R. v. Makpah, 2015 NUCJ 12

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Makpah, 2015 NUCJ 12 Date: 20150427 Docket: 18-10-131 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Colin Makpah ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): F. Alibi; S. Lafrance Counsel (Accused): S. Kert; T. Fairchild Location Heard: Iqaluit, Nunavut Date Heard: April 29, 2014-May 13, 2014; November 7, 2014 Matters: Criminal Code, s. 236 (

b) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 3 III. EVIDENCE 6

A. The Testimony of Abraham Nakoolak and Cheryl-Lynn Outchikat 6 B. The testimony of Colin Makpah 11 (i). In-chief testimony 11 (ii). Cross-examination testimony 17 IV. THE LAW 23 A. Manslaughter 23 B. Defence of Person 23 V. ANALYSIS 30 A. A consideration of the factors listed in section 34(2) 30 (i). Factor # 1: s. 34(2)(a): the nature of the force or threat 31 (ii). Factor # 2: s. 34(2)(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 33 (iii).

Factor # 5: s. 34(2)(e): the size, age, gender, and physical capabilities of the parties to the incident. 41 (iv). Factor # 3: s. 34(2)(c): the person [accused’s] role in the incident 41 (v). Factor # 4: s. 34(2)(d): whether any party to the incident used or threatened to use a weapon 42 (vi). Factor # 6: s. 34(2)(f): the nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force and nature of that force or threat 42 (vii). Factor # 7: s. 34(2)(f.1): any history of an interaction or communication between the parties to the incident 42 (viii).

Factor # 9: s. 34(2)(h): whether the act committed [by the accused] was in response to a use or threat of force that the accused knew was lawful 42 (ix). Factor # 8: s. 34(2)(g): the nature and proportionality of the person’s response to the use or threat of force 43 VI. CONCLUSIONS RESPECTING S. 34(1)(C) 47 Appendix I 50 I. Synopsis of the testimony of Colin Makpah 50 A. In-Chief 50 B. Cross-examination 59 I. INTRODUCTION [ 1 ] Colin Makpah stands charged upon an Indictment that on August 14, 2010, in Rankin Inlet he did unlawfully kill Donald James Gamble, and thereby commit manslaughter contrary to s. 236 (

b) of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. [ 2 ] The participants in this tragic scenario which occurred some 4 & ½ years ago now, were, of course, the deceased Donald James Gamble, the accused Colin Makpah, the deceased Donald’s then common-law spouse and mother of their infant child, Cheryl Lynn Outchikat [Cheryl], and Colin’s long-time friend, Abraham Nakoolak. [ 3 ] Donald James Gamble [DJ] was 23 years old when he died on August 14, 2010, he was just under 6 feet tall and weighed around 260 lbs. Cheryl Lynn Outchikat was 19 years at the time.

Abraham Nakoolak was 26 years of age, he stands about 5 feet 5 inches tall and weighs between 110 & 120 lbs. Colin Makpah was 26 years old in August of 2010, he is 5 feet 7 inches tall, and weighs approximately 180 lbs.

[ 4 ] For the sake of simplicity and clarity, I will, in this judgement, reference these individuals by their first names, or initials, as counsel did both during the trial and in final arguments. II. BASIC FACTUAL BACKGROUND [ 5 ] It is clear that Colin did in fact kill DJ. [ 6 ] This is not in dispute.

Colin, however, claims that he did so in order to defend himself, as well as Cheryl and Abraham, from DJ’s attack upon them all. [ 7 ] This happened at a party, of sorts, in Abraham’s small apartment, late on a Friday evening and into Saturday morning. [ 8 ] Towards the end of the evening, as the party broke up, an altercation took place – a fight broke out. [ 9 ] It was during this fight that Colin caused DJ’s death – by stabbing him 4 times in the chest and abdominal cavities with a filleting knife. (Court Exhibit, 14). [ 10 ] The autopsy showed 2 stab wounds to the chest, one of which penetrated the chest cavity, and 2 stab wounds to the abdomen, both of which penetrated the abdominal cavity.

One of these abdominal wounds penetrated the intestine and the series of blood vessels in the intestine called the ‘mesentery.’ This was the fatal wound, which caused massive bleeding and, eventually, death. DJ also had a small slash wound on the neck, which Colin agreed he may have caused during his struggle with DJ (Trial Transcript, 1107, 1). DJ’s blood alcohol level was 128 milligram per cent at the time of death – which is more than twice the so-called legal limit for driving a vehicle.

Cannabis residue was detected in DJ’s blood. [ 11 ] The autopsy showed as well that DJ suffered some blunt force injuries which resulted in minor bruising (Trial Transcript, 715, 13- 15), as well as a cut on the top of his head. This cut was a result of DJ being hit by Cheryl during the altercation with an empty liquor bottle. [ 12 ] Abraham was at the party, along with Colin, DJ, and Cheryl, and Cheryl had the baby with her. There were 2 other people at this party as well, but they were only present for a short time and had left before the altercation took place. [ 13 ] The men were drinking hard liquor, vodka.

Cheryl may have had a drink, but, since she was caring for the baby, she remained sober. [ 14 ] DJ and Abraham were doing the most drinking. Towards the end of the evening, and shortly before the altercation or fight broke out, DJ had become highly intoxicated and Abraham perhaps a little less so. [ 15 ] Colin, it appears, had much less to drink than the others – maybe 4 or 5 shots by his own reckoning. But nonetheless, to some extent, he was still, by the end of the evening as the party broke up, under the influence of alcohol.

During his testimony, at various times, Colin said the vodka left him ‘feeling pretty high”, or ‘good’, and ‘relaxed’ (Trial Transcript, Vol. 11, p. 1034, ll, 19-20; 1173, 25 – 1074, 3). [ 16 ] DJ and Abraham were also smoking marijuana that night – from time to time they would step outside and toke up. Colin joined them outside for a smoke, but he maintained that he stuck to just cigarettes and did not smoke any marijuana. [ 17 ] For the most part, this party at Abraham’s was not remarkable – people were chatting, drinking, listening to music, and getting along well. The mood, generally, was good.

[ 18 ] At times, however, as the evening progressed, DJ – largely because of the amount he had had to drink – became morose and sometimes agitated. But these moods did not last long. The other people there, including Colin, helped calm DJ down. [ 19 ] DJ left the party a couple of times at Cheryl’s request to fetch things she needed for the baby. [ 20 ] The first time DJ left he returned without the truck he had been driving, and he was upset that his father would no longer let him drive it because of his drinking. [ 21 ] This did not, however, prevent DJ from driving.

He simply got an ATV to drive instead and came back to the party. So, the second time DJ left the party, again, to fetch things for Cheryl, it was with this ATV. [ 22 ] DJ was spotted by the police driving the ATV in a maniacal fashion around town. Eventually, he returned to the party at Abraham’s and parked the ATV outside. Shortly after DJ arrived, the police knocked on the door and they came into the house looking for DJ.

But DJ and Cheryl had gone upstairs when they heard the police knocking and DJ made himself scarce by jumping out of a bedroom window. [ 23 ] Eventually, the police left, but they impounded DJ’s ATV and took it away with them. [ 24 ] At this point, Colin decided to leave because, as he said during his testimony, “…whenever the RCMP show up to a party, that’s pretty much when the party’s over” (Trial Transcript, 1034, 6-8). [ 25 ] Colin had just put on his boots to leave, when all of a sudden DJ appeared at the front door and came into the house. [ 26 ] DJ was in a mad rage.

He walked past Colin and approached Cheryl. He started yelling and swearing at Cheryl – saying in particular that it was her fault the ATV was taken by the police. The 2 of them – DJ and Cheryl - then yelled and argued with each other. III. EVIDENCE A.

The Testimony of Abraham Nakoolak and Cheryl-Lynn Outchikat [ 27 ] The most important evidence in this case is, of course, the testimony of people who were at the party, and, in particular, the testimony of the accused, Colin Makpah. [ 28 ] Accordingly, I would like, at the outset, to review this important testimony. [ 29 ] Firstly, dealing with the testimony of Abraham and Cheryl, their respective accounts of what happened, in the ensuing short period, when DJ came back into the house for the final time and was yelling at Cheryl are fairly consistent. [ 30 ] Abraham testified that DJ immediately started pushing and shoving Cheryl.

Abraham thought he saw DJ take a swing at Cheryl. Cheryl clarified this in her testimony by explaining that DJ was asking her to hit him and when she refused he slapped her in the face with a magazine causing a small cut on her lip. This was the only injury Cheryl received that evening. [ 31 ] Abraham then tried to calm DJ down and intervened to stop him from going after or bothering Cheryl, at which point DJ turned on Abraham, began arguing with him, and started pushing and shoving Abraham.

