Her Majesty the Queen - v. -, 2022 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 7 Date: February 14, 2022 Information: 90414486 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Phillip Lionel Levac Appearing: Greg Chovin For the Crown Andrew Hitchcock For the Accused JUDGMENT M.

HINDS, J INTRODUCTION [ 1 ] The accused, Phillip Lionel Levac (Levac) is charged that on or about January 24, 2021 at Regina, Saskatchewan, he did wound Christopher Orville Lavelle (Lavelle) thereby committing an aggravated assault, contrary to section 268(2) of the Criminal Code . [ 2 ] On January 24, 2021 Levac and Lavelle were inmates at the Regina Correctional Centre situated in One Delta, which is a remand

unit. The two men shared cell 306 for several hours during the evening of January 23, 2021 and the morning hours of January 24, 2021. They subsequently encountered each other on January 24, 2021 in a hallway on Tier 3 near cell 307 around 1:00 p.m. A verbal and physical altercation took place between the two men. Four corrections officers (C.O.

s) soon arrived at the scene and separated the two men. Levac was placed in cell 306. Lavelle was taken downstairs to the infirmary. Lavelle was bleeding profusely from two lacerations to his head. Levac was not injured. [ 3 ] At the outset of the trial, the parties indicated that jurisdiction, identity of the accused and the date and time of the offence were admitted.

In addition, two exhibits were admitted into evidence by consent of the parties: Exhibit P-1, consisting of a package of six photographs taken of Lavelle on January 24, 2021 by Regina Correctional Centre staff in the medical unit and Exhibit P-2 a surveillance video of One Delta from January 24, 2021. [ 4 ] The Crown witnesses consisted of three C.O.s Keegan Wallace, Todd MacLeod and Jon Rintoul. Levac testified as the sole witness for the defence. He claimed that he acted in self-defence. [ 5 ] For the reasons that follow the Court finds the accused, Levac guilty of the offence of aggravated assault.

FACTS [ 6 ] Phillip Levac had been an inmate at One Delta for approximately six to eight months prior to January 24, 2021. One Delta is a protective custody remand unit. It is a special unit for certain inmates such as sex offenders, former gang members and other inmates who are considered not to be compatible with other inmates at the Regina Correctional Centre. On January 24, 2021, Levac was incarcerated on One Delta respecting a sexual offence he committed. [ 7 ] Levac was a cleaner of common areas on Tier 3 in One Delta. He occupied cell 306.

As a cleaner, Levac earned extra privileges such as being allowed to be outside his cell for more time than other inmates. [ 8 ] Lavelle was transferred to One Delta and was placed in cell 306 with Levac sometime during the evening of January 23, 2021 or early morning of January 24, 2021. Levac and Lavelle appeared to have little interaction with each other while they were confined to cell 306 apart from exchanging their names. [ 9 ] Later in the day on January 24, 2021 the two men were both out of cell 306. Cell 306 was not locked.

A violent altercation occurred between Levac and Lavelle in the hallway outside of cell 307 One Delta. This incident was visually captured by a security video which was played during the trial and marked as Exhibit P-2. There is no audio recording of the altercation. I have also viewed the video recording, Exhibit P-2 in private on a number of occasions. A

summary of what is depicted in the video on the afternoon of December 16, 2021 follows. [ 10 ] The video begins at 12:45:02. Levac is standing beside cell 307 on Tier 3. His body is positioned such that he is facing forward in the direction of cell 308. The right side of his body and his head is next to the door of cell 307. He appears to be speaking to an inmate located inside cell 307. A shower room is situated between cell 307 and cell 306. [ 11 ] Lavelle exits cell 306 at 12:53:35.

He walks past the shower room and Levac who remains situated beside cell 307 and continues down the hallway towards cell 311 which is near a stairwell. There does not appear to be any interaction between the two men at this time. Lavelle descends the stairs to Tier 2 and Tier 1, the ground floor where he walks to the bottom centre of the screen. He can no longer be seen on the video on the ground floor at 12:54:35. Lavelle is next seen on the ground floor, Tier 1 at 12:56:46. He walks towards the stairs, pauses for two inmates descending the stairs and then begins to walk up the stairs.

He arrives at the top of the stairs on Tier 3 at 12:57:36. The top of the stairs is near cell 311. Lavelle then immediately turns to his right and begins walking in the direction of Levac who is beside cell 307. It appears Lavelle is on his way to his cell 306. He is walking purposely and appears to be avoiding eye contact with Levac. At 12:57:40 Levac is seen to be looking at Lavelle. This continues as Lavelle walks towards him. As Lavelle walks past Levac at 12:57:46 Levac turns his head towards Lavelle. Lavelle continues to walk forward about five feet past Levac.

At 12:57:48 Lavelle stops walking forward and makes a 180 degree turn in the direction of Levac. It appears the two men are conversing for 30 seconds between 12:57:48 and 12:58:18. During this time Levac remains beside cell 307. Lavelle gradually moves closer to Levac. At first Lavelle moves within about two to three feet of Levac. By 12:58:12 Lavelle moves within about approximately one foot of Levac. At 12:58:18 Lavelle turns to his right, away from Levac and begins to walk in the direction of cell 306.

