R. v. Brown, 2017 ONCJ 755

ONTARIO COURT OF JUSTICE Scarborough – Toronto CITATION: R. v. Brown , 2017 ONCJ 755 DATE: September 8, 2017 BETWEEN: HER MAJESTY THE QUEEN — AND — BASIL BROWN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown J. Battersby For the Defendant B. Sherwood Heard: July 19 - 20, 2017 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A.

INTRODUCTION [ 1 ] The accused is charged with assault with a weapon, assault causing bodily harm and weapons dangerous as a result of an incident arising out of an altercation with Gassendy Jean-Pierre (Jean-Pierre) at the Blue Lagoon bar on Eglinton Avenue East on April 27, 2016. [ 2 ] As counsel for Mr. Brown (the accused) concedes, the accused stabbed Jean-Pierre several times with a small knife he had brought to the bar that evening. She contends on his behalf that the Crown has not proved beyond a reasonable doubt that the accused was not acting in self-defense when he did so.

The defence further argues that the accused’s possession of the knife was lawful. [ 3 ] The Crown, on the other hand, argues that the evidence proves beyond a reasonable doubt that the accused did not stab Jean- Pierre for the purpose of defending himself, or that if there is a reasonable doubt on that issue, the accused’s stabbing of Mr. Jean-Pierre was not reasonable and therefore constitutes an assault with a weapon and an assault causing bodily harm. The Crown further contends that the accused’s possession of the weapon, if it ever was lawful, became unlawful during the course of its use on Jean-Pierre. B.

EVIDENCE

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a) Introduction [ 4 ] Two individuals who were at the bar that night testified in the Crown’s case. Notably, Jean-Pierre was not one of them. Four police officers also testified for the Crown. [ 5 ] A silent video recording of the incident was filed, along with several copies of photographs of injuries to both parties and of assorted weapons found by the police. [ 6 ] The defence called one witness; the accused, Basil Brown. (

b) The Video Evidence [ 7 ] The most important piece of evidence in this trial was a silent video recording of the altercation between the accused and Jean-Pierre. It has a clock which the Court was told is an hour slow. All references to time in this judgment are to minutes and seconds after 22:00 hours as set out by that clock. The video is relatively crisp and clear and shows the following salient events: 50:54 – 51:12 Jean-Pierre enters the bar and begins speaking to Liang Jin, the owner/bartender, who is behind the bar. She serves him a beer. There are only three or four other customers in the bar.

Jean-Pierre seems friendly and relaxed. 51:12 – 51:30 The accused, seated in and operating an electric wheelchair, enters the bar and approaches Jean-Pierre. He wheels up close to him and hugs him for a couple of seconds. 51:30 – 51:45 Jean-Pierre doesn’t appear to react one way or the other to the hug, but walks approximately a meter away from the accused. 51:45 – 52:05 Jean-Pierre walks back over to the accused while still holding his beer in his right hand. They begin to discuss something. Ms.

Jin makes a gesture in response to which Jean-Pierre backs away a couple of steps from the accused. 52:05 – 52:16 The accused turns his attention to other patrons in the bar who take turns greeting him. Jean-Pierre moves away and walks towards the end of the bar closer to the front door. 52:16 – 52:33 While the accused continues to speak to Jean-Pierre, Jean-Pierre turns and walks back in the direction of the accused who moves in the direction of Jean-Pierre as he approaches. Jean-Pierre still has his beer in his right hand as he exchanges words with the accused.

While one cannot hear what is being said, it appears that their discussion is heating up. 52:33 – 52:40 Jean-Pierre turns to walk away from the accused and the accused reaches out, grabs Mr. Jean-Pierre’s sleeve and pulls him back towards him, as if to say “don’t walk away while I’m talking to you”. Jean-Pierre shakes the accused loose and points a finger at him, as if to say “don’t you dare grab me”.