DJ pushed Abraham, who fell backwards onto the couch, and from there onto the living room floor, with DJ on top of him, wrestling with him.

[ 32 ] Colin then tried to calm him down, but DJ then turned immediately on Colin and started pushing and shoving Colin around. The fight or struggle soon moved from the living room area of Abraham’s tiny apartment into the kitchen and the 3 men fell to the kitchen floor as Abraham and Colin struggled with DJ to get him to stop his aggressive behavior. As Abraham said in Court, “we were wrestling – wrestling around trying to stop DJ” (Trial Transcript 36, 13-14). [ 33 ] It was at this point – with the men on the floor – that Cheryl decided upon her own course of action.

Cheryl testified that: …they were all just fighting – well, I think it was more like pushing and shoving and yelling. And it – shortly, like not even within a minute or two, they’re all on the floor I believe….I must have texted Nelson [DJ’s brother] to come and pick up DJ… because he is picking fights here. He [Nelson] said he’s in bed now. You guys just go home. And I think I left it at that…I kept running up and down [stairs]….and I put my daughter on the couch… I didn’t know what to do because they’re all fighting right there.

And I don’t know exactly what came over me to pick up the bottle to hit DJ….I just wanted the fight to end, and it was just like a reaction that happened (Trial Transcript, 293, 4-23; 293, 4-5). [ 34 ] Cheryl then explained how she hit DJ on the head with an empty liquor bottle and then she swung at DJ a second time, but accidently hit Colin instead.

Cheryl told us in court how at this point her baby, who was on the living room couch, started screaming and so she grabbed the baby and ran upstairs. [ 35 ] Once upstairs, Cheryl used her cell phone to call a taxi, she wanted to get herself and the baby out of the house. She could hear the men still fighting and the ruckus downstairs in the kitchen. She was only upstairs, however, for between 1 and 3 minutes, when, as she said, “shortly after that ---everything went quiet” (Trial Transcript, 296, 3-4; 404, 22; 409, 12). [ 36 ] Cheryl then went downstairs to check things out. Abraham and DJ were still there.

Colin, however, was gone. Cheryl had heard someone run out of the house when things went quiet so she assumed it had been Colin. [ 37 ] Abraham was walking or escorting DJ outside to the porch. Cheryl, at this point, was still upset and mad with DJ and told him that their relationship was over. [ 38 ] Abraham came back into the house and assured Cheryl that DJ was fine and that he could stay out on the porch and sleep it off. [ 39 ] Cheryl then went next door to a friend’s place to get some milk for the baby.

When she returned to Abraham’s place she saw DJ, apparently passed out and sleeping on the porch. [ 40 ] Cheryl was still at Abraham’s place when, a short while later, the police arrived to tell her that DJ had been taken from the porch to the Health Center and that he had been wounded - stabbed. [ 41 ] It was later that same morning that DJ passed away at the Health Center and was pronounced dead. [ 42 ] Abraham’s version of events, as he described the struggle with DJ, was much the same as Cheryl’s. [ 43 ] Abraham remembers wrestling around in the kitchen along with Colin as the both of them were trying to restrain DJ from going after Cheryl. [ 44 ] But he does not remember seeing Cheryl hit either DJ or Colin with a bottle (Trial Transcript, 200-202).

[ 45 ] Abraham said the reason that he did not see Cheryl swing a bottle was because “maybe I was pinned to the ground at that point” (Trial Transcript, 202, 2; reference to Abraham’s testimony from the preliminary inquiry). [ 46 ] But Abraham was not even clear about being pinned to the ground by DJ, at all. At one point, Abraham testified he did not remember ever being pinned to the ground with DJ’s knees on his chest, and later, he said he did remember being pinned to the ground by DJ (Trial Transcript, 195, 22; 202, 18). [ 47 ] Abraham did not remember, precisely, how the fight stopped.

He just said, “Out of nowhere everything stopped” (Trial Transcript, 37, 20). [ 48 ] At this point, Abraham remembered that DJ look tired, and he was heading outside to the porch. [ 49 ] Abraham did not know where Cheryl was when the fight ended, but he assumed she was upstairs. Abraham did not know where Colin went when the fight stopped. All he could remember was that Colin was not in the apartment, but he had not seen Colin leaving. [ 50 ] Nor did Abraham notice if DJ had any injuries or, if he was bleeding. [ 51 ] Abraham helped DJ out to the porch and sat with him briefly, consoling him.

DJ mentioned that he was having trouble breathing. Abraham told DJ that he would be all right in the morning when he slept it off. [ 52 ] When Abraham left DJ on the porch and came back into the house, he found a filleting knife on the floor. [ 53 ] A short while later, he began a Facebook conversation with Colin.

During this computer chat, Colin asked Abraham, “how many little stabs?” This question came as a surprise to Abraham because he had not seen DJ get stabbed. [ 54 ] It was during this Facebook chat as well that Abraham told Colin the police and ambulance had come and taken DJ away to the Health Center. [ 55 ] Neither Abraham nor Cheryl remember DJ – at any time during the fight - ever punching, kicking, biting, or choking anyone, or using a weapon, or even threatening to use a weapon.

Their testimony was clear that DJ did none of these things; and, as I noted earlier, Abraham could not even remember whether, at one point, he had been pinned to the floor by DJ, with DJ’s knees on his chest.

The only thing that both Abraham and Chery clearly recalled DJ doing was pushing and shoving people, including, of course, Colin (Trial Transcript, 195, 20-22; 39-42; 1037-1038; 1087, 15-17). [ 56 ] Each of the lawyers in this case questioned Abraham and Cheryl about how they would characterize the fight or struggle with DJ and what fears they had, if any, about what DJ might do if he could not be restrained. [ 57 ] Both Abraham and Cheryl were clear that DJ was in a drunken mad rage and generally out of control, and that he was the one who had instigated the chaos. [ 58 ] During his in-chief testimony, Abraham said that despite the size difference between himself and DJ, he was not worried about his own personal safety (Trial Transcript, 53, 8-19). [ 59 ] Abraham said that he did not think the fight was serious, at all.

He described it as “just a regular fight,” – and one that on a scale from 1 to 10 in terms of seriousness he would rate as “under five” (Trial Transcript, 53, 18 – 54, 2).

[ 60 ] At no point during the fight did Abraham think that Cheryl’s or Colin’s lives were in danger (Trial Transcript, 54, 3-8). [ 61 ] Abraham said he was surprised when he found out later, at the police detachment, that DJ had been wounded. Abraham testified that at no point during the fight did he ever think it had become so serious that someone would get wounded.

He also testified that at no point during the fight did he ever think about reaching for a knife (Trial Transcript, 53-54). [ 62 ] Abraham identified the only injuries he received during the fight as a bruise on his shoulder and a small cut to his hand, both of which were described as minor (Trial Transcript, 52-63). [ 63 ] During cross-examination, however, Abraham acknowledged that the fight seemed pretty serious while it was actually happening and that in the middle of the fight things were totally out of control.

He agreed with Defence Counsel’s suggestions that he was trying to protect himself and Cheryl and that he was concerned about both Cheryl’s safety as well as his own (Trial Transcript, 207, 8 – 208, 21). [ 64 ] During her in-chief testimony, Cheryl stated that when she decided to try to put an end to the fight by hitting DJ with the bottle, she was a little scared that DJ might get into another argument with her. She was scared of him hitting her, but, as she said, “not really.” She was afraid that if they got into another argument it might lead to something else.

But she was not afraid that DJ would kill her, Abraham, or Colin. Cheryl was afraid, however, that DJ would hurt them – as she said, he was drunk, angry, and out of control, and he was a pretty big guy. She was afraid that someone might “get beaten up pretty good,” but nothing beyond that (Trial Transcript, 296 & 399). [ 65 ] In cross-examination, Cheryl acknowledged that when she hit DJ with the bottle it only made him angrier. Cheryl said at this point she used her cell phone to call a taxi because she was desperate to get out of the house because she was afraid of what might happen if she stayed.

She testified that she was scared about what DJ could do if he got away from Abraham and Colin (Trial Transcript, 402 & 408). [ 66 ] Neither Abraham nor Cheryl saw a knife in anyone’s hands at any time that night. Nor did either of them hear Colin warn DJ that he was going to get a knife, or that he had a knife. They were, however, both cross-examined thoroughly by Defence Counsel in this regard and they agreed it may be that during the chaos and confusion, with things happening so quickly, they may have been unable to observe, or hear, or remember later everything that happened. B.

