R. v. L.A., 2022 BCPC 163

Citation: R. v. L.A. 2022 BCPC 163 Date: 20220811 File No: 5245 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.A. PUBLICATION BAN: Section 486(4)2 Canadian Criminal Code REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: R. Roach Counsel for the Defendant: K. Aimetz Place of Hearing: Prince George, B.C. Dates of Hearing: April 11, 2022, June 27, 2022 Date of Judgment: August 11, 2022 INTRODUCTION

[1] This case underscores the Supreme Court’s finding in R. v. Jobidon, (SCC): there is no social utility in afistfight. [2] On January 15, 2021, D.A. was in Grade 10 and two days shy of his sixteenth birthday. On that day he was hanging out withfour other youths, T.S., J.P., R.A., and L.A.

At the time of the offence, T.S. was 14 years old, born [omitted for publication], and inGrade 9; J.P. was 15 years old, born [omitted for publication]; L.A. was 13 years old, born [omitted for publication], and in Grade 7; R.A.was 16 at the time of trial. [3] In the early evening of January 15, 2021, the five youths were at the Pine Centre Mall and McDonald’s on Massey Drive, inPrince George, BC. At approximately 9:00 p.m., they decided to head home. Their route home took the youths on a trail in Carrie JaneGray Park behind the YMCA and baseball diamonds.

It was dark and the only lighting was peripheral from distant streetlights. [4] The youth stopped on the trail briefly so T.S. could go to the bathroom. During this hiatus, L.A. and D.A. began to play wrestle,resulting in D.A. being stabbed with L.A.’s knife. [5] L.A. is now facing three criminal charges: assault with a weapon (a knife) contrary to s. 267(

a) of the Criminal Code; unlawfullycausing bodily harm to D.A. contrary to s. 269 of the Criminal Code; and possessing a weapon (a knife) for a dangerous purpose contraryto s. 88(1) of the Criminal Code. ISSUES [6] All charges relate to a single incident that occurred in Prince George on January 15, 2021. The issues before the court arewhether the Crown has proven beyond a reasonable doubt the essential elements of three offences and disproved the defences of accidentand/or self-defence beyond a reasonable doubt. [7] This matter came before me for trial on April 11, 2022, and June 27, 2022.

The Crown called five witnesses: the complainant;two eyewitnesses; and two investigating police officers. The Crown also tendered into evidence a number of photographs Constable Piketook of the complainant’s injuries in the University Hospital of Northern British Columbia (“UHNBC”) trauma room and the foldingknife alleged to have been used to cause those injuries. The defence called one witness, the accused L.A. [8] On June 27, 2022, counsel for the Crown and defence provided submissions. The Crown provided oral submissions; the defenceprovided oral and written submissions.

Both counsel relied on the Supreme Court of Canada case of R. v. DeSousa, (SCC), [1992] 2 SCR 944 (“DeSousa”). The defence also relies on the following cases: R. v. Flack, , BCCA; R. v. Chalifoux, (BCCA); R. v. Hill, (SCC); R. v. Calder, 1984 ABCA 45 ; R. v. Soares, (ONCA); R. v. Kerr, 2004 SCC 44 (“Kerr); R. v. Ryan, 2013 SCC 3 (“Ryan”); R v Edward Landry, 2015 SKPC 156 (“Landry”). [9] I have read and considered all of the authorities cited by counsel, as well, more recent appellate cases, such as: R. v. Khill, 2021SCC 37 (“Khill”); R. v. Barton, 2019 SCC 33 (“Barton”); R. v.

Tatton, 2015 SCC 33 (“Tatton”); R. v. MacKay, 2005 SCC 79(“MacKay”); R. v. Zaworski, 2022 BCCA 144 (“Zaworski”); R. v. Sagmoen, 2021 BCCA 356 (“Sagmoen); R. v.Thomas, 2019 BCCA 247 (“Thomas”); R. v. Dawydiuk, 2010 BCCA 162 (“Dawydiuk”); R v Strathdee, 2020 ABCA 443 (“Strathdee”); R v Ryon, 2019 ABCA 36 (“Ryon”); R. v Gardiner, 2018 ABCA 298 (“Gardiner”). [10] L.A. initiated some “horseplay” with D.A., which I will refer to in these Reasons for Judgment as “the fight”.

The fight: D.A.’s version [11] D.A. remembers L.A. saying to him, “you think you are tougher than me.” D.A. said “yes,” because he was taller, bigger, andstronger than L.A. L.A., however, was a bit heavier. At the outset, the wrestling was good-natured. Neither boy had it out for the other,nor was there any bad blood between them. After a minute or so of wrestling about, L.A. put D.A. in a headlock. D.A. testified, “I justassumed he wanted to wrestle, which was fine, that is what boys do.” L.A. started punching D.A., who kicked him away.

In describingthe fight to Constable Pike, D.A. said, “Well, he is chuckling, I am chuckling, we are all having some good times wrestling around.” [12] At some point the fight became less playful. L.A. distanced himself from D.A., then began running at him. D.A. assumed L.A.was going to attack him again. D.A. had had enough and wanted to give L.A. “a good hit in the face to get him to back off and stop.”D.A. did not intend to hurt L.A.; he just intended to hit him hard enough to persuade L.A. to stop hitting him.

As he raised his hand topunch L.A., D.A. felt a quick slicing through the right side of his chest back to his armpit. He never saw the knife in L.A.’s hand. The fight: T.S.’s version [13] When the youths reached the baseball diamonds, T.S. broke away to use the washroom. As his back was to the group, all heheard was a scuffle and D.A. saying to L.A., “don’t touch my cigarette.” He turned around and saw that D.A. and L.A. were close and

saw them take their hands off each other, then heard D.A. say, “I got stabbed, I got stabbed.” T.S. did not see the stabbing or ask to see the wound. [ 14 ] T.S. testified that at the time of the incident it was dark. When he went “off to the side” he turned on his cell phone flashlight so he could see where he was going. When asked if he could still see people despite the darkness, T.S. said, “I was able to see silhouettes and them right up on each other, I was able to see that.” [ 15 ] T.S. did not see the knife, but knows L.A. “usually does carry a knife on him,” as does R.A.

T.S. observed L.A. taking out his knife earlier that evening. He described it as black with a clip. The fight: J.P.’s version [ 16 ] At trial, J.P. said that while the group was stopped waiting for T.S. while he was going to the bathroom, D.A. and L.A. started play wrestling. J.P. said, “I seen them wrestling for a bit. They were – like - going back and forth.” They stopped for a second and started again, during which time D.A. was stabbed. J.P. stepped back. It was dark and he could not see D.A. and L.A. clearly or fully.

