Court File and Parties

COURT FILE NO.: CR-21-312 DATE: 2024-06-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – WESLEY BERMAN Defendant

Counsel: Andrea Mason, for the Crown Gordon Cudmore & Perrie Douglas, for the Defendant

HEARD: February 12, 13, 14, 16, March 18, 2024

TRANQUILLI J.

REASONS FOR JUDGMENT

Introduction

[1] Wesley Berman went to Mr. Jordan Stiles’ apartment to retrieve a dog, Cora, for his friend. A court order required Mr. Stiles to return the dog to Mr. Stiles’ former girlfriend. Mr. Stiles refused to follow the order. A confrontation between Mr. Berman and Mr. Stiles ensued. They recorded one another on their cellphones. Each called for police assistance. The verbal dispute suddenly escalated to a physical struggle, where Mr. Berman stabbed and wounded Mr. Stiles. Mr. Stiles fortunately survived the wounding.

[2] Wesley Berman is charged with one count of aggravated assault of Jordan Stiles contrary to s. 268(2) of the Criminal Code.

[3] There is no dispute that Mr. Berman stabbed Mr. Stiles twice in the abdomen. It is the circumstances of the stabbing that are in issue. The facts are highly contested. Mr. Stiles claims that he simply went to close his apartment door on Mr. Berman to end their confrontation, whereupon the accused then attacked him and stabbed him. Mr. Berman claims Mr. Stiles tackled him and threatened to break his arm with the door. Mr. Berman says he used a knife that he happened to have in his back pocket for work to defend himself against Mr. Stiles’ assault and threats of bodily harm.

[4] The question is whether the Crown has proven beyond a reasonable doubt that Mr. Berman did not stab Mr. Stiles in lawful self-defence. The Crown submits the court must reject lawful self-defence on this evidence. Mr. Berman’s credibility is in serious question. He did not subjectively believe that Mr. Stiles was using force against him. He started the altercation. He had no basis to believe, on reasonable grounds, that Mr. Stiles would assault him. Mr. Stiles merely attempted to end the confrontation by closing the door. Mr. Berman was not acting in defence to a threat, and, in any event, his use of a dangerous hunting-style knife was unreasonable in the circumstances.

[5] The judge-alone trial proceeded over the course of five days. The Crown called evidence from the complainant Mr. Stiles, his former partner, Melanie Van Schaik, Mr. Stiles’ landlord, a former handyman who provided security camera footage of the incident to police, and several police officers who were involved in the investigation of the incident.

[6] Mr. Berman testified on his own behalf and his approximate one-hour voluntary police statement was also received in evidence. The court viewed videos taken of portions of the encounter by both the accused and the complainant on their cellphones. Security camera video also captured aspects of the events leading up to Mr. Berman’s attendance at the apartment and the confrontation that led to the stabbing. A recording of a 911 call made by Mr. Berman for police assistance was also filed on consent.

Lawful Self-Defence

[7] Pursuant to s. 34(1) of the Code, there are three essential elements that must be established to make out lawful self-defence. These three elements guide the court’s consideration of the material evidence in this trial:

1. The accused must reasonably believe that force or a threat of force is being used against them or someone else – s. 34(1)(a);
2. The accused’s subjective purpose for responding to the threat must be to protect oneself or others – s. 34(1)(b); and
3. The accused’s act must be reasonable in the circumstances – s. 34(1)(c).

The Supreme Court of Canada has referred to these three elements as “the catalyst”, “the motive” and “the response”: Khill, at para. 51.

[8] With reference to these three elements, the Crown must prove beyond a reasonable doubt that Mr. Berman was not acting in lawful self-defence when he stabbed Mr. Stiles. The defence fails if the Crown proves that any one of these three essential elements of self-defence has not been met. If the Crown satisfies that burden on the facts of this case, the result is they will also have proven the offence of aggravated assault beyond a reasonable doubt.

Overview Of Evidence

[9] I begin the largely uncontested or less controversial events of the afternoon of September 16, 2019.

[10] The complainant Jordan Stiles had recently separated from his partner, Melanie Van Schaik. Their relationship ended in high conflict, where he was charged with assault of Ms. Van Schaik. She took Mr. Stiles to small claims court over financial and property issues, including ownership of a dog, named Cora. In August 2019, she obtained a court order granting her possession of Cora and ordering that the dog be placed in her possession. However, Mr. Stiles would not return the dog. The sheriff had been to his apartment several times to try to enforce the order but received no cooperation and was variously told that Cora was not there.