[ 12 ] At 12:58:19 Levac takes a step forward with his left foot, extends his left arm forward toward Lavelle and extends his right arm back in a striking position. At 12:58:20 Levac forcefully punches Lavelle once in the back of the head with his closed right hand. Lavelle is pitched forward and down. Levac strikes Lavelle five more times in the head, before Lavelle responds with a couple of punches to Levac. Levac hits Lavelle a few more times. Levac briefly grapples with Lavelle, and turns Lavelle so his back is to him.

Levac then strikes Lavelle in the back of the head and neck area 17 more times in rapid succession with downward blows from his right hand. Lavelle manages to square off and face Levac and throws a few punches at Levac. Levac then strikes Lavelle once in the face with his left hand. The two men then grapple with each other and Levac presses Lavelle’s back up against a shower wall. Levac strikes Lavelle two more times to the head with his right hand. Levac then puts his left arm around the back of Lavelle’s neck in a hold which he maintains until the C.O.s arrive on scene and separate the two men at 12:58:56.

The entire physical encounter lasted 36 seconds. Levac struck the first blow to Lavelle who was hit in the back of the head as he walked away from Levac. Levac was clearly the aggressor and dominated the fight. [ 13 ] C.O.s placed Levac in cell 306. Levac was not injured . Lavelle was bleeding profusely from the head. Lavelle was taken downstairs to the infirmary. He sustained two visible lacerations to the front and back of his head which are depicted in Exhibit P-1. Mr. Lavelle did not testify at trial. No medical evidence was tendered by the Crown respecting the nature and extent of Mr.

Levac’s injuries or any treatment that he received. The Evidence of the Corrections Officers [ 14 ] The C.O.s who testified at trial indicated that they attempt to maintain a safe, secure unit. This in

part involves placing compatible inmates together and separating inmates who are incompatible. I accept their evidence that if an inmate wants to move off a unit due to safety concerns, they accommodate that request. [ 15 ] Keegan Wallace is a C.O. with over seven years of experience. He testified that he and his partner, Todd MacLeod were working on One Delta on January 24, 2021. C.O. MacLeod was doing an inmate count around 1:00 p.m. At this time C.O. Wallace heard some yelling and determined a fight was happening between two inmates on Tier 3.

He called a Code Yellow on his radio which alerted other staff of an inmate fight. He recalled that he and C.O. Todd MacLeod got to the scene of the fight first, followed by C.O. Jon Rintoul. The C.O.s separated Levac and Lavelle. [ 16 ] C.O. Wallace provided evidence about the corrections environment and challenges of keeping inmates safe. He testified in-chief that sometimes inmates are afraid of other inmates. It is fairly common for inmates on One Delta to advise staff if they are concerned for their personal safety.

Inmates can express safety concerns to staff verbally or by way of notes or letters to staff, which are called “a check off”. This means the inmate wants to check off or leave the unit. In these circumstances, staff will find a safe spot on the unit for an inmate or inmates expressing safety concerns and contact a supervisor regarding the situation who will determine if an inmate should be moved off the unit. When staff become aware that one roommate is afraid of his roommate they separate them. One roommate is placed in a holding cell or an open cell on the unit. A supervisor is then advised of the situation.

This process happens quickly for roommates. By taking such steps a fight can be avoided. [ 17 ] On cross-examination C.O. Wallace agreed with the statement that if other inmates become aware that an inmate has come to staff with safety concerns regarding a roommate there may be consequences. These consequences may be that other inmates may view this as weakness or that the concerned inmate is on the side of the authorities and is a “rat”. [ 18 ] Todd MacLeod has worked as a C.O. for 13 years. He has worked on One Delta for the last five years. He was working on One Delta on January 24, 2021.

He testified that an incident occurred just before 1:00 p.m. when an institutional count of inmates took place on the unit. He became aware of a fight on Tier 3 and was first on the scene. C.O. Wallace was second on the scene. The officers separated the two men. C.O. MacLeod held Lavelle up against a wall and placed handcuffs on him. Levac was placed in cell 306. He observed that Lavelle was bleeding and had a few lacerations on the back of his head. Lavelle was taken to the medical wing of the correctional centre. [ 19 ] C.O Macleod testified that Levac had been on One Delta for sometime.

Levac never came to him regarding a concern for his safety. When inmates come to staff with concerns about their personal safety, depending on how serious the threat is, staff would get such an inmate off the unit as quick as they could, but it may involve a bit of a wait. When this occurs a C.O. II assesses the situation

and decides what to do. This may result in moving one of the inmates off the unit into a holding cell or it may involve keeping both inmates on the unit, placing each of them alone in separate cells with the doors secured. He agreed with C.O. Wallace that it is not unusual for inmates in One Delta to approach staff with their safety concerns. [ 20 ] On cross-examination C.O. MacLeod testified that after this incident Levac and Lavelle were moved to different units at the correctional centre.

He did not agree with the general statement that there is a strong code of honour among inmates that you do not go to the authorities with your problems, you handle them yourself. C.O. MacLeod said this depends on what the inmate is in the correction centre for. C.O. MacLeod agreed with the general statement that if an inmate goes to the authorities and asks for help and if other inmates find out about this, the other inmates may not take kindly to this. This might place the inmate in danger. However, C.O. MacLeod testified that there is a different dynamic on One Delta.

