Court File and Parties

COURT FILE NO.: CR-23-59 DATE: 2024/10/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – Malachi John Paul McTague

Counsel: Andrew Scott, for the Crown Michael Mandelcorn, for the Accused

HEARD: August 19, 20, and 21, 2024

REASONS FOR JUDGMENT

Rees J.

Overview

[1] The accused, Malachi McTague, is charged with having committed an aggravated assault on Norm Sero on or about December 7, 2022, contrary to s. 268(2) of the Criminal Code.

[2] Mr. McTague admits that there was an altercation during which he wounded Mr. Sero with a knife. Mr. McTague says he did so in self-defence. The Crown disputes this. The only live issue is whether the Crown has established beyond a reasonable doubt that Mr. McTague did not act in self-defence.

Analysis

The law of aggravated assault

[3] For Mr. McTague to be found guilty of aggravated assault, the Crown must prove each of the following elements beyond a reasonable doubt:

a. that Mr. McTague intentionally applied force to Mr. Sero;

b. that Mr. Sero did not consent to the force Mr. McTague intentionally applied;

c. that Mr. McTague knew that Mr. Sero did not consent to the force that he intentionally applied; and

d. that the force Mr. McTague intentionally applied wounded, maimed, disfigured or endangered the life of Mr. Sero.

[4] In his evidence, Mr. McTague admitted to having intentionally struck Mr. Sero with a knife. I find that Mr. Sero did not consent to the use of force and that the accused knew Mr. Sero did not consent to the use of force. The defence admitted at trial that the force Mr. McTague intentionally applied wounded Mr. Sero. The hospital report, which was admitted on consent, described that Mr. Sero received a facial laceration requiring eight sutures. The blow also resulted in fractures to Mr. Sero’s left zygomatic arch, left lateral orbital rim, and pterygoid plate. He also suffered a displaced fracture of the coronoid process of the left mandible. Thus, I have no difficulty finding that the injuries sustained by Mr. Sero resulted in his wounding.

[5] On the totality of the evidence, the Crown has established beyond a reasonable doubt each of the elements of the offence of aggravated assault.

[6] As discussed, the only issue at trial was whether Mr. McTague acted in self-defence.

The law of self-defence

[7] I will first consider the law of self-defence, then apply it to the facts, the explain my conclusion.

[8] In 2013, Parliament amended and simplified the law of self-defence. The relevant portions of the defence of person provision in s. 34 of the Criminal Code provide:

Defence — use or threat of force

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[9] Under s. 34(1), the defence therefore consists of three elements. The first element considers whether or not the accused possessed reasonable grounds to believe that force or a threat of force was used against them or another person (s. 34(1)(a)); the second element considers the accused’s purpose in committing the act charged (s. 34(1)(b)); and the third element considers the accused’s actions as a result of the apprehended threat (s. 34(1)(c)). In R. v. Khill, 2021 SCC 37, the Supreme Court of Canada conceptualized these elements as the catalyst, the motive, and the response: 2021 SCC 37, at para. 51.

[10] I will consider the law of each element in greater detail below.

The burden of proof

[11] To raise the defence of self-defence, the accused need only point to evidence giving an air of reality to each element of the defence: R. v. Wolf, 2019 SKCA 103, at para. 132. Once the accused has done so, the Crown bears the burden of proving that the defence of self-defence does not apply. The burden of proof never shifts to the accused. To meet this burden, the Crown must disprove, beyond a reasonable doubt, at least one of the three constituent elements of the defence under s. 34(1): R. v. McPhee, 2018 ONCA 1016, at para. 15; see also R. v. Randhawa, 2019 BCCA 15 at para. 34.

[12] Because the main issue in this trial is self-defence, I must consider reasonable doubt through a modified R. v. W.(D.), [1991] 1 SCR 742, framework:

a. If I accept the accused's evidence and based on it, I 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 accept the accused'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 must find the accused not guilty.

See R. v. Reid (2003), 65 OR (3d) 723 at pp. 740-4.

[13] With this framework in mind, I now turn to its application this case.

