R. v. Lopez-Quebedo Date:, 2016 BCPC 46

Citation: R. v. Lopez-Quebedo Date: 20160226 2016 BCPC 0046 File No: 231510-5-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSE RUFINO LOPEZ-QUEBEDO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: B. Wolfe Counsel for the Defendant: G. Lee Place of Hearing: Vancouver , B.C. Dates of Hearing: June 29, 30, July 2, November 9, 10, and December 23, 2015 Date of Judgment: February 26, 2016

INTRODUCTION [ 1 ] Oscar Ramirez (“Ramirez”) was stabbed just lateral to the right side of his mouth, by the accused, Jose Rufino Lopez-Quebedo (“the accused”). The accused used a pair of scissors to stab Ramirez. [ 2 ] The accused has been charged with the aggravated assault of Ramirez. He has also been charged with committing an assault upon Ramirez by using a weapon, the scissors.

ISSUES [ 3 ] The accused admits that he stabbed Ramirez, but he asserts he only did so in defence of himself in response to an assault by Ramirez, who the accused asserts was trying to steal his watch or bracelet. [ 4 ] The credibility and ultimate reliability of the accused’s testimony must be determined in relation to his assertion that his actions in stabbing Ramirez were justified at law.

BACKGROUND [ 5 ] On November 1, 2013, Ramirez was with his friend, Andres Matias Andres (“Andres”), at a park near the Mount Pleasant Community Centre (“Community Centre”) at approximately 1:00 PM. [ 6 ] Ramirez recalled in direct examination that he was standing near a park bench and chatting with Andres when he was suddenly approached by the accused who stabbed him in the face with scissors. Ramirez recalled the accused said, “that is what you want”, before he fled from the scene. [ 7 ] Ramirez recalled that he had interacted with the accused on one prior occasion.

At that time the accused had asked him for some money to buy something, but Ramirez was unable to recall the details of that first interaction. [ 8 ] Ramirez denied that he threatened the accused or that he challenged him to a fight prior to being stabbed by the accused. [ 9 ] Ramirez denied the suggestion of the accused in cross-examination that he was sitting on a bench in the park drinking beer with Andres. [ 10 ] Ramirez also denied the suggestion of the accused that he stood up when he saw the accused and asked the accused for money to buy some beer.

Ramirez also denied the suggestion of the accused that, at that time, he grabbed the left wrist of the accused in an effort to steal the accused’s watch or bracelet and that was when he was stabbed by the accused. [ 11 ] After the stabbing, police and EHS personnel were dispatched to the park. Ramirez was first taken to the emergency ward at Vancouver General Hospital (“VGH”). Apparently Ramirez was seen on two occasions at VGH on November 1, 2013, but on both occasions Ramirez left the hospital against medical advice. Ramirez was next attended to at St. Paul’s Hospital shortly after midnight on November 2, 2013.

On this occasion medical treatment was provided by Dr. Saona. Dr. Saona described the stab injury to be approximately one cm in length which he repaired with sutures. [ 12 ] In his medical legal report, Dr. Saona described Ramirez as intoxicated and confused. Records on file at St. Paul’s Hospital reported that Ramirez had a low baseline intellect and he had a well-documented history of alcoholism and pancytopenia. [ 13 ] Clinically there were no signs that Ramirez was having difficulties breathing. Likewise, other than the intoxication, Ramirez’s bloodwork was normal.

There was no evidence of airway compromise. [ 14 ] It was further the opinion of Dr. Saona that, had Ramirez not received treatment at St. Paul’s Hospital, the bleeding from the stabbing would likely have continued for a period of time, but would have eventually stopped with the passage of time and some direct pressure. [ 15 ] There was no indication in Dr. Saona’s report that the injury to Ramirez was life-threatening. Of greater concern to Dr.

Saona was Ramirez’s inability to care for himself, so Ramirez was admitted for observation for his personal safety. [ 16 ] Andres testified in direct examination that he was with Ramirez on November 1, 2013, at the park near the Community Centre. He recalled that they were standing near a bench drinking beer. Andres described himself as being drunk. He recalled seeing a man approaching them at a rapid pace. This man suddenly stabbed Ramirez in the face. Andres did not recall this person saying anything. [ 17 ] Andres testified that Ramirez did not say anything to this man prior to being stabbed.

