Court File and Parties
Court File No.: CR-24-30000333 Date: 2025-10-24 Ontario Superior Court of Justice
Between: His Majesty the King – and – Zachary Bruno
Counsel:
- Natalya Odorico, for the Crown
- Scott Reid, for the Defendant
Heard: September 22-26, 29, October 1, 2025
Reasons for Judgment
Nishikawa J.
Overview
[1] On the morning of October 25, 2022, the defendant, Zachary Bruno, and the complainant, Tyler James, became involved in a physical altercation at a Delta Hotel on Kennedy Road in Scarborough that was being operated as a shelter at the time (the "shelter"). During the course of the altercation, Mr. Bruno stabbed Mr. James four times. Mr. James was taken to the hospital where he was treated for his injuries. Mr. Bruno is charged with aggravated assault.
[2] Mr. James was a resident of the shelter. Mr. Bruno had previously been residing at the shelter, but was not living there at the time because he had been asked to leave. The altercation broke out after Mr. Bruno had just been located in another resident's room and was in the process of being escorted out of the building by shelter staff.
[3] The Crown's position is that Mr. Bruno initiated the altercation because he was angry with Mr. James for reporting him to shelter staff. The Crown further submits that in introducing a knife into a physical fight, Mr. Bruno used excessive force.
[4] The defence's position is that Mr. James started the fight by attacking Mr. Bruno, and that Mr. Bruno acted in self-defence.
Issues
[5] The issues raised in the case are as follows:
(a) Has the Crown demonstrated beyond a reasonable doubt that Mr. Bruno assaulted Mr. James?
(b) Has the Crown demonstrated beyond a reasonable doubt that Mr. Bruno did not act in self-defence?
Analysis
Has the Crown demonstrated beyond a reasonable doubt that Mr. Bruno committed aggravated assault against Mr. James?
The Applicable Principles
[6] Mr. Bruno is presumed innocent. The Crown bears the burden of proving the elements of the offence charged beyond a reasonable doubt, which is a high standard. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.
Aggravated Assault
[7] Section 268(1) of the Code provides that "[e]very one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant."
[8] To prove the offence of aggravated assault, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:
(a) Mr. Bruno applied force to Mr. James;
(b) Mr. Bruno intentionally applied the force;
(c) Mr. James did not consent to the force that Mr. Bruno applied;
(d) Mr. Bruno knew that Mr. James did not consent to the force applied; and
(e) The force that Mr. Bruno applied wounded, maimed, disfigured or endangered the life of Mr. James.
[9] Although it is not necessary to prove that the accused intended to wound, maim, disfigure or endanger the life of the complainant, the Crown must demonstrate that the conduct was at least objectively likely to cause bodily harm.
Assessing the Evidence
[10] Before proceeding with an examination of the evidence, it is useful to set out the principles that are applied by the court in weighing the evidence. In weighing the evidence, I must assess the credibility and reliability of the witnesses' evidence. This involves considering the internal consistency of each witness's testimony and its consistency in the context of the evidence as a whole.
[11] In assessing the evidence, because Mr. Bruno testified in his defence, this court must follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. The W.(D.) analysis, as applicable to this case, would be articulated as follows:
(i) If the court believes Mr. Bruno's evidence, he must be acquitted;
(ii) If the court does not believe Mr. Bruno's evidence, but it leaves the court with a reasonable doubt, he must be acquitted; and
(iii) Even if Mr. Bruno's evidence does not leave me with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown proves the charges beyond a reasonable doubt.
[12] In applying the W.(D.) analysis, Mr. Bruno's evidence is not to be considered in isolation, but in the context of the evidence as a whole.
The Evidence
The Video Recording
[13] A portion of the altercation between Mr. Bruno and Mr. James was captured on a video recording of the elevator area of the eleventh floor of the shelter, which was entered into evidence.
[14] On the video recording, an individual, later identified as the complainant, Tyler James, is standing in the elevator area of the eleventh floor. Mr. James is wearing a light blue hoodie, blue shorts over black pants and running shoes. Mr. Bruno is seen being escorted from a hallway on the far side of the elevator area (the "rear hallway") to the elevator by two shelter employees, Suzette Mullings and Barbara Maitera, as well as the hotel maintenance engineer, Andreas. Mr. Bruno is wearing a black hoodie, black shorts and slides, or slipper like shoes. Ms. Mullings is in front of Mr. Bruno. As she walks into the elevator area, she motions to Mr. James with her hand for him to leave. Mr. James walks away from the elevator toward the hallway in the foreground of the video (the "front hallway").
[15] As Mr. James moves away from the elevator area to turn to his left into the front hallway, Mr. Bruno is seen walking swiftly in the same direction as Mr. James toward the front hallway. Both men then turn into the front hallway, out of the range of the video camera. Approximately one second later, Ms. Maitera hurriedly follows Mr. Bruno into the front hallway. Ms. Mullings, who had pressed the elevator button in the meantime, then moves to look down the front hallway. At the same time, Andreas also walks in the direction of the front hallway. Ms. Mullings is then seen using her mobile phone, after which she leaves the area.
[16] Approximately 13 seconds later, when Mr. Bruno and Mr. James return within the video camera's range, they are still in the front hallway. A portion of Mr. Bruno's bare legs is visible. By the direction of his legs, it is apparent that he is on the ground on his back and Mr. James is on top of him. Mr. Bruno is holding a knife in his right hand. Mr. James' arm is visible punching Mr. Bruno at least two times in the area of Mr. Bruno's head. Mr. Bruno then makes three stabbing motions with his right hand. He also has his left arm around Mr. James' back. During the course of this altercation, Mr. Bruno's slides had come off of his feet. Mr. James' feet are visible in running shoes, bracing against the wall while he is on top of Mr. Bruno. A spot of blood is visible on Mr. James' hoodie.
[17] Approximately 10 seconds after that, both men are on their feet and visible in the elevator area. Mr. James holds Mr. Bruno in a "bear hug" from the side. Mr. Bruno has the knife in his right hand. Mr. James holds Mr. Bruno's right arm down and swings him around. The two men struggle with each other, and it appears that Mr. James is trying to take the knife from Mr. Bruno.
[18] As Mr. James and Mr. Bruno move toward the rear hallway, a resident identified as John Gray enters the elevator area. Mr. James pushes Mr. Bruno against the rear wall and then forces him to the ground. As Mr. Bruno gets on his feet, Mr. James punches him in the face or head and the knife goes flying toward the rear hallway. Mr. James then pushes Mr. Bruno into a set of elevator doors. At that point, Mr. Gray approaches Mr. James, who then backs off toward the rear wall.
[19] After Mr. Gray breaks up the fight, Mr. Bruno pulls his hood over his head and takes a step toward Mr. James. Ms. Maitera and Andreas move from the elevator area to the rear hallway.
