytri Ingram-Piruzevski and P.S. both presented well. Dimytri was a particularly impressive witness. He seemed to be answering questions carefully and thoughtfully and appeared to be trying to give as complete an account as he could within the confines of his present memories. He also admitted with seeming frankness to some things that painted him in a bad light.

177Dimytri was called as a Crown witness but gave evidence that was very largely favourable to the defence. I am mindful that the Crown’s ability to challenge the evidence of its own witnesses is limited, and that the Crown does not “vouch for the veracity of every statement uttered by every witness that it calls and does not impeach”: R. v. Walker (1994), 1994 8725 (ON CA), 90 C.C.C. (3d) 144 at p. 156 (Ont. C.A.). However, the fact remains that Dimytri’s account was effectively uncontested by either side when he was on the witness stand. This no doubt contributed to the favourable impression I formed of his testimonial credibility and reliability.

178P.S. also testified very capably, and his account was not shaken in cross-examination. As I will discuss later, I do have reservations about the reliability of some aspects of P.S.’s evidence, particularly when it comes to remembering the specific details of his altercation with Keegan and Stephen Chanady. However, I also consider it unsurprising that he would not be able to accurately recall everything that happened during what was, on all accounts, a very fast-moving and stressful situation. My concerns about the accuracy of some parts of his testimony do not affect my assessment of his testimonial credibility. At least when I consider his evidence standing alone, he presented as a credible and largely reliable witness.

179All that said, the quality of witnesses’ evidence is not determined by how well they testify. Witnesses who present poorly while testifying may still be giving honest and reliable evidence. As the Ontario Court of Appeal has observed, “while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness”: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 at para. 66. Moreover, while a witness’s history of lying is unquestionably important, especially when it includes previous lies told under oath, it is not necessarily determinative. A witness who has lied before, even repeatedly, may now be telling the truth.

180Ultimately, the best test of any witness’s credibility and reliability is to consider how his or her evidence fits together with the other evidence that is either objectively reliable or that I can otherwise be satisfied is true and accurate. As Karakatsanis J., then a judge of this Court, observed in Cuthbert v. TD Canada Trust, 2010 ONSC 830 at para 42, “[c]redibility is best tested against common sense, inherent consistency and consistency with contemporaneous and undisputed documents.”

181I should add that while comparing the accounts given by different witnesses is an essential and often revealing exercise, its utility is reduced when the witnesses may not be truly independent of one another.

182In this case Stephen Chanady and Mitchell Pepper had extensive opportunity to discuss their evidence together, both before they spoke to the police and before they testified at the preliminary inquiries. When Mitchell and Stephen moved out of the Blyth residence after March 27 they both ended up living together at Stephen’s parents’ house, and Mitchell admitted that he also talked to Stephen at the courthouse while giving his evidence at the first preliminary inquiry, before Stephen had testified himself. While they denied coordinating their evidence, it is a suspicious coincidence that their accounts about how much marijuana they and Keegan planned to buy that night evolved in near lockstep: they both initially told similar lies about this to the police, and then both changed their evidence in the same way at the preliminary inquiries.

183Dimytri and P.S. also had some opportunity to discuss matters between themselves in the days before they were both arrested, and acknowledged that they did so to some extent, although they both said that their conversations were limited. Dimytri also acknowledged that he views P.S. as “like a little brother”, and I accept that he has a motive to try to protect P.S.

3. Events prior to the altercation

184I substantially accept Dimytri Ingram-Piruzevski and P.S.’s accounts about the circumstances that led to their going to the Blyth residence together that night. The Crown did not challenge either P.S.’s or Dimytri’s evidence about these events. Even more importantly, their account is substantially confirmed by the phone and text message evidence.

185Specifically, I accept Dimytri’s evidence that when Keegan called him at 9:53 p.m. on March 26, as confirmed by the phone records, he told Dimytri that Steven Stelnick had given Keegan his number. Since Keegan and Dimytri did not know each other it makes sense that Keegan would feel that he had to give Dimytri some explanation about how and why he was calling. Dimytri’s evidence that Keegan specifically mentioned Steven Stelnick’s name accords with the phone records that show that within minutes of their phone conversation they both called Mr. Stelnick. Dimytri’s explanation that he called Mr. Stelnick to try to confirm Keegan’s bona fides is confirmed by the contents of their subsequent text message exchange, starting at 10:10 p.m., in which Dimytri explained that Keegan had “said [you] gave him my number” and asked if Keegan was “cool”. There is no discernible reason why Dimytri would have lied to Mr. Stelnick about any of this.

186I also accept Dimtyri’s evidence that during their phone conversation Keegan asked to buy a pound and a half of marijuana, and that Dimytri replied that it would cost $2,400. His evidence on these points is confirmed by his later text message in which he asked Keegan if he “still want[ed] that p and a half for 2400”. It makes no sense that Dimytri would have texted this to Keegan if it did not accurately reflect what they talked about earlier.

187Conversely, the phone evidence undermines Stephen Chanady and Mitchell Pepper’s account about the circumstances that led to Keegan phoning Dimytri. On their evidence, Keegan’s call to Dimytri was made spontaneously late that night after they realized they were running out of marijuana. They claim that this led to Keegan contacting Steven Stelnick to get Dimytri’s number, and then calling Dimytri. However, this chronology is discredited by the phone evidence, which shows that there was no phone contact between Keegan and Steven Stelnick’s phones between 6:22 p.m. and 9:58 p.m. The 9:58 p.m. phone call lasted for only 6 seconds and probably went to voice mail, but they then had two longer phone calls a few minutes later, at 10:01 p.m. The critical point, however, is that all of these phone calls came after Keegan had called Dimytri at 9:53 p.m. The only sensible conclusion is that if Keegan did obtain Dimytri’s number from Steven Stelnick – which I accept that he very likely did, one way or another – this must have happened earlier than the late evening of March 26. Indeed, Mitchell Pepper allowed for this possibility in his evidence.

188More generally, once I accept that Keegan proposed to buy a pound and a half of marijuana from Dimytri, Stephen Chanady and Mitchell Pepper’s evidence that this plan arose spontaneously late that night makes no sense. This would have been a major purchase for them. Even assuming that they could afford to buy this much marijuana at one time – a question I will return to later – it would have taken some forethought for them have sufficient cash on hand to make the purchase. The Blyth residence was out in the countryside and none of them had access to a vehicle, so they could not have simply gone out to an ATM, even if they had funds in the bank to draw on, which is itself doubtful.

189I also accept Dimytri’s explanation about how he arranged for his friends Brad and Colton to come with him to the proposed meeting with Keegan to act as “muscle”. His evidence that he was worried that Keegan might be trying to set him up to rob him is both sensible in the circumstances and supported by his text messages to Steven Stelnick, in which he expressed this very concern and spoke of bringing his “boys” or his “riders” with him. The timing of Dimytri’s phone communications with the person he identified in his testimony as Brad also tend to support his account, even though the phone evidence does not itself show what he and Brad talked about on the phone.

190Further, I accept Dimytri and P.S.’s explanation of the circumstances that led to Dimytri calling Brad and Colton off and eventually arranging for P.S. to instead come with him to the meeting.

191In summary, Dimytri explained that after he texted Keegan at 10:38 p.m. to confirm that he still wanted to make the purchase, and then called him a few minutes later at 10:41 p.m. to follow up, Keegan told him that he was going to have to postpone the deal until a later day. Dimytri then called off Brad and Colton. Although the phone evidence cannot confirm the truth of Dimytri’s testimony about the contents of his various phone conversations, the timing and sequence of the phone calls and text messages matches up with his account.

192Dimytri explained further that Keegan then called him back half an hour later and said that he was able to do the deal that night after all, at which point Dimytri decided that it would be easier to bring P.S. with him, in part because by this time his concerns about the deal had been eased by his roommate Yashar vouching for Keegan as an old friend from high school. I accept that P.S., who was young, physically slight, and apparently not experienced when it came to drug dealing, would not have been Dimytri’s choice as “muscle” if he had still been very worried that he was being set up to be robbed.