All he heard was D.A. yell that he was stabbed. [ 17 ] J.P. provided a statement to Constable Belanger shortly after the incident. In his statement he said that L.A. initiated the wrestling in the first stage and D.A. initiated the wrestling in the second stage.

In the second stage, D.A. was mad at L.A., and “kept going at him.” L.A. did not want to wrestle D.A. anymore and “pulled out the knife to try scaring him off,” and D.A. “kept running so he was stabbed by it.” In describing the stabbing, J.P. says D.A. “just kinda ran into him with that knife.” The fight: L.A.’s version [ 18 ] L.A. says he collects knives. He uses them for whittling and camping. When he left his home on the evening of January 15, 2021, he “threw” a knife in his pocket. He had forgotten about it and “couldn’t really leave it anywhere.” L.A. knew knives were sharp and dangerous.

When asked in cross-examination if he carried the knife for safety, L.A. said, “I had it on me ‘cause I had it on me.” [ 19 ] L.A. testified that he and D.A. began wrestling. When asked in cross-examination if they were fighting, L.A. replied, “I wouldn’t say fighting we were like playing around.” [ 20 ] L.A. knocked a cigarette out of D.A.’s mouth. D.A. got “a little bit annoyed” and pushed L.A. to the ground. L.A. pulled out his knife and opened the blade. L.A. says he did not intend to use the knife for any harm. He denied losing his temper.

L.A. said he was “a little intimidated,” so he “pulled out a knife to try and scare him off.” D.A. pushed him to the ground. In L.A.’s direct examination, defence counsel asked him, “Aft er you took out the knife, did you have any way of knowing [D.A.] was going to run towards you?” L.A. said, “No.” L.A. testified: I didn’t see him running at me. I see a figure running at me. I had the knife right here. So when he swung like that, he came close to me it hit him on the side. . . . It was dark so [D.A.] didn’t see it.

He ran at me and swung, and it stabbed him. [ 21 ] In cross-examination when asked if he “stabbed [D.A.]”, L.A. said, “Yep.” He also admits to pulling the knife out of D.A. after he was stabbed. Immediately afterwards, L.A. says, “I was panicking ‘cause I didn’t realize I had done that . . . just apologizing to D.A. a whole lot.” [ 22 ] When asked in direct examination if it crossed his mind someone might get hurt, L.A. responded, “Maybe – but . . . I wasn’t sure.” Aftermath [ 23 ] After he was stabbed, the other boys began yelling, mostly at L.A., who began apologizing.

The youths began walking down Victoria Street, then split up. T.S., R.A. and L.A. went to T.S.’s house and D.A. and J.P. went to J.P.’s residence. When D.A. arrived, he showed J.P.’s mother his wound. She called D.A.’s father. [ 24 ] D.A.’s father arrived and drove D.A. to the UHNBC. He was immediately admitted into the trauma room. The stab wound punctured D.A.’s chest cavity and may have hit his lung. The treating physician inserted a drainage tube in D.A.’s right lung and stitched up the wound. D.A. remained in the hospital for three days. It took him approximately a week to recover.

The doctor removed the stitches (six or seven) a week and one-half later. [ 25 ] At 10:22 p.m. on January 15, 2021, the hospital staff contacted the Prince George RCMP, reporting they had a male youth in the trauma room for an apparent stab wound. Two RCMP officers became involved in the investigation of this matter. Constable Travis Belanger took a statement from T.S. and J.P. later that evening. He also conducted a search of the incident scene, but found no knife and no blood on the ground. Constable Logan Pike attended the hospital and observed D.A.’s injury and treatment.

Constable Pike photographed D.A.’s injury in the trauma room (Exhibit 1) and took his formal statement. [ 26 ] Constables Pike and Belanger attended at L.A.’s residence. His parents responded to their knock on the door and the officers explained they had reasonable grounds to believe that L.A. had committed an offence. Constable Pike arrested L.A. and placed him in the police vehicle. While at the residence, R.A. approached Constable Pike and advised him the knife used in the stabbing was on his [R.A.’s] bedside table. Constable Pike seized the folding knife, which he subsequently photographed.

He noted some reddish substance on the tip of the knife, which he assumed was blood. When folded out, the knife was 8.25 inches long and 1.25 inches wide. The photographs (Exhibit 1) depict a knife with a black blade bearing the inscription “TACTICAL TEAM SELF-DEFENCE & SECURITY.”

The knife also had a pocket clip (the “knife”). [27] After reading L.A. his Charter rights, the police released him to his parents on an Undertaking. ASSESSING RELIABILITY AND CREDIBILITY [28] In this case, I heard from five Crown witnesses and one defence witness. As the trial judge, I must assess the reliability andcredibility of those witnesses. This is a highly contextual, fact-specific exercise. I can believe none, part, or all of a witness' evidence andmay attach different weight to different parts of a witness' evidence: R. v. R.(D.), (SCC). [29] Reliability and credibility are not the same.

Reliability involves the accuracy of the witness’ testimony. It engages considerationof the witness’ ability to observe, recall and recount: R. v. H.C., 2009 ONCA 56, para. 41. Credibility, on the other hand, concerns thewitness’ veracity – to speak the truth as the witness believes it to be: R. v. Morrissey, (ONCA), at p. 526. Simply put,credibility addresses whether a witness is lying, whereas reliability is about honest mistakes. [30] I am mindful that L.A., D.A., T.S. and J.P. are youthful witnesses, neither children nor adults.

The Supreme Court of Canada hascautioned trial judges are not to impose the same “exacting standards” in assessing the evidence of a youthful witness as the courtimposes in assessing the testimony of an adult: R. v. B.(G.), , pp. 54-55. This is not to say the court lowers the standardof proof when dealing with a youthful witness. It remains the same proof beyond a reasonable doubt. Still, when assessing the credibilityof a youthful witness, the court must take a common-sense approach.

When considering inconsistencies, particularly as to “peripheralmatters”, the court should consider these in the context of the age of the witness. A flaw in a youthful witness’ testimony should not begiven the same effect as a similar flaw in an adult witness. [31] To varying degrees, the reliability of all the youthful witnesses who testified in this trial is compromised by the passage of timeand the fact the stabbing occurred very quickly, unexpectedly, and in the dark. [32] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’ evidence; (

b) any independentsupporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the“balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda;and to a lesser extent (

f) the witness’ demeanour while testifying, meaning not so much what is said but how it is said. [33] D.A., T.S. and J.P. provided formal statements to the police shortly after the incident.