The testimony of Colin Makpah [ 67 ] I now turn to the testimony of the accused, Colin Makpah. Colin was on the witness stand for an entire day and his testimony encompasses some 200 pages of transcript. [ 68 ] I would, frankly, be remiss if I did not observe the remarkable thoroughness that counsel in this case each exhibited in dealing this testimony– Defence Counsel in the presentation of her client’s case and Crown Counsel in cross-examination of Mr.

Makpah. [ 69 ] I have, of course, carefully considered this testimony, and I have attached, as Appendix I to this Judgement, a document entitled “Synopsis of the Testimony of Colin Makpah.” [ 70 ] At this point, I will make reference only to what I consider the most relevant portions of that comprehensive testimony, both in- chief and during cross-examination, commencing at the point in time where the police have just left Abraham’s place and taken the ATV away. (i).

In-chief testimony [ 71 ] Colin testified that at this point, immediately after the police left, he decided to leave and to go back to his mother’s place. Colin said that the reason he decided to call it a night was, “because whenever the RCMP show up to a party, that’s pretty much when the party’s over” (Trial Transcript, 1034, 6-8).

[ 72 ] Colin was asked by his lawyer how he was feeling the effects of the alcohol he had consumed when he was about to leave. In response, Colin testified that, “I was feeling high. I was feeling good” (Trial Transcript, 1034, 19-20). [ 73 ] Colin testified that he had put his boots on, and was just about to get his jacket and hat, when, suddenly, DJ came back into the house. [ 74 ] Colin testified that DJ seemed to be in an angry mood. [ 75 ] The next thing Colin saw was Cheryl falling to the ground. Colin showed us, in court, how DJ had his arm extended outwards in a pushing motion.

Colin did not actually see DJ pushing Cheryl down, nor did Colin see Cheryl hit or attempt to hit DJ after she was pushed. [ 76 ] Colin then testified about what happened next. Abraham said “hey” to DJ in an effort to get him to quit this type of behavior, at which point DJ then turned his attention to Abraham. DJ then put Abraham to the floor.

Colin showed us (with reference to photos of the house) where it was that DJ put Abraham down – he said it was just before the kitchen in front of the stairs (Trial Transcript, 1037, 1 – 1038, 11). [ 77 ] Colin said DJ was on top of Abraham – essentially that he had Abraham pinned down. [ 78 ] Colin testified it was at this point – when DJ was on top of his friend Abraham – “That’s when I told him I was going to get a knife”.

Colin’s lawyer asked him why he told DJ he was going to get a knife and Colin testified that it was “because I wanted him to stop doing what he was doing…he was attacking Abraham and he had just finish attacking Cheryl” (Trial Transcript, 1038, 21-25). [ 79 ] Colin’s lawyer then asked Colin what, if anything, he intended to do with the knife at that point.

In reply, Colin told the Court that “I was just going to use it as an intimidation tool.” He said that he thought he needed a knife to intimidate DJ because “he was a really big guy…and I didn’t think I was going to be enough to stop him” (Trial, Transcript, 1039, 6). [ 80 ] Colin then explained how he went to the kitchen cupboard to get the filleting knife. Colin testified that right after he got the knife he went immediately over to DJ, who, at this time, was still on top of Abraham.

Colin said DJ “was kneeled over, like sitting almost on top of him [Abraham]” (Trial, Transcript, 1042, 8). [ 81 ] Colin told us how he came up and stood beside, and slightly behind DJ, “kind of at his side…slightly behind, but more at his side.” At this point, Colin also testified that, “I told him I had a knife now, and I…I made sure I said it loud” (Trial Transcript, 1040, 15-16). [ 82 ] Colin was asked by his lawyer why he told DJ that he had a knife. In reply to this question, Colin said, “Because I wanted him to stop – stop attacking Abraham”.

Colin also testified that he did not intend to use the knife at this point, at all, but when he told DJ he had the knife, “that’s when he [DJ] turned his attention to me” (Trial, Transcript, 1042, 22-23 & 1043, 1-2). [ 83 ] Colin testified that DJ then grabbed him by the shoulders and put him down hard, on his back, onto the kitchen floor. Colin said that DJ was by this time in a rage, acting mad and angry.

Colin described how DJ had him pinned down: “...he [DJ] had his legs spread over my waist…and he had his hands on my shoulders” (Trial Transcript, 1044, 13-14). [ 84 ] Colin explained how he tried to get up from under DJ, but that DJ was preventing him from getting up. Colin said that “I couldn’t push against his weight.” [ 85 ] Colin testified that the next thing he remembered was seeing Cheryl standing behind DJ with a bottle in her hand. Colin said Cheryl was holding the bottle above her head, as if to strike someone with it.

[ 86 ] Colin testified that he did not know what Cheryl did with the bottle and he was clear that he did not see Cheryl hit DJ with the bottle. Colin testified that “I don’t know what she [Cheryl] did with it, but I felt myself get hit in the head.” Colin testified that he believed he got hit with the bottle (Trial Transcript, 1045, 15-25). [ 87 ] Colin’s lawyer asked him how he thought that he was hit with the bottle when DJ had him pinned to the floor.

Colin replied by saying, “at that point I was kind of at a 45 degree angle, trying to get up…I was struggling to get up” (Trial Transcript, 1046, 1-3). [ 88 ] Colin testified that immediately after he got hit with the bottle the next thing he remembered was how “DJ started turning – turning his attention to whoever was behind him” (Trial Transcript, 1046, 6-7). [ 89 ] Colin testified that as DJ started turning his attention to the person behind him, “that’s when I stabbed him” (Trial Transcript, 1046, 10). [ 90 ] Colin did not remember precisely where, on DJ’s body, he stabbed him this first time.

Colin said the reason he stabbed DJ was because he was afraid what DJ might do to the person behind him – the person he was turning his attention to, and who Colin believed was Cheryl.

Colin testified that when he stabbed DJ this first time “I was trying to hurt him enough to stop him from attacking some more” (Trial Transcript, 1048, 26-27). [ 91 ] Colin testified that he thought it was necessary to stab DJ in order to stop him, “because it was – he – it seemed like he was out of control and it didn’t seem like anything was going to stop him anymore” (Trial Transcript, 1047, 3-5). [ 92 ] Colin explained how DJ was still in a rage and that even after he was stabbed the first time, “he was still motioning to turn – to turn around behind him” (Trial Transcript, 1047, 10-11). [ 93 ] Colin’s lawyer asked him whether, when he stabbed DJ for the first time, DJ “was still holding you at that point?” In reply Colin said, “I can’t remember” (Trial Transcript, 1047, 12-13). [ 94 ] Colin testified that nothing happened after he stabbed DJ this first time – that DJ was still motioning to turn around behind him.

Again, Colin thought it was Cheryl who was standing immediately behind DJ, although at this point, when he stabbed DJ, he had no idea where Abraham was or had gone. [ 95 ] Colin testified that he then stabbed DJ a second time, “because the first stab didn’t seem to affect him.” [ 96 ] Colin’s lawyer asked him what he was thinking might happen if he didn’t stop DJ and Colin replied simply that he thought “Cheryl was going to get hurt.” [ 97 ] Colin also testified that the purpose of the second stab was “just to stop him from attacking some more.” Colin went on and explained how he felt that “we [Cheryl, himself, and Abraham] were all under attack that night” (Trial Transcript, 1047, 17-27). [ 98 ] Colin testified that even when he stabbed DJ the second time, “he [DJ] was still turning around behind him” (Trial Transcript, 1048, 20-22). [ 99 ] Colin said that he was not angry at DJ at this point, when he stabbed him, but rather that he was feeling scared, “for all of us, Cheryl, Abraham, and myself” (Trial Transcript, 1049, 4-5).

[ 100 ] Colin testified that he believes he stabbed DJ three times, but he readily conceded that it could indeed have been four times, as the forensic evidence showed. [ 101 ] Colin told the Court what happened after he stabbed DJ the last or final time. He testified that “he [DJ] kind of fell to my side, my right side, Yeah.

He finally felt the – what I believe was the third stab” (Trial Transcript, 1049, 17-19). [ 102 ] Colin testified that once DJ was off of him – once he was able to extricate himself from under DJ – that, “that’s when I got up and ran out of the house.” Colin testified that he ran out of the house because after he stabbed DJ he couldn’t think straight and was scared (Trial Transcript, 1049, 21-27). [ 103 ] Colin said he dropped the knife somewhere as he ran out of the house. [ 104 ] Colin testified that he had blood on his forehead from being hit in the head by the bottle, but that he did not know if DJ was bleeding before he fled the house. [ 105 ] Colin explained how, after he left Abraham’s, he looked for a house with some lights on so he could get help – an ambulance for DJ and also help for Cheryl and Abraham.

