R. v. I.A.O.S. Date:, 2013 BCPC 166

Citation: R. v. I.A.O.S. Date: 20130626 2013 BCPC 0166 File No: 5591-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. I.A.O.S. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.F. BROOKS Counsel for the Crown: Rome Carot Counsel for the Defendant: Christopher Mackie Place of Hearing: Victoria , B.C. Date of Hearing: June 13, 14, 2013 Date of Judgment: June 26, 2013 INTRODUCTION

[ 1 ] On the evening of October 18 th Laurie Strandlund had a birthday party for her daughter at the family home in suburban Victoria. While much of what happened thereafter is in dispute, the following general sequence is clear. The parents remained upstairs while the young people remained downstairs. Various estimates of the number of young people present were given ranging from 15 to approximately 30. I.A.O.S. arrived with his then girlfriend M.J. at approximately 9 p.m. The victim, W.D., was already present.

During the course of the evening there was a negative interaction, variously described, between the accused and the victim. Before midnight an altercation broke out involving the accused and as a result Ms. Strandlund asked everyone to leave. Once outside, the accused and M.J. were raising their voices with each other. The victim was nearby and spoke to the accused. The accused and the victim came together and the accused pulled a knife and slashed the victim once down the left side of his face, cutting his ear and leaving a deep, puncture type wound on the victim’s left cheek.

The photographs entered as Exhibit 1 show a large and gaping wound. The knife was described by the accused as having a blade that was 5.9 inches in length. He threw the knife into the bushes when he left the scene. The victim had no weapon. [ 2 ] As a result, I.A.O.S. is charged with three counts which I will describe for the sake of brevity as aggravated assault, possession of a weapon for a purpose dangerous and assault with a weapon, a knife.

All offences are alleged to have occurred on October 19, 2012. [ 3 ] During argument Crown counsel accepted that the evidence as it related to the possession of the weapon charge did not satisfy the onus upon the Crown. That concession was both fair and appropriate. I.A.O.S. is acquitted of Count 2, the possession of a weapon for a purpose dangerous. [ 4 ] I.A.O.S. testified in his own defence. His account of the night in question includes his fear that he was about to be attacked with a weapon and that he was justified in defending himself by the use of his knife.

Therefore the remaining two counts depend on the resolution of the issue of self defence. Specifically, has the Crown proven beyond a reasonable doubt that the defence of self defence cannot succeed? [ 5 ] The first step in resolving that issue requires a review of the elements of the defence of self defence as applied to the facts in this case. ELEMENTS OF SELF DEFENCE [ 6 ] On March 11, 2013 the Citizen’s Arrest and Self-defence Act, S.C. 2012 c. 9 came into force. The Act replaced sections 34 to 42 of the Criminal Code with a new s. 34 and 35 .

The March 11, 2013 date is subsequent to the date of the offences alleged here. Both Crown and defence took the position that the new sections were retrospective and applied to this case. Although counsel’s submission was brief and referred only to the authorities R. v. Evans

(2013) BCSC 462 and R. v Pandurevic

(2013) ONSC 2978 , I was persuaded that the position taken was appropriate and that the new

section 34 does apply to this case. [ 7 ] S. 34(1) creates three elements to self defence and, as they are new, I will quote them. They are as follows: (

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. [ 8 ] It is now necessary to review the evidence of the accused with s. 34 in mind. EVIDENCE OF THE ACCUSED [ 9 ] Argument focused on the first and third elements of the defence. It was the defence position that the evidence of I.A.O.S. created a reasonable doubt based on those elements. More specifically, defence counsel submitted that in material respects, I.A.O.S.’s evidence was supported by other evidence in the case.

Taking into account all the circumstances, the defence submitted, a reasonable doubt was created on the self defence issue. [ 10 ] To consider the issue of reasonableness in the first and third element of self-defence, it is, as I have said, necessary to review the evidence of I.A.O.S.. I do so well aware that the principle of reasonable doubt applies to the issue of credibility. At the same time, I am not going to review every word said by the accused and the other witnesses although I have reviewed my notes of all of the evidence.

Nor am I going to parse each word said by the accused as against the other evidence in the case, but rather look at the evidence in its entirety. I simply intend to highlight those portions of the evidence which relate most closely to the reasonableness component of self- defence. [ 11 ] I.A.O.S. testified that he arrived at the party with M.J. at approximately 8:30 p.m. He was carrying with him the knife which has already been described. He had consumed enough malt liquor that he was ‘pretty intoxicated.’ At approximately 10:30 to 11:00 he obtained some ‘mushrooms’ and consumed those with his girlfriend.

He consumed more malt liquor. He also had ‘shots’ of hard liquor. He started to hallucinate ‘a bit’. At one point he described himself as severely intoxicated. M.J. described him at one point as ‘wasted.’ At the time of the stabbing of the victim, I.A.O.S. described himself as ‘drunk.’ [ 12 ] I.A.O.S. testified that he felt uneasy at the party. The others there appeared ‘rich’ to him. He felt like an outsider. During the evening he felt that people didn’t want him there and that they didn’t like him. That reaction by others made him feel angry. People were talking about him.

At about 10:00, the victim, W.D., according to the accused, slapped him on his ‘butt’ with a plastic sword. This

evidence was supported by M.J. [ 13 ] At about ‘11ish’ W.D. walked past I.A.O.S. and lowered his shoulder into the accused. That had the effect of pushing I.A.O.S. off balance and into M.J. who fell. He perceived this use of the shoulder by W.D. to have been intentional. This use of the shoulder was, according to the accused, an action that had been happening to him from others ‘all night.’ [ 14 ] I.A.O.S. ‘went after’ W.D.. He threw two young men out of the way to get at W.D.. He threw a punch at W.D.. That punch hit Ms. Strandlund’s husband who had come downstairs.

I.A.O.S. was punched by another young man, B., and had a bloodied lip as a result. W.D. retreated into a bathroom. Ms. Strandlund came downstairs and ended the party, ordering everyone to leave. I.A.O.S. admitted that, in objecting to leaving, he called Ms. Strandlund a bitch. He denied, as Ms. Strandlund testified, that he became aggressive, clenched and raised his fists and made a lunge towards her. Ms. Strandlund impressed me as a witness. She was straight forward carrying no animosity as to what had happened.

She was very clear in her recollection and was not significantly challenged on this point in cross examination. I find that her recollection is accurate as to the behaviour of I.A.O.S.. [ 15 ] I have not referred to the evidence of the victim on this point or the interaction generally as between himself and I.A.O.S.. I do not find it necessary to resolve each and every factual contradiction between the two or to make sweeping conclusions of credibility. It would be unrealistic to do so: what actually happened is too messy to be dealt with in that way.

Rather it is more to the point to refer to what I take from the victim’s evidence. [ 16 ] W.D. testified that when I.A.O.S. arrived he said to the accused that he looked as if he were twelve years old. I.A.O.S. was approximately 5’4” at the time and looked younger than W.D.. W.D. admitted in cross examination that he took an immediate dislike to I.A.O.S. and that he did not belong at the party and was a trouble maker. W.D. denied the incident with the plastic sword, the push with the shoulder to I.A.O.S. and any altercation involving himself at the conclusion of the party.

The omissions in his evidence as well as his immediate animosity to I.A.O.S. adversely impact on his credibility on what happened in the house. All that I safely am able to take from W.D.’s evidence on this stage of the evening is that there was ill will between the accused and himself inside the house which was obvious to anyone who paid any attention. [ 17 ] A version of the events inside the house was also given by S.H.. While I am satisfied that S.H. tried her best to give an accurate account of what she observed, her evidence is very much at odds with other evidence in this case.

Add to this issue that she only gave a statement to the police days before the trial and I am unable to give any weight to her evidence. [ 18 ] It should be noted that I.A.O.S.’s actions in the altercation just described, occurred at a time when he was, if his evidence were accepted, aware of other young males having knives. He thought that all the other males, or certainly most of them, had knives although he never saw W.D. with a knife. The evidence was not clear at what precise time it was when he saw these other individuals with knives. However, given the immediate ending of the party by Ms.