R.A. and L.A. did not provide formalstatements to the police and R.A. did not testify at the trial. [34] From the undisputed facts, I have gleaned the following about the incident giving rise to the charges before the court: a. the stabbing incident occurred in the evening of January 15, 2021; b. the incident occurred in the vicinity of the baseball diamonds in Carrie Jane Gray Park, off Massey Drive, in Prince George, BC; c. five youths: L.A., D.A., T.S., J.P. and R.A. were present; d. the incident occurred after 9:00 p.m. in winter when it was dark, in a place with little ambient lighting; e.

D.A. and L.A. began engaging in a consensual fight which L.A. initiated; f. At some point the fight became less playful and more antagonistic; g. D.A. was stabbed with a knife L.A. was carrying in his right hand; h. D.A. was stabbed in the right side of his chest as he went to punch L.A.; i. None of D.A., T.S. or J.P. saw L.A. pull out a knife from his pocket; j. None of D.A., T.S. or J.P. saw the knife in L.A.’s hand; k. None of D.A., T.S. or J.P. saw L.A. stab D.A. or make stabbing motions toward him; l. D.A. realized he was stabbed after feeling a quick slicing through his right chest to his armpit; and m.

T.S. and J.P. learned D.A. was stabbed when D.A. yelled, “I got stabbed.” [35] D.A. and L.A. were inconsistent with respect to the actual stabbing as follows: a. D.A. says he saw L.A. running in the dark toward him. D.A. was going to give L.A. “a good hit in the face to get him to back off andstop.” D.A. goes on to state, “When I did go for that, I was stabbed.” b. L.A. says D.A. ran at him and swung at him using his right hand. At the time, L.A. was holding his knife in his right hand at mid-torso level.

L.A. was standing still at the time D.A. was swinging; D.A. ran into the knife. [36] L.A.’s version of events is corroborated in part by J.P., who testified that L.A. and D.A.’s friendly wrestling match progressed intwo stages. However, it is not entirely clear to me what J.P. actually observed or his basis for concluding that D.A. was mad or that L.A.pulled out the knife to try to scare him off. Constable Belanger asked J.P. if “D.A. kind of ran into him with the knife?” J.P. agreed, butat trial clarified his response as follows:

It was hard to see if there was any stabbing motions. Again, it was dark out. All I could hear was a yell. I just assumed that, ‘cause itseemed that it was kind of logical. [37] When asked about his statement to Constable Belanger, J.P. said: At the time I was just kinda speculating what happened, because I didn’t clearly see it. I just – what I heard what happened after.

That is– it was kinda what I thought what happened. [38] Constable Belanger testified that on the morning of the first day of trial, J.P. met with him privately and asked to alter his earlierstatement on the basis that what he had said was “speculative.” [39] T.S. provided Constable Belanger with details of the fight between D.A. and L.A., which were somewhat different from that towhich he testified at trial. T.S.’s evidence as to what he actually observed was less than certain. In cross-examination when asked aboutthe role of the cigarette, T.S. testified: I hear, “Don’t touch my cigarette” and everything.

Cause my buddy is a smoker. I turned around, and I hear, “I got stabbed. I gotstabbed.” [40] Later, T.S. testified that L.A. grabbed D.A.’s cigarette and D.A. got mad at him and tried to take it back: He got up to him, he got physical with him, and he was trying to wrestle back his cigarette, from there, it did occur, the stabbing. He was reaching for it, then they just both got into it.

He was reaching with his hand and trying to get it back and from there, they bothgot into a scuffle. [41] T.S. clarified that “he” was D.A. and “him” was L.A. [42] T.S. went on to testified, however, that he never actually saw when D.A. was stabbed and he did not know whom was movingtoward whom when D.A. was stabbed. In the darkness, all he saw was silhouettes. [43] When asked to describe the knife that L.A. brought out earlier that night, T.S. said: I can’t remember In all honesty. It is just kinda, it was something I put away. I can’t remember exactly what it looked like.

I pushed thatsituation to the side after awhile. I just tried to forget about it. [44] Neither D.A. nor J.P. remember the fight involving a cigarette. When asked in cross-examination if he became upset about thecigarette falling from his mouth during the fight, D.A. responded, “not really, it was just a cigarette.” ASSESSING REASONABLE DOUBT [45] The Crown has to prove all the essential elements of an offence charged beyond a reasonable doubt in order to obtain aconviction. In R. v.

W.(D.), , the Supreme Court of Canada provided the trial courts with an analytical framework toassess reasonable doubt in the context of conflicting testimony in a criminal trial. Justice David M. Paciocco, in his paper Doubt aboutDoubt: Coping with R. v. W.(D.) and Credibility Assessment, recasts the W.(D.) test as follows: a. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; b. A trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; c.

Even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true, there is areasonable doubt and an acquittal must follow; d. Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and e. Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused’s guilty beyond a reasonable doubt.

LEGAL FRAMEWORK Elements of the offences: static [46] The static elements for any criminal offence are: (

a) identity in the sense that the person standing in the courtroom is the personwho is alleged to have committed the offence; (

b) jurisdiction of the court over the person accused; and (

c) the timing of the offence. Ifind the Crown has proven beyond a reasonable doubt that: (

a) L.A. is the person alleged to have committed the offences charged underCounts 1, 2 and 3 of Information 5245-1; (

b) the Provincial Court of British Columbia in Prince George, BC has jurisdiction over L.A.;and (

c) the incidents giving rise to the charges occurred on the evening of January 15, 2021. Elements of the offences: substantive Assault with a weapon, s. 267(

a) of the Criminal Code [47] L.A. is charged with assault with a weapon under s. 267(

a) of the Criminal Code, which states: 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an

offence punishable on

summary conviction who, in committing an assault, a. carries, uses or threatens to use a weapon or an imitation thereof. . . [48] An assault under s. 267 incorporates the definition of assault set out in s. 265(1) of the Criminal Code, which states: 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; . . . [49] “Complainant”, and “weapon” are defined in s. 2 of the Criminal Code as follows: complainant means the victim of an alleged offence; weapon means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person . . . [50] In MacKay, (at para. 4), Charron J. for the court held that “Sections 265(1)(

a) and (

b) do not create separate offences but simplydefine two ways of committing the same offence: also see R. v. Cowan, 2021 SCC 45 , para. 61. In Dawydiuk, Justice Rowlesfor the court explained (at paras 29-30) the application of s. 265(1)(

a) and (b): [29] Under s. 265(1)(

a) of the Criminal Code, a person commits an assault when without the consent of another person, he applies forceintentionally to that other person, directly or indirectly. In s. 265(1)(a), the word “intentionally” simply means, in the words of Ritchie J.,“not done by accident or through honest mistake”. In this case, however, the trial judge concluded that s. 265(1)(

b) applied with respectto the assault offences charged. Under that subsection, every one commits an assault if “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 toeffect his purpose.” [30] Under s. 265(1)(

b) mere words will not constitute an assault.

