COURT FILE NO.: CR-23-240-00
DATE: 2024-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
T. Bud, M. Flagg, for the Crown
- and -
JOSEPH HUBBARD
G. Joseph, for the Accused
Accused
HEARD: April 22, 2024 – April 25, 2024 at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
REASONS FOR JUDGMENT
OVERVIEW:
[1] Joseph Hubbard (the “Accused” or “Hubbard”) and John Reuben (the “Victim” or “Reuben”) were strangers to each other. They met in the early hours of the morning of June 24, 2022, outside a local bowling alley when Hubbard agreed to sell drugs to Reuben.
[2] The two men walked a short distance back to Hubbard’s residence to complete the deal. As Hubbard stated to the 911 dispatcher, “something went wrong”. Reuben suffered a tragic and fatal stab wound to the heart.
[3] Hubbard admits that he inflicted the stab wound. He does not dispute that the stabbing caused Reuben's death. Hubbard says he acted in self-defence. The Crown argues that certain aspects of Hubbard’s version of events are inconsistent with other evidence in the case. The Crown says that Hubbard cannot be believed with respect to self-defence. Furthermore, even if I do believe his account of what happened, his actions were not reasonable. The Crown says that Hubbard committed second degree murder contrary to s. 235(1) of the Criminal Code.
[4] The issue for me to determine is whether the Crown has proved beyond a reasonable doubt that Hubbard did not act in self-defence when he stabbed Reuben.
[5] I find that the Crown has not met its onus.
THE EVIDENCE:
The Altercation:
[6] The Accused testified that on June 23rd, 2022, after his workday, he spent the evening socializing with friends at various locations. Sometime after 2 a.m. he began to walk home from the last location. Throughout the night he consumed approximately nine alcoholic beverages. On a scale of one (not at all) to ten (falling down) for intoxication, he described himself as being a seven.
[7] On his way home he stopped outside The Alley Bar briefly. He had been there earlier in the night. He was with a group of people and speaking with an acquaintance when Reuben approached him and asked him if he had crack or cocaine for sale. Hubbard told Reuben that he had some at his apartment, which was minutes away.
[8] Reuben asked for $15 worth of drugs, which equated to one-tenth of a gram of cocaine. Hubbard agreed, and the two men went on the five-minute walk back to Hubbard’s apartment. Hubbard testified that on the way, Reuben gave him the money and said his name was “JR”. Hubbard took out his wallet and opened it to put the money in it. He had approximately $400 in his wallet. He then put the wallet back in his pocket.
[9] Hubbard’s evidence did not suggest that there was anything concerning about the interaction between the two men during the walk back to his apartment. Once at the apartment, Reuben followed Hubbard inside. Hubbard went into his bedroom where the drugs were kept. Reuben followed him to the bedroom door. Hubbard had only approximately $30 worth of drugs in his room at the time.
[10] Hubbard was new to the drug trade. He had begun selling drugs approximately three weeks before June 23rd. He bagged $30 worth of drugs for Reuben and handed them to him. He had never dealt with Reuben before. His intention was to give Reuben a “deal” by giving him more than he had paid for, to try to get more business from Reuben in the future.
[11] This is the point at which things started to go wrong. Hubbard’s evidence is that suddenly, while he was handing Reuben the drugs, Reuben grabbed Hubbard’s Old Spice body spray off his dresser in the bedroom and then sprayed Hubbard in the face causing his eyes to sting and burn.
[12] Hubbard believed that the attack was motivated by a desire to rob him. He reacted by pushing Reuben towards the bedroom door so that they ended up in the kitchen/living room area. At this point Hubbard says he was pushing Reuben to stop him from spraying him in the face again. A brief struggle ensued, with both men falling to the ground. After both started getting to their feet, Hubbard saw Reuben turn away from him and towards the kitchen counter. Hubbard testified that his adrenaline was going, his mind was racing, and he was scared. Reuben grabbed a sharp knife off the kitchen counter. Hubbard grabbed Reuben from behind by wrapping his arms around him to stop him from stabbing him. As he grabbed Reuben, they both fell backwards to the floor, with Reuben slightly over top of Hubbard.
[13] During the fall Reuben dropped the knife. Both men were trying to get up. As Hubbard was getting up, he grabbed the knife and stabbed Reuben once. He believed he had stabbed him in the stomach. Reuben yelled at him to stop, and he did.
[14] Following the stabbing Reuben ran out of the apartment and down the stairs, where he collapsed. Hubbard ran behind him to make sure he was leaving. Reuben collapsed on the first landing while Hubbard was at the top of the stairs, knife still in his hand. When he saw Reuben collapse he threw the knife down on to the boot tray at the doorway and went down the stairs to check on Reuben and get him out of the apartment. He tried to get Reuben up, but it was evident he was seriously hurt and unconscious. Hubbard could not move him. He ran upstairs to get his phone.
The 911 Call:
[15] At 2:46 a.m. on June 24, 2022, the Accused called 911. He candidly reported that “some guy” had come to his house to buy drugs and then tried to rob him. He said that he stabbed the man. The Accused told the dispatcher that he needed police and an ambulance. The Accused thought the man may be dying. The Accused told the 911 dispatcher that he was “in shock right now”. At trial, Hubbard confirmed that he was in shock and panicking.