The evidence

[14] Before turning to a summary of the key evidence, I do not intend to summarize all the evidence of the police witnesses. I only address their evidence in these reasons when necessary for my fact-finding and analysis. I have, of course, considered their evidence.

[15] As discussed, Mr. Sero and Mr. McTague offer differing accounts of what occurred in the early hours of December 7, 2022. The Crown did not call any eyewitnesses to the altercation.

Mr. Sero’s version of events

[16] Norm Sero was 50 at the time of trial. At the time of the incident, Mr. Sero was unhoused and living in a makeshift cabin in the bush behind the Hub. He had been living in the cabin for over a year. At the time, he lived there with his girlfriend and his dog, a pit bull puppy. He described the dog as good-sized pup, weighing about 30 pounds.

[17] Mr. Sero lived in this area because he was using the Hub’s services. He regularly used crystal meth. Mr. Sero testified that he used crystal meth once a day or once every other day in small amounts. By the time of trial, he was still using crystal meth, with the same frequency, as he had for the last 10 years.

[18] Mr. Sero testified that he had not used crystal meth on the day of the incident. He recalled taking some around noon the day before. He said crystal meth gave him energy and had likely worn off by the time of the incident.

[19] Mr. Sero testified that on the night of the incident, he let his dog out for a last pee. His dog went running outside and ran up to a dog that was standing nearby. According to Mr. Sero, his dog was not fighting, but was circling around the other dog, wanting to play. The other person’s dog was just standing there. This took place near the K & P Trail, about 250 feet from his cabin.

[20] Mr. Sero testified that the owner of the other dog wanted Mr. Sero to leash his dog. The other man called him names. He testified that the man started yelling and cursing at him. Mr. Sero testified that he told the other person to relax, that his dog was just a puppy and needed to go pee.

[21] On Mr. Sero’s initial account, the other man pulled out a knife and hit Mr. Sero’s dog with the butt of the knife. As Mr. Sero swooped down to get his dog, the other man stabbed him in the face. He testified that the man who stabbed him was standing directly in front of him.

[22] Mr. Sero did not have any weapons on him and did not touch the man. The man then ran northbound towards a light post.

[23] As Mr. Sero elaborated his account on his examination in chief, he testified that the other person pulled out a knife and showed it to him for a short period of time. On his evidence, the other person had the knife out while they were arguing back and forth. According to Mr. Sero, the argument attracted others from the encampment. Mr. Sero testified that these other people were not part of the argument but were observing. Mr. Sero was somewhat inconsistent in his evidence about how many people were attracted because of the argument. He variously described the numbers as a “crew”, a “bunch of people”, and a “crowd”. He testified that Mr. Justin Tuffs approached as they were arguing and was about 75 to 100 feet away when he got stabbed. Mr. Sero could not recall if any one was closer during the argument, but he testified that no one else was involved in the argument.

[24] Mr. Sero testified that the argument lasted between 10 and 15 minutes from the time he saw the knife to the time the other person stabbed him. At another point in his evidence in chief, Mr. Sero estimated they were arguing for 15-20 minutes before Mr. Sero reached down to get his dog and was stabbed.

[25] After he was stabbed, Mr. Sero testified that he ran to back to his cabin. Other members of the encampment rushed to help him. He described blood pouring through his fingers. Friends came running to his aid, and one gave him a cloth.

[26] Mr. Sero described the knife as being double edged, with both sides sharpened. Not an average pocket knife. He described the knife as being quite long, 10 to 12 inches from tip to the end of its handle. Mr. Sero described the handle as being large, round in the hand. He could just see the butt of it. He thought here was a design on the handle, though he couldn’t see the handle.

[27] Mr. Sero described the other person involved in the altercation has a white male in his mid thirties, with dirty blond or light brown hair. He had a goatee. He described him as quite a bit shorter than Mr. Sero is. He believed the man to be between 5’5” and 5’6”. He couldn’t remember details about the other man’s clothing, except that the clothing was all dark – dark jeans and a dark coat. He had never seen this man before.

[28] Mr. Sero described the other person’s dog as slim, with white spots, light brown on its head.