[20] Mr. James backs into the rear hallway as other residents enter the elevator area. Mr. Bruno turns away from Mr. James to look toward a woman, whom he identified as Karen. Mr. Bruno then takes a large step toward the rear hallway and almost lunges forward. At that point, Andreas steps between Mr. Bruno, Mr. Gray and Mr. James. Mr. Bruno moves toward the left side of the rear hallway, where Ms. Maitera is standing. Ms. Maitera steps on something, likely the knife that had gone flying in that direction.
[21] Mr. Bruno tries to reach forward, but Mr. James grabs his arm and shoves him. Andreas leads Mr. James in the opposite direction down the rear hallway away from the elevator area. After that point, Mr. James is no longer visible on the video recording.
[22] Mr. Bruno leans forward and appears to try to pick up the knife. Ms. Maitera picks up the knife. Mr. Bruno then walks toward the front hallway, as Ms. Maitera, while holding the knife watches him. Mr. Bruno then goes out of view of the video recording.
Barbara Maitera
[23] At the time of the incident, Ms. Maitera was working as the morning supervisor at the shelter. At approximately 8:10 a.m., she and other shelter employees were in a "huddle" to exchange information at the start of the shift. While in the huddle, in an area off to the side of the lobby, she heard some noise in the lobby. When she went to the lobby to see what the noise was about, a resident whom she knew as "Alex" (later identified as Mr. James) was saying that there were bed bugs in his room and that he did not feel safe in the program. Ms. Maitera told Mr. James that she would talk to him after the huddle.
[24] After the huddle, Ms. Maitera, Ms. Mullings and Andreas went to Mr. James' room on the eleventh floor to check for bed bugs. After confirming the presence of bed bugs, Ms. Maitera and her colleagues spoke to Mr. James about how it would be dealt with.
[25] On the way to the elevator, Mr. James told Ms. Maitera that there was a non-resident staying in one of the rooms. Ms. Maitera testified that they then conducted a room check to see if they could locate the non-resident.
[26] Ms. Maitera testified that she and her colleagues checked two rooms on the eleventh floor. They did not locate anyone in the first room they checked, room 1103. In the second room, room 1104, they located Mr. Bruno. Ms. Maitera testified that Ms. Mullings told Mr. Bruno that he would have to leave and that Mr. Bruno was compliant. Ms. Maitera knew Mr. Bruno as Anthony, one of the youngest residents in the program. In October 2022, he was no longer residing at the shelter because he had been asked to leave.
[27] Ms. Maitera testified that it was when they were escorting Mr. Bruno to the elevator area that he and Mr. James began to fight. In examination in chief, Ms. Maitera testified that Mr. Bruno started the fight because he ran toward Mr. James and they then began to fight in the elevator area. Ms. Maitera testified that she did not see who made contact first and that she did not see who stabbed whom. Ms. Maitera testified that she did not recall either man saying anything to the other. Ms. Maitera testified that she was telling the men to stop and that she was telling Mr. Bruno that he needed to get in the elevator.
[28] After being shown the video recording on cross-examination, Ms. Maitera admitted that Mr. Bruno did not "run" after Mr. James. She also confirmed that neither Mr. Bruno nor Mr. James threw any punches in front of the elevator area as she had testified in chief.
[29] In examination in chief, Ms. Maitera testified that she tried to pull Mr. Bruno from his hoodie to restrain him. However, once the two men were on the floor, she let them be because her own safety was her first priority, and she was not going to try to pull apart two grown men. On cross-examination, after being shown the video recording in which Mr. Bruno appeared to be under Mr. James, Ms. Maitera admitted that she could not be sure whose hoodie she had pulled.
[30] Ms. Maitera testified that during the altercation, she went to the rear hallway to hide. Ms. Maitera testified that Mr. James and Mr. Bruno were pushing and shoving each other and that other residents began to come out of their rooms, including a resident with a pit bull. When she was in the rear hallway, she saw a knife fly to the area where she was standing. Ms. Maitera testified that she picked up the knife and hid it because she was afraid of what Mr. Bruno might do with it. Ms. Maitera testified that until that point, she had not seen a knife and that she had not seen Mr. Bruno carrying a knife when he followed Mr. James to the front hallway.
[31] Ms. Maitera testified that Mr. Bruno later came toward the rear hallway yelling, "Where's my knife? Where's my knife?" She later handed the knife to Andreas.
[32] Ms. Maitera testified that Mr. Bruno then ran down the stairs and that Mr. James ran down a different stairwell. When Ms. Maitera got to the lobby of the building, she saw shelter staff attending to Mr. James, who was saying he had been stabbed. Ms. Maitera observed cuts or stabs on Mr. James' body, and a lot of blood.
[33] The defence submits that Ms. Maitera was not a credible witness because she did not make reasonable concessions in cross-examination and refused to accept that her memory of the incident might be poor, even after being shown that the video recording did not accord with her testimony in chief.
[34] In cross-examination, Ms. Maitera disagreed when it was put to her that her memory might not be as good as she might have hoped. In my view, Ms. Maitera's response was about her memory generally. More importantly, Ms. Maitera admitted when the video recording differed from her recollection. While Ms. Maitera did not make certain concessions on cross-examination, my observation is that this had more to do with the wording of the question. For example, Ms. Maitera would not agree with counsel's description of Mr. James as "muscular." When asked for her definition of muscular, Ms. Maitera explained that a person would have to be "thick" like a body-builder. She did agree, however, that Mr. James had a bigger build than Mr. Bruno.
[35] In my view, Ms. Maitera's responses do not undermine her credibility as a witness. She was candid and answered questions in a forthright manner. She did not overstate her evidence and acknowledged when she did not know or recall something. She admitted when she recalled something incorrectly. Moreover, Ms. Maitera has no stake in the outcome of the proceeding.
[36] The altercation broke out unexpectedly and quickly became chaotic as other residents and dogs came into the elevator area. Ms. Maitera literally ran to the front hallway where Mr. Bruno and Mr. James were fighting, yelling at them to stop. In such high stress circumstances, it is understandable that Ms. Maitera did not recall the exact location where the physical fight began. In any event, within seconds, she moved from the elevator area to the front hallway where the two men were fighting. Ms. Maitera admitted that she did not see who threw the first punch or how both men came to be on the floor. Nonetheless, given that the altercation did not unfold as Ms. Maitera initially recalled, and Mr. Bruno did not "run" after Mr. James, I have some concerns with the reliability of her recollection. I accept, however, that when she said that Mr. Bruno started the fight, it was not because she saw him punch or grab Mr. James but because he went after him. This is consistent with the video recording and the evidence of Ms. Mullings.
Suzette Mullings
[37] In October 2022, Ms. Mullings was working as one of the morning supervisors at the shelter. Ms. Mullings testified that she was in the morning huddle when she heard a commotion in the lobby. She asked staff to attend to it and see what was going on. On cross-examination, Ms. Mullings confirmed that the commotion was a disagreement between Mr. James and another resident of the shelter, John Gray.