He denied that Ramirez had a weapon in his hand prior to being stabbed. [ 18 ] Following the stabbing, Andres believed that the assailant ran away but he was not sure where he went. [ 19 ] Andres testified in cross-examination that he had consumed in excess of 11 beers before going to the park near the Community Centre where more beer was consumed. Andres testified that Ramirez was an alcoholic and that he probably had consumed the same amount of beer that Andres consumed that day. [ 20 ] Andres was presented with some photographs taken of the park by the police following the stabbing.

Andres agreed with the accused that two empty cans of beer depicted near the park bench were consumed by him and Ramirez. [ 21 ] Andres was unable to say whether or not the accused was wearing a bracelet at the time Ramirez was stabbed. There was a

reference in his statement to the police that the accused was wearing a silver bracelet on his right wrist. He was unable to confirm at trial any recollection of that reference in his statement. [ 22 ] Andres did not recall that he told the police in his statement that Ramirez said words to the effect, “don’t play with me” prior to being stabbed by the accused. [ 23 ] Andres testified that English was his second language and he had difficulty in understanding the questions that were asked by the police when he gave his statement.

In addition, Andres testified that his memory of events was poor because he was drunk on the date that Ramirez was stabbed. [ 24 ] Kulbir Sekhon (“Sekhon”) was working at the Community Centre on November 1, 2013. He happened to be looking out one of the windows shortly before 1:00 PM when he observed a man walking in the back alley adjacent to the Community Centre holding scissors in his right hand. [ 25 ] Sekhon momentarily lost sight of this person. After a very short part of time Sekhon regained visual contact with this person.

He noted at that time that this individual was no longer holding the scissors. [ 26 ] Sekhon’s observations were passed along to the police when they became involved in the stabbing investigation of Ramirez. The lane adjacent to the Community Centre was searched and scissors were located in a bush in the laneway. [ 27 ] Nancy Wong (“Wong”) testified in direct examination that she was looking southeast from a window in her apartment building when she saw an altercation take place in the park near the Community Centre. She described the weather condition as clear and bright.

Wong approximated that she was eighty to ninety feet away from the altercation. She described having an unobstructed view of the altercation. [ 28 ] Wong observed a man walking across the intersection adjacent to the park where two men were located. Wong saw this man unwrap something silver in colour and then strike one of the men in the right side of his face. [ 29 ] Wong did not note any interaction between the assailant and the man struck in the right side of the face.

She observed the assailant to walk a short distance away before he proceeded down an alley adjacent to the Community Centre. [ 30 ] In cross-examination, Wong recalled that the two men in the park were sitting on a bench in the park drinking beer prior to the altercation. She did not note any conversation taking place between any of the individuals involved in the altercation. [ 31 ] Wong testified that the man who was struck in that the right side of the face was facing away from the assailant at the time of the attack.

She specifically recalled that the strike was to the right side of the face and that no one grabbed anyone prior to the strike. [ 32 ] Wong described the altercation as taking place very quickly. [ 33 ] The accused is 68 years of age and has no criminal record. He testified in direct examination that he went to a store near the Community Centre to buy a comb and scissors.

After purchasing a comb and scissors, he was walking home when he passed by the park where Ramirez and Andres were located. [ 34 ] The accused testified that as he walked by Ramirez, Ramirez tried to get hold of his watch on his left wrist, and at the same time, asked him for money to buy beer. The accused testified that he was two to two and a half feet away from Ramirez when this confrontation took place. [ 35 ] The accused described Ramirez then hooking a finger under his watch band. At the same time, Ramirez was still asking him for money.

The accused said “no” and brought out the scissors that he had just purchased and “pinched him with [his] scissors in his lower lip because he didn’t respect [him]”. [ 36 ] The accused asserted that he was simply defending himself at the time he struck Ramirez. He described that Ramirez continued to have a finger hooked around his watch when he “pinched him”. [ 37 ] The accused reiterated that he struck Ramirez in the face “to stop him so he would respect me”.

After striking Ramirez in the face, the accused did not recall Ramirez saying anything as he had been “humbled”. [ 38 ] The accused testified that he had no other options to avoid an altercation at the time he was confronted by Ramirez. He described Ramirez as much bigger and younger, which caused the accused to be more fearful. Additionally, there had been a prior altercation between Ramirez and the accused in which Ramirez had shown an interest in his watch. [ 39 ] In cross-examination, the accused conceded that there was no doubt that he had stabbed Ramirez.