[11] On September 16, 2019, Ms. Van Schaik learned from the property manager of Mr. Stiles’ apartment, Karen Dallas, that Ms. Dallas and the landlord Mr. Lee would be going to Mr. Stiles’ apartment later that day to serve eviction papers for non-payment of rent. Ms. Dallas offered that Ms. Van Schaik could arrange to get her dog back from Mr. Stiles at the same time. Ms. Van Schaik could not personally go to his apartment as there was a no contact condition on the assault charge. Her current boyfriend, Jason Lachlan, did not want to go alone.

[12] Ms. Van Schaik therefore texted her friend, the accused Mr. Berman to ask if he could help retrieve her dog from Mr. Stiles. Mr. Berman was 22-years old and self-employed in custom car modifications, auto repair and home renovations. He had known Ms. Van Schaik since high school. He had not met Mr. Stiles before that day, although they may have briefly seen one another at a distance on an earlier occasion.

[13] Mr. Berman agreed to help. He met Ms. Van Schaik and Mr. Lachlan in the parking lot of the London Police Service headquarters, a few blocks away from Mr. Stiles’ apartment. The plan was for Mr. Berman and Mr. Lachlan to meet with the property manager and landlord and then go to Mr. Stiles’ apartment where they would retrieve the dog. Ms. Van Schaik gave Mr. Berman a copy of the court order and her identification to prove that Mr. Berman was acting on her behalf.

[14] Mr. Berman and Mr. Lachlan briefly met with the property manager and landlord in a coffee shop on the ground floor of the apartment building where Mr. Stiles lived. The landlord, Mr. Lee, testified he was unsure as to why the two men were part of the group that would attend Mr. Stiles’ apartment, but he understood it had all been arranged with Ms. Dallas.

[15] The group of four then left the coffee shop to attend Mr. Stiles’ apartment upstairs. Mr. Stiles’ apartment unit was on the second floor, at the top of a flight of stairs. A secure door at the landing at the top of these stairs blocked access to the second-floor hallway where the apartment units were located. Mr. Stiles’ apartment door was situated immediately across the hallway from the controlled access door.

[16] The group were unable to open the security door. The property manager texted Mr. Stiles and asked if he could open the door. Mr. Stiles responded that he was not at home. In fact, he was there. The apartment handyman then joined the group on the landing and spent the next approximate twenty minutes trying to open the security door, by removing the pins from the hinges. This is all recorded on a security camera located at the top of the stairs, between about 2:27 pm and 2:45 pm. I observe the landing was crowded, with room only for two of the group to stand on the landing and work on the door, while the others stood and moved about on the top steps of the narrow stairway. At 2:39 pm, Mr. Berman can be seen removing a knife from his back pocket and trying to use it on the door and door pins as he works with the handyman to open it.

[17] The security door eventually opened and the property manager, the landlord Mr. Lee, the accused Mr. Berman, and Mr. Lachlan entered the hallway. There is a factual debate about who opened the door into Mr. Stiles’ apartment and whether it was Mr. Berman who entered unannounced. Mr. Berman thought it was either the property manager or the landlord, who first entered, but could not recall. Mr. Stiles suggested Mr. Berman entered on his own. Mr. Berman’s credibility was called into question on this point as he referred to “we” entering the apartment. I find his credibility does not turn on this issue. Any inconsistency in his evidence is a result of a lack of precision. He stated that “we” knocked and went into the unit. It is clear from his testimony and that of the landlord that Mr. Berman was part of a group who approached Mr. Stiles’ door and then entered.

[18] It was urged by the Crown that Mr. Berman entered Mr. Stiles’ apartment first, with the inference that this would have surprised Mr. Stiles and that Mr. Berman’s recollection is not to be accepted. However, the landlord Mr. Lee testified that he recalled that the property manager knocked and opened the door to Mr. Stiles’ apartment. She then prompted Mr. Lee to enter first, as he was the one to serve the eviction notice on Mr. Stiles. I accept Mr. Lee’s recollection of the events. He had no interest in the outcome of the issues in this trial and only recalled that he went to the apartment that day to give Mr. Stiles the eviction notice and to see if Mr. Stiles would pay rent. Mr. Lee recalls that the two other men, who were unknown to him, followed him in. Mr. Lee testified an argument quickly erupted between Mr. Stiles and the man who followed Mr. Lee into the unit.

[19] Mr. Lee and the property manager left the premises and stood on the sidewalk outside of the apartment building. Mr. Berman’s companion, Mr. Lachlan, remained on the landing outside the apartment door for the duration of the confrontation between Mr. Berman and Mr. Stiles.

[20] The court has viewed several videos taken by the complainant and the accused on their cellphones in the confrontation that preceded the incident. I am not going to present a frame-by-frame inventory of the content of each video. That is not how they were presented at trial. The videos have some value in providing some objective evidence of the interaction and what was said and done.

