R v L’Hirondelle, 2016 ABQB 72

Court of Queen ’ s Bench of Alberta Citation: R v L’Hirondelle, 2016 ABQB 72 Date: 20160204 Docket: 140656984Q2 Registry: Red Deer Between: Her Majesty the Queen Crown - and - Victor Burt L’Hirondelle Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] The Court heard the trial of the matter in which the Crown has charged Victor Burt L’Hirondelle (the “Accused”) with the following:

That he on or about the 12 th day of June, 2014 at or near Red Deer in the Province of Alberta, did unlawfully wound, maim, disfigure or endanger the life of Justus James Cutler, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada That he on or about the 12th day of June, 2014 at or near Red Deer in the Province of Alberta, did carry a weapon, a knife, for the purpose dangerous to the public, contrary to

section 88 of the Criminal Code of Canada [ 2 ] The charges arise from what began as a fist fight between the Accused and Justus James Cutler (the “Victim”). During the fight, the Accused stabbed the Victim in the ribs, which resulted in the Victim suffering a punctured lung. The Victim was hospitalized for 3 days. More recently, the Victim has suffered from post-traumatic stress disorder. The Accused concedes the physical injuries that the Victim suffered and that the same resulted from the aggravated assault that he committed on the Victim.

What is at issue is whether the Accused was defending himself when he stabbed the Victim. [ 3 ] The Accused provided a video-taped statement to RCMP Constable Dewald Steyn on June 12, 2014, after the Accused was arrested (“Accused’s Statement”). The Accused’s Statement was played in open court. As well, this Court received a transcript of the Accused’s Statement. II. Background [ 4 ] In the early morning hours of June 12, 2014, a fight took place in a school yard in Red Deer, Alberta.

This was a planned event in which the Accused was going to fight an individual named “Andrew” as a result of a Facebook conversation that took place among Andrew, the Accused, the Victim, and others. During this “conversation,” the Victim advised the Accused that he had broken the jaws of 2 others and that he would break the Accused’s jaw as well. The Accused was up for the challenge so he invited them to get into a fight because “those kind of people” needed to be “taught a lesson”: Accused’s Statement p 6, ll 164-165. [ 5 ] Andrew, along with the Victim and 2 others attended the prearranged location.

The Victim attended at Andrew’s request. The Victim had no weapons. One of the other 2 individuals who accompanied Andrew and the Victim had a knife that he always carried. Sometime between 15 and 30 minutes later, the Accused showed up. As he was approaching Andrew, the Victim and the 2 others, a person who accompanied the Accused to the fight was trying to talk him out of fighting. In his statement, the Accused said, “She was just there to more or less try to talk me out of it on the way, but I was more mind set on teaching them a lesson than anything else”: Accused’s Statement p 8, ll 273-274.

As the Accused was approaching the group, the Victim and the 2 others described the Accused’s demeanour as being “aggressive.” One of the witnesses said that as the Accused approached them he was screaming that he was “on drugs and was crazy.” The Accused confirmed that he said these things, both in the Accused’s Statement and during his testimony. He, however, denies that he had consumed alcohol or drugs on the night in question. [ 6 ] The Victim went along with Andrew, as Andrew was concerned that he might get stabbed. It appeared to this Court that the other 2 individuals just came along.

They did not intend on getting involved with the fighting. None of the witnesses, including the Victim, said that they intended on “ganging up” on the Accused. It appeared to this Court that the unwritten rule was that the fist fights would be one-on-one. In fact, when the Victim was asked whether he was prepared to assist Andrew, he said emphatically, “never.” When one of the witnesses was asked whether the fights were one-on-one, he replied by saying “absolutely.” [ 7 ] The Accused asked for Andrew, who stepped forward. A fist fight broke out between Andrew and the Accused, which lasted a very short time.

The Accused got the better of Andrew by knocking Andrew to the ground. In his statement to the police, the Accused described his fight with Andrew as follows: So then we just started fighting, like I mean I grabbed, we, he grabbed me and we grabbed each other and we just started fist feeding each other shots. And then I gave him a few good shots, he dropped, and then I just kept going and he, he had his jacket over his head and I just kept going and then finally I was like you know what, I’m done with you. He got up, he ran to the other side of the bench.

Accused’s Statement p 12, ll 401-405. [ 8 ] The Accused backed away from Andrew, without having to be pulled off. After that, the Accused turned his attention to the Victim. He came at the Victim aggressively and threw a punch, which the Victim dodged. The Victim punched the Accused, then grabbed the Accused by the t-shirt and started punching him. The Victim punched the Accused many times until the Accused fell to his knee. The Accused testified that he did not fall to his knee. The Victim still had hold of the Accused’s shirt when the Accused took a swing at the Victim and hit him in the ribs.