The accused grabs Jean-Pierre’s finger as if to say “don’t you dare point your finger at me”. 52:40 – 53:00 Jean-Pierre puts down his beer and the men begin to grapple with each other, mostly pulling on each other’s clothes. They continue to argue. Ms. Jin and another patron can be seen imploring them to break it up. The men then stop grappling, but continue to argue while holding on to each other. 53:00 – 53:07 The accused reaches down to his waist with his right hand and takes hold of a small sheathed knife. Jean-Pierre backs away a few steps.

It would appear that Jean-Pierre has noticed the knife in the accused’s right hand. 53:07 – 53:13 The accused moves his chair in Jean-Pierre’s direction and grabs Jean-Pierre again, once close enough to do so. Jean- Pierre reaches with his right hand for something in his back right pocket. Ms. Jin can be seen motioning in the direction of Jean-Pierre’s right hand as if to say “please put the knife away”. 53:13 – 53:29 The accused unsheathes his knife with his teeth while the men continue to grapple. Several patrons approach and try to calm things down.

The accused, while still holding the unsheathed knife in his right hand, reaches with that hand and grabs Jean- Pierre by the collar on the upper left hand side of his outer garment. Jean-Pierre, if he does have a small folding knife in his right hand (as contended by the accused) does not open it.

53:29 – 53:39 The men continue to grapple and push and shove. The unsheathed knife remains in the accused’s right hand. The accused delivers a back handed blow to Jean-Pierre’s head. Ms. Jin has reached for the phone, presumably (and as she testified) to call 911. 53:39 – 53:52 In response to the accused’s backhanded blow Jean-Pierre takes a swing at the accused’s head and the men begin to swing at each other in earnest. The accused then swings the knife at Jean-Pierre several times, clearly making contact with his chest and other areas of his body. Jean-Pierre retreats, never having unfolded his knife, if indeed he had one. (

c) The Evidence of the Eyewitnesses [ 8 ] David Vickers came upstairs from the bathroom at the Blue Lagoon and saw Mr. Brown, in a wheelchair, arguing with Mr. Jean-Pierre, who was standing. Mr. Vickers could not recall what they were arguing about. He was somewhat intoxicated. He was shown the video of the altercation and essentially said that there was nothing he could add to what it depicted. He did say that while he saw a knife in the accused’s hand, he did not see a weapon in the hands of Mr.

Jean-Pierre. [ 9 ] After the stabbing in the bar he saw a man who might have been Jean-Pierre punch the accused once in the neck while both were outside the bar. [ 10 ] Liang Yuan Jin is the owner of the Blue Lagoon and she was tending bar that night. She was familiar with both the accused and Jean-Pierre who both frequented her bar regularly. On the night in question she saw the accused and Jean-Pierre grappling with each other. She tried to calm them down but to no avail. She then called 911. She at first did not recall seeing any weapons, nor did she recall what the men were saying to each other.

She then recalled seeing a knife in the accused’s hand. [ 11 ] She showed the police the video recording shortly after they arrived. According to Ms. Jin, fights in her bar were not uncommon, though none had ever involved a knife. (

d) The Police Evidence [ 12 ] P.C. Jaime Kerr testified that she received a radio call at 23:48 on April 27, 2016 and arrived at the bar at 23:58. After speaking to Ms. Jin, P.C. Kerr drove the short distance to 31 Gilder Avenue, which she understood to be the address of the accused, who matched the description she had received from Ms. Jin. Once there, she saw Jean-Pierre standing in the vestibule of the building. He appeared to be putting something down in the vestibule. He then emerged and was apprehended by P.C. Kerr who found a small, orange, sheathed kitchen knife in his back pocket.

She also noticed several injuries to Jean-Pierre. He was belligerent and refused to cooperate with the police investigation. [ 13 ] The accused then emerged from the building and was arrested. He had a minor cut to his neck and his right upper arm. [ 14 ] According to P.C. Kerr the Blue Lagoon attracted sporadic police attention. She considered the bar “problematic”. [ 15 ] P.C. Ben Chandler testified that he discovered a medium sized sword and a metal bar in the vestibule of 31 Gilder shortly after Jean-Pierre had occupied that space. [ 16 ] P.C.