[29] The term “reliability” has to do with a witness’s ability to accurately observe, recall, and recount the events at issue. The term “credibility” has to do with a witness’s veracity, honesty, or truthfulness: R. v. H.C., 2009 ONCA 56, at para. 41.

[30] I first consider Mr. Sero’s reliability.

[31] I accept his recollection that he had not consumed crystal meth the night of the incident. I also accept that he had consumed a small amount of crystal meth around lunchtime the day before. I find that given the quantity of the meth he consumed, when he did so, and how it affected him, the crystal meth did not impair his ability to recollect events accurately.

[32] His memory of the details about the knife was highly accurate. He also provided an accurate description of the accused’s main features and the colour of the clothing the accused was wearing at the time of the incident.

[33] Second, I consider Mr. Sero’s credibility.

[34] He was forthcoming about his drug use and readily acknowledged his criminal record. He freely provided details regarding his criminal convictions. Mr. Sero has a relatively modest record, including an assault of a previous intimate partner. The record is dated. Mr. Sero also candidly acknowledged that there are ongoing incidents at the encampment for which the police have to be called. These incidents are thefts and assaults among members of the encampment. Further, he freely admitted that some members of the encampment near the Hub may “weapon up” if they have done something wrong. He answered directly and without evasion on cross-examination.

[35] That said, Mr. Sero made a prior inconsistent statement on a core issue which leads me to doubt that his account was fully frank. Shortly after the incident, while at the hospital, he told PC Dan Clarke that he had chased the accused and got a punch to his cheek. At trial, Mr. Sero could not recall saying this to PC Clarke. Although his statement to PC Clarke is hearsay and Mr. Sero was in pain at the hospital, his statement that he chased the accused is an important inconsistency which leads me to doubt his credibility at trial on this point.

[36] I find that Mr. Sero was not candid about whether he chased the other person. Because of this lack of candour, it leaves me with a doubt that some kind of chase occurred.

[37] This is not all that leads me to doubt Mr. Sero’s account.

[38] I do not accept Mr. Sero’s account that he and the other person argued between 10-15 and 15-20 minutes before he was stabbed. Given how little was said between them, on Mr. Sero’s account, I find this unlikely. Although it is not uncommon for witnesses to be unable to accurately perceive or recall the passage of time, I find that this was not due to an unreliable perception or memory. Rather, when considered together with Mr. Sero omitting the chase, I find that his time estimate suggests more was going between Mr. Sero and the accused than a mere argument or exchange of words.

Mr. McTague’s version of events

[39] I now turn to Mr. McTague’s account.

[40] Mr. McTague testified that at the time of the incident he had been living on Rideau St at the home of his then friend, Mr. Damon Emmerich, for about a year. Rideau St is north of the Hub. He had a puppy at the time, named Misfit. Misfit was a three-month-old Tennessee Walker Coonhound. She weighed about 15 pounds. Mr. McTague testified that he would walk Misfit every night along the K & P Trails because she was a little shy around people. He testified that the best time to walk her was very early in the morning. This habit was confirmed by Mr. Emmerich’s evidence.

[41] Mr. McTague took Misfit for a walk around 3:30 or 4 AM in the night on December 7, 2022. He took the K & P Trail that ran behind Mr. Emmerich’s house. He would go through the backyard and south towards Belle Park. He had been walking for about 10 to 15 minutes before he came upon Mr. Sero.

[42] Mr. McTague testified that Misfit was approached by another dog, which he estimated to weigh between 60 and 70 pounds. The other dog was a Pitbull and he was nervous because of the breed. According to Mr. McTague, Misfit was on a leash and was sniffing the other dog. Mr. McTague testified that the other dog leaped at Misfit and tried to bite Misfit. All this happened within about six seconds. Mr. McTague said to Mr. Sero that his dog attacked Misfit. Mr. McTague testified that Mr. Sero swore at him and told him not to tell him what to do with his dog. They argued in raised voices.

[43] Mr. McTague testified that the other man started acting aggressively and walked towards him quickly, looking angry, with his fists balled up. Mr. McTague testified that he said,“ Hey, man, I don’t want trouble, just keep your dog on a leash.” Mr. McTague testified that at that point the other man started calling his other friends over. He testified that people nearby in the encampment came towards them. Mr. McTague testified that people started surrounding him in a semicircle. He testified that there were between 6 to 8 people. Some of them holding things. It was dark and they were facing away from the fire. Mr. McTague said he saw a metal bar in the hands of one person.

