Her Majesty the Queen - v. -, 2019 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: December 13, 2019 2019 SKPC 71 Information: 991089243 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Khin Myo Maung Appearing: E. Casselman For the Crown P. Thomson For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged that on or about May 1, 2019 he did: 1) commit an aggravated assault on Stephanie Masuskapoe, contrary to s. 268(1) of the Criminal Code ; and 2) breach his undertaking by failing to keep the peace and have no contact with Stephanie Masuskapoe, contrary to s. 145(3) of the Criminal Code .

[ 2 ] Following election to Provincial Court, a not guilty plea was entered on count #1 and count #2 was set to be spoken to at trial. [ 3 ] The charges arose as a result of an incident which occurred at the apartment of the victim’s mother located at #5, 137 Avenue P South, Saskatoon, whereby the victim received a large facial cut from a knife wielded by the accused. [ 4 ] The Court was informed that the accused was of Burmese ethnicity and although conversant in English an interpreter was present and sworn to ensure trial fairness. [ 5 ] At the outset of the trial, the Crown informed the Court (which defence counsel acknowledged) that jurisdiction, identity, date and time of the offence were admitted.

This latter admission concerning the time of the offence would subsequently become a trial issue, as will be related. [ 6 ] The Crown called the complainant, Stephanie Masuskapoe, her sister Kayla, and the victim’s mother, Theresa, as well as the three attending police officers, Constables Jody Levesque, Gabrielle Sackville, and Derrick Harvey. The accused testified as the sole witness for the defence. [ 7 ] For the reasons that follow the Court finds the accused guilty of the offence of aggravated assault as alleged in count #1 of the Information.

II BACKGROUND [ 8 ] The accused is 47 years of age and has resided in Canada since 1996, having emigrated from Burma as a refugee. He met the complainant, Stephanie Masuskapoe, in the spring of 2018 through a friend and in July, 2018 began a romantic relationship with her. [ 9 ] The relationship continued until the offence date of May 1, 2019.

Throughout this period he was employed as a construction labourer. [ 10 ] The accused spent a good deal of time over the course of the relationship socializing with the complainant’s family at the mother’s apartment where the current offence ultimately took place. [ 11 ] A good portion of the time spent in the company of the family involved consuming alcohol and partying.

Violence was not uncommon involving fights between family members and the accused and complainant themselves. [ 12 ] Although the accused denied that he and the complainant ever had physical altercations, he was, in fact, charged with assault against Stephanie only 4 ½ months before on December 15, 2018. [ 13 ] May 1, 2019 was a Wednesday. On the two preceding days Stephanie, Theresa, and Zach were involved in heavy drinking, joined in by the accused when he returned from work in the afternoon until late in the evening.

Stephanie acknowledged her consumption led to several probable blackouts over these two days. [ 14 ] On May 1, Stephanie testified she and the accused had been arguing and as a result she told him to leave. The argument continued in the hallway inside the apartment leading to the front door. The accused then went to the kitchen where she heard him rustling around in the cutlery drawer. He returned with a large sharp knife being held in his left hand. [ 15 ] Stephanie testified she was not afraid because she was certain he would not harm her with the knife.

She continued to tell him to leave and then unexpectedly he slashed her across the right side of her face and fled the apartment.

[ 16 ] At first she felt no pain and did not realize the seriousness of the cut. The wound in fact was severe, running from just under her right eye all the way down to the corner of her mouth. It ultimately required 34 stitches to close and caused a permanent jagged scar to her face. Her mother who was in the living room testified that Stephanie ran in screaming and bleeding profusely.

Theresa immediately applied a large towel to her face and called 911. [ 17 ] Stephanie’s evidence is that this occurred somewhere around 3:30 in the morning on May 1. [ 18 ] It was readily apparent that both Crown and defence counsel were caught off guard by Stephanie’s evidence of the time. Defence counsel had, in fact, admitted inter alia the time of the offence being the afternoon in accordance with Crown disclosure.

Notwithstanding this admission, defence counsel was permitted to pursue this in cross-examination of Stephanie as it was relevant to her overall credibility. [ 19 ] In a significant twist however, the accused in his evidence also maintained the incident occurred before 3:30 a.m. – not p.m.

