R. v. Rice and Ringuette Date:, 2013 BCPC 196

Citation: R. v. Rice and Ringuette Date: 20130626 2013 BCPC 0196 File Nos: 72926-1,72926-2-A, 72926-3-A Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA File No: 72926-1 REGINA v. LEVI JON RICE NIGEL CHRISTOPHER RINGUETTE File No: 72926-2-A REGINA v. NIGEL CHRISTOPHER RINGUETTE File No: 72926-3-A REGINA v. LEVI JON RICE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Crown Counsel: K. Paziuk Counsel for Accused Rice: M. Screech Counsel for Accused Ringuette: P. Hertzberg Place of Hearing: Nanaimo, B.C. Date of Judgment: June 26, 2013 [1] THE COURT (orally): Introduction [2] Levi Jon Rice ("Levi Rice") and Nigel Christopher Ringuette ("Nigel Ringuette") are charged on a three-count informationwhich alleges as follows: Count 1 Levi Jon RICE and Nigel Christopher RINGUETTE, on or about the 13th day of February, 2011, at or near Nanaimo, in the Province ofBritish Columbia, did in committing an assault upon E.C., use a weapon, contrary to

Section 267(

a) of the Criminal Code. Count 2 Levi Jon RICE and Nigel Christopher RINGUETTE, on or about the 13th day of February, 2011, at or near Nanaimo, in the Province ofBritish Columbia, in committing an assault upon the complainant, E.C., did cause bodily harm to the complainant, contrary to Section267(

b) of the Criminal Code. Count 3 Levi Jon RICE, on or about the 13th day of February, 2011, at or near Nanaimo, in the Province of British Columbia, did knowingly uttera threat to E.C., to cause death or bodily harm to E.C., contrary to

Section 264.1(1)(

a) of the Criminal Code. [3] The matter first came on for trial on February 13, 2012, and thereafter was continued on June 7, 2012, November 23, 2012, andJanuary 25, 2013. On April 30, 2013, submissions were received. [4] The defence of self-defence is raised by the accused Ringuette who admits to stabbing the complainant E.C. (the"Complainant"). [5] Crown concedes that there is insufficient evidence in order to convict the accused Rice on Count 3.

Therefore, with respect tothe accused Levi Rice, the issue is whether or not Crown has discharged its burden of proof in order to convict him on his own withrespect to each of the two remaining counts, 1 and 2, or as a party together with the accused Ringuette. [6] There are numerous versions of the events giving rise to the charges contained in the testimony of the three main witnesses forthe Crown and the two witnesses for the defence. [7] The Complainant, E.C., and his two young daughters, J.C. and A.C., along with Constable Martin Mindel and Constable BrianPark, testified for the Crown. [8] The accused Ringuette testified on his own behalf.

The accused Rice did not testify, as is his right. [9] The accused Rice's sister Janelle Rice was called as a defence witness on behalf of her brother. [10] The numerous versions of events required an analysis of credibility and reliability of the evidence of the witnesses. Theevidence of the accused Ringuette requires an assessment of that evidence in accordance with the test set forth in the Supreme Court ofCanada decision in R. v. W.(D.), (SCC), 63 C.C.C. (3d) 397.

Summary of undisputed evidence [11] E.C., Janelle Rice, and her three brothers, at various time, had been residing in a rented three-level multi-bedroom house at 345Prideaux Street in Nanaimo, British Columbia (the "House"), preceding the events of February 13, 2011. This arrangement was in placefor a period of about three months prior to the incident giving rise to the charges.

Two of the Rice brothers had departed as tenants of theHouse, leaving the accused Levi Rice as one of the three adult occupants along with the Complainant and Janelle Rice. [12] The House is about 50 yards from the Nanaimo RCMP detachment. [13] The Complainant and Janelle Rice had been in a recent relationship for a period of approximately a year and a half, but the

relationship had dated back a total of about four years. Their relationship was described as being "off" and "on." E.C. and Janelle Rice were in the process of ending their relationship immediately prior to February 13, 2011, likely on or about February 12, 2011. It was not a harmonious parting. [ 14 ] E.C. had four of his children also residing with him during portions of the week. Three of his daughters were present on February 13, 2011, along with a friend of one of his daughters.

Janelle Rice is not the mother of these children of E.C.. [ 15 ] The Complainant and three of his younger children occupied bedrooms in the upstairs of the House. His then 12-year-old daughter A.C. and his then 9-1/2-year-old daughter J.C., at various times, had the use of a bedroom on the main floor. [ 16 ] On the main floor of the House is a family room-living room area (in the evidence sometimes referred to as the common room) with an adjacent dining room and attached kitchen alcove area.

All of these rooms were shared by and available to all of the residents in the House, but during the day of February 13, 2011, Levi Rice and Janelle Rice and Nigel Ringuette were occupying the common room area. [ 17 ] The accused Nigel Ringuette is a close friend to both Levi Rice and Janelle Rice. Ringuette lived in Victoria, B.C., immediately prior to the offence date. Shortly before February 13, 2011, he hitchhiked to Nanaimo to visit his girlfriend. While she was working on February 13, 2011, he went to the House for a visit with his two friends.

Ringuette had previously met E.C., but they did not have an established relationship. [ 18 ] In or around February 13, 2011, E.C. was approximately 6' in height and weighed about 185 pounds. The accused Levi Rice was approximately 5'10" and weighed about 140 pounds. Nigel Ringuette was approximately 5'10" and weighed about 185 pounds at that time. [ 19 ] A physical altercation took place in and around the House between E.C., on one hand, and each of Janelle Rice, the accused Levi Rice, and the accused Nigel Ringuette, on the other.

During the course of the altercation, E.C. sustained a single stab wound from a knife with a blade of three inches or less owned by and in the possession of Ringuette. The wound was in E.C.'s abdomen area and it resulted in bleeding. The Crown did not call any medical evidence. From the evidence available, it seems that the wound, although distressful to the Complainant and resulted in bleeding, was relatively minor and fortunately not life-threatening. [ 20 ] The police and an ambulance were called. The RCMP attended at the residence. They arrested Levi Rice. Nigel Ringuette had left the scene.

E.C. was transported by ambulance to the Nanaimo Regional Hospital. He received treatment at the hospital, including stitches to close the wound, stayed overnight in the hospital, and was released the next day.

Summary of the Complainant E.C.'s version of events [ 21 ] The Complainant testified that on February 13, 2011, he and Janelle Rice had a disagreement about her brothers not paying for rent and other household expenses. He decided he was going to move out of the House. He spent the day with his children packing up to leave. He denies knowing at this time that Janelle Rice was pregnant, allegedly with his child. [ 22 ] That day, Janelle and Levi Rice and Ringuette were on the main floor of the House. They had been drinking in the common room area for some time.

The three of them were all pretty intoxicated based upon E.C.'s observations. On one occasion, E.C. came downstairs into this area to use the household phone to call his mother, P.C., to pick up the children. Levi Rice refused to let him use the phone. E.C. and Levi Rice scuffled over the phone which was being held by Levi Rice. The phone got broken during this event when Levi Rice threw it at E.C.. [ 23 ] E.C. started to leave to return to the upstairs of the House. Levi Rice waved a fork at E.C. and started jabbing at him with it.

Janelle Rice started swinging and hitting him on the head and arm with a steel-toed work boot. He blocked most of those hits. E.C. pushed and kicked at Levi Rice. Levi Rice came back to physically confront E.C.. Verbal abuse was directed at him by Janelle and Levi Rice. E.C. backed out of the room and retreated to the upstairs of the House where he barricaded himself and the four children in a bedroom. Janelle and Levi Rice pounded on the bedroom door and verbally threatened E.C..