[44] Mr. McTague testified that he started backing away with his dog, which was on leash. The people surrounding him walked towards him very quickly. As they started to advance towards him, he decided to run. He turned around, Misfit spooked and got away. As soon as he started running, so did the others. Mr. McTague testified that he ran towards Belle Park on the trail. He testified that he was looking straight and running. He testified that his pursuers were calling ahead to the encampment on the side of the trail. He testified that a figure came out of a tent holding a baseball bat which the person threw at him. It missed. Mr. McTague testified that rocks were being thrown at him and one hit his hand.

[45] Mr. McTague testified that at one point they were starting to get closer. He was running as fast as he could. He testified that he verbally warned them to back off, telling them to “fuck off”. He testified that it was a high stress situation. At this point he was terrified and afraid for his life. He testified that one was getting ahead of the others. Mr. McTague testified that he hated to do it, but he had to take his knife out, which he had for his protection. He lashed out. As soon as the person he struck fell, Mr. McTague testified that he kept running. He ran off the trail, onto Montreal Street. He ran around the hub, onto Rideau Street and to his home. He testified that he was pursued the whole time by people on bikes.

[46] Mr. McTague testified that when he got to the front door, he fumbled with his keys, entered, and slammed the door. His pursuers pushed on the door but he was able to get it closed. According to Mr. McTague, his pursuers tried to break down the door and get at him. They were kicking at the door and something heavy was thrown at the window. He heard the window breaking. This damage is confirmed through photographic evidence of his front door.

[47] Mr. McTague testified that he yelled at his roommate, Jamie. Eventually Jamie woke up and came downstairs. They had to charge Jamie’s cellphone for a few minutes and then they called 911. Eventually his pursuers left and the police came to his door.

[48] Mr. McTague agreed with Mr. Sero’s evidence about where the argument started.

[49] On cross-examination, Mr. McTague admitted that he caused Mr. Sero’s injury. He testified that he did so in self-defence. He also admitted that he inflicted Mr. Sero’s injury with the knife that Mr. Emmerich turned into police.

[50] I find that Mr. McTague was generally a reliable witness. There were no significant issues regarding his ability to accurately observe, recall, and recount events. For example, I find that his perception and memory of how long he and Mr. Sero were arguing is more accurate than Mr. Sero’s, given they were briefly arguing about the need for Mr. Sero to keep his dog on a leash.

[51] While I do not place undue weight on Mr. McTague’s demeanour, he answered questions directly during his evidence-in-chief and on cross-examination. His tone was firm, almost combative in response to some questions posed on cross-examination, but not overly so given his account was being put into question. His account was generally coherent.

[52] The main issue is Mr. McTague’s credibility. I find that Mr. McTague is credible on some aspects of his account, but less so on others.

[53] Mr. McTague was not truthful with police. The first time was in his statement of what happened to the officers who came to his home following the incident. He was interviewed by PC McMahon. He made no mention of having stabbed Mr. Sero in self-defence or of carrying a knife. The second time was during his interview by Detective Sergeant Watt, following his arrest. Mr. McTague did not disclose having stabbed Mr. Sero in self-defence or that he was carrying a knife. And he flatly denied having stabbed anyone at all. (I pause here to note that the voluntariness of Mr. McTague’s statements was admitted by the defence.)

[54] Of course, suspects do not have to speak with police. But once they lie or omit core details when they choose to speak with police, it may undermine their credibility. Mr. McTague testified that he did not tell police about the knife when they attended at his home because of the way they were questioning him threw him off kilter and made him feel like they thought he had done something wrong. Although the police questioning at his home was not objectively accusatory, I accept it could be intimidating to be questioned by police in these circumstances.

