R. v. E.-L.(T.), 2013 ONCJ 223

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto Y DATE: 2013·April ·29 Citation: R. v. E.-L.(T.) , 2013 ONCJ 223 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — T. E-L., a young person Before Justice E. B. Murray Heard on February 19 and 20, 2013, and April 15, 2013 Reasons for Judgment released on April 29, 2013 Ms. Kim Walker ........................................................................................................ for the Crown Mr. Ugo Cara ......................................................................... counsel for the accused young persons MURRAY, E. B. J.:

[ 1 ] On August 31, 2012 M. S. and T E-L each stabbed the other in an altercation near a basketball court in the St. Jamestown neighbourhood in Toronto. Mr. S suffered three superficial stab wounds, and spent overnight in hospital. Mr. E-L suffered a deep wound to his chest, resulting in a collapsed lung; he spent five days in hospital. [ 2 ] As a result of this incident, Mr. E-L was charged with assault causing bodily harm, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace. Mr. E-L says that he acted in self-defence, after an attack by Mr.

S that had been threatened for three days, and that he should be found not guilty of all charges. [ 3 ] At the trial I heard evidence from Mr. S and Mr. E-L. Also in evidence is a grainy video surveillance tape from the scene of the fight. It captures some, but not all, the interactions between Mr. E-L and Mr. S, albeit from a considerable distance. Evidence [ 4 ] The fight between the two men was brief—under a minute. The major fact upon which there is disagreement is: who stabbed who first? The facts upon which there is no serious disagreement are set out below: 1. Mr. E-L is 17 years old, and Mr.

S is 19 years old. Up to August 28, 2012, they had been friends, hanging out and playing basketball together. Mr. S, at 200-220 pounds and over 6 feet tall, is considerably bigger than Mr. E-L. 2. On. Aug. 28, 2012, Mr. S invited Mr. E-L and two others, J. B. and a third man, referred to only as Devonte, to his house to play video games. 3. Almost immediately after his guests left, Mr. S realized that a gold chain which he had showed them, as well as a watch, was missing. He called Mr. E-L, asking if he knew where these items were. At first, he did not suspect Mr.

E-L of stealing the items, but after hearing gossip from others, he began to think that Mr. E-L had directed Mr. B. to do so. 4. Mr. S called Mr. E-L multiple times, saying that he wanted his valuables back, and eventually saying that if he found that Mr. E-L had stolen the items that he would “put him in hospital”. 5. Mr. E-L heard rumours from others that Mr. S was out to get him. Mr. E-L testified that although he found it hard to believe that Mr. S would hurt him, he thought that he might, and he was scared. 6. On August 29 and 30, 2012, Mr.

S spent time roaming the neighbourhood, thinking that he would find Mr. E-L or Mr. B., and get his valuables back. 7. On the afternoon of August 31, 2012, at about 3 p.m., Mr. S went to the basketball court by 325 Bleecker Street in St. Jamestown. He greeted some friends, and then walked behind the court to an interior walkway and sat down. 8. On the afternoon of August 31, 2012, Mr. E-L decided to go to the same basketball court. He testified that because he was scared of possibly meeting Mr. S, he armed himself with a small pocket knife. 9. At about 3 p.m., Mr.

E-L stepped on to the walkway which leads to the court. He and Mr. S saw each other. 10. Mr. S moved quickly towards Mr. E-L, holding his backpack in front of him. Mr. E-L continued to move towards Mr. S. 11. As seen below, there is disagreement as to whether there was any conversation between the two men at this point. What is agreed is that Mr. S struck first, punching Mr. E-L in the face or jaw. [ 5 ] Here accounts diverge. Mr. S’s testimony 1. As they walked towards each other, Mr. E-L was abusive, asked him if he “wanted to die”, and gloated that he had his “stuff”. Mr.

S portrayed himself as conciliatory, saying “let’s talk like humans” while asking for return of his valuables. 2. Mr. E-L spit at him, and “flashed” a long knife with a light brown handle—the blade being about 6-8 “—which he had tucked in his waistband. I refer to this as “knife #1”. 3. This angered Mr. S. He punched Mr. E-L in the face or jaw, as set out above. 4. Mr. E-L drew the knife, they struggled, and it fell to the ground. Mr. S backed away. 5. Mr. E-L immediately drew another knife with a dark brown handle, with a blade about 6” (knife #2), ran at Mr. S, and thrust it towards him. 6. Mr.