[16] The dispatcher asked the Accused to explain what had happened. Hubbard said that “[o]ne thing led to another. He pulled a knife on me, and I grabbed it and stabbed him.” He said that he did not know the man or his real name. He asked if there was something he should be doing to help Reuben. The dispatcher transferred the call to ambulance.
[17] Hubbard told the ambulance dispatcher that he lifted up Reuben’s shirt to see where he was bleeding the most but could not find the spot. The dispatcher asked if he had any clean towels or anything he could use to apply pressure to the wound. Hubbard said they were upstairs. The dispatcher asked a few more questions and police arrived.
Police and the Scene:
[18] Within less than six minutes of the 911 call being placed, multiple Thunder Bay Police officers arrived at the apartment. Some of those officers testified at trial.
[19] Acting Sgt. Gerald Duffy was the first on scene. He approached the door of the building and heard a male speaking. He opened the doorway and saw Hubbard speaking on the phone with 911, crouching over Reuben. Reuben was laying on his back with his eyes open and did not appear to be breathing. His shirt was open, exposing a single stab wound to the upper left chest.
[20] Body worn camera footage of the various police officer’s interactions with Hubbard was played at trial, including the initial interactions between Duffy and Hubbard. Hubbard could be heard to say to Duffy words to the effect of “you gotta help him man, you gotta help him”. Hubbard was compliant with directions from police and was handcuffed and seated outside the apartment building while officers performed CPR and attempted to assist the victim. In all his interactions with police Hubbard was responsive and compliant. Reuben was pronounced dead at the Thunder Bay Regional Health Sciences Centre at 3:22 a.m.
[21] Hubbard was arrested, cautioned, and taken to the police station. He was observed to have a scratch to the upper centre of his left breast area, scratches to the right side under his arm, mid-torso, and waist, and a scratch to the left neck at the shoulder and front neck area. In addition, he had a bruise on his upper left arm, which he said did not occur in the altercation with Reuben. There were no other injuries.
[22] Photographs taken at the scene showed the following:
a. small pool of blood droplets on the floor on the inside of the doorway to the apartment;
b. to the right of the doorway was a nine-inch fillet-style knife with a wooden handle on a rubber shoe mat on the floor (the knife used in the stabbing);
c. the knife had blood on the blade;
d. there was also a butter knife laying near the larger knife;
e. signs of drug use in the bedroom including a weigh scale, cut straw, spoon and grinder, ziploc bag and “dime” bag, and white residue on the dresser;
f. the apartment was small, with a single room (kitchen/living room), bedroom, and bathroom;
g. the kitchen countertop was very close (within reaching distance) from the bedroom doorway;
h. the apartment was quite messy with clothing, garbage, and other items strewn all over counters, furniture, and the floor; and
i. there was a small amount of blood by the toilet and blood on the vanity countertop.
The Forensic Evidence:
[23] Dr. Nicholas Escott, forensic pathologist, performed the autopsy on Reuben and testified at trial. His findings are not disputed by the Crown or Defence. His findings may be summarized as follows:
a. the Victim was approximately 28 years old, 5 ft 8 in in height, and 72 kilograms (thin);
b. the Victim died from a single stab wound to the chest;
c. the Victim was stabbed in the heart with mild to medium force with a sharp blade;
d. the path of the knife did not encounter any significant resistance with bone or cartilage;
e. a wound of this nature causes severe blood loss and inevitable death;
f. some other mild bruises were found on the Victim, which were recent and would have occurred before the stab wound (although it is uncertain when);
g. a small abrasion (scrape) was found on the right side of the forehead and on the mid chest area;
h. no defensive wounds were found on the body; and
i. the toxicology report was positive for several drugs, including fentanyl, carfentanil, cocaine, ethanol, MDMA, and flubromazepam, which suggest it was likely that the Victim was under the influence of drugs, but none of the drugs are considered contributory to the cause of death.
[24] The Statement of Agreed facts sets out the following findings of Dr. Sonja Stadler, forensic biologist at the Centre of Forensic Sciences, who performed DNA analyses of several items that the Thunder Bay Police Service submitted from their investigation. Dr. Stadler did not testify, and no report was filed:
a. Reuben could not be excluded as the source of a DNA profile from blood on the hands of Hubbard, the handle of the butter knife, the blade of the large knife, and a swab of the apartment floor;
b. the butter knife handle contained the DNA of four people, including at least one male; and
c. Hubbard could not be excluded as a contributor to the mixed DNA profile from the handle of the kitchen knife.
ANALYSIS:
Legal Framework:
[25] There is no dispute that Hubbard killed Reuben. The issue for me to determine is whether killing was lawful or unlawful.
The Burden and Standard of Proof
[26] An accused person is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty.
[27] To secure a conviction in this case the Crown must establish each essential element of the charges against Hubbard to a point of proof beyond reasonable doubt. If the Crown fails to do so, then the Accused must be acquitted.