For reasons to follow, the Court has determined that this was nothing more than tailoring his evidence to Stephanie’s to suit his version of how she received the cut to her face. [ 20 ] The accused’s recounting of the incident was that he went to sleep on the living room floor following a physical altercation with Zach who had accused him of hiding some liquor. He said he was being choked by Zach and lost consciousness. [ 21 ] Some time later he was awakened by Stephanie prodding him with a sharp object although he did not see her holding anything.

He then went to put on his shoes in the hallway and was pushed back into the living room by Stephanie. He said he just wanted to retrieve his backpack from the living room and leave because he had to go to work and his work uniform was in the backpack. When he grabbed the backpack he saw a knife laying nearby which he picked up. [ 22 ] Stephanie continued to push him as he went to the door, he testified. He held out the knife in his right hand as she walked toward him in what he described as “not fast – not slow – just a normal pace”. He could see that she carried nothing in her hands.

When asked by his counsel what he was thinking at that moment he said he just wanted to escape from there. He was worried that Stephanie might hurt him because she had done so before when she was drunk. He was also worried that neighbours would overhear and intervene and cause him harm because this had happened once before. Significantly, he stated that he was not afraid of her. [1] [ 23 ] He stated that Stephanie kept walking until he suddenly heard her say “ow” whereupon he dropped the knife and ran out of the door.

When asked why he did not simply leave in the first place since the door was right behind him as Stephanie advanced, he said it was because she had locked it. How long did it take to unlock it he was asked to which he replied – right away – “just one click”. He speculated that Stephanie must have walked into the knife without seeing it because it was “dark” and “visibility was not good in the dark”. [ 24 ] The accused testified that after leaving the apartment at approximately 3:30 a.m., he decided to go for coffee so walked to the McDonald’s at Avenue W and 22 nd Street.

It must have been after it opened at 5:00 a.m., he said. He then walked to his job at the construction site at River Landing downtown. He only worked until noon and then left walking to his home on Avenue N, some two blocks from Theresa’s apartment on Avenue P. [ 25 ] En route he bought a “mickey” of whiskey and walked and drank thinking about what had happened the night before. He saw police cars outside Theresa’s apartment before he arrived home which he said was at 2:30 p.m. on May 1.

This time, which he repeated twice in-chief and then reiterated in cross-examination, is noteworthy as the police were not dispatched to the scene until 3:20 p.m. that date. [ 26 ] After drinking and talking with his roommate, Darryl, he went walking on 22 nd Street where he saw the police and turned himself in stating “I did it”. The arresting officer described him as sober although emanating an odour of alcohol. The time of the arrest was indicated to be 3:45 p.m. on May 1. [ 27 ] The accused was then transported to SPS detention.

It was observed at this time that he appeared to have fresh injuries consisting of:

scratches on left corner of neck; scratches and cut on left upper ear lobe; one inch cut/scratch on top of right wrist; three small cuts on top of left forearm close to hand; three inch cut on left arm bicep; and bite mark on centre of upper back. [ 28 ] Attending officers on scene at the stabbing were Constables Jody Levesque, Gabrielle Sackville and Darryl Harvey, all having been dispatched at 3:20 p.m. [ 29 ] Constable Jody Levesque was first on scene at 3:24 p.m. When walking to the apartment door he observed it to be slightly ajar.

Pushing it open he entered the apartment whereupon he heard a female saying “she’s over here”. [ 30 ] Constable Levesque noted the victim to be seated on a futon with a towel over her face which was completely soaked in blood. The cloth was removed revealing a large laceration to the right side of her cheek – “quite deep as the skin was spread about an inch to two inches right across her face”. [ 31 ] The officer also made note of a large pool of blood on the carpet which was wet and shiny.

A broken plate was on the floor with traces of blood on it as well. [ 32 ] Stephanie was described as intoxicated, but coherent – able to answer questions and communicate clearly. She provided particulars of the accused and described the knife utilized in the attack as large with a yellow handle. [ 33 ] Officers Sackville and Harvey arrived shortly after Constable Levesque. Constable Sackville, who had been employed as a primary care paramedic for three years prior to becoming a police officer, attended to Stephanie.