S felt “something”, more than once. He did not know that he had been stabbed, however, till he look down and saw a hole in his shirt.

7. Mr. S went to the ground, grasped the knife #1, and stabbed Mr. E-L. 8. Mr. S ran after Mr. E-L to insure that he would not attack him again. 9. Mr. S rode home on his bike, talking on his cell phone while pedalling. He was calling an ambulance. The trip took about 5 minutes. He kept knife #1 with him. 10. When he arrived, he took his bike on an elevator to the 18th floor, then took the bike down one flight to his family’s apartment on the 17 th floor. 11. Mr. S’s step-grandfather, Mr. Wilson, was in the apartment; Mr.

S did not tell him what had happened; he went to his bedroom, and threw the knife he had taken from the scene into his closet, where it landed in an upright position, in a shoe. He then lay down on a bed in the living room. 12. Police arrived, followed by an ambulance, and Mr. S was transported to hospital. Police found the knife in his bedroom. [ 6 ] There were some variations in Mr. S’s testimony about the attack. For example, when describing the location of the knives on Mr.

E-L’s person, although he initially said that he took them from his waistband or pocket, he later said that saying that he took them out of a fanny pack. More importantly, there were significant inconsistencies between Mr. S’s evidence and what he told police in an audio-statement; these are discussed below in my assessment of credibility. Mr. E-L’s testimony 1. There was no conversation between him and Mr. E-L at any point during this encounter. 2. On the day in question, he did not have either of the knives described by Mr. S. What he had was his 3” penknife. 3.

He brought the penknife with him because he had heard from others that Mr. S was out to get him. 4. Mr. S approached him with his backpack held in front of him. Mr. E-L thought that he was concealing a weapon. 5. Mr. S punched him, and then followed up with a thrusting motion. Mr. E-L felt “something go into” his chest; he thought that he had been stabbed. 6. In what Mr. E-L describes as “an automatic reaction”, he grabbed his penknife from his pocket, and stabbed Mr. S. He did not remember how many times he stabbed him, and had no explanation as to why it was apparently three times. 7. Mr.

E-L ran to the street, where a friend, “Sheikh”, flagged a cab to take him to hospital. During the trip, the friend espied an ambulance, which he stopped; Mr. E-L was transferred to the ambulance and taken to hospital. 8. As he got into the ambulance, Mr. E-L gave Sheikh his belongings, including the pocket knife, for safekeeping. Sheikh returned all the items except the knife when Mr. E-L was released from hospital. Mr. E-L did not inquire where the knife was. The video surveillance tape [ 7 ] The images on this tape were not of good quality. Mr. S and Mr. E-L each had their own versions of what was depicted.

All that is apparent to me is that initially, the men meet and there is some physical skirmish. Mr. S moves off camera, and Mr. E-L moves towards him; then Mr. E-L moves back through the area the camera covers, and Mr. S moves towards him [ 8 ] The last interaction seen on the videotape is Mr. S chasing Mr. E-L off-camera. The law [ 9 ] At the time of this incident on August 31, 2012,

Section 34 of the Criminal Code provided [1] : • 34

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. •

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if • (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

• (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [10] The onus is upon the Crown to disprove the elements of a plea of self- defence beyond a reasonable doubt[2]. [11] In order to successfully assert self-defence, a defendant is not required to show that there was no reasonable means toretreat from the threatening situation. [3] [12]

Section 88 of the Criminal Code provides as follows. Possession of weapon for dangerous purpose 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. Punishment

(2) Every person who commits an offence under subsection (1) • (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or • (

b) is guilty of an offence punishable on

summary conviction. Credibility [13] I had difficulties with the credibility of both Mr. S and Mr. E-L. With respect to Mr. S: 1. There was conflict in his evidence on central issues—how he came into possession of a knife, and which knife he used to stab Mr.E-L. Mr. S told the police that he was stabbed Mr. E-L with knife #2, not knife #1, as he said in his evidence in chief. 2. Further, when talking to police, Mr. S said that he could not give a description of the knife used to stab him, because he “blackedout”; in his evidence before me, he gave a detailed description of both knives. 3. Mr.