[38] After the huddle, Ms. Mullings was going to do a walk around of the whole building. Ms. Mullings testified that she and her co-workers were stopped by Mr. James, who told them that there were bed bugs in his room. Ms. Mullings testified that she saw Andreas coming, so she asked him to go with them to Mr. James' room on the eleventh floor.
[39] After Ms. Mullings and Andreas inspected Mr. James' room and confirmed the presence of bed bugs, Ms. Mullings told Mr. James to go downstairs and wait for them to discuss next steps.
[40] Ms. Mullings testified that because they were on the eleventh floor, she decided it would make sense to check on a report of a non-resident staying in room 1103 or 1104. After checking room 1103 and finding no non-resident, they went to check room 1104. Ms. Mullings told the female resident that it was a maintenance check and the resident eventually allowed them to enter the room.
[41] Ms. Mullings testified that after checking the room, she went into the washroom and opened the shower curtain. She saw Mr. Bruno lying in the bathtub. Ms. Mullings testified that she greeted him by name, because he was familiar to them. She told Mr. Bruno he should not be there and that he would have to come with them. Ms. Mullings testified that Mr. Bruno willingly followed her, Ms. Maitera and Andreas out of the room.
[42] Ms. Mullings testified that as they were accompanying Mr. Bruno to the elevator area, she saw that Mr. James was still there, so she used her hand to motion to him to go. Ms. Mullings described the motion as a "shooing" motion. Ms. Mullings testified that by the time she had done that, Mr. Bruno and Mr. James had laid eyes on each other. Ms. Mullings testified that as soon as Mr. Bruno turned the corner from the rear hallway, he went right toward Mr. James. Ms. Mullings testified that she would not say that Mr. Bruno "ran" or "lunged", but that he went straight toward Mr. James. Ms. Mullings testified that Mr. James then reacted as if he knew Mr. Bruno was going to fight him and turned around to defend himself.
[43] Ms. Mullings testified that she saw the beginning of the fight but did not see who made contact with whom first. Ms. Mullings testified that Mr. Bruno and Mr. James started to fight and wrestle and were moving toward room 1103. Ms. Mullings did not see who got the other on the floor, but heard a garbage bin tumble. Ms. Mullings testified that it was then that she decided to run downstairs to a staff office to get security because she, Ms. Maitera and Andreas were not sufficient to break up a fight.
[44] Ms. Mullings testified that after she called security, she went back up to the eleventh floor. When she got there, she heard there had been a fight, that someone had a knife, and someone may have been stabbed.
[45] On cross-examination, after viewing the video recording, Ms. Mullings admitted that she did not see Mr. James go around the corner into the front hallway because at the time, she was pressing the elevator button and her back was to him. She testified that she saw Mr. Bruno go around the corner after Mr. James.
[46] On cross-examination, the defence put to Ms. Mullings that she could not have seen the beginning of the fight because she was standing near the elevator button facing the elevator button, as opposed to the front hallway. The defence further put to Ms. Mullings that the fight began further down the hallway in front of room 1103, and that she would not have been able to see it from where she was standing. Ms. Mullings maintained that she saw the start of the fight.
[47] I find Ms. Mullings' testimony to be both credible and reliable. She did not overstate her evidence and admitted when she did not recall or did not know what happened. For example, Ms. Mullings admitted that she did not see who hit whom first and that she never saw Mr. Bruno throw Mr. James to the ground. In addition, she was careful in describing what she observed, for example, she testified that she would not say that Mr. Bruno "ran or lunged" for Mr. James but that he "went directly at him". This is consistent with Mr. Bruno's conduct in the video recording. Finally, Ms. Mullings has no stake in the proceeding.
[48] In my view, Ms. Mullings was being truthful when she testified that she saw the beginning of the altercation and that Mr. Bruno started it. First, like Ms. Maitera, she explained that Mr. Bruno started the fight because it was Mr. Bruno who went toward Mr. James. In fact, her description of Mr. James turning around ready to fight is in fact consistent with Mr. Bruno's evidence that Mr. James turned around after he followed him.
[49] I reject the defence's submission that Ms. Mullings could not have seen the start of the altercation. On the video recording, Ms. Mullings is facing the elevator button when she presses it, but within seconds of Ms. Maitera running toward the front hallway, Ms. Mullings turns around and moves from the elevator button to look down the front hallway. Her back was turned for two seconds and she soon moved to where she could see the front hallway. Ms. Mullings described the two men grabbing each other, wrestling and one trying to get the other on the floor. She admitted she did not recall who got the other on the floor. She had a specific recollection of running for help after hearing a garbage bin tumble. Accordingly, I accept her evidence as to how and where the fight began.
Police Witnesses
[50] The evidence of the police witnesses was largely uncontroversial.
[51] Sergeant David Crampton was working in the Primary Response Unit when he received a radio call at 9:02 a.m. on October 25, 2022 regarding a stabbing at the shelter. He arrived on site about one minute later and attended to Mr. James. He removed Mr. James' hoodie and observed three puncture wounds on his lower right back, upper left shoulder area and right-side rib area. The interaction was captured on Sgt Crampton's body-worn camera.
[52] PC Kathleen File also attended at the shelter on October 25, 2022. She was asked to stand guard until Forensic Investigation Services ("FIS") arrived. PC File received the knife from Andreas and then gave the knife to DC Johnston from FIS.
[53] PC File also attended the hospital where Mr. James was. PC File took photographs of Mr. James' injuries. There were four wounds to his torso area, which had all been stapled by the time she arrived. Two of the wounds were on the right side of Mr. James' body, one near his lower flank area and one above his waist. The other two wounds were on the left side, one on his back and one beside the armpit area. Mr. James also had cuts and abrasions to his hands, including on the inner right palm and a cut to his little finger.
[54] DC Aimee Rousseau is with FIS. She attended at the shelter and was tasked to take photographs of the scene. DC Rousseau also took photographs of the knife that had been turned over to police. The knife is a folding pocketknife with a black handle with a clip on it. The knife has a knob or metal protrusion that can be used to open and close it.
[55] The Crown did not call the complainant, Mr. James, as a witness. Mr. James has a lengthy criminal record with multiple convictions for offences including possession for the purposes of trafficking, robbery, assault, aggravated assault, and uttering threats.
Zachary Bruno
[56] Mr. Bruno was the sole witness for the defence. Mr. Bruno was approximately 18 years old when the incident took place.
[57] Mr. Bruno testified that he had come to Toronto in the spring of 2022. He was staying at a homeless shelter and looking for work and housing. He stayed at the shelter for approximately three to four months. Mr. Bruno testified that he was using the name "Anthony Evans" at the shelter because he was not proud of his situation and did not want people to know his real name.