Constable Sackville observed Stephanie to have a large gaping cut on her face roughly four inches in length. The wound appeared fresh, still actively bleeding as it had not yet had a chance to clot, she stated. The towel, tank top and jean shorts, were observed to be saturated in blood. [ 34 ] Constable Sackville did not note any smell of beverage alcohol on Stephanie – just a strong metallic odour of blood.

She stated that Stephanie was able to understand her and follow her commands appropriately. [ 35 ] Constable Harvey dealt with Zach who was passed out on the bed in the main bedroom and had to be physically shaken to be aroused. He was essentially incoherent and could offer no useful information to the officer. [ 36 ] All three attending officers observed Theresa, Stephanie’s mother, to be heavily intoxicated to the extent that no statement from her was possible that day. [ 37 ] Stephanie was transported by ambulance to St. Paul’s Hospital for medical attention.

The next day she was photographed and provided a written statement to police. III ANALYSIS [ 38 ] Prior to commencing analysis on this matter, the Court had the benefit of reviewing the very recent decision of Mr. Justice Danyliuk in R v Ajmal Peroz [2] , from our Court of Queen’s Bench. This case deals with a similar scenario of a charge of aggravated

assault involving the applicability and viability of self-defence. [ 39 ] Aside from his apparent affinity for Van Morrison, Mr. Justice Danyliuk in Peroz provides a useful refresher for trial judges to self-instruct on the tenets of reasonable doubt, assessments of credibility and the Crown’s burden of proof throughout. Although as Mr. Justice Danyliuk notes, this may seem to be trite law, it is important to restate these principles as a good starting point and to give confidence to those accused of crime that all due process has been properly implemented. [ 40 ] The present case required the following issues to be resolved:

a) Credibility of parties and findings of fact;

b) Whether an assault had taken place;

c) If so, whether it met the criteria of an aggravated assault; and

d) If proven, whether self-defence was available to Mr. Maung as a viable and lawful defence to the charge. Credibility of the Parties and Findings of Fact [ 41 ] The parties gave conflicting versions of how Stephanie received the slash across her face. [ 42 ] Stephanie Masuskapoe had been drinking to intoxication and probable blackouts for the two days leading up to the altercation with the accused. However, both attending officers describe that she was coherent and able to follow commands and communicate with them effectively. She was able to give particulars of the accused and give a description of the knife.

She was clear and concise in her evidence on how the cutting occurred and was not shaken on cross-examination with respect to this. [ 43 ] Stephanie was, however, clearly mistaken in her viva voce evidence that the offence occurred in the early morning hours, rather than mid-afternoon. Given the unimpeachable evidence of the attending officers as to the time of dispatch and arrival, their observations of the fresh wound and copious amounts of wet blood, there is no question that the laceration had been inflicted shortly before.

Stephanie herself stated that she did not pass out and would likely have bled to death had a 12 - hour interlude occurred. [ 44 ] Her mother also testified that it occurred in the afternoon. Her evidence however has to be evaluated carefully as she was described by the attending police officers as highly intoxicated to the point of being unable to take a formal statement. She was able though to have the presence of mind and ability to immediately call 911 and direct Constable Levesque to her daughter upon arrival.

The Court also notes that when Constable Levesque arrived, the apartment door was ajar supporting the conclusion that the accused had just left. [ 45 ] What then to make of this? After careful consideration of all the circumstances based upon the evidence, the conclusion of the Court is not much. Her recollection of the time is not fatal – at least not from her perspective. For her it was error – for the accused it was not a mistake but rather a calculated deceit.

Stephanie’s misstep in this regard does not detract from the happening of the event itself which would be far more significant to her than when precisely it occurred. [ 46 ] She also had to be reminded in cross-examination of several instances in past where violence had occurred between she and her mother and sister. She readily agreed however when so prompted. [ 47 ] Overall, the Court’s impression was that Stephanie was being candid and straightforward in her testimony.