[21] The clips show the placement of the accused and complainant, their verbal exchanges and the complainant’s calls to police and his legal representative. I keep in mind, however, that they are not continuous recordings of the encounter from beginning to end. They were also taken by the parties to record their perspectives and on occasion appear to document self-serving editorial comments regarding the interaction. The clips of seconds to minutes in duration appear to unfold over the course of an approximate 30-minute period. Mr. Berman stands in the doorway to the apartment. Mr. Stiles stands several feet away in the main area of the apartment. The dog can be heard barking and scratching from behind a closed door. In a few of the clips very little is said. Mr. Berman appears to be recording his actions in standing at the door observing Mr. Stiles call the police and his paralegal. Other clips show the pair trading insults and arguing over whether Mr. Berman has a right to be there.

[22] Mr. Stiles claims to not know why Mr. Berman and his companion are there and demands to see the papers. Mr. Berman is not prepared to give him the papers but makes passing reference to having already shown it to him and that he has the “legal documents” with him that allow him to obtain the dog. Mr. Stiles invites Mr. Berman to “ come by me and I’ll protect myself .” Mr. Berman remains standing in the doorway and at one point, states he is “ not going to try to get by you .” On a further call by Mr. Stiles to his paralegal, as recorded by Mr. Berman, Mr. Stiles makes comments that: “ I am ready to kick his ass… ” and “ I’m ready to knock him… ”. There is a pointed exchange between the parties just before the physical incident that I will address later in these reasons.

[23] I now turn to the competing versions of the encounter that led to the stabbing.

Mr. Stiles’ Version of Events

[24] Mr. Stiles acknowledged he received a text from the property manager telling him that she and the new landlord wanted to come to meet him. He also agreed the manager texted him to ask him to open the security door as it was stuck. He lied and told her that he was not there. He testified that he did this because he was not comfortable with the manager and did not think he had to meet with her.

[25] He then heard some banging outside his door. He quickly looked out and could see a group of people through the window of the security door, trying to remove the security door by its hinges. His own door opened several minutes later, and Mr. Berman stood in the doorway. Mr. Berman told him he had come to get the dog but would not show him the documentation. The property manager and landlord were initially outside the apartment but then disappeared. Another man remained in the hallway behind Mr. Berman. Mr. Stiles called the police and then his paralegal who was representing him in the legal action with his former girlfriend.

[26] Mr. Stiles said he was scared and “freaked out” because he did not know Mr. Berman and the accused refused to leave despite having no right to be there, in Mr. Stiles’ view. After waiting for about half an hour, and speaking with his paralegal and police, Mr. Stiles decided to try and remove Mr. Berman. He said he did this for his own safety. He went to push Mr. Berman out of his apartment doorway with one hand and close and deadbolt the door with the other. However, Mr. Stiles testified Mr. Berman then struggled with him in the doorway. Mr. Stiles denied assaulting or “ throwing a punch ” at Mr. Berman or “ anything like that ”. Mr. Stiles claims Mr. Berman pulled him on top of himself and then grabbed Mr. Stiles with one hand and then stabbed him with the other.

[27] Mr. Stiles briefly re-entered his apartment after the struggle and realized he had been stabbed. He immediately left his apartment and went down the stairs to the street, where a bicycle patrol police officer rendered first aid.

Mr. Berman’s Version of Events

[28] Mr. Berman testified that his only reason to go to Mr. Stiles’ apartment was to retrieve the dog. He had a photocopy of the court order and Ms. Van Schaik’s government identification to prove his authorization. He showed these to the property manager Ms. Dallas when they arrived at the apartment building.

[29] He described that he had a “utility knife” with him in his back pocket. He regularly used a knife in his work. He had found the knife in the used tow truck he had just purchased earlier that day. It was sharp and he fashioned a sheath out of duct tape as protection. He used the knife to help the building handyman take the pins out of the hinges to the door when they were trying to get to Mr. Stiles’ unit.

[30] He entered the unit with Mr. Lee. He saw the dog and Mr. Stiles. Mr. Stiles started screaming at them and said they had no right to be there. He put the dog away in another room. Mr. Berman stated to Mr. Stiles that he had a court order for the dog and showed it to him. Mr. Stiles pushed Mr. Berman and Mr. Lee out of the apartment. Mr. Berman described this as a physical assault by Mr. Stiles.

[31] Mr. Berman called the police and remained standing in the threshold of the apartment, with the door open. He watched Mr. Stiles also call the police and then his lawyer or paralegal. Mr. Lachlan stayed outside the apartment and stood on the landing.

[32] Mr. Berman stood in the doorway for the next 15 to 20 minutes while they waited for law enforcement. They occasionally exchanged comments. At one point the accused does identify himself by name in response to the complainant’s request.