[58] Mr. Bruno described life at the shelter as difficult but better than living on the streets. He testified that he was always on edge at the shelter because there were many people there with addiction and mental health issues. Mr. Bruno admitted that the knife in evidence belonged to him. He testified that he had the knife to protect himself because it was dangerous at the shelter and people would try to take your things by force.
[59] Mr. Bruno testified that he had been thrown out of the shelter a couple of days prior to the incident. He went back to the shelter and saw Mr. Gray, whom he had known for a couple of months. He explained to Mr. Gray that he had nowhere else to go and Mr. Gray let him stay with him until he could find something else. Mr. Bruno admitted that he knew that if you were not a resident of the shelter, you were not allowed to be there and that staff would throw you out. He understood that visitors were not allowed.
[60] Mr. Bruno testified that he knew the complainant as "Ghost" which was the name Mr. James introduced himself by and he heard other people call him. Mr. Bruno testified that he knew who Ghost was, but that they were not friendly.
[61] Mr. Bruno testified that he had seen Mr. James selling drugs around the shelter, including crack, fentanyl and crystal methamphetamine. Mr. Bruno testified that he knew Mr. James to be a violent drug dealer because in the two months prior to the incident, he had seen Mr. James threaten other residents. Mr. Bruno testified that "multiple times" he saw people with serious injuries and that two times, he remembered people saying that Ghost beat them up because they owed money.[1] Mr. Bruno testified that he used marijuana occasionally but that he never purchased it from Mr. James because he did not sell marijuana.
[62] Mr. Bruno testified that he knew Mr. James to carry a folding knife similar to his, because he saw Mr. James use it to cut a small piece of crack off of a bigger chunk. Mr. Bruno testified that Mr. James had never threatened him or acted violently toward him. Mr. Bruno admitted that he had never heard of Mr. James using a knife or weapon on anyone.
[63] One of the photographs of the eleventh floor of the shelter shows the door to room 1102, on which someone had written "pay up". Mr. Bruno testified that he had observed Mr. James write that on the door. He testified that the resident in that room had been beaten up by Mr. James.
[64] Mr. Bruno testified that he knew there was some kind of conflict between Mr. James and Mr. Gray, but did not know what it was about. He heard Mr. Gray speak about Mr. James in a negative way but did not recall about what. He did not think it was any of his business. On cross-examination, Mr. Bruno denied knowing whether Mr. Gray was a drug dealer and that Mr. Gray and Mr. James did not get along because they were rivals.
[65] Mr. Bruno testified that on the morning of October 25, 2022, he had been sleeping in Mr. Gray's room. Shortly before the incident, he received a phone call from a woman named Karen, who said that Mr. James was in the lobby saying there was a non-resident in Mr. Gray's room. Mr. Bruno testified that after receiving that call, he went across the hall to room 1104 because he knew that shelter staff would conduct a room check, and he did not want Mr. Gray to get in trouble. The resident of room 1104, Stacey, let him into her room after he explained the situation. Mr. Bruno testified that he thought staff would check Mr. Gray's room only and that he would not be discovered in Stacey's room.
[66] Mr. Bruno testified that when staff knocked on Stacey's door, he went to hide in the bathtub in the bathroom. Ms. Mullings then came to check the washroom and opened the shower curtain. Mr. Bruno testified that when she saw him, she told him "let's go, you know you can't be here." Mr. Bruno testified that he got up and left with her.
[67] Mr. Bruno testified that as he came around the corner from room 1104, he saw Mr. James and wanted to ask him why he told on him. Mr. Bruno testified that he followed Mr. James because wanted to know why Mr. James had done this to him when Mr. James knew that he was homeless and had nowhere to go. He wanted to know what it would "change" for Mr. James. Mr. Bruno denied wanting to confront or fight with Mr. James. When asked why he did not speak to Mr. James while he was walking away, Mr. Bruno testified that he did not want to talk to him while his back was turned. Mr. Bruno testified that he felt tired, groggy and stressed but that he was not angry with Mr. James.
[68] Mr. Bruno testified that he had nothing in his hands as staff walked him out of the room and into the elevator area. He testified that his knife was clipped onto the back waistband of his shorts, where he usually had it.
[69] Mr. Bruno testified that as soon as he turned the corner into the front hallway, Mr. James turned around and saw him. Mr. James started to walk in his direction as Mr. Bruno continued to walk toward him. Mr. Bruno testified that the gap between them closed within a second. Mr. Bruno testified that neither he nor Mr. James said anything when they approached each other. He did not see anything in Mr. James' hands.
[70] Mr. Bruno testified that the fight began in the hallway, right in front of Mr. Gray's room, room 1103. Mr. Bruno testified that when he was about to ask why Mr. James had told on him, Mr. James punched him in the face. Mr. Bruno testified that he was terrified and felt dizzy after Mr. James hit him the first time and that his slippers flew off after the first punch. Mr. James then punched him again three to four more times. Mr. Bruno testified that he was about to fall on the ground but the wall was there, so he was against the wall. Mr. Bruno testified that he did not punch Mr. James a single time.
[71] Mr. Bruno testified that Mr. James grabbed him by the sweater and was pushing him against the wall. Mr. Bruno testified that Mr. James appeared very angry. Mr. Bruno wanted it to stop, so he took his knife out. He was trying to push Mr. James off of him with his left hand while opening the knife with the thumb of his right hand when Mr. James threw him to the ground. Mr. Bruno testified that he did not intend to use the knife but that he meant to show Mr. James the knife so that he would stop hitting him.
[72] Mr. Bruno testified that after Mr. James threw him on the ground, Mr. James punched him in the head. He testified that Mr. James raised his arm to punch him again. Mr. Bruno testified that at this point, he tried to stab him. He did not know whether he in fact stabbed him with the knife because Mr. James was on top of him and he could not see past him. Mr. Bruno testified that everything was happening very fast and that he was just reacting and trying to protect himself because Mr. James had total control over him and he could not get away.
[73] Although the video recording shows blood visible on the back of Mr. James' hoodie, Mr. Bruno testified that he did not see it. Mr. Bruno testified that he felt terrified because even after he tried to stab Mr. James, he was not able to escape. Mr. Bruno testified that Mr. James did not say anything to indicate that he had been stabbed.
[74] Mr. Bruno could not recall how he eventually got on his feet, which was not captured by the video recording. He testified that once they were on their feet, Mr. James held onto him in a type of bear hug, trying to get behind him. Mr. Bruno was concerned that Mr. James would take him down to the ground again and that he would take the knife from him. Mr. James had his hand over Mr. Bruno's right arm so that he could not move it.
[75] Mr. Bruno testified that as Mr. James continued to push him toward the rear hallway, he tried to get the knife from him. Mr. James eventually flipped him to the ground, which terrified Mr. Bruno. Mr. James then punched Mr. Bruno in the face, and the knife flew from his hand. Mr. Bruno testified that it felt like Mr. James punched him as hard as he was able. After Mr. James pushed Mr. Bruno into the elevator doors, Mr. Gray intervened and Mr. James backed off.
