R. v. R.D.L. Date:, 2018 BCPC 27

Citation: R. v. R.D.L. Date: 20180209 2018 BCPC 27 File No: 9083 C2 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.D.L. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: L. Berman Counsel for the Defendant: M. Stern Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: January 8, 9, 25, 2018 Date of Judgment: February 9, 2018 [ 1 ] R.D.L. is charged with two counts arising out of the same incident on July 11, 2016, those being assaulting Travis Quick with a knife and assaulting him and thereby causing him bodily harm, contrary to sections 267 (

a) and 267(

b) of the Criminal Code , respectively. [ 2 ] There is no issue that on that day, R.D.L. stabbed Travis Quick in the back with a knife and that Travis Quick suffered bodily harm as a result. The sole issue to be determined is whether or not R.D.L. took these actions in defence of another person, in particular, his father, pursuant to

section 34 of the Criminal Code , such that he should be found not guilty of these offences. CIRCUMSTANCES: [ 3 ] There were numerous inconsistencies and much unreliable evidence contained in the testimony at trial. However, in general terms, the following description provides at least the broad strokes of what happened, sufficient to give an overall picture. [ 4 ] R.D.L., who was 17 at the time, was an acquaintance of Travis Quick who was 20. They had met a couple of months earlier through a common friend.

Evidence has been provided to the court by R.D.L. that suggests that Travis was trying to get R.D.L. to traffic in drugs for him and that, as a result of that effort, Travis believed that R.D.L. owed him some money - perhaps thirty-five dollars. Another explanation put forward by Travis is that he had paid off a debt of twenty dollars to the common friend that had been owed by R.D.L., and that Travis was trying to be repaid thirty-five dollars from R.D.L., the extra being for the time the debt was outstanding.

Neither witness was particularly forthcoming about the circumstances of the debt and neither explanation really held together. It is obvious that the evidence of both R.D.L. and Travis is highly unreliable regarding this history, although it is agreed by both of them that they had a dispute over the payment of a relatively small amount of money. Given the problems with this part of the evidence, it is impossible to know with any certainty what was going on between these two young men.

For the purpose of this decision, it is unnecessary for the Court to make specific findings regarding these earlier matters other than that there was a disagreement between them, perhaps over money. [ 5 ] On July 11, 2016, Travis spoke with R.D.L. by telephone about this apparent debt, telling him he was coming to his house to confront him. Shortly thereafter, Travis indeed arrived at R.D.L.’s house, bringing with him two other friends, Sam and Matt. Travis knocked at the door and R.D.L. answered it. They had an argument at the door during which angry and threatening words were exchanged.

R.D.L.’s father then came to the door where he was told that his son owed Travis thirty-five dollars. The father told Travis that he would pay him Thursday and slammed the door on Travis and his friends. [ 6 ] Travis, Sam and Matt then turned to leave and walked through the yard toward the street. Travis paused, appearing to take photos of the house and a parked vehicle in the driveway. Seeing this, R.D.L.’s father left the house and verbally confronted Travis, demanding that he delete the photos. The confrontation took place outside the residence, ultimately ending on the roadway.

At some point, perhaps with the father or perhaps later, R.D.L. also left the house and approached his father and Travis. His older brother, T.L., came with him. While Travis and R.D.L.’s father were engaged in a physical fight, R.D.L. came up behind Travis and stabbed him once in the lower back/upper buttocks area with a knife he had brought with him from the house. [ 7 ] After a few moments, R.D.L. and his family returned to the house. Travis’s friends attended to him, putting a clothing item over the bleeding, and they left the scene in Sam’s car.

Sam drove him directly to the hospital where he was admitted and treated. The wound was serious, particularly because of the internal bleeding it caused, requiring Travis to remain in the hospital for six days, and having to return the following day for another five days.

SECTION 34 - SELF-DEFENCE: [ 8 ] The relevant sections of the Criminal Code read as follows: 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. [ 9 ] In this case, Crown Counsel agrees that the ss. 34(1) (

a) and (

b) are not in issue, but that “(c), if the act is reasonable in the circumstances”, remains very much in issue. THE EVIDENCE: [ 10 ] The evidence of each of the witnesses will be reviewed in much greater detail in order for the Court to make critical findings of fact necessary for consideration of the defence of self-defence. [ 11 ] Travis, 20 years of age at the time, testified that he initially met R.D.L. through another friend. They had frequent contact, perhaps twice weekly or so, over the next few months. On July 11 th , he called R.D.L. about money he believed R.D.L. owed him.