S explains the differences between what he told police and what he said in court as the result of pain from his injuries, and theeffect of pain medication he received. The plausibility of that explanation is limited by the fact that Mr. S at no point brought to theattention of police or the Crown what he now says was erroneous information he provided in the interview. 4. Mr. S’s criminal record includes a conviction for robbery, an offence of dishonesty. [14] As for Mr. E-L, his explanation of how he came to be divested of his penknife is improbable. According to Mr.

E-L, afriend—whose last name he does not know—took his possessions, including his cellphone and gold tooth, and the knife, and returnedeverything when Mr. E-L was out of hospital, except the penknife. Mr. E-L didn’t ask for return of the knife, or ask where it was. Analysis [15] Defence counsel submits that his client’s defence lies under s. 34(2). The relationship between s. 34(1) and 34(2) defencewas described by Justice Thomas Lederer in R. v. Watson as follows: The

section provides for the reliance on self-defence in two separate but overlapping circumstances. 5 Subsection (1) of s. 34 indicates the availability of the defence where, in response to an unprovoked assault, the accused employedforce which he or she did not intend to cause death or grievous bodily harm and the force used by the accused was no more thannecessary to defend himself or herself.

In other words, the response is, in some sense, to be proportionate to the initial assault. 6 Subsection (2) of s. 34 indicates the availability of the defence where the force used in repelling an assault does, and may have beenintended to, cause death or grievous bodily harm. The defence is available where, in using the force the accused was under thereasonable apprehension that the assault threatened him or her with death or grievous bodily harm and that he or she could not savehimself or herself from that harm without the use of the force applied.

This latter point is not suggesting that the response need beproportionate to the initial assault. Rather, it refers to the reasonableness of the belief of the accused as to whether the force used waswhat was necessary (see: Regina v. Bogue, (ON CA), [1976] O.J. No. 2198 at para. 18 (Ont. C.A.)). 7 Section 34(2) has been said to be "wider" than s. 34(1): It [section 34(2)] applies on present

interpretations even if the accused provoked the assault, even if the accused intended

to kill or cause grievous bodily harm, and the question is not whether more force was used than was necessary but whether the accused believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm. ( Canadian Criminal Law, Fifth Edition, Don Stuart; Thomson, Carswell at p. 501) 8 Nonetheless, this relationship is subject to debate: It is certainly debatable whether section 34(2) is indeed wider as the proportionality test for section 34(1) has always been interpreted not as a strict mechanical test but one under which a person defending against an attack need not weigh to a nicety the exact measure of necessary defence. ( Canadian Criminal Law, Fifth Edition, Don Stuart; Thomson, Carswell at p. 501) 9 The overlap arises where the force used in responding to the assault causes death or grievous bodily harm. 10 If the force used causes death or grievous bodily harm, but was not used, by the accused, in response to an apprehension of such harm, subsection 34(1) applies.

The force used must not have been intended to cause the death or grievous bodily harm and must be proportionate to the assault to which the accused was responding. 11 If the force used causes death or grievous bodily harm, and was used, by the accused, in response to an apprehension of such harm, subsection 34(2) applies. In such circumstances, it does not matter whether the death or grievous bodily harm was intended by the accused or whether the accused was provoked.

The accused must believe that the force he or she used was necessary to preserve himself or herself from death or grievous bodily harm. [ 16 ] Counsel agreed as follows: 1. That although Mr. E-L may have been reasonable in fearing some physical harm from Mr. S (based on threats from Mr. S and on the initial punch delivered on August 31 st ), this fear did not form the basis for a reasonable apprehension of “ grievous bodily harm”. 2. That the wounds Mr. E-L inflicted upon Mr. S constitute “ grievous bodily harm”. 3. That the wounds Mr. S inflicted upon Mr. E-L constitute “ grievous bodily harm”. 4. That if Mr.