[28] Proof beyond a reasonable doubt is a high test for the Crown to meet. As Pierce J., noted in R. v. Bushby, 2020 ONSC 7780, at para. 15, it has been made intentionally high so that individuals charged with offences are not wrongfully convicted.
[29] For the Crown to meet its burden, more is required than proof that the Accused is probably guilty. A trier of fact who concludes only that the defendant is probably guilty must acquit an accused.
[30] While the Crown onus is a stringent one, proof beyond a reasonable doubt does not require the Crown to prove the offence to an absolute certainty or to a standard of proof beyond any doubt. This would be an impossibly high burden to expect the Crown to meet. Furthermore, the doubt must not be imaginary, frivolous, or based upon sympathy or prejudice. A reasonable doubt is based upon reason and common sense, and is logically connected to the evidence, or the absence of evidence: see R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
Murder:
[31] Pursuant to s. 222(1) of the Criminal Code, a person commits a homicide when they cause the death of another person.
[32] Homicide may be culpable or not culpable. Homicide that is not culpable is not an offence. A culpable homicide is when the death of another is caused by, amongst other things, an unlawful act. Culpable homicide is murder or manslaughter.
[33] Murder, as defined in s. 229 of the Criminal Code, is where the person who caused the death of someone meant to cause their death; or where they meant to cause bodily harm that they knew was likely to cause death and were reckless as to whether death ensued.
[34] All murder not defined in the Criminal Code as first degree (which is usually planned and deliberate), is second degree murder.
[35] To prove second degree murder in this case, the Crown must prove each of the following essential elements of the crime beyond a reasonable doubt:
a. that Hubbard caused Reuben’s death (causation);
b. that he did so unlawfully (he committed an unlawful act); and
c. that he had the state of mind necessary for murder.
[36] If I conclude that the Crown has proved each one of these elements, then I must convict. If I conclude the Crown has not proved each one of these elements, I must find the Accused not guilty of second-degree murder. If I find that the Crown has proved causation and that the Accused committed an unlawful act, but not that he had the state of mind necessary for murder, I must convict him of manslaughter.
[37] As indicated previously, causation is acknowledged by the Defence. What is at issue is whether the stabbing was unlawful, and whether the Accused had the requisite state of mind for murder. The Crown and Defence acknowledge that if the Crown is unable to disprove self-defence, then the stabbing is lawful, and the homicide is not culpable. If the Crown proves that the stabbing was not committed in self-defence, then it was unlawful, and the only question left to determine is whether there was the requisite intent for second-degree murder. The Defence argues that on the facts of this case there was not the requisite intent, and therefore if I find that that the Accused did not act in self-defence, then he is guilty of manslaughter.
Self-Defence
[38] Our law recognizes, within limits, the right of a person to protect himself from another person.
[39] Section 34(1) of the Criminal Code provides a person is not guilty of an offence if:
a. he believed on reasonable grounds that force was threatened or being used against him (the catalyst)
b. the accused acted for the purpose of defending himself (the motive); and
c. the act committed was reasonable in the circumstances (the response).
See also: R. v. Khill, 2021 SCC 37, 2021 CarswellOnt 14156, at paras. 18, 36-37, and 51.
[40] Section 34(2) of the Criminal Code sets out a non-exhaustive list of the factors that I must consider in assessing the third question, which translates to what a reasonable person would have done in a comparable situation. They are:
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 response 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.
[41] The Accused does not have to prove that he was acting in lawful defence of himself. Consistent with the presumption of innocence and burden of proof, it is for the Crown to prove beyond a reasonable doubt that the Accused was not acting in self-defence. As counsel for the Accused stated, the burden suggests that the question is not, ‘is this self-defence’, but rather, ‘how is it not self-defence’. To defeat a self-defence claim, the Crown must only prove that one of the three s. 34(1) elements is not present.
[42] If the Crown is successful in meeting its burden with respect to self-defence, then the Accused will have committed a culpable homicide and I must determine whether it is second-degree murder or manslaughter.
Assessing Credibility and the W.D. Analysis
[43] As I indicated at the outset, the Crown argues that Hubbard’s account of events is not credible and should not be believed. While there were no witnesses to contradict Hubbard’s account, the Crown argues that the physical evidence at the scene, other evidence in the case, along with common sense inferences, belie Hubbard’s explanation as to what happened.
[44] The Defence argues that this is not the case. The Defence points out that Hubbard remained unshaken in cross-examination as to his version of events. While at first glance it may appear that there are some contradictions between Hubbard’s account and other evidence, the Defence says that a careful examination reveals that for the most part the evidence available to the court is consistent with Hubbard’s account. The Defence also reminds me that I do not have to accept all of Hubbard’s account to acquit. If, based on the evidence before me, there remains reasonable doubt as to the elements of self-defence, then Hubbard must be found not guilty.
[45] The Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, clarified that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. Justice Cory stated, in R. v. W.(D.) at p. 757, that:
It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
[46] In R. v. W.D., the Supreme Court set out a framework for assessing credibility in circumstances in which there is evidence of the accused. As Hubbard testified at trial, the R. v. W.(D.) principles from the Supreme Court of Canada are engaged. At pages 757-58 of the reasons, the framework was set out as follows:
The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved by R. v. Morin, supra, at p. 357 [[1988] 2 S.C.R.].