Strandlund after the altercation involving the accused, it is clear that I.A.O.S. must have known of the others having knives before he ‘went after’ W.D. inside the house. [ 19 ] Eventually, I.A.O.S. did leave the house with M.J.. I.A.O.S. described that M.J. was ‘going at me.’ He admitted in cross examination that he was talking back to her and his voice was raised. M.J. testified that they were fighting, yelling at each other face to face outside. [ 20 ] It was at this point that the victim was nearby.

The evidence was not entirely clear, however, I am satisfied that at this time I.A.O.S. and W.D. were across the street from each other. W.D. testified, and I accept, that he heard the words exchanged between M.J. and I.A.O.S. and he said words to the effect that ‘you shouldn’t treat your girlfriend like that.’ The defence suggested that W.D. injecting himself into the situation was an aggression which supported self-defence. In light of the actual words and the actions of I.A.O.S. thereafter, there is no merit to that submission. [ 21 ] The defence relied on the evidence of Ms.

Strandlund who agreed in cross examination that the yelling escalated over time. The defence suggested that the escalation reflected the mutual building up of the confrontation between I.A.O.S. and W.D.. I am unable to draw that inference. Ms. Strandlund referred to the voices coming in the general direction of where the two young men were and no more. It seems just as, if not more, likely that the raised voices came from any of the large group of young people who left the party suddenly. The voices may well have been solely those of I.A.O.S. and M.J..

It borders on fanciful to select out of all that was going on, these two young men as the ones whose voices were escalating. [ 22 ] It is at this point in the sequence of events that the evidence of the accused and the discrepancies and suggested consistencies in the evidence take on the greatest importance.

That evidence relates to how the two parties moved to the point of their altercation, what exactly was said and done between them before the accused used the knife and the state of mind of the accused at that moment. [ 23 ] I.A.O.S. testified that after W.D. spoke to him he replied with words to the effect of ‘what are you talking about?’ W.D. was coming towards him from the other side of the street and he took approximately two steps toward W.D.. He later stated that it may have been three steps. W.D. admitted to taking steps toward I.A.O.S..

The witnesses A.Q. and M.J. both used the phrase that the two met in the middle from which I infer that they both moved the same distance toward each other. Indeed the first description given by I.A.O.S. was that the two of them met in the middle. The importance of the movements is not the number of steps but rather that I.A.O.S. took his attention away from M.J. and on to W.D. and then walked toward W.D. until they met. I.A.O.S.’s later description of having only taken two steps was I find an effort to minimize his own actions. [ 24 ] There are four separate descriptions of what happened next.

W.D. testified that I.A.O.S. pushed him and then he pushed back. M.J. testified that the two of them were bumping chests and ‘getting into each other’s face’. A.Q., approximately thirty feet away, has the two parties meeting in the middle but no pushing and shoving. He sees W.D. with his hands not at his side but more at the level of his belt buckle. I.A.O.S. has W.D. coming forward but doing so moving almost side ways with his right hand near his waist. I.A.O.S.’s description of a very distinctive movement forward by W.D. is not testified to by any of the other witnesses.

It is impossible to imagine that this observation would have been missed or even forgotten. It is also important that I.A.O.S.’s perceptions were drastically impaired by the drugs and alcohol he had consumed. The accused’s evidence on this point is rejected. W.D.’s description of moving forward as he did has more credibility as it is not flattering to himself. M.J. has no motive against the accused to place him in a bad light and that adds

credence to her description of what she saw of the position of the two young men. A.Q.’s evidence, albeit that of a friend of W.D.’s and at some distance, was nevertheless given in a forthright way and reflected his best effort to describe what he saw. On the totality of the evidence, I find as a fact that the two young men walked equal distance to each other and bumped each other prior to the next events. [ 25 ] I.A.O.S. testified that he believed that W.D. had his hands where he did as he may be reaching for a knife.