An act or gesture will suffice provided the Crown proves that theaccused attempted or threatened, by the act or gesture, to apply force to another person, if he has “present ability to effect his purpose” or“if he .. causes that other person to believe on reasonable grounds, that he has, present ability to effect his purpose”. The reasonableapprehension of the victim under s. 265(1)(

b) becomes relevant only when an accused does not have the ability to carry out his purpose. [51] In order to find L.A. guilty under s. 267(a), assaulting D.A. with a weapon, the Crown must prove all essential elements of theoffence beyond a reasonable doubt. Specifically, the Crown must prove L.A. committed an assault as defined in s. 265(1)(

a) and/or265(1)(b), and that in committing the assault, L.A. carried, used or threaten to use a weapon. If L.A. underlying conduct does notconstitute an assault, it cannot ground a conviction for assault with a weapon. [52] Assault with a weapon is a general intent offence. The mental element (mens rea) required to commit a general intent offencesimply relates to the performance of the illegal act with no further ulterior purpose; therefore, they involve "minimal mental acuity":Tatton, at paras. 35, 41.

The Crown is not required to prove the accused intended a specific consequence, nor to have acted for a specificpurpose. Intentional application of force [53] The definition of assault contained within s. 265(1)(

a) does not require any infliction of harm, merely the intentional non-consensual application of force, directly or indirectly. The strength of the applied force is immaterial; the slightest touching of anotherperson without their consent can constitute an assault: R. v. Burden, (BCCA). [54] The definition of assault contained within section 265(1)(

b) of the Criminal Code does not require the application of force. Asexplained in Dawydiuk, the mens rea of an offence under s. 265(1)(

b) lies in the intention to apply force and not in the intention to carryout that threat. An assault is committed pursuant to this provision when the accused threatens, by

an act or a gesture, to apply force toanother person. [55] The word “intentionally” in s. 265(1)(

a) relates to the application of force or to the manner in which force is applied. Recently inZaworski, in discussing the mental element of assault, Justice DeWitt-Van Oosten for the unanimous five-panel appellate court cited thefollowing passage from R. v. D.J.W., 2011 BCCA 522 , aff’d 2012 SCC 63 [citations omitted]: [42] . . . [70] The mental element of assault, defined as “intentionally” in s. 265(1)(

a) of the Code, includes recklessness. . . . “In s. 265(1)(a), theword ‘intentionally’ simply means . . . ‘not done by accident or through honest mistake.’” [Emphasis in original.] Consent

[ 56 ] The evidence shows and I am satisfied that L.A. and D.A. were engaged in a consensual fight prior to the stabbing. Despite their social uselessness, the law allows people to consent to engage in fistfights: Jobidon ; R. v. Paice , 2005 SCC 22 . [ 57 ] The accused, the complainant and other lay witnesses described the altercation variously as horseplay, play wrestling, and “good natured” fighting. The fight included scuffling, bickering, shoving, pushing, holding, kicking, and punching. I find that D.A. and L.A. intentionally applied force to each other.

D.A. thought that he and L.A. were “having some good times wrestling around.” L.A. says they were “playing around.” [ 58 ] As the fight progressed, L.A. pulled out the knife and opened the blade. He says he did this because he became intimidated when D.A. pushed him to the ground. [ 59 ] D.A. did not consent to a knife fight. He did not even know a knife was in play until he felt it slicing into his chest. D.A.’s consent to engage in a fight was vitiated when L.A. materially changed its nature with the introduction of a knife.

Being stabbed was not within the ambit of D.A.’s consent: Gardiner , citing R. v Sullivan , 2011 NLCA 6 , at paras. 38-39 . Moreover, on public policy grounds, no person can consent to fight with weapons resulting in serious bodily harm. In Jobidon , the Supreme Court of Canada held that consent is vitiated when intentional force causing serious hurt or non-trivial harm is applied in the course of a consensual fistfight or brawl.

In Strathdee , the Alberta Court of Appeal states at para. 46, “ Stabbing people is well across the public policy boundary of a consensual fight.” Accident [ 60 ] The defence argues D.A. was stabbed accidently and cited the Saskatchewan Provincial Court case of Landry as an authority for this defence. [ 61 ] “Accident” used in its popular and ordinary sense, typically means “a mishap or untoward event not expected or designed”: Barton , at para. 186 , cited by the BC Court of Appeal in Sagmoen .

In Barton , Justice Moldaver for the majority stated the concept of “accident” has a “specialized meaning” in the criminal law context: It is used to signal one or both of the following: (1) that the act in question was involuntary (thus negating the actus reus of the offence) or (2) the accused did not have the requisite mens rea . Moldaver J. goes on to state, in part: [187] With respect to the latter scenario, in assessing whether a claim of “ accident ” may negate mens rea in any particular case, it is obviously essential to consider what the relevant mens rea requirement is in the first place.

In carrying out this inquiry, it must be kept in mind that mens rea requirements vary and include, for example: (1) a subjective intention to bring about a prohibited consequence; (2) a subjective awareness of prohibited circumstances; and (3) objective fault. . . . [189] Where the offence charged requires proof of subjective intent to bring about a particular consequence, the claim that the accused did not intend to bring about that consequence, making it a mere “ accident ”, is legally relevant, as it could negate the mens rea required for a conviction. [190] By contrast, where the offence only requires a subjective awareness of particular circumstances, an accused’s claim that the consequences of his act (such as injury to another) were unintentional and unexpected, making those consequences a mere “ accident ”, is naturally of no assistance.