He ignored it because the children were present. [ 24 ] A few hours later, he heard a knock at the front door or the front doorbell ring. Some of his children went down to the front door, expecting that it was their grandmother, P.C. She was scheduled to pick up one or more of his daughters later in the day for a visit, although the evidence of the daughters suggest that they lived with the grandmother during the week. [ 25 ] Janelle and Levi Rice began to argue with P.C. at the front door.

E.C. came down the stairs and was set upon by Janelle Rice who jumped on his back and grabbed him around the neck while Levi Rice grabbed him and was throwing punches at him. E.C. punched Levi Rice in the face just once and separately kicked him in the chest. E.C. stumbled out onto the front door porch, stumbled down the stairs with Janelle Rice on his back. He was able to roll her off his back. [ 26 ] During this period, E.C. was unaware of Ringuette's exact whereabouts. They had not been physically engaged in any altercation.

At this juncture, Nigel Ringuette then confronted E.C. at the front of the House and swung at and missed E.C.. Ringuette then responded by trying to push E.C. to the ground. E.C. stumbled but maintained his balance and did not fall. Ringuette then stabbed him on his right side in the abdomen area. Ringuette threatened to kill E.C. if he told anybody about the stabbing.

Ringuette then walked away. [ 27 ] E.C. stumbled back towards the House, returned to the upstairs where the children assisted him by applying pressure to the wound with towels before the ambulance arrived and moved him out on a stretcher. [ 28 ] During cross-examination, E.C. denied the alternative version of events put to him by defence counsel. He specifically denied that he told his mother that he had been stabbed by Ringuette and to call the police when she arrived at the front door after the physical altercation and the stabbing.

He maintained that his mother arrived just before the fight with Janelle and Levi Rice and the subsequent

stabbing. It was then, after he had been stabbed, that he told her to call the police.

Summary of A.C.'s evidence [ 29 ] A.C. testified in chief on Day 1 of the trial on February 12, 2012. Her cross-examination by counsel for Levi Rice also started that day. She reappeared at Day 2 of the trial on June 7, 2012, at which time cross-examination continued, followed by re-examination. [ 30 ] A.C. is the daughter of the Complainant, E.C.. She was 12 years old at the date of the incident. She normally resided with her grandmother and spent the weekends with her father. Her friend S.S. arrived around midday on February 13, 2011.

She contradicts the evidence of her sister J.C., who says that S.S. spent the previous Friday and Saturday nights in the House and that A.C. and S.S. had occupied the main floor bedroom that J.C. says was actually hers, resulting in J.C. sleeping with the younger children upstairs. [ 31 ] In her evidence, A.C. spoke in terms of witnessing or hearing seven or eight commotions, verbal arguments and physical altercations, including punching and kicking taking place during the course of the day that ended up with her father being stabbed.

She testified about a commotion she overheard while in her room on the main floor of the House. It involved Levi Rice and her father. She says they were arguing, but she could not overhear what was said. She went into the living room to observe them yelling at each other about the phone, which she said Levi Rice threw at her father. The phone broke. There was no physical contact between them. Janelle Rice and Ringuette were not involved. Her father returned upstairs to his room as did she and the other children and her friend S.S.

Levi Rice came upstairs and was calling insults at her father while he was in his room. The door was closed but not barricaded. [ 32 ] Sometime later a further incident occurred after her father apparently went downstairs to the main floor of the House. She heard yelling and smashing of things. The order of the events that unfolded is confusing. Her testimony is unclear as to whether she was upstairs or downstairs when she heard this commotion. When she arrived in the common room area, a physical altercation was occurring in the kitchen between her father, on one hand, and Janelle and Levi Rice, on the other.

She saw fists thrown and witnessed Janelle Rice hitting her father with a plastic pop bottle and then with a work boot. However, she later testified that there were two boot attacks by Janelle Rice on her father at different times. She suggests that Janelle and Levi Rice were attacking her father, but that seems to be speculative on her part as to who was actually attacking who. [ 33 ] At one time during the day, she witnessed her father punching Levi Rice while they were upstairs. However, that fight was not apparently part of the fight that occurred immediately prior to the stabbing incident.

She also witnessed her father kicking Levi Rice at some point. [ 34 ] The fight between her father and Levi Rice started immediately preceding the stabbing. The fight continued in such a manner that they left the kitchen and ended up on the front lawn of the House at the bottom of the front stairs where they continued to exchange blows. At that point, according to her evidence, Nigel Ringuette ran down the stairs and, from behind, stabbed her father in the area of the upper abdomen, by the ribs. [ 35 ] She says that she also saw Levi Rice jab her father in the side of the arm with a fork.

She said that she saw it draw blood, but it is unclear as to when that was observed. The location of the occurrence, whether inside different parts of the House or outside of the House on the lawn, is also unclear in her testimony. No mention of the fork-stabbing by Levi Rice was contained in her statement that she provided to the police later that evening. It appears she presumed there had been a stabbing of her father's arm because she saw blood on that arm. [ 36 ] In cross-examination, she confirmed that her police statement was given by her before her father returned from the hospital.

She was cross-examined about the numerous inconsistencies in the statement that she provided to the police immediately following the incident and her testimony at a trial over a year later. In that police statement, she suggested it was Nigel Ringuette who used the fork to stab her father. In cross-examination, she confirmed that she subsequently changed her mind when she saw the abdomen wound after her father had returned from the hospital. She agreed that she was not certain that Nigel Ringuette used the fork to stab her father.

In cross- examination, she admitted that she did not see a switchblade or a pocketknife. She then also admitted that she did not remember Ringuette running down the outside stairs to stab her father on the front lawn. [ 37 ] She also testified about an altercation that broke out between A.C. and S.S., on one hand, and Janelle Rice, on the other, apparently following the second fight between her father and Levi Rice but prior to the stabbing. That altercation occurred on the main floor of the House near the internal stairs outside of the bedroom on the main floor used by the girls.

A.C. stated that Janelle Rice pushed her against the wall and would not let her go upstairs to see her father. A.C. went into her room and slammed the door. Thereafter, she says that Janelle Rice punched S.S. in the face. A.C. saw that, notwithstanding that she apparently had gone into her room and slammed the door. She did not say that her father arrived to intervene in these altercations, as was the evidence of her sister J.C. [ 38 ] There are considerable discrepancies in her evidence about the sequence of events and the timing of the arrival of her grandmother at the front door.

A.C. says she answered the door. In one version, her father and Levi Rice are fighting inside the House. In another version, her father is speaking to the grandmother while Janelle Rice is striking him with a boot for the second time. [ 39 ] She provided contradictory evidence, saying her grandmother arrived before the stabbing in the stomach occurred but in cross- examination says that her grandmother arrived after that stabbing. [ 40 ] A.C. had difficulty placing the location of the various people as events unfolded.

Overall, she had trouble recollecting the order in which events occurred and was candid when she provided the following answer to the following questions found at page 83 of the June 7, 2012, transcript at lines 17 to 23: Q So you'd agree with me, I guess, A.C., that what you actually saw happen involving exactly who doing exactly what outside, downstairs, bottom of the stairs, is really not that clear to you today, is it? A Definitely not today. Like, it's been so long.

Q All right. Fair enough.

Summary of J.C.'s evidence [ 41 ] J.C. is another daughter of the Complainant. She was about nine and a half years old at the date of the incident giving rise to the charges and had just turned 11 years old at the date of her testimony. She normally resided with her grandmother and spent the weekends with her father. Her younger siblings, L.C. and K.C., were also with her that day at the House occupied by her father. They were all upstairs. S.S. and A.C. were downstairs in what J.C. described as her bedroom on the main floor, not A.C.’s bedroom as her sister contended.

She admitted that she had some difficulty remembering the order of the events that occurred. She testified that Janelle Rice and her father had argued the previous day and were in the process of breaking up. On the day of the stabbing incident, she described the atmosphere in the House as tense. [ 42 ] She testified about hearing her father, who was angrily stomping downstairs because he wanted to use the phone. Thereafter, she testifies of hearing an argument in the dining room which her father was having with Janelle Rice about the phone. Janelle would not give the phone to him.

