His Majesty the King - v. -, 2022 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2022 SKPC 42 Date: October 28, 2022 Information: Y316462 Location: Regina ___________________________________________________________________________ Between: His Majesty the King - and - D.M.R. Appearing: Patrick Malone For the Crown Edward Sacher For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . JUDGMENT M. HINDS, J INTRODUCTION

[ 1 ] The accused, D.M.R. is charged that on or about October 2, 2021 at Carry the Kettle First Nation, Saskatchewan, he did:

(1) Wound T.I. thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code .

(2) Being a person subject to a youth sentence under the Youth Criminal Justice Act , did wilfully fail to comply with a sentence to wit: not to possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol such as bars or liquor stores, contrary to

section 137 of the Youth Criminal Justice Act . [ 2 ] On the evening of October 1, 2021 and the early morning hours of October 2, 2021 D.M.R. and T.I. spent some time together along with others on the Carry the Kettle First Nation. A verbal and physical altercation took place between the two. During the physical altercation T.I. was on top of D.M.R. who was on the ground. T.I. was banging the back of D.M.R’s head into the ground. D.M.R. stabbed T.I. in his back three times. They subsequently separated from each other. T.I. was bleeding from three incisions to his back, on his right flank off the spinal column.

D.M.R. had some scrapes and goose eggs on the back of his head. [ 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, there was an admission that the youth, D.M.R. was subject to a youth sentence which required him to abstain from the use of alcohol. During the course of the trial, the accused conceded he was guilty of Count 2.

Two exhibits were admitted into evidence by consent of the parties: Exhibit P-1, consisting of medical records pertaining to T.I and Exhibit P-2 consisting of two photographs taken of T.I.’s back on October 2, 2021 by Cst. Kelsey Starblanket of the File Hills Police. [ 4 ] The Crown witnesses consisted of Cst. Kelsey Starblanket, T.I. and T.S. D.M.R. 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, D.M.R. not guilty of the offence of aggravated assault.

FACTS [ 6 ] On the evening of October 1 and the early morning hours of October 2, 2021, D.M.R. was 17 years of age, approximately six feet tall and weighed approximately 120 pounds. T.I. was 26 years old, 6 foot 1 inch tall and weighed between 235 to 240 pounds. D.M.R. and T.I. are cousins and have known each other since they were children. [ 7 ] A house party occurred at the residence of G.D. and G.E. on the Carry the Kettle First Nation during the evening of October 1 and early morning hours of October 2, 2021.

Several people attended the house party including T.I., T.E., T.S., D.M.R. and other individuals named Garith, Kyra, Erin and Coby. A number of these people subsequently went to the Carry the Kettle Pow Wow grounds in the early morning hours of October 2, 2021. Alcohol was being consumed at the house party and at the Pow Wow grounds. [ 8 ] T.I. testified that he consumed two tall cans of beer prior to attending the residence of G.D. and G.E. While he was at that residence he consumed seven to eight twisted tea alcoholic beverages and two shots of vodka .

He generally described the events of the evening/early morning, however, admits that at one point in time he “blacked out” due to alcohol consumption and was completely unaware of what was going on. When he regained consciousness he recalls being kicked in the head. As a result he became “foggy”. He recalls that he felt a warmth down his back. He became aware that he was bleeding and subsequently received medical attention. T.I. sustained three small stab injuries to the right of his spinal column which were sutured. T.I. did not remember being stabbed or who did it. [ 9 ] T.S. is 21 years of age.

She and her former boyfriend T.E. went to the house party and the Pow Wow grounds. At the time of the incident she was pregnant and did not drink any alcohol. She testified that at the house party she observed that T.I. was drunk and trying to pick fights mostly with D.M.R. and T.E. It appears that at one point in time prior to the group of young people settling in at the Pow Wow grounds she observed that T.I. was driving a vehicle which ran into D.M.R.’s vehicle. At the Pow Wow grounds she observed that T.I. grabbed D.M.R.’s ass. D.M.R. objected to this. T.I. asked D.M.R. what he was going to do about it.