The Victim thought it was just a punch until he realized that the Accused had stabbed him. He then stepped back and panicked. The Accused then stood up and ran away. The fight between the Accused and the Victim lasted only about 10 or 20 seconds. One of the witnesses saw the Accused reach into his pants and pull out the knife. [ 9 ] The Victim thought he had stopped punching the Accused once the Accused was on his knee, as the Victim thought that he had “dazed” the Accused and that the fight “was done.” The other 2 witnesses said that the fight continued until the Accused stabbed the Victim.

None of the witnesses, including the Victim, heard the Accused say to the Victim “enough, I’m done, I’m done.” [ 10 ] The Victim did not see the Accused brandishing any weapons. He testified that it was too dark to see the knife. One of the other witnesses said that as the Accused was approaching them, he showed them a knife that he had stashed under his shirt and tucked into his pants.

The Accused admitted to this action in his statement to the police, and during his testimony before this Court. [ 11 ] The Accused said that the Victim had pulled the Accused’s shirt over his head during the fight, but the Victim denied this. [ 12 ] Nothing was said by anyone during the fights. The other witnesses did not get involved in either of the fights. [ 13 ] Interestingly, in the statement that the Accused gave to the police, he said that the morning after the fight, the Victim

contacted the Accused through Facebook in a threatening manner. The Accused said to the police officer, “I’m not intimidated by him byany means”: Accused’s Statement p 7, l 207. [14] It appears from the Accused’s statement that his fight with the Victim was fairly even. He said that he and the Victim wereexchanging punches. As he put it, “… we start fist fighting and you know, we get a few good punches in and then all of a sudden, just inthe heat of the moment … I bring out the knife …” Accused’s Statement p 11, ll 391-393.

The Accused said that the Victim had pulledhis shirt over his head and kept punching: Accused’s Statement p 16, ll 575-576, p 18, ll 641-644. That is when he pulled the knife andstabbed the Victim. The Accused took the knife “Just to kinda [intimidate] them a little bit more, make ‘em feel a little bit more scared”:Accused’s Statement p 17, l 590. He, however, had not planned on using it: Accused’s Statement, p 18, l 619. The Accused pulled hisshirt off before he stabbed the Victim: Accused’s Statement p 18, ll 646-647. [15] The Accused does acknowledge that the Victim was getting the upper hand in the fight.

He said the following: No, like he, he was, he was beating me pretty bad, like, I mean … he, he had me to the point where I was like you know, if I didn’t dosomething, I knew I was gonna be laying there pretty badly beat. Accused’s Statement, p 20, ll 684-686. III. Discussion [16] As mentioned earlier, the issue in this case is whether this Court should find the Accused not guilty of the aggravated assaultcharge based on his argument that he was defending himself. The applicable

section of the Criminal Code is

section 34, which reads asfollows: 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 madeagainst 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 thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe 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 offorce; (

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 andthe 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. [17] It is the Crown’s burden to prove beyond a reasonable doubt that the Accused did not act in self-defence. Said differently, theAccused is not required to prove that he acted in self-defence. [18] The Crown must prove beyond a reasonable doubt that the Accused does not meet each of the conditions outlined in CriminalCode s 34(1). If any one of the conditions outlined in Criminal Code s 34(1) is absent, the Accused cannot use the defence of self-defence.

If all of those conditions are present, this Court must acquit the Accused of aggravated assault. [19] Without deciding the substantive aspects of self-defence, this Court must first consider whether the Accused’s argument thathe was acting in self-defence has an air of reality. The air of reality test is well-known and is as follows: The term “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, areasonable jury properly charged could have acquitted.

R v Osolin, (SCC), [1993] 4 SCR 595 at 682. [20] In R v Kong, 2005 ABCA 255 at paras 175-176, 371 AR 90, 53 Alta LR (4th) 25, Wittmann JA, as he then was said thefollowing:

Applying the air of reality test requires a trial judge to consider the totality of the evidence, and assumes the evidence relied upon by theaccused to be true. The evidential foundation can be found or inferred from the testimony of the accused or any witnesses, the factualcircumstances of the case, or any other evidence on the record. The trial judge is not to make findings of fact, weigh evidence,determine credibility, draw determinate inferences, or even assess the likelihood of success.