S struck first with the knife, the Crown has not disproved any of the necessary elements in Mr. E-L’s plea of self- defence under s. 34(2) of the Code. [ 17 ] So, the critical question in determining whether Mr. E-L had a reasonable apprehension of grievous bodily harm from Mr. S turns on determining who stabbed first. [ 18 ] This is not a question I can answer on the basis of the evidence presented at this trial. In saying this, I have in in mind the direction given in R. v. W.D.,

(1991) C.C.C.(3d) 397 (S.C.C.). [ 19 ] I do not believe all the evidence of the accused. • His claim that his stabbing of Mr. S was an “automatic” reaction is belied by his evidence that he armed himself with a knife that day in anticipation of a possible meeting with Mr. S. In other words, he intended to use the knife in certain circumstances. • His description of the initial assault by Mr. S –a fistfight conducted by Mr. S using only one hand, the other being used to shield a weapon with his backpack—seems improbable. It is more probable, as alleged by the Crown, that he and Mr.

S conducted their initial fistfight in the usual manner—using both hands—and that Mr. E-L, who was afraid of Mr. S, panicked quickly, drew his knife, and stabbed. • I have noted my questions about the veracity of Mr. E-L’s account of what became of his knife. [ 20 ] However, Mr. E-L’s evidence and the evidence as a whole does raise a reasonable doubt in my mind. Mr. S is much bigger than Mr. E-L. He had a motive to take revenge against him—the loss of his gold chain. He had threatened to hurt him, and was looking for him. The evidence indicates that in emails sent after the incident to Mr. E-L’s friend, Mr.

B., Mr. S bragged that he had wounded him: “Push it in, dig it out”. [ 21 ] I have already noted the significant inconsistencies in Mr. S’s evidence about the attack. [ 22 ] I am left with a sizeable doubt as to who struck first with a knife. The Crown has not met its onus to establish beyond a reasonable doubt that Mr. E-L was not acting in self-defence. [ 23 ] I find Mr. E-L not guilty on the charges of assault with a weapon and assault causing bodily harm. [ 24 ] I turn to the charge of possession of a weapon for a purpose dangerous to the public peace.

The Crown must establish: 1) that the accused possessed a weapon, and 2) that the purpose of that possession was one dangerous to the public peace. Mr. E-L admits that he possessed a weapon, so the matter comes down to examining the purpose of his possession of it that day. The test is a hybrid subjective-objective test [4] . [ 25 ] The evidence on this point is as follows. 1. Before Mr. S’s gold chain disappeared on August 28, 2012, he and Mr. E-L were friends.

2. There is no evidence that Mr. S had previously threatened or hurt Mr. E-L, or that Mr. E-L believed that Mr. S had threatened orhurt other people[5]. Specifically, there is no evidence that Mr. E-L thought that Mr. S had previously used a knife or other weapon tohurt people. 3. As noted above, Mr. S had told Mr. E-L that if he was responsible for the theft, that he would “put him in hospital”. Unnamedothers had also told him that Mr. S was threatening him in an unspecific manner. 4. When Mr. E-L left his home on August 31, 2012 to go to the basketball court, he put his penknife in his pocket.

He testified that hedid so because he heard that Mr. S was looking to fight with him and he was “scared”. He said that he had not carried the knife with himwhen he went out on the two previous days. [26] I accept that when Mr. E-L armed himself on August 31st, his subjective purpose was to defend himself from Mr. S. [27] The Ontario Court of Appeal held in R. v. Nelson[6] that this subjective purpose is just one factor to be considered indetermining whether a defendant possessed a weapon for a dangerous purpose.

Other factors are to be considered in determining whetherthat subjective purpose is dangerous to the public peace, factors such as the nature of the weapon, the circumstances under which adefendant has the weapon in his possession, and the actual use of the weapon. [28] In R. v.Kerr, 2004 SCC 44, the Supreme Court of Canada dealt with a case in which the accused, an inmate in amaximum security prison, had received death threats from another inmate (the victim) who controlled other inmates throughintimidation and assault. The accused armed himself with a knife. The victim brandished a knife at him.