In other words, where the offence charged does not require proof of subjective intent to bring about any consequences in the first place, the “accidental” nature of the consequences is legally irrelevant. [191] Finally, if the offence requires proof of objective fault—for instance, that the prohibited consequence was objectively foreseeable —then a claim of “ accident ” could negate that fault element if the prohibited consequence was such a chance occurrence that the trier of fact is left in a state of reasonable doubt as to whether, objectively, it was foreseeable. [ 62 ] Assault with a weapon requires only a “subjective awareness of the particular circumstances”.

Assault, in all its forms, does not require proof the accused intended to injure the complainant, hence the accidental nature of the consequences is “legally irrelevant”. The offence of unlawfully causing bodily injury falls within the third category, meaning the prohibited consequence, causing injury, was an objectively foreseeable consequence of the unlawful act, be it assault or possession of a weapon for a dangerous purpose. [ 63 ] There is no dispute L.A. was holding the knife when it came into contact with D.A., causing his injuries. L.A. pulled out the knife from his pocket where he had placed it earlier.

L.A. unfolded the blade, held the knife in his right hand in front of his torso and pointed the blade outward. He did this after D.A. pushed him to the ground, but before he saw “a figure running at him”. L.A. says he did not intend to use the knife to harm D.A. It was D.A.’s own aggressive motions toward L.A. that caused D.A. to come in contact with the knife. DECISION ON THE DEFENCE OF ACCIDENT [ 64 ] I am of the view the defence of accident cannot succeed.

In reaching this conclusion, I have considered all the evidence favourable to the defence collectively in the context of all of the evidence before as required in W.(D.) . L.A. describes himself as passively holding the knife to deter D.A. from continuing the fight. However, the knife was not simply at hand and L.A. grabbed it reflexively. L.A. purposely took hold of and displayed the knife to deter D.A. from continuing the fight. L.A. did this in circumstances when it was too dark for D.A. to see L.A. had a knife.

When asked if it crossed his mind someone could get hurt, L.A. replied, “Maybe, but … I wasn’t sure.” [ 65 ] Although he did not testify to this fact, I accept L.A., who was only 13 at the time, may not have considered the possibility that if it was too dark for him to see D.A. clearly, then D.A. may not see him wielding a black-bladed knife. Still, as a camper, whittler and knife collector, L.A., young as he was, surely knew the knife he possessed was sharp and dangerous. L.A. unexpectedly introduced the knife into what began as a consensual weaponless fight.

In my view, the risk of injury was not unforeseeable, even to a 13 year old.

Did L.A. assault D.A. with a weapon? [66] In the context of a consensual fight in the dark, using an 8¼ inch tactical knife with a black blade to “scare off” the opponent isreckless, to say the least. I find L.A. did so to threaten or intimidate D.A. I do not find L.A. intended to harm D.A., but that is not the test.Subject to my ruling on self-defence, I am satisfied the Crown has made out all the elements of the offence of assault under s. 265 (1)(a)and (1)(

b) of the Criminal Code, beyond a reasonable doubt. I further find that in committing the assault on D.A., L.A. carried, used, orthreatened to use a weapon, namely, a knife, beyond a reasonable doubt. For greater certainty, I find the Crown has disproved thedefence of accident beyond a reasonable doubt. Possession of a weapon for a dangerous purpose [67] L.A. is charged with possession of a weapon “for a purpose dangerous to the public peace” or possession of a weapon “for thepurpose of committing an offence” contrary to s. 88 of the Criminal Code, which states: 88

(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or anyammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. [68] I understand the court is only concerned only with the first of these offences. [69] For this Court to find L.A. guilty of possession of a weapon for a dangerous purpose, the Crown must prove each of theseessential elements beyond a reasonable doubt: a. that L.A. possessed a weapon, namely, a knife; b. that L.A. knew that what he possessed was a weapon; and c. that L.A. had the item for the purpose dangerous to the public peace. [70] Whereas an assault is a general intent offence, possession of a weapon for the purpose dangerous to the public peace is a specificintent offence: Kerr, at paras. 23–24.

In Tatton, Justice Moldaver distinguishes a specific intent offence and summarizes the distinctionas follows: [39] To summarize, specific intent offences contain a heightened mental element. That element may take the form of an ulterior purposeor it may entail actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complexthought and reasoning processes. Alternatively, it may involve intent to bring about certain consequences, if the formation of that intentinvolves more complex thought and reasoning processes.

General intent offences, on the other hand, require very little mental acuity. [71] In Kerr, the Supreme Court adopted the two-part test that must be satisfied in order to convict an accused alleged to have carriedor possessed a weapon for a purpose dangerous to the public peace contrary to s. 88: (

a) proof of possession; and (

b) proof that thepurpose of that possession was one dangerous to the public peace. These elements must co-exist at the material time: Thomas, para. 45.;R. v. M.D., 2008 BCCA 538 , citing R .v. Cassidy, (SCC), at para. 19. [72] In Kerr, the accused was a prison inmate who had received a death threat. He concealed two weapons in his pants and when hewas attacked with a weapon, an altercation ensued and the accused killed his assailant. The accused was charged with murder andpossession of a weapon for a purpose dangerous to the public peace.

The Supreme Court Justices in Kerr delivered four differentopinions relating to the mens rea of possessing a weapon for a dangerous purpose and the assessment of self-defence. First, the justicesdiffered respecting whether the mens rea requirement of s. 88(1) is entirely subjective or is a subjective-objective hybrid. Second, somejustices differed as to how and when an assertion of self-defence should be considered. Ultimately, the Supreme Court upheld the lowercourt’s acquittal. [73] Justice Bastarache (with Major J. concurring) espoused a hybrid objective-subjective test.

The trial judge must first determinethe accused’s purpose; this is a subjective determination. The trial judge must then determine whether that purpose was in all thecircumstances dangerous to the public peace; this is an objective determination. Justice Lebel (with Arbour J. concurring) concluded theoffence was subjective, specifically defined as intent to do harm to persons or property or being reckless in that regard.

Justice Fishagreed the mens rea was subjective, but not in the specific form Justice Lebel had identified. [74] Justice Bastarache (at para. 26) noted an accused may have more than one purpose for their conduct: 26

Section 88 requires simply that the accused person have a purpose dangerous to the public peace. Thus, any purpose will do, so longas that purpose is in consequence dangerous to the public peace. . . . [75] Justice Bastarache also observed that when the conduct is ongoing, the accused’s purpose for that conduct may change overtime. He states: 24 On the purpose, I note first that a person’s purpose may change during the time that he possesses. I endorse the perspective of theAlberta Court of Appeal in R. v.