J.C. says that when she heard the argument, she went downstairs. It was there she could observe them, and this young witness says that she saw Janelle Rice hitting her father with a work boot three times. They were swearing at each other. Her testimony at this point becomes very confusing. [ 43 ] In examination in chief, she says, as I understand it, that at the same time, she saw Levi Rice swearing at and striking her father about six times, and she saw her father punch and kick Levi once each to defend himself. She further testified that her father did not punch or kick Ringuette.

Later, she indicated that she could not recall when her father kicked or punched Levi Rice but said that it occurred. [ 44 ] She testified that Ringuette was also punching her father more than five times but less than 10. Again, the sequence and the timing of events is very unclear. The Complainant and the younger children then went upstairs.

In J.C.'s version of the events, following the physical confrontation events described above, there is an altercation in J.C.'s room on the main floor between S.S. and Janelle Rice in which Janelle was hitting and scratching S.S. and angrily demanding that J.C., A.C., and S.S. leave the House. [ 45 ] At that point, her father appears and intervenes, whereupon Levi Rice jumped onto her father, and her father punches Levi Rice three times in the face, causing blood to squirt from his nose. Her father then pushes Levi Rice down the front steps. He falls to the ground.

Levi Rice gets up and jumps on her father, and her father again throws Levi Rice to the ground. Thereafter, her grandmother arrived at the front door and stays outside on the porch. J.C. observes events from the porch but also stated she was in her room much of the time preceding the fight on the front lawn of the House. [ 46 ] She testified that she saw Levi Rice stab her father with a fork in the right shoulder while Levi Rice, Nigel Ringuette, and the Complainant were on the front lawn.

This part of her evidence appears to be based upon her subsequent viewing of her father's wounds when he returned from the hospital. In cross-examination, she admitted she did not see Levi Rice stab her father with the fork. [ 47 ] She further testifies that at this point the three men were in the front yard and that Levi Rice tells Nigel Ringuette to stab her father, thereupon Nigel Ringuette stabbed her father. Her father retreated back into the House, telling the grandmother to call an ambulance while he proceeded upstairs, all the time bleeding.

There, the children attend to her father's wounds by bringing him cloth items to press against the wound. Her grandmother summons the ambulance and the police. [ 48 ] In cross-examination, she confirms that she saw her father go out the front door of the House by himself and go down the front stairs. This occurred after he had thrown Levi Rice down the front stairs.

She clearly did not see Janelle Rice clinging to the Complainant at that time as alleged by the Complainant in his testimony. [ 49 ] In the June 7, 2012, transcript at page 44, lines 34 to 47, and on page 45, lines 1 to 47, and on page 46, lines 1 to 5, J.C. states on cross-examination as follows: Q No. Well, I'm going to suggest to you what happened in terms of Nigel and your father outside is that your father was in a rage, attacking Levi outside, and then turned his rage towards Nigel and pursued Nigel. It wasn't Nigel pursuing your father, it was your father angry and pursuing Nigel.

Know what I mean by pursuing? Going at. A Oh. Q Is that what happened? A Yeah. Q Nigel didn't start any physical altercation with your father, did he? A I'm not sure. Q Well, you didn't see that happen? [ 50 ] UNIDENTIFIED COUNSEL: I'm sorry, could I just ask Your Honour the page that you were referring to? [ 51 ] THE COURT: Page 44. [ 52 ] UNIDENTIFIED COUNSEL: Thank you, Your Honour. [ 53 ] THE COURT: Now onto page 45:

A No. Q What you saw Nigel do was respond to your father's attack on him, right? A Yeah. Q Nigel had actually -- when you saw him, had actually fallen down on to the ground at the bottom of the stairs, right? A Yes. Q That's before the stabbing of your father, right? A Yes. Q And while Nigel is down on the ground your father is very angry and attacking Levi, correct? A Yes. Q And then turns his anger and attack on -- towards Nigel who's still on the ground, is that correct? A Yes. Q Your father, from what you could see, looked like he was about to beat up Nigel, who was on the ground. Am I right about that?

A I'm not sure. Q Okay. Well, that's kind of what you saw happening. Nigel didn't beat on your father. It was your father who was heading towards Nigel -- A Yes. Q -- right? A Yeah. Q Okay. And Nigel -- You never saw a knife. You heard from your father that he was stabbed with a knife, correct? Let me break that question down. You -- you saw Nigel's hand going towards your father's body area? A Yes. Q Chest, tummy, type area? A Yes. Q And you saw some blood afterwards? A Yeah.

Q And your dad goes to the hospital and comes back and your dad shows you marks on him somewhere up here and tells you he got stabbed with a fork? A Yeah. Q And also you were aware that he had been stabbed in the stomach? A Yes. Q But you didn't actually see anything stabbing him? You saw Nigel's hand moving towards him, correct? A Yes. Q And you logically assumed that that was Nigel stabbing your father, right? A Yes. Q You saw a knife? [ 54 ] UNIDENTIFIED COUNSEL: Excuse me, Your Honour. You misquoted that line, Your Honour. [ 55 ] THE COURT: Okay. Q You never saw a knife? I'm sorry.

A No. [ 56 ] Thank you. [ 57 ] In her testimony, J.C. also says that Janelle Rice continued her altercation with S.S. in the downstairs bedroom and did not appear at the front door to confront or to physically engage with her father as contended by the Complainant in his testimony.

Summary of evidence of Constable Martin Mindel [ 58 ] RCMP Constable Martin Mindel was dispatched and attended at the House around 7:50 p.m. Also dispatched and in attendance were Constables Park, Balderston, and Corporal Lehman. Constable Mindel testified that upon his arrival on the scene, he sees a man coming towards him down the front path with blood coming out of his nose, the side of his mouth, and the left side of his face. He detected an odour of alcohol on this man's breath. The man was staggering a bit but able to walk unassisted. [ 59 ] Constable Mindel concluded that the man was intoxicated.

As it turns out, it was Levi Rice. When he spoke to Levi Rice, Rice appeared to be confused in his speech and in his recitation of the events that had occurred. Constable Mindel had Levi Rice assessed by the paramedics who were on the scene to deal with the Complainant and his stab wound. Constable Mindel was able to discern from his discussions with Levi Rice about some of the events of the evening that gave rise to Levi Rice's bloodied condition. As a result of those discussions, Levi Rice received a Charter warning from Constable Mindel and was informed about his rights to counsel and was then arrested.

Summary of evidence of Constable Brian Park [ 60 ] RCMP Constable Brian Park was also dispatched and attended at the House. He was the first police officer on the scene. He observed an individual standing at the door of the House bloodied and dazed. In particular, blood was coming from his mouth. He was unresponsive to questions posed by Constable Park about what had occurred. His verbal responses were almost inaudible. He was wobbling while standing. He had a glazed look in his eyes, and his face was drooping.

That individual was later identified as Levi Rice. [ 61 ] From this very brief encounter, Constable Park suspected that Levi Rice was intoxicated. He directed him to speak to another police constable so that he, Park, could deal with the reported stabbing. Constable Park then encountered Janelle Rice briefly. He described her as belligerent and irate. She was agitated and upset and was yelling and screaming. She recounted that the Complainant had punched her brother in the face and beat him up. She urged the police to arrest the Complainant. She offered little in the way of helpful information.

Park did not observe any injuries or bruising about Janelle Rice or anything that would suggest that she had been involved in any sort of physical altercation. He did not form the impression that she was intoxicated. [ 62 ] A conducted search of the House indicated that there had been a disturbance. There was evidence of blood. Park heard the children calling about their father having been stabbed. He discovered three or four of the children on the main floor. Constable Park proceeded upstairs where he located the Complainant, whom he described as holding a towel to his abdomen. His t-shirt was ripped and bloody.