There are a lot of inmates who are incompatible and cannot be anywhere else. In addition, at the time of this incident there were a number of alleged sex offenders on the unit. C.O. MacLeod testified persons charged with sexual offences are very open when they are not feeling safe on the unit. The Evidence of Levac [ 21 ] The accused, Levac testified in his own defence.

The essence of his testimony was that he was acting in self-defence when he struck Lavelle because he feared that if he did not hurt Lavelle, then Lavelle would get a shank (homemade knife) and hurt him. [ 22 ] Levac testified in-chief that he is and was at all material times 6’ 1” tall and weighs about 240 pounds . He stated that he had been at the Regina Correctional Centre between two to two and one half years and was an inmate on One Delta on January 24, 2021. He first met Lavelle the night before when Lavelle arrived in cell 306.

Levac had no problems with Lavelle prior to the incident which occurred on January 24. 2021. [ 23 ] Levac was a cleaner on Tier 3. This meant he performed a variety of duties including distributing meals to other inmates and cleaning the range while other inmates were locked up. As a cleaner he would be outside his cell five to six hours a day, compared to other inmates who were permitted to be outside their cells a total of three hours a day. [ 24 ] Levac was in One Delta for a sexual offence.

Levac was of the view that other inmates at the correctional centre knew he was in custody for a sexual offence due to the amount of media attention that his case had received He stated that prior to this incident he has had issues or problems with other inmates because of status as a sexual offender. “Some guys take offence to it. It could get you killed. It could get you beat up.” [ 25 ] Levac had a different take on the process described by the two C.O.s when an inmate feels unsafe.

He understood that if a guard is told by an inmate that something bad is going to happen, the guard has a legal responsibility to do something about it. He testified “Going to a guard is not a good thing to do. Because it might get you past that one situation but then it puts a label on you that’s going to follow you everywhere you go and that never goes away. So then instead of facing a problem you can see in front of you, you are faced with a whole host of problems down the road that you might not see coming.

That’s when people die because they don’t see that they guys are going to try and hurt you, and they do.” [ 26 ] Levac further testified that if it was known to other inmates that he went to the guards at all, it would make him a pariah within the correctional centre. “No one is going to help you. No one is going to come to your side or your defence or anything like that. And just like I said you could go to a range and then have a whole bunch of people there know you are a rat, the slang term rat, for someone who tells on people. And then they won’t tell you, oh yeah we know this, they will just go at you.

Right. So you don’t see it coming. You are not prepared for it.” He added he once saw a guy on this range jumped for being a rat. [ 27 ] While he watched the video (Exhibit P-2) being played, Levac described what was happening. He testified in-chief as follows: -pause at 12:54. He can be seen on Tier 3 outside of cell 307. He is talking to Hickson Blacksioux who is inside cell 307 about a NFL semi-final game; -pause at 12:57:41. He is looking at Lavelle as he was walking towards him at cell 307. He does not recall any conversation as Lavelle walked up to him;

-pause at approx. 12:58 Lavelle is walking by him. Levac looks at Lavelle. Lavelle turns and walks towards Levac. Levac testified that Lavelle “ was telling me to pack my shit.” Levac explained this is a common slang term which means you have to leave the range. Levac thought these words were aggressive; -pause at 12:58:12. Levac testifies that he responded to Lavelle. “I said no, I am not going to pack my shit. I’m not going anywhere. I’m a cleaner here. I have been here for how long. I’m not going anywhere.” Lavelle responded, something like “You are not going to have a choice”.

Levac responded. “Well, you can’t make me.” Levac thinks Lavelle stepped closer towards him and said “I’m going to get my shank and make you leave.” Levac explained that a shank is a jail made knife. Levac thought that was the end of the conversation. Lavelle begins to walk away from him; -pause at 12:58:22. Levac testified that he was fearful of Lavelle, as he believed that Lavelle was serious about going to get his shank and carrying out his threat against him. Levac testified that he chose to strike Lavelle to defend himself.

By doing so Levac thought this would prevent Lavelle from getting a knife and he was confident that he and Lavelle would be separated by the guards after a fight. He stopped fighting Lavelle when he saw the guards, as he no longer had to defend himself; -Levac was asked in-chief why he did not go downstairs and speak to the guards after Lavelle said he was going to get his shank and was walking away from him. Levac testified “Because I don’t want that label on me.

Like I said, it might get me past that one moment but I wouldn’t be allowed to be a cleaner anymore.” Levac also agreed that he could have run away when Lavelle walked away from him to cell 306 which was about five feet away. [ 28 ] On cross-examination Levac testified as follows: -he had been on unit One Delta for six to eight months; -at 1:00 p.m. an institutional count of all inmates occurs on One Delta; -on January 24, 2021 he knew there were guards around the unit One Delta; -he did not want to approach staff with safety concerns as he could be labelled a rat; -yes, he could have run from Lavelle as they were not locked together in a cell, however, he did not see that as the correct course of action; -he explained that jail life is like living a life with two sets of rules.

There are rules that the guards set up. There are also inmate rules, which you have to live by. If you violate the guard’s rules, you could lose some privileges or get sent to SEG (a segregated unit) for a short time. By violating the inmate rules you could lose your life or a limb, be maimed or get lynched. In addition, if you violate inmate rules that follows you everywhere; -he agreed that his concern is not to violate this inmate code; - he agreed that he struck Lavelle first.

Lavelle did not strike him in any fashion before this; -he agreed that he is a fair bit bigger than Lavelle; -he agreed that he struck Lavelle when Lavelle was turning away from him to walk to the cell;

-he knew at this time, lock up was going to occur in seconds; -he agreed that at this time Lavelle could have gone into the cell and he could have easily walked downstairs and talked to a guard; -he agreed that as a cleaner he had more freedom to move about the unit and had more interaction with guards than most inmates; -he is aware that people do talk to guards about concerns about their safety. It does happen. Sometimes inmates have discussions with guards.

In addition, sometimes inmates pass guards notes, if they want to be more discrete and not be labelled as a rat; -Lavelle came into cell 306 around 1:00 a.m. Nothing happened between the two of them. There was no real discussion between the two of them then or during the morning. Lavelle asked him his name and where he was from; -as Lavelle walked past him outside cell 307, Lavelle said “Pack your shit up.” Levac said no. Lavelle eventually said he was going to get his shank and make Levac move. Levac thought Lavelle’s threat was real. He did not think this was an idle threat.

He assumed the threat was immediate, however, he acknowledged it could be at any time ; -he agreed that he testified in-chief that the reason he did not go down to speak to the guards after this threat was made because “he didn’t want that on me”. Levac further agreed that he did not want to break this inmate code; - he agreed that he got the best of Lavelle, fairly quickly.

Lavelle was trying to fight back but wasn’t making a lot of headway with him, because he got the first blow in and he is a lot bigger that Lavelle; -he agreed that Lavelle did not have a weapon on him; -he agreed that he was aware that when there are problems between roommates at the jail and one of the roommates approaches a guard and says I’m scared my roommate is going to kill me, the guards are probably going to separate the roommates; -he agreed he never saw Lavelle with a shank or any other weapon. ISSUES [ 29 ] The issues in this trial are: 1. What are the elements of the offence of aggravated assault? 2.

Credibility and findings of fact. 3. Has the Crown negatived self-defence? Analysis 1. What are the elements of the offence of aggravated assault?

[30] Sections 265, 266 and 268(1) of the Criminal Code, RSC 1985, c C-46 [Criminal Code], read as follows: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault ... 266 Every one who commits an assault is guilty of (

a) an indictable offence ... 268

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [31] The authorities disclose that the elements comprising the crime of assault, each of which the Crown must prove beyond areasonable doubt, are as follows: * the identity of the accused; * the date, time and place set out in the Information; * the accused intentionally applied force to the complainant; * the complainant did not consent to the force that the accused intentionally applied; and * the accused knew the complainant did not consent to the force that the accused intentionally applied. [32] In the case of aggravated assault, there are three additional elements: * the assault wounded, maimed or disfigured the complainant, or endangered the life of the complainant; * the accused's conduct caused the complainant to be wounded, maimed or disfigured, or endangered the complainant's life; and * a reasonable person would have realized that the accused's conduct would subject the complainant to the risk of bodily harm.

See: R v Godin, (SCC), [1994] 2 SCR 484; R v Brodie (1995), (BC CA), 60 BCAC 153 (BC CA); Rv Fontaine, 2011 BCCA 140, 274 CCC (3d) 474 and R v Peroz, 2019 SKQB 298. [33] I will firstly deal with credibility and findings of fact, then turn to the elements of the offence and whether the Crown has proventhose elements beyond a reasonable doubt. I will then analyze the availability of self-defence. 2. Credibility and findings of fact [34] This case requires an assessment of credibility of the witnesses.

As the accused testified, the starting point is an examination ofhis testimony in light of the totality of the evidence before me. [35] In Saskatchewan, this engages an analysis of R v W. (D.), (SCC), [1991] 1 SCR 742, and R v McKenzie (1996), (SK CA), 106 CCC (3d) 1 (Sask CA). Often cited as a jury instruction guide, this principle nevertheless bearsrepeating: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit;

Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [36] As in any case, a trier of fact may accept some, all or none of the evidence of a witness. In this case I found that Levac testifiedin a straight forward manner setting out his account of the incident before the Court.

Levac maintains during their hallway encounternear cell 307 Lavelle told him that he had to leave the range (“He was telling me to pack my shit.”). Levac told Lavelle he was notgoing to leave the range (“I’m not going anywhere”). Lavelle responded with words to the effect that Levac was not going to have achoice. Levac responded. “Well, you can’t make me.” Levac thinks Lavelle stepped closer towards him and said “I’m going to get myshank and make you leave.” Levac thought that was the end of the conversation. Lavelle then begins to walk away from Levac.

Levactestified that is when he first strikes Lavelle and thereafter continues to strike Lavelle. [37] I find that Mr. Levac maintained his account of the verbal exchange between the two men on cross-examination. In addition,Levac candidly acknowledged that he is a lot bigger than Lavelle, he struck Lavelle first and that he got the best of Lavelle fairlyquickly. [38] While the video, Exhibit P-1 lacks any audio, the visual portion shows a verbal interaction between the two men which lasts for30 seconds between 12:57:48 and 12:58:18. I note that the video appears to support Levac’s account of the incident.