193While the phone record evidence is not capable of confirming Dimytri’s evidence about the substance of his various phone conversations with Keegan, it corroborates his account of the number and timing of their phone calls. Since it is undisputed that the meeting between them did eventually take place later that night, Dimytri’s evidence that Keegan first called off the deal during the 10:44 p.m. phone call and then called back at 11:14 p.m. to ask if they could do the deal that night after all provides a sensible explanation for why he and Keegan had three different phone conversations that night. It also matches up with the timing of Dimytri’s phone communications with Brad. I should note that I do not think that Dimytri’s account is undermined by his text to Steven Stelnick at 10:57 p.m. in which he talked about going to meet with Keegan with his “riders”. Even though on Dimytri’s evidence he sent this text after Keegan had cancelled their meeting that night, he says that Keegan had only asked to postpone the meeting to a later date, rather than calling it off entirely.

194In contrast, while Stephen Chanady and Mitchell Pepper’s evidence about Keegan’s phone communications with Dimytri that night were vague, neither said anything about Keegan and Dimytri having three separate phone conversations between 10:00 and 11:15 p.m., nor did they offer any competing explanation for why so many phone calls were necessary.

195I am also inclined to accept Dimytri’s evidence that Keegan told him he had to postpone the deal because his “boys left and they took the money with them”. This was evidently not true, since Stephen Chanady and Mitchell Pepper were living at Keegan’s house, and on their accounts neither of them went anywhere that night. However, I accept that Keegan for some reason wanted to postpone the deal at 10:44 p.m., but then changed his mind half an hour later, and it makes sense that he would have given Dimytri some explanation for this, whether true or otherwise.

4. Did Keegan and his friends try to rob Dimytri?

196As I have already discussed, a major point of contention, both between the witnesses and between the Crown and the defence, is over whether Keegan Blyth and his friends genuinely meant to buy marijuana from Dimytri Ingram-Piruzevski that night, or whether they lured him to the Blyth residence because they wanted to rob him and steal his drugs.

197While I cannot be absolutely sure about what happened that night and why it happened, I am satisfied that the robbery scenario is the most likely explanation for how events unfolded. I reach this conclusion for six main reasons.

198First, as I have already discussed, Stephen Chanady and Mitchell Pepper are both highly compromised witnesses with histories of lying under oath. Dimytri Ingram-Piruzevski and P.S. do not come with this same baggage. All other things being equal, this makes me inclined to prefer their testimony on issues where there is a conflict, unless there is a good reason for me to not to do so. Indeed, I have serious concerns about accepting anything that Stephen Chanady and Mitchell Pepper say without some confirmatory evidence.

199On Dimytri and P.S.’s evidence, they were attacked as they walked past the garage by men who came at them from out of the dark. Dimytri recalled hearing footsteps to his left, and P.S. described being initially hit on the left side of his face before he nearly stumbled and got himself turned around. If their evidence about the direction of the attack is true and accurate, the inference that their attackers had been hiding in wait for them behind the fence is very strong. This only makes sense on the robbery scenario. It squarely contradicts Stephen Chanady and Mitchell Pepper’s evidence that whoever went to meet Dimytri and P.S. – whether it was Keegan alone, or Keegan and Mitchell together – came from the front porch.

200Second, my concerns about Stephen Chanady’s testimony are greatly elevated by the evidence about the backpack and bloodstained hoodie that the police found hidden in his bedroom at the Blyth residence, and his testimony regarding these items and his lack of knowledge about how they came to be hidden in the bedroom alcove.

201Mr. Chanady acknowledges that he was wearing the hoodie that night when his arm was cut. Someone obviously put it in the alcove afterwards. The inference that the backpack was probably put there at the same time by the same person is compelling, as is the inference that whoever put these items in the alcove was trying to hide them. Stephen Chanady had a clear motive to try to conceal that he was living in the bedroom, because living at the Blyth’s house put him in breach of his bail conditions. Indeed, Keegan’s mother testified that he expressed his concern about this very thing while she was making her 911 call. He also had a reason to conceal the illicit drugs and other items that were found in the backpack – including a bag of apparently psychedelic mushrooms; a bottle of liquid codeine cough syrup, known by the street name “lean”; and various marijuana-related items – because his bail terms prohibited him from possessing these items.

202Moreover, the inference that the backpack contained Mr. Chanady’s belongings – including a birthday card addressed to “Steven” commemorating the recipient’s 19th birthday, which Mr. Chanady had just celebrated – is in my view overwhelming. While I acknowledge that Mr. Chanady spells his first name differently, with a “ph” rather than a “v”, nobody else in the house had any discernible reason to have a 19th birthday card that was addressed to “Steven”, spelled in any of the possible ways. Mr. Chanady’s further evidence at trial that he did not remember if he even knew the people who had signed this card, despite having given detailed evidence at the first preliminary inquiry about exactly who they were, was completely preposterous.

203The further inference that Stephen Chanady was probably the person who hid the backpack and the bloody shirt in the alcove is in my view nearly as strong. It is conceivable that some other person, such as his girlfriend Emma, might have hidden these things for Mr. Chanady, although she did not testify and there is no evidence that she did so. However, I think it is very likely that Mr. Chanady at the very least knew that the items were being hidden in the alcove on his instructions or on his behalf.

204On its own, Mr. Chanady’s actions in hiding the backpack and shirt or arranging them to be hidden for him would not have been especially significant, since he had obvious reasons to try to hide both items even if he and his friends had not been planning to rob Dimytri. What gives this evidence real importance, in my view, is Mr. Chanady’s denial at trial that he had any knowledge of how these items came to be hidden in the alcove, which I find completely unbelievable. This not only gives me yet one more reason to be sceptical Mr. Chanady’s testimonial credibility, but it also suggests that he might have been trying to distance himself from the backpack because the defence theory that he used one of the fake guns during an attempt to rob Dimytri is the truth.

205Third, the possibility that Keegan and his friends genuinely meant to buy a pound and a half marijuana from Dimytri for $2,400 that night is undermined by the evidence of their limited financial circumstances. It is far from clear how they would have been able to raise as much as $2,400. Although Keegan’s father had hired all three of them to help Keegan strip wire for salvage, Stephen Chanady and Mitchell Pepper both acknowledged that they had done very little work. Keegan’s mother agreed that Keegan did not have very much money, and that she and his father gave him small amounts of spending money as he needed it for specific purposes.

206I also find it significant that the police appear not to have found any large quantities of cash when they searched the basement. For several reasons, I think that the possibility that Dimytri or P.S. made off with the money can be dismissed as very unlikely. A pound and a half of marijuana is too bulky to exchange hand to hand, and it makes no sense that Keegan would have simply handed Dimytri or P.S. $2,400 without receiving any drugs. It also makes no sense that Dimytri would have been willing to do the deal outside in the near-total darkness, where it would have been extremely difficult for him to have counted the money. Dimytri also told Keegan in his text messages that he would be bringing two different types of mid-grade marijuana, and added in a later text message that they would “chill abit and talk numbers”. It only makes sense that he was expecting Keegan to want to try his samples, and that they would go into the house to do this and talk future business. I entirely accept Dimytri’s evidence that this was what he was expecting, and reject the possibility that Keegan handed him or P.S. $2,400 outside the house, and that one or the other of them then left with the money.

207The only sensible conclusion I can reach is that the police probably did not find $2,400 in cash in the house because the money never existed. This raises the question of why Keegan would have arranged for Dimytri to bring $2,400 worth of marijuana to his house. It seems highly unlikely that he and his friends would have expected Dimytri to simply give them the drugs on credit. The only other explanation is that they did not need $2,400 as buy money because they were not planning to buy the drugs from Dimytri, but meant instead to rob him.

208Fourth, the location where the items that Dimytri lost during the struggle were later found in the Blyth’s front yard is at least consistent with Dimytri and P.S.’s account of being attacked by two men who rushed at them from their left while they walked east towards the front porch. If Dimytri was tackled by someone who came at him from the north and dragged further across the driveway by his backpack, as he described, this would explain why his belongings were found to the south and east of the garage. Conversely, Mitchell Pepper maintains that when he rushed at and tackled Dimytri he came from the front porch and would have been running west, which in the ordinary course would have tended to carry them both further to the west. Mitchell explains how Dimytri instead wound up further east and south by describing himself as performing a “spin tackle” that threw Dimytri in that direction. Mitchell might have done this, so the location where Dimytri’s items were found does not necessarily contradict Mitchell’s account. However, it also gives me no affirmative reason to reject P.S. and Dimytri’s evidence about how the altercation started, or to prefer Mitchell and Stephen Chanady’s evidence over theirs.