[33] Mr. Berman called 911 to again request police assistance. The 911 operator advised Mr. Berman to “walk away” or to separate himself from Mr. Stiles. Mr. Berman testified he did so by staying in the threshold.

[34] Mr. Berman contends the situation suddenly escalated from the exchange of verbal insults. Mr. Stiles said he was tired of Mr. Berman being there. Mr. Stiles lunged at Mr. Berman with the threat that he was going to break Mr. Berman’s arm. Mr. Stiles grabbed one of Mr. Berman’s arms and tackled him to the top of the stairs just outside the apartment door. Mr. Stiles was on top of him, and they were on the landing. Mr. Berman pulled the knife out of his back pocket. He said he first did this because he was afraid of falling on it. As Mr. Stiles came on top of him, Mr. Berman used the knife as an “immediate reaction” in defence to the attack. He used it because he was in fear for his life.

The Confrontation & Stabbing

[35] I will now briefly summarize the video clips that I find pertain to the material circumstances surrounding the incident.

[36] I begin with the last video taken by Mr. Berman with his cellphone before the confrontation ended with the stabbing. It records the beginning of a physical struggle between Mr. Berman and Mr. Stiles.

[37] It is 58 seconds long. Mr. Berman first has the camera directed towards his own face as he and Mr. Stiles exchange insults. The topic of conversation moves to Ms. Van Schaik. Mr. Berman makes an uncomplimentary statement as to why she left Mr. Stiles. There is a crass exchange as to whether Ms. Van Schaik was intimate with Mr. Berman. Mr. Berman then tells Mr. Stiles that Mr. Lachlan, standing behind Mr. Berman on the landing, is Ms. Van Schaik’s new partner. Mr. Stiles makes a derogatory comment about Mr. Lachlan. A few seconds of silence then passes and then Mr. Stiles states: “You’re with Melanie, so you’re getting out…”. One hears sudden movement and then Mr. Berman’s camera is jostled around. The sound is consistent with physical contact between two people. Mr. Stiles then states: “I’m going to break your f#%$@ arm.” There is the sound of struggle and the camera continues to jostle. It appears as though Mr. Berman is now out in the hallway. One briefly sees the apartment door partially closed over, with Mr. Stiles inside the apartment, but with his arm outstretched, holding onto Mr. Berman’s arm. Mr. Berman shouts, “He’s assaulting me”. Mr. Stiles is heard telling him he has no right to be there and to get out of there. Mr. Stiles is then seen coming out of the apartment onto the camera and the recording ends abruptly.

[38] Security video from two different cameras in the apartment hallway also capture the moment that the pair are seen struggling with one another in the hallway outside of the apartment.

[39] One camera was positioned at one end of the hallway, looking towards the other end of the hallway, where Mr. Stiles’ apartment door is located on the right of the screen and the security door to the stair landing to the left of the screen. In the first 12 seconds of activity, Mr. Berman is seen slowly emerging into the hallway as though he is resisting an unseen force that is pushing him into the hallway. He appears to be leaning with his back possibly against Mr. Stiles’ door and then seems to be struggling against being pushed further and further into the hallway. He looks back over his shoulder. He appears to briefly have both hands free. He switches his phone from his right hand to his left hand and then uses his right hand to pull the knife out of his back pocket.

[40] Mr. Stiles then suddenly lunges out from his apartment door into the hallway. He has Mr. Berman in a grip with his hands and throws Mr. Berman down onto the floor. He pauses briefly and then continues to stand over Mr. Berman and push him across the hallway, through the open security door and onto the landing at the top of the stairs. This happens is a matter of a few seconds. The remainder of the struggle happens off camera from this vantage point. One sees Mr. Stiles kneeling, with his lower half in the hallway. Three seconds later, he stands up and abruptly goes into his apartment.

[41] The other security camera is positioned on the landing on the other side of the security door that separates the landing from the hallway where Mr. Stiles’ apartment is located. Mr. Berman’s companion, Mr. Lachlan, is seen standing with his back against the security door, holding it open. He is looking down at his phone in his hand. Mr. Lachlan looks up suddenly, as Mr. Berman is seen landing backwards in the threshold area onto the landing floor at Mr. Lachlan’s feet. Mr. Berman is being pushed by Mr. Stiles, who is holding onto Mr. Berman and continues to push him into the landing area at the top of the stairs. One briefly seeks the knife being held in Mr. Berman’s right hand as Mr. Stiles continues to push him into the landing. Mr. Lachlan reacts in apparent surprise and bends down as if to intervene. The struggle takes place over the course of approximately 8 seconds and quickly ends. The camera does not show what takes place on the floor.