In the course of the conversation, they became aggressive and insulting with each other. The conversation ended according to Travis, when R.D.L. invited him to come to his house to fight him. Travis said that he accepted the challenge and rounded up two friends, Sam who could drive him there, and Matt who would provide extra protection. Travis said he went to R.D.L.’s house to fight him, not to collect the debt. [ 12 ] He testified that on arrival, he and his friends went to the house and he knocked on the door.

After a short time R.D.L. answered the door and they got involved in another argument perhaps about where they would fight, and which included swearing more at each other. After a period of time and during this back and forth, R.D.L.’s dad came to the door, where he found out that R.D.L. apparently owed Travis some money. He asked how much and when told thirty-five dollars, said he would pay Travis on Thursday. The dad then slammed the door shut. [ 13 ] At this point Travis was angry as he had not had his fight with R.D.L. and he had not received any money. He felt as though his time had been wasted.

He and his friends turned and walked down the sidewalk toward the street. On the way, hoping, “to get in the heads of” R.D.L. and his father, he either took or pretended to take photos of the front of the house and of a car parked in the drive. He also spat towards the house from the area of the sidewalk. [ 14 ] According to Travis, he and his friends continued walking away as R.D.L., his dad, and his brother T.L. walked out of the house. Travis stopped about one house away from R.D.L.’s house and watched as they walked up to him.

R.D.L.’s dad was angry and came up to Travis, nose-to-nose, or within one foot of him. R.D.L.’s dad and Travis argued with the dad demanding that the pictures be deleted. The dad was also angry about the spitting. After perhaps a minute Travis pushed the dad, using two hands on his shoulders, to get him to move back as he felt the dad was “almost walking on top of [him]”. R.D.L.’s dad stepped back then swung at Travis, hitting him in the head and the two began to physically fight. Almost immediately, R.D.L. came up to Travis from behind, and stabbed him with a single blow in the lower back/buttocks area.

By this time, they were in the middle of the street, two or three houses down from R.D.L.’s house, in the direction of where their car was parked. [ 15 ] Travis initially thought he had simply been struck then he became aware of blood pouring out. One of his friends wrapped a shirt around him and they went to the car so Sam could drive him to the hospital. The medical report from his initial admission to the hospital was filed as an exhibit, confirming the injury. [ 16 ] In cross-examination, Travis denied threatening R.D.L. saying he would slit his throat if he did not pay or would use a machete on him.

He also acknowledged that in a statement that he gave that same day, he stated that after he and his friends had started leaving and he had taken or pretended to take photos, that, “they all came outside” and started confronting them loudly. Travis also commented to one of his friends that they should “punch these kids out”. When it was suggested to him that he was not shrinking away from a confrontation, he replied that they were walking away and walking off the property when they were confronted. [ 17 ] The next witness was Sam, then aged 20.

He and Travis had been friends for many years, primarily through hockey and had been in regular contact until after this incident although their lives had recently taken different paths. On July 11 th , he testified that Travis telephoned him asking for a ride. He did not explain why until after they arrived at R.D.L.’s house. They picked up Matt, another friend of Travis, who Sam had not met before that day then drove to R.D.L.’s house.

They parked in a nearby cul-de-sac as there was no street parking available closer to the house. [ 18 ] On arrival, the three went to the house, with Sam and Matt hanging back slightly. At that time, Travis told Sam that R.D.L. owed him some money and that was why he had gone over. R.D.L. came to the door and he and Travis began arguing over money. Both of them had raised voices and were swearing. Sam described R.D.L. as more defensive than aggressive, although not calm, and Travis as being more offensive and a little aggressive.

When Sam heard that this was all about a small amount of money, and after the door had closed, he said that it was a waste of time to be there and suggested they leave. He did not know who had closed the door. They turned and started walking away and Travis took some pictures. As Travis took pictures, R.D.L.’s father came out of the house yelling at Travis about why he was taking pictures. They continued walking away towards the car but the dad came right up to Travis, within a foot of him, and was very aggressive toward him with a raised voice.

At that time, they were about ten feet off the property by the edge of the road or sidewalk. There was then a verbal confrontation between the two that lasted about one to one and a half minutes. During this time R.D.L. and T.L. came outside. [ 19 ] He described Travis then pushing R.D.L.’s dad away a little bit, the dad swinging at Travis who ducked, then R.D.L. stabbing

Travis. Sam testified that Travis and the dad were on the roadway, about fifteen feet from the property line in front of a neighbour’s house at the time of the stabbing. [ 20 ] Sam testified that the dad came out of the house first, with R.D.L. and T.L. coming out 30 to 50 seconds later, more walking than running. He said that R.D.L. stabbed Travis approximately two minutes after coming outside. [ 21 ] Sam observed blood gushing immediately from Travis’s wound.