Colin said he wanted to get hold of the police because “I didn’t want anything else to happen at DJ’s place” (Trial Transcript, 1055, 1920). [ 106 ] He knocked on Kelly Kanayok’s door (which is in the same 9-plex row of housing as Abraham’s place).

Kelly let Colin in and he told her that there had been a fight at Abraham’s and that he had stabbed DJ. [ 107 ] Kelly testified that Colin told her DJ “couldn’t breathe good,” but that “he’s a 300 lb. kid…he’ll survive.” Kelly also said that Colin was concerned that he would go to jail (Trial Transcript, 572-573). [ 108 ] Colin told the Court how he got some Kleenex from Kelly for his cut and how he tried a couple of times to reach the after-hours Royal Canadian Mounted Police [RCMP] Dispatch.

Colin said that both times he phoned there was no answer. [ 109 ] Eventually, Colin simply gave up and went to his mother’s house. He phoned his wife Jill to tell her what happened and then he started chatting via Facebook with Abraham. During this Facebook conversation, Colin asked about DJ. He asked Abraham things like, “how many little stab wounds”? and “did I cut him”? Colin told the Court he asked Abraham these questions because he was not sure how many times he had stabbed DJ, or even if he had cut him. [ 110 ] Colin and Abraham also texted each other about what had just happened.

Abraham texted Colin to the effect that DJ had started things and Colin had tried to stop it.

Colin replied to Abraham, “I know, it started with your niece (Cheryl), then you, then me.” Colin testified that “I wasn’t sure if he (Abraham) understood what just happened, … I was telling him what I knew happened” (Trial Transcript, 1060, 15-26). [ 111 ] Eventually, Abraham texted Colin to the effect that an ambulance had come for DJ and that the police were looking for him. [ 112 ] Colin testified that he never tried to call the police from his mother’s house because he was scared of what the police were going to think about him stabbing DJ. [ 113 ] Colin testified that he was shocked, the next day, when he found out DJ had died.

Colin said that he was shocked “because I didn’t think I stabbed him hard enough to kill him” (Trial Transcript, 1064, 2-3). [ 114 ] Eventually, the police came and arrested Colin. They also photographed the injuries to Colin which he said he believed he got

when DJ put him down to the floor. (ii). Cross-examination testimony [ 115 ] In cross-examination, Colin said he was about 3 years older than DJ. Colin said that he had been working in the construction trades for some 5 years, and he agreed with the Prosecutor that this was an occupation which required physical strength. Colin testified that he was bigger and stronger than Abraham, but not as big or as strong as DJ. [ 116 ] Colin admitted that he breached the terms of his probation by drinking alcohol at Abraham’s place.

He was clear, however, that even though he traded some liquor for marijuana with DJ, he did not actually smoke any marijuana that night. He testified that he did step outside to smoke, but that unlike the others at the party he only smoked cigarettes that evening – so that if people said he was smoking marijuana they were simply mistaken. He said that he kept the marijuana he got from DJ for future use. [ 117 ] Colin testified that he and Abraham finished about 1/3 of his 40 ounce bottle of vodka. Colin said that he never saw Cheryl drink any alcohol that night, at all, so to his mind she was sober.

Colin believed that DJ and Abraham both became drunk, but that DJ was more drunk than Abraham. At the same time, Colin did not think DJ exhibited any obvious signs of a high degree of drunkenness – for example, he showed no difficulty walking and his reaction time generally was fine.

Colin said despite the fact DJ had consumed a fair amount of alcohol and had been smoking marijuana, that “…he seemed fine to me” (Trial Transcript, 1074, 20). [ 118 ] Colin testified that the alcohol he had consumed left him feeling ‘pretty high,’ but that it did not affect his emotions in any way; he said he simply felt good, and “relaxed.” Colin maintained that he was more sober, and more in control of himself than DJ (Trial Transcript, 1073, 25 – 1074, 3). [ 119 ] Colin testified during cross-examination, as he had in-chief, about getting ready to leave right after the police left.

He re-iterated that he had put his boots on, and was about to put his jacket and toque on, when DJ showed up at the front door and came back into the house. [ 120 ] Colin said that DJ walked right past him and towards Cheryl, who was standing between the couch and the dining room table. At this point, Abraham, Colin said, was seated at the computer table.

Colin said that DJ immediately started yelling at Cheryl, saying “It’s all your fault, you wanted to fucking drink” (Trial Transcript, 1084, 18-19). [ 121 ] Colin testified that by the time he turned to pay attention to what was going on between DJ and Cheryl, from where he stood near the porch, that “his [DJ’s] body was extended out, and she was already on the floor”.

Colin said, as he had testified in-chief, that he never saw any hitting or even pushing; he said “all I knew he must have done something for her to fall to the floor” (Trial Transcript, 1087, 7- 12). [ 122 ] Colin then testified, as he had during his in-chief testimony, that Abraham got involved by saying “hey” to DJ, at which point DJ then put Abraham to the floor.

As DJ put Abraham down, Colin said Cheryl was just starting to get up off of the floor. [ 123 ] Colin then told the Prosecutor, as he had told his own lawyer earlier, it was at this point, when DJ was on top of Abraham, “that’s when I told DJ I was going to get a knife.” And he repeated his reasoning, to the Prosecutor, in getting the knife – he said he got the knife hoping it would make DJ stop what he was doing (Trial Transcript, 1089-23-27). [ 124 ] Colin admitted that he could have left the house and ran for help, but that he chose not to do so.

The Prosecutor asked Colin why he did not, for example, reach for a bottle instead of a knife. Colin’s response was “I don’t know” (Trial Transcript, 1090, 21). [ 125 ] The Prosecutor put the proposition to Colin that neither Cheryl nor Abraham remembered hearing him threaten to get a knife, or tell DJ has going to get a knife. In response, Colin said, “Well, it was happening so fast, so probably” (Trial Transcript, 1092, 1).

[ 126 ] Colin admitted that he had to walk past the fight – past DJ who was on top of Abraham – to get the knife. He admitted as well that he could have left, instead, to go somewhere for help, or even ask Cheryl to go for help, but that he chose not to do so.

In response to these suggestions, however, Colin was clear that “It was just all happening so fast” (Trial Transcript, 1093-14). [ 127 ] The Prosecutor put the proposition to Colin that if he only had the knife to intimidate DJ, then why did he not show the knife to DJ or brandish it in front of him if the true purpose in going for the knife was simply intimidation.

In response, Colin said “at that point I just wanted him to be aware that I had a knife…I had already vocalized that I had a knife” (Trial Transcript, 1096, 23-1097, 2). [ 128 ] Colin testified that he did not remember how, when he stood beside and slightly behind DJ, how exactly he was holding the knife. He believed at this time, however, that Cheryl was still somewhere in the living room. The Prosecutor reminded Colin of Cheryl’s testimony where she testified that she did not remember seeing anyone with a weapon that night.

Once again, in response, Colin maintained that “It was just happening all so fast” (Trial Transcript, 1097, 17). [ 129 ] Colin testified that when DJ put him to the ground, his (Colin’

s) hands were nonetheless free – this was because, as Colin said, DJ was holding Colin down by the shoulders. At this point, Colin testified he did not know if DJ saw the knife in his hand. Colin said that despite his (Colin’

s) hands being free, he did not simply show the knife to DJ. He repeated his earlier testimony that “I had already vocalized it, and it was happening so fast” (Trial Transcript, 1100, 1). [ 130 ] Colin told the Prosecutor that after DJ put him down, that he had the knife in his right hand and “I was struggling to get up, I think I was on my left elbow or my left hand, trying to push myself up off the floor” (Trial Transcript, 1100, 11-13). [ 131 ] Colin then repeated his in-chief version of events about what happened next.

He said, “that’s when I saw Cheryl getting ready to hit DJ with the bottle,…I don’t know if he [DJ] got hit, but when I saw her with the bottle, I felt myself get hit” (Trial Transcript, 1101, 17-27). [ 132 ] Colin agreed with the Prosecutor that at this point DJ never reached for a weapon, never tried to choke Colin, never punched Colin, nor did he try to kick Colin. When the Prosecutor asked Colin what DJ did do, Colin said, “He was starting to get up off me….and he was turning to his left” (Trial Transcript, 1102, 14-16). [ 133 ] At this point, the Prosecutor asked Colin what he did.