[76] Mr. Bruno explained, while viewing the video recording, that when he moved forward again, he was looking for his knife. He denied trying to re-engage with Mr. James. He explained that he wanted his knife because it was the only thing he had to protect himself and he wanted to get his knife back and leave. At some point, he saw the knife on the floor but had to back off because he could not get it. He later saw Ms. Maitera put her foot on the knife.
[77] Mr. Bruno testified that after the altercation, he went back to the front hallway to retrieve his slides. He then went down the stairs to the main floor and left the shelter to go to Scarborough Town Centre. He denied that any of the shelter staff told him to stay because the police had been called.
[78] On cross-examination, Mr. Bruno admitted that he caused the injuries to Mr. James. He testified that he did not want to hurt him but he felt he had no choice to get Mr. James off of him. Mr. Bruno admitted that he knew that if he stabbed someone with a blade the length of his finger, it would cause an injury of equivalent depth. Mr. Bruno admitted that he had no major injuries as a result of the altercation and that he did not go to a hospital or doctor for treatment.
Credibility and Reliability
[79] Mr. Bruno had a detailed recollection of the incident. His testimony about being discovered in room 1104 is consistent with that of Ms. Maitera and Ms. Mullings.
[80] However, certain aspects of Mr. Bruno's testimony are inconsistent and raise concerns about his credibility. Mr. Bruno testified that he was feeling tired and groggy that morning, because he had been woken up early and had to change rooms. Yet, Mr. Bruno testified to specific and precise thought processes to explain certain of his actions during the course of the incident. First, Mr. Bruno testified that he followed Mr. James into the hallway because he wanted to ask Mr. James why he told staff that he was staying there. Second, he also testified that he did not take his knife out to use it, but only to show Mr. James that he had a knife. The two thought processes also undermine his claim of being tired and groggy.
[81] In my view, neither of those explanations for his actions are credible. I do not accept Mr. Bruno's explanation that he followed Mr. James into the hallway as Mr. James was leaving the elevator area only to ask Mr. James why he told staff that he was there. Given Mr. Bruno's description of Mr. James as a violent drug dealer, and his knowledge that he had beat up multiple people at the shelter, it does not make sense that Mr. Bruno would pursue Mr. James simply to ask him why he told on him. In any event, it was more of a challenge than a question. It was highly unlikely that Mr. James would provide a meaningful answer to Mr. Bruno. Moreover, Mr. Bruno knew that he had previously been required to leave the shelter and that non-residents were not permitted in the building, as evidenced by the fact that he was fully compliant when Ms. Mullings told him he had to leave. Knowing Mr. James' reason for telling on him would not have changed the outcome.
[82] Moreover, at no time did Mr. Bruno ask Mr. James why he told staff he was there. I do not accept Mr. Bruno's explanation that he did not ask the question because he did not want to speak to Mr. James while his back was to him and because there was insufficient time before Mr. James hit him. In the time it took for the two men to walk toward each other, Mr. Bruno could have easily asked "why did you tell on me?" If knowing the answer was important enough for Mr. Bruno to pursue Mr. James, a violent drug dealer who was attempting to leave, it would have made more sense to simply ask the question. While Mr. Bruno testified that that he was not angry about what Mr. James did, he admitted that he was stressed out about having nowhere to go.
[83] Similarly, I do not find it credible that Mr. Bruno took out his knife only to show it to Mr. James. Knowing what Mr. Bruno knew about Mr. James, it was more likely that Mr. James would try to take the knife from Mr. Bruno, as he tried to do later in the altercation or that Mr. James would take out the knife that Mr. Bruno believed he always carried. Taking out the knife was not going to de-escalate the dispute or permit Mr. Bruno to leave. Mr. Bruno took out his knife to use it.
[84] In addition, I do not find it credible that Mr. Bruno did not know whether he managed to stab Mr. James. Although Mr. James showed no signs of being injured, and in fact continued to fight and grab Mr. Bruno after being stabbed, based on the extent of the injuries to Mr. James, Mr. Bruno would have felt some resistance when he stabbed Mr. James and withdrew the knife to stab him again. It would not be the same sensation as stabbing the air.
[85] My finding regarding Mr. Bruno's credibility is also based on his very detailed recollection of certain evidence that he gave such as having observed Mr. James write "pay up" on the door of a room on the eleventh floor and Mr. James' girlfriend, Precious, telling him that Mr. James slapped her. When asked for a physical description of Precious, Mr. James could not provide a single detail, including her race or skin colour. In my view, Mr. Bruno's recollection was selective and self-serving.
[86] In making my credibility finding, I place no reliance on Mr. Bruno's limited criminal record as a youth.[2] While he has convictions for two offences of dishonesty, including robbery, given that he was a youth when those offences were committed, I find they are of limited relevance in determining his credibility in this proceeding.
[87] Given my concerns about Mr. Bruno's credibility, I do not rely on his evidence unless it is corroborated by the video recording or other witnesses' testimony.
Findings
[88] After careful consideration of the totality of the evidence, I find as follows.
[89] In my view, Mr. Bruno either impulsively followed Mr. James because he was angry that Mr. James was the reason he was being escorted out of the shelter or because he intended to confront Mr. James. He did not say anything while Mr. James walked away or as they approached each other because he wanted to confront him face-to-face. While he knew Mr. James to be larger and stronger than him, as well as violent, Mr. Bruno also knew that he himself was armed with a knife.
[90] On the video recording, when Mr. Bruno followed Mr. James, he takes his left hand out of his pocket and moves both hands in front of his body. Mr. Bruno denied that it was then that he took his knife out of his left pocket and transferred it to his right hand. Mr. Bruno testified that he may have been pulling his shorts up. From the positioning of his hands, which are lower on his body, it is highly unlikely that he was pulling his shorts up. However, on the video recording, Mr. Bruno's left hand remained empty after he took it out of his pocket. He could not have transferred anything to his right hand. As a result, I find that he did not yet have the knife in his hand when he went around the corner.
[91] While the beginning of the fight is not captured by the video recording, in my view, Mr. Bruno instigated the altercation. This is not to say that Mr. Bruno threw the first punch or that he grabbed Mr. James first, which no one observed. However, he followed Mr. James in a swift and decisive manner and did not saying anything to indicate that he simply wanted to speak with him, leading to a confrontation. Both Ms. Maitera and Ms. Mullings testified that Mr. Bruno essentially went after Mr. James. Mr. James responded accordingly when he turned around ready to defend himself.