He helped him put a shirt on it for pressure then got him back to the car to take him to the hospital. [ 22 ] In cross-examination, Sam stated that he realized he was being used as “muscle” only after arriving at the house and after R.D.L. opened the door. He and Matt were standing back about five feet, “just in case”. He agreed that the argument was about money, with R.D.L. offering twenty dollars and Travis demanding thirty-five. He also agreed that Travis threatened R.D.L. physically, but strongly denied his making any threats about slitting his throat or decapitating him.

He recalled a man coming to the door and swearing at them to get off his property. He did not recall him promising to pay any money. After that, the door was closed. [ 23 ] He then described the dad coming out and screaming at them about deleting the photos. He said that Travis refused and that they were swearing at each other. He said that they were already trying to leave when the Dad came out and confronted them, stopping them from leaving. He testified that R.D.L. came out 15-20 seconds after his father, while his father was walking toward Travis and his friends.

He described the final incident as Travis pushing the dad, only enough to move him back, dad swinging at Travis, Travis ducking, then dad pushing Travis as R.D.L. stabbed him from behind, all as a single sequence of events. He added that during this incident, the dad was still yelling about the photos. [ 24 ] A police officer testified that he attended at the scene shortly after the incident and located a blood trail that began two houses south of R.D.L.’s house on the east side of the road and about one meter east of the road’s yellow dividing line.

The blood trail continued on an angle across the road to the west sidewalk, then south along the sidewalk, in the direction of Sam’s parked car. The officer was unable to locate any blood closer to R.D.L.’s house. [ 25 ] A second police officer testified about the circumstances of taking the initial statement from Travis at the hospital and the photographs he took of Travis. He was the final Crown witness. [ 26 ] R.D.L. and his father both testified for the defence. [ 27 ] R.D.L. had just turned 17 shortly before this incident. He lived at home with his parents and 24-year old brother.

About six months earlier, his father had had surgery to repair one of two dissecting aortas; the second was not reparable. In a meeting with the doctor, the family was told of dad’s serious medical issues and were advised that he could not pick up anything heavier than a milk jug or get stressed out raising his blood pressure, or he might literally drop dead.

As a result of this medical advice, the dad could no longer work and R.D.L. had to help him with assorted family chores including pushing the buggy when grocery shopping and carrying the groceries into the house. [ 28 ] R.D.L. testified that he first met Travis about three months earlier through a mutual friend. He described him as an associate rather than a friend. He said that they had a dispute about selling drugs and that Travis insisted that R.D.L. pay him some money.

R.D.L. did not have any money and told Travis that he would pay him when he had some. [ 29 ] On July 11 th , R.D.L. was at the gym and after he was finished, noticed that he had some missed calls from the same number. When he was leaving, the phone rang again with the same number and he answered. The caller was Travis. He sounded irritated and spoke at a fast pace. They argued with each other and swore at each other then, according to R.D.L., Travis threatened to beat his head in or come over and slit his throat. R.D.L. said he was scared and hung up, then drove home to tell his dad that Travis was coming over.

He briefly described the problem to his dad, and then he heard a knock at the door. [ 30 ] R.D.L. answered the door and saw Travis with two other males he did not know. Travis demanded to know when R.D.L. was going to pay him and R.D.L. said he would when he had the money. R.D.L. described Travis as speaking very quickly and being hard to understand. He said that Travis threatened to beat his head in, but does not recall his response. This continued for four to five minutes. [ 31 ] R.D.L.’s dad came to the door and he told the three males to get off his property.

Travis told him that R.D.L. owed him some money, $35, and the dad told him he would pay him on Thursday, and to leave the property. The dad then slammed the door. [ 32 ] R.D.L. testified that he and his dad went upstairs (from the split level entry), where they could see that the three men were still lingering with Travis apparently taking some photos. The dad went outside to tell them to leave the property while R.D.L. tried to push the dogs downstairs, apparently to keep them from following the dad. R.D.L. told his dad not to leave the house but he left anyway. About 30 seconds later, R.D.L. looked out.

By that time, his dad had approached Travis. He could see that Travis and his dad were toe to toe with each other, about one foot apart, at the end of the driveway. He could hear them arguing, both using loud and aggressive tones. He then saw Travis push his dad and saw them punching at each other. R.D.L. went to the kitchen and took a tomato knife from the table. The knife had a four-inch smooth blade. He said he took the knife, “because three big men were on my Dad and I was scared that they had weapons or my dad could die.” He was afraid that any force used against his dad could be fatal.