Calder (1984), 1984 ABCA 45 ,11 C.C.C. (3d) 546, where it stated, at p. 549: Although it is firmly established in law that the element of intent or mens rea must be present for there to be an offence, it does notnecessarily follow that a person’s initial intent when he takes possession of a weapon governs throughout his possession.

A person’sintent does not necessarily remain constant and may change to a dangerous intent even though the initial purpose in taking possessionwas not a dangerous one. . . . [76] Justice Bastarache went on to say (at para. 51) that, “Human motivation is not compartmentalized such that every purpose exists

independently of all others, each discretely contributing to human action.” Therefore, the Crown may rely on any of the accused’spurposes to establish the mens rea. [77] In determining the accused’s subjective purpose, the court can consider objective indicia. At para. 29, Bastarache J. held that adetermination of purpose requires the trial judge to consider “all of the relevant circumstances of the case, including the nature of theweapon, the circumstances under which the accused had it in his possession, his own explanation for that possession, and the use towhich he actually put it.”: (Also see: R. v.

M.D., 2008 BCCA 538, at para. 31.) [78] In Kerr, (per Major and Bastarache JJ. and para. 94, per Arbour and LeBel JJ.) Bastarache J. states at para. 38: 38 In my view, the crucial issue in those cases where the accused person is found to have possessed a weapon for a defensive purpose iswhether or not the attack which the accused purported to thwart was avoidable. Thus, only where the attack is completely inescapable ispossession of a weapon to thwart the attack not possession for a purpose dangerous to the public peace.

To the contrary, the purposefulact then constitutes an abatement of a danger to the public peace, namely, an attack on one's self. Many indicia will be relevant to thedetermination of avoidability, including, inter alia: location, atmosphere, nature of the threat, imminence of the danger, and actual use. [79] Thus, it is not enough an accused possessed the weapon for defensive purposes unless the perceived threat was unavoidable. Inother words, there must be some nexus between the threat and the possession of the weapon.

Possessing a weapon for a general purpose,without that criterion of imminent threat being met, is not self-defence. Such a purpose is inconsistent with the duty to avoid violentconfrontation by escaping, asking for police protection or even negotiating. It reflects a willingness to engage in physical conflict ifconfronted with a weapon and as such, is a purpose contrary to public peace: Kerr, para. 43. [80] In this case, L.A. cites three purposes as to why he was carrying a knife on the evening of January 15, 2021: (

a) camping; (b)whittling; and (3) “I had it on me cause I had it on me.” I find it implausible that L.A. had pocketed a knife for any utilitarian purposesuch as camping or whittling. It was the dead of winter and he was going to hang out with friends at the mall and McDonald’s. His thirdreason is no reason at all. [81] I accept that L.A. placed the knife in his pocket when he left his home on the evening of January 15, 2021. Although he says heforgot about it, I accept T.S.’s evidence that L.A. had brought out the knife earlier that evening. L.A. never testified otherwise.

Hence, Iam satisfied L.A. was aware he possessed the knife. However, I am not satisfied that when he first placed the knife in his pocket beforehe left his residence that evening, L.A. intended to use it for a dangerous purpose or for committing an offence.

I am not sure L.A. hadeven turned his mind to why he was carrying the knife beyond habit. [82] What is clear from his own evidence is that shortly before the stabbing, L.A. pulled out and presented the knife in an attempt to“scare off” D.A. because L.A. was a “little intimidated.” I find at that moment, L.A. possessed a knife for a purpose dangerous to thepublic peace. [83] The court must now consider the interrelationship between L.A. possessing the knife for a purpose dangerous to the public peaceand self-defence.

His assertion he used the knife for self-defence, does not, in and of itself, negate a finding he possessed it for a purposedangerous to the public peace. The court must measure L.A.’s professed purpose against a contextual and objective backdrop. The defence of self-defence [84] L.A. submits that on the evening of January 15, 2021, he acted in self-defence and therefore his actions were not unlawful.

InKerr, Justice Bastarache, stated at para. 28: 28 It is interesting to note that, conceptually, the defence of self-defence is not something which one “intends” in the criminal law sense.A person who is attacked intends to assault the assailant; his motivation is self-protection or self-preservation. Stated otherwise, self-defence does not negate the mens rea of assault, but rather allows the accused to escape criminal liability on the basis of an acceptablemotive: Stuart, supra, at p. 453.

For the purposes of the present analysis, the phrase “defensive purpose” refers to the intention to assaultan aggressor using only as much force as is necessary to repel or thwart the attack. [Emphasis in original.] [85] Justice Lebel in Kerr, referencing R v Hibbert, (SCC), states (at para. 93), “Self-defence does not vitiatethe mens rea of an offence, rather it is justification for conduct that would otherwise attract criminal liability.” [86] Self-defence is completely codified by s. 34 of the Criminal Code, which establishes the parameters 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 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. [87] The accused bears the burden to prove on a balance of probabilities there is an air of reality to the defence: R. v. Cinous, 2002SCC 29. This is an evidentiary burden, not a persuasive burden, so it does not require a credibility analysis. The relevant question iswhether a properly instructed jury, acting reasonably, could acquit on the basis of the self-defence provisions if it believed the evidenceto be true. The air of reality criterion applies to each component of the defence, not just bits and pieces of the defence: Cinous, paras. 95-97.

Specifically, the air of reality test applies to the element of reasonableness. If the burden is met, then the Crown must disprove self-

defence beyond a reasonable doubt. [ 88 ] I accept the issue of self-defence is in play: Cinous , para. 52 . I am of the view there is some evidence as to self-defence that is reasonably capable of supporting an acquittal. Accordingly, I will proceed to determine whether the Crown has proven the inapplicability of this defence. [ 89 ] The Supreme Court of Canada in Khill has restated and to some degree refocused the assessment of the defence of self-defence. The court held that the self-defence provisions set out in s. 34 contain a blend of objective and subjective components.