[47] The Ontario Court of Appeal has identified a need to reframe the first two principles of the W. (D.) analysis in the context of a self-defence claim. The applicable principles when self-defence is raised are:
a. If I believe the accused’s evidence and on the basis of it, I either believe or have a reasonable doubt that he was acting in lawful self-defence, I must find the accused not guilty;
b. Even if I do not believe the accused’s evidence, if, after considering it alone or in conjunction with the other evidence I either believe or have a reasonable doubt that he was acting in lawful self-defence, I must find the accused not guilty; and
See: R. v. Reid, 2003 CanLII 14779 (ONCA), [2003] O.J. No. 2822 (QL), at para. 72.
Findings Based on the Law and Evidence:
[48] I have considered the law and facts as set out above.
[49] Overall, there are some aspects of the Accused’s account of the altercation that give cause for pause. I also acknowledge that there are other plausible explanations for what happened, such as a scenario that has the Accused as the instigator of the conflict or another that has the Accused reacting unreasonably with a knife to an insignificant threat from Reuben. The problem is that these other explanations call for speculation. Even if permissible inferences lead to the conclusion that these are very possible ways in which the stabbing occurred, I still cannot say that the account of the Accused is not also a possible explanation. When I consider the account of the Accused in the context of the totality of the evidence, I am left with doubt. I find that the Crown has not proved beyond a reasonable doubt that this homicide was not committed in self-defence and that the homicide was murder.
Did the Accused Believe, on Reasonable Grounds, that Force was Being Used or Threatened Against Them or Another Person?
[50] I turn now to my findings on the specific questions to be answered with respect to self-defence.
[51] This element of self-defence considers the state of mind of the Accused, and his perception of the events that led him to act. Unless the Accused subjectively believed that force or a threat of force was being used against his person, the defence is unavailable: R. v. Khill, at para. 52.
[52] The Accused’s subjective believe must also be based on objectively reasonable grounds. The question requires consideration of whether a reasonable person with attributes, experiences, and circumstances of the Accused would perceive that force was being used or that they were being threatened. Even if an accused is mistaken as to whether force was being used or that they were being threatened, an honest but mistaken belief, reasonably held, is not a bar to a claim of self-defence: R. v. Khill, at para. 57.
[53] The only evidence I have as to the circumstances of the Accused is that he is a 24-year-old man who at the time of the stabbing, worked at a local shelter house, had grown up on the Gull Bay First Nation, and had just recently (prior to the homicide) started selling drugs. He had drunk a fair bit that night but was not ‘black out’ drunk. His evidence is that out of the blue, Reuben attacked him with the body spray in the face and eyes. When he tried to push Reuben away to fend off any further attack, Reuben escalated the conflict by grabbing a knife. He was afraid Reuben was going to stab him, so he stabbed Reuben when the knife fell. The evidence of the Accused is that his mind was racing, and he was scared.
[54] The Crown acknowledges that if I believe Hubbard was sprayed in the eyes with Old Spice and that Reuben grabbed a knife, then this will be sufficient to satisfy the first element of the test.
[55] Having said this, the Crown urges me to reject entirely this account of events from the Accused. The Crown’s arguments and my findings are as follows:
a. The Crown argues that it makes no sense for Reuben to have attacked the Accused. Reuben had successfully completed the transaction by paying for the drugs and receiving more than he had paid for. Based on Hubbard’s evidence as to the interactions between the two men, there was no apparent reason for the attack.
I find the Accused has explained the motive for the attack. His explanation is plausible. Hubbard’s belief was that the attack on him was part of Reuben’s attempt to rob him. While he may (or may not) be mistaken as to this belief, it was a reasonably held belief. Based on the evidence of the Accused, he pulled his wallet out when Reuben was paying him, opened it and placed the money inside. He said he had approximately $400 in the wallet. While we have no evidence as to whether Reuben saw the contents of the wallet when the Accused opened it, and he certainly would not have known exactly how much money was in the wallet, the evidence of the Accused is that he opened his wallet while with Reuben. The Crown led no evidence as to whether a wallet was found on Hubbard or in his apartment, and whether there was a large amount of cash in it. I also am not clear whether Reuben knew that the Accused had no more drugs in the apartment other than what he had been given. While there is no evidence that Reuben made any demand for Hubbard’s money or drugs, the absence of a demand and the fact that no drugs or money were found on the victim are facts not inconsistent with Hubbard’s account that there was a sudden attack that came without warning, and a robbery attempt that he thwarted.
I find that the evidence is inconsistent with Hubbard initiating the attack on Reuben. The evidence before me is that the two men did not know each other. Hubbard’s evidence is that he was new to the drug trade and was attempting to build a client base. Because of this, he gave Reuben more than what he had paid for to encourage Reuben to come back to him for future purchases. I have no evidence to suggest this was not the case. It makes no sense that Hubbard would try to ingratiate himself with Reuben and then turn around and kill him for no apparent reason.
In drawing this conclusion, I have considered that senseless acts of violence with tragic consequences happen all too often. I have also considered that it is entirely possible that Reuben could have tried to rob the Accused with minimal or no force, following which the Accused stabbed him. Based on the evidence before me, other possible scenarios cannot be said to be more plausible than the account offered by Hubbard. Again, it is the Crown burden to disprove self-defence.
b. The Crown further argues that Reuben brought no weapon to the apartment. The knives found, including the sharp knife used in the stabbing belonged to Hubbard. Reuben had never been to that apartment before and would not have known where to find them, while Hubbard would have. The DNA evidence points strongly to the inference that Reuben never handled the knife as his blood was found only on the blade. The Crown argues that these facts are inconsistent with Reuben initiating and escalating the attack.
Again, while the Crown argument could support a theory that this was not self-defence, the Accused’s explanation also remains plausible when one considers the other evidence in the case. The random meeting of the two men outside the bar suggests that this was not a planned attack by Reuben. The photographs of the apartment show that it would have been quite easy for Reuben to grab a knife off the kitchen counter following the scuffle in the bedroom, and while at the doorway to the bedroom. The condition of the apartment was such that it is entirely believable that the knife was on the counter and in plain view. Reuben would not have needed to know where to look for the knife. The counter was strewn with dishes, garbage, and other items. A butter knife and cooking utensils were also found on the floor of the apartment amidst garbage and other items.
With respect to the DNA evidence, there is no evidence as to whether the handle of the sharp knife was tested for DNA. It is likely it was given that the handle of the butter knife and the blade of the sharp knife were both tested, but I do not know this. I have no evidence of DNA testing of the Old Spice spray can to disprove the Accused’s account. In these circumstances, the absence of this evidence is merely that, and not proof that the Accused’s version of events is either believable or not.
c. The Crown argues that the blood found in the apartment, just before the door, is inconsistent with Hubbard’s explanation of events. There was no blood on the floor in the kitchen/living room area where Hubbard says the stabbing happened. There was a cluster of blood droplets by the inside entrance of the apartment and then pools of blood where the Victim was found.
The Crown’s theory is that the stabbing site was the doorway where the blood was found. At first glance, this makes sense, and it did concern me as to the veracity of the Accused’s account of events. It begged the question that if the doorway is not the stabbing site, then why is there blood there and nothing in the living room or between the living room and the doorway? The Crown argues that if the Accused lied about this, then combined with all the other concerns raised by the Crown, Hubbard’s evidence that he was faced with a threat to his person should not be believed.
When I consider the evidence of the Accused in light of all other evidence (and lack thereof), I still cannot completely discount the Accused’s version of events. Firstly, while one would think there would be blood at the site of the stabbing, I do not know this for certain and have no evidence to this effect based on the wound suffered by Reuben. For me to reject the Accused’s evidence on this basis would require me to make assumptions not grounded in evidence that I am not prepared to make in this particular case. These assumptions include that the nature of the wound would have left blood at the stabbing site, but not caused dripping down the stairs as the Victim attempted to flee. While Dr. Escott testified that the Victim suffered a significant loss of blood because of the injury, the most significant amount of blood is seen on the landing where the Victim lay.
Secondly, there are possible explanations for why there is blood at the doorway that are consistent with the Accused’s explanation of events. The Victim would have had to go past that spot to exit the apartment (although I recognize there are not droplets from the living to the doorway or from the doorway downstairs to the landing). More significantly, the Accused testified that he followed the Victim when he ran out of the apartment and stood at the top of the stairs with the bloodied knife before tossing the knife inside the apartment and onto the boot tray. While the Accused has not specifically said that he saw the knife dripping blood at the doorway, there are explanations equally consistent with the Accused’s overall version of events as the Crown’s.
The facts of this case are distinguishable from R. v. Guisalta, 2023 ONSC 2694, in which the site of the blood pool, combined with other considerations, caused DiLuca J., to conclude that the homicide had not been committed in the manner claimed by the Accused.
d. With respect to the placement of the knife on the boot tray, this is one aspect of the Accused’s version of event that I do find suspect. The knife appears to have been placed in a precise way, as opposed to having been thrown as the Accused claims. Having said this, I do not have sufficient details as to the ‘throw’ that allow me to draw any definitive conclusions.
e. The Crown argues that the Accused did not have injuries consistent with being in a significant or deadly struggle, except for a few minor scrapes and bruises, which by his own admission were not all sustained in this incident. There are no defence wounds or cuts or other bruises.
I do not accept this as a reason, either alone or in combination with the Crown’s other concerns, to reject the evidence of the Accused. Based on Hubbard’s testimony at trial, the altercation lasted approximately 30 seconds. Given what transpired, likely this estimate of time is not accurate. Nonetheless, I accept it was extremely brief. Neither the nature nor duration of the event would suggest that Hubbard would have significant wounds. The Accused’s account is that the first injury he suffered was to his eyes, that temporarily stung when he was sprayed. From that point, while the two men fell to the ground twice and there was a scuffle between them, there was no evidence of punches or other blows that one would expect to leave significant injuries. The Accused does not claim that the Victim did in fact injure him, but rather that at each step of the altercation he acted to prevent any further attack against him. The Accused candidly acknowledged which bruises pre-existed the altercation. While his injuries were minor in comparison to the fatal wound suffered by Reuben, the lack of significant injuries is not indicative of the fact that Hubbard did not reasonably believe he was at risk from serious bodily harm.