While both menare wearing face masks, the video shows that the two men appear to be engaged in a conversation during which Lavelle gradually movescloser towards Levac. Lavelle is approximately one foot away from Levac when he turns away and begins walking in the direction ofcell 306. [39] The video clearly shows that the moment that Lavelle turned away from Levac, he struck Lavelle on the back of his head andcontinued to beat him. Levac does not deny he struck Levac first or that he continued to strike Lavelle. [40] Lavelle did not testify at the trial.

Hence, I am left with Levac’s uncontradicted account of the verbal exchange between the twomen. [41] For the reasons set out above, I find that Levac testified in a credible and reliable manner and I accept his evidence as to thewords that were exchanged between the two men during their 30 second hallway encounter. As Levac claims he acted in self-defence,this will require a separate analysis which is set out below. [42] In this case I found that each of the C.O.s testified in a straightforward, credible and reliable manner. I accept the whole of theirevidence.

Aggravated Assault Analysis [43] Based on the admissions and all of the evidence before me, it is clear that all of the basic elements for an assault have beenproven. What remains to be determined is whether an aggravated assault has been proven. [44] In this case of aggravated assault the Crown must also prove beyond a reasonable doubt that Levac’s assault wounded Lavelle. [45] There appear to be two competing

definitions of wound in Canada. The Ontario Court of Appeal in R v Brown, 2021 ONCA 678 and R v Wong (2006), (ON CA), 209 CCC (3d) 520 (Ont CA) defines “wound” as follows: To 'wound' means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person's body. It must bemore than something trifling, fleeting or minor, such as a scratch. [46] The British Columbia Court of Appeal in R v Pootlass, 2019 BCCA 96 at para 13 provides this definition of wound:

To briefly conclude, a wound, as the word is used in s. 268(1) of the Code , is a break in the continuity of the whole skin that constitutes serious bodily harm. Serious bodily harm is any hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant. This is a finding of fact, upon the application of the proper legal test.

This definition of wound was also adopted by the Alberta Court of Appeal in R v Richards , 2020 ABCA 63 , 389 CCC (3d) 189 . [ 47 ] The evidence before me reveals that after the physical encounter with Levac, Lavelle was bleeding profusely from the head. Lavelle was taken downstairs to the infirmary. The video, Exhibit P-2 shows blood-stains on the front of his shirt as he is led to the infirmary. Six photographs taken of Lavelle at the infirmary make up Exhibit P-1. Lavelle is no longer wearing his blood-stained shirt.

The first photo shows the back left side of his upper back and neck which has a large area of skin which is dark red in colour. There also appears to be a break in the skin near his spine. Photographs three and six reveal a gaping laceration on his forehead which is several inches in length. Photograph three shows Lavelle in a seated position beside a person who is holding a large gauze pad to the back of his head. A blood pressure cuff is attached to one of his arms. It is apparent he is still bleeding from the head. The blood is running down his face, chest, abdomen and pants onto the floor.

There is a pool of blood on the floor near his feet. The second, fourth, and fifth photographs are close-up shots of the back of his head. He sustained another gaping laceration to the back of his head, which appears to be one to two inches in length. Applying either the Ontario or British Columbia definition of wound I am satisfied beyond a reasonable doubt that the two lacerations are wounds. The skin on the back of Lavelle’s head was broken, cut or torn in two places.

Lavelle was bleeding for some time, which began during the altercation and continuing when the guards arrived and while he was escorted down two flights of stairs to the infirmary. A pool of blood can be seen on the floor beneath Levac. He required medical attention. The lacerations and resulting blood loss in my view interfered in a substantial way with Lavelle’s integrity, health and well-being. [ 48 ] Hence I find that Levac’s conduct caused Lavelle to be wounded. In addition, I find that a reasonable person would have realized that the accused's conduct would subject Lavelle to the risk of bodily harm.

As result I find that Levac committed an aggravated assault on Lavelle. 3. Has the Crown negatived self-defence? [ 49 ]

Section 34 of the Criminal Code governs the law of self-defence. It states: 34

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

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

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

c) the act committed is reasonable in the circumstances.

(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.

[ 50 ] In R v Peroz , 2019 SKQB 298 Justice Danyliuk provides a helpful

summary of the initial steps to be taken by a trial judge when self-defence is raised: [122] When self-defence is raised, the trial judge must first determine whether there is an air of reality to the defence, such that it should be put to the trier of fact. In this regard I note R v English , 2012 NLCA 64 , 328 Nfld & PEIR 14 , where at paragraph 9 the Court of Appeal said: [9] ... If the accused establishes an air of reality with respect to the components of the defence, the Crown must prove beyond a reasonable doubt that the defence does not apply.

An air of reality is established if "there is evidence on the record upon which a properly instructed jury acting reasonably could acquit". ... [123] Also see R v Cinous , 2002 SCC 29 , [2002] 2 SCR 3 . Where there was no air of reality to self-defence, it should not have been put to the jury; that is, if this threshold is not met, the trier of fact should not consider the defence.