A fight ensued, and the victimwas killed. The accused was charged and acquitted of second degree murder, and acquitted of possession of weapons dangerous. TheAlberta Court of Appeal set aside the conviction on the weapons dangerous charge. The acquittal was restored by the Supreme Court. [29] The Supreme Court in that case held as follows: • the crucial issue in those cases where the accused person is found to have possessed a weapon for a defensive purpose is whetheror 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[7]. To the contrary, thepurposeful act then constitutes an abatement of a danger to the public peace, namely, an attack on one's self.

Many indicia will berelevant to the determination of avoidability, including, inter alia: location, atmosphere, nature of the threat, imminence of the danger,and actual use. • a finding that the accused actually used his weapon in a manner which constituted justifiable self-defence is relevant under s. 88,but not sufficient for an acquittal thereunder. Under s. 34(2) of the Code, a person is justified in causing death or grievous bodily harm inrepelling an unlawful assault if (

a) he causes it under reasonable apprehension of death or grievous bodily harm, and (

b) he believes, onreasonable grounds, that he cannot [page393] otherwise preserve himself. A conclusion that a person acted in self-defence under s. 34(2)is thus relevant under s. 88 insofar as it may reveal both whether or not the accused person's subjective purpose was truly to defendhimself, meaning that he intended no more than to use the weapon to thwart the attack, and whether or not in the circumstances theattack was escapable. However, it must be made clear that whereas under self-defence, at issue is the accused person's conduct, at issueunder s. 88 is the accused person's purpose.

The accused may or may not have purported to use the weapon in the manner it was actuallyused, i.e., for a purely defensive purpose. Moreover, whereas under self-defence we are concerned with the reasonableness of theaccused person's beliefs, under s. 88 we are concerned with the actual objective circumstances. Thus, a belief that one cannot otherwisepreserve himself may be reasonable, and yet in the circumstances simply wrong. • In closing, it is crucial to note again that a subjective defensive purpose is not alone sufficient to establish a valid defence to a s.88 accusation.

Further, a general atmosphere of violence or a simple fear of an attack do not alone justify the possession of weapons,whether in a penitentiary or elsewhere. It is worth, in this regard, repeating here the conclusion of this Court in R. v. Felawka, (SCC), [1993] 4 S.C.R. 199, at pp. 214-15, regarding concealed weapons: o All Canadians have the right to feel protected from the sinister menace of a concealed weapon.

If it was ever thought that it waslawful to carry concealed weapons more and more Canadians might come to believe it would be prudent for them to carry concealedweapons in order to defend themselves and their families. This might lead to a vigilante attitude that could all too readily result in anincrease in violence in Canadian society. [30] In my view, the objective evidence does not establish that Mr. E-L was compelled to arm himself with a knife on the dayin question. [31] On the afternoon of August 31st, when he left his home, Mr. E-L had no reason on the evidence to think that it any threatposed by Mr.

S would involve use of a knife or other weapon. [32] Mr. E-L did not contact police with respect to these threats to seek protection. [33] Mr. E-L’s encounter with Mr. S on August 31, 2012 was not “completely inescapable”. Mr. E-L chose to go that day tothe basketball court near 325 Bleeker Street in St. Jamestown, an area which, according to Mr. E-L himself, was Mr. S’s neighbourhood. This was only a day after he had heard that Mr. S was wanting to fight with him. Mr. E-L lived some distance from the basketball court.Mr.

E-L’s situation was vastly different than that of the inmate in Kerr, who could not avoid going into the prison range controlled byanother vicious inmate. [34] There is no question that bringing a knife into the walkway by the basketball court was an action that presented a dangerto the public peace. Mr. E-L carried the knife with the thought that it might be used. The location is a public space, used by many peopleduring the day. Other people, including other young people and one person in a wheelchair, were shown on the video surveillance tape inthe area at the time of the incident.

[ 35 ] As the Supreme Court held in Kerr , the courts cannot sanction a desire of Canadians to carry concealed weapons to defend themselves; to do so runs the risk of encouraging a “vigilante attitude” that will in fact increase violence in society. [ 36 ] I find Mr. E-L guilty of possession of a weapon for a purpose dangerous to the public peace. Released: April 29, 2013 Signed: Justice E. B. Murray