f. The Crown argues that the Victim’s blood found in the bathroom suggests that something different happened than what the Accused claims. The Crown suggested to the Accused that the blood ended up on the vanity/sink countertop and by the toilet when the Accused went into the bathroom before calling 911 to try to clean up the mess from the stabbing. The Accused denies this was the case. His evidence is that while he was on the phone with EMS he went looking for towels, at their direction. He was only in the bathroom for approximately 5 seconds while he tried to find a towel. As he frantically searched, the blood came off his shoes and his hands. In addition, the Defence notes that there is no blood on the vanity faucet or in the sink, which one would think would be the case if the Crown theory were correct. The Crown says that the EMS call recording proves the Accused’s version to be not true.
Listening to the 911 call, Hubbard first asked the 911 operator if there was something he should be doing, such as applying pressure to the wound. After a brief period, he was transferred to an EMS operator. From the time in the call when the EMS operator asks if he has any clean cloths, or towels to apply pressure to the wound until police arrived and found the Accused standing over Reuben was only a matter of 25 – 30 seconds (based on the Crown’s estimate). There is no verbal indication in the conversation that the Accused was looking for towels, and in fact the operator specifically states they are going to ask a few questions before the Accused goes to grab towels. In this time, the operator asks the Accused if the Victim is breathing and he states, “I can’t tell if he is he was a second ago”. This suggests to me that the Accused was still with Reuben at this point.
The Accused says he ran up the stairs and was only in the bathroom for 5 seconds looking for towels, when he went back down the stairs before the police arrived. I find this unlikely. There was no indication in the 911 call that he was running two-by-two up the stairs as the Defence claims and rummaging around the bathroom for a few seconds. Having said this, the Crown theory that the Accused was cleaning up after the stabbing seems inconsistent with the lack of blood anywhere other than the vanity top and beside the toilet. I make no findings as to how the blood ended up in the bathroom.
[56] I do note that the evidence of the Accused as to what happened after the stabbing appears to be consistent with the evidence of Dr. Escott. Dr. Escott testified that with a wound of this nature, the Victim would have felt a flight or fight reaction (or adrenaline rush) immediately, followed by a quick loss of consciousness within minutes. The Accused testified that after being stabbed the Victim immediately got up and ran out of the apartment and down the stairs, collapsing on the landing.
[57] Based on all the foregoing findings, while I do not accept the evidence of the Accused entirely, I cannot reject all of it, particularly as to the altercation itself. At trial, Hubbard presented as a credible witness. He was not evasive, he was not shaken in his responses in cross-examination, and he conceded statements put to him when it was reasonable for him to do so. I am also mindful that he was testifying as to events that occurred rapidly. His evidence was that he felt adrenaline, he felt fear, and after he was in shock. It does not surprise me that there are some less significant details he may not have recounted accurately. Based on the evidence of the Accused that I do accept, viewed in the context of all the evidence in the case, I am satisfied that Reuben initiated an attack against Hubbard with the body spray, which subsequently escalated. Force was used against the Accused when he was sprayed in the eyes, and he had a continued reasonably held belief that he was at risk of serious harm from Reuben.
Did the Accused Do Something for the Purpose of Defending Himself from that Use or Threat of Force?
[58] This second element of self-defence considers the Accused’s personal purpose in committing the stabbing. It requires the act to have been committed in defence of himself or others from the threat of force. If there is no defensive purpose, the rationale for self-defence disappears: R. v. Khill, at para. 59.
[59] Taking into consideration all the evidence, I accept that the Accused’s purpose in stabbing Reuben was defensive. I have considered whether Hubbard’s motive in the stabbing was the defence of property as opposed to his person. Ultimately, on the facts, there is no basis on which I can outright reject a subjective defensive motive.
Was the Accused’s Conduct Reasonable in the Circumstances?
[60] The final requirement of the s. 34(1) analysis requires an examination of the Accused’s response to the threat of force to determine whether it was “reasonable in the circumstances”. As Dawe J., (as he then was) noted in R. v. P.S., 2022 ONSC 3894 at para. 261, given that the Crown bears the burden of disproving self-defence, it may be more accurate to say that the Crown must prove that the Accused’s use of force was not “reasonable in the circumstances”.
[61] In R. v. Khill, at para. 62, Martin J. explained:
[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.
[62] Martin J., observed further at para. 69:
[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.
[63] I turn now to a consideration of the statutory factors.
The nature of the force or threat and 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 [s. 34(2)(a) and (b)]
[64] On the facts as I have found them, it is likely that Reuben suddenly, and without warning attacked Hubbard by spraying him in the eyes. After Hubbard pushed Reuben to stop him from spraying further in this vulnerable part of his body, Reuben likely grabbed a knife off the kitchen counter. Even though Reuben did not have an opportunity to waive, or otherwise threaten Hubbard with the knife, and even though the only actual force used against Hubbard was the spray, I am satisfied that a person in Hubbard’s position would have had reason to believe that if he did not act quickly, he may end up stabbed or seriously injured in some other way. I find that the threat was imminent, ongoing, and potentially life threatening.
[65] With respect to other means available to respond to the potential use of force, I find that Hubbard tried to neutralize the threat first by pushing Reuben away from him. The Crown argues that Hubbard did not need to subsequently stab Reuben, even after a knife may have been grabbed. Hubbard could have called the police, given Reuben his drugs or money and sent him on his way, and/or he could have simply taken the knife to disarm him and stepped back from the confrontation and allowed Mr. Reuben to leave with whatever he was going to steal. Hubbard could have also threatened Reuben with the knife to get him to back off, or Hubbard could have fled.
[66] While I agree with the Crown that these were available options, I also agree with the Defence that this was a fast-moving situation. There was no time to pause at each step of the brief altercation to evaluate what was happening and make careful, calculated decisions. Based on the sudden, random attack, and not knowing his assailant, Hubbard had no way of knowing at the time if any of these actions would have stopped the attack. I will have more to say about this when discussing the proportionality of Hubbard’s response.
The person’s role in the incident [s. 34(2)(c)]
[67] This factor refers to Hubbard’s conduct, such as his actions, omissions, and exercises of judgment during the incident. Hubbard’s conduct is to be considered from the beginning to the end of the interaction between him and Reuben. It requires a review of his role, if any, in bringing about the conflict. The purpose of this assessment is to determine whether the Accused’s behaviour throughout the incident sheds light on the nature and extent of his responsibility for the final confrontation that culminated in the stabbing: R. v. Khill, at para. 74.
[68] Hubbard was selling drugs to Reuben. He was engaging in a risky act. He increased his exposure to that risk by exposing a wallet with a large sum of money, and by bringing a total stranger inside his apartment to conduct a drug transaction. Hubbard acknowledged in cross-examination that he could have avoided bringing Reuben into his apartment. Even though the drugs were inside the apartment, there were other alternatives to conduct the transaction. In re-examination, he noted that he was relatively new to the drug trade.
[69] Despite these acts that carried with them some considerable risk, based on my findings I am satisfied that Hubbard bears no responsibility for the point at which the transaction turned violent.
The size, age, gender, and physical capabilities of the parties to the incident and whether any party to the incident used or threatened to use a weapon [s. 34(e) and (d) respectively]
[70] Hubbard is approximately 4 inches taller, and 40 lbs heavier than Reuben. I agree with the Crown that he had an advantage in terms of size. I have no evidence as to the physical capabilities of either the Accused or Reuben. The only evidence that I have is that the Accused had been drinking and the Victim had substances found in his body suggesting that he was under the influence of drugs and/or alcohol. I acknowledge that Hubbard was able to take Reuben down to the ground twice.
[71] As I have found, Reuben probably brought the weapon into play when he grabbed it off the kitchen counter. Hubbard candidly acknowledged that Reuben did not waive the knife at him or threaten him with it in any way. Hubbard attributes this to the fact that he quickly grabbed Reuben from behind to neutralize the threat.
The nature, duration, and history of any relationship between the parties to the incident, including history of interaction of communication between them and any prior use or threat of force and the nature of that force or threat [s. 34(2)(f) and (f.1)]
[72] There was no history of any relationship or prior animus between the parties. Neither party knew each other, nor did they know what the other was capable of. In my view, this heightened the reasonable perception of a threat to the person and is a significant factor in considering what actions were reasonable. It is entirely possible that Reuben was a gentle man who would not have harmed Hubbard. The problem is that Hubbard, or anyone in his situation at the time, would not have known that about the stranger that attacked them suddenly.
The nature and proportionality of the person’s response to the use or threat of force [s. 34(g)]
[73] Hubbard stabbed Reuben in his chest once. It was a wound inflicted with mild to moderate force. Hubbard believed he was stabbing Reuben in the stomach. He knew that a wound to the stomach could cause life threatening injuries. I believe him when he said he was aiming for the stomach. Events were unfolding quickly, and the two men were trying to get up. I accept that Hubbard unintentionally hit the heart instead of the stomach.
[74] In considering proportionality, I find the analysis used by Dawe, J., in R. v. P.S. at paras. 289 to 291 helpful:
a. Viewed from one perspective, the force Hubbard used against Reuben can be considered highly disproportionate to being sprayed in the face and suffering stinging and burning eyes. While a knife had been grabbed, it was not used.
b. Viewed from another perspective, it is important to bear in mind that the force used by Hubbard cannot be measured solely by looking at the actual force used against him. From the time that Hubbard was sprayed in the face he had every reason to expect that the attack on him may continue unless he was able to do something to stop it. He did not know Reuben. He had no frame of reference for what could come next. The complexion of the altercation took a turn when a knife was engaged. Whether it was a sharp knife or other knife (and I only say other knife given the evidence that Reuben’s DNA was found on the butter knife handle – although I acknowledge we have no evidence as to how the DNA got there, whether from blood splatters or touching), at this point Hubbard was faced with the prospect that the altercation could turn deadly very quickly.