The Complainant was pale and sweating. There were children present. The Complainant, E.C., was calm, very exhausted, and laboured when he was talking. He stated he had been stabbed. There was no smell of alcohol nor indication that he was intoxicated. [ 63 ] In his discussions with Constable Park, the Complainant indicated twice to Park that Levi Rice had stabbed him. The Complainant indicated that Nigel Ringuette had been present, but the police did not locate him at the scene. After the Complainant had been taken to the hospital, Constable Park attended there and took a statement from him late in the evening.

In that statement, the Complainant stated that Nigel Ringuette had stabbed him and that Levi Rice had threatened to kill him.

Summary of evidence of Janelle Rice [ 64 ] Janelle Rice was called as a witness by the defence on behalf of her brother. She testified that in the weeks preceding February 13, 2011, she and E.C. had a violent encounter whereby he struck her, blackening her eye, when she disclosed to him that she was pregnant with his child. She testified that at February 12, 2011, they already had a daughter who was about a year old but in the custody of another family member. [ 65 ] By February 13, 2011, she and the Complainant had agreed to terminate their relationship.

She described the significant tension between herself and the Complainant, as well as there being a strain in the relationship between the Complainant and her brother Levi Rice arising out of the Complainant's assault on her and Levi Rice's confrontation with the Complainant about the assault. She did not anticipate that the Complainant was intending, at that time, on departing as a tenant from the House. [ 66 ] She testified as to the welcome unannounced arrival of Nigel Ringuette at the House around 10:30 a.m. on February 13, 2011.

She described him as a long-time friend of the family, a close friend of Levi Rice, and like a younger brother to her. [ 67 ] Shortly thereafter, Levi Rice and Nigel Ringuette walked from the House to the liquor store, having literally scraped up enough change to purchase a six-pack of beer. They shared the beer back in the living room of the House until 3 or 4 p.m. Janelle Rice did not share in the beer due to her pregnancy. Around that time, the three of them departed the House and walked to Janelle and Levi Rice's mother's house for a visit and to share tea with her. They returned to the House around 7 p.m.

Levi Rice then used the household phone to call his mother about a forgotten article. While Levi Rice was on the phone, the Complainant, who had isolated himself all day upstairs in his room with his children, walked into the room and demanded that Levi Rice turn over the phone to him. Levi Rice refused. The Complainant grabbed the phone station and pulled it out of the wall. The Complainant then grabbed Levi by the neck while he was sitting on the living room couch and punched him repeatedly in the face.

Levi Rice did not respond or physically strike the Complainant. [ 68 ] It was Janelle Rice's evidence that Levi Rice was knocked out by the first punch. Notwithstanding this, the Complainant

continued to punch Levi Rice in the face. Janelle Rice intervened by grabbing the Complainant by the back of his jacket. The Complainant turned on her and shoved her into the dining room area where he threw her to the ground and kicked her in the stomach. [ 69 ] In her cross-examination, she testified that he threw her around but not to the ground and jump-kicked her in the stomach. [ 70 ] At that point, Levi Rice, apparently having regained consciousness, then attempted to intervene to try to prevent the further assault on his sister by the Complainant.

The Complainant grabbed Levi Rice and continued to strike him in the face, at which point Levi Rice picked up a fork from the floor, presumably to defend himself; but apparently, according to Janelle Rice, he realized the futility of that and dropped the fork without making contact with the Complainant. [ 71 ] During the time that Levi Rice held the fork, the Complainant briefly backed off, but the Complainant came back at Levi Rice after he had abandoned the fork. That fight continued down the hallway towards the front door, with Levi Rice's blood being splattered as he was struck repeatedly by the Complainant.

At no point did Levi Rice strike the Complainant. [ 72 ] According to Janelle Rice, up to this point, Nigel Ringuette had no involvement in the fight but, rather, was present and standing back. However, in cross-examination, she says that Ringuette may have pulled at the Complainant to get him off of Levi Rice. [ 73 ] In a somewhat confusing sequence of events, made confusing by Janelle Rice's lack of a clear recollection of events and some vagaries in her police statement, the Complainant then turned his attention to Nigel Ringuette. A physical altercation initiated by the Complainant then occurred.

She believed that at this point the Complainant grabbed Ringuette by the back of his shirt, dragged him from the kitchen down the hallway, or at least grabbed him while close to the front door and went through the open front door and tossed Ringuette down the concrete front steps where Ringuette ended up on the walkway in the front yard. She left open the possibility that it was her brother that was being dragged down the hallway, but she is certain that it was Ringuette who gets thrown down the stairs.

It was difficult to reconcile her testimony about how the Complainant was continuing to strike Levi Rice while at the same time dragging Ringuette down the hallway. [ 74 ] Her version of events continues with the Complainant following Ringuette down the steps and setting upon Ringuette while he was lying on the ground. The Complainant continued his attack upon Ringuette by punching him in the head and face while Ringuette was in a defensive position trying to cover up.

Janelle Rice observes this brawl from the front porch, but at this stage, apparently, Levi Rice was again involved in the fray, attempting to prevent the Complainant from continuing his assault on the prone Ringuette. Thereafter, Janelle Rice apparently went down the stairs into the front yard to assist in the protection of Ringuette. [ 75 ] As the Complainant is standing over top of Ringuette, possibly pinning him down, the Complainant exclaims that he has been stabbed. The brawl stops, and the Complainant grabs and holds his abdomen and makes his way back into the House.

Due to the darkness, Janelle Rice does not see the stabbing take place nor observe any stabbing motion by Ringuette. She was uncertain how Ringuette could have stabbed the Complainant while lying on the ground. [ 76 ] It is around this time after the stabbing that P.C. arrives at the front door of the House, according to Janelle Rice. P.C. then left the scene to summon the police at their detachment just a short distance from the House.

Ringuette left the yard of the House very shortly thereafter. [ 77 ] Janelle Rice denies having a confrontation with S.S. but does recollect that while trying to pull the Complainant off of either her brother or Ringuette, feeling somebody grabbing her from behind and pushed that person away only to discover that it was S.S. She also testifies that the Complainant's children attempted to wipe away the blood of Levi Rice from the walls of the House after having huddled with their father. She states that the children were saying that they were wiping off the blood to prevent their father from getting into trouble.

During this time, their father was apparently lying upstairs with a stab wound. [ 78 ] She denies that she or her brother Levi were upstairs outside of the Complainant's room that day after an earlier exchange. She also believed that her brother Levi and the Complainant may have had a non-confrontational encounter on the previous day about the previous violence perpetrated by the Complainant upon Janelle Rice. She denies ever hitting the Complainant with a boot while attempting to rescue her brother from the continuing assaults of the Complainant.

Summary of evidence of Nigel Ringuette [ 79 ] Nigel Ringuette testified that he had a pocketknife in his possession on the evening in question which he carried specifically for protection when hitchhiking, as he had just done from Victoria to Nanaimo. It was with that knife he caused injury to the Complainant on the evening of February 13, 2011. Prior to the events of that day, he had never used the knife during a physical altercation. [ 80 ] He enjoyed a close relationship with the Rice family.

He testified that after returning from Janelle and Levi Rice's mother's house, he was visiting with Janelle and Levi Rice in the living room of the House when the Complainant entered into the room and the altercation over the use of the phone in the possession of Levi Rice occurred. [ 81 ] During that altercation, the Complainant came over to the couch and struck Levi Rice two to four times in the face. Ringuette was awestruck by this attack on Levi Rice that he had just observed. Levi Rice was immediately rendered into a semiconscious state by the blows, and he also sustained significant facial injuries.

Injuries to Levi Rice's face consistent with being punched were very apparent from a photographic exhibit entered into evidence. [ 82 ] Janelle Rice reacted quickly and jumped off of the couch she had been sharing with Ringuette and moved towards the Complainant and pulled him off of her brother. At that point, the Complainant and Janelle Rice began a struggle that took them into the kitchen. Levi Rice regained consciousness and then moved to intervene between his sister and the Complainant. At that point, the Complainant started to strike Levi Rice again.