Colin re-iterated his earlier testimony in-chief and told the Prosecutor “that’s when I stabbed him” (Trial Transcript, 1102, 19). [ 134 ] Colin testified he believed that Cheryl was still behind DJ when he stabbed DJ and he agreed that Cheryl would have been in a position to simply run away. He also agreed that when he stabbed DJ he had no idea where Abraham was. [ 135 ] Colin believed he stabbed DJ this first time, “somewhere on the chest” (Trial Transcript, 1103, 14) [ 136 ] Colin maintained that he was not trying to kill DJ when he stabbed him.

He repeated that “I was just trying to prevent him from attacking anymore, …I believed we were all in danger” (Trial Transcript, 1103-22-27). [ 137 ] Colin repeated his earlier in-chief testimony that his intent throughout, as he stabbed DJ, was simply to “prevent him from attacking anymore” (Trial Transcript, 1104, 2). [ 138 ] Colin repeated as well that when the first stab did not affect DJ, that he stabbed him again. [ 139 ] Colin maintained that despite the fact DJ was actually in the process of getting up when he stabbed him – and not coming towards Colin at all - that the reason he continued to stab more than once was simply because the initial stabs were not preventing DJ from getting up and DJ continued to focus his attention on the person behind him.

Colin maintained that the continued stabs were necessary to prevent DJ from continuing his general attack against the others in the house, and in particular, his attack on the person behind him, likely Cheryl (Trial Transcript, 1104-1105).

[ 140 ] Colin said that it was then that he inflicted the final wound (which he believed was the third wound, but acknowledged that is was the fourth wound or stab) that DJ “finally felt it” (Trial Transcript, 1105, 22). [ 141 ] Colin also acknowledged that he may have inflicted the cut on DJ’s neck. He said, “I could have, I just don’t know” (Trial Transcript, 1107, 1). [ 142 ] Colin agreed with the Prosecutor that Abraham only suffered minor injuries from his altercation with DJ and that Cheryl only suffered a cut to her lip.

Further, that aside from the injury inflicted upon him by Cheryl, Colin only suffered bruising. Colin said that “I wasn’t aware of the bruising until later, yes” (Trial Transcript, 1107, 9-19). [ 143 ] Colin rejected the Prosecutor’s suggestion – based on the fact that some of DJ’s blood was found in other areas of the house than the kitchen – that the blood was found in these locations because DJ was trying to get away, or escape, from Colin and that Colin was actually going after DJ with the knife.

Colin maintained that he had no idea how DJ’s blood may have been deposited in other areas of the house than the kitchen (Trial Transcript, 1118, 11-21). [ 144 ] Colin said that while he was still concerned about Cheryl’s and Abraham’s safety after he ran out of the house, he was only concerned at this point “to a certain degree” precisely because of the fact that he had just stabbed DJ a number of times (Trial Transcript, 1121, 1-9) [ 145 ] Colin said he was concerned about how badly DJ was injured, but acknowledged that he did not check to see just how badly DJ was injured before running out of the house.

He acknowledged as well that he did not check to see if Abraham or Cheryl had made any efforts to get help in the time he was fighting or struggling with DJ. Colin acknowledged as well that he did not check with Cheryl or Abraham, before he ran out of the house, to see if they had seen what was happening and knew that DJ had been stabbed.

In this regard, Colin maintained, again, that “It just happened all so fast.” (Trial Transcript, 1121, 19 – 1122, 2). [ 146 ] Colin told the Prosecutor, as he did his own lawyer earlier, that he recalled telling Kelly Kanayok that he was in a fight and that he had stabbed DJ, but he did not recall making any comment to Kelly to the effect that “he [DJ] would survive….he’s 300 pounds” (Trial Transcript, 1124, 14 & 1139, 12-15) [ 147 ] Colin acknowledged that after leaving Kelly’s place he could have walked to the RCMP Detachment instead of going to his mother’s place.

He also acknowledged that when he returned to his mother’s place he made a phone call to his wife and told her he had been in a fight and that the RCMP were likely looking for him, but that he did not place any calls to the RCMP himself. Colin explained that at this point, “I couldn’t think strait anymore” (Trial Transcript, 1132, 1-3). [ 148 ] Colin explained that when he got to his mother’s house he was not particularly worried about Cheryl and Abraham’s safety, “Like I said, I couldn’t think straight.

I – I just assumed I hurt him enough that he wasn’t going to attack them anymore” (Trial Transcript, 1133, 22-24). [ 149 ] Colin was clear that when he got to his mother’s place he knew the police were going to be involved because he had stabbed DJ.

But again, he maintained that he was not thinking straight and that, after he talked with his wife on the phone, he opened his mother’s computer to chat with Abraham via Facebook. [ 150 ] Colin maintained that the reason he asked Abraham (as they chatted on Facebook) “how many little stab wounds” was because “I just felt like I didn’t use my full force when I stabbed him” (Trial Transcript, 1144, 11-12). [ 151 ] The Prosecutor took issue with Colin about this. [ 152 ] The Prosecutor suggested that it is difficult to understand or accept how, on the one hand, if Colin was so concerned about the immediate safety of his friends, he could have enough time to worry about how deep the knife was going into DJ, but not enough time,

for example, to think about using something other than a knife as a weapon. The Prosecutor bluntly suggested to Colin that he was not trying to protect himself or his friends, but rather simply trying to hurt DJ (Trial Transcript, 1144, 14 – 1145, 5). [ 153 ] Colin rejected the Prosecutor’s suggestions. He said they were “…not fair at all” (Trial Transcript, 1145, 6). [ 154 ] Colin continued to strongly maintain that the force he used was just enough to hurt DJ in order to stop the attack (Trial Transcript, 1145, 11-14). IV. THE LAW A.

Manslaughter [ 155 ] The offence of manslaughter is committed where one person causes the death of another person by an illegal act. It is clear that Colin caused DJ’s death by stabbing him with a filleting knife. [ 156 ] In this case there is no dispute between the Crown and Defence that the issue before the Court is the availability of the defence of ‘defence of person’ – whether it be ‘self-defence,’ or the ‘defence of others.’ [ 157 ] If the ‘defence of person’ defence is viable then Colin Makpah is entitled to an acquittal. If it is not, then the stabbing of DJ Gamble was an illegal act for which Mr.

Makpah would stand convicted of manslaughter. B. Defence of Person [ 158 ] The law respecting the ‘defence of person’ defence, whether it be self-defence and/or defence of other persons, is clear. [ 159 ] The Crown has the onus of disproving the ‘defence of person’ defence beyond a reasonable doubt. If the Court is left with a reasonable doubt about whether self-defence or defence of others is present then the accused is entitled to an acquittal.

The burden of proof in relation to this defence is on the Crown, who must prove beyond a reasonable doubt that the defence does not apply. [ 160 ] To be clear, in this case the Crown must disprove, at the criminal standard required, both aspects of the ‘defence of person’ defence.

The Crown must disprove the defence of self-defence and also the defence of defence of another person (or persons). [ 161 ] As a matter of law, if the Crown fails to disprove either aspect of the ‘defence of person’ then the accused is entitled to an acquittal. [ 162 ] To put it another way, and in a more positive way from the Defence perspective, the accused does not need to establish both aspects of the ‘defence of person’.

If the accused establishes either aspect of the ‘defence of person’, either self-defence, or defence of another person (or persons), then he is entitled to an acquittal. [ 163 ] As a procedural matter, in cases involving trial by jury, it is the function of the trial judge to determine, first, whether, on the basis of the evidence, there is a so-called air of reality to the notion that the accused was defending himself (or others). [ 164 ] This air of reality test is a minimal threshold which must be met, in jury trials, before the jury is allowed to consider the defence of self-defence (and/or defence or others) in their deliberations.

It is also a fairly low and straight forward standard for the accused to meet. The judge will assume the evidence relied upon by the Defence is true and the question at this stage is simply whether a reasonable jury properly instructed might possibly acquit the accused.

[ 165 ] If such is the case then the judge will direct the jury respecting the substantive elements of the defence of self-defence, and/or defence of others, and application of the defence to the facts of the case. [ 166 ] The trial judge will further instruct the jury that discrepancies in the evidence between the Crown and Defence which they have difficulty resolving, or are unable to resolve, must always be resolved in favour of the accused. [ 167 ] Further, the judge will instruct the jury, once again, that it is the job of the Crown to disprove the defence of self-defence, or defence of others, and that the Crown must prove beyond a reasonable doubt that the defence does not apply. [ 168 ] In this case, as Defence Counsel has pointed out during argument, the situation respecting the application of self-defence, and/or defence of others, to the facts before me, as a judge sitting alone, is more legally simplified than it would be if this were a jury trial. [ 169 ] Defence Counsel points out that I need not instruct myself on the so-called air of reality threshold standard before going further to determine if the defence put forth is viable.