He also agreed that he was angry at the time of the altercation with Ramirez. [ 40 ] The accused also claimed that on many occasions in the past Ramirez had tried to take his watch. He described on these prior occasions that Ramirez would also ask him for money. Though there were these prior incidents the accused did not feel there was a need to go to the police. [ 41 ] The accused denied the suggestion that he had other options before resorting to the use of the scissors to the face of Ramirez.

The accused testified that he stabbed Ramirez as he was afraid that Ramirez would hit him or hurt him. [ 42 ] The accused denied the suggestion that he was going to teach Ramirez a lesson when he stabbed him. [ 43 ] The accused agreed that the scissors found by the police in a bush in the alley adjacent to the Community Centre were the same scissors that he used to strike Ramirez. He agreed that he was concerned about what happened and that was why he got rid of the

scissors. POSITION OF THE PARTIES (

i) The Crown Position [44] The Crown submitted that the Court ought to reject the evidence of the accused as lacking in credibility. The Crown noted thatthe evidence of the accused stands alone in his assertion that he had to stab Ramirez to prevent him from stealing his watch and/or todefend himself. Wong was a completely independent witness who made no such observation of any attempt robbery of the accused byRamirez. [45] The Crown identified inconsistencies in the evidence of the accused, including when the accused in direct examination recalledonly one prior incident involving himself and Ramirez.

In cross-examination, the accused testified that there were many incidentsinvolving him and Ramirez in which Ramirez tried to get his watch and his money. [46] The Crown submitted that the accused’s motivation in stabbing Ramirez did not turn on any self-defence or defence of propertyconcerns, but rather, turned on the accused’s belief that Ramirez did not respect him. [47] The Crown submitted that while the accused may assert that he had to defend himself or his property by stabbing Ramirez, itwas telling that he abandoned the knife in a bush in the alley adjacent to the Community Centre. [48] The Crown submitted that in relation to self-defence there was no air of reality to the defence and it ought to be rejected.

If theCourt should find that there was an air of reality to the defence, then the nature and proportionality of the accused’s response by stabbingRamirez in the face would render the defence unavailable. [49] Similarly, in relation to defence of property, the Crown submitted there was no air of reality to that defence and it ought to berejected.

In the event the Court should find there was an air of reality to the defence, the evidence would not support such a defence. [50] In relation to the injury sustained by Ramirez, the Crown submitted that the medical evidence was sufficient to establish anaggravated assault rather than an assault causing bodily harm. [51] The Crown submitted that the Court was entitled to find the accused guilty of both aggravated assault and assault with aweapon. (ii) Position of the Accused [52] The accused submitted that his evidence was credible in establishing a reasonable doubt that he unlawfully assaulted Ramirezby stabbing him with scissors.

Even if the Court did not accept the accused’s evidence as credible it, nonetheless, was sufficient toestablish a reasonable doubt. [53] The accused submitted that Ramirez lacked credibility. In particular, that Ramirez consistently denied that he was consumingalcohol on November 1, 2013. [54] The accused submitted that Andres told the police that the accused was wearing a silver bracelet on his right wrist.

Further,while Andres’ memory was not particularly clear, there was some evidence in his testimony to suggest that Ramirez could have gone upto the accused and demanded that he give him his bracelet or watch. [55] While Wong may be an independent witness, she could have been mistaken with respect to her observations on November 1,2013. The accused noted that Wong agreed that events happened very quickly when she made her observations of the altercation in thepark. [56] In relation to self-defence and defence of property, the accused submitted that there was an air of reality to the defences.

Inrelation to proportionality of force used by the accused, the Court should consider the size difference between the accused and Ramirez. Ramirez was a much bigger and younger man than the accused. [57] The accused submitted that his subjective belief that Ramirez was going to steal his watch or bracelet and/or hit him wassupported by his evidence that there was a prior altercation between the two of them in which Ramirez wanted his watch. LEGAL FRAMEWORK [58] Section 268(1) of the Code reads: Aggravated assault 268

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [59] An aggravated assault occurs in circumstances where a person “wounds, maims, disfigures or endangers the life of thecomplainant”. Aggravated assault is the most serious specie of assault, a more grave form of violence than assault cause bodily harm orcommon assault. Categorically there are degrees of assault - serious, intermediate and simple: R. v.

Lucas (1987), (QCCA), 34 C.C.C. (3d) 28 (C.A Que.) at pp.31-32. [60] I find, in this case, the Crown must establish beyond a reasonable doubt that the injury to Ramirez resulted in a wounding. Hisinjury would not amount to a maiming, disfiguring, or an endangerment to his life. [61] There is no definition of wounding in the Code. In R. v. Littletent (1985), 1985 ABCA 22 , 17 C.C.C. (3d) 520 (Alta.