[92] I do not accept Mr. Bruno's evidence that Mr. James turned around in the hallway and attacked Mr. Bruno unprovoked. According to Mr. Bruno's testimony, there was no dispute between them, no prior dealings or history. Mr. James was not randomly violent but violent toward people who owed him money for drugs. Mr. Bruno's evidence was that he did not buy drugs from Mr. James. He only used marijuana from time to time and Mr. James did not sell marijuana.
[93] As discussed earlier in these reasons, at no time before or during the fight did Mr. Bruno attempt to ask Mr. James why he told on him. Mr. Bruno testified that neither he nor Mr. James said anything to each other during the fight. Ms. Maitera also did not recall either man say anything to the other. If the answer to the question was important enough to follow someone he knew to be a violent drug dealer, it would have made sense to ask it at some point.
[94] It is difficult to say what happened during the 13 second portion of the altercation that was not captured by the video recording. While Ms. Maitera and Ms. Mullings both testified that the two men were fighting and wrestling with each other, they could not say who struck whom or who stabbed whom. For the reasons given earlier, I do not accept Mr. Bruno's account. The Crown did not call Mr. James as a witness, leaving an evidentiary gap.
[95] What happens subsequently is captured by the video recording and has been described earlier in these reasons. I will make more specific findings when I consider the issue of self-defence.
[96] Mr. Bruno testified that he was stabbing aimlessly with his knife and that he did not know that he had stabbed Mr. James. However, he admitted in cross-examination that he knew that stabbing someone with a knife could cause a serious injury. Mr. Bruno admitted that he stabbed Mr. James to try to get away from him. Mr. James sustained four wounds that ranged from an inch to an inch and a half in length and were closed with staples at the hospital.
[97] Based on the evidence, I find that Mr. Bruno applied force to Mr. James by stabbing him four times with a knife and that he intentionally applied the force. It is apparent that Mr. James did not consent to being stabbed by Mr. Bruno and that Mr. Bruno knew that Mr. James did not consent. Based on the injuries to Mr. James, which required treatment at the hospital, the force that Mr. Bruno applied wounded Mr. James.
Has the Crown demonstrated beyond a reasonable doubt that Mr. Bruno did not act in self-defence?
The Applicable Principles
[98] Section 34 of the Code sets out the pre-conditions for the defence of self-defence:
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.
[99] In R. v. Khill, 2021 SCC 37, 409 C.C.C. (3d) 141, the Supreme Court of Canada confirmed the three elements of a successful self-defence claim: (1) the "catalyst": the accused person must reasonably believe that force is being used against him or another person; (2) the "motive": the accused person's subjective purpose for responding to the threat must be to protect himself or another; and (3) the "response": the accused's act must be reasonable in the circumstances: Khill, at para. 37.
[100] The Crown initially took the position that there was no air of reality to self-defence. While the Crown did not make this argument in closing submissions, I address it out of an abundance of caution.
[101] The air of reality test is not an onerous one to meet: R. v. Barrett, 2022 ONCA 355, 162 O.R. (3d) 425, at para. 61. A defence has an air of reality if a properly instructed jury acting reasonably could acquit the defendant based on the defence: R. v. Cinous, 2002 SCC 29, 162 C.C.C. (3d) 129, at para. 2.
[102] In other words, is there evidence upon which a properly instructed jury acting reasonably could be left with a reasonable doubt about whether Mr. Bruno acted in self-defence? In my view, the answer is yes. Based on the video recording alone, Mr. Bruno stabbed Mr. James after being punched in the head, while being held to the ground. Mr. Bruno struggled but was completely unable to get out from under Mr. James. Moreover, even after the stabbing, Mr. James continues to dominate Mr. Bruno: he holds Mr. Bruno in a "bear hug" and renders his arm incapable of moving, he shoves Mr. Bruno into the wall and then an elevator door, and he is eventually able to disarm Mr. Bruno by punching him. Mr. Bruno was quite at the mercy of someone heavier, stronger and better able to fight than him.
[103] There is therefore an air of reality to the defence of self-defence and the Crown bears the burden of disproving self-defence beyond a reasonable doubt. To satisfy its burden, the Crown is required to disprove only one of the three elements in s. 34(1): Khill, at para. 185.
Did Mr. Bruno have reasonable grounds to believe that force was being used or threatened against him by Mr. James?
[104] The Crown argues that Mr. Bruno did not have reasonable grounds to believe that force was being used or threatened against him because, before the altercation, Mr. James was walking away and Mr. Bruno was safe in the company of three shelter staff. The Crown further submits that there was no threat or use of force until Mr. Bruno started the fight with Mr. James.
[105] I agree that Mr. James posed little or no threat to Mr. Bruno when Mr. Bruno first walked into the elevator area. Mr. James was clearly leaving the area with his back to Mr. Bruno. At that stage, Mr. Bruno lacked reasonable grounds to believe that Mr. James was using or threatening to use force against him.
[106] However, this changed once the fight began. Once Mr. James was aware that Mr. Bruno was following him, he turned around ready for a fight. There was no exchange or words or verbal argument. The fight broke out quickly and with little lead up. Mr. James quickly got the upper hand. He pinned Mr. Bruno down and punched him in the head. Mr. Bruno testified that when Mr. James struck him in the head, he felt terrified and dizzy. Mr. Bruno testified that he was trying to get out from under Mr. James but was unable to because Mr. James was heavier and stronger than him.
[107] Mr. Bruno's account of the altercation after the point when Mr. James pinned him to the ground, is supported by the video recording. Mr. James was on top of Mr. Bruno in the hallway. While their whole bodies cannot be seen, Mr. Bruno's legs are visible flailing in the air and Mr. James' feet are seen bracing against the wall. Mr. Bruno is seen moving and struggling and is not able to get out from under Mr. James for at least 10 seconds. Mr. James' arm is visible punching Mr. Bruno in the head area. He appears to punch him two times before Mr. Bruno stabbed him. As a result, when Mr. Bruno stabbed Mr. James, he had reasonable grounds to believe that force was being used against him.
[108] The Crown further argues that it is not credible that Mr. Bruno was afraid that Mr. James would harm him because he failed to retreat at any point, and specifically, after Mr. James no longer had a hold on him.
[109] In my view, once the physical fight started, Mr. Bruno was unable to retreat because Mr. James was either holding onto him or holding him down. Mr. Bruno's first opportunity to retreat was after Mr. Gray intervened. That moment, however, was after Mr. Bruno had stabbed Mr. James and does not negate Mr. Bruno's grounds for believing that force was being used against him before and during the stabbing. Moreover, at that stage, the circumstances had changed. Mr. Bruno was no longer fighting Mr. James on his own because Mr. Gray had intervened and caused Mr. James to back off.
[110] In my view, given that Mr. Bruno stabbed Mr. James when he was on top of him and punching him in the head, Mr. Bruno had reasonable grounds to believe that force was being used against him by Mr. James. As a result, the Crown has not demonstrated this element beyond a reasonable doubt.