As the trial judge I must first ask myself if there is some evidence as to self-defence that is reasonably capable of supporting an acquittal. [ 51 ] I am of the view that in this case there is an air of reality to the claim of self-defence. Put another way I am of the view there is some evidence as to self-defence that is reasonably capable of supporting an acquittal. As a result of this finding I must move on to determine whether the Crown has proven the inapplicability of this defence. [ 52 ]

Section 34 of the Criminal Code has recently been considered by the Supreme Court of Canada in R v Khill , 2021 SCC 37 [ Khill ]. In Khill , Justice Martin describes the structure of

section 34 at paragraph 37, as follows: [37] The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self- defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused's act must be reasonable in the circumstances.

Section 34(2) sets out nine non-exhaustive factors that shall be taken into account when considering if the accused's act was reasonable in the circumstances under s. 34(1)(c). [ 53 ] I will first consider what Justice Martin terms the catalyst, that is whether Levac believed on reasonable grounds that force was threatened or being used against him. Secondly I shall consider the motive, that is whether Levac acted for the purpose of defending himself; and lastly I shall consider the response, that is whether Levac’s actions were reasonable in the circumstances.

The Crown bears the onus of convincing me beyond a reasonable doubt that the answer to at least one of these questions is "no". The Catalyst: Whether Levac believed on reasonable grounds force was threatened or being used against him [ 54 ] In Khill , Justice Martin sets out what a court must consider under the first element of self-defence.: 1.

The Court must first consider the accused's state of mind and the perception of events that led them to act. “Unless the accused subjectively believed that force or a threat thereof was being used against their person or that of another, the defence is unavailable” ( para. 52). 2. This element of self-defence has a subjective and objective component. As Justice Martin states “Importantly, the accused’s actual belief must be held “on reasonable grounds”. The defence cannot operate exclusively on the accused's perception of the need to act; there is an objective component that overlays that belief (para. 53) . 3.

The test to judge the reasonableness of the accused's belief under the self-defence provisions is contextualized to some extent: the accused’s beliefs were assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused’s belief or actions (para. 54). 4. The question is: "what would a reasonable person with those relevant characteristics and experiences of the accused perceive" (para. 57).

[ 55 ] In this case, I am of the view that the relevant characteristics and experiences of the accused which should be attributed to a reasonable person include the fact he is a serving inmate in a correctional setting where threats of violence and actual violence between inmates can occur. This is in keeping with Khill and the Saskatchewan Court of Appeal decision in R v Raphael , 2009 SKCA 16 , 242 CCC (3d) 45 where the Court held that the trial judge erred by failing to consider the accused's actions while having in mind the prison environment.

In R v Primmer , 2018 ONCA 306 , 361 CCC (3d) 59 the Court also recognized that the prison setting and the inmate's code must be considered as crucial contextual factors in assessing self-defence. However, as stated by the Court of Appeal in Primmer , at para. 6 , that context does not trump the Criminal Code 's legal definition of self-defence. [ 56 ] I am of the view that when Lavelle stepped closer towards Levac during their encounter outside of cell 307 and said “I’m going to get my shank and make you leave” the accused subjectively believed that Lavelle was threatening to use force against him.

I accept that Levac thought this threat could be carried out in short order. Levac did not know Lavelle. In addition, he did not know if Lavelle had a shank in their shared cell 306. What he did know is that Lavelle was heading in the direction of cell 306 which was a short distance away. I am also of the view that a reasonable person who shared the attributes, experiences and circumstances of this accused situated in a correctional facility would reasonably believe that Levac was threatening to use force against him.

The Motive: Whether Levac acted for the purpose of defending himself [ 57 ] In Khill , Justice Martin sets out what a court must consider under the second element of self-defence at paragraph 59; [59] The second element of self-defence considers the accused's personal purpose in committing the act that constitutes the offence. Section 34(1)(

b) requires that the act be undertaken by the accused to defend or protect themselves 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 (see Brunelle v. R. , 2021 QCCA 783 , at paras. 30-33 ; R. v. Craig , 2011 ONCA 142 , 269 C.C.C. (3d) 61 , at para. 35 ; Paciocco (2008), at p. 29).

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. [ 58 ] In this case Levac testified that he was fearful of Lavelle, as he believed that Lavelle was serious about going to get his shank and carrying out his threat against him. Levac further testified that he chose to strike Lavelle to defend himself.

By doing so Levac thought this would prevent Lavelle from getting a knife and he was confident that he and Lavelle would be separated by the guards after a fight. [ 59 ] Levac was not shaken on this point on cross-examination. He has always maintained he was afraid of Lavelle and acted in self- defence. I find there is no reason to disbelieve him on this. I accept Mr. Levac's testimony that he acted for the purpose of defending himself.

The Response: Whether Levac's actions were reasonable in the circumstances [ 60 ] In Khill , Justice Martin sets out the underlying purpose of the third element of self-defence at paragraph 62 as follows: [62] The final inquiry under s. 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". The reasonableness inquiry under s. 34(1) (

c) operates to ensure that the law of self-defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The law of self-defence might otherwise "encourage hot-headedness and unnecessary resorts to violent self-help" (Roach, at pp. 277-78).