C.A.), at p. 521, the Court observed that “the authorities show that a breaking of the skin is necessary to constitute “wounding””. InLittletent, the complainant suffered injuries, which included a fractured jaw, a fractured left rib, and a perforated eardrum. The Court ofAppeal held that the latter injury constituted a wounding. [62] Prior to Littletent, the British Columbia Court of Appeal in R. v. Innes and Brotchie, 1972 CarswellBC 357, addressed thedefinition of the meaning of “wounds” contained in s. 228 of the Code.

Section 228 of the Code has since been repealed and replaced bys. 268 of the Code. While the wording of the respective sections has changed, it is noteworthy that both sections incorporate wound[s] intheir definition. [63] Robertson J.A. found that wounding required much more serious harm than the degree of harm required to establish assaultcausing bodily harm: [para. 21].

Minor bodily harm would not be sufficient to amount to wounding. [64] Since Littletent, there has been a developing line of case law which sets a higher bar requiring that the injury characteristic toestablish wounding has to be of some permanence or of long-lasting effect over and above a mere breaking of the skin: R. v. MacNeil,2012 NSPC 106, followed R. v. A.H., 2016 ABPC, 6 at para. 26. Also, R. v. L. (S.E.), 2012 ABQB 190, at para. 97. [65] In R. v.

Hilderman, 2005 ABQB 106, the Court observed that if the definition of wounding simply required a breaking of theskin and causing bleeding, the “anomalous result” would be that a trifling injury which is “insufficiently grave to qualify as bodilyharm”, may nonetheless support a conviction for aggravated assault. The Court concluded that wounding must describe a more seriousinjury than “minor” bodily harm: [paras. 10 and 14]. [66] In R. v. Kogon, [2008] O.J.

No. 3921, the Court considered the injuries caused by a punch and concluded that “serious injuries”,followed by “permanent hearing loss” and “continuing problems with vertigo” satisfied the definition of wounding: [para. 5]. [67] In R. v. Papalia, 2012 BCSC 245, the victim was struck in the head by a steering wheel locking device while he was on theground as a result of a road rage altercation with the accused. The victim sustained injuries to his head and face. The injuries included agash to the face and a broken nose.

The victim was hospitalized for two weeks followed by five months of rehabilitation therapy. [68] The Court in Papalia addressed the three categories of assault and charactered aggravated assault as the most serious.

Turningto the fractured nose the court found that the injury amounted to minor bodily harm and was not sufficient to constitute wounding: [para.131]. [69] In relation to the gash to the face, the Court found that while the “punctate wound may leave a scar” the evidence fell short ofestablishing that the victim would be left with a “permanent mark absent the punctate feature”: [para. 132]. [70] The Court was satisfied in Papalia that the injuries sustained by the victim amounted to “bodily harm” as defined by s. 2 of theCode [“any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient ortrifling in nature”] and, accordingly, convicted the accused of the included offence of assault causing bodily harm contrary to s. 269(

a) ofthe Code: [para. 135]. [71] The accused has been charged with both aggravated assault and assault with a weapon. The Ontario Court of Appeal in R. v.Basilio (2003), (ON CA), 175 C.C.C. (3d) 440, held that the same delict underlies both charges and thereforeviolated the rule that multiple convictions should not be registered in respect of a single delict. In R. v. Foster, 2008 BCSC 1368, EhrckeJ. disagreed with that conclusion and found that an accused may both be found guilty of aggravated assault and assault with a weapon.

Iconsider Foster to be binding on this Court. [72] The accused testified that he stabbed Ramirez to defend himself and his property from an assault by Ramirez. In so doing, theaccused has brought into play the well- established principles set out in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742(S.C.C.). First, if I believed the accused’s evidence I must acquit. Second, if I do not believe the accused’s evidence, but it leaves mewith a reasonable doubt as to his guilt, I must acquit.