209Fifth, the Crown’s alternative theory about how the altercation started has no direct affirmative evidential support, and also strikes me as inherently implausible. I accept that it is not unreasonable to imagine that P.S., finding himself walking down an unfamiliar driveway in the dark, might have become frightened and decided for this reason to take the knife out of his pocket and open it. However, I have considerable difficulty accepting that Keegan, if he was approaching P.S. and Dimytri from the porch as described by Stephen Chanady and Mitchell Pepper, would have reacted to seeing the knife in P.S.’s hand by charging at and attacking P.S. rather than simply retreating back towards the house. As a matter of common sense and human experience, it would be surprising for an unarmed person to attack a person armed with a knife when he had a clear and obvious safe avenue of retreat. Moreover, even if Keegan was especially brave or reckless, it makes absolutely no sense to me that he would not have shouted to warn his friends about the knife, which on all accounts he did not do.

210I also reject the Crown’s further argument that P.S. must have produced the knife before the fight began because it would have been too hard for him to open it after Keegan was punching him. The knife was filed as an exhibit, and I have handled it, at counsels’ invitation. The blade opens smoothly and easily. In my view P.S. would not have had much difficulty doing what he said he did, and I would not reject his evidence on this basis.

211My sixth reason for finding the robbery scenario to be the most likely explanation for how the fight started is more complicated, because it requires me to grapple with Steven Stelnick’s evidence that on an earlier occasion he heard Keegan and his friends discussing robbing Dimytri.

212Both counsel agree that Mr. Stelnick is for many reasons not a credible witness, and both urge me to disbelieve much of his evidence. However, they take different positions with respect to his claim about the robbery conversation. The Crown urges me to find that Mr. Stelnick made it up to the police in an attempt to protect Dimytri, his drug supplier, and that he is now committed to repeating this lie. The defence, in contrast, urges me to find that Mr. Stelnick’s story about the robbery discussion contains at least a kernel of truth. That is, the defence contends that there was a discussion between the group about robbing Dimytri, but that Mr. Stelnick was an active participant in the conversation and subsequent plan rather than a mere bystander, as he now maintains.

213As a starting point, I agree that Mr. Stelnick has enormous credibility problems. During his trial testimony he initially denied that he had been a drug dealer, and he persisted in this denial in the face of the mountain of highly incriminating text messages recovered from his cell phone, well past the point where his denials had become completely untenable. His eventual acknowledgment that he had indeed been regularly selling marijuana does nothing to make up for his repeated lies about this under oath before his eventual admission. This alone would give me great difficulty trusting anything Mr. Stelnick says without confirmatory evidence.

214I am also not persuaded that Christopher Theobald’s evidence has any confirmatory value. He plainly did not adopt his evidence from the second preliminary inquiry about the alleged “robbery” conversation he said he overheard, since he now denies having any independent recollection of this conversation: see R. v. Toten, 1993 3427, 85 C.C.C. (3d) 5 at pp. 23-25 C.C.C. (Ont. C.A.). Absent adoption, his prior testimony is not evidence at this trial. For good measure, Mr. Theobald also then agreed in cross-examination that he might have misinterpreted the conversation, and that it may not have been about robbery at all.

215However, I think some important conclusions can be still drawn about Mr. Stelnick’s contemporaneous state of mind from a careful examination of his text messages, and that these conclusions support the inference that something more was going on than Stephen Chanady and Mitchell Pepper now claim.

216When Dimytri texted Steven Stelnick at 10:10 p.m. to get more information about Keegan, Mr. Stelnick’s first reaction was to claim not to know who Dimytri was talking about. This was almost certainly a lie: Keegan Blyth was not only Mr. Stelnick’s self-described best friend, but the phone records show that they had been on the phone together for nearly four minutes less than ten minutes earlier. Even if Mr. Stelnick really did know more than one person named Keegan, it seems most unlikely that he would not have immediately understood which of these people Dimytri was asking about.

217I think even more significantly, Mr. Stelnick then told Dimytri that he and Keegan Blyth were “not tight” and only “chill[ed] … a little”. This appears to have also been a lie, since Mr. Stelnick described Keegan at trial as his best friend. In their further text message exchange half an hour later, Mr. Stelnick cautioned Dimytri to be “sure your blessed”, and repeated his lie that: “I don’t chill with [Keegan] much”. He then told Dimytri that he shared Dimytri’s concern that Keegan might be trying to rob him.

218In my view, the only sensible construction of these messages is that Mr. Stelnick was for some reason trying to distance himself from Keegan in Dimytri’s mind, and also trying to warn Dimytri to be careful, either because he was genuinely concerned about Dimytri’s safety or because he wanted to give himself cover if something bad then happened when Dimytri and Keegan met. It only makes sense that he would have done these things if he thought or suspected that Keegan and his friends meant do something other than simply buy marijuana from Dimytri.

219The more difficult question to answer is why Steven Stelnick thought or suspected that something more than a simple drug purchase might be going on. The defence theory is that he knew that Keegan and his friends planned to rob Dimytri because he was part of the plan, and that by distancing himself from Keegan and warning him to be careful he was trying to establish plausible deniability with Dimytri about his involvement. This theory has some circumstantial support. The pattern of phone contacts between Keegan, Dimytri and Steven Stelnick certainly raises some unanswered questions. After his first telephone conversation with Dimytri at 9:53 p.m., Keegan made three phone calls to Steven Stelnick between 9:58 p.m. and 10:01 p.m., and during the last two calls they spoke for nearly four minutes. Cell phone tower records show that a few minutes later, at 10:05 and 10:06 p.m., Mr. Stelnick’s phone accessed towers near the Blyth residence. Taken together, this evidence raises the possibility that after their two 10:01 p.m. phone calls Mr. Stelnick may have gone to meet Keegan at his house, although any meeting they had must have been brief, since by 10:09 p.m. the records show Mr. Stelnick’s phone accessing a cell tower further to the south.

220Later that evening, when Dimytri texted Keegan at 10:38 p.m. to ask if he was still interested in doing the deal, Keegan did not reply to the text message, and instead called Mr. Stelnick at 10:41 p.m. They spoke for nearly a minute and a half, but Mr. Stelnick claims not to remember what this call was about. Dimytri then called Keegan three minutes later, at 10:44 p.m., and on Dimytri’s evidence it was during this conversation that Keegan said that he needed to postpone the deal to a later date, giving the apparently false excuse that his “boys” had left with the buy money.

221One plausible construction of this evidence is that Keegan for some reason felt the need to call Steven Stelnick before he responded to Dimytri’s text and committed to meeting with him that night, and that something happened during his 10:41 p.m. phone conversation with Mr. Stelnick that caused Keegan to then postpone the meeting with Dimytri. At the very least, these conversations suggest that Mr. Stelnick was more closely involved in whatever Keegan and his friends were planning – whether a robbery or a drug purchase – than he is now willing to admit.

222However, there is also circumstantial evidence that tends to point in other directions. In particular, Keegan and Steven Stelnick had no further phone contacts after 10:41 p.m. Whatever Mr. Stelnick’s involvement in Keegan’s plans that night may have been, he seems not to have played any role in Keegan’s decision to then call Dimytri half an hour later, at 11:14 p.m., and ask if they could meet that night after all.

223A further complication is that Steven Stelnick had other reasons to be suspicious of what Keegan and his friends might be planning even if he did not ever overhear them talking about robbing Dimytri, or even if he was not an active participant in their robbery plan. The police recovered text messages from Mr. Stelnick’s phone that he had exchanged with an unknown person a week earlier, on March 19, 2018, in which this other person had questioned whether Mr. Stelnick was “tryna line me for channady”. Mr. Stelnick had replied: “wtf no he hates me”, and the other person had then explained:

Ahh okok cuz I’m pretty sure that Keegan tried to line me for him. … He [hit me up] out of now where for 2 P’s and a zip of work I caught the play right when I saw it.