[55] Similarly, Mr. McTague explained that during the interview he didn’t disclose what happened at the station because he freaked out and was scared that he was being charged. He described himself as confused, angry and upset. He testified that he had been arrested for a crime he believed he did not commit. He was concerned that the police were just trying to put him in jail. He did not trust Detective Watt. He also testified that Mr. Emmerich told him to lie and that duty counsel told him not to say much. I accept that in the circumstances, Mr. McTague was disinclined to share his version of events and instead denied that he had stabbed anyone.

[56] Ultimately, Mr. McTague’s failure to be forthright with police does not lead me to conclude that he is lying about acting in self-defence.

Damon Emmerich

[57] The Crown called Mr. McTague’s then friend and former roommate, Damon Emmerich. He testified that he recommending to Mr. McTague walk his dog in the other direction from the path, away from the Hub toward the water. Mr. Emmerich testified that Mr. McTague didn’t feel that was necessary. Mr. Emmerich could not recall when they had that conversation.

[58] At 5:11 am on December 7, 2022, Mr. McTague sent an email to Mr. Emmerich. The first stated that Mr. McTague had been attacked by junkies with weapons, that his dog Misfit was missing, and that the police came. Mr. McTague asked Mr. Emmerich to come home as soon as he could. About 11 minutes later, Mr. McTague sent Mr. Emmerich a second email stating that he didn’t mean to alarm him. Everything would be alright.

[59] Mr. Emmerich testified that when he got home from work, he asked Mr. McTague about the emails. McTague told him that he had been attacked and stabbed two people. (I pause here to note that there was some narrative evidence at trial that a second man was injured apart from Mr. Sero, but Mr. McTague is not charged in relation to this and I make no findings in this regard.) Mr. McTague told Mr. Emmerich that the knife was somewhere safe. Mr. Emmerich did not follow up with Mr. McTague about the knife at the time.

[60] On Mr. Emmerich’s account, he did not encourage Mr. McTague to arm himself and he did not know that Mr. McTague had taken one of his knives on his walk.

[61] Mr. Emmerich testified that Mr. McTague gave him the knife used to injure Norm Sero a few days before Mr. Emmerich handed it over to the police on April 16, 2023. On Mr. Emmerich’s account, Mr. McTague asked him to dispose of it. McTague told him that he had used the knife to stab two people and words to the effect that Mr. Emmerich would be impressed with the damage it caused. Mr. Emmerich understood this to be from the incident on the K & P Trail. Mr. Emmerich said he’d get rid of the knife. On his account, he handed it over to the police a few days later.

[62] Mr. McTague denies that he asked Mr. Emmerich to dispose of the knife.

[63] On cross-examination, Mr. Emmerich admitting to having a collection of knives, 10 or more. He said that most of them were decorative but some were sharp, including the one used on Mr. Sero.

[64] Mr. Emmerich agreed on cross-examination that between the December 7, 2022 and April 16, 2023, that he knew that Mr. McTague had stabbed two people and used a knife, and he knew that Mr. McTague was keeping the knife safe and he didn’t know were it was. He admitted that none of that caused him enough concern to go to the police before April 16, 2023. He claimed that the reason was that he didn’t have the knife or know its location before going to the police.

[65] On cross-examination, it became clear that Mr. Emmerich and the accused had a falling out and that the accused moved out of Mr. Emmerich residence on April 16, 2023, when Mr. Emmerich went to the police.

[66] Although I do not put much weigh on Mr. Emmerich’s demeanour during his evidence, he was an exceedingly nervous witness for most of his evidence. That said, when challenged by the defence that the conversation in which Mr. McTague asked him to dispose of the knife never happened, his denials were direct and firm.

[67] Ultimately because of Mr. McTague’s admissions, not much turns on Mr. Emmerich’s evidence. The after-the-fact statements he says Mr. McTague made to him shed little light on what happened in the altercation between Mr. Sero and Mr. McTague. Similarly, nothing really turns on whether Mr. Emmerich encouraged Mr. McTague to arm himself or whether Mr. McTague borrowed the knife without Mr. Emmerich’s knowledge. Although I accept that Mr. McTague asked him to dispose of the knife, this does not assist me in determining the issue of self-defence.

Has the Crown established beyond a reasonable doubt that Mr. McTague did not wound Mr. Sero in self-defence

[68] I now turn to consider whether the Crown established beyond a reasonable doubt that Mr. McTague did not wound Mr. Sero in self-defence.