Lastly, even if the accused’s evidence does not leave me with a reasonable doubt, Imust go on to determine whether the Crown has established guilt beyond a reasonable doubt based on the whole of the evidence. [73] Defence of person is codified in s. 34(1) of the Code which reads: 34

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

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

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

c) the act committed is reasonable in the circumstances. [74] Whether or not the act of self-defence is reasonable requires an assessment of those circumstances codified in s. 34(2) of theCode which reads:

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

a) the nature of the force or threat; (

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

(

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

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

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

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

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

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [75] A judge has a duty to consider any defence for which there is an air of reality. In applying the air of reality test, a judge mustconsider the totality of the evidence and assume the evidence relied upon by an accused to be true. [76] In this case, if the accused establishes that there is an air of reality to the defence of self-defence, then I must assess whether ornot the evidence relied upon is reasonably capable of supporting the inferences required for the defence to succeed: R. v.

Cinous, 2002SCC 29 , [2002] 2 S.C.R. 3. [77] In addition, it is the state of mind of the accused that must be examined at the time he stabbed Ramirez. The question I must askis not whether or not the accused was unlawfully assaulted, but rather, did the accused reasonably believe, in the circumstances, that hewas being unlawfully assaulted?: R. v. Petel, (SCC), [1994] 1 S.C.R. 3 at para. 13. [78] Defence of property has been codified in s. 35(1) of the Code, which reads: 35

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

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, orlawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the propertyfrom that person; and (

d) the act committed is reasonable in the circumstances. [79] The defence of property has four essential elements that must be established for the defence to succeed. Like self-defence,defence of property at its core requires an assessment of the belief of the accused based on reasonable grounds that he had to use force toprotect his property. Further, that under all of the circumstances that the force he used was reasonable.

ANALYSIS AND DISPOSITION [80] The first element of self-defence in s. 34(1) of the Code is: did the accused reasonably believe in the circumstances before himthat force was being used against him or that a threat of force was being made against him? [81] The first element of defence of property in s. 37(1) of the Code is: did the accused reasonably believe in the circumstancesbefore him that Ramirez was about to take his watch? [82] Both Ramirez and Andres were consistent in their evidence that they were standing in the park near the Community Centrewhen Ramirez was stabbed in the face.

While Ramirez denied consuming any alcohol that day, it is clear from the medical legal reportof Dr. Saona, which I accept, that Ramirez had a low baseline intellect and he had a well-documented history of alcoholism andpancytopenia. [83] Ramirez’s occasional confusion in the witness stand would support Dr. Saona’s opinion that Ramirez had a low baselineintellect and was an alcoholic.

That would not depart from the fact that Ramirez was injured by the accused when he stabbed him in theface. [84] In both direct examination and cross-examination, Ramirez did not waver in his evidence that at no time did he confront orthreaten the accused physically or that he had any interest in the accused’s watch or bracelet. On those points, I found Ramirez to be acredible and reliable witness.

[85] Andres testified that he was drunk at the time Ramirez was stabbed. He recalled seeing a man, later identified as the accused,approach them at a rapid pace when the accused suddenly stabbed Ramirez in the face. He did not recall that the accused said anythingat the time of the attack.

He denied that Ramirez had a weapon in his hand at the time of the altercation. [86] Andres was unable to say whether or not the accused was wearing a bracelet, though there was a suggestion in his statement tothe police that the accused was wearing a silver bracelet on his right wrist at the time Ramirez was stabbed. [87] As a result of Andres’ intoxication, it would be speculative to find that, in fact, the accused was wearing silver bracelet on hisright wrist.

In any event, the accused testified that it was a watch on his left wrist that attracted the attention of Ramirez. [88] I have cautioned myself in relation to Andres’ credibility and reliability due to his alcohol consumption on November 1, 2013. Iaccept Andres' evidence as both credible and reliable that there was no apparent altercation between the accused and Ramirez at the timethat Ramirez was stabbed by the accused. [89] Wong had no relationship to any of the parties involved in the altercation at the park.

Wong was an entirely independentwitness. [90] While there were some minor inconsistencies in her evidence, I overall found her to be credible and reliable in relation to herobservations of the altercation between the accused and Ramirez in the park. [91] I accept her evidence as credible and reliable in establishing beyond a reasonable doubt: - that she had a clear unobstructed view of the altercation; - she observed the accused, walking across the intersection adjacent to the park where Ramirez and Andres were located; - she observed the accused unwrap something silver in colour and then strike Ramirez in the right side of the face with that object; - she did not note any interaction taking place between the accused and Ramirez before Ramirez was struck in the side of the face; - after the accused struck Ramirez, he continued to walk a short distance away before proceeding down the alley adjacent to theCommunity Centre; - Ramirez and Andres were drinking beer prior to the altercation; - Ramirez was facing away from the accused when he was struck in the right side of the face; - she did not note any conversation taking place between the accused and Ramirez or Andres; - no one grabbed anyone prior to Ramirez being struck in the face; - the altercation happened very quickly. [92] Like Wong, Sekhon had no relationship with any of the parties involved in the altercation.