In the absence of direct evidence, however, the trial judge is required to make a “limited weighing” in the sense of assessing whether theevidence is reasonably capable of supporting the inferences that the accused would ask the jury to draw ... [Emphasis added, citation excluded]. [21] Wittmann JA’s reasons were in dissent. However, on appeal to the Supreme Court of Canada, the court allowed the appealand said the following: This appeal comes to us as of right on the question of whether the defence of self-defence under s. 34(1) of the Criminal Code, R.S.C.1985, c.

C-46, ought to have been put to the jury for its consideration. We agree with the conclusion reached by Wittmann J.A. in hisdissenting opinion on this point ...

R v Kong, 2006 SCC 40 at para 1, [2006] 2 SCR 347. [22] The evidence that the Accused provides, if true, is of a nature that a reasonable jury properly charged might acquit him.Again, this Court must emphasize that it is not ruling on the substantive aspects of Criminal Code s 34(1), at this stage. [23] Because this Court has found that there is an air of reality to the Accused’s defence, it must consider whether the Crown hasmet its onus of proving beyond a reasonable doubt that the Accused did not act in self-defence. This is the substantive aspect of thisanalysis. [24] The Accused testified in his trial.

As mentioned earlier, this Court will analyze the Accused’s testimony only as it relates tothe defence he puts forth. The Accused’s credibility is in issue, to a certain extent, as his subjective views of the situation are of someimportance when considering the subjective aspects of Criminal Code s 34. Accordingly, when this Court analyzes the Accused’stestimony against the other evidence in this case, it must be mindful of the Supreme Court of Canada’s exhortation in R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 [W(D)].

A W(D), which has three steps: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. W(

D) at para 11. [25] The difficulty presented in this case is that it involved a consensual fist fight between two persons. In other words, by itsnature, in such an activity both combatants expected to assault the other and to be assaulted by the other. The underlying offence toaggravated assault is assault simpliciter which is contained in Criminal Code s 265(1)(a), which provides as follows: 265

(1) A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly; [Emphasis added]. [26] In R v Jobidon, (SCC), 1991 CarswellOnt 110 at para 127, [1991] 2 SCR 714, Gonthier J for the majority,placed a limitation on the consent that a person could give during the course of a fist fight, when he said the following: The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adultsintentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. [Emphasis in original]. [27] Thus, had the fist fight between the Accused and the Victim ended before the Accused stabbed the Victim, this Court doubtsthat their consent would have been vitiated. [28] Of equal importance is the statement that Gonthier J made concerning the utility of fist fights in a modern, civilized society.He said the following: Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights.

As the English Court of Appealnoted in the Attorney General’s Reference, it is not in the public interest that adults should willingly cause harm to one another without agood reason. There is precious little utility in fist fights or street brawls. These events are motivated by unchecked passion. They so oftenresult in serious injury to the participants. Jobidon at para 112. [29] This Court finds it useful to consider each of the factors outlined in Criminal Code s 34(1) individually, as the Crown mustprove beyond a reasonable doubt that one or more of them is absent to sustain the Accused’s conviction.

Its failure to prove that any one

of them is absent beyond a reasonable doubt will result in the Accused’s acquittal. A. Whether the Accused believed on reasonable grounds that the Victim was using force against him [ 30 ] The difficulty in this factor is animated by the fact that this was a consensual fist fight between 2 combatants. Both were ready to fight and, by the Accused’s own words, both were both “giving each other shots”: Accused’s Statement p 12, l 414. In other words, a reasonable person, placed in the same situation, would have concluded that force was being used against him.

He was applying equal force, but that is not the test. [ 31 ] The Victim was gaining the upper hand on the Accused. It was clear to the witnesses, and to the Victim himself, that he was gaining the upper hand. Thus, although each party was involved in the fisticuffs, and each was using force on the other, as the fight progressed and the Victim was gaining the upper hand, the Accused believed on reasonable grounds that the elevated level of force was being used against him.

Said differently, the Crown has failed to prove beyond a reasonable doubt that the Accused did not believe on reasonable grounds that force was being used against him. [ 32 ] It should be noted at this stage that there was a dispute as to whether the Victim stopped hitting the Accused when the Accused had a knee on the ground. The Accused testified that he did not have a knee on the ground, nor did either of the other witnesses testify to this. This Court finds that the Accused did not have a knee on the ground.

Nor does it find that the Victim paused after he thought that Accused was “dazed.” This was a very short fight that continued until the Accused stabbed the Victim. B. Whether the Accused stabbed the Victim for the purpose of defending or protecting himself from the use of force [ 33 ] This is not an objective test. In other words, this Court must try to ascertain the Accused’s state of mind, and determine whether he stabbed the Victim solely for the purpose of defending or protecting himself. In other words, there must be no other ulterior motive, such as revenge, to discipline or to control the Victim.