Ringuette followed behind Levi Rice in order to step in if Levi Rice was rendered another blow that would cause him to lose consciousness again. The further blows received by Levi Rice resulted in him slumping to the floor in the hallway, beaten into submission, and attempting to block continuing blows to his face being rendered by the Complainant.

[ 83 ] Notwithstanding that Ringuette believed the Complainant to be much taller and heavier than he was (although he admitted the size differential was less when he saw the Complainant in court than Ringuette thought at the time of the incident), Ringuette grabbed the Complainant to prevent further blows from being administered to Levi Rice. Ringuette then pushed the Complainant off of Levi Rice. The Complainant then angrily turned on Ringuette, saying to him, "You want some too?" They grabbed each other.

Ringuette then described what he refers to as a "hockey tuffle" ensuing, by which I understand him to be describing a grappling match in which both parties have each other's arms tied up to prevent punches from being exchanged. This was also characterized in the evidence as a "hockey dance." [ 84 ] Seeking to get out of the House and away from the Complainant, Ringuette backs down the hallway towards the front door with the Complainant either being pulled or pushing his way forward.

No punches were exchanged between them, and the Complainant was not striking Levi Rice at that time. [ 85 ] When they arrive at the front door, the Complainant gets the upper hand and throws Ringuette backwards out the door against the front stair handrail, resulting in him falling down the front stairs and landing at the bottom of the stairs laying on his back on the ground.

To the surprise of Ringuette, the Complainant, rather than closing the front door, continues to pursue him by coming down the front stairs. [ 86 ] In the course of falling down the stairs, Ringuette injured the ligament at the rear of his right knee and sustained injuries to his right ribs. Fearful that he (Ringuette) was to have his "face punched in" by the Complainant in the fashion of the injuries inflicted upon and suffered by Levi Rice and with the resulting unconsciousness, at that point, Ringuette struggles to his feet. He is unable to run away due to his sustained injuries.

He reaches into his right pocket and pulls out the knife and rotates a button to cause the blade of the knife to extend from the handle. At the time Ringuette pulls out the knife, the Complainant is within arm's reach in grabbing at Ringuette. [ 87 ] In the transcript of January 25, 2013, at page 90 and 91, Ringuette describes the events as follows, stating on page 90, line 5, and continuing to line 47: Q And show us what you do with your arm from the time you pull your hand -- are pulling your hand out of your pocket until the time that the knife has contact with E.C.. Just describe that and show us.

And I may get you to slow it down and give more detail. A Okay. So I was on my back and reached in from my back and as I stood up it was like this and he was right there. And by the time that I had got to my feet I have made a bit of contact with his skin there and he had said he’d been stabbed. Q All right. So is he moving towards you as you were standing up and pulling your knife out and moving your knife out in front of you? A Towards him. Yes, sir. Yes. Q All right.

So was it you stabbing him or him moving onto your knife, or a combination of both, or something else -- A I would definitely -- Q -- that caused them to connect? A -- say a combination of both. Q All right. What were you intending on doing by pulling out that knife in those circumstances? A Walking away. Q Okay. Why didn’t you just get up and, instead of putting your hand in your pocket and pulling out this knife, walk away? A I wouldn’t have gotten anywhere. I don’t believe I would have gotten anywhere. I was already in arm’s reach of him; he would have grabbed me.

He had already been grabbing me, so I knew that once he had me he wouldn’t have let me go. He tossed me down the stairs. That was my only time that I wasn’t attached to him in that scruffle. So that was a split second thinking right there, to either do something about it or -- or have him on top of me. Q All right. Now, when your knife -- did you see it actually draw blood? A No, there was no -- there was no blood when he had grabbed himself. Q All right. And how long after that point -- you say he grabbed himself. Meaning in the area where your knife had impact with him? A Yeah.

And this is continuing on page 91: Q All right. A He said that he had been stabbed, and grabbed himself, and started walking himself into the house. And I started walking myself back to my girlfriend’s apartment to get away from them. Q All right. A From him.

Q Why didn’t you stay at the scene? A I was scared. I just wanted to get away. [ 88 ] In cross-examination, he further describes the stabbing and the events leading up to it in the following way as set out in the same transcript at pages 115 to 117. Reading from page 115 of the transcript and starting at lines 3 through 47: Q And during this entire time where you guys are tuffling or tussling from the kitchen right out the front door, E.C. saying anything to you? A No, he just -- just engaging in a fight with me. Q Mm-hmm. And you weren’t saying anything to him? A No.

I was concentrating on what -- what the hell I was going to do. Q Okay. You didn’t say “stop”? A Oh, I could have, but -- Q “What are you doing?” A It wouldn’t have helped. He had no intention -- Q “Hey, quit it.” A -- no intention -- I said that to him when he was punching Levi. Did he stop? No. Q Hmmm. A I’m sure Jan said that about a hundred times to the man. Did he stop? No. Q Mm-hmm. You didn’t say that to him the whole time you were dealing with him? A Not -- no, not -- not -- I said it in the house, yeah.

But when he had my hand -- his hands on me and we were tussling towards the front door it’s not like I was -- I was yelling for him to stop, no. I was just concentrating on -- on my next move to get out of the House. Q When you got outside with E.C., you didn’t at that point say, “Hey, stop,” did you? A No, I landed at the bottom of the stairs. Q You didn’t yell for help even though you were outside at that point? A No, I -- just trying to get back to my feet. Q And you can take this knife out of your pocket -- or you did take it out of your pocket and open the blade with one hand? A Yeah, just with your thumb.

Q And did you then brandish the knife for E.C.? Did you show it to him, say, “Hey -- A It was between us, yes. Q -- back off”? A Yeah. I didn’t say “hey” -- I may have said, “Hey, back off,” but I don’t remember. I just remember concentrating on trying to put it between us so that he -- if he was going to try to grab me again he would realize if I’m grabbing him, I’m going to pull him right into me, and then he [continuing on page 116] would essentially stab himself, or pull me with the knife towards him. And if he’s not going to stop when he sees the knife, then when is he going to stop?

I know if like -- if I had seen someone pull a knife on me, I’d be heading in the opposite direction, that’s true. Q Well, you stabbed E.C., didn’t you? A No. Q It wasn’t you? A I had the knife in my hand, yes, but it’s not like I forced the knife into him or anything. I had the knife between us. He was -- I was going like this; he was right there, coming at me still. It’s not like I backed up, pulled the knife out, ran at him and stabbed him. Q I thought your evidence was it was a combination. A Yeah.

Q You were sort of pushing the knife towards him. A I was put -- Q He was coming towards you. A I was putting it between -- in that space -- the knife was going to wind up in that space regardless, whether he was there or not. That’s where I was going to put the knife. If he’s there and he’s close to me, then I guess so, he’s -- he’s in the space that I’m trying to claim between me and him. I don’t want him to get in closer to me. I’m out of his House. Why is he still coming to me? Q I see. So your intention was to put that knife some distance in front of you? A In front of me, yes, to have that distance.

Q And if E.C. happened to be occupying that space he’s going to get stabbed? A Well, if he’s coming at me, then yeah. It’s not like I thought about it and, okay, this is what I’m going to do. It’s just -- just a -- just like a -- just a reaction of what was going on. Q And when you pulled that knife out and you moved it towards E.C., you knew that knife could stab somebody, didn’t you? A I knew that if he was going to keep proceeding towards me then he may run into the knife, yes. Q That knife was sharp enough to go through some clothing, break skin, continue on through flesh. You knew that, didn’t you?