Sekhon was an entirely independentwitness. [93] I accept his evidence as credible and reliable in establishing beyond a reasonable doubt: - that he observed the accused, walking in the back alley next to the Community Centre holding scissors in his right hand; - he momentarily lost sight of the accused; - he regained visual contact with the accused who was walking away and was no longer holding scissors. [94] I find that the Crown has established beyond a reasonable doubt that the scissors located by the police in a bush in the alleyadjacent to the Community Centre were the same scissors used by the accused to stab Ramirez in the face. [95] The accused testified that Ramirez confronted him and then hooked a finger under his watch band on his left wrist.

At the sametime, Ramirez was asking him for money. Fearful that Ramirez was about to rob him and concerned about the disparity in size betweenhim and Ramirez, the accused then brought out the scissors that he had purchased and “pinched him with my scissors in his lower lipbecause he did not respect me”. [96] The accused testified further that he struck Ramirez on the side of his face “to stop him so he would respect me”.

Afterstabbing Ramirez on the face, the accused did not recall Ramirez saying anything, though it was his opinion, that Ramirez had been“humbled”. [97] The accused’s belief that Ramirez did not respect him and by stabbing him he humbled Ramirez are not reasons which fallwithin the scope of self-defence or defence of property. It would appear that the accused’s actions were designed to teach Ramirez alesson. These would not be reasons that would fall within the scope of self-defence or defence of property: R. v. Meszaros, 2013 ONCA682 , [2013] O.J.

No. 5113, at para. 27, (O.C.A.). [98] For the above reasons, I do not find that there is any sufficient air of reality considering all of the evidence and surroundingcircumstances that would avail the accused of either the defence of person or the defence of property provisions of the Code. [99] Even if the evidence and surrounding circumstances were able to establish an air of reality to the defences of self-defence and

defence of property, the accused’s action in stabbing Ramirez in the side of the face with the scissors could not be described as proportionate. [ 100 ] Having found that the defences of self-defence and defence of property are not available to the accused, I must still assess his evidence applying the established principles set out in R. v. W. (D.) . [ 101 ] I did not find the accused to be a credible witness.

He minimized the stabbing of Ramirez as a “pinching” action on numerous occasions. [ 102 ] The accused testified that when Ramirez hooked his finger around his watch on his left wrist that he then got the scissors out of a bag and stabbed Ramirez. No explanation was forthcoming on how he managed to get the scissors out of the bag with only his right hand. [ 103 ] In direct examination, the accused recalled one incident with Ramirez prior to the events on November 1, 2013. In cross- examination, he claimed that he had many run-ins with Ramirez in the past in which Ramirez tried to take his watch.

I find that he exaggerated his evidence in relation to prior contacts with Ramirez. [ 104 ] I conclude that the accused deceived the court in his evidence when he asserted that he was confronted by Ramirez who then hooked his watch and demanded money. That was entirely inconsistent with Wong’s evidence. [ 105 ] No credible explanation was advanced to explain why the accused went up the alley adjacent to the Community Centre and essentially hid the scissors in a bush. Perhaps he was scared or perhaps he wanted to hide the scissors as evidence?

Either way, in his mind he thought he was justified in using the scissors so why the need to get rid of them? [ 106 ] The accused’s evidence does not leave me with a reasonable doubt and I am satisfied beyond a reasonable doubt based upon the whole of the evidence and surrounding circumstances that the accused is guilty of assaulting Ramirez with a weapon, the scissors, on November 1, 2013. [ 107 ] In relation to the charge of aggravated assault, Ramirez sustained a one centimeter cut to the face which, according to Dr. Saona, would have largely healed on its own.

There does not appear to be any permanence to the injury or any long-lasting damage. Ramirez’s hospitalization was directed by Dr. Saona to “ensure” Ramirez’s personal safety arising from his intoxication and confusion. [ 108 ] I conclude that the Crown has established beyond a reasonable doubt that the injury sustained by Ramirez did not amount to a wounding, but rather, amounted to minor bodily harm as contemplated in Innes and Brotchie . [ 109 ] I find the accused guilty of assault causing bodily harm to Ramirez contrary to s. 269(

a) of the Code . The Honourable Judge G. Rideout Provincial Court of British Columbia