What drove the Accused to stab the Victim? [ 34 ] Some of the analysis that this Court will undertake during this portion of its analysis will meld into the third factor. Nonetheless, some of the history of this matter will assist in determining the Accused’s state of mind. He wanted to “teach them a lesson.” As well, it is important to note that he had taken a weapon with him to the fight. Although he allegedly took it to “intimidate” them in the hopes that they would not want to fight him, he wanted to fight. He did not want them to run away.

When Andrew and the Victim suggested that they postpone the fight until the next day, the Accused responded by saying, “I’m like any time’s fighting time, man. Like fighting doesn’t wait for the morning, cause they wanted to do it at the morning at Lindsay Thurber”: Accused’s Statement, p 9, ll 294-295. [ 35 ] The Accused “won” the fight against Andrew. He had no need to use the knife. The others did not come to Andrew’s aid when the Accused was beating him up. However, he was losing the fight with the Victim. There was no threat that the others were going to join in the fight, despite what he told this Court.

The others did not move, and they did not come to Andrew’s aid. The fact is, he was losing. [ 36 ] This Court finds that the Crown has proven beyond a reasonable doubt that the Accused did not stab the Victim for the purpose of defending or protecting himself from the Victim’s use of force. He did it because it was the only way he could reduce the Victim’s upper hand in the fight. As well, he was there to teach Andrew and the Victim a lesson. He taught Andrew the lesson, but he was about to fail in his teaching of the Victim.

Thus, he stabbed him. [ 37 ] Thus, the second condition for the Accused to be able to use self-defence is absent. C. Whether the Accused’s act in stabbing the Victim was reasonable in the circumstances [ 38 ] Although this Court’s analysis of the second condition determines the issue of the Accused’s use of self-defence, it will analyze the third condition, as it animates, to a certain extent, this whole matter. [ 39 ] This element involves the extent of the Accused’s response.

The question is whether the act itself, in this case the stabbing, was reasonable “in the circumstances.” Thus, the act must be viewed within the context of the circumstances. Criminal Code s 34(2) requires this Court to consider the 9 items listed in that subsection. This Court will consider each of them in turn within the context of the evidence that the parties presented to it. 1. The nature of the force [ 40 ] The nature of the force must be viewed within the context of the events that led up to the force that this Court found that the Accused says was being used against him.

It was not the force itself, but the escalating nature of the force that the Victim was using on him. The Accused was exerting, or attempting to exert, the same or equal force on the Victim. The Victim was simply getting the upper hand, so to that extent, the force was escalating. The Accused did not have a weapon, and there did not appear to this Court to be a threat that the other persons who were with the Victim had any intent to jump into the fight. By his own admission, the Accused did not feel that the Victim was trying to break his jaw.

He said the following: I was just … I mean I wasn’t really scared that I was gonna get my jaw broken because I knew I wasn’t going to because where he was

hitting me was like more like right here and stuff. Accused’s Statement, p 17, ll 582-584. The Accused was pointing to the side of his head. [ 41 ] Although this Court does not want to downplay the event, it was clear that what the Victim felt they were involved in was a simple fist fight. The Victim did not kick or knee the Accused. Nor did he even knock him down and hit him while he was down. They were, to use a pugilist expression, “toe-to-toe.” 2.

Extent to which the force was imminent and whether there were other means available to respond to the potential use of force [ 42 ] As mentioned earlier, this Court finds that the fight continued until the Accused stabbed the Victim and, up to that point, the Victim was getting the upper hand. To that extent, the force was imminent. The Accused said that he told the Victim “enough, I’m done, I’m done.” This Court accepts the testimony of the other witnesses who said that they did not hear these words. In the circumstances of this case, this Court does not accept that the Accused uttered these words.

He explained the fight he was having with the Victim several times in great detail in the Accused’s Statement and at no time did he ever say to the police officer that he uttered those words. As well, he took no other steps to convey his surrender to the Victim by raising his hands, cowering or trying some other means of retreating. From the Accused’s statement, his testimony, and his demeanour, the Accused was not about to give up. 3. The Accused’s role in the incident [ 43 ] Obviously, the Accused played an active role in the incident that led to the aggravated assault. He was the initial aggressor.