A No. [and continuing on page 117, lines 1 to 8] Q Oh, you didn’t know that? A I didn’t know that it was going to go through his clothing into his flesh. I didn’t -- I wasn’t planning on forcing this knife all the way into him or in -- in through his flesh, no. I just - it was there to put space between us. And honestly, I don’t think it went through into him, like the -- the way that you’re describing it. [ 89 ] As Ringuette was departing from the scene, he observed a lady whom he presumed to be P.C. walking up the pathway towards the House.

She and Janelle Rice, who was standing at the top of the front stairs, exchanged words. [ 90 ] Ringuette denied that at any time he was intending to gang up or "triple team" the Complainant along with Levi and Janelle Rice. He was only trying to intervene to prevent Levi Rice from suffering further injury at the hands of the Complainant. Issues raised [ 91 ] The issues raised are as follows: 1. Has the Crown proven its case against both accused on all three counts beyond a reasonable doubt? 2.

As the admitted stabber of the Complainant, is the defence of self-defence available to the accused Ringuette in the circumstances? 3. If the accused Rice is not guilty of having stabbed the Complainant, is the accused Rice a party to the offences committed by the accused Ringuette? Positions of the parties Crown's position [ 92 ] Crown admits that there is insufficient evidence to convict the accused Levi Rice on Count Number 3, being the threatening charge. Crown submits that it has proven its case on the two remaining counts, relying upon the evidence of the Complainant E.C. and his two daughters.

It is submitted that they are reliable and credible witnesses, notwithstanding some significant variations in their respective versions of events.

Crown says that what is consistent in their evidence is that the Complainant was not the aggressor and he was subject to multiple attacks by Janelle Rice, Levi Rice, and Nigel Ringuette, from which he attempted to defend himself. [ 93 ] On the other hand, the evidence of Janelle Rice should be rejected as inconsistent, exaggerated, and motivated by the significant continuing animosity she holds towards the Complainant E.C.. [ 94 ] With respect to the evidence of the accused Ringuette, Crown submits that he is less than credible when he tries to explain that he would not utilize the knife that he carries for protection when hitchhiking to actually stab an individual and downplays the ability of the knife to cause actual damage.

Crown also suggests that the credibility of Ringuette is weak when he claims not to have used a stabbing motion to inflict a wound on the Complainant. [ 95 ] In my view, some of the material inconsistencies in the Crown's evidence immediately leading up to the stabbing might have been cleared up by P.C., mother of the Complainant, and by S.S. However, Crown decided not to call either of them.

[96] Crown submits that s. 34 of the Criminal Code, either as it stood at the time of the offences or as subsequently amended, appliesto this case. Crown says that the accused Nigel Ringuette may avail himself of any of the defences that existed prior to the introductionof the new Criminal Code self-defence sections or subsequent thereto. [97] Crown says that the accused Ringuette's defence of self-defence must be rejected based upon the evidence before the court.

Crown further says that the use of the knife to stab the Complainant exceeded what can objectively be reasonable force as contemplatedby either the old or amended s. 34 of the Criminal Code.

In fact, Crown says that the force used was excessive, especially given the factthat Ringuette had sustained no punches while he and the Complainant were engaged in their "hockey tuffle" in the hallway of the Houseand given the fact that the Complainant was unarmed, at all material times. [98] Crown submits that the application of s. 21, the parties to an offence provisions of the Criminal Code, should be utilized to findon the evidence that Levi Rice and Nigel Ringuette were, in fact, one group acting in concert to commit the offences outlined in Counts 1and 2. [99] In support of that argument, crown relies upon the tests laid out and the decisions in R. v.

Ball, 2011 BCCA 11 , [2011]B.C.J. No. 39 (B.C.C.A.), and R. v. A.D., [2010] B.C.J. No. 2482 (B.C.S.C.). Position of the accused Ringuette [100] Counsel for the accused Nigel Ringuette submits that his evidence offers the only clear, concise, consistent, and comprehensiveaccount of the events that took place on February 13, 2011. Therefore, it is argued that applying the test of R. v. W.(D.), if I accept theversion presented by Ringuette, including his explanation about the stabbing of the Complainant, then I must acquit.

Even if I do notbelieve him, I should be left with a reasonable doubt and therefore I must acquit him. Even if I completely reject Ringuette's evidencebut I am left with a reasonable doubt on the basis of the whole of the evidence, then I must also acquit him. [101] It is further submitted that based upon the jumble of evidence and the various inconsistent versions of events which lacks anycore consistency, a reasonable doubt is raised in this case on the whole of the evidence. [102] In submissions, Mr.

Hertzberg says the evidence of Janelle Rice can be characterized as "hyperbolic and over the top." However, some of what she testifies to may likely have occurred. He further submits that the evidence of the Complainant is inaccurate,biased, and self-serving and should be rejected. It is submitted that the evidence of the two young witnesses must be consideredunreliable. They are characterized as naïve, inexperienced witnesses who are young and impressionable. They were exposed to ahorrific incident of violence. In their testimony, they seek to make up a version of events that makes sense to them.

They drawinferences from things they saw after the fact, and rely upon a number of presumptions that they have made rather than what reallyoccurred. [103] It is further argued on behalf of Nigel Ringuette that the evidence supports a finding for a successful defence of self-defenceunder either the old sections of the Code or the new sections of the Code. It is submitted that Crown has to prove the alleged offencesand to disprove the self-defence.

It is submitted that they have failed to do so. [104] It is submitted in support of this argument that Ringuette's intervention in the fight between the Complainant in order to limit thebeating being inflicted on Levi Rice was reasonable in the circumstances. He was entitled to use reasonable force in his self-defence. The use of force to meet force in this case was a reasonable response by Ringuette.

He did not intend to render grievous bodily harm butonly to poke the Complainant in the abdomen to prevent himself from being seriously injured by the Complainant, who had alreadybeaten up his friend Levi Rice in the course of the fight. [105] Nigel Ringuette's counsel referred me to and relies upon the following cases with respect to the defence of self-defence: (

a) R. v.Kandola, (B.C.C.A.), (BC CA), [1993] B.C.J. No. 1035 ("Kandola"); (

b) R. v. Teskey, (B.C.C.A.), 2008 BCCA 288, [2008] B.C.J. No. 1266 ("Teskey"); (

c) R. v. Kowbell, (B.C.P.C.), [2004] B.C.J. No. 1289 ("Kowbell"); (

d) R. v. Veale,(B.C.C.A.), [2000] B.C.J. No. 1009 ("Veale"); (

e) R. v. W.W.R., (B.C.C.A.), [1998] B.C.J. No. 2677 ("W.W.R."). [106] Mr. Hertzberg calls for an acquittal on the basis of a defence of self-defence. Position of the accused Levi Rice [107] Mr. Screech, as counsel for Levi Rice, argues generally that Crown has failed to prove the allegations against his client. Specifically, with respect to Count 3, he agrees with the position of Crown that these charges should be dismissed due to a lack ofevidence.

It is further submitted that with respect to the remaining counts, the evidence of Crown lacks a core of consistency about theway that the events occurred on the offence date. [108] The evidence of the two young daughters is consistent and unreliable as noted by Mr. Hertzberg. That leaves the evidence ofthe Complainant, on one hand, and the evidence of Janelle Rice and Nigel Ringuette, on the other hand, for further analysis. Thatevidence, it is submitted by Mr. Screech, raises a reasonable doubt.

While the evidence of Janelle Rice is flavoured against theComplainant, as is the evidence of the Complainant against both her and the two accused, I am being urged not to totally discount herevidence. [109] With respect to both remaining counts, 1 and 2, it is submitted that there is not enough evidence to conclude that Levi Rice useda weapon in an assault upon the Complainant. Therefore, the only way Crown can succeed is to establish that Levi Rice was a party tothe offence alleged to have been committed by Nigel Ringuette. [110] Mr. Screech agrees with the submissions made by Mr.