Mr. Stelnick testified that he understood “line” in this context to mean set up to be robbed. It is certainly possible that when Mr. Stelnick learned on the night of March 26 that Keegan had called Dimytri looking to buy a similarly large quantity of marijuana, he jumped to the conclusion that he and his friends were planning something similar, and then gave a false explanation to the police about the reason for his suspicions because he did not want to involve the friend with whom he had exchanged texts on March 19.

224On all the evidence, I am not prepared to go so far as to affirmatively conclude that Steven Stelnick knew that Keegan and his friends planned to rob Dimytri because he was actively involved in the robbery plot himself, even though I have my suspicions about this and cannot rule it out. I am also not satisfied that I can accept Mr. Stelnick’s testimony about how he heard Keegan and his friends talking about the robbery, or his account of how they obtained Dimytri’s number from his cell phone without his permission. His evidence about when these things happened is vague, and his story about the way his phone was taken from him has not remained consistent. Given Mr. Stelnick’s significant credibility problems, I am not prepared to place any significant weight on his word alone.

225However, I am prepared to conclude from Steven Stelnick’s contemporaneous texts that he either knew or for some reason suspected that Keegan and his friends were planning to rob Dimytri. Evidence that Mr. Stelnick believed something is obviously not the same as evidence that the thing he believed was true. Nevertheless, I think that this evidence badly undermines Stephen Chanady and Mitchell Pepper’s evidence that Mr. Stelnick simply gave Dimytri’s number to Keegan as a favour to help hook Keegan up with his own supplier. If this was all that was going on, Mr. Stelnick would have had no discernible reason not to vouch for Keegan with Dimytri, instead of trying, as he evidently did, to distance himself from Keegan, and indeed to encourage Dimytri’s suspicions that he might be being set up to be robbed.

226I do not accept the Crown’s theory that Mr. Stelnick simply made up the robbery story to the police out of whole cloth because he wanted to protect Dimytri, as his valued drug supplier. This theory has other problems, since it is not apparent why Mr. Stelnick would have ever thought that falsely accusing Keegan and his friends of robbery would help keep Dimytri in business. Apart from this, however, I am satisfied on all the evidence that Mr. Stelnick probably told the police the robbery story because he subjectively believed that Keegan and his friends had indeed probably tried to rob Dimytri, even if he may have lied to the police about why he believed this.

227I do not affirmatively accept Steven Stelnick’s evidence about how one of Keegan and his friends took Dimytri’s number from his phone without his permission. I think it is more likely that Mr. Stelnick at some point provided Dimytri’s phone number to his friend Keegan, but that he remained at least suspicious of Keegan’s motives for wanting it, and that for some reason he then came to believe that Keegan and his friends were planning to rob Dimytri. The one aspect of Mr. Stelnick’s evidence that I do accept, notwithstanding my very serious overall concerns about his testimonial credibility, is that he was afraid that one side or the other would blame him no matter if the robbery plan succeeded or failed.

228The most I am prepared to conclude from Steven Stelnick’s evidence, viewed in light of the phone evidence, is that events did not unfold in the way that Stephen Chanady and Mitchell Pepper now say they did. The phone records alone establish that Keegan did not simply call or text Mr. Stelnick on the night of March 26 to get Dimytri’s number. Mr. Stelnick’s own text messages establish further that in Mr. Stelnick’s mind, at least, something more complicated and sinister was probably going on. While I am not prepared to go so far as to treat Mr. Stelnick’s account of the robbery conversation as affirmatively corroborating Dimytri and P.S.’s evidence about what happened to them once they arrived at the Blyth residence, I am prepared to treat his evidence – and, more importantly, his contemporaneous texts – as at least making it less likely that Stephen Chanady and Mitchell Pepper’s account is true.

229In summary, the way in which Dimytri and P.S. gave their evidence does not give me any reason to doubt their veracity and reliability. I am generally prepared to accept their testimony unless there is some specific reason for me not to do so. I take the opposite view of Stephen Chanady and Mitchell Pepper. They are both witnesses whose evidence I am not prepared to accept unless there is some independent confirmation of their accounts. When I examine all four witnesses’ evidence in light of the evidence as a whole – which, in the final analysis, is far more important than the manner in which they testified – I am left with even more reasons to be skeptical of Mitchell Pepper and Stephen Chanady’s accounts, and no new reasons to question the veracity of Dimytri and P.S.’s evidence.

230As I see it, the most significant factor weighing against Dimytri and P.S.’s evidence, and the robbery scenario more generally, is that it would have been impossible for Keegan to conceal his and his friends’ involvement in a robbery that occurred in his own front yard. This raises an obvious question about why he and his friends would be so reckless as to plan and then carry out a robbery attempt in such a ham-fisted way. Indeed, Dimytri recognized this objection himself, testifying:

I wouldn’t think you would do it on your driveway. I thought … it would make more sense to do it somewhere where no one is going to know where you live.

231In different circumstances this might be a fatal objection. However, I do not think it is in this case. Rather, I think that it is reasonable to conclude that Keegan, Stephen Chanady and Mitchell Pepper simply did not care if Dimytri knew who had robbed him, because they did not think he would be able to do anything about it. They had good reason to think Dimytri would not go to the police to report that he had been robbed of his drugs, and they may have simply had no real concern that he would retaliate against them because they knew that they were all bigger, stronger, and tougher than he was.

232On all the evidence, I think it is more likely than not that Dimytri and P.S. are telling the truth about how the altercation started. On their evidence, when they came up the driveway Stephen Chanady was waiting on the front porch. Keegan and Mitchell were probably hiding out of sight in the dark behind the fence to the left of the garage. When Dimytri and P.S. came around the corner of the driveway and passed in front of the garage, Keegan and Mitchell rushed out at them from their left and attacked them, in what I find was most likely an attempt to steal the 1½ pounds of marijuana that Dimytri was carrying in his backpack.

233On my assessment of the evidence as a whole, I think this is probably how and why the altercation started. I am not absolutely certain this is what happened. However, it is not P.S.’s obligation to prove anything. Rather, the Crown must prove that he was not acting in lawful self-defence when he stabbed and killed Keegan. As I will discuss, my analysis of this latter question must be informed by my conclusion that P.S. more likely than not did not instigate the fight, but instead found himself under violent attack without warning by men who attacked him out of the dark.

5. How did the fight progress?

234Dimytri testified during the initial phase of the fight he thought he was being attacked by two people. I am less confident in the reliability of his evidence about what happened once the fight started than I am about most of the rest of his testimony, since it would be difficult for anyone who has been knocked to the ground and is being violently kicked and punched to accurately observe and remember details of what is going on around him or her. However, I think Dimytri’s recollection about the number of attackers is probably correct, and that the second man who assaulted him was Stephen Chanady, who must have come over from the front porch to join in the attack.

235As I have already explained, I have concluded that the attackers’ purpose was probably to steal the marijuana they expected Dimtyri to be carrying. Since Mitchell Pepper was the most capable fighter in the group and also knew what Dimytri looked like, it seems likely that the plan was for him to target Dimytri, and for Stephen Chanady to come over from the porch and help him get the drugs. In any event, Mr. Chanady would not have found it difficult to identify Dimytri since he was the only one carrying a backpack. I think that what probably happened is that Stephen Chanady came over from the porch and joined in the attack on Dimytri until it quickly became clear that Mitchell had matters completely in hand, at which point Mr. Chanady switched his attention to P.S. This accords with P.S.’s evidence that a second person only started hitting him from behind once he was standing beside the parked vehicle and had turned around to face west, with Keegan standing in front of him and punching him in the head.

236I do not accept Stephen Chanady’s evidence that he went directly from the porch to where Keegan and P.S. were fighting. As I have already explained, I find Dimytri and P.S. to be more credible and reliable witnesses than either Mr. Chanady or Mitchell Pepper, and consider Mr. Chanady to be the least credible and reliable of the four. Indeed, on this specific issue Mr. Chanady’s evidence is also contradicted by Mitchell, who testified that Mr. Chanady came to him first, and that Mitchell then directed him to go help Keegan.