She then

observed D.M.R. to look away from T.I. for a few seconds. During that time T.I. hit D.M.R. with a closed fist in the left part of his face and neck area. T.I. then dragged D.M.R. to the ground by his neck. T.I. got on top of D.M.R. and the two began fighting. She observed T.E. intervened and tried to kick T.I. He did not succeed. Garith came to the aid of T.I. and began to fight T.E.

T.S. testified that from her point of view, T.I. instigated things and D.M.R. was defending himself. [ 10 ] D.M.R. testified that he consumed two beers at the residence of G.D. and G.E. and consumed three more beers at the Pow Wow grounds. D.M.R. also related that T.I. crashed into his vehicle. He said that T.I. told him he was not going to pay for the damage to D.M.R.’s vehicle.

D.M.R. testified that he was not particularly upset about the damage to his vehicle and would get a used grill to replace the damaged grill at a cost of $200.00 to $300.00. [ 11 ] D.M.R. testified that at the Pow Wow grounds T.I. warned him about speaking to Taryn’s girlfriend. T.I. also grabbed D.M.R.’s butt and began getting rough with him and trying to fight him. D.M.R. told T.I. to leave him alone. D.M.R. indicated that T.I. then hit him in the neck, threw him to the ground, got on top of him (his hips over D.M.R.’s hips) and began to smash the back of his head into the ground.

T.I. did this by gripping the upper part of D.M.R.’s jacket, lifting D.M.R.’s neck and head up approximately “3/4’s of a foot off of the ground” and then smashing the back of D.M.R.’s head into the ground. D.M.R. asked T.I. to get off of him. T.I. kept banging D.M.R.’s head into the ground. [ 12 ] D.M.R. could not get T.I. off of him. D.M.R. was concerned for his well-being after T.I. smashed his head to the ground two or three times. D.M.R. reached for and got hold of a hunting knife which he had on a metal clip on his waistband. D.M.R. then stabbed T.I. in the back three times.

The first stab was after T.I. smashed his head to the ground two or three times. The second stab occurred after his head was smashed to the ground two more times by T.I. The third stab also occurred after his head was smashed to the ground two more times. T.I. then stopped. D.M.R. slid out from under T.I. and left the Pow Wow grounds. [ 13 ] D.M.R. had some scrapes and goose eggs on the back of his head which lasted for several days after this incident. [ 14 ] On cross-examination T.I. testified that while he did not recall (1) confronting D.M.R. about talking to Taryn’s girlfriend,

(2) D.M.R. telling him to leave him alone (3) hitting D.M.R. in the side of the neck, tossing him and pinning D.M.R. to the ground and smashing D.M.R.’s head to the ground, he candidly admitted all of this was quite possible. ISSUES [ 15 ] 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? [ 16 ] 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 on reasonable 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. [17] 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. [18] 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 [Peroz]. [19] 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 [20] 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. [21] 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. [22] 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 D.M.R. testifiedin a straightforward manner setting out his account of the incident before the Court. While D.M.R. had been drinking some alcohol (fivebeers) I do not find this negatively affected the overall reliability of his testimony. This was a memorable event. I find that D.M.R.testified in a credible and reliable manner. As a result I accept his evidence.

[23] I also found that T.S. testified in a credible and reliable manner. T.S. was not drinking alcohol that evening/early morning. Shelargely corroborated and added details to D.M.R.’s account of the incident prior to the stabbing, which she did not see. I accept the wholeof her evidence. [24] As for T.I., I find that his evidence was not reliable. He drank a great deal of alcohol. He admits that at one point in time he“blacked out” due to alcohol consumption and was completely unaware of what was going on.