She did not attempt to embellish nor did she appear uncertain or hesitant either in-chief or cross-examination, appearing rather to have a good recall of the events. [ 48 ] The accused however was not a reliable witness as he lacked credibility on several material points:

a) He testified that he held the knife out in front of him as Stephanie advanced toward him. Yet in cross-examination he conceded that he was not afraid of her and that she held nothing in her hands as she approached. Further, she was walking at a normal pace. Why then would he have to wield a knife at all? This makes no sense;

b) He stated that it was dark and there was poor visibility which is why Stephanie must have “walked into” the knife. Yet, if dark, how then was he able to clearly see and describe her movements so precisely? His description of how she advanced and that her hands were empty does not seem to accord with darkness or poor visibility;

c) The time issue. As noted, Stephanie’s evidence that the incident occurred in the early morning hours rather than the afternoon clearly caught both counsel by surprise. Defence counsel remarked that he came to court on the trial date fully believing that the incident had taken place in the afternoon rather than the morning, as per the Crown disclosure. Obviously, the accused had not apprised him of this significant discrepancy to that point. The accused however then parroted Stephanie’s evidence when he testified.

The Court’s conclusion is that he was simply tailoring his evidence at this point to suit her testimony which supported his version that it would be dark at that time explaining why she couldn’t see the knife;

d) The complainant was never cross-examined on the visibility in the room or that she simply walked into the knife. That this would be oversight on counsel’s

part is possible. More likely however, is that he couldn’t cross-examine since it only first arose in the accused’s evidence as part of his narrative. This again underscored the Court’s conclusion that the accused was tailoring his evidence;

e) The accused also stated in-chief that Stephanie must have “batted” his hand away with the knife. However, in cross-examination he agreed that he felt nothing touching his hand immediately prior to the cut being inflicted.

f) The version of events provided by the accused of the approximate 12 hour window between him leaving the apartment prior to 3:30 a.m. and being arrested at 3:45 p.m. simply lacked credibility. He stated that he left before 3:30 and decided to go for coffee, walking then to the McDonald’s at Avenue W and 22 nd Street arriving after 5:00 a.m. This was only a distance of a few blocks yet seemingly would have taken over 90 minutes to traverse according to the accused.

Of greater concern however, was his evidence that he left work early during this period and eventually made it to his apartment on Avenue N at 2:30 p.m. He testified further that he knew the police had arrived at Stephanie’s apartment because he passed by this way en route to his place.

The police however were not dispatched that day until 3:20 p.m. – approximately 50 minutes after the accused claimed he saw them, further supporting the Court’s view that all of this evidence regarding this 12 hour window was clearly concocted on the fly necessitated by his adoption of Stephanie’s evidence that the incident happened in the morning.

g) The accused attempted to minimize his drinking habits stating that he never drank in the afternoon yet admitted to drinking on both afternoons well into the evening on the two days preceding May 1;

h) The accused also testified that he had never been physical with Stephanie and that this was the first time he had ever been in court regarding her when in fact he had been charged only 4 ½ months previously with assaulting her.

i) The accused was challenged in cross-examination that he had told police it was Stephanie waving a knife around and did not tell them that he held a knife. His response was that he was not asked about this. Both points were, of course, extremely material and his lack of candour in this regard impacted his overall credibility.

j) Although perhaps less significant and of marginal utility, the complainant received a cut to the right side of her face which better accords to her description of the accused holding the knife in his left hand whereas the accused testified to holding it in his right. Further, his description of her walking into the knife seems far less plausible to have caused the size and location of the cut. [ 49 ] Having due regard to all of the foregoing, the Court finds as a fact that the subject offence occurred just prior to 3:20 p.m. on May 1, 2019.