Daniel Short seized the sword, metal bar and the small kitchen knife. Together with P.C. Smissen he discovered what appeared to be blood on the handle of the sword. No blood was seen on the kitchen knife. Both were negative for fingerprints. They also examined and photographed Jean-Pierre and his clothing. He sustained several knife-inflicted wounds and his clothing was slashed in several places. (

e) The evidence of Basil Brown [ 17 ] Basil Brown was born November 22, 1974. He is also known as Peter. He is a Canadian Citizen, having come to Canada from Jamaica in 1988. He has been an incomplete paraplegic for eight years and is confined to a wheelchair. [ 18 ] He has a serious and lengthy criminal record dating back to 1993 for various offences of violence, drug possession, weapon possession, possession of a credit card obtained by crime and failure to comply. [ 19 ] At the time of the incident the accused lived at 31 Gilder, a mere 10 – 12 meters behind the Blue Lagoon.

He started going there approximately three years earlier. [ 20 ] Before heading to the bar on the night in question the accused had been at home with friends drinking alcohol. He had drunk a lot, as was his custom, and he needed more alcohol so he went to the Blue Lagoon. He was quite intoxicated that night. According to the accused, alcohol gives him a short temper and makes him more aggressive. He admitted that his memory of events that night is adversely affected by his intoxication. When the accused arrived at the bar that night he had a 4” knife in his possession which he kept near his waist in a sheath.

He carried this knife to the bar for his own protection. The bar used to be “okay” but it had become a “hostile environment”, with frequent fights and stabbings. He himself had been involved in such fights and had been hit in the head with a beer bottle two years prior to trial.

[ 21 ] The accused was fairly well acquainted with Jean-Pierre, whom he referred to as “Afro”. They had met at the Blue Lagoon several years ago. They used to hang out together at Brown’s home, but they had had a falling out. [ 22 ] On one earlier occasion Jean-Pierre had come over after having been injured in a bar fight. Brown counseled Jean-Pierre to carry a small folding knife in his back pocket from then on to guard against such an occurrence. He had also seen Jean-Pierre in possession of the sword referred to above. [ 23 ] When the accused arrived at the bar Jean-Pierre was already there.

The accused wheeled over to Jean-Pierre and hugged him with a view to burying the hatchet on their long-simmering dispute. He had not spoken to Jean-Pierre for close to a year, although he had seen him at the bar on a few occasions. [ 24 ] According to the accused, Jean-Pierre did not welcome the proposed reconciliation and the two began to exchange heated words. The accused cannot recall what either he or Jean-Pierre said to each other. He knew, however that a fight was going to break out, as they began to argue and grapple with each other.

The accused decided to pull out his knife because he assumed that Jean-Pierre had one, just as the accused had counseled him to.

When he saw Jean-Pierre remove his knife from his back pocket, he removed the sheath from his knife with his teeth. [ 25 ] According to the accused, he stabbed Jean-Pierre in self-defense after Jean-Pierre punched him in the right eye. [ 26 ] The accused left the bar shortly after the altercation and as he was proceeding home, Jean-Pierre came at him and stabbed him in the shoulder. [ 27 ] The accused made the following pertinent comments during cross-examination: • Jean-Pierre had never confirmed to the accused that he had taken his advice and armed himself with a knife, but the accused knew that Jean-Pierre liked knives, having seen him with many in the past. • The accused started the physical confrontation by grabbing at Jean-Pierre as he walked away.

The accused felt disrespected when Jean-Pierre turned his back on the accused as the accused was speaking. • One of the reasons the accused resorted to stabbing Jean-Pierre was because, being in a wheelchair, he felt at a disadvantage. C. ANALYSIS (

a) Introduction [ 28 ]

Section 34 of the Criminal Code governs the outcome of this case. It reads: s. 34(1) A person is not guilty of an offence if: (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. s. 34(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person's role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and

the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person's response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. s. 34(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 29 ] The accused is, of course, presumed to be innocent.