237I also do not accept Stephen Chanady’s evidence that he physically “pulled [P.S.] off” Keegan by grabbing the back of his shoulders, or that he “tried to throw [P.S.] off of [Keegan]”. This is in large part because I am not prepared to take Mr. Chanady’s word for anything unless there is some independent confirmatory evidence, which on this issue there is not. It also strikes me as somewhat unlikely that Mr. Chanady, who was considerably larger and stronger than P.S., had the advantage of coming at him from behind, and on his own account did not yet realize that P.S. was holding a knife, would have tried to “throw” P.S. rather than simply tackling him to the ground. I am inclined to think that the reason Mr. Chanady did not do this is because he was holding something in one of his hands, and that rather than grabbing P.S. he began hitting him with the object that he was holding, as P.S. described. Although I am not entirely certain what this object was, I think there is a good possibility that it was one of the replica handguns the police later found in the backpack hidden in the alcove in Mr. Chanady’s basement bedroom. The discovery of the bag of replica guns thus provides some limited corroboration of P.S.’s account, which I am very strongly inclined to believe over Mr. Chanady’s evidence in any event, for the reasons I have already discussed.

238I largely accept P.S.’s evidence about how the fight progressed after he was first punched. His account of being punched in the face and nearly knocked down and then coming to stand facing west next to the parked car at the south side of the driveway generally makes sense, given my previous conclusions about where he was when he was first attacked, and my finding that Keegan was likely hiding behind the fence and came at P.S. from the north.

239I do have reservations about whether P.S. accurately recalls all of the details about what then happened. He said that everything happened quickly but that he could not estimate how long the fight lasted or exactly how many times he was hit, which I find understandable in the circumstances. However, he testified that Keegan was “punching my face, like, a lot”. To the extent that he meant to convey that Keegan hit him a large number of times, I am not confident that his memory of this is accurate, given the relatively minor nature of his injuries afterwards. I am satisfied that he was punched in the nose with sufficient force to cause it to bleed profusely, and that he blocked some punches with his right hand, which appears noticeably swollen in the photographs the police took after his arrest three days later. However, I think that the fight probably did not last long, and that P.S. probably reached for his knife and began stabbing Keegan very soon after they wound up both standing beside the parked vehicle. On this scenario the altercation would have ended before Keegan had time to throw very many additional punches.

240I also have some reservations about P.S.’s evidence that he was unaware if his knife thrusts made contact with Keegan. The medical evidence is that some of Keegan’s injuries required “severe force” to inflict, and it seems unlikely that a person who inflicted such injuries would not have been aware of doing so at the time. I think that in the moment P.S. probably was aware that he was stabbing Keegan. However, I am not persuaded that he is deliberately lying about this now, rather than simply having difficulty remembering the details of what happened.

241I will discuss the stabbing itself in more detail when I consider the issue of self-defence, to which I will now turn.

D. Has the Crown disproved self-defence?

242As I have already discussed, the s. 34(1) defence of self-defence or defence of others has three essential elements. Since the Crown must prove on the criminal standard that P.S. did not kill Keegan Blyth in lawful self-defence, it is the Crown’s burden to disprove at least one of these three essential elements beyond a reasonable doubt.

1. Did P.S. believe on reasonable grounds that force was being used against him or another person?

243The first element of self-defence, as set out in s. 34(1)(a), is that the person asserting the defence must:

… 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.

In her majority reasons in R. v. Khill, 2021 SCC 37 at para. 51, Martin J. described this first element of the defence as “the catalyst”.

244In this case, there is no dispute that P.S.’s subjective belief that force was being used against both himself and Dimytri was objectively reasonable, since on all competing versions of events it was true.

245P.S.’s account is that he stabbed Keegan in response to Keegan punching him in the face. While Stephen Chanady gives a different account of how the fight started, he agrees that Keegan was punching P.S. Likewise, Dimytri and Mitchell both agree that at this point Mitchell had tackled Dimytri, pinned him down in the yard, and was beating him up. In short, there is no dispute that force was being used against both P.S. and Dimytri when P.S. stabbed Keegan. It follows that the Crown has not disproved the first element of self-defence beyond a reasonable doubt, and indeed the Crown does not suggest otherwise.

246As I have already explained, on my assessment of the evidence I also think that the altercation probably started as Dimytri and P.S. both described it, with Keegan and Mitchell rushing at them without warning from behind the fence and attacking them, and Stephen Chanady then joining in from the front porch. However, even on the Crown’s theory, in which the fight started when Keegan tried to forcibly disarm P.S. after seeing him holding a knife, the “catalyst” element would also not be disproved. The revised and streamlined version of self-defence in the current version of s. 34 no longer requires any threshold determination of whether the accused was the initial aggressor. Rather, the question of whether the accused did something to provoke the fight is now a factor to be considered later in the analysis, when assessing whether the accused’s own use of force was reasonable: see Khill, supra at para. 72ff.

2. Did P.S. act for a defensive purpose?

247The second requirement of self-defence, as set out in s. 34(1)(b), is that “the act that constitutes the offence” – here, P.S.’s actions in stabbing and fatally injuring Keegan Blyth – must have been done by the defendant “for the purpose of defending or protecting” either himself or herself or another person from actual or threatened force. In Khill, supra, Martin J. described this second statutory requirement as “the motive”, explaining that it “ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation” (at para. 59).

248Unlike the first element of self-defence, which has both subjective and objective aspects, the second essential element is purely subjective. What matters is what P.S. was actually thinking when he stabbed Keegan Blyth. The question at this stage is whether the Crown has proved beyond a reasonable doubt that P.S. did not have the subjective purpose in mind of defending either himself or Dimytri.

249Assessing what P.S. was subjectively thinking when he stabbed Keegan requires that I consider both his own evidence about what was going through his mind at the time, as well as any other evidence that could shed light on his subjective thoughts.

250P.S. testified that his purpose in stabbing Keegan was defensive. On his account, he was standing beside the parked car on the south side of the driveway, facing west. Keegan was standing in front of him and slightly to his right and was punching P.S. in the face, while Stephen Chanady, who by this time had joined in the assault, was standing behind him and slightly to his right and was hitting P.S. on the back of the head with what felt like a hard object. P.S. maintains that his intention when he pulled out and opened the folding knife and repeatedly thrust at Keegan was “[j]ust to get them to stop”.

251I reiterate that I do not necessarily need to affirmatively accept P.S.’s testimony to have a reasonable doubt about this element of self-defence. Even if I do not believe P.S.’s evidence about what he was thinking, his testimony can still contribute to a reasonable doubt. Even if I were to reject P.S.’s evidence entirely on this issue, I would still have to consider whether I am left with a reasonable doubt by the other evidence that I do accept.

252However, on all of the evidence in this case I am affirmatively satisfied that P.S. did have a defensive purpose subjectively in his mind when he stabbed Keegan. It follows that the Crown has not disproved this element of self-defence.

253The Crown urges me to reject P.S.’s evidence about his subjective defensive purpose on the basis that I should find that he could have extricated himself from fight in other ways, such as by running away or shouting for help, and that I should infer from his failure to pursue these alternatives that his intention when he pulled his knife and stabbed Keegan was not entirely defensive.

254There is considerable overlap between the prosecution’s argument on this issue and the arguments it makes on the analytically separate question of whether the force P.S. used was reasonable in the circumstances, which I will discuss shortly. For present purposes, I will simply note that I am not satisfied that flight or calling for help would have seemed viable alternatives to a reasonable person in P.S.’s situation, for reasons I will explain, and that I am certainly not prepared to infer that P.S. subjectively recognized these options and consciously passed them up because he wanted to keep fighting and stab Keegan for non-defensive reasons.

255Any inferences I draw about what P.S. was subjectively thinking when he stabbed Keegan have to be made in the context of my findings about the situation P.S. found himself in, and how he came to be in it.