Further, the Court rejects the evidence of the accused where it conflicts with the complainant, and finds that she was slashed across the face as she stood in front of the accused, as she testified. [ 50 ] At this juncture, the Court points out that notwithstanding that the accused testified, the R v W(D) [3] analysis was not applied as his version of events was inculpatory rather than exculpatory in that he admitted to holding the knife out in front of him towards Stephanie as she approached. [4] On this evidence alone, he would have committed the offence of assault pursuant to s. 265(1) (

b) of the Criminal Code . [ 51 ] In other words, W(

D) in relation to the assault would not apply even if the accused was believed as this would not have entitled him to acquittal. [ 52 ] As stated in Ryon at paras 30 and 31 the Court held:

[30] At the same time, the statement is too broad. As noted in R v. Gray, 2012 ABCA 51 , the W(

D) instruction only appliesto exculpatory evidence, not evidence that is inculpatory or neutral. A jury may believe the accused’s testimony about his antecedents –married, with two children, employed as a welder – and his activities on the day in question until the time of the offence, but then totallydisbelieve the exculpatory evidence that he was not involved in the crime.

It is only the latter evidence to which the instruction appliesand failure to make that clear may leave the jury confused. [31] Also, where the defence has both a subjective and objective component the accused will not be entitled to an acquittal merelyby raising a reasonable doubt as to the subjective component. To explain, some defences like provocation and self-defence require, interalia, that the accused’s response to the situation he/she was facing be measured against the response expected of a reasonable person inthe same situation.

So even if an accused’s testimony is believed, he/she may still not be entitled to an acquittal if the jury finds theaccused’s reaction to the situation was unreasonable. Assault [53] Section 265(1) of the Criminal Code defines the offence of assault and s. 265(2) makes it applicable to all forms of assault: 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. (not applicable inthis case)

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a thirdparty or causing bodily harm and aggravated sexual assault. [54] Based upon the evidence of Stephanie Masuskapoe, which the Court accepts, the Crown has proven beyond a reasonabledoubt that the elements of the offence of assault have been proven against the accused, pursuant to s. 265(1)(

a) of the Criminal Code. The Court must now determine whether the criteria have been met to elevate this finding to one of aggravated assault. Aggravated Assault [55] Section 268(1) of the Criminal Code states: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [56] The laceration to the victim’s face was approximately four inches in length running across her cheek from just below her eyeto the corner of her mouth. It was described as a “gaping” wound one to two inches in width, requiring cauterization and 34 stitches toclose.

It left a permanent jagged and visible scar across her face which, given its location and size, can only be characterized asdisfiguring. [57] In all respects, the criteria of s. 268 have been met, clearly qualifying this as an aggravated assault. Self-Defence [58] The accused maintains that he acted in self-defence when he cut the face of the victim.

This then requires the trier of fact toengage a two-step process of first determining whether there is an air of reality to the defence, and if so, to then apply the statutory criteria set out in s. 34 of the Criminal Code.[5] Air of Reality [59] Regarding the first step, Mr. Justice Danyliuk in Peroz at paras 122 and 123 stated the following:

[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 shouldbe 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 theCourt 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 areasonable doubt that the defence does not apply.

An air of reality is established if “there is evidence on the record upon which aproperly 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 nothave been put to the jury; that is, if this threshold is not met, the trier of fact should not consider the defence. . . . [60] Defence counsel urges that several factors support the conclusion that there is an air of reality to self-defence in this case.

Thevictim was known by him to have acted violently in the past while drunk toward family members and to he himself. He had been beatenand choked into unconsciousness by Stephanie’s brother, Zach, only a short time before and Zach’s whereabouts in the apartment wereunknown. Stephanie had just woken him by poking him with a sharp object. On this point the accused had exhibited fresh injuriesconsisting of cuts and scratches and an apparent bite mark. [61] Counsel cites R v Paskimin[6]as an analogous situation where the accused was in a room being advanced upon by two menintent on causing harm.

His only means of exit lay at the far end of the room. In order to protect himself and escape, the accusedstabbed one of the would be assailants and fled. No such exigent circumstances existed in the present case if for no other reason than theaccused had his back to the door and could exit with little difficulty. [62] It is difficult to ascribe any air of reality of self-defence in the present circumstances. Although a good amount of time wasspent canvassing the victim’s violent past and propensities, the accused testified that he was not afraid of her.