However, in the circumstances of this case, where the accused has admitted to stabbing Jean-Pierre and causing him bodily harm, the accused must be convicted of the two assault charges if the Crown, who bears the burden of proof, convinces me beyond a reasonable doubt as to the inapplicability of any one of the preconditions for lawful self-defense set out in s.34 (1). (b) Section 34(1)(a) [ 30 ] As the Crown concedes, there is no doubt that there was force being used against the accused when he stabbed Jean-Pierre.

This condition for lawful resort to self-defense is thus met. (c) Section 34(1)(b) [ 31 ] Was Basil Brown’s decision to stab Jean-Pierre taken for the purpose of defending or protecting himself from that use of force? [ 32 ] As concerns this issue, the accused testified that he saw Jean-Pierre remove a black folding knife from his pocket and then unsheathed his own knife. This is borne out by the video. And though the accused conceded that he was the first to take a swing at Jean- Pierre, Jean-Pierre responded to that initial blow with a punch to the accused’s head. This too is borne out by the video.

The accused conceded on cross-examination that he stabbed Jean-Pierre because he was angry at Jean-Pierre for disrespecting him. He added, however, that he stabbed Jean-Pierre because he was afraid of being pulled out of his wheelchair. I accept both these assertions. [ 33 ] On all the evidence I am not convinced beyond a reasonable doubt that the stabbing of Jean-Pierre was not for the purpose of self-defense. (d) Section 34 (1)(c) [ 34 ] Was the stabbing reasonable in the circumstances?

In order to answer this question I must consider all the circumstances leading up to the stabbing, and in particular the factors set out in s. 34(2) [ 35 ] Notwithstanding that I accept much of Mr. Brown’s evidence, his evidence (including that which I don’t accept) along with the other evidence in this case, and in particular the video, does not leave me in a state of reasonable doubt on this issue.

I am convinced beyond a reasonable doubt that the stabbing was not reasonable in the circumstances. [ 36 ] Even though the accused was in a wheelchair, and thus more vulnerable than Jean-Pierre, or anyone else not in a wheelchair, he was the aggressor during this encounter. He is the first to make physical contact with Jean-Pierre. He grabs Jean-Pierre when the latter is seeking to disengage. He is the first to reach for his knife. He is the first (and only one) to unsheathe his knife.

He is the first to take a swing in the altercation. [ 37 ] While I accept the accused’s evidence that he expected Jean-Pierre to be carrying a knife, this expectation did not justify the stabbing. It may have justified the accused making his sheathed knife more readily available to himself as their argument intensified, but it did not justify the stabbing itself. [ 38 ] The accused could easily have de-escalated the conflict.

On several occasions the video demonstrates that Jean-Pierre was looking to quit the scene, but was either pulled back or pursued by the accused. [ 39 ] While it might be argued that the accused was justified in stabbing Jean-Pierre after Jean-Pierre reached for his knife, it must be borne in mind that the latter only withdrew his closed knife after seeing that the accused had removed his from his waist. This factor, as specifically referred to in s. 34(2) (

c) and (

d) weighs against the claim of self-defense.

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e) Weapons Dangerous [40] Was the accused’s possession of the knife for a purpose dangerous to the public peace? [41] The law on this issue is found in the Supreme Court’s decision in R. v. Kerr, 2004 SCC 44 , [2004] 2 S.C.R. 371. Inapplying the reasoning in that case I am convinced that even though there might be a reasonable doubt as to the lawfulness of Mr.Brown’s original possession of his knife as he left home to go to the dangerous Blue Lagoon, there is no doubt that his purpose forpossessing the weapon changed as he became the aggressor in his altercation with Jean-Pierre.

By the time of the unlawful stabbing theaccused’s purpose for his possession became one that was dangerous to the public peace. See Kerr at para. 24. D. CONCLUSION [42] In the result I find the accused guilty of all three counts on the information. Released on September 8, 2017 Justice Russell Silverstein