256P.S. was only sixteen years old. There is no evidence that he had any experience when it came to selling drugs. I accept P.S. and Dimytri’s evidence that Dimytri only enlisted P.S. to accompany him to the Blyth residence at the last minute, and that P.S. thought they were meeting someone who was Yashar’s friend. I accept P.S.’s evidence that he did not anticipate any danger, and that he dismissed Dimytri’s insistence that he carry one of Dimytri’s knives as simply another example of the “paranoia” Dimytri had been exhibiting since the 2017 stabbing incident that hospitalized him and left him with lasting injuries.

257Against this backdrop, I am satisfied that when the attack came out of the dark it probably caught P.S. completely off guard. It strikes me as entirely natural that someone in P.S.’s position would be terrified, and might decide to reach for a weapon and use it without first coolly assessing whether there were alternative options. I see nothing inherently implausible about P.S.’s evidence that he did not see any avenues of escape, and his only purpose when he used the knife was to make the attackers stop.

258What P.S. did and did not do after he stabbed Keegan also sheds some further light on what he was thinking at the time. There is no evidence that he said anything that suggests that he was fueled by bravado and seeking vengeance. I also do not accept Stephen Chanady’s evidence that he “threw” P.S. off Keegan and that P.S. then “came at” him from some distance away rather than retreating. Rather, I accept P.S.’s evidence that he turned and slashed at Mr. Chanady until he backed off, and that as soon as he and Dimytri were no longer under attack they both immediately retreated down the driveway back to the road. Dimytri described P.S. as looking “stunned”, and P.S. described himself as “in shock”. On the facts as I find them there is nothing about P.S.’s after-the-fact conduct that undermines his evidence that his only subjective purpose in stabbing Keegan was defensive.

259The probative value of P.S.’s comments two days later to Hailey Barnes that he had stabbed someone in self-defence are in my view very limited. Their only real significance is that if P.S. had told Hailey a different story in which he had presented himself as a tough guy or a hero rather than as a scared kid, this could have undermined his evidence at trial about his subjective defensive purpose. As it is, there is nothing in Hailey’s evidence that causes me to doubt P.S.’s evidence about his state of mind at the time.¹

260Considering all the evidence, I accept P.S.’s testimony that his subjective purpose in stabbing Keegan Blyth was defensive. I certainly cannot reject it as having been disproved beyond a reasonable doubt. It follows that I am not satisfied that the Crown has disproved the second essential element of self-defence.

3. Were P.S.’s actions reasonable in the circumstances?

261The third requirement of self-defence is that the defendant’s use of force must have been “reasonable in the circumstances”: s. 34(1)(c). However, since the Crown bears the burden of disproving self-defence, it is perhaps more accurate to say that the Crown must prove that the defendant’s use of force was not “reasonable in the circumstances”.

262Section 34(2) provides further:

34(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.

263In Khill, supra, Martin J. described the third element of self-defence as “the response”, and explained (at para. 62):

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.

264She observed further (at para. 69):

Given s. 34(1)(c), the question is not the reasonableness of each factor individually, but the relevance of each factor to the ultimate question of the reasonableness of the act. … Once a factor meets the appropriate legal and factual standards, 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 of the outcome.

265The s. 34(2) factors also must not be treated as exhausting the “relevant circumstances” that need to be considered in a particular case. However, Parliament has identified them as ones that will often be important, although their significance may vary from one case to another.

266I have already discussed some of the relevant circumstances when addressing the second “motive” requirement of self-defence. I will now review them and the other relevant circumstances in s. 34(2) in more detail, although I will sometimes group multiple factors together and consider them at the same time.

i) The s. 34(2) factors

(1) The size, age and physical capabilities of the parties [s. 34(2)(e)]

267The five people involved in the altercation were all young men. Most of them were 19 years old, but P.S., at age 16, was a few years younger than the others. He was also much smaller in stature. His uncontradicted evidence was that in March 2018 he stood 5’ 8” tall and weighed about 130 pounds. Dimytri Ingram-Piruzevski described P.S. as “scrawny” and “very skinny”, and Hailey Barnes agreed with this description.

268The post-mortem examination report describes Keegan Blyth as 5’ 10” tall and weighing 187 pounds, with a “well developed” build. Mitchell Pepper testified that Keegan “knew how to fight”. The other person who engaged directly with P.S. during the fight, Stephen Chanady, stood about 5’ 10” tall and weighed about 185 pounds.

269Since s. 34 applies both to self-defence and the defence of others, the physical attributes of the other combatants also have some potential relevance in this case. Dimytri Ingram-Piruzevski and Mitchell Pepper were both 19 years old and both stood around 6’ tall, but Mitchell outweighed Dimytri by some twenty pounds. He also had martial arts training and experience, and on all accounts he completely outclassed Dimytri as a fighter.

(2) The nature and history of the relationship between the parties [s. 34(2)(f) and (f.1)]

270The two combatting groups were mainly complete strangers to one another. P.S. had never met any of Keegan Blyth, Mitchell Pepper or Stephen Chanady and did not know anything about them, other than that Keegan had gone to school with Dimytri’s housemate Yashar. Given my findings about how the fight started and unfolded, I am satisfied that P.S. also could not have specifically known at the time that Keegan was one of the two men attacking him.

271The only two combatants who knew one another were Mitchell Pepper and Dimytri Ingram-Piruzevski. However, I accept that Dimytri had no reason to expect to see Mitchell at the Blyth residence that night and that he did not recognize the man who rushed at him out of the dark and threw him to the ground.

272In my view, the lack of any prior relationship between P.S. and his two direct assailants cuts both ways. On the one hand, P.S. did not have any specific reason to think that Keegan or Stephen Chanady were likely to be either armed or that either would resort to deadly violence. On the other hand, he was being attacked by two strangers who rushed at him out of the dark without warning, and would have had no idea of what they might be capable of doing. To adopt what my colleague Nakatsuru J. said in R. v. Jobe, 2021 ONSC 7508 at para. 122, “given that [they were] stranger[s], a reasonable person would not know with any certainty the extent of the force [they] might use.”

(3) The nature of the force or threat and the extent to which the use of force was imminent [s. 34(2)(a) and (b)]

273On the facts as I have found them, P.S. stabbed Keegan only after Keegan punched him in the face more than once, and after Stephen Chanady had struck him in the back of the head with an object that may very well have been a replica firearm, although P.S. did not know this at the time. As I have already discussed, I think P.S. may be misremembering and overstating, at least implicitly, how many times he was hit before he pulled out the knife. Nevertheless, I am satisfied that he had good reason to think that his attackers meant to continue beating him. They outnumbered him two to one and were both much larger and stronger that he was, and he was in a remote rural area where there was little realistic prospect of anyone coming to his aid. In my view a reasonable person in P.S.’s position would have had good reason to fear that the attack might continue indefinitely if nothing happened to stop it, and that he might be about to find himself hurt very badly.

(4) Whether there were other means available to respond to the potential use of force [s. 34(2)(b)]

274Crown counsel cross-examined P.S. at length about why he did not call for help or try to run away. I do not think either option was realistic in the circumstances that P.S. suddenly found himself thrust into.

275P.S. was being violently attacked without warning outside an isolated rural house by two men who he could reasonably assume probably had some connection to the property. I do not think a reasonable person in his situation would have expected to be able to get aid from anyone inside the house, and there were no close neighbours who might realistically have responded to a cry for help. In these circumstances I think a reasonable person would have dismissed the possibility of crying for help as likely to be utterly futile.

276I also do not think that P.S. had any obvious escape route that would have been perceptible to a reasonable person in his situation. On his account, which on these issues I largely accept, his attackers were positioned in front and behind him and slightly to his right. His path to his left was blocked by a parked vehicle. While P.S. might possibly have been able to dodge to his right and escape through the small space between his two assailants, I think a reasonable person in P.S.’s position would have discounted the chances of this working. If P.S. had tried doing this there were any number of ways his attackers could have either blocked him, tripped him or held him back, all of which could easily have left P.S. in an even more vulnerable position.