He testified that W.D. was ‘fiddling with something.’ His belief of the presence of a knife was based on the number of young men who were carrying knives at the party, that W.D. had been with the group of young men, including A.Q., who were now nearby and the evidence of A.Q. that W.D.’s hands were raised in the area of his belt where he would have access to a knife. I.A.O.S. testified that he became scared that he would be beaten up and, at another point, that he was scared for his life. He testified that he was watching for W.D. to take one more step and when he did he acted.

It was as a result of this belief that he took out his knife and stabbed W.D. in the face. [ 26 ] The defence relies on A.Q.’s evidence as to the position of W.D.’s hands. However there is more to A.Q.’s evidence, particularly his description of the stabbing. He was asked to describe how I.A.O.S. pulled out the knife and he did so then concluded by saying that he took the knife out, stood there for a second then swung his hand up as W.D. was taller. He was then asked the time frame for pulling out the knife and then swinging. He answered that it couldn’t have been more than five seconds.

In cross examination, he testified that I.A.O.S. stood there for a second or two then used the knife.’ Therefore on three occasions, A.Q. made it clear that the knife was pulled out, then after a brief pause the knife was swung at W.D.’s face. The difference in the evidence of A.Q. and I.A.O.S.is not a minor difference in my view. I.A.O.S.’s description is one of

an act of sudden desperation, A.Q.’s is not. In saying so I take into account that events were moving very quickly and perhaps more quickly than was expected. Nevertheless, the action of I.A.O.S. was not the desperate, sudden act he portrayed in his evidence. The clarity and certainty of A.Q.’s evidence on this point is persuasive. I am satisfied that I.A.O.S. took the knife out, then after a second or two, swung it at the face of W.D.. [ 27 ] I do not find that the position of W.D.’s hands as testified to by A.Q. as of any assistance to I.A.O.S..

First of all, A.Q. did not testify to W.D. ‘fiddling with anything.’ Second, W.D. having his hands near his waist is hardly surprising given that the two parties are face to face. A sinister

interpretation cannot be put on the position of W.D.’s hands. It would have been more alarming and supportive of I.A.O.S. if W.D. had his hands in his pockets. [ 28 ] Nor did I find I.A.O.S.’s evidence credible that there were other knives at the party. Such an occurrence would have surely caught the attention of party goers and yet only I.A.O.S. and M.J. testified to it. M.J.’s impairment and her cavalier manner of testifying gave her evidence little, if any, credibility.

More to the point, I.A.O.S.’s own actions in going after W.D. suggest a complete lack of concern that he was armed at a time shortly before their confrontation. To infer that one of the many knives at the party were passed to W.D. before he went out on the street is beyond speculation. [ 29 ] To summarize, the findings of fact that I make include the following: 1. The accused arrived at the party under the influence of alcohol and later the influence of alcohol and mushrooms. 2. W.D. was unpleasant toward I.A.O.S.. 3. As a result of a perceived assault by W.D., I.A.O.S. attempted to fight with W.D.. 4.

When asked to leave the home the accused was extremely angry and, with no justification, was aggressive towards and lunged at Ms. Strandlund. 5. The party ended and I.A.O.S. and his girlfriend were angry and yelling at each other. 6. W.D. told I.A.O.S. not to yell at his girlfriend that way. 7. I.A.O.S. yelled back and the two young men approached each other. They pushed up against each other. W.D.’s hands were not down at his side. 8. I.A.O.S. pulled out his knife and after a second or two stabbed W.D. in the face.

ANALYSIS [ 30 ] As stated, the decisive issue as put by counsel is whether the accused’s actions were ‘reasonable’ as that word is used in the first and third element of self defence. [ 31 ] Prior to analyzing that issue, it is necessary to decide whether the accused had, as he testified, the subjective belief required of the first element of self defence. [ 32 ] I.A.O.S. testified that he was frightened for his life by the actions of W.D. on the street. This fear was a contrast to the accused’s attitude and actions right up to that point.

The defence submitted that on coming into close contact with W.D. on the street, the accused realized he was in over his head and his mind set changed from what it had been for most of the night of anger and aggression to one of fear. The defence asked me to find that I.A.O.S. did have the subjective fear which he expressed in his evidence. [ 33 ] I do not accept I.A.O.S.’s evidence of a subjective fear based on an actual or even mistaken belief that W.D. possessed a knife for the following reasons.