Hertzberg as they relate to self-defence. In this case, says Mr. Screech,the evidence supports that any physical interaction by Levi Rice with the Complainant was in Levi Rice's own self-defence. It was, infact, the Complainant who was the aggressor throughout the physical altercations that occurred.

[ 111 ] Furthermore, it is argued there is no physical evidence to support the contention that the Complainant was stabbed by a fork, whether or not in the hands of Levi Rice. What the physical evidence does disclose is that Levi Rice had been "beaten to a pulp," which was confirmed by the photographic evidence as well as the confirmatory evidence of the police officers.

Levi Rice is therefore characterized as the victim in this case, and that characterization should clearly not be available to the Complainant. [ 112 ] It is further submitted that the Crown has failed to establish that Levi Rice was a party to the stabbing committed by Nigel Ringuette. The cases being relied upon by Crown are significantly factually different than the case before this court. The party requirements of the Code are absent in this case. Therefore, Mr. Screech calls for an acquittal on the two remaining counts against Levi Rice. Applicable provisions of the Criminal Code [ 113 ]

Section 267 of the Criminal Code states as follows: 267. Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 114 ] At the date of the alleged offences, being February 13, 2011, s. 34 of the Criminal Code under the heading "defence of person" and "self defence against unprovoked assault" provided as follows: 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. [ 115 ] Effective March 13, 2013, prior to the conclusion of the trial, the following amended s. 34 came into force pursuant to Bill C- 26. It provides as follows, quoting s. 34 : 34.

(1) A person is not guilty of an offence if (

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

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

c) the act committed is reasonable in the circumstances.

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

a) the nature of the force or threat; (

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

c) the person’s role in the incident;

(

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

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

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

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

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (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. [ 116 ] The Legislative

Summary of Bill C-26: The Citizen's Arrest and Self-defence Act, which amended ss. 34 to 37 of the Criminal Code , states, in part, as follows at page 11: 2.1 Self-defence (Clause 2) Under clause 2 of Bill C-26, sections 34 to 37 of the Criminal Code are repealed and replaced with a single self-defence provision (new

section 34 of the Code) that applies to any offence. The current distinctions between provoked and unprovoked attacks, as well as any intention to use deadly force, are eliminated. Under new

section 34, persons will not be guilty of an offence if: ▪ they believe on reasonable grounds that force, or a threat of force, is being used against them or another person; ▪ the actions that constitute the offence are committed for the purpose of defending or protecting themselves or the other person; and ▪ the act committed is reasonable in the circumstances. It appears that this proposed test has mixed subjective and objective elements – the accused must believe that he or she is under threat (subjective test) and this belief must be reasonable in the circumstance (objective test).

Bill C-26 then states that, in determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person claiming the right of self-defence, the other parties, and the action taken, along with a non- exhaustive list of factors that includes: . . .

Thereafter are recited the provisions of s. 34(2) to which I have already referred. [ 117 ] I accept the submissions of both Crown and defence that the accused persons in this case are each entitled to all defences either as set out prior to or subsequent to the amendments that now comprise s. 34 of the Criminal Code . Analysis [ 118 ] A trial judge is not required to accept one version of the evidence over another version.

The trier of fact must draw upon the evidence as a whole to determine the truth based upon being something that is consistent with the preponderance of probabilities that are reasonable having regard to all the circumstances and conditions that surround the events. The most likely version of the truth, based on the evidence that I have heard, flows from the evidence provided by the accused Nigel Ringuette.

His overall description of the altercation initially between the Complainant and Levi Rice, which was subsequently joined in by Janelle Rice and then by Nigel Ringuette himself, strikes me as being consistent with the preponderance of possibilities that are reasonable in the circumstances. [ 119 ] Crown's case is significantly weakened by the significant contradictions in the evidence of its three civilian witnesses. [ 120 ] For the reasons identified by defence counsel, I am reluctant to accept the evidence of the two young daughters. I do not believe that they were being untruthful.

They simply were unreliable based, in part, upon the horrific experience of witnessing four adults engaged in a serious physical altercation which resulted in and concluded with the stabbing of their father.

[121] In addition, they did not see much of what actually occurred or what precipitated what did occur due to their respective locationsin the House at various times and throughout the physical altercation. Thus they were required to speculate about important aspects oftheir evidence rather than rely upon what they were actually able to observe. That is not to say that I reject all of their evidence. Theyclearly did not confirm some of the things that were contained within the testimony of their father, E.C., which they had the opportunityto observe.

For example, there is Janelle Rice's alleged presence grabbing onto the back of E.C. which necessitated him rolling her off ofhis back as he made his way down the front steps of the House. That did not accord with the evidence of the two daughters. [122] Their evidence about Levi Rice actually striking their father is not borne out by any observations of the physical condition of theComplainant made by the police or, for that matter, by the observations made by the daughters themselves.

There is very little thatwould substantiate that their father actually received any blows from either Levi Rice or from Nigel Ringuette. [123] In the whole of the circumstances, it is quite understandable that these two young witnesses would not be able to accuratelyrecall what actually happened and when it happened during this traumatic event. [124] The evidence of both the Complainant E.C. and Janelle Rice was weakened considerably by their animus that they displayedtowards each other in their respective accounts of the events of February 13, 2011.

Each of their versions of the events containsnumerous significant inconsistencies, both as between themselves and with other witnesses. I agree that Janelle Rice's evidencecontained several exaggerations. This leads me to place considerably less reliance upon it. However, her evidence as to how and whenthe altercation started makes sense. Accordingly, I place some reliance on it for that purpose. [125] The evidence of the Complainant is problematic from several perspectives.

I find it difficult to accept that a much smallerindividual in the person of Levi Rice and a pregnant woman in the person of Janelle Rice would instigate an unprovoked fight and attackupon E.C., a much bigger individual and clearly a person able to deal effectively with physical combat. [126] On the other hand, E.C. clearly was angry when he went downstairs to use the phone and even before he was refused immediateaccess to it by Levi Rice, whom the Complainant apparently viewed as a freeloader.

This initial anger was confirmed by the testimonyof other witnesses, including his daughter J.C., who heard him angrily stomping down the stairs to use the phone just prior to whatappears to be the single fight that occurred and which was concluded by the stabbing. [127] I view it as exaggerations by the Complainant when he testifies as to the number of altercations, the nature of those altercations,and the cause of them.

A single blow and a single kick, or even a limited number of blows administered by the Complainant to LeviRice during the altercations, given the whole of the evidence, is most unlikely especially in the context of the condition of Levi Rice asobserved by the police when they arrived on the scene. [128] On balance, I accept as being reasonably accurate Nigel Ringuette's description of the events, that being a single physicalaltercation which started in the living room area of the House when the Complainant initially struck Levi Rice after the argument overthe phone; the reasonable intervention by both Janelle Rice and by Nigel Ringuette to assist Levi Rice, who was rendered semiconsciousby the Complainant's punches and therefore unable to retaliate or defend himself, thereby resulting in Levi Rice receiving continuingblows from the Complainant; the grappling action down the hallway towards the front door between the Complainant and Ringuetteculminating in Ringuette being thrown down the front steps by the Complainant; and the stabbing of the Complainant in the front yard asthe Complainant pursued and set upon the injured Ringuette. [129] I also accept as factual Nigel Ringuette's version of what occurred once he had been thrown down the stairs by the Complainant,thereby sustaining injuries, and the aggressive pursuit of him by the Complainant.

Whether there is, in the circumstances, an available defence of self-defence [130] In Kandola, our Court of Appeal considered the defence of self-defence as set out in the then operable provisions of s. 34(1) ofthe Criminal Code and stated the following at paragraphs 21 through 24: 21 In Canada the defence of self-defence has been codified. Thus, the limits of the defence are to be found in a proper constructionof the various statutory provisions under which the defence can be invoked; Brisson v.