Did Mr. Bruno stab Mr. James for the purpose of protecting himself from the use or threat of force by Mr. James?
[111] As noted above, this element is subjective.
[112] Mr. Bruno testified that he stabbed Mr. James while he was pinned to the ground and after Mr. James punched him in the head. He testified that he was terrified as to what Mr. James would do to him. The video recording supports Mr. Bruno's testimony as to what was happening when he stabbed Mr. James. He was unable to hit Mr. James or to get out from under him. In my view, Mr. Bruno stabbed Mr. James to stop him from beating him up, in other words, to protect himself.
[113] Despite being stabbed, Mr. James continued to dominate Mr. Bruno. He was able to hold him in a bear hug, pin him against the wall and throw him into the elevator doors. Even stabbing Mr. James did not significantly hinder him or give Mr. Bruno much of a physical advantage. The altercation was only broken up when Mr. Gray intervened. The evidence is that Mr. Bruno and Mr. Gray were friends and that Mr. Gray had some kind of dispute with Mr. James. Had Mr. Gray not intervened, the fight may have continued. After Mr. Gray intervened, Mr. James backed off, knowing that he was outnumbered. I refer to this evidence because it supports Mr. Bruno's testimony that he was terrified and shows that Mr. James continued to pose a serious threat to him.
[114] As noted earlier in these reasons, if Mr. Bruno had his knife out when he followed Mr. James to the front hallway, this would support a finding that Mr. Bruno had intended to stab Mr. James from the outset and did not do so only to protect himself. However, the video recording shows that Mr. Bruno's left hand was empty when he took it out of his pocket. He could not have transferred the knife to his right hand at that time.
[115] Accordingly, the Crown has thus failed to prove beyond a reasonable doubt that Mr. Bruno did not stab Mr. James for the purpose of protecting himself from the use or threat of force by Mr. James.
Was Mr. Bruno's use of force reasonable in the circumstances?
[116] Section 34(2) of the Criminal Code sets out a non-exhaustive list of factors to consider in assessing the reasonableness of the accused's act:
(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 accused's role in the incident;
(d) whether any of the people involved used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of those involved in the incident;
(f) the nature, duration and history of any relationship among the people involved in 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 among the people involved in the incident;
(g) the nature and proportionality of the accused's response to the use or threat of force; and
(h) whether the accused's act was in response to a use or threat of force that he knew was lawful.
[117] Each factor informs "the overall reasonableness of the accused's actions in the circumstances": Khill, at para. 42. No one factor is dispositive; rather, the consideration of the factors is a "global, holistic exercise": Khill, at para. 69.
The nature of the force or threat
[118] When Mr. Bruno entered the elevator area, he was being accompanied by three staff. At the direction of Ms. Mullings, Mr. James was leaving the elevator area, with his back to Mr. Bruno. At the time, Mr. Bruno was safe and had nothing to fear from Mr. James. There was no imminent threat of a use of force.
[119] At this stage, Mr. Bruno could simply have let Mr. James depart. Had he done so, the altercation might not have occurred. I have found earlier in these reasons that it was Mr. Bruno who went after Mr. James. Even after following Mr. James, Mr. Bruno did not say anything to him, despite his purported purpose of asking Mr. James why he had told on him. Had Mr. Bruno said something that indicated his intent, it might have been possible to avoid an altercation.
[120] It is not clear what happened during the 13 seconds the two men were out of the camera's range. In my view, while I do not accept Mr. Bruno's evidence, based on what took place as captured by the video recording, it is unlikely that Mr. Bruno ever had the upper hand. Once the two men were engaged in a physical altercation, the nature of the force employed by Mr. James was significant and Mr. Bruno quickly found himself on the ground with Mr. James on top of him, punching his head. The head is a vulnerable part of the body, injury to which could lead to serious consequences. Mr. Bruno struggled but was unable to get out from under Mr. James. The nature of the force or threat was therefore significant.
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
[121] I am mindful that in assessing this factor, it is necessary to consider the speed with which the situation unfolded, and that Mr. Bruno had little time to consider his options. People in stressful and dangerous situations do not have time for subtle reflection: R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7.
[122] Again, it is unclear exactly how Mr. James was able to get Mr. Bruno to the ground. However, once in that position, Mr. Bruno struggled but was unable to get Mr. James off him. Mr. James punched Mr. Bruno in the head a couple of times. It is relevant that from Mr. Bruno's perspective, the punches were speedy and continuous. I accept Mr. Bruno's testimony that he felt terrified, which would be a reasonable response to such an attack, as captured by the video recording.
[123] The use of force was not only imminent but ongoing. From the moment the altercation started, de-escalation was not an available option. Mr. Bruno was unable to strike back, nor was he able to get out from under Mr. James. At the point when Mr. Bruno stabbed Mr. James, he was completely dominated by him, and Mr. Bruno did not have an opportunity to retreat until Mr. Gray intervened.
[124] In my view, the reasonably available options to Mr. Bruno were limited. While I have significant concerns about Mr. Bruno introducing a knife into a physical fight, he sustained at least two blows before using the knife. It is unlikely that Mr. Bruno speaking to Mr. James, for example to tell him that he had a knife or to ask him to stop hitting him, would have had any impact.
The person's role in the incident
[125] The phrase "person's role in the incident" is to be interpreted broadly, consistent with Parliament's intent: Khill, at para. 74. "'[T]he person's role in the incident' refers to the person's conduct — such as actions, omissions and exercises of judgment — during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances": Khill, at para. 74. The "phrase 'role in the incident' encompasses not only provocative or unlawful conduct but also hotheadedness, the reckless escalation of risk, and a failure to reasonably reassess the situation as it unfolds": Khill, at para. 84.
[126] Where a defendant had no prior interaction with the victim and was subjected to an unprovoked assault, the absence of the defendant's role in the confrontation may militate strongly in favour of the defendant: Khill, at para. 101 (citations omitted).
[127] As noted earlier in these reasons, I do not accept Mr. Bruno's explanation that he followed Mr. James to ask him why he told on him. Mr. Bruno followed Mr. James to confront him, whether verbally or physically. Even if Mr. Bruno intended only to confront Mr. James verbally, given his evidence about Mr. James, he ought to have known that this would be a provocative act. In my view, Mr. Bruno was reckless in following Mr. James and approaching him without saying anything to indicate his intent for following him. Mr. Bruno himself admitted that it was not a smart decision. Whether Mr. Bruno's decision to follow Mr. James was impulsive or considered makes little difference. The safest course would have been to let Mr. James leave. Ms. Mullings "shooed" Mr. James away as she approached the elevator area with Mr. Bruno to avoid precisely this type of situation.
[128] Mr. Bruno elevated the level of risk when he took out his knife. Until that point, it had been a physical altercation. While the consequences could have been significant, the likelihood of grievous harm increased when Mr. Bruno produced the knife. As discussed earlier in these reasons, I do not accept Mr. Bruno's explanation that he only took out the knife to show Mr. James that he had it. In addition, he did not warn Mr. James that he had a knife before taking it out.