He arranged for them to meet, he armed himself with a knife, he admitted that he approached them in a “crazed manner” inviting them to fight, he showed them the knife, he “called out” Andrew and when he finished with Andrew, he “called out” the Victim. Most importantly, he was going to “teach them lesson.” [ 44 ] Once he finished with Andrew, he might have backed away inasmuch as he showed his fighting prowess. Instead, he wanted to continue fighting. He invited the Victim to fight him, and when he saw that he was going to be defeated, he used the knife on the Victim. 4.

Whether any party to the incident used or threatened to use a weapon [ 45 ] Although one of the witnesses had a weapon, the Accused was not aware of it. Nor did the witness use or threaten to use it on the Accused. The Accused had a weapon and, although the Victim was not aware that the Accused had the weapon, one of the other witnesses saw it when the Accused exposed it as he was approaching the group. The Accused was the only person who used a weapon during the fight with the Victim. The Victim thought he was entering into a fist fight, not a knife fight. 5.

The size, age, gender and physical capabilities of the parties to the incident [ 46 ] The Accused was the only adult involved in the incident. Throughout the Accused’s Statement, he used terms like “kids” and “boys” when referring to Andrew, the Victim and the 2 others. As for the size of the 3 combatants, this Court has no evidence of Andrew’s size or his physical capabilities. Obviously, he should not be fighting, as the Accused disposed of him fairly quickly. As for the Victim and the Accused, the Victim is taller than the Accused, but they weighed about the same.

During his statement, the Accused said that he was “not intimidated” by the Victim: Accused’s Statement, p 7, l 207. He also described the Victim as not having much muscle and that the Victim “looked like a twig, almost”: Accused’s Statement, p 21, l 726. [ 47 ] One wonders, then, why the Accused saw the necessity of using the knife to stab the Victim. 6. The nature, duration and history of the parties’ relationship [ 48 ] The parties really had no relationship before the fights. Although the Accused recognized the Victim from school, they were not friends, enemies or even acquaintances.

They did have Facebook communications. And the Victim did say that he would break the Accused’s jaw, as he had done to 2 others. [ 49 ] Again, it was the Accused that invited them to fight; even when they said that they did not want to fight that night. The Accused said nothing about weapons. 7. History of interaction or communication [ 50 ] Because there was little in terms of the parties prior history, this factor is folded into the immediately preceding factor. 8.

The nature and proportionality of the Accused’s response to the use of threat of force [ 51 ] As mentioned earlier, the only thing that the Victim did was to gain the upper hand in the fist fight. He did not escalate the fight by kicking or kneeing the Accused, or use any other unfair fighting tactics like grabbing hair, tripping the Accused, or trying to wrestle the Accused to the ground.

He did not hit the Accused when the Accused was on the ground. [ 52 ] The only thing he might have done was to pull the Accused’s shirt over the Accused’s head, but the Accused could easily have extricated himself from that situation by stepping away from his shirt. Instead, he took the knife out the front of his pants and

stabbed the Accused with a roundhouse swing. [ 53 ] Given that this was to be a fist fight and nothing more, this Court finds that the nature of the stabbing was excessive. 9. Whether the stabbing was in response to a use of force that the person knew was lawful [ 54 ] This was a consensual fight. Although this Court is not an advocate of fist fights to settle disputes, it fell within the limitation that Gonthier J set in Jobidon . Accordingly, it was, to that extent, lawful. D.

Conclusion on Self-Defence [ 55 ] After considering the foregoing 9 factors this Court is satisfied that the Crown has proved beyond a reasonable doubt that the Accused’s act was not reasonable in the circumstances. In fact, this Court finds that the stabbing was not a defensive manoeuver, but an offensive manoeuver that was not only intended to quell the Victim’s upper hand, but to “teach him a lesson.” Even after the fight the Accused told the police officer that he was not afraid of the Victim by any means.

That does not sound like a person who used a knife in self-defence. [ 56 ] Accordingly, the Accused’s defence of self-defence fails. IV. Decision [ 57 ] As mentioned at the outset of these reasons, the Accused conceded that the assault he committed against the Victim was an aggravated assault. Given the nature of the physical injuries that the Victim sustained, and the way in which he sustained them, this Court accepts that concession.

Accordingly, because it rejects the defence of self-defence, it finds the Accused guilty of aggravated assault and, as well, it finds him guilty of carrying a weapon for a purpose dangerous to the public. Heard on the 1 st day of February, 2016. Dated at the City of Red Deer, Alberta this 3 rd day of February, 2016. K.D. Yamauchi J.C.Q.B.A. Appearances: Katie Clarey for the Crown Rick Wyrozub for the Accused