The Aftermath

[42] The same security camera shows activity that seems consistent with Mr. Berman and Mr. Lachlan leaving down the stairs after the end of the struggle. Seconds later, two tenants come out of another hallway that enters the landing from the opposite side and they are seen first looking down the stairs and then across to where Mr. Stiles’ apartment would be. They then watch Mr. Stiles leave his apartment and go down the stairs about 30 seconds after the incident is over. Another 30 seconds later, Mr. Berman is seen coming back up the stairs, where he briefly stands and looks into the hallway. He testified he was looking for his cellphone, which he believed Mr. Stiles took from his hand during the struggle and threw into his apartment. (I note police did find Mr. Berman’s phone in the apartment, on the floor.) Mr. Berman is seen turning to leave, but first has a brief interaction with one of the tenants, who seems to briefly gesture towards the knife still in Mr. Berman’s hand. Mr. Berman gives her the knife and leaves down the stairs. Mr. Berman testified he did not know who she was, but that she told him to give her the knife. She was interviewed by police after this security footage was viewed. She produced the knife.

[43] Mr. Berman remained outside the apartment building while police responded, and first aid was given to Mr. Stiles. He was identified as the assailant and he submitted to arrest. He was interviewed later that evening. Although he advised the officer that he had been told not to answer questions, he proceeded to talk at length with the investigator for the next approximate hour about what had happened.

W.D.

[44] Mr. Berman gives an exculpatory account of his conduct, claiming that he acted in self-defence. This engages a modified W.D. analysis so as to properly consider the objective and subjective components of lawful self-defence: R. v. Reid at para. 72:

a. First, if I accept Mr. Berman’s evidence and, on the basis of it, I believe or have a reasonable doubt that he was acting in self-defence, I will find Mr. Berman not guilty; b. Second, even if I do not accept Mr. Berman’s evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence, I will find Mr. Berman not guilty.

[45] Finally, even if the unaccepted evidence of the accused does not raise a reasonable doubt, the Crown must prove that the accused was not acting in lawful self defence beyond a reasonable doubt based upon the whole of the evidence that I do accept: R. v. Martin, 2020 ONSC 4779, at para. 8

Credibility Assessments

[46] I will first consider the credibility of the material witnesses, Mr. Stiles and Mr. Berman, before considering the three factors that determine whether the Crown has proven beyond a reasonable doubt that Mr. Berman did not act in lawful self-defence.

[47] Mr. Stiles presented himself to the court as an unsuspecting victim who was scared by Mr. Berman’s sudden and unexpected appearance in his apartment. He insisted his actions were motivated by fear and that he merely attempted to remove Mr. Berman from his apartment, where Mr. Berman had no right to be, and was then attacked by Mr. Berman.

[48] Mr. Stiles’ testimony is not worthy of belief. He was evasive and proved to have difficulty with the truth. While the stabbing was indeed traumatic, and it is fortunate that he survived, I do not accept that the trauma has affected his memory to the degree portrayed in his testimony. I had great difficulty with a number of his contentions that I will now address.

[49] He first testified to being surprised that the property manager and landlord, Mr. Berman and Mr. Lachlan came to his apartment and that he was caught unawares. However, on cross-examination it was suggested that a woman who worked in the ground floor coffee shop sent Mr. Stiles a warning text that there were people there who would be coming to his apartment. He first maintained he could not recall and then allowed that such a warning might have been sent to him.

[50] At first, he would only concede that he knew Ms. Van Schaik was trying to get the sheriff and animal control to take possession of the dog. He claimed he only heard about a court order through “hearsay”. On pressing in cross-examination, he claimed he had never actually seen the court order and that he had not been to court when the order was made. He agreed the documents showed he had been represented by a paralegal but could not say if his agent had told him of the order. He finally conceded that he knew of the order and agreed that he had been actively avoiding its enforcement. He justified this because he said he had planned to fight the order and would only give up the dog if law enforcement came, although to that end, I note the sheriff had been unsuccessful after several attempts. Mr. Stiles’ full appreciation of the situation at the time is also illustrated on one of the video clips, where he is heard explaining on his cellphone that Mr. Berman and his companion are there to pick up his dog and that he is going through the courts right now. To that end, his self-serving statements on the video about not knowing why Mr. Berman is there, and questioning Mr. Berman’s authority are suspect.

[51] I also do not accept that Mr. Berman never showed him the court order. Mr. Berman testified that he did so when he first entered. The Crown rejects this and relies on Mr. Stiles’ evidence. However, I note that the landlord Mr. Lee remembers Mr. Berman showing Mr. Stiles something in his hand before the argument started. I understand Mr. Berman’s explanation to be that he did not want to hand over the order, which Mr. Stiles was insisting that he do.