She was unarmed and notin any way acting in a threatening or intimidating manner. She was of comparable height and weight to the accused. He could easilyhave extricated himself prior to the assault as he in fact did immediately following. [63] Accordingly, this appears in all respects to be a case where the threshold to considering self-defence pursuant to s. 34 of theCriminal Code has not been met. If the Court is in error in this regard, the provisions of s. 34 shall nonetheless be canvassed.

Section 34 Criminal Code [64] Section 34(1) and (2) of the Criminal Code read as follows: 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.

(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 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. [ 65 ] The application of this

section requires the Crown to prove beyond a reasonable doubt that at least one of s. 34(1) (a), (

b) and (

c) does not apply. This is the heavy burden the Crown must bear rather than the accused being required to prove anything. [ 66 ] Crown counsel argues that s. 34 (

c) has been negatived beyond a reasonable doubt in that the act of slashing Stephanie across the face was not reasonable in the circumstances. [ 67 ] Section 34(2) mandates the Court to consider the following factors in its determination as to whether the act committed was reasonable in the circumstances: (

a) the nature of the force or threat; The accused and Stephanie were standing facing each other. Stephanie was demanding that he leave. There is nothing in the evidence otherwise accepted by the Court which would demonstrate she was about to cause harm to the accused. She posed no threat to him at that moment other than she had been drinking. He testified that her conduct in past was that she had hurt him while drinking. Although this is a somewhat tenuous basis for holding a subjective belief he would be harmed, there is no evidence to objectively support such a belief at that time. (

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; As noted, there was no indication that any force against the accused was imminent. Further, even if he felt threatened, there was a reasonable means of escape by simply turning and unlocking the door and leaving the apartment. (

c) the person’s role in the incident; The accused utilized a large sharp knife to cut the complainant without warning or provocation. He and the complainant had been arguing and he had been asked repeatedly to leave. (

d) whether any party to the incident used or threatened to use a weapon; The only weapon utilized was by the accused. The victim was unarmed and no one else but the accused and the victim were present. (

e) the size, age, gender and physical capabilities of the parties to the incident; This is a neutral factor – both of the parties are of comparable height and weight. No other description in the evidence was forthcoming regarding the physical capabilities of either one. (

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; Both had been violent to the other in past. Their relationship was characterized by heavy drinking and periodic aggressive behaviour. Stephanie was known by the accused to have been violent with family members.

Although there was evidence she had used weapons, including scissors, knife and chair in regard to matters involving her family on previous occasions, there was no evidence that any such things were ever used between she and the accused. Again, it is noteworthy that, notwithstanding, he stated he was not afraid of her.

(f.1) any history of interaction or communication between the parties to the incident; The parties dated for less than a year and spent a good portion of their time together to the point of near cohabitation. They were well known to one another. Despite being bound by a no contact order, the accused willingly attended at Stephanie’s and continued to interact with her. (

g) the nature and proportionality of the person’s response to the use or threat of force; and The accused utilized a large sharp knife which was a completely disproportionate response to any perceived threat in these circumstances. No weapons at all could be remotely justified having due regard to all of the foregoing. (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. Stephanie had asked the accused to leave repeatedly. She was a resident of the apartment – he was not. This made him in law a trespasser when permission to be in the apartment had been removed by Stephanie. Accordingly, she could have utilized as much force as reasonably necessary to remove him. However, as indicated, there is nothing in the evidence to suggest she did so nor in fact that the accused would have been aware of or appreciated her lawful right to do so. [ 68 ] The Court agrees that the Crown has negatived s. 34(1) (

c) of the Criminal Code by proving beyond a reasonable doubt that the act committed by the accused was not reasonable in the circumstances. Accordingly, self-defence does not apply for the benefit of the accused in this case. IV CONCLUSION [ 69 ] The accused is found guilty of the offence of aggravated assault against Stephanie Masuskapoe as set out in count #1 of the Information. ________________________ R.D. Jackson, J [1] T 273, L31 – 40: Q And you just recently told the Court that you have never had a physical fight with Stephanie, correct? A No. Correct. Q You're not afraid of Stephanie, correct?

A We were girlfriend and boyfriend. We don't need to be scared of each other. Q So is that a yes -- so I asked if you were afraid of Stephanie, and what is your answer?