c. I accept, that this was a stressful and dangerous situation in which there was no opportunity for sober reflection as to whether a more proportionate response was available. I accept the Defence submission that what is reasonable may involve several alternatives, the actions of the Accused being one of them. I accept Hubbard’s evidence that after inflicting one injury with mild to moderate force, he immediately stopped when Reuben said to stop, did not inflict any more injuries on him, and allowed him to attempt to flee, chasing behind him to make sure he left. I accept that the puncture to the heart was not Hubbard’s intention, although he did intend to inflict sufficient injuries to put an immediate stop to the altercation.
d. Viewed from this perspective, Hubbard’s use of force was arguably no more than was reasonably necessary to achieve his defensive purpose of making his attacker stop attacking him. The scenario can objectively be viewed as a stab or be stabbed situation. As Martin J. observed in R. v. Khill, supra at para. 32, citing R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 at p. 111 (Ont. C.A.), the accused is not required to ‘weigh to a nicety’ the amount of force used under the “rubric of proportionality”.
Whether the act committed was in response to a use or threat of force that the person knew was lawful [s. 34(1)(h)]
[75] The Crown and Defence concur that s. 34(2)(h) is not relevant on the facts of this case, as there is no allegation that any use or threat of force by Reuben would have been known to Hubbard as being lawful. I have, however, considered the possibility that Reuben grabbed a knife as a defensive response to the pushing of Hubbard after the spray. The result does not differ.
Balancing the relevant factors
[76] The assessment of whether an accused’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”: R. v. Khill, supra at para. 69. It is up to me to attribute the weight I feel is appropriate to each factor to determine reasonableness.
[77] The factors I have reviewed, and the balancing exercise required by s. 34(1)(c), recognizes 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.
[78] As Dawe J., stated at para. 300 of R. v. P.S.:
[300] In 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.
[79] In weighing all the factors and considering the evidence in this case, I find that the Crown has not proved beyond a reasonable doubt that a reasonable person in the Accused’s position, sharing his personal characteristics, would have acted significantly different. A mild to moderate stab wound, believed to be to the stomach (but accidentally puncturing the heart), is reasonable in the circumstances in which Hubbard found himself. While he placed himself in an inherently risky situation, it was Reuben who caused the risk to be realized with an unprovoked attempt to disable Hubbard (the spray to the eyes). The situation rapidly escalated with Reuben grabbing a knife. While we will never know Reuben’s purpose for grabbing the knife (self-defence or something more nefarious), there is no way that Hubbard could have known what would happen, or what this stranger to him was capable of, particularly in the mere seconds he had to react. Fearing for his safety, Hubbard needed to stop the stranger but had no knowledge of how much force was required to do that. He had no knowledge of Reuben’s capabilities, even though Reuben was smaller in stature. He did not inflict multiple wounds and he stopped when Reuben was incapacitated.
[80] The rapidly evolving situation combined with the unpredictability of a stranger willing to attack are significant factors for me. I am satisfied that a reasonable person in Hubbard’s position would have been very afraid and not stopped for reflection or to weigh alternative responses. As Dawe stated at para. 303 of R. v. P.S.:
[303] I 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 be 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.
[81] On all the evidence, I find that with the benefit of hindsight while there are certainly other preferable alternatives to fatally stabbing a person, a reasonable person in Hubbard’s situation could be expected to have done exactly what he did. What he did was take the knife and use it to inflict an injury of such a nature as to ensure he halted the attack. I am satisfied that this was reasonable in these unpredictable circumstances even though doing so significantly escalated the level of violence that was being used. From Hubbard’s subjective perspective, reasonably held, there was no time to think about other less forceful and realistic ways of making the attack stop. Even though the violence Hubbard used was in one sense disproportionate to the violence that was being used on him, in another sense it could be said that Hubbard’s actions were proportionate given that a reasonable inference from Reuben’s actions was that he was prepared to use the knife he grabbed for. Regardless, 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 Hubbard to have used to knife to try to stab Reuben in the stomach. Tragically it was not the stomach he hit, but there was no time to ensure a careful strike to the intended target.
CONCLUSION:
[82] It follows from these conclusions that I must find Joseph Hubbard not guilty of the charge of second-degree murder. I am not satisfied that Crown has proved beyond a reasonable doubt that John Reuben’s death at Hubbard’s hands was a culpable homicide, because I am not satisfied beyond a reasonable doubt that Hubbard did not act in lawful self-defence.
[83] Based on my finding that Hubbard’s conduct was not criminally culpable, it is unnecessary for me to continue my analysis and consider whether the evidence proves beyond a reasonable doubt that he had the subjective intent for murder.
[84] I do wish to express my condolences to the family of John Reuben. His death is tragic. I have concluded on the evidence presented at this trial that he was probably the instigator of the altercation with Joseph Hubbard, that led to his own death. Any conclusions in this decision should not be taken to suggest in any way that John was a bad person or that he deserved what happened to him. I also recognize that his intentions could have been misconstrued.
“originally signed by”
___________________________________
The Hon. Madam Justice T. J. Nieckarz
Released: June 7, 2024
COURT FILE NO.: CR-23-240-00
DATE: 2024-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
- and –
Joseph Hubbard
Accused
Reasons for Judgment
Nieckarz J.
Released: June 7, 2024