[52] I have difficulty accepting that Mr. Stiles acted out of fear and anxiety. He does not show fear in any of their interactions. His demeanour is aggressive. One’s demeanour may not necessarily show fear and certainly aggression can mask fear. I can also accept that he did not want Mr. Berman in his apartment. However, his conduct is not consistent with fear. He makes repeated threats to assault Mr. Berman if he were to come any further into the apartment. Mr. Berman makes no threats, beyond calling for police assistance.

[53] The most fundamental issue with Mr. Stiles’ credibility is his assertion that he did not tackle or threaten Mr. Berman before he was stabbed and that the stabbing happened after he merely went to close the door on the accused. The video clearly and fundamentally shows the contrary. After the discussion turns to his former girlfriend, Mr. Stiles goes silent and then rushes at Mr. Berman with no warning, with the verbal threat that he is going break Mr. Berman’s arm. I find this belies Mr. Stiles’ assertion that he wanted Mr. Berman out of the apartment for his own safety because he was scared. The tackle quickly followed reference to Ms. Van Schaik. The video also does not show an effort to merely close the door, but that he grabs Mr. Berman’s arm while pushing him out and closing the door over towards his arm. He goes further in the struggle, in pushing Mr. Berman out across the hallway and onto the landing at the top of the stairs.

[54] I now turn to Mr. Berman. The accused was talkative to a fault and somewhat disorganized in his train of thought at times. Despite acknowledging that he had been advised not to answer questions on his police interview, he proceeded to give a voluminous statement for the next approximate hour. He was similarly very conversational and descriptive in his testimony at trial, offering more information than was asked. He has undoubtedly been cooperative from the outset of these charges, but his evidence is not without its challenges.

[55] His primary difficulty is his behaviour after the incident and his initial version of events to police in his statement. He is seen on the surveillance video giving the knife to another tenant shortly after the incident. It appears to me from the tenant’s movements that he gave the knife to the tenant at the tenant’s direction. However, Mr. Berman testified he gave it to her in order to deescalate the situation. This explanation did not make a lot of sense when Mr. Stiles was no longer present. I accept that this happened less than a minute after the incident, when Mr. Berman had run back up the stairs to look for his phone. I could accept that this was done in a moment of shock and confusion. But that was not his evidence.

[56] He also failed to mention the knife to the investigating officer in his first account of the incident in the police interview. It was only after he was confronted with what the police knew about the knife that he was very forthcoming about the additional details. He explained that the omission was because he was in shock. He was certainly cooperative in answering questions, volunteering more information than was asked, and appeared to be sincere throughout the balance of his interview.

[57] His post-incident messages that police captured on his social media account must also be considered. In response to acquaintance’s questions about what happened, he makes intemperate comments such as “ one and done ” and “ I’m a gut him like a fish ”. These comments are a stark contrast to his demeanour in the police statement the night before, where he appeared stricken by having injured Mr. Stiles. At that time, he seemed genuinely upset and sincerely troubled about what had happened and openly reflected on what he could have done to have avoided the incident. However, in all, I do not find these statements undermine his credibility in a material way. They appear to be in the vein of false bravado and expressed in the way of slang to others in the online gaming community. In any event, it does not directly inform the assessment of his conduct as the events unfolded.

[58] I do not find that this issue undermine his credibility in a material way; however, I will consider these inconsistencies and questions along with the whole of the evidence.

[59] I now turn to the three inquiries that will determine whether lawful self-defence is available to Mr. Berman.

1. Did Mr. Berman Believe, On Reasonable Grounds, that Force was Being Used or Threatened Against Him?

[60] This element of self-defence considers Mr. Berman’s state of mind and his perception of events that led him to act. Unless he subjectively believed that force or a threat of force was being used against him, the defence is unavailable. Mr. Berman’s actual belief must be held on “reasonable grounds”. The question is what a reasonable person with Mr. Berman’s characteristics and experiences would perceive. Reasonableness is ultimately a matter of judgment: Khill, at paras. 52, 53, 57, 58.

[61] The Crown contends there is no basis for Mr. Berman to have believed on reasonable grounds that Mr. Stiles was using force or threatening force against him. Mr. Stiles merely went to close and deadbolt the door on Mr. Berman by pushing him to the other side of the threshold and trying to close the door. It was Mr. Berman who turned it into a physical struggle.

[62] I do not agree. I find there were reasonable grounds for Mr. Berman to believe that he was being assaulted and threatened with bodily harm. I have already explained why I reject Mr. Stiles’ version of events. The video clip is entirely consistent with Mr. Berman’s account of the incident. Following the references to Mr. Stiles’ former girlfriend, it is then, after an approximate half-hour of trading verbal barbs and calling police, that Mr. Stiles suddenly rushes at Mr. Berman with the verbal threat of breaking his arm. Mr. Berman’s video clip ends at a point that very clearly shows Mr. Stiles holding the accused’s arm through an opening in the doorway while the door is closing over. The security video angles show that the physical attack continues beyond Mr. Stiles simply removing Mr. Berman from the apartment. Mr. Stiles follows him out into the hallway, after Mr. Berman is now down on the ground, and the complainant continues to manhandle him across the hallway and through the threshold onto the landing at the top of the stairs. Mr. Berman testified that in this time Mr. Stiles had taken the phone out of his hand and thrown it back into his apartment. Indeed, police located Mr. Berman’s cellphone on the apartment floor after the incident. I reject the contention that Mr. Berman dragged or pulled Mr. Stiles into the hallway while Mr. Berman, the smaller of the two men, was on his back on the floor, under Mr. Stiles. I agree with the observations of Officer Atherton, who also reviewed the footage, that Mr. Berman can be seen lowered to the ground and that Mr. Stiles would appear to have advantage over the accused. That is what I also see on the video, and it is consistent with Mr. Berman’s account that he was suddenly attacked by Mr. Stiles, who threatened to break his arm.

2. Did Mr. Berman Do Something for the Purpose of Defending or Protecting Himself from that Use or Threat of Force?

[63] The second element of self-defence considers Mr. Berman’s personal purpose in committing the stabbing. Section 34(1)(b) requires that the act be undertaken by Mr. Berman to defend or protect himself from the use or threat of force. This motive provision ensures that the actions are not undertaken for the purpose of vigilantism, vengeance, or some other personal motivation. Great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of Mr. Berman’s action can be properly aligned to his stated purpose. One must appreciate the full context of a confrontation, how it evolved and Mr. Berman’s role, if any, in bringing that evolution about: Khill, at paras. 59, 61.

[64] From review of the video clips, it appears that Mr. Berman takes the knife out of his back pocket while he is resisting Mr. Stiles from coming out into the hallway. At this point, I must deal with his explanation that he first removed the knife from his pocket because it was sharp, and he did not want to fall on it. The Crown is incredulous on this point, noting that he was still standing when he removed the weapon and would now appear to have both arms free. I acknowledge that on its own, with a focus on this isolated point in the incident, this explanation seems lacking. However, an appreciation of the full context of the confrontation cannot be focused on an isolated frame, showing one moment, in a violent and fluid situation that quickly unfolded over a matter of seconds.

[65] Mr. Berman’s testimony continued that he fell over almost immediately and that his foot was caught in the door. This seems consistent with the video in that he is on the hallway floor within a few seconds of pulling out the knife and Mr. Stiles is coming out of the doorway and is on top of or over him. Just seconds later Mr. Berman is now on the landing at the top of the stairs, still with Mr. Stiles over him. Mr. Berman testified the attack happened quickly, that he was scared and that he used the knife in a defensive reaction. I note that the knife does not come out until Mr. Berman is in a position of disadvantage, where Mr. Stiles has already physically attacked him by grabbing his arm and is forcing his way against Mr. Berman into the hallway in order to continue the assault. For example, Mr. Berman did not previously resort to using the knife during the approximate 30-minute stalemate as a means of threatening Mr. Stiles to give him the dog. It only came out after Mr. Stiles behaved towards him in a physically violent and threatening manner, and it was only used when Mr. Berman continued the physical assault to the top of the flight of stairs.

[66] I therefore accept that Mr. Berman used the knife to defend or protect himself against the ongoing assault. Even if I were persuaded that his first explanation for removing the knife from his pocket is unsatisfactory, it raises no more than a reasonable doubt and, in the full context of the quick evolution of the assault by Mr. Stiles, Mr. Berman’s explanation that he used the knife to defend himself makes sense. These parties were previously unknown to one another, and it was never disputed that Mr. Berman went there with the sole goal of retrieving the dog.

3. Was Mr. Berman’s Conduct Reasonable in the Circumstances?

[67] This final inquiry under s. 34(1)(c) examines Mr. Berman’s response to the use or threat of force and requires in this case that the stabbing was reasonable in the circumstances. Section 34(2) sets out nine non-exhaustive factors that must be taken into account when considering this question. The starting point is that reasonableness will be measured according to the relevant circumstances of the person, the other parties and the act. The trier of fact is not invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time. The objective assessment should reflect the perspective of a reasonable person with some of Mr. Berman’s qualities and experiences. 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. This is a global, holistic exercise. No single factor is determinative: Khill, at paras. 62-69.

[68] Mr. Berman used a potentially lethal weapon to defend himself against a physical assault. Although he referred to the weapon as a “utility knife”, it was a Smith & Wesson, 12-inch doubled edged blade, more in the vein of a hunting or combat knife. He was candid in explaining it had been left behind in the truck that he had just purchased and that he took possession of it for the purpose of work. He explained he would regularly use a knife in his jobs. I can accept that explanation, but observe this weapon is certainly not a utility knife in the sense of a box cutter or putty knife. That said, the security camera video shows Mr. Berman instinctively using the knife for a work-like purpose, when he pulls out the knife to help the apartment handyman pry the pins out of the door hinges.

[69] I am satisfied he did not use the knife until the threats were made and Mr. Stiles’ use of force was in progress. He had already been pushed out of the apartment threshold with threats of bodily harm and his arm had already been grabbed through the opening in the door. The assault was continuing out into the hallway when he first pulled out the knife and he did not use it until he was on the floor, under Mr. Stiles, who was pushing him towards the landing. Mr. Stiles was clearly the larger of the two men, and again, as was also observed by the officer, had a position of advantage over Mr. Berman when the knife was used.

[70] I recognize I must deal with the proportionality of Mr. Berman’s use of a knife in response to the physical assault by Mr. Berman. This event happened suddenly after a stalemate of approximately 30 minutes while they waited for police. It escalated over a matter of 12 seconds, beginning with grabbing, shoves, and threats to break Mr. Berman’s arm, to then pushing him out of the apartment, onto his back and towards the stair landing. Again, Mr. Berman was in a position of disadvantage. He explained that he was scared, and his use of the knife was a defensive reaction. I accept that Mr. Berman responded honestly and instinctively to the attack with the force that he thought was necessary. A person defending himself against an attack, reasonably apprehended, as I have found here, cannot be expected to weigh the exact measure of necessary defensive action to a nicety: R. v. D.S., 2017 ONCA 38 at para.114-115.

[71] Finally, I turn to Mr. Berman’s role in the incident. The trier of fact is to consider the accused’s role in the incident from beginning to end and assess whether his behaviour throughout sheds light on the nature and extent of his responsibility for the actions that culminated in the charge, in this case, the use of the knife to stab Mr. Stiles. This includes actions, omissions and exercises of judgment that are relevant to whether the use of the knife was reasonable in the circumstances: Khill, at para. 74.

[72] The Crown notes that Mr. Berman chose to remain at the apartment despite clear notice that it was agitating Mr. Stiles and not producing a result. Moreover, the Crown submits Mr. Berman ignored the 911 operator’s strong advice to “walk away”, to “separate yourself” and to “keep yourself safe” from Mr. Stiles until police could attend. Mr. Berman testified he did this, in staying at the apartment doorway. The Crown also argues Mr. Berman taunted the complainant, with comments ranging from Mr. Stiles’ preferred TV habits to his intellect, to his past relationship with Ms. Van Schaik.

[73] I agree that Mr. Berman’s conduct in managing the dispute with Mr. Stiles was ill-advised. His police statement shows some candid reflection on what he ought to have done with the benefit of hindsight. However, I do not agree that this imbues him with moral responsibility for the outcome. Mr. Stiles was not justified in responding to Mr. Berman with a violent assault and threats of bodily harm. Mr. Berman was certainly an annoyance, but he made no physical or violent threats against Mr. Stiles that provoked the attack. Absent an appeal, society’s expectation is that Mr. Stiles would respect the court order. Mr. Berman was there as Ms. Van Schaik’s authorized agent to retrieve the dog pursuant to that order and moreover, with the property manager’s invitation. Mr. Berman was well-intentioned in wanting to assist his friend but was also naïve and was soon in over his head in a situation with an individual that he did not know. Mr. Berman did not respond to Mr. Stiles’ earlier threats to try to come into the apartment and did not invite Mr. Stiles to engage in a physical fight. He stayed at the door, with the intention of waiting for law enforcement. While he might have irritated Mr. Stiles, and this proved to be ill-advised, I cannot see that this amounts to any moral blameworthiness or provocation or instigation of the assault that brings his use of the knife into question. His conduct did not justify Mr. Stiles’ reaction, who initiated the attack.

[74] In considering these relevant factors in the whole of the circumstances, I find that the Crown has not established beyond a reasonable doubt that Mr. Berman’s conduct was unreasonable in the circumstances.

Disposition

[75] I therefore find that the Crown has not proven beyond a reasonable doubt Mr. Berman did not act in lawful self-defence when he stabbed Mr. Stiles. Mr. Berman is accordingly found not guilty of aggravated assault on this indictment.

Justice K. Tranquilli

Released: June 14, 2024

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record.