To his credit, T.I. admitted that many ofthe events as described by D.M.R. and T.S. could possibly have happened. [25] I also found that officer Kelsey Starblanket testified in a credible and reliable manner. [26] As D.M.R. claims he acted in self-defence, this will require a separate analysis which is set out below. Aggravated Assault Analysis [27] 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. [28] In this case of aggravated assault the Crown must also prove beyond a reasonable doubt that D.M.R.’s assault wounded T.I. [29] There appear to be two competing

definitions of wound in Canada. The Ontario Court of Appeal in R v Brown, 2021 ONCA 678,158 OR (3d) 275 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. [30] The British Columbia Court of Appeal in R v Pootlass, 2019 BCCA 96 at para 113, 373 CCC (3d) 433 provides this definition ofwound: [113] 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 thatconstitutes serious bodily harm. Serious bodily harm is any hurt or injury that interferes in a substantial way with the integrity, health orwell-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. [31] The evidence before me reveals that after D.M.R. stabbed T.I. with a knife T.I. was initially bleeding from his back. T.I. wastaken to Indian Head Union Hospital where he was treated. Exhibit P-2 shows three stab marks on the lower portion of his right back. Exhibit P-1 describes the injuries as being to “T.I.’s back, right flank off spinal column 3 small incisions, largest being three cm in size. No active bleeding. Hematoma seen to the area.

Treatment consisted of suturing the incisions and pain medication. T.I. was dischargedhome”. Applying either the Ontario or British Columbia definition of wound, I am satisfied beyond a reasonable doubt that the threeincisions are wounds. The incisions, resulting blood loss and suturing in my view interfered in a substantial way with T.I.’s integrity,health and well-being. [32] Hence I find that D.M.R.’s conduct caused T.I. to be wounded. In addition, I find that a reasonable person would have realizedthat the accused's conduct would subject T.I. to the risk of bodily harm.

As a result I find that D.M.R. committed an aggravated assaulton T.I.

3. Has the Crown negatived self-defence? [ 33 ]

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. [ 34 ] In R v Peroz , 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. [ 35 ] 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. [ 36 ]

Section 34 of the Criminal Code has recently been considered by the Supreme Court of Canada in R v Khill , 2021 SCC 37 , 409 CCC (3d) 141 [ 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). [37] I will first consider what Justice Martin terms the catalyst, that is whether D.M.R. believed on reasonable grounds that force was threatened or being used against him. Secondly I shall consider the motive, that is whether D.M.R. acted for the purpose of defending himself; and lastly I shall consider the response, that is whether D.M.R.’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 D.M.R. believed on reasonable grounds force was threatened or being used against him [ 38 ] 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). [ 39 ] 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 17 year old youth who has been struck by and man-handled by a 26 year old man who is drunk and is nearly twice his weight. [ 40 ] I am of the view that when T.I. was banging D.M.R.’s head repeatedly against the ground, the accused subjectively believed that T.I. was using force against him.

I am also of the view that a reasonable person who shared the attributes, experiences and circumstances of this accused would reasonably believe that T.I. was using force against him. The Motive: Whether D.M.R. acted for the purpose of defending himself [ 41 ] 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. [ 42 ] In this case D.M.R. could not get T.I. off of him. In addition, he asked T.I. to get off of him. All to no avail, T.I. kept banging D.M.R.’s head into the ground. D.M.R. was concerned for his well-being. He testified, “I did not know what injuries I would receive”. It was at this point that he first stabbed T.I. with his hunting knife. When the head banging continued he stabbed T.I. two more times.

When the head banging stopped D.M.R. stopped stabbing T.I. D.M.R. was not shaken on this point on cross-examination. He has always maintained he was concerned for his well-being and acted in self-defence. I find there is no reason to disbelieve him on this. I accept D.M.R.’s testimony that he acted for the purpose of defending himself. The Response: Whether D.M.R.'s actions were reasonable in the circumstances [ 43 ] 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). [ 44 ] In R v Jobe , 2021 ONSC 7508 Justice Nakatsuru 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. [ 45 ] The first factor to consider under section 34(2)(

a) is the nature of the force or threat. In this case T.I. was repeatedly banging D.M.R.’s head on the ground. D.M.R. had asked T.I. to stop. T.I. did not. In addition, D.M.R. was unable to get the much heavier T.I. off of him. The repeated head banging brought the risk of serious bodily harm or worse to D.M.R. [ 46 ] 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. [ 47 ] In this case the use of force was actually occurring. D.M.R.’s friend, T.E. had attempted to get T.I. off of him. This attempt was unsuccessful. Garith then began fighting T.E. As previously stated, the accused was unable to get T.I. off him and T.I. continued to bang his head against the ground despite D.M.R.’s request to stop. I am of the view there were no other means to respond to the use of force. [ 48 ] 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. Toanswer that question, as Parliament's inclusion of a "person's role in the incident" indicates, fact finders must take into account the extentto which the accused played a role in bringing about the conflict or sought to avoid it.