I need only, in this case, as Defence Counsel has said, be concerned with the ultimate determination – namely, whether the Crown has proven, beyond a reasonable doubt that the defence should not apply. [ 170 ] This is a sound approach to the application of the defence put forth in this case. First, as a matter of logic because I am not sitting with a jury.

Second, as a matter of common sense since there is clearly evidence in this case which, if this were a jury trial, I would allow a jury to consider after evaluating the evidence to determine whether the threshold air of reality standard had been met on the evidence before the Court. [ 171 ] Thus, I am able, in this case, as Defence Counsel suggests, to cut to the chase and decide whether the Crown has proven beyond a reasonable doubt that the defence put forth (self-defence, and/or the defence of others) does not apply. [ 172 ] Respecting the defence of self-defence and/or defence of other persons generally, it is precisely because it is the Crown’s job to disprove the defence of self-defence and/or defence of others, that the evidence required to support such a successful plea is often, as a matter of practicality as well as law, not all that difficult to establish. [ 173 ] For example, the law is clear that in ‘quick response situations’ accused persons are not required to ‘weigh to a nicety’ the exact measure of force needed to achieve self-defence or defence of others.

This notion is expressed in colloquial terms that an accused is not expected to measure the “fineness of his blows” in response to being assaulted by another person.

An accused is not expected to stop and reflect upon the precise risk of consequences from his defensive actions. [ 174 ] This is in keeping with the idea that individuals caught up in circumstances involving the ‘defence of person’ (either themselves and/or others) are in the midst of frightening events and do not have the removed clinical evaluation that a judge can engage in after the fact in a courtroom, and so should not be held to such a standard. [ 175 ] Finally – before I move on to the substantive aspects of the ‘defence of person’ – I should note that the evidential foundation necessary to found the defence can be indicated by evidence emanating from the examination in-chief or cross-examination of the accused, of Defence witnesses, or of Crown witnesses.

It can also rest upon the factual circumstances of the case or from any other evidential source on the record – for example, forensic or circumstantial evidence capable of supporting factual underpinnings of the defence. [ 176 ] There is no requirement that the evidence relied upon be adduced by the accused, although in most cases this is exactly what happens.

In which case, the testimony of the accused will dominate or become the most important aspect in the court’s evaluation of whether the Crown has disproved the claim of self-defence and/or defence of others. [ 177 ] Regardless of the provenance of the evidence relied upon to support the claim of self-defence, or the defence of other persons, the Court must engage in an assessment of whether the evidence relied upon is capable of supporting the inferences required for the defence to succeed.

[ 178 ] This then takes me to a consideration of the substantive aspects of self-defence and the question of what are the inferences required, as a matter of law, for the defence to succeed. [ 179 ] These inferences required for the defence to succeed are expressed also as the elements of the defence which must be established in order for the defence to succeed, bearing in mind, of course, that it is the Crown’s job to disprove these required inferences or elements of the defence at the required criminal standard. [ 180 ] The inferences or elements necessary to a successful plea of ‘defence of person’ (be it self-defence and/or defence of others) are found in s. 34 of the Criminal Code [ s.34 ]. [ 181 ]

Section 34 has 3 requirements which must be established for a successful plea of ‘defence of persons’. When assessing the evidence, the Court must consider whether all 3 requirements of the defence have been established.

So, the Crown need only prove beyond a reasonable doubt that any one of the requirements for the defence was not established in order to prove that the defence has not been made out. [ 182 ] The requirements found in s. 34 are as follows. [ 183 ] First, Criminal Code s. 34(1) (a) [ s. 34(1) (a)] says that an accused 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. [ 184 ] Section 34(1)(

a) does not require that the accused must believe that the force, or threat of force, to himself or another person will cause grievous bodily harm. The accused need only possess an honest, but reasonable belief that the aggression or threat of aggression exists. [ 185 ] In this case, the Crown has conceded that this first requirement of s. 34 has been met. Accordingly, I need not consider it in my analysis. [ 186 ] Second, Criminal Code s. 34(1) (b) [ s. 34(1) (b)] deals with the accused’s purpose in doing or performing the precise act that resulted in him getting charged. Section 34 (1) (

b) requires that this act which constitutes the offence is committed for the purpose of protecting the accused, or another person (or persons), from the use or threat of force. The standard here is a subjective one. The accused’s purpose in doing the act which gave rise to the charge must be for the purpose of defending himself or another person (or persons) from actual or threatened force. [ 187 ] In this case, the Crown has conceded that this second requirement of s. 34 has also been met.

Accordingly, I need not consider it in my analysis. [ 188 ] The third requirement which must be established in order for the defence of self-defence, and/or defence of others, to succeed is stated in Criminal Code s. 34(1) (c) [ s. 34(1) (c)]. This requirement deals with the reasonableness of the accused’s response to the violence or threat of violence that he or she faced at the time. [ 189 ] If the accused satisfies the first two requirements contained in ss. 34(1) (

a) and 34(1) (b), then he is entitled to an acquittal if he also satisfies this third requirement contained in s. 34(1) (c). [ 190 ] Under s. 34(1)(c), the Court must determine whether, respecting when the accused acted as he did, “the act committed is reasonable in the circumstances.” [ 191 ] The standard in assessing whether the act committed by the accused is (or was) reasonable in the circumstances is an objective

one. [ 192 ] At the same time, however, the accused’s subjective perceptions of the situation and circumstances does form part of the equation. In other words, the accused’s belief as to the nature of the harm or danger faced at least informs the question of whether his response to the harm or threat of harm was reasonable. [ 193 ] The only absolute requirement of s. 34(1)(

c) is that the act done must be reasonable in the circumstances. [ 194 ] However, the question of what other course(

s) of action was/were available to the accused, as well as the question of the proportionality of the accused’s response to the violence being inflicted or threatened upon himself or others must be taken into account by the court in making the ultimate objective determination as to whether the act of the accused was reasonable in the circumstances. [ 195 ] Indeed, as a matter of law these considerations have been incorporated into the equation pursuant to section 34(2) sub-sections (

b) and (

g) of the Criminal Code . [ 196 ] As a matter of common sense it would be rationally impossible to assess whether an accused’s actions in defending himself or another person were reasonable in the circumstances without being informed about what other course or courses of action were available to the accused person as well as the nature of the response of the accused to the violence he faced or was threatened with. [ 197 ] Section 34(2) gives the court guidance and direction in deciding whether the requirement of s. 34(1)(

c) has been established – in deciding whether the act committed by the accused was reasonable in the circumstances. [ 198 ] Section 34(2) says that in determining whether the act committed by the accused was reasonable in the circumstances, the court shall consider the relevant circumstances of the accused, the other parties involved, and the act done by the accused, including, but not limited to a list of 9 factors such as: 1. The nature of the force or threat; 2.

The extent to which the force or threat was imminent and whether there were other means available to the accused to respond to the potential use of force; 3. The accused’s role in the incident; 4. Whether anyone in the incident used or threatened to use a weapon; 5. The size, age, gender, and physical capabilities of the parties to the incident; 6. The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat or force and the nature of that prior force or threat of force; 7.

Any history of interaction or communication between the parties to the incident; 8. The nature and proportionality of the accused’s response to the use or threat of force; and 9. Whether the act committed by the accused was in response to a use or threat of force that the accused knew was lawful. [ 199 ] Obviously, while in any individual case, some factors on the list may stand out as more relevant and/or important in determining the reasonableness of the accused’s response, the list is expressly non-exhaustive and non-hierarchical.

Other factors not on the list, but relevant to the accused, the other parties, and the action of the accused which resulted in the charge, may also be considered. [ 200 ] There is clearly no dispute between the Crown and Defence that this case is about the 3rd requirement contained in s. 34(1) (

c) of the Criminal Code , and whether, in the words of that sub-section, “the act committed is reasonable in the circumstances.” [ 201 ] The act of the accused in this case is, of course, Colin Makpah’s act of inflicting the fatal intestinal wound upon DJ Gamble.

[ 202 ] In order for the ‘defence of person’ to succeed, this 3rd requirement of s. 34(1) must be established – namely the act of the accused must have been reasonable in the circumstances. [ 203 ] I have already spoken at length about how it is not upon the accused to prove the ‘defence of person’ to any specific evidential standard. [ 204 ] If I am satisfied that this 3rd requirement of the ‘defence of person’ has been established, then the accused is entitled to an acquittal.

If I am left with a reasonable doubt about whether this 3rd requirement has been met then the accused is entitled to an acquittal. [ 205 ] It is incumbent upon the Crown to persuade the Court, at the criminal standard of proof beyond a reasonable doubt, that this 3rd requirement has not been established and that therefore the ‘defence of person’ does not apply in this case. [ 206 ] It is within this context that I analyze this case. V. ANALYSIS A.