The court explained the three elements of self-defence contained in s. 34(1) as follows: a. the catalyst – the accused person must reasonably believe that force is being used or threatened against them or someone else; b. motive – the subjective goal of the threat response must be to protect oneself or others; and c. reaction – the accused person must act reasonably in the circumstances. [ 90 ] For the defence of self-defence to apply, the above three cumulative conditions must be met: Cinous , para. 93 . The assessment of the reasonableness under 34(1)(

a) is subjective; the assessment of reasonableness under s. 34(1)(

c) is objective: Khill. I have considered each of these components below. Element 1: catalyst (s. 34(1)(a)) [ 91 ] When assessing the first element of self-defence, the court must consider L.A.’s state of mind and his perception of events that led him to act. Unless he subjectively believed that force or a threat thereof was being used against him or another person, the defence is not available: Khill , para. 52 . The first question I need to answer is whether L.A.’s belief was reasonable, which is a modified objective test: Khill , para. 52 .

The court cannot consider exclusively the accused's perception of the need to act; there is an objective component that overlays that belief (para. 53). The question the court must ask is, “What would a reasonable person with L.A.’s relevant characteristics and experiences perceive”: Khill , para. 57 . [ 92 ] 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 that L.A. was not in a hostile environment.

Although it was night time, L.A. was with his older brother and his friends. [ 93 ] In this case, the catalyst was D.A. and L.A. were “play wrestling”. D.A. became “a little bit annoyed” when L.A. knocked a cigarette from his mouth. L.A. became a “little intimidated” so he “pulled out a knife.” The stabbing occurred in the context of an ongoing consensual fight between L.A. and D.A. They were “going back and forth” applying force to each other.

Hence, L.A.’s belief that D.A. was going to apply force to him was reasonable in those circumstances, given that was the nature of the activity in which they chose to engage. Element 2: motive (s. 34(1)(b)) [ 94 ] The second element of self-defence considers the accused’s personal purpose in committing the act that constitutes the offence. If the action does not have a defensive or protective purpose, then the defence does not apply. In Khill , Justice Martin for the majority held that the second element is a subjective inquiry, which goes to the root of self-defence (para. 59).

It ensures that the accused’s actions were not undertaken for the purpose of vigilantism, vengeance or some other personal motivation. [ 95 ] L.A. testified he “pulled out a knife to try and scare him [D.A.] off” but did not intend to use it for any harm. Considering only the evidence most favourable to L.A., I accept that L.A. used the knife to deter D.A. from continuing what had, up to that moment, been a consensual fight. Element 3: reaction (s. 34(1)(c)) [ 96 ] The third element asks whether L.A. reacted reasonably in the circumstances.

In Khill , Justice Martin sets out the following underlying purpose of the third element of self-defence: [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). [ 97 ] Section 34(2) of the Criminal Code sets out the following non-exhaustive list of factors in assessing reasonableness: a. the nature of the force or threat; b. the extent to which the use of force was imminent and the existence of other means to counter its possible use; c. the person's role in the incident; d. whether the parties involved used or threatened to use a weapon; e. the size, age, sex and physical abilities of the parties involved;

f. the nature, duration and history of the relationship between the parties involved, including any use or threat of use of force prior tothe incident, as well as the nature of that force or threat; g. the history of interactions or communications between the parties involved; h. the nature and proportionality of the person's reaction to the use or threat of force; and i. whether the person acted in response to a use or threat of use of force which he or she knew to be lawful. [98] This third element is examined in light of what a reasonable person would have done in comparable circumstances, taking care totake into account the specific context of the incident and the characteristics of the accused.

This is primarily concerned with thereasonableness of the accused's actions, not their mental state. I am mindful a person under attack or threat of attack and defendingthemselves cannot be expected to weigh, to a nicety, the exact measure of the defensive action required: R. v. Hebert, (SCC); R. v. Kandola (1993), (BCCA). a. The nature of the force or threat [99] L.A. and D.A. were engaged in a consensual wrestling match. It involved some shoving, pushing, holding, kicking andpunching. Neither participant was armed.

D.A. compared the altercation to those in which he had once engaged with his older brother.Having said that, there is no evidence D.A. had a predisposition or reputation for violence: R. v. Hamilton, 2003 BCCA 490. [100] I conclude that L.A. did not face a lethal use of force, but he did face potential physical harm, as did D.A. b. The extent to which the use of force was imminent and the existence of other means to counter its possible use [101] D.A. was stabbed as he went to punch L.A. “not hard enough to do damage” but “hard enough” to persuade L.A. to stop hittinghim.

He intended to deliver L.A. a “warning shot” to get him to back off. D.A. was unaware that at some point earlier L.A. had armedhimself with the knife. [102] At the time of the stabbing, L.A. was in the company of friends and his older brother. Although he was older, stronger and taller,D.A. did not immediately over-power L.A. In fact, at the outset, L.A. placed D.A. in a headlock and punched D.A. a few times.

L.A. saysD.A. became a “little bit annoyed” when L.A. knocked a cigarette out of his mouth but they were “still having fun.” D.A. pushed L.A. tothe ground and L.A. became a “little intimidated.” L.A. got up off the ground, retrieved the knife from his pocket, unfolded it and held itin his right hand with the blade extended forward. L.A. testified, “It was dark so D.A. didn’t see it.” When D.A. ran up and took a swingat L.A., the knife penetrated D.A.’s right chest. L.A. claims he was standing still at the time. [103] L.A. did not attest to making any other attempts to persuade D.A. to stop the consensual fight.

He did not tell D.A. to stop, orretreat, or drop the knife when he saw D.A. running toward him, or enlist his brother or friends for help. c. The person’s role in the incident [104] An accused’s role in the incident is not limited to the moment of the act of self-defence. I have to consider the broader context ofL.A.’s actions leading up to the confrontation.

In Khill, Justice Martin commented in part: [89] Self-defence is not meant to be an insurance policy or self-help mechanism to proactively take the law — and the lives of othercitizens — into one’s hands. . . . by including the person’s “role in the incident” in s. 34(2)(c), “a protection is hopefully present toprevent self-defence from becoming too ready a refuge for people who instigate violent encounters, but then seek to escape criminalliability when the encounter does not go as they hoped and they resort to use of a weapon.” The law should encourage peacefulresolution of disputes.

It should not condone the unnecessary escalation of conflicts. [90] . . . Where an accused opts to stand their ground or, as in this case, advance while armed towards a perceived threat rather than de-escalating or reassessing the situation as new information becomes available, a trier of fact is entitled to account for this role whenassessing the reasonableness of the accused’s ultimate act. [105] Justice Martin goes on to states at paras 123-124: [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), atp. 290; Phillips, at para. 98). [106] D.A. testified that it was L.A. who goaded D.A. into the fight. L.A. did not suggest otherwise. He simply says that he and D.A.