277It is also worth noting that while on his own evidence P.S. was understandably only thinking in the moment about his own safety, running away would have meant abandoning his friend Dimytri. Section 34 permits the use of force both for self-preservation and for the defence of others. I think that a reasonable person who had the presence of mind to coolly weigh the pros and cons of all of the various options would have been very reluctant to abandon a friend, who by this time was on the ground being pummeled by a much more adept fighter and was essentially defenseless. P.S. did not have a cell phone, there were no near neighbours he could have run to for help, and as far as he knew Justin had driven off in his car, and he and Dimytri were stranded out in the countryside. Even if P.S. had somehow been able escape his fight with Keegan and Stephen Chanady without using his knife, I am not satisfied that this would have exhausted his ability to invoke the s. 34 defence, since Mitchell’s attack on Dimytri was still ongoing. However, I need not consider the situation that would have arisen if P.S. had used his knife in an attempt to rescue Dimytri, since this is not what happened.

(5) The parties’ use of weapons [s. 34(2)(d)]

278P.S. was the only participant in the altercation who resorted to using a deadly weapon. Dimytri also had multiple weapons on his person but never managed to access any of them during the fight, and one of them – his second knife, which had been in one of his rear pants pockets – evidently fell out at some point during his struggle with Mitchell Pepper, since it was later found on the ground by the police.

279As I have already discussed, I find that Stephen Chanady was armed with some object that he used to strike P.S., which was quite possibly one of the replica handguns the police later found in the backpack that was hidden in the alcove in his basement bedroom. These guns closely resembled real firearms but were not true deadly weapons: two could only shoot non-lethal pellets, while the third was a starter’s pistol that did not shoot anything. In any event, P.S. never saw what it was that Mr. Chanady was using to hit him with.

280There is no evidence that Keegan Blyth or Mitchell Pepper were armed with any weapons.

281However, I should also note in relation to this factor that I accept P.S. and Dimytri’s evidence that P.S. was only carrying the knife at Dimytri’s insistence. I am satisfied that this was not a situation where P.S. made a deliberate choice to arm himself with a knife because he was expecting trouble and foresaw the likelihood that he might have to use the weapon. Dimytri, who was both an experienced drug dealer and exceptionally safety-conscious, was concerned that he and P.S. could be walking into a trap. However, I accept his and P.S.’s evidence that he never shared his fears with P.S., in part because by the time he enlisted P.S. to come with him his concerns had been at least partly assuaged by his learning that Yashar and Keegan were friends from high school. I accept Dimytri’s evidence about this, in part because I think that if he had still felt that there was a strong chance that they were being set up he would probably have gone back to his original plan to have his larger and stronger friend Brad come with him to act as his “muscle”. The physically slight and inexperienced P.S. was not someone Dimytri was likely to have wanted with him if he thought there was likely to be trouble.

282I also accept Dimytri and P.S.’s evidence that Dimytri, who knew that P.S. was reluctant to come with him at all, portrayed the meeting as not a big deal and downplayed the significance of his insistence that P.S. carry one of Dimytri’s knives.

(6) P.S.’s role in the incident [s. 34(2)(c)]

283As Martin J. stated in Khill, supra at para. 74, this factor:

…calls for a review of the accused’s role, if any, in bringing about the conflict. The analytical purpose of considering this conduct is to assess whether the accused’s behaviour throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge.

284She explained further 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 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.]

285The Crown argues that drug dealing is an inherently dangerous activity. While this may be true in general, there is a spectrum of dangerousness. I would be inclined put the drug deal that Dimytri and P.S. were expecting – a relatively small-scale marijuana deal involving only a few thousand dollars being conducted between a group of teenagers – towards the lower end of this spectrum.

286In any case, however, on all accounts P.S. played no role in arranging the ostensible marijuana transaction or the meeting at the Blyth residence. I accept that P.S.’s participation only came about at the last minute, because Dimytri did not want to go to the meeting alone and P.S. was close at hand and amenable to Dimytri’s persuasion. While P.S. knew that Dimytri was planning to sell marijuana, he thought that the buyer was Yashar’s high school friend. He testified that he did not think he and Dimytri were going into a dangerous situation. I accept his evidence on this point, and I am not satisfied that a reasonable person in his position would have foreseen any significant danger either merely because what was ostensibly planned was a drug deal.

287Moreover, on my findings of fact I am satisfied that P.S. bears no responsibility for the meeting turning violent. Rather, as I have discussed, I think that the violence was probably initiated by Keegan and his friends in their attempt to rob Dimytri of his drugs. I find that P.S. was taken completely unawares when the attack came out of the dark, and that a reasonable person in his position would have been equally surprised. As I will discuss further later, I consider this to be an important contextual factor when assessing the reasonableness of P.S.’s response.

(7) The nature and proportionality of the person’s response to the use or threat of force [s. 34(2)(g)]

288P.S. stabbed Keegan in his torso four times. Three of these stab wounds required “severe force” to inflict. Keegan, in contrast, was unarmed and had punched P.S. several times in the head, giving him a bloody nose and a swollen hand but no more serious injuries. Stephen Chanady had also struck P.S. in the back of the head with an object that was probably a replica firearm, although P.S. did not know at the time what it was, and Mr. Chanady’s blows did not cause any observable injuries to P.S.

289Viewed from one perspective, the force P.S. used against Keegan can be considered highly disproportionate to the force that his two assailants were using on him.

290That said, it is also important to bear in mind that the force P.S. was responding to cannot be measured solely by looking at the blows that had already landed. P.S. had every reason to expect that the attack on him would continue unless he was able to do something to stop it. Even a single punch to the head can be deadly: see, e.g., R. v. Smeeton, 2002 45071 (Ont. C.A.); R. v. Talbot, 2007 ONCA 81. On P.S.’s evidence he thrust his knife at Keegan until Keegan stopped hitting him, and then swung his knife at Stephen Chanady until he backed away. I accept his evidence that he did not pursue either of them or inflict any more injuries on them after they both broke of their attacks.

291Viewed from this perspective, P.S.’s use of force was arguably no more than was reasonably necessary to achieve his defensive purpose of making his attackers stop attacking him. As Martin J. observed in Khill, supra at para. 32, citing R. v. Baxter (1975), 1975 1510 (ON CA), 27 C.C.C. (2d) 96 at p. 111 (Ont. C.A.), even under the previous Criminal Code self-defence provisions, which were narrower and more restrictive than the current version of s. 34, “the accused was not required to ‘weigh to a nicety’ the amount of force used under the rubric of proportionality”.

(8) Whether the act committed was in response to a use or threat of force that the person knew was lawful [s. 34(2)(h)]

292On what I have found to be the most likely construction of the evidence, P.S. was unlawfully assaulted by Keegan and Stephen Chanady during a robbery attempt.

293I would note parenthetically that even if I were to accept the Crown’s theory that Keegan attacked P.S. because he saw P.S. brandishing a knife, which I do not, it would not necessarily follow that P.S. would have known that Keegan’s use of force was lawful.

294Self-defence is not a zero-sum game: since the defence can be based on a reasonable mistake by the accused about whether force is about to be used against him or her, both parties to a fight can act in self-defence at the same time. As Rouleau J.A. explained in R. v. Mohamed, 2014 ONCA 442 at para. 30:

[E]ach of the victim and the [accused] can, in the heat of the moment, viewing the scene from different perspectives and benefitting from different information, come to the reasonable and objectively supported conclusion that he is himself responding to an unlawful assault by the other and that his use of force is justified in response.

295Even if I were to accept that Keegan attacked P.S. because he saw P.S. holding a knife, causing Keegan to believe that P.S. was about to attack him, from P.S.’s perspective it would not necessarily have been apparent that this was Keegan’s motivation. The Crown’s theory is that P.S. took the knife out of his pocket and opened it because he feared that he and Dimytri were walking into a dangerous situation where they might be attacked. From P.S.’s perspective, any attack by Keegan would likely have seemed as if his fears were now being realized. Even if Keegan’s own motivation was defensive, I would have considerable difficulty concluding that P.S. would have subjectively realized this.

296However, in view of my conclusion on the evidence that this is probably not how the altercation started, and that Keegan’s initial attack on P.S. was probably neither defensive nor lawful, I will not address this issue any further.

ii) Balancing the relevant factors

297As I have already noted, the assessment of whether a defendant’s use of force was “reasonable in the circumstances” within the meaning of s. 34(1)(c) “is a global, holistic exercise” in which “[n]o single factor is necessarily determinative of the outcome”: Khill, supra at para. 69.