The catalyst

[69] Under the first element – the catalyst – the question of whether there was an apprehension of force is determined on a modified objective standard: Khill, at para. 54. That is, the accused’s apprehension of force is assessed from the perspective of an ordinary person sharing the attributes, experiences, and circumstances of the accused, where these are relevant to their apprehension of harm and their response and consistent with general community values: Khill, at para. 54.

[70] That said, not all the accused’s personal characteristics or experiences are relevant. Beliefs that are inconsistent with the Criminal Code’s “most basis purpose of promoting public order” should be excluded from the modified objective inquiry: at para. 56. Nor is reasonableness considered “through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures”: at para. 56. The ordinary person will be informed by contemporary norms of behaviour and fundamental values, including the commitment to equality. As such, prejudice or irrational fear towards a group or culture cannot inform an objectively reasonable perception of a threat: Khill, at para. 56.

[71] The Supreme Court explains that the reference in s. 34(1)(a) to reasonableness “incorporates community norms and values in weighing the moral blameworthiness of the accused’s actions”: Khill, para. 53. It is ultimately a matter of judgment: Khill, para. 58.

[72] Properly stated, the question is what a reasonable person with those relevant characteristics and experiences would perceive: Khill, at para. 57. An honest but mistaken belief can be reasonable and does not automatically bar a claim to self‑defence: ibid.

[73] Recall that Mr. McTague need only raise an air of reality for his defence. The burden of proof never shifts from the Crown. To meet this burden, the Crown must disprove, beyond a reasonable doubt, at least one of the three constituent elements of the defence under s. 34(1). Even if I do not accept Mr. McTague’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 must find him not guilty.

[74] I find that there is an air of reality to Mr. McTague’s defence.

[75] But I do not accept all of Mr. McTague’s account. In this regard, the Crown tendered a surveillance video from one of the Hub’s surveillance cameras, which provided a view of the area along the K & P Trail where Mr. McTague testified he was chased by six to eight people, and where he says he struck at Mr. Sero with the knife in self-defence.

[76] I have carefully reviewed the video several times. To view the relevant area, one must magnify the image repeatedly. It was not the focus of the camera, but rather an area at the margins of the video. The video is grainy and movement around this area appears as shadows; movement is ghosted and is choppy. One can discern the silhouettes of people and possibly of a dog or dogs. No one is identifiable.

[77] No chase by a group of people or a stabbing is visible on the video. Even given its poor quality, I find that if six to eight people were chasing Mr. McTague along the trail in this area, some movement consistent with this would be visible.

[78] That said, I note that the video provides no direct evidence of the stabbing on the Crown’s theory either. Most of the observable movement appears to occur closer to encampment area, in the dark. At some points people appear drawn to the area, but nothing concrete is discernable. At some point, a single person seems to move at speed along the path, but it is not possible to identify the person.

[79] I conclude there is a danger in placing too much emphasis on a poor-quality video, even taken together with the other evidence at trial. I am left in a reasonable doubt that the altercation appeared off-video.

[80] Although the video is inconsistent with some of Mr. McTague’s account, it does not conclusively disprove all of Mr. McTague’s account. The video does not disprove other essential elements of Mr. McTague’s account. It is to these essential elements that I now turn.

[81] It was dark, late at night. I accept that Mr. McTague had an argument with Mr. Sero because Mr. Sero’s dog was off leash and aggressive towards Misfit. I also accept that at some point others from the encampment were drawn towards the argument. Both Mr. McTague and Mr. Sero’s evidence was consistent that their argument drew a group of people from the encampment to them, though their recollection of the numbers differed. Even on Mr. Sero’s account, he described the numbers as a “crew”, a “bunch of people”, and a “crowd”. I accept that they would have been protective of Mr. Sero – who they respected. I accept that feeling that the situation was becoming unsafe, Mr. McTague turned to flee.

[82] I cannot be sure of exactly what happened during the altercation, but I am left with a reasonable doubt on the following points.