Whether any of the people involved used or threatened to use a weapon
[129] Mr. Bruno was armed with a knife and used it to stab Mr. James. There is an absence of evidence as to whether Mr. James was armed. At no point during the incident did Mr. James produce a weapon of any kind. Mr. Bruno testified that he believed that Mr. James always carried a knife because he had seen him use it to cut crack cocaine. Mr. Bruno admitted, however, that he had not heard of Mr. James using the knife to injure anyone.
The size, age, gender and physical capabilities of those involved in the incident
[130] At the time of the incident, Mr. Bruno was just over 18 years old. He was approximately five feet and nine inches tall. Mr. Bruno testified that at the time, he weighed approximately 130 pounds.
[131] In the video recording, it is clear that Mr. Bruno is a few inches taller than Mr. James but that he is significantly more slender. Mr. James is larger in size, heavier and more muscular. The manner in which Mr. James was able to take Mr. Bruno to the ground suggests that Mr. James was stronger than Mr. Bruno, at least in terms of physical fighting.
The nature, duration and history of any relationship among the people involved in the incident
[132] Mr. Bruno testified that he knew Mr. James from having lived at the shelter. They knew each other for approximately two months. Mr. Bruno knew Mr. James to be a drug dealer who carried a knife and who was violent toward residents who failed to pay him. Mr. Bruno testified that he had seen at least two people at the shelter who told him they had been beaten up by Mr. James.
[133] Mr. Bruno testified that there was no dispute between Mr. James and himself. He was aware that Mr. Gray and Mr. James did not get along, based on things that Mr. Gray had said but he did not know the reason. He testified that he thought that it was none of his business.
[134] The absence of a relationship could increase the perceived risk of a threat to a reasonable person, especially considering the unanticipated nature of the physical violence. In this case, Mr. Bruno knew enough about Mr. James and his reputation that the nature of the physical violence would not have been unanticipated.
Any history of interaction or communication among the people involved in the incident
[135] Mr. Bruno knew who Mr. James was but they were not friends. There was no dispute between them. Mr. Bruno denied that Mr. Gray and Mr. James were rival drug dealers and that he was loyal to Mr. Gray.
The nature and proportionality of the person's response to the use or threat of force
[136] The Crown argues that Mr. Bruno used excessive force and that he could have fought back without resort to stabbing Mr. James.
[137] The defence argues that Mr. Bruno's use of force was proportionate to the threat he faced and that he was not required to allow himself to be punched repeatedly by Mr. James and potentially suffer serious harm.
[138] I have described the physical fight and stabbing earlier in these reasons. I have serious concerns about Mr. Bruno introducing a knife into a physical altercation, which significantly escalated the risk of grievous injury to both parties. Moreover, I do not believe Mr. Bruno's evidence that he took his knife out only to show it to Mr. James. Shortly after taking out the knife, Mr. Bruno stabbed Mr. James with force four times.
[139] On a strict proportionality analysis, I would be inclined to find that Mr. Bruno's response was disproportionate to the use of force by Mr. James. However, there is an absence of evidence as to what happened during the portion of the altercation that took place outside the range of the video camera. Because of my finding in relation to Mr. Bruno, I do not accept Mr. Bruno's evidence as to what happened. Neither Ms. Mullings nor Ms. Maitera recalled the details of that portion of the fight. While Mr. James could have testified as to what happened during that portion of the fight, the Crown did not call him as a witness.
[140] Moreover, even after being stabbed, Mr. James continued to fight and dominate Mr. Bruno, seemingly unaware of his injuries. Even if Mr. Bruno was able to punch or shove Mr. James in the portion of the fight that was not captured on video, it is more likely that Mr. James had the upper hand.
[141] There is an absence of evidence to suggest that in the circumstances, Mr. James would have stopped punching and grabbing Mr. Bruno if, for example, Mr. Bruno had (i) fought back without resort to the knife, (ii) simply threatened him with the knife, or (iii) stabbed him fewer times. As a result, in the circumstances, I cannot find that Mr. Bruno's use of force was excessive.
Whether the person's act was in response to a use or threat of force that he knew was lawful
[142] In the circumstances, this factor does not apply.
Overall Assessment of Reasonableness
[143] The third element of self-defence is an overall consideration of the reasonableness of Mr. Bruno's act in the circumstances. The Supreme Court held in Khill, at para. 2, that "self-defence demands a broader societal perspective. Consequently, one of the important conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances." As further articulated by the Court in Khill, at para. 62, "the reasonableness inquiry under s. 34(1)(c) operates to ensure that the law of self-defence conforms to community norms of conduct."
[144] Section 34(2) states that in assessing reasonableness "the court shall consider the relevant circumstances of the person, the other parties and the act". The "circumstances" are not simply those that existed between Mr. Bruno and Mr. James but include the non-exhaustive list of factors in s. 34(2) and other relevant factors such as the location of the incident, the time of the incident, and the other parties who were present: R. v. Owusu, 2022 ONCJ 667, at para. 72.
[145] The altercation took place in a homeless shelter populated by marginalized individuals, many with addiction or mental health related issues. A number of individuals came out to the hallway and elevator area during the course of the fight. One of the residents, Mr. Gray, intervened. Although this helped end the physical fight, the situation could have escalated. Shelter staff acted quickly in chaotic circumstances to contain the situation: Ms. Mullings ran for help, Ms. Maitera stepped on and then picked up the knife, which Mr. Bruno had tried to retrieve, and Andreas intervened and led Mr. James away from the fight. The whole situation could have been avoided if Mr. Bruno had not sought to confront Mr. James.
[146] I have difficulty finding that Mr. Bruno's actions, of stabbing Mr. James during a physical fight, accords with community norms of conduct. At the same time, the community would not expect Mr. Bruno not to respond or to continue to subject himself to a serious physical beating by a stronger man. Moreover, Mr. Bruno had little opportunity to consider or weigh his options. Based on the factors considered above, and the totality of the circumstances, I am unable to conclude beyond a reasonable doubt that Mr. Bruno's use of force was unreasonable in the circumstances.
[147] On the W.(D.) analysis, I do not believe Mr. Bruno's evidence, however, it leaves me with a reasonable doubt.
[148] For the foregoing reasons, the Crown has failed to prove beyond a reasonable doubt that self-defence does not apply.
Conclusion
[149] For all the foregoing reasons, I find the defendant, Zachary Bruno, not guilty of aggravated assault.
"Nishikawa J."
Released: October 24, 2025
Footnotes
[1] These hearsay statements are not entered for the truth of their contents but for the fact of those statements having been made to Mr. Bruno and his state of mind.
[2] The defence's Corbett application was dismissed for oral reasons given at trial.