A consideration of the factors listed in section 34(2) [ 207 ] To repeat, this case turns on whether, pursuant to s. 34(1) (c), and in the words of that sub-section, “the act of the accused is reasonable in the circumstances.” [ 208 ] In making this determination, the Court is given, as I alluded earlier, both guidance and direction by s. 34(2). I must consider the relevant circumstances of the accused, the other parties involved in the incident, and the act of the accused which gave rise to the charge, within a context of, but not limited to, the 9 factors (

a) through (

h) listed in s. 34(2). [ 209 ] I will consider each of these 9 factors, for the most part, in the order in which they are listed in s. 34(2). (i). Factor # 1: s. 34(2)(a): the nature of the force or threat [ 210 ] The Defence position here is that Colin was faced with an extremely volatile situation, late at night, in the home of his best friend – a place where he would normally expect to be safe.

The Defence describes the nature of the force or threat to be one of escalating violence and points to the testimony of both Cheryl and Abraham who said, not only that “it all happened so fast,” but that within mere minutes DJ had become “completely out of control” and that his behavior had escalated from abusive yelling to pushing and shoving people around and according, at least to Colin, throwing both himself and Abraham to the floor. Defence Counsel urges the Court to reference the photos of the injuries to Colin’s back.

Defence Counsel describes these injuries as significant and says they corroborate Colin’s version of events about being slammed to the floor and show the severity of the violence he faced. [ 211 ] The Defence argues that this context of escalating violence best describes the nature of the force or threat and suggests that this context is proven first by Colin’s testimony that when he stabbed DJ he believed DJ was going to turn and attack the person behind him, who Colin believed was Cheryl.

In support of this proposition, Defence Counsel notes in particular (both in the Defence factum as well as in final submissions before me) the fact that DJ turned to attack the person behind him even after he had been struck on the head with a bottle with significant force.

Defence Counsel says this supports the notion that it is not fair to simply categorize DJ’s force as simply pushing and shoving – that it must be viewed within the context of an escalating level. [ 212 ] Defence Counsel notes her own client’s testimony that when he stabbed DJ, he did so in order to “stop him from attacking some more.” Colin testified as well that he believed that all three of them – himself, Abraham, and Cheryl were in danger as a result of DJ’s anger and aggression.

[ 213 ] Counsel also points to the testimony of both Abraham and Cheryl who agreed, during cross-examination, that they feared that DJ was going to harm someone. [ 214 ] The Crown argues that no one, except for the accused (Colin), had actually suggested that DJ’s aggression went beyond pushing, shoving, striking Cheryl on the lip with a magazine, and maybe taking a swing at her.

Accordingly, the Crown suggests that the nature of DJ’s force can be fairly characterized as pushing, shoving, and wrestling. [ 215 ] The Crown also references Abraham’s evidence where he described the nature of the fight with DJ as “just a regular fight.” [ 216 ] The Crown also emphasized – in terms of characterizing the nature of the force used by DJ - that DJ never punched anyone, never kicked anyone, never choked anyone, nor did he ever reach for or even threaten to use any kind of weapon. [ 217 ] I do agree that the injuries to Colin’s back are consistent with his testimony that he was thrown hard to the floor, but beyond that, and I have seen the photos, they are simply bruises.

While all bruising takes a little time before it can be seen, I think Colin’s own testimony that he did not even notice the bruising until the next day is telling in terms of his own perception about how serious these blunt force injuries were. Colin’s injuries are not, in my view, significant injuries. [ 218 ] In terms of injuries to others, Cheryl only suffered a minor cut to the lip as a result of being struck in the mouth by DJ with a magazine.

Further, the injuries to Abraham (a bruise to his shoulder and a small cut to the hand) were, by his own account, minor. [ 219 ] I am mindful that Abraham and Cheryl did express, during cross-examination, that they were fearful of what DJ might do, but I will deal with those fears and apprehensions, not under this heading respecting the nature of the force DJ used that night, but rather when discussing the second factor listed in s. 34(2), namely, the extent to which the use of force was imminent. [ 220 ] I agree that the fears and apprehensions of Abraham and Cheryl at the time about what DJ might do in his out of control mad rage certainly inform the question of the nature of the violence or threat of further violence they faced, but beyond that I need to look primarily at what DJ actually did to stoke such fears. [ 221 ] Abraham described the fight with DJ as just a “regular fight,” adding that on a scale of 1 to 10, in terms of severity, he would rank it as “less than a 5.” He also testified describing the fight involving the 3 men – DJ, Colin, and himself when they were in the kitchen as “wrestling on the floor.” [ 222 ] I got the impression, from listening to Abraham testify, that he was a fellow with some street smart experience who was well acquainted with the type of physical squabbles that can break out between men.

And so, I was much more impressed with his own narrative descriptions of the nature of the fight – and thus the nature of DJ’s violence - than I was with his simple agreement, or acknowledgment, during cross-examination, with suggestions put to him by Defence Counsel concerning his fears about what Colin might have done. [ 223 ] The nature of DJ’s violence was essentially, as the Crown has suggested, a matter of pushing and shoving and, as Abraham himself has testified, a matter of “wrestling on the floor.” [ 224 ] Even if we include the actions of throwing both men to the floor, in my view, the nature of the force used by DJ was at the minor end of the scale in terms of the type of violence that judges see described, almost daily, in our criminal courts across Canada. [ 225 ] I turn now to the second factor for consideration listed in s. 34(2). (ii).

Factor # 2: s. 34(2)(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

[ 226 ] The Defence position here is that the use of force was imminent. That when he was stabbed, DJ had already assaulted Cheryl and Abraham, and was in the process of assaulting Colin, and according to Colin he was giving every indication that if he got up he would go after, and harm, the person or persons behind him.

As far as Colin was aware, both Cheryl and Abraham were within reach if DJ got up and Colin had little time to react – only seconds in a highly emotional and charged environment. [ 227 ] Further, the Defence noted that Cheryl confirmed, during her testimony, that in order to stop the fighting and to protect herself and the others from DJ’s aggression she picked up an empty vodka bottle and smashed DJ over the head with it, but even this did not stop DJ.

This, says the Defence, supports Cheryl’s testimony that she was worried that if DJ got up “somebody could get beaten up, pretty good.” [ 228 ] Cheryl agreed readily with the suggestions made to her by Defence Counsel, during cross-examination, that after she swung the bottle, and as the men were still wrestling on the floor, she was so desperate for her own safety and for the safety of her baby, that she ran upstairs and made 3 calls to the taxi company before finally getting through. [ 229 ] The Defence noted that up until the point DJ was stabbed, the efforts of Colin and Abraham in using physical force alone to stop him were unsuccessful.

Indeed, in addition to Cheryl’s hitting DJ on the head, the efforts of Abraham and Colin to control DJ and to prevent him from continuing his assaultive behavior by keeping him on the floor only made DJ worse. [ 230 ] Further, the Defence says that the question of whether there were other means available to Colin to respond to the potential use of force should clearly be resolved in Colin’s favour.

The Defence suggests that there were no other means available to Colin. [ 231 ] In this regard, the Defence says the evidence supports a finding by the Court that DJ was stabbed as he was straddling Colin and holding him down with his weight.

The Defence says, in that position, Colin had little effective means left to respond to the use of force against him, and the likely use of force against the others (and especially the person he thought was standing immediately behind DJ), apart from the knife he had in his hand. [ 232 ] The Defence notes that Colin’s testimony, where he said, at the point where he stabbed DJ, that DJ “was out of control and it didn’t seem like anything was going to stop him anymore.” Defence Counsel suggests that Colin could not see any other way to stop DJ at the time, and that it was only after being stabbed 4 times in quick succession that DJ stopped fighting and fell to the side. [ 233 ] The Crown’s position respecting the extent to which the use of force was imminent, and the accompanying question of whether there were other means available to respond to the potential use of force, is clear.

The Crown says that the Court needs to focus on the nature or kind of force which may have been imminent, and second, within that context evaluate what other means may have been available to Colin than fatally stabbing DJ. [ 234 ] First, the Crown says that, for example, Cheryl testified that at no point was she afraid for her life, or for Abraham’s life.

She testified that she was only concerned that someone might get beaten up. [ 235 ] Similarly, the Crown says that Abraham testified that he was not afraid that Cheryl’s life or his own life was ever in danger during the course of the fight. [ 236 ] It is not necessary for the accused either to substantiate the ‘defence of persons’ generally or to have the question of what imminent force he faced resolved in his favor in order to establish or show that he (the accused) or others were in fear for their lives. [ 237 ] The Crown also notes that the Court, in assessing whether any other means than fatally stabbing DJ were available to Colin, should be mindful that Abraham testified he never considered reaching for a knife during the entire fight and he did not think that this fight had become so serious that maybe he should reach for a weapon.

[ 238 ] At the same time, I do not think it can be said that as the fight continued, albeit briefly, no further violence from DJ was imminent, if, in fact, DJ were to get up.

I think it was. [ 239 ] If DJ had gotten up off of Colin then it was likely, in my view, he would seek out Cheryl as well as Abraham as worthy targets. [ 240 ] However, I do not agree that this fear of imminent violence was, on the part of either Cheryl or Abraham, as serious as the Defence has made it out to be, despite their testimony in agreeing with Defence Counsel’s suggestions that they feared the possibility of perhaps getting beaten up. [ 241 ] In this regard, I think the actions of Cheryl and Abraham speak louder than their cross-examination testimony.

I have concluded that this testimony from Cheryl and Abraham concerning their fears about DJ might do was, at best, speculative on their respective parts. [ 242 ] For example, Abraham never left the house either out of fear, or to try to summon the police for help. It is true that the law does not require he flee from his own house.

The law says he is entitled to stay and defend himself and his home, but the fact that he did not run out, again either from fear or to get help, is very telling in terms of how imminent (and serious) he thought any potential violence might be. [ 243 ] Similarly, if Cheryl was truly afraid for the safety of herself and her baby, it is significant that she did not flee the house with her baby. Further, if indeed Cheryl was concerned about being beaten up, it is significant that she did not try to summon the police.

She had a cell phone, but chose only to text DJ’s brother to fetch him because he was “fighting with people here”.

Later, after Cheryl hit DJ with the bottle, and when she says the men were still wrestling on the floor of the kitchen, she ran upstairs and chose to call a taxi rather than the police. [ 244 ] However, in dealing with the words of s. 34(2)(b), and the “extent to which the use of force was imminent,” the more important question is not what was in Cheryl’s or Abrahams’ mind, at all. [ 245 ] The more important question is what was in Colin’s mind, in the moment before he stabbed DJ, about the imminence of potential violence – about what DJ might do – if he got up. [ 246 ] In assessing this question as well as the question of what other means were available to Colin other than stabbing DJ, I must, of course, bear in mind how quickly things happened. [ 247 ] At the same time, there are aspects of Colin’s testimony which bear on these questions, about which I am, frankly, suspicious. [ 248 ] For example, Colin says that in order to get DJ to stop his assaultive behavior, he told DJ he was going to get a knife, and that he also told DJ “I’ve got a knife.” [ 249 ] He testified that he said this loudly in order to intimidate DJ in the hope that this would work to get DJ to stop his assaultive behavior. [ 250 ] However, neither Cheryl nor Abraham remembers hearing Colin say anything like this, nor did they see a knife in his hands. [ 251 ] I have difficulty accepting the proposition that things happened so fast that neither of them remembered hearing or seeing something this important – particularly in Cheryl’s case given her sober state. [ 252 ] Nor did Colin actually show DJ the knife by flashing it or brandishing it in front of him – something which as a matter of common

sense, he might be expected to do if he wanted to intimidate DJ into stopping. [ 253 ] Colin also testified that he never intended to use the knife initially, at all. He said that it was only after DJ had him down that he made use of the knife – and only then because he thought it was the only way of stopping DJ. [ 254 ] Colin testified that he only used the knife when he saw that DJ was over him, getting up off of him, and turning around. At this point, Colin testified that he thought DJ was going after the person who had just swung the bottle, likely Cheryl.

Colin testified that he then stabbed DJ quickly, what he thought was 3 times, and that DJ fell to the side only after the last thrust. [ 255 ] However, Cheryl testified that after she swung the bottle she ran upstairs and that she could hear the men fighting downstairs for between another 1 and 3 minutes before “everything went quiet,” and that she immediately ran downstairs after hearing somebody (obviously Colin) run out of the house. [ 256 ] However, these suspicions aside, I am prepared to accept Colin’s testimony about how he threatened to get a knife, and how eventually he got a knife in order to intimidate DJ into stopping. [ 257 ] In fairness, things did happen very fast, and his testimony does not actually conflict significantly with that of Cheryl or Abraham.

Within this context then, I must be cautious not to dismiss Colin’s testimony about why he reached for a knife in a too clinical after the fact fashion simply based on suspicions. [ 258 ] Accordingly, I am prepared to accept Colin’s testimony that he threatened DJ that he was getting a knife and then afterwards, when this had no effect on DJ, he went and fetched one. [ 259 ] Having resolved this factual scenario in Colin’s favour is, however, merely the prelude to a consideration of the first question in s. 34(2)(b), namely, the extent to which the use of force was imminent. [ 260 ] In this regard, I am prepared to accept, from a subjective standpoint, Colin’s testimony that at the moment he stabbed DJ, he did so for fear of harm which might come to himself, as well as Cheryl and Abraham, if DJ were to continue the attack. [ 261 ] However, I do not accept that there was, from an objective standpoint, any basis for Collin to fear that DJ would do any serious harm given the minimal nature of the violent behavior that DJ had engaged in – including putting Abraham and Colin to the floor - up to that point.

Again, up to this point, DJ had not even punched anyone. [ 262 ] As for assessing the second question under consideration in s. 34(2) namely, whether there were other means available to Colin to respond to the potential use of force, I pause to note that in determining, ultimately, whether Colin’s act which constitutes the offence is (or was) reasonable in the circumstances it is important to observe that the act under consideration is the act of stabbing DJ. [ 263 ] It is not the act, or decision, to get the knife in order to intimidate DJ. [ 264 ] For example, before he was put down by DJ, there were clearly other means available to Colin to get DJ to stop his abusive behavior.

Colin readily admitted to the Prosecutor that he could have left the house and ran for help. And when the Prosecutor asked Colin why he did not, for example, reach for a bottle instead of knife, Colin’s response was “I don’t know” (Trial Transcript, 1090, 21). [ 265 ] However, the fact that there were other means available to Colin than to resort to a knife in order to intimidate DJ, is not probative of whether, at the time Colin stabbed DJ, there were other means available for Colin to respond to the potential violence. [ 266 ] Where I

part company with the Defence is with respect to the question of whether, at the time Colin stabbed DJ, there were other

means available to respond to the potential use of force. [ 267 ] The Defence says that the evidence supports a finding that DJ was stabbed as he was straddling Colin and holding Colin down with his weight.

In that position, Colin had little effective means left to respond to the use of force against him, and the likely use of further force against the others, apart from using the knife in his hands (Defence Factum: page 18, para 67). [ 268 ] In making finding of facts, I must, of course, be cautious to resolve any grey or unclear evidential inferences in favour of an accused. [ 269 ] That said, I do not agree with the Defence assertion that the evidence supports a finding that DJ was stabbed as he was straddling Colin and holding Colin down with his weight. [ 270 ] Colin testified in-chief how the next thing he remembered immediately after getting hit with the bottle was how “DJ started turning – turning his attention to whoever was behind him…that’s when I stabbed him.” [ 271 ] Colin’s lawyer asked him how it could be that he thought he was hit with a bottle when DJ actually had him pinned to the floor by the shoulders.

Colin replied by saying, “at that point I was kind of at a 45 degree angle, trying to get up…I was struggling to get up” (Trial Transcript, 1046, 1-3). [ 272 ] Colin’s lawyer also asked him whether, when he stabbed DJ for the first time, “DJ was still holding you at that point?” In reply, Colin said simply, “I can’t remember” (Trial Transcript, 1047, 12-13). [ 273 ] In cross-examination, the Prosecutor asked Colin what DJ did after he (Colin) got hit in the head with the bottle.

In response Colin said, “he was starting to get up off of me…and he was turning to his left.” The Prosecutor then ask Colin what he (Colin) did. Colin re- iterated his in-chief testimony and said, “that’s when I stabbed him” (Trial Transcript, 1102, 14-16; 1102, 19). [ 274 ] DJ may well have been straddling Colin in the most literal sense – in that DJ’s legs may have been on either side of Colin. [ 275 ] But I find that DJ was not stabbed by Colin while he was holding Colin down with his weight.

To the contrary, and by Colin’s own admission, DJ was in the process of getting up off of Colin when Colin decided to stab him 4 times in quick succession. [ 276 ] In addition, there were, in my view, other means available to Colin in order to respond to the potential use of force from DJ towards both himself and the others. [ 277 ] Colin had gained a momentary, but nonetheless clear advantage as DJ started to turn to get up. Colin was ea

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