298When making this assessment it is important to recognize that the 2013 amendments to the Criminal Code’s self-defence provisions significantly changed the defence’s conceptual underpinnings. In Khill, supra, Martin J. observed that while self-defence was traditionally viewed in Canadian law as a justification rather than as an excuse, “the line between justification and excuse has been blurred by the [2013] amendments” (at para. 48). She explained further (at para. 106) that “given the expansion of potential motives to act and excusable responses, the line between self-defence and the defences of necessity or duress has been blurred”.

299The defences of necessity and duress are rooted in the concept of “moral involuntariness”, and generally act as an excuse rather than as a justification: see Perka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232; R. v. Hibbert, supra; R. v. Ruzic, 2001 SCC 24, [2001] 1 SCR 687. They recognize that it would be unjust to punish a person for doing an otherwise criminal act if it is performed in circumstances where it cannot be shown that a reasonable person in the same position would not have been compelled by the basic human instinct of self-preservation to act in the same way.

300In my view this concept of moral involuntariness must now inform the s. 34(1)(c) inquiry into whether a defendant’s use of force was “reasonable in the circumstances”. The relevant question is not whether a reasonable person assessing the accused’s actions after the fact would consider the accused’s use of force to have been justified in hindsight, but whether the evidence proves beyond a reasonable doubt that a reasonable person in the accused’s position, “sharing the personal characteristics of the accused, such as age, sex and background” (Ruzic, supra at para. 76), would realistically have acted significantly differently if he or she had been put in the accused’s position.

301In the case at bar, I think it is essential to keep in mind how quickly events unfolded and how they would have been perceived by a reasonable person in P.S.’s situation. On the facts as I have found them, he was attacked by two older, larger and stronger men who came at him out of the dark without warning. P.S. did not know who they were or what they might be capable of doing. I accept P.S.’s evidence that he was terrified, and I expect that any reasonable person in his situation would have felt the same way.

302As I have already discussed, I do not think a reasonable person in P.S.’s situation would have thought he or she could simply run away. P.S.’s escape path was effectively blocked, and in any case fleeing would have meant abandoning Dimytri, who by this time was on the ground being pummelled by Mitchell Pepper. As I have also already discussed, shouting for help would also not have seemed a viable option in the circumstances. Moreover, I do not think it would have been reasonable or realistic to expect P.S. to simply brandish the knife as a threat. He was being attacked at close quarters by two larger and stronger assailants. If P.S. had merely shown the knife but not used it, I think a reasonable person in his position would have had good reason to fear that his attackers would be able to disarm him, and might then use the knife against him.

303I also do not think it is fair or realistic to imbue a reasonable person who is attacked in this manner with the presence of mind to carefully and coolly assess whether he or she is likely to be seriously injured if the attack continues. In my view, it goes too far to expect ordinary people to submit to what could a very bad beating based on a rational calculation that the odds of being killed or seriously injured is probably low. As I noted earlier, even a single punch to the head can be deadly. In my view, when a person is attacked suddenly by surprise it is only reasonable to expect the basic human instinct for self-preservation to take over.

304On all the evidence, I think a reasonable person in P.S.’s situation could be expected to have done what he did and taken the knife from his pocket and used it to try to inflict injury on his assailants, even though doing so significantly escalated the level of violence that was being used. From P.S.’s perspective there would not have seemed any other realistic way of making the attack stop. Even though the violence P.S. used was in one sense disproportionate to the violence that was being used on him, proportionality is no longer an essential precondition for self-defence, but is only one of the factors to be balanced in the reasonableness assessment. I am not prepared to say that it was unreasonable in the circumstances for P.S. to take out and open his knife and use it to stab Keegan.

305The more difficult question is whether it was reasonable for P.S. to stab Keegan as many times and as forcefully as he did. With benefit of hindsight, it is possible that Keegan might have stopped his attack even if P.S. had used less force. Once Keegan realized that P.S. had a knife and was prepared to use it, he might have retreated. It may be that P.S. could have fully achieved his defensive purpose if he had stopped after the first knife thrust. If this had happened, Keegan might not have died.

306However, someone in P.S.’s position could not realistically predict how Keegan, a stranger, might react. If P.S. had stabbed Keegan once and then stopped to see what happened, Keegan might not have retreated. He might instead have become angry, wrested the knife from the smaller youth, and used it on him. P.S. had no way of knowing how things would unfold if he held back.

307Courts have repeatedly cautioned that “the trier of fact must be mindful that people using defensive force in stressful and dangerous situations are not expected to weigh their responses to a nicety”: R. v. P.S., 2020 ONCA 259 at para. 25; see also R. v. Cunha, 2016 ONCA 491 at para. 7; R. v. R.S., 2019 ONCA 832 at para. 36; R. v. Baxter, supra at p. 111 C.C.C. This was true even under the old Code provisions, and this principle is now reinforced by Parliament’s decision to treat the issue of proportionality as simply one of many factors to be considered when assessing the reasonableness of the defendant’s response to the use or threat of force.

308In my view, the Crown has not proved that P.S.’s actions fell outside the expanded scope of s. 34. On P.S.’s evidence, which I substantially accept, he was terrified and thinking only about how to make the attack stop. He struck out with his knife until Keegan stopped hitting him, and then turned and slashed at Stephen Chanady until he also backed off. Once each of his attackers stopped hitting him, P.S. stopped trying to use his knife against them. He instead retreated down the driveway with Dimytri, who by that time was up and able to come with him.

309The circumstances P.S. unexpectedly found himself in did not give him time for considered reflection, or a realistic opportunity to carefully calibrate his use of force so that he used only the bare minimum necessary. I am not satisfied beyond a reasonable doubt that a reasonable person in P.S.’s position, of a similar age and with similar personal characteristics, would have acted differently when he was attacked violently and without warning out of the dark by two older, larger, and stronger assailants.

310It follows that I must find P.S. not guilty of the charge of second degree murder. I am not satisfied that Crown has proved beyond a reasonable doubt that Keegan Blyth’s death at P.S.’s hands was a culpable homicide, because I am not satisfied beyond a reasonable doubt that P.S. did not act in lawful self-defence under s. 34.

311This makes it unnecessary for me to continue my analysis and consider whether the evidence proves beyond a reasonable doubt that P.S. had the requisite subjective intent for murder, or whether his level of culpability should be reduced to manslaughter by the partial defence of provocation. It would only be necessary for me to decide these questions if I were satisfied beyond a reasonable doubt that P.S.’s conduct was criminally culpable, which I am not.

312I will end my reasons with a final observation. Keegan Blyth’s death is tragic. His mother talked movingly in her testimony about his many good qualities, and about how much she and the rest of his family loved him. She also spoke of how Keegan knew “what it felt like to kind of be a little bit excluded”, and about his way of taking under his wing other kids who were having problems of their own. Steven Stelnick spoke of how he had been the victim of bullying and how Keegan “always looked out for me when people picked on me”. Keegan seems to have been the sort of person who many people each thought of as their best friend.

313I have concluded on the evidence presented at this trial that Keegan was probably part of a plan to commit a drug rip-off that went horribly wrong and led to his own death. I can only imagine how difficult it must be for his family to hear me say this this. Nothing I’ve said should be taken to suggest in any way that Keegan was a bad person or that he somehow deserved what happened to him. He may have made a bad choice, but it doesn’t define who he was or negate everything that was good about him.

314All that said, this is a court of justice, and justice demands that the stigma of a criminal conviction and punishment be reserved for those whose guilt has been established on the high standard of proof beyond a reasonable doubt. Unjustly punishing P.S. for Keegan’s death would not bring Keegan back. It would only compound what is already a tragic situation.

315On the evidence, I am not satisfied beyond a reasonable doubt that P.S. committed a criminal act when he killed Keegan. I must find him not guilty.

The Honourable J. Dawe

Footnotes

1. 1I should note parenthetically that I do not attach any significance to the discrepancies between Hailey Barnes’s memory of what she recalls P.S. telling her about the fight and his evidence about the fight at trial, since she frankly acknowledged that by the time she made her police statement she was no longer clear in her own mind about what P.S. had said to her and what she had read online.