They need to consider whether the accused'sconduct throughout the incident sheds light on the nature and extent of the accused's responsibility for the final confrontation thatculminated 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 judgmentin the course of the incident, from beginning to end, that is relevant to whether the act underlying the charge was reasonable — in otherwords, 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. Thisincludes, but is not limited to, any behaviour that created, caused or contributed to the confrontation. It also includes conduct that wouldqualify under previous concepts, like provocation or unlawfulness, but it is not limited to or circumscribed by them. It therefore applies toall 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). [49] I am reminded of the words of T.S. who testified that from her point of view, T.I. instigated things and D.M.R. was defendinghimself. T.S. gave several examples. First of all, at the house party she observed that T.I. was drunk and trying to pick fights mostlywith D.M.R. and T.E. Secondly, at the Pow Wow grounds she observed that T.I. grabbed D.M.R.’s ass.

D.M.R. objected to this. T.I.asked D.M.R. what he was going to do about it, which was clearly confrontational. D.M.R. told T.I. to leave him alone. T.I. did not. T.I. hit D.M.R. with a closed fist in the left part of his face and neck area. T.I. then dragged D.M.R. to the ground by his neck. T.I. goton top of D.M.R. D.M.R. could not get T.I. off of him and T.I. would not stop banging D.M.R.’s head on the ground despite D.M.R.’spleas. T.I. was clearly the instigator and aggressor throughout. I am of the view that D.M.R. sought to avoid conflict with T.I.

There wasnothing provocative or blameworthy done by D.M.R. [50] 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 D.M.R. used his hunting knife as a weapon. [51] 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 T.I. was 26 years of age. He was 6’1” tall and weighed between 235 and 240 pounds. T.I. was working as apipe fitter which is a job he described as requiring a lot of physical labour. D.M.R. by comparison, was a teenager, 17 years of age. Hewas around 6’ but was much slighter, weighing 120 pounds. Both were physically capable of fighting. However, T.I. was clearly thebigger and stronger of the two. [52] 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. D.M.R. and T.I. are cousins. They have knowneach other since they were children. There is no evidence of prior use or threat of force between them. [53] The seventh factor to consider under section 34(2)(f.1) is any history of interaction or communication between the parties to theincident. See paragraphs 49 and 52. [54] 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. T.I. was clearly the aggressor and dominated the fight. T.I. was on top of the accused and outweighed him by nearly 120pounds. He began to repeatedly bang D.M.R.’s head against the ground. D.M.R. could not get T.I. off of him or physically stop thehead banging. An accused 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 SCR272 at para 18.

In this case, I am of the view that a reasonable person would conclude that D.M.R.’s stabbing of T.I.’s back body areawas proportionate to T.I. repeatedly banging D.M.R.’s head against the ground. The stabbing resulted in three small incisions whichwere sutured. No vital organs were damaged. Once the head banging stopped, the stabbing stopped. [55] 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 thatthe person knew was lawful. This factor does not apply to this case. [56] When I consider the evidence as a whole, taking into account all the relevant factors in section 34(2), I am of the view thatD.M.R.’s stabbing of T.I. was reasonable in the circumstances. I am not satisfied beyond a reasonable doubt that the Crown hasnegatived

section 34 of the Criminal Code. Accordingly, D.M.R. can avail himself of the defence of self-defence in the circumstances of

this case. CONCLUSION [ 57 ] After a full examination of the evidence before me and a review of the applicable statute and case law, I am satisfied that self- defence applies to this case. I therefore find D.M.R. not guilty of aggravated assault on T.I. ______________________________ M. Hinds, J