That the moral character of self-defence is thus now inextricably linked to the reasonableness of the accused's act is especially important as certain conditions that were essential to self-defence under the old regime — such as the nature of the force or threat of force raising a reasonable apprehension of death or grievous bodily harm — have been turned into mere factors under s. 34(2). [ 61 ] In R v Jobe , 2021 ONSC 7508 Justice Nakatsura of the Ontario Superior Court provides a helpful

summary of the guidance that Khill provides a court in considering the third element of self-defence at paragraphs 119 and 120: [119] In assessing the factors under s. 34(2), the focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time. "Relevant circumstances of the accused" in s. 34(2) can also include

any mistaken beliefs reasonably held by the accused. The reasonableness inquiry under s. 34(1)(

c) is primarily concerned with the reasonableness of the accused's actions , not their mental state. The objective assessment of s. 34(1)(

c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused's qualities and experiences. [120] I must consider all factors set out in paragraphs (

a) to (

h) of s. 34(2) that are relevant in the circumstances. This list of factors is not exhaustive. It is for the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise. No single factor is necessarily determinative. [ 62 ] The first factor to consider under section 34(2)(

a) is the nature of the force or threat. In this case Lavelle threatened to get a shank and make Levac leave the range. By using these words Lavelle threatened to bring a knife into his verbal confrontation with Levac. The threat of getting a knife made the threat more serious as a knife can cause death or serious bodily harm. [ 63 ] The second factor to consider under section 34(2)(

b) is 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. [ 64 ] Levac testified on cross-examination that he assumed the use of force was imminent , however, he did concede that it could be at any time.

Given, that Levac did not know Lavelle and what he was capable of and the proximity of cell 306, I am prepared to find that the threat of getting a knife was imminent. [ 65 ] Levac testified he was well aware that after Lavelle made the threat to get a knife and walked away from him, he could have gone downstairs and spoken to the guards about his situation or passed them a note. He was also aware by taking such action the guards would separate the two men.

He deliberately decided against this course of action because of a prison code that inmates do not talk to guards and tell on other inmates, which he felt bound by. If an inmate breaks this prison code, Levac explained, he is labelled a “rat”. Levac did not want to be labelled a “rat”. In addition, Levac testified in-chief “Like I said, it might get me past that one moment but I wouldn’t be allowed to be a cleaner anymore.” This portion of Levac’s testimony is telling for two reasons. In the first place he acknowledged that by speaking to the guards he could have avoided a physical confrontation with Lavelle.

Secondly, Levac appears to be under the impression that if he spoke to the guards he would lose his coveted job as a cleaner. [ 66 ] The evidence of the C.O.s was very clear. It is not unusual for inmates in One Delta to approach staff with safety concerns.

When inmates come to corrections staff with concerns about their personal safety involving another inmate, staff would separate the inmates and quickly move one or both off the unit. [ 67 ] In this case Levac chose to honour a prison code he felt bound by and take matters into his own hands by striking Levac and inflicting a serious beating on him, rather than go to corrections staff with his safety concerns. Levac could have easily gone to the C.O.s with his safety concerns. Levac was not locked up. Lavelle was walking away from him towards cell 306.

Levac could have simply walked in the opposite direction and descended the stairs to the C.O.s. [ 68 ] I am of the view that a reasonable person in these circumstances would have gone to the C.O.s with his safety concerns. I am of the view that a reasonable person in these circumstances would not have resorted to the violent self-help remedy of striking Lavelle from behind and beating him as Levac did. [ 69 ] The third factor to consider under section 34(2)(

c) is the person's role in the incident. In Khill , Justice Martin took up a good portion of her decision setting out what this phrase means. This is best summarized at paragraphs 123 and 124 as follows: [123] In sum, the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances. To answer that question, as Parliament's inclusion of a "person's role in the incident" indicates, fact finders must take into account the extent to which the accused played a role in bringing about the conflict or sought to avoid it.

They need to consider whether the accused's conduct throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation that culminated in the act giving rise to the charge. [124] The phrase enacted is broad and neutral and refers to conduct of the person, such as actions, omissions and exercises of judgment in the course of the incident, from beginning to end, that is relevant to whether the act underlying the charge was reasonable — in other words, that, as a matter of logic and common sense, could tend to make the accused's act more or less reasonable in the circumstances.

The conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. This includes, but is not limited to, any behaviour that created, caused or contributed to the confrontation. It also includes conduct that would qualify under previous concepts, like provocation or unlawfulness, but it is not limited to or circumscribed by them. It therefore applies to

all relevant conduct, whether lawful or unlawful, provocative or non-provocative, blameworthy or non-blameworthy, and whetherminimally responsive or excessive.

In this way, the accused's act, considered in its full context and in light of the "equities of thesituation", is measured against community standards, not against the accused's own peculiar moral code (Paciocco (2014), at p. 290;Phillips, at para. 98). [70] In the present case the evidence reveals that the two men first met each other sometime in the late evening hours of January 23,2021 or in the early morning hours of January 24, 2021 when Lavelle first joined Levac in cell 306. Apart from exchanging names theinteraction between the two men while in cell 306 appears to be minimal and inconsequential.

