R. v. S.L. Date:, 2016 BCPC 2

Citation: R. v. S.L. Date: 20160108 2016 BCPC 0002 File No: 4295-C-2 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA YOUTH COURT REGINA v. S.L. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: Kevin Fotty Counsel for the Defendant: James Pennington Place of Hearing: Penticton , B.C. Date of Hearing: October 19, 29, December 11, 2015 and January 7 and 8, 2016 Date of Judgment: January 8, 2016

Introduction [ 1 ] S.L. is charged with committing an aggravated assault on Philip Webber. On October 15, 2014, Messieurs S.L. and Webber were involved in an altercation. During the altercation, S.L. stabbed Mr. Webber four times resulting in serious injuries. The Crown’s Position [ 2 ] The Crown takes the position that S.L. committed an assault that caused aggravated injuries to Mr. Webber that was unlawful and not legally justifiable on the basis of self-defence. The Defence’s Position [ 3 ] S.L. submits that his use of force against Mr. Webber was lawful.

It was argued that he was justified in using reasonable force to protect himself from the imminent threat of being beaten by Mr. Webber. He further asserts that he used no more force than was proportionate to the immediate need and he acted in justifiable self-defence. The Law [ 4 ] The term self -defence may be used in everyday language in a variety of ways, but in law, the claim of self-defence must come strictly within

section 34 of the Criminal Code . The

section 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 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. [ 5 ] To summarize, the three essential ingredients of the defence are: 1. The accused believed on reasonable grounds that the complainant, used force or made a threat of force against him; 2. The accused committed the act that constitutes the offence of aggravated assault for the purpose of protecting himself from the use or threat of force; and 3. The act committed by the accused, was reasonable in the circumstances. [ 6 ] S.L. does not have to prove the defence applies.

The burden is on the Crown to prove that it does not. [ 7 ] However, this does not mean the Crown is required to prove beyond a reasonable doubt that the accused’s conduct fails on every element of the defence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the elements is not established. [ 8 ] Judges like me are not to look at the consequences of the accused’s actions in terms of resulting injuries, but rather, the reasonableness of the force used in repelling the complainant’s attack which was occurring.

[9] Furthermore, an accused’s actions can only be justified if he or she is repelling force with force. In other words self-defencecannot be used as ‘a cloak or a means to injure someone’. Similarly, if someone acts in anger or frustration to retaliate, rather than todefend himself or herself, the defence has no application [10] I have employed the credibility formula articulated by the Supreme Court of Canada in R. v. W.(D.) (SCC). Fact Finding Analysis Parties Meet [11] On October 15, 2014, S.L. and others were having a house party. The people at the party were between 15 and 19 years old.

S.L. at the time was 16. The group was drinking alcohol and some were smoking marijuana. [12] When they ran out of alcohol. Messrs. S.L., D., K., and C. went to the local cold beer and wine store to reload. While at thestore they befriended Mr. Webber. Mr. Webber who was 32 years old, accepted their invitation to party with them. [13] Mr. Webber testified that he was already intoxicated when he met the group. He described himself, at that time, as being a 6 or7 on a 1-10 scale. In S.L.’s opinion, Mr. Webber was already “drunk out of his mind”, slurring his words and stumbling when they firstmet.

Events at the House Party [14] According to one of the people at the party, Ms. E., when Mr. Webber arrived he began calling her names like bitch. Shedescribed him as very drunk. She was concerned that he would become physically aggressive because each time he called her a name helunged towards her. She told him to stop and asked her boyfriend Mr. D. to get him to leave. [15] Mr. D. confronted Mr. Webber and told him to leave his girlfriend alone. He told him he could “kick the shit out of him”. Mr.Webber replied that everything was cool and they continued to party. [16] Ms. E. was upset with Mr. D. allowing Mr.

Webber to remain and left the party. [17] Mr. Webber did not recall calling Ms. E.’s names but did recall having what he described was a cordial chat. However, othersat the party contradicted this and confirmed seeing Ms. E’s become upset with him. [18] S.L. said they he saw Mr. Webber making punching motions towards Ms. E. during the party and acting weird. He describedMr. Webber as still very drunk and required others to lean on for support. [19] Mr. C. said that during the party, Mr. Webber was also calling him names like “faggot” and making fun of his piercings. [20] By Mr.

Webber’s own account he consumed 19 ounces of alcohol before leaving the house party and was very intoxicated. Webber and K. Leave to Buy Cigarettes [21] Shortly before 11:00 p.m. Mr. Webber and Mr. K left the party to purchase cigarettes. [22] S.L. felt that they were gone longer than expected and became concerned. He said he was concerned because Mr. K was only16 and Mr. Webber was much older. He and Mr. D. decided to go looking for him. S.L. and B.D. Leave to Find L.K [23] Before leaving, Mr. C. said he gave S.L. a knife. He said S.L. looked confused, and Mr.

C. smirked and said, “You neverknow.” S.L. took the knife with him. The Altercation [24] The parties ran into each other a short distance from the residence. [25] Mr. D. said Mr. Webber, at that point, was about an 8 or 9 on scale of 10 with respect to his level of intoxication. He describedhimself around a 6 or a 7. Webber’s Version [26] Mr. Webber testified as he and Mr. K. neared the party residence he was confronted by a person he had not seen before. Theperson began yelling at him and he pushed the person back to create some distance. He would later identify this person as S.L. [27] Mr.

Webber said he was grabbed by two people (one of which was the person who accompanied him to get cigarettes). Eachheld one arm and the third person who was yelling at him began punching. [28] He did not recall punching back but agreed that he might have. [29] Mr. Webber did not see a weapon and did not realize he had been stabbed until he fell to the ground. [30] He said he weighed approximately 125 pounds at the time of the incident. S.L. and B.D.’s Version

[ 31 ] For the most part, Messrs. S.L. and D. were consistent with each other on how the events unfolded. [ 32 ] The two recalled the fight starting differently than Mr. Webber. According to both, Mr. K. told them about seeing the person who urinated on the homeless man. Mr. S.L.’s response was that they should go find and deal with him. Mr. Webber then looked at S.L. and said, “Do you think you are tough?” and pushed S.L. S.L. fell backwards, got up and pushed back saying, “Get out of my fucking face.” [ 33 ] Mr. Webber began punching S.L.

S.L. continued to tell him to back off and then began exchanging punches with Mr. Webber. [ 34 ] In Mr. D.’s opinion the fight appeared to be consensual. Some of S.L.’s punches were connecting but did not seem to faze Mr. Webber. [ 35 ] Mr. D., said he eventually got in between the two and tried to separate them but it was obvious they both wanted to continue fighting and tried to get around him and at each other. [ 36 ] S.L. on the other hand, said neither Mr. D. nor Mr. K. assisted or tried to stop the fight. [ 37 ] Mr. D. said, at one point, he saw S.L. backing up and turtling.

S.L. was saying, “Back the fuck up.” [ 38 ] S.L. testified that it was at this point that he became concerned he was going to get seriously beaten. He tried to back away but backed into a stop sign. [ 39 ] Mr. D. said that as S.L. was turtling, Mr. Webber continued punching S.L. in the head and S.L. tried punching back in the rib and abdomen region. [ 40 ] Mr. D. said it eventually it became apparent to him that S.L. was done fighting, but Mr. Webber continued charging at him and calling him a loser. At that point Mr. D. said that he jumped on Mr. Webber and took him to the ground.

While on the ground he punched Mr. Webber a couple of times. He then told Mr. Webber it was over and Mr. Webber responded that his friend had stabbed him. [ 41 ] Mr. D. opined that Mr. Webber was the same size as himself which is 5’11 and 165 pounds. He said S.L., although the same height was 20-30 pounds lighter. [ 42 ] Mr. D. said that he never saw a knife and did not know at what point Mr. Webber got stabbed. He said the fight only lasted 30- 60 seconds. [ 43 ] S.L. said he had been in fights before but never with a person who was 30 years old. [ 44 ] He said the fight was different than others he had been in.

He was concerned that Mr. Webber was on something and would not stop fighting until he was finished. He felt that given Mr. Webber’s state of intoxication and anger that he would keep beating on him even after beating him into a state of unconsciousness. [ 45 ] He said he pulled out the knife and told Mr. Webber that he would use it in hopes of getting him to stop. [ 46 ] According to S.L., Mr. Webber than raised his jacket, said do it pussy, and kept coming towards him. According to S.L., Mr. Webber was about 8-10 feet away at this point. [ 47 ] S.L. said that he crouched down and Mr.

Webber grabbed his collar and continued punching him so he began swinging the knife. He was uncertain whether he stabbed him but knows that he did. [ 48 ] He said as he stabbed him it appeared to have no effect on him. [ 49 ] S.L. said he was yelling to his friends to help. [ 50 ] S.L. testified that Mr. D. then grabbed him and threw him (S.L.) to the ground. Even after being pushed away, Mr. Webber away, Mr. Webber kept advancing so he got up and ran to the residence. When he came back outside he saw Mr. D standing overtop of Mr.

Webber telling him to stay the “fuck down”. [ 51 ] S.L. was asked in cross examination why he did not run away and he said he did not know. He testified that he was drunk and probably not in the right state of mind. S.L. said when Mr. Webber lifted his jacket and told him to stab him, he could have run. He acknowledged that given Mr. Webber’s highly intoxicated state it would not have been difficult to do so. In hindsight, he wished he would have. Webber’s Injuries [ 52 ] He was treated at the hospital for four stab wounds to the abdomen area.

The injuries were serious resulting in part of his intestines being removed. Events Following the Altercation [ 53 ] Following the incident, Mr. C. said that S.L. came into the residence where the party was being held, dropped to his knees and said I think I stabbed a guy. [ 54 ] S.L. told Mr. C. what happened. His description was consistent with what he told the court. He said he was scared, and telling Mr. Webber to back up when he began swinging the knife. He told Mr. C. that he did not know if he had stabbed him.

[ 55 ] S.L.’s mother, received a text from him where he said, “Mom, I fucked up.” [ 56 ] Ms. E. also received a text from S.L. In the text he said he stabbed a guy. The two agreed to meet. Ms. E. described S.L. as very intoxicated. She said he was about 8 out of 10. [ 57 ] S.L. told her he had been attacked by the guy. He said he could not believe he did it. [ 58 ] Ms. E. said she saw some minor injuries on S.L.’s face. Analysis Credibility Analysis [ 59 ] The first issue that I must resolve is credibility. The facts as testified by Mr. Webber on the one hand and Mr.

D., and S.L. on the other are diametrically opposed. There are even some significant inconsistencies between the evidence of Mr. D. and S.L. [ 60 ] I found Mr. Webber credible but have concerns regarding the reliability of his testimony. Mr. Webber admitted that he was drunk when he met the group at the liquor store. Following that he continued to consume more alcohol. Others also described him as extremely intoxicated. In addition to his memory being impaired by the consumption of alcohol, Mr. Webber was involved in a very traumatizing incident.

He was seriously injured and received morphine to deal with the pain. [ 61 ] Mr. Webber was a poor historian. There were some significant gaps in Mr. Webber’s testimony where he was unable to recall things. For instance, he was asked if he threw any punches, initially said he had not, but then acknowledge that he may have. [ 62 ] For these reasons I cannot confidently rely on Mr. Webber’s testimony. [ 63 ] Both Mr. D. and S.L. appeared credible and for the most part reliable. [ 64 ] I would not describe either as particularly sophisticated. [ 65 ] Their stories were internally consistent.

Neither was contradicted in cross-examination, despite very skilful examinations. [ 66 ] For the most part their stories were consistent with each other and the other evidence, aside from Mr. Webber’s testimony. [ 67 ] Where they differed was S.L.’s recollection of Mr. Webber holding his shirt up and telling him to stab him. Mr. D. on the other hand described Mr. Webber advancing towards S.L. calling him a loser, which would suggest some degree of separation between the two. He did not testify about Mr. Webber holding up his shirt and telling S.L. to stab him. Mr.

D. also denied seeing or hearing any reference to a knife, when clearly a knife was present. [ 68 ] Mr. D. described himself as very intoxicated, only slightly below Mr. Webber’s level. Although S.L. was also intoxicated, the only evidence of his degree comes from Ms. E. who describes him after the incident as an 8 out of 10. However, she also describes him as being very distraught and did not say why she thought he was intoxicated as he was. S.L. described himself as drunk but did not articulate how drunk. [ 69 ] Clearly Mr. D. did not observe everything.

For instance he did not see the knife. [ 70 ] I prefer the evidence of S.L. over the evidence of Mr. D. where their evidence differs. Self-Defence Analysis [ 71 ] As in most cases, where self-defence is raised, the critical issue in this case is the same: were the actions of the accused reasonable in the circumstances. [ 72 ] In deciding this issue I must consider all the relevant circumstances of S.L., Mr.

Webber, and the act including, but not limited to, the factors set out in section 34(2)(a-h). [ 73 ] Section 34(2) makes clear that the reasonableness determination is to be done by applying a modified objective evaluation where the reasonableness of the act is judged bearing in mind relevant and appropriate considerations personal to the accused. [ 74 ] However, S.L.’s degree of intoxication to the extent that it bears on his thought process is not a factor. A reasonable person is a sober person. [ 75 ] I will now address each of the factors.

a) The nature of the force or threat of force made by the complainant [ 76 ] S.L. testified that the force he was confronted with was very serious. He said he felt this to be the case because Mr. Webber appeared to be on something and he feared that Mr. Webber would beat him beyond as state of unconsciousness. He described Mr. Webber as appearing intent on finishing him and not listening to reason. [ 77 ] The force used by Mr. Webber commenced with a push and then punches to S.L.’s head and body. Neither S.L., nor Mr. D. described the degree of force in Mr. Webber`s punches. [ 78 ] Mr.

Webber was described by all the witnesses as being very intoxicated. S.L. described Mr. Webber as so drunk at the party that he was leaning on others to stand. Mr. D. characterized him as an 8 or 9 out of 10.

[ 79 ] The fight itself was short, according to Mr. D., it lasted 30-60 seconds. [ 80 ] Although Ms. E. described seeing some bruising to S.L., no one else, including S.L., testified about any serious injuries. I accept that S.L. had some injuries, but they were trifling in nature.

b) The extent to which the use of force was imminent and whether there were other means available to the S.L. to the potential use of force [ 81 ] Calm and detached reflection is not required when a person is under attack. Persons like S.L. must make decisions quickly and do not have the luxury of measuring to a nicety all of the available options. [ 82 ] Although there is no general duty at law to retreat from an unprovoked assault, there is not an explicit ‘no retreat’ rule in Canada like those that exist in Florida and other states.

In Canada the availability to retreat remains a factor that can be considered in assessing the reasonableness of the accused’s actions. [ 83 ] S.L. testified that Mr. Webber was 8-10 feet away with his both hands at his side holding his shirt up before he stabbed him. He did tell him to back-off which is to some degree retreating. However, when he was asked why he never ran, he said that he did not know why. He testified that given Mr. Webber`s highly intoxicated state, he could have easily done so.

He opined that because of his level of intoxication he was not in the right state of mind and never considered it as a viable option. [ 84 ] The option of retreating for S.L. was enhanced by the presence of S.L.’s friends, the knife in his hand and Mr. Webber’s high degree of intoxication. There was nothing in the way of S.L. simply running. In fact he did just that when Mr. D. intervened and pushed him to the ground. The residence, a place of safe refuge was close by.

c) S.L.’s role in the incident [ 85 ] Although S.L. did not provoke the fight, S.L. anticipated that there might be an altercation with Mr. Webber. He had seen Mr. Webber acting aggressively earlier in the evening and testified that the reason he went looking for Mr. K was because he was with Mr. Webber who was 35 years old. Furthermore when he was given the knife by Mr. C., he did not refuse or say I do not need it. [ 86 ] S.L. also engaged in what counsel agree was a consensual fight at the outset, but in the course of the fight it became apparent that any consent had been withdrawn by him.

d) Whether any party to the incident used or threatened to use a weapon [ 87 ] In most cases, the use of the weapon by the victim will support the need for extreme and decisive force by the victim. In the case at hand, S.L. was the one with the weapon and Mr. Webber was unarmed. Despite the size and age difference between the parties, given Mr. Webber’s degree of intoxication, the presence of the knife clearly made Mr. Webber the more vulnerable.

e) The size, age, gender and physical capabilities of the parties to the incident [ 88 ] S.L. was 16 and Mr. Webber 32. S.L. testified that he had been in fights before but never with a person who was 30 years old. He described the nature of the fight as more threatening. [ 89 ] Although S.L. was 20-30 pounds lighter than Mr. Webber, they were both relatively the same in height. [ 90 ] Although when sober, Mr. Webber likely would have been the more dominant, that was not the case on the night in question.

f) The nature, duration, and history of any relationship between the accused and the complainant, including prior use or threat of force and the nature of that force or threat [ 91 ] The parties were not in any relationship. They were strangers until the day in question. (f.1) Any history of interaction or communication between the parties to the incident [ 92 ] S.L. and Webber had only known each other for a very short period of time. However, during that period of time, S.L. witnessed Mr. Webber being aggressive and hostile towards his friend Ms. E. [ 93 ] He also had a sufficient opportunity and did witness how intoxicated Mr. Webber was.

g) The nature and proportionality of the response to the use or threat of force [ 94 ] Self-defence can be available even where the force used outstrips the force being defended against, so long as it was reasonable in the circumstances to use such force to achieve a successful self-defence. [ 95 ] While an accused person is not expected to weigh with nicety the force they used in self-defence, and due allowance must be given to the urgent circumstances the accused was in when choosing the force used, acting in self-defence has never been considered a licence for gratuitous escalation, or an unreasonable/excessive response.

Only force commensurate to the threat or necessary to prevent the threat is called for. An excessive reaction can disqualify the defence. [ 96 ] Therefore, not only is the relative measure of force an important consideration but so is its necessity. [ 97 ] Many of the factors considered above, feed and inform the proportionality inquiry under this subsection. Other relevant factors

[ 98 ] As mentioned earlier, the fact that S.L.’s level of intoxication, as it relates to his decision making ability is irrelevant. I have considered his intoxication as it related to his ability to defend himself. There was nothing in the evidence to suggest his ability was impaired. [ 99 ] S.L.’s age and level of maturity is a relevant consideration. Some might argue that the words reasonable and 16 year old boy are incongruous, however, S.L., although unsophisticated, came across as a mature young man. He was quick to acknowledge that he knew retreating was an available option.

Conclusion [ 100 ] After having considered all of the circumstances, I am satisfied that the Crown has disproven beyond a reasonable doubt that the assault on Mr. Webber meets the necessary force requirements of section 34 (1) of the Code . [ 101 ] The most relevant of the factors listed in section 34 (2), are: “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” and “the size, age, gender and physical capabilities of the parties to the incident”.

In all the circumstances, the use of force by S.L. was unreasonable it the circumstances. [ 102 ] Mr. Webber was 8-10 feet away with his hands holding up his shirt. I appreciate that he continued to advance despite S.L.’s pleas to back off. However, the option that would have been most obvious to a reasonable sober person, and was clearly available to S.L. was to retreat. The accused was several feet away with his hands at his side and he was severely intoxicated. On his own account, S.L. admitted that he could have fled. It was not reasonable in all the circumstances for S.L. to stab Mr.

Webber to extricate himself from the situation he found himself in. [ 103 ] I find S.L. guilty of aggravated assault. THE HONOURABLE JUDGE G.W. KOTURBASH