[34] First, it is of significance what his general attitude and behaviour was leading up to his confrontation on the street with W.D.. In response to his feeling that he was not liked at the party, I.A.O.S.’s reaction was that it made him feel ‘kind of angry.’ In recountingthat he was receiving shoulder shoves at the residence, he said it got ‘me more and more angry.’ He had no hesitation in going afterW.D. inside the house even though this was a time when W.D. could, just as easily as later in the evening, have had a knife. In doing sohe said he was angry at W.D. and wanted to punch him out.

He had been aggressive with Ms. Strandlund. The evidence that he wasaggressive in his interaction with M.J. after the party is evidence which I also accept. Furthermore, I.A.O.S.’s own evidence undercutsthe suggestion that he had the subjective belief. He accepted in cross examination that he was angrier than he would have been otherwisedue to the alcohol that he had consumed. He also accepted that W.D.’s comment that he should not talk to M.J. the way he had, madehim ‘a bit’ angry. At another point I.A.O.S. volunteered that he did have anger issues.

When all that evidence is taken into account, itbecomes clear that I.A.O.S. was motivated by anger in his actions on the street with W.D.. I reject his evidence that he was fearful for hislife or fearful for being beaten up. I am satisfied beyond a reasonable doubt that I.A.O.S. was motivated by anger in his actionsthroughout. [35] Having said that, the balance of the evidence is that there was some physical contact and threatening behaviour betweenI.A.O.S. and W.D.. Both force and a threat of force were actually used against I.A.O.S..

Clearly then there is a belief based onreasonable grounds of force or a threat of force, however, not of the kind testified to by of I.A.O.S.. In short, the threat of force was notone of a knife. [36] The third element (s. 34(1)(c)) is that the act committed is reasonable in the circumstances. A first step in that analysis is toaccount for the role of alcohol and drugs in the actions of I.A.O.S.. In R. v.

Reilly (SCC), [1984] 2 S.C.R. 396 (S.C.C.)Ritchie J. stated at page 405 as follows: The perspective of the reasonable man which the language of s. 34(2) places in issue here is the objective standard the lawcommonly adopts to measure a man’s conduct. A reasonable man is a man in full possession of his faculties. In contrast, a drunken manis one whose ability to reason and to perceive is diminished by the alcohol he has consumed. [37] I apply that analysis to the new provisions of s. 34 and to the analysis which follows. [38] Subsection (2) of

section 34 lists a non-exclusive series of factors to be taken into account in determining this element. I do notintend to proceed down that list as to do so would amount, to some extent, in pigeon-holing those concerns. Such an approach mightdefeat the purpose of the subsection to evaluate the entirety of the circumstances in their complete effect. I summarize thosecircumstances in the following way. [39] I.A.O.S.is a younger and smaller lad than W.D. but not significantly so.

The two of them did not like each other and had madethat clear to each other even though this was the first evening they had had anything to do with each other. I.A.O.S. had been acting in anangry and aggressive way that evening. When they met later on the street, both were more than willing to move up to each other face toface. The force and threat of force to I.A.O.S. was of an unarmed young man. At various points, I.A.O.S. had the option to walk away,retreat or even to show his knife as a means of keeping W.D. from approaching. Instead he suddenly stabbed W.D. in the face.

Thedefence relies on the fact that there was only one swing. Given the area of the body targeted and struck, that is of no assistance to thedefence. [40] To use a knife to the face in these circumstances cannot in any way be considered as reasonable. Indeed it cannot even besuggested that I.A.O.S. acted reasonably by stabbing an unarmed person in the face as he did. On the totality of the circumstances as Ihave heard them, there is no reasonable doubt created on the issue of self defence and I am satisfied beyond a reasonable doubt that thetwo remaining counts are proven.

CONCLUSION [41] I.A.O.S. is found guilty of Counts 1 and 3. A.F. Brooks Provincial Court Judge