“started wrestling,” which he characterized as “playing around.” L.A. quickly gained the upper hand. He placed D.A. in a headlock and began punching him. He grabbed D.A.’s cigarette. Clearly, L.A. was an enthusiastic participant in the fight until D.A. pushed him to the ground. This caused L.A. to become a “little intimidated”. L.A. never suggested he was injured. He denied losing his temper, and did not say he was frightened. By this time, both L.A. and D.A. wanted to end the fight, but did not communicate that to the other.

In his cross- examination, D.A. testified: I was also asking myself at the same time, why didn’t he say anything? Because I believe I would have stopped there if he did. [ 107 ] L.A. did not verbally warn D.A. he had a knife, which was a significant omission given it was dark and the knife had a black blade. L.A. acknowledged that “it was dark so D.A. didn’t see it.” The knife was not in plain view for anyone but L.A. to see. In is direct examination, D.A. says the stabbing occurred when L.A. ran at him and L.A. says the opposite.

I am unsure who to believe, so for the purpose of this exercise, I accept L.A.’s version of events. d. Whether the parties involved used or threatened to use a weapon [ 108 ] D.A. did not carry or use or threaten to use a weapon. It was only L.A. who carried a knife, which he used to “scare off” D.A. L.A.’s act constituted a threat to apply force in circumstances where he had the present ability to do so. Because of the darkness, D.A. was unaware of this threat. e. The size, age, sex and physical abilities of the parties involved [ 109 ] L.A. and D.A. were both male youths. L.A. was 13 in Grade 7.

D.A. was 15, turning 16, and in Grade 10. D.A. was older, taller and stronger than L.A. L.A. estimates he was only 5’2” or 5’3” at the time; however, he may have been slightly heavier than D.A. f. The nature, duration and history of the relationship between the parties involved, including any use or threat of use of force prior to the incident, as well as the nature of that force or threat [ 110 ] D.A. had met L.A. twice before through their mutual friend T.S. They had no history of conflict or ill will. There was no ongoing animosity between the accused and the complainant. g.

The history of interactions or communications between the parties involved [ 111 ] L.A. and D.A. had no significant history or prior communication. They were mere acquaintances. R.A. was D.A.’s friend and L.A. was R.A.’s younger brother. h. The nature and proportionality of the person's reaction to the use or threat of force [ 112 ] D.A. admitted that just before the stabbing, the fight was “ramping up.” D.A. was planning to hit L.A. just hard enough to convince L.A. to stop hitting him.

D.A. was aware that he was not an appropriate match for L.A. given their disparate age, size and physical strength. [ 113 ] I accept L.A. was “a little intimidated” by D.A. Still, there is no suggestion L.A. had been injured in the fight. He said he panicked after D.A. was stabbed because he “didn’t realize he had done that.” L.A. was only 13 years old. I accept D.A. may have presented as an imposing figure to L.A.; however, it was L.A. who initially goaded D.A. into engaging in fisticuffs. L.A. was not faced with a life-threatening force, yet introduced a potentially life-threatening weapon into the fight. i.

Whether the person acted in response to a use or threat of use of force which he or she knew to be lawful [ 114 ] This was not a factor in the present case. DECISION ON REASONABLENESS [ 115 ] The Crown bears the burden of negating self-defence beyond a reasonable doubt. In this case the evidence on self-defence is threadbare. In assessing whether the Crown has met its burden, I have to apply the W. ( D .) methodology referenced above.

In Ryon , at 31, Justice Martin of the Alberta Court of Appeal states: [31] Also, where the defence has both a subjective and objective component the accused will not be entitled to an acquittal merely by raising a reasonable doubt as to the subjective component. To explain, some defences like provocation and self-defence require, inter alia , that the accused’s response to the situation he/she was facing be measured against the response expected of a reasonable person in the 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 the accused’s reaction to the situation was unreasonable. [ 116 ] The precipitating consensual fight in this case was the equivalent of a “ schoolyard scuffle” between two male youths. The question I have to answer is whether a reasonable 13-year-old boy would have pulled out a knife in the throes of a consensual fight with an older, taller and stronger boy. I am mindful that Parliament has chosen to make a person of 12 years criminally responsible for his or her actions: s. 13 , Criminal Code .

I conclude L.A.’s use of the knife was a disproportionate response to any perceived threat in these circumstances. Upon considering all the factors in s. 34(2) , I find the Crown has negated 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, the defence of self-defence is not available to the accused for any of the offences charged. Unlawfully causing bodily harm [ 117 ] In order to find L.A. guilty under s. 269 of the Criminal Code of unlawfully causing D.A. bodily harm, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

a. that L.A. committed an unlawful act; b. the unlawful act was dangerous; and c. the unlawful act caused bodily harm to D.A. [118]

Section 2 of the Criminal Code defines “bodily harm” to mean “any hurt or injury to a person that interferes with the health orcomfort of the person and that is more than merely transient or trifling in nature.” [119] The Crown did not specify which unlawful act it was relying upon to support the charge of unlawfully cause bodily harm.Information 5245-1 charges L.A. with assault with a weapon and possessing a weapon (a knife) for a purpose dangerous to the publicpeace or for the purpose of committing an offence.

The mens rea element of the offence of unlawfully causing bodily harm is comprisedof the mental element of the predicate unlawful act and objective foresight of bodily harm: DeSousa, at 961. [120] In R. v. Irwin, (ON CA), Doherty J.A. commented that if the defence of self-defence is available to theaccused, the trial judge would have been required to acquit the accused. I have found self-defence is not available to L.A. Hence, theCrown has proven beyond a reasonable doubt that L.A. (

a) assaulted D.A. with a knife; (

b) possessed a knife for a purpose dangerous tothe public peace; and in doing so, (

c) caused D.A. bodily harm. I am satisfied the Crown has proven the offence of unlawfully causingbodily harm beyond a reasonable doubt. DISPOSITION [121] L.A.: a. With respect to Count 1 on Information 5245-1, charging you with assaulting D.A. with a weapon on January 15, 2021, at PrinceGeorge, B.C., I find you guilty; b. With respect to Count 2 on Information 5245-1, charging you with unlawfully causing bodily harm to D.A. on January 15, 2021, atPrince George, B.C., I find you guilty; c.

With respect to Count 3, on Information 5245, charging you with possession of a weapon, a knife, for a purpose dangerous to thepublic peace on January 15, 2021, in Prince George, BC, I find you guilty. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia