r v. Wadih HANNA, 2023 QCCQ 8425

R. c. Hanna 2023 QCCQ 8425 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-231441-228 DATE: November 9, 2023 ______________________________________________________________________ BY THE HONOURABLE YVES PARADIS, J.C.Q. ______________________________________________________________________ His Majesty the King Prosecutor v. Wadih HANNA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Mr.

Wadih Hanna is on trial facing charges of assault with a weapon and uttering threats. [ 2 ] The complainant testified for the prosecution. Mr. Hanna testified for his defence. Photos of a plastic bag containing nuts and of a knife, and two sketches of the apartment were filed [1] . [ 3 ] The issues in this trial are mainly credibility because it is one person’s word against another’s, and self-defence. [ 4 ] Mr. Hanna and the complainant’s mother are ex-partners. The complainant says that Mr. Hanna used a knife and a bag of peanuts, knowing that he is allergic, to threaten his mother and him. Mr.

Hanna denies any assault or threats, saying that he used these objects only to defend himself from the complainant. CONTEXT [ 5 ] In the context of this case, it is appropriate to summarize each of the two testimonies. Testimony of the complainant [ 6 ] The complainant has known Mr. Hanna for several years. [ 7 ] In April 2022, Mr. Hanna was still residing with the complainant’s mother. The complainant visited them at least once a week. The complainant and Mr. Hanna had then an amicable relationship. [ 8 ] On April 3, 2022, the complainant watched a movie with his mother at her apartment.

Afterwards, the complainant took a shower while his mother took a nap on the couch. Then his mother went to the washroom. When she exited the washroom, the door slammed and woke Mr. Hanna up. [ 9 ] Mr. Hanna exited his bedroom upset and angry. He complained about the noise. He showed disrespect to the complainant’s mother. Mr. Hanna said that his mother owed money on the lease. He asked both of them to leave. [ 10 ] The complainant told Mr. Hanna to watch the way that he was talking to his mother and to show her respect. [ 11 ] Mr.

Hanna approached the complainant and told him to leave the apartment. [ 12 ] The complainant’s bag, containing his belongings and his phone, was already ready. The complainant and his mother were proceeding to leave but Mr. Hanna was in front of them, preventing them from recovering their belongings. Mr. Hanna was aggressive. [ 13 ] Mr. Hanna went to the kitchen and got a transparent bag containing peanuts [2] from the top of the fridge. He started throwing some of them in direction of the complainant, knowing that he is allergic to peanuts.

His mother tried to get between them to prevent the peanuts from hitting the complainant and the altercation to escalate.

[ 14 ] The complainant told Mr. Hanna that he was not scared of peanuts because he had his EpiPen with him. [ 15 ] Mr. Hanna went back to the kitchen, came back with a large kitchen knife [3] and told them that he would slash their throats. Mr. Hanna acted with rage, pointing the knife at both of them. The complainant was terrified. [ 16 ] Although the complainant was upset, he always remained calm and never argued. He never tried to hit Mr. Hanna. [ 17 ] His mother managed to open the door leading outside the apartment, pushed the complainant outside, closed and locked the door as she stayed inside with Mr.

Hanna. [ 18 ] The complainant heard screaming and yelling inside the apartment. He also heard his mother on the phone with the police. He yelled at his mother to open the door, while strongly kicking on it. [ 19 ] His mother exited the apartment with their bags. She was still in communication with the police. Mr. Hanna remained inside the apartment. [ 20 ] They took the elevator. Police officers arrived when they were exiting the elevator. Testimony of Mr. Hanna [ 21 ] Mr. Hanna was 61 years old at the time of the events.

Having a medical condition, he was under medication for heart problems, diabetes, and allergies. [ 22 ] The complainant’s mother is his ex-partner. They split four months before the events, after seven and a half years of living together. Their relationship remained civil. They agreed to share an apartment until June 2022. Each of them had their own bedroom. They shared the rent and expenses. [ 23 ] On April 3, 2022, Mr. Hanna came back to the apartment at around 1h00 p.m. There was nobody in the apartment. Being tired, Mr. Hanna decided to take a nap.

He closed the door of his bedroom. [ 24 ] He was awakened by five or six door slams. He got out of his room and saw his ex-partner, unaware that the complainant was present in the apartment. Mr. Hanna politely asked her to stop. She answered that she didn’t know what he was talking about. Then Mr. Hanna heard the complainant saying to him, aggressively and vulgarly, to shut up and go back to sleep. [ 25 ] Mr. Hanna was shocked. Until this point, he considered the complainant as a son. The complainant never spoke to him that way. [ 26 ] Mr.

Hanna walked to the exit door and firmly asked the complainant to leave, pointing at the door. [ 27 ] The complainant got up from the couch and walked in his direction with a closed fist, telling him to go back to sleep. The complainant approached Mr. Hanna at a distance of ten feet. [ 28 ] Having been told of certain incidents of violence involving the complainant in the past, Mr. Hanna got scared. Considering his medical condition, Mr. Hanna did not want to get involved in a physical fight with the complainant. [ 29 ] The complainant’s mother intervened and asked him to stop.

He pushed her away and got closer to Mr. Hanna, his fist still closed. [ 30 ] Mr. Hanna wanted to get out of there. He first walked towards the exit door . But, fearing that the complainant would overpower his mother and catch him, he ran in the kitchen instead. [ 31 ] The complainant was still coming after him. Mr. Hanna grabbed a knife located in a set near the oven. The blade of the knife remained covered with a guard at all times. Mr. Hanna kept the knife on his chest to protect himself. He never threatened the complainant to slash his throat. Mr. Hanna kept asking the complainant to leave the apartment.

His mother was asking the complainant to stop. [ 32 ] Although the complainant resisted, his mother managed to push him outside the apartment and close the door. She did not lock the door. She then gathered her things to leave. [ 33 ] Mr. Hanna put the knife back in its set and started walking towards his bedroom. At this moment, Mr. Hanna told her not to forget to pay the money she owned him for her share of the rent. [ 34 ] The complainant opened the door and came after him with a closed fist. His mother intercepted him. Mr. Hanna ran back in the kitchen . This time, Mr.

Hanna did not want to take a knife, thinking that the complainant might disarm him and use it against him. Instead, he grabbed a bag full of nuts in the freezer. Knowing that the complainant is allergic to peanuts, Mr. Hanna let him think that the bag contained peanuts to keep him away. Unbeknownst to the complainant, this bag did not constitute any danger since it did not contain any peanuts . Mr. Hanna took the bag only to protect himself. [ 35 ] The complainant told him that he was not scared because he had his EpiPen. His mother intervened again. [ 36 ] Mr. Hanna asked him to leave.

He never threw anything at the complainant. [ 37 ] The complainant’s mother took her phone, dialed 9-1-1 and said that Mr. Hanna was threatening their lives. Mr. Hanna shouted that she was lying. [ 38 ] The complainant and his mother left the apartment. Mr. Hanna put the bag of nuts back in the freezer. The police officers arrived

soon after. POSITION OF THE PARTIES [ 39 ] For the defence, the testimony of Mr. Hanna is reliable and credible. There is no reason to reject this testimony. He asked the complainant to leave several times. He took the knife and the bag of nuts only to protect himself. [ 40 ] For the prosecution, Mr. Hanna’s testimony is neither logic nor coherent. According to the prosecution, the version of the complainant makes more sense. Mr. Hanna could have gone to another place than the kitchen and used another thing than a knife.

LEGAL PRINCIPLES [ 41 ] For the offence of assault with a weapon, the Crown has to prove the following elements beyond a reasonable doubt: • the accused intentionally applied force to the complainant, • the complainant did not consent to the application of force, • the accused knew the complainant did not consent to the application of force, and • in applying force to the complainant, the accused used a weapon [4] . [ 42 ] Weapon is defined in

section 2 of the Criminal Code as any thing used, designed to be used or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person. [ 43 ] As stated by the Supreme Court of Canada in R. v. McRae [5] , the elements of the offence of uttering threats include: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten. The prohibited act is the uttering of threats of death or serious bodily harm. The threats can be uttered, conveyed, or in any way caused to be received by any person.

The question of whether words constitute a threat is a question to be decided on an objective standard in the context of all the words written or spoken and having regard to the person to whom they were directed. Would the questioned words convey a threat of serious bodily harm to a reasonable person? The fault element is made out if it is shown that the threatening words uttered or conveyed were meant to intimidate or to be taken seriously. [ 44 ] On the issue of credibility, the trial court should follow these principles: 1. If the court believes the evidence of the accused, it must acquit. 2.

If the court does not believe the testimony of the accused but is left in reasonable doubt by it, it must acquit. 3. If the court is not left in doubt by the evidence of the accused, it must consider on the basis of the accepted evidence if it is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [6] ANALYSIS [ 45 ] Self-defence is provided for in

section 34 of the Criminal Code :

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

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

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

c) the act committed is reasonable in the circumstances.

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

a) the nature of the force or threat; (

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

force; (

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

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

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

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

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

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 46 ] Under paragraph 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against him or someone else; second, under paragraph 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under paragraph 34(1)(c), the accused's act must be reasonable in the circumstances [7] .

These three inquiries can usefully be conceptualized as (1) the catalyst; (2) the motive; and (3) the response [8] . [ 47 ] The inquiry regarding the catalyst relates to the accused's state of mind and the perception of events that led him to act. Unless the accused subjectively believed that force or a threat thereof was being used against his person or that of another, the defence is unavailable [9] . This belief must be held on reasonable grounds [10] . [ 48 ] Regarding the motive, paragraph 34(1)(

b) requires that the act be undertaken by the accused to defend or protect himself or others from the use or threat of force. This is a subjective inquiry which goes to the root of self-defence. If there is no defensive or protective purpose, the rationale for the defence disappears [11] . The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance, or some other personal motivation. [ 49 ] The final inquiry under paragraph 34(1)(

c) examines the accused's response to the use or threat of force and requires that the act committed be reasonable in the circumstances [12] . The starting point is that reasonableness will be measured according to the relevant circumstances of the person, the other parties, and the act. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to consider certain characteristics of the accused — including size, age, gender, and physical capabilities.

Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties [13] . [ 50 ] If the evidence gives an air of reality to self-defence, it is up to the prosecution to convince the court beyond a reasonable doubt that at least one criterion of self-defence is not satisfied [14] . [ 51 ] There is an air of reality to this defence. Considering that it is one person’s word against another’s, the Court must assess their credibility and reliability and apply the principles cited above. Does the court believe the testimony of the accused?

An accused’s testimony should not be evaluated in isolation, but rather taking into account the whole evidence [15] . To conclude that it believes Mr. Hanna, the Court must reject the complainant's testimony in its entirety. The evidence does not allow such conclusion. [ 52 ] On the other hand, considering that there is evidence to support Mr. Hanna's testimony, it too cannot be rejected entirely. These elements are the presence of a guard which is designed to cover the knife blade [16] and the presence of different kinds of nuts in the bag [17] . Also, the complainant admits that Mr.

Hanna asked him to leave but he did not leave for two reasons: he had no obligation to leave, and he wanted to retrieve his personal belongings. Moreover, the probative value of the complainant's testimony that Mr. Hanna threw peanuts at him is questionable. Indeed, in his statement given to the police moments after the events, the complainant never said that Mr.

Hanna threw peanuts at him, although this is a significant element of his version of events. [ 53 ] Considering that the evidence gives an air of reality to self-defence, it is up to the prosecution to convince the Court beyond a reasonable doubt that at least one criterion of self-defence is not satisfied. [ 54 ] According to Mr. Hannah, at the beginning of the events, he asked the complainant to leave the apartment. In reaction, the complainant walked in his direction with a closed fist. He got closer to Mr. Hanna, still with a closed fist. Mr. Hanna ran to the kitchen.

The complainant was still coming after him. At that moment Mr. Hanna grabbed a knife, keeping the guard on the blade at all times. Mr. Hanna kept the knife in sight on his chest to protect himself. He never threatened the complainant. He kept asking the complainant to leave the apartment. Moments later, the complainant came back in the apartment and came after him with a closed fist. Mr. Hanna ran

back to the kitchen and took the bag of nuts which, according to Mr. Hanna, did not in fact constitute any danger to the complainant. He took the bag only to protect himself by holding it. [ 55 ] Mr. Hanna's belief that force would be used against him is based on the complainant's aggressive attitude and the fact that on each occasion the complainant walked towards him with a closed fist despite the intervention of his mother. Mr. Hanna subjectively believed that the use of force against him was imminent. According to his testimony, this belief was held on reasonable grounds.

Once again, it is up to the prosecution to convince the Court beyond a reasonable doubt that this criterion of self-defence is not satisfied. Mr. Hanna’s testimony cannot be put aside. [ 56 ] Regarding the motive, section 34(1)(

b) requires that the act be undertaken by the accused to defend or protect himself from the use or threat of force. According to his testimony, Mr. Hanna kept the knife in sight on his chest to protect himself, keeping the guard on the blade at all times. Then Mr. Hanna took the bag of nuts, which did not constitute any danger to the complainant, for protection purposes by holding it against himself. According to Mr. Hanna’s testimony, he used these objects only for a defensive or protective purpose.

The Court cannot put aside his testimony on this criterion. [ 57 ] The final inquiry requires that the act committed be reasonable in the circumstances. According to Mr. Hanna’s testimony, he only kept the knife and the bag of nuts in sight on his chest and did not use them in any other way. He never threatened the complainant or threw anything at him. The Court cannot put aside Mr. Hanna’s testimony. According to Mr.

Hanna’s testimony and considering his age, his medical condition, the age of the complainant, the complainant’s refusals to leave the apartment when asked and his mother’s inability to control him, these acts were reasonable in the circumstances. CONCLUSION [ 58 ] The prosecution did not convince the court beyond a reasonable doubt that at least one criterion of self-defence is not satisfied. [ 59 ] Moreover, the Court is left in doubt regarding the uttering of threats of death or serious bodily harm. THEREFORE For these reasons, the Court: findS Mr .

Wadih Hanna not guilty on count 1 and count 2. __________________________________ Yves Paradis, J.C.Q. Me Marie-Ève Fréchette-Royer For the prosecution Me Clara Daviault For Mr. Wadih Hanna Hearing: July 21, 2023, and September 12, 2023.