Sometime in the morning of January 24,2021 Levac left cell 306 to do his cleaning job on Tier 3. There is no interaction between the two men at shortly after 12:53:35 whenLavelle leaves cell 306 and walks past Levac. The beginnings of an interaction between the two men began just seconds after 12:57:36 when Lavelle returns to Tier 3 and beginswalking in the direction of Levac who is situated beside cell 307. As previously indicated, as Lavelle begins his walk on route to cell306, he is walking purposely with his head tilted slightly downward.

It appears Lavelle is avoiding eye contact with Levac as he iswalking towards him. The same can not be said for Levac. At 12:57:40 Levac is seen to be looking at Lavelle as he walks towards him.This continues as Lavelle walks forward. As Lavelle walks past Levac at 12:57:46 Levac turns his head towards Lavelle. Lavellecontinues to walk forward about five feet past Levac. Everything changes at 12:57:48 when Lavelle suddenly stops walking forwardand makes a 180 degree turn in the direction of Levac. It appears the two men are conversing for next 30 seconds between 12:57:48and 12:58:18.

During this time Levac remains beside cell 307 with his head turned towards Lavelle. Lavelle gradually moves closer toLevac. At first Lavelle moves within about two to three feet of Levac and then squares off facing him. By 12:58:12 Lavelle moveswithin about approximately one foot of Levac. At 12:58:18 Lavelle turns to his right, away from Levac and begins to walk in thedirection of cell 306. At 12:58:19 Levac strikes Lavelle. [71] According to Levac, Lavelle began their verbal interaction at 12:57:48 by telling Levac “To pack his shit” (leave the range). Heinterpreted this as an aggressive message, which it was.

The conversation appears to have continued for the next 30 seconds. Ratherthan attempt to de-escalate the situation by simply not responding or agreeing to leave, Levac stood his ground and told Levac that “I’mnot going anywhere.” I am of the view this response was also aggressive and escalated things. Lavelle then said words to the effect thatLevac was not going to have a choice. Once again Levac did nothing to de-escalate the situation. Rather, perhaps due to his sizeadvantage over Lavelle, Levac said “Well, you can’t make me.” I am of the view that this response was unnecessarily confrontational.

It was at that point in time that Levac thinks Lavelle stepped closer towards him and said “I’m going to get my shank and make youleave.” [72] In this case I find that Levac’s words in response to Lavelle were reckless and contributed to the escalation of confrontation andled to Lavelle’s threat to go and get his shank and make Levac move. [73] The fourth factor to consider under section 34(2)(

d) is whether any party to the incident used or threatened to use a weapon. Inthis case Lavelle threatened to get a knife and make Levac move. [74] The fifth factor to consider under section 34(2)(

e) is the size, age, gender and physical capabilities of the parties to the incident. At the time of the incident Levac was 6’ 1” tall and weighed about 240 pounds. Lavelle by comparison, is a slighter, smaller man. Bothmen were physically capable of fighting. However, Levac was clearly the bigger of the two men, got in the first blow and dominated thefight. [75] The sixth factor to consider under section 34(2)(

f) is the nature, duration and history of any relationship between the parties to theincident, including any prior use or threat of force and the nature of that force or threat. As has been previously stated, the two men meteach other for the first time no more than approximately fourteen hours earlier. There was no use of force or threat of force prior to theincident. [76] The seventh factor to consider under section 34(2)(f.1) is any history of interaction or communication between the parties to theincident. See paragraph 70 above. [77] The eighth factor to consider under section 34(2)(

g) is the nature and proportionality of the person's response to the use or threatof force. Once Lavelle had turned away from Levac and began to walk away Levac first struck Lavelle in the back of the head with aclosed fist. This sucker punch was a significant blow with much force behind it. Rather than grab hold of Lavelle as Levac did in the latestages of the fight as the C.O.s arrived, Levac continued to strike Lavelle 25 more times before grabbing him in a neck hold. Levac wasclearly the aggressor and dominated the fight which lasted 36 seconds as set out in detail in paragraphs 11 and 12 above.

While theaccused is not required to "weigh to a nicety" the amount of force used under the rubric of proportionality (R v Baxter (1975), (ON CA), 27 CCC (2d) 96 (Ont CA), at p 111; see also R v Hebert, (SCC), [1996] 2 SCR 272 at para 18.

I am of the view that a reasonable person would conclude that the additional 25 strikes delivered to Lavelle by Levac and in particular the 17 downward strikes that Levac delivered in rapid succession to the back of Lavelle’s head and upper body area were disproportionate, to Lavelle’s threat of getting a knife. [ 78 ] The nineth factor to consider under section 34(2)(

h) is whether the act committed was in response to a use or threat of force that the person knew was lawful. This factor does not apply to this case. [ 79 ] When I consider the evidence as a whole, taking into account all the relevant factors in section 34(2), I am of the view that Levac’s assault upon Lavelle was not reasonable in the circumstances. I am satisfied beyond a reasonable doubt that the Crown has negatived section 34(1) (

c) of the Criminal Code . Accordingly, Levac cannot avail himself of the defence of self-defence in the circumstances of this case. CONCLUSION [ 80 ] After a full examination of the evidence before me and a review of the applicable statute and case law, I am satisfied the Crown has proven each element of the offence beyond a reasonable doubt. Self-defence does not apply to this case. I therefore find Levac guilty of aggravated assault on Lavelle. ______________________________ M. Hinds, J