[83] I am left with a reasonable doubt that Mr. Sero acted aggressively towards Mr. McTague and chased him a short distance. I am not persuaded that a brief chase would necessarily be visible on the Hub’s security camera.

[84] I am also left in a reasonable doubt that other residents of the encampment were in possession of objects that could have been weapons. In this regard, the police search of the encampment revealed a homemade spear, a metal bar, and a knife (the police assessed the latter as being unrelated to the incident but the basis for this conclusion is not clear). Mr. Sero acknowledged that encampment members sometimes armed themselves with weapons. All of this lends an air of reality that the encampment residents were holding objects or were armed. The Crown has not disproved this.

[85] I am left with a reasonable doubt that Mr. McTague believed that a threat of force was being made against him. I am left with a reasonable doubt that Mr. McTague believed that Mr. Sero chasing him and about to overtake him, when considered together with several encampment members having drawn close—some of whom he perceived were armed—presented a threat of force against him. Although Mr. McTague had not run into problems before, he knew that the encampment could be a dangerous place. This belief was objectively reasonable—the police witnesses acknowledged the disorder and assaultive behaviour associated with the encampment. The Crown has not disproven that Mr. McTague believed his life was at risk.

[86] In these circumstances, a reasonable person in Mr. McTague’s circumstances would perceive that Mr. Sero was threatening to use force and the presence the other encampment members, some of whom appeared to be armed, as heightening the gravity of the threat.

The motive

[87] Under the second element – the motive – the court considers the accused’s personal purpose in committing the act that constitutes the offence. This element requires that the accused acted to defend or protect themselves or others from the use or threat of force. The inquiry is a subjective one: Khill, at para. 59. To satisfy the second element, the accused cannot be motivated by “vigilantism, vengeance or some other personal motivation”: ibid.

[88] The Supreme Court has cautioned that “[c]larity as to the accused’s purpose is critical” because what qualifies as a reasonable response may be limited by the accused’s purpose, depending on whether it’s to defend property, effect an arrest, or defend themselves or another from the use of force: Khill, at para. 60.

[89] Clarity as to the accused’s purpose is also critical because an accused’s purpose may evolve as an incident progresses or escalates. A court must exercise “great care” in articulating the threat or use of force that existed at a particular moment, “so that the assessment of the accused’s action can be properly aligned to their stated purpose”: Khill, at para. 61. Articulating the threat or use of force requires the court to fully appreciate the “ context of a confrontation, how it evolved and the accused’s role, if any, in bringing that evolution about”: ibid.

[90] I am not persuaded that Mr. McTague stabbed or slashed Mr. Sero when the latter was bending down to grab his dog during their argument. Nor am I persuaded that Mr. McTague was the initiator or aggressor in the stabbing.

[91] The Crown argued that Mr. McTague had an animus towards the people living in the encampment near the Hub. I am not persuaded this is so. He expressed a level of concern and frustration with the inhabitants of the encampment that is likely shared among the neighbourhood.

[92] Nor do I find Mr. McTague referring to the inhabitants of the encampment as “junkies” indicative of animus. Though derogatory, Mr. McTague’s use of the term is consistent with his social context.

[93] I am left with a reasonable doubt that Mr McTague only slashed at Mr. Sero to protect himself when he feared for his safety after Mr. Sero gave chase and while other encampment members were close by.

The response

[94] Finally, the third element – the response – asks whether the accused’s response was reasonable in the circumstances. It requires that the accused’s act be reasonable in the circumstances. Again, the reasonableness requirement ensures that the “the law of self‑defence conforms to community norms of conduct”: Khill, at para. 62.

[95] Parliament has structured how the court ought to determine whether an act of self-defence was reasonable in the circumstances under s. 34(2). Reasonableness is assessed according to “the relevant circumstances of the person, the other parties and the act”: ibid. Parliament also requires the court to consider a non-exhaustive list of factors to assess reasonableness under s. 34(2)(a)-(h).

[96] The court must not “ simply slip into the mind of the accused ”, rather it must focus on what a reasonable person would have done in comparable circumstances: Khill, at para. 65. This element is primarily concerned with the reasonableness of the accused’s actions, not their mental state: Khill, at para. 66.

[97] Ultimately, Mr. McTague’s defence comes down to whether his stabbing of Mr. Sero was reasonable in the circumstances. I now turn to the non-exhaustive list of factors set out in s. 34(2)(a)-(h).

[98] Mr. McTague has high school equivalency certificate. He was unemployed at the time and living with a close friend. Their home was near the K & P Trail, north of the Hub. He was concerned with the disorder associated with the encampment near the Hub. So much so that Mr. McTague armed himself with one of the knives that Mr. Emmerich collected. It matters little whether Mr. McTague armed himself with the knife at Mr. Emmerich’s behest or took the knife without Mr. Emmerich’s knowledge. What matters is that he was concerned enough for his safety near the Hub that he armed himself before leaving home.

[99] Mr. Sero has had a difficult life. At the time of the incident, Mr. Sero was living in a makeshift cabin in the bush behind the Hub. The encampment is his home. He lived in his cabin with his girlfriend and his dog. For the last decade he has regularly consumed modest amounts of crystal meth. He previously consumed cocaine. He is well-regarded among the inhabitants of the encampment. They call him its “mayor”. He acts as a go-between between the inhabitants of the encampment and Kingston by-law officers.

[100] There was no relationship between the parties to the incident. Nor was there any history of interaction or communication between them. Mr. Sero and Mr. McTague had never met before.

[101] Mr. Sero did not use or threaten to use a weapon. As between them, only Mr. McTague was armed.

[102] I have considered above Mr. McTague’s role in the incident and will not repeat those findings here.

[103] Mr. McTague is of medium build and younger than Mr. Sero. At the time of the incident, Mr. Sero was in his late forties, taller than Mr. McTague. I do not find that there was a significant physical imbalance between them, but I find that the other members of the encampment who were drawn to the argument reasonably enhanced Mr. McTague’s perception of the danger he was in.

[104] I am not persuaded that were other means available to Mr. McTague to respond to the threat of force. I am left with a reasonable doubt that Mr. McTague told Mr. Sero and the other encampment members to back off. I am left with a reasonable doubt that Mr. McTague could not outrun Mr. Sero. In an ideal world, Mr. McTague could have pushed Mr. Sero away, thrown a punch, or defended himself without the knife. But in the heat of the moment, Mr. McTague was not required to measure his response to a nicety: R v. McPhee, 2018 ONCA 1016, at para. 24; see also R. v. Baxter (1975), 27 CCC (2d) 96. As the Court of Appeal observed in R v. Cunha, 2016 ONCA 491, at para. 25: “the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.” Crucially, Mr. McTague responded not just to Mr. Sero chasing him; he responded in the context of the other encampment members who he perceived as heightening the danger he was in. A reasonable person would have had a heightened sense of the threat given the presence of the other, potentially armed, encampment members. It was dark and Mr. McTague was isolated.

[105] A reasonable person in these circumstances would have used the knife to defend themselves. Although Mr. McTague demonstrated poor judgment in having armed himself with a knife before walking to the Hub, this does not make the use of the knife in the circumstances disproportionate. When I examine how he used the knife – he used it once to strike Mr. Sero and then ran – the use of force was proportionate to the threat.

[106] Although the slash was delivered with enough force to lacerate Mr. Sero’s cheek and fracture his facial bones in four places, the court must focus on the force applied in self-defence rather than the harm that resulted. As the British Columbia Court of Appeal explained with respect to the predecessor self-defence provision in R.v. Kandola (1993), 80 CCC (3d) 481, at p. 488: “it is the force itself, and not the consequence of the force used...” which is the focus of the inquiry. Here, it was a single slash to Mr. Sero’s face. The use of force disabled Mr. Sero and Mr. McTague ran. I am not persuaded that Mr. McTague used a disproportionate amount of force to defend himself in the circumstances.

Conclusion

[107] I am left with a reasonable doubt that Mr. McTague’s wounding of Mr. Sero was reasonable in the circumstances. I am thus left with a reasonable doubt that he acted in self-defence.

Disposition

[108] Therefore, I find Mr. McTague not guilty of aggravated assault.

Justice Owen Rees Released: October 18, 2024