The Queen, (SCC), [1982] 2S.C.R. 227, per Dickson, J., as he then was, at p. 238. 22 As has already been noted, a successful defence of self-defence provides a justification for what would otherwise be an unlawfulact of assault. Under s. 34(1), and indeed under all of the self-defence provisions in the Criminal Code, the force applied in self-defenceis justified if the requirements of the statute are met. 23 It is important to note that it is the force itself, and not the consequence of the force used, which is justified if the limitingconditions of the statute are met.

The only consequences of the application of force in self-defence, which are specifically mentioned inthe statute, are death and grievous bodily harm. Those consequences are relevant only to the extent they are intended. 24 The force which is justified under s. 34(1), if all of the conditions for such justification are met, is force which has beenintentionally applied, in the sense that it results from what the law recognizes as a volitional act. The accidental application of forceneeds no defence.

The only state of mind which the sub-section recognizes as relevant, apart from the basic one required for theintentional application of force, is the ulterior intention to cause death or grievous bodily harm. If either of those specific intentsaccompany the volitional application of force used in self-defence, the defence described in s. 34(1) is lost.

[131] In Kandola, at paragraphs 27 and 28, the court offers a further analysis of the law of self-defence: 27 The second reason which leads me to conclude the trial judge erred in his approach to s. 34(1), is the fact the law has longrecognized the need for a tolerant approach to the objective measurement of proportionate force in genuine self-defence cases. In Brownv. United States (1921), 256 U.S. 335, at p. 343, Holmes, J., noted: Detached reflection cannot be demanded in the presence of an uplifted knife. A similar expression of opinion was voiced by Lord Morris in Palmer v. The Queen (1971), 55 Cr. App.

R. 223, at p. 242 of the report: If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to anicety the exact measure of his necessary defensive action. The same principle has been adopted and applied by Canadian courts: see, for example; Rex v. Ogal (1928), (AB CA),50 C.C.C. 71 (Alta. S.C. App. Div.), at pp. 73-4, Regina v. Preston (1953), (BC CA), 106 C.C.C. 135 (B.C.C.A.), at p.140, Regina v. Antley, (ON CA), [1964] 2 C.C.C. 142 (Ont. C.A.), at p. 147, and Regina v. Baxter (1975), (ON CA), 27 C.C.C. (2d) 96 (Ont.

C.A.), at p. 111. 28 It would be inconsistent with this principle to expect a person, who is under an attack of sufficient magnitude to warrant resort topotentially deadly force, even though no deadly intent is present, to stop and reflect upon the risk of deadly consequences which mightresult from taking such defensive action. [132] The new Code provisions in s. 34(1)(

a) pose the first question for me to consider. I have concluded that both Levi Rice andNigel Ringuette had reasonable grounds for believing that force was being used against each of them by the Complainant.

Theirrespective beliefs, both subjectively and objectively, obviously flowed from the physical blows being received by Levi Rice andspecifically with respect to Nigel Ringuette from the Complainant turning his aggressive actions towards Nigel Ringuette whenRinguette sought to pull the Complainant off of the vanquished Levi Rice. [133] I can also conclude with respect to Nigel Ringuette that his initial intervention involving his attempts to pull the Complainant offof Levi Rice was based on reasonable grounds, both subjectively and objectively, that force was being used and continuing to be usedagainst Levi Rice by the Complainant.

That force rendered by the Complainant against Levi Rice occurred beyond a point that Levi Riceposed any reasonable threat to the Complainant. [134] Furthermore, I can also conclude that at the time Nigel Ringuette was being set upon by the Complainant at the bottom of thestairs, that he had reasonable grounds, both subjectively and objectively, for believing at least a threat of force was being made againsthim by the Complainant.

There is also sufficient evidence for me to conclude that when the Complainant pursued Nigel Ringuette afterhe had thrown him to the bottom of the front stairs, that the Complainant's intention was to use force against Nigel Ringuette. [135] The new s. 34(1)(

b) of the Code poses the second question for consideration. I have concluded that anything that can bedetermined to be an assault committed by Levi Rice on the Complainant during the altercation was either in defence of himself or in theprotection of his sister from the Complainant.

Similarly, Nigel Ringuette's intervention in pulling the Complainant off of Levi Rice wasin defence of Levi Rice who had been rendered helpless by the blows of the Complainant. [136] I must now consider Nigel Ringuette's action of pulling out the pocketknife and positioning it between himself and theComplainant and the resulting stabbing. I accept that Ringuette did so produce and position the knife for the purposes of defending orfor protecting himself as contemplated by the new s. 34(1)(

b) of the Code. I must now consider whether that act was reasonable in thecircumstances and in doing so consider the non-exhaustive factors set out in the new s. 34(2) of the Code. (

a) The nature of the force or threat faced by Ringuette was significant as evidenced by the injuries already inflicted on Levi Rice bythe Complainant. (

b) The use of force was very imminent as Ringuette was within reach of the Complainant and Ringuette was injured and unable toeasily escape from the attack. Ringuette had nobody to assist him, and he clearly had little effective means left to respond to the potentialuse of force against him. (

c) Ringuette became involved in an attempt to rescue Levi Rice from further injury. He was clearly a bystander in the initialaltercation between the Complainant, on one hand, and Janelle and Levi Rice, on the other. (

d) Ringuette was armed and the Complainant was not. (

e) The Complainant was somewhat bigger and heavier than Ringuette. Clearly, the Complainant was able to use his physicalcapabilities in a devastating fashion when fighting with Levi Rice and when he tossed Ringuette out of the House, down the stairs,thereby injuring Ringuette sufficiently to reduce his ability to defend himself in the manner that he had previously utilized, that is, by the

"hockey dance" technique. (

f) There appears to be a lack of confrontational history between Ringuette and E.C., and no history of force being used by one against the other except immediately preceding the stabbing. (

g) The stabbing here was not accidental on the part of Ringuette. The evidence supports the conclusion that the production and the placing of the knife by Ringuette between himself and the Complainant was an intentional defensive action and such decision was made immediately prior to the Complainant threatening or continuing to apply force. I find that the response of Ringuette was proportional in the circumstances, especially in light of the injuries that Ringuette had just sustained and the further injuries that he was likely to receive by the continued attack.

Nigel Ringuette did not have deadly intent and he did not have time "to stop and reflect upon the risk of deadly consequences which might result from him taking such defensive action," namely, the pulling of and the use of the knife (see Kondola at paragraph 28). (

h) On the whole of the evidence, there is nothing to suggest that Ringuette knew or had any basis for believing that the use or threat of force by the Complainant was lawful. Conclusions [ 137 ] Having regard to my findings and the analysis set forth above, and having considered s. 34(2) factors noted above, I conclude that Nigel Ringuette's use of the knife and the stabbing of the Complainant were justifiable acts of self-defence.

An acquittal should be entered against him on Counts 1 and 2. [ 138 ] Having considered all of the evidence as against Levi Rice and based upon the submissions of Crown and defence, I acquit him on Count 3. [ 139 ] I have also concluded that there is not sufficient proof beyond a reasonable doubt to convict Levi Rice on his own with respect to the charges in Counts 1 and 2. [ 140 ] Also, having acquitted Nigel Ringuette, who is the principal on Counts 1 and 2, I cannot convict Levi Rice as a party to those offences.

Accordingly, Levi Rice is acquitted on Counts 1 and 2 on that basis. [ 141 ] There will be orders accordingly. [ 142 ] MR. HERTZBERG: Thank you, Your Honour. [ 143 ] MR. SCREECH: Thank you, Your Honour. [ 144 ] THE CLERK: We have other matters to deal with. We have the 3A. There's an outstanding warrant for Levi, and 2A is outstanding as well. [ 145 ] MR. PAZIUK: Thank you, Your Honour. Crown directs a stay of proceedings on those two informations. [ 146 ] THE COURT: A stay of proceedings is recorded. (REASONS CONCLUDED)