He ran out of the house to where Travis and his dad were. He said that when he approached, Travis and his dad were hitting each other. R.D.L. then stabbed Travis once in the middle of his lower back. [ 33 ] R.D.L. agreed that he at no time saw Travis or either of his friends with any sort of weapons, but said that he was afraid Travis might have a knife because he had threatened to slit his throat. [ 34 ] R.D.L. said he became aware that his older brother was outside only after he had stabbed Travis.

After the stabbing, they stood around for a few moments while Travis and his friends left then they went back inside. He was unable to say what he did with the knife. He testified that the fight took place at the end of the driveway. He realized that his dad was okay because he was able to walk back to the house with them and to talk to them.

[ 35 ] R.D.L. testified that he did not call the police when Travis first said he was coming over to his house because he was scared because he was involved with drugs. He also said that once he saw the confrontation outside, he did not tell Travis to stop because his dad was unwell or otherwise try to get his dad to return inside. He did not consider any other intervention than using the knife. He was unable to explain how his brother came to be outside but said that he did not ask him for help. It is unclear where the brother came from except that perhaps he had been sleeping. [ 36 ] R.D.L.’s father testified.

His demeanour while testifying showed him to be a difficult, argumentative and challenging witness. He frequently had to be redirected during his testimony as his answers were unresponsive to the questions asked. He testified about his medical condition as set out above, as well as the residual effects of a head injury and other injuries suffered in an ATV accident twenty years earlier.

He acknowledged that he had been advised to keep his blood pressure as low as possible, to stay calm, and to not lift anything of any weight. [ 37 ] The dad testified that on July 11 th , R.D.L. went out to the gym, and his other son, T.L., had come by the house. He received a phone call from R.D.L. who was on his way home from the gym telling him that “trouble is coming”. Once he arrived home, R.D.L. told his dad that he owed Travis some money and that Travis was hassling him. The dad heard Travis come to the door and could hear the interaction between Travis and his son. They were “bickering” about money.

Finally the dad went to the door and told Travis he would have $35 for him tomorrow. They argued a bit and then, when one of his friends said, “let’s go”, they left. He did not recall whether or not he closed the door. [ 38 ] He testified that R.D.L. told him that they were taking pictures of the address of the house and of the car parked in the yard. So he went outside to tell them they did not have permission to take any pictures and to delete them. He then described a physical confrontation between himself and Travis that was unlike anything described by any of the other witnesses including R.D.L.

That version was not put to any of the witnesses, Crown or defence, and the Court cannot give it any weight.

After the incident, the dad returned to the house with his two sons, and the older son went to work. [ 39 ] In cross-examination, the dad said that when the three males arrived at the house, he was concerned about his son’s safety as well as his own, to a certain extent, saying, “Dying people don’t worry that much about their safety.” He said that he was concerned about the photos because they could provide information about where he lived, who he was and what could be stolen, being particularly worried about the wheels on his car.

As well, with the address, they could send over more thugs. [ 40 ] The dad was arrested by the police on that day, and he was taken to the detachment where he was asked to provide a statement. He refused to give one although he did speak at length with the investigator for over an hour, describing everything he said as “hypothetical”. When asked about some of the contents of the transcript of that conversation, he acknowledged telling the males at the door that the only collateral they would get for the outstanding debt was him, “not smashing their teeth out”.

He acknowledged thinking that the three males were about the same age as R.D.L., that is, about 17. He also indicated in the statement that he thought that any threats made by Travis were hollow threats. [ 41 ] As noted above, the dad’s evidence, when considered in the context of all of the other evidence, including that of his son, was manifestly unreliable. As a result, extreme caution must be exercised in accepting any part of it. CASES: [ 42 ] The following cases were provided on the issue of self-defence: • R. v. Williams 2013 BCSC 1774 , Romilly, J • R. v. S.L. 2016 BCPC 2 , Koturbash, J • R. v.

Loo 2016 BCPC 408 , Woods, J • R. v. Doak 2017 BCPC 52 , Dyer, J [ 43 ] These cases provide a review of the law of self-defence, with particular emphasis on the changes which came into effect on March 11, 2013. Without going through them in detail, several factors are clear. [ 44 ] Firstly, when a defence is raised by the accused, it must be disproven by the Crown beyond a reasonable doubt. (See Williams , para’s 37 and 38) However, as noted in R. v. S.L. , para 7 , “…this does not mean the Crown is required to prove beyond a reasonable doubt that the accused’s conduct fails on every element of the defence.

It suffices if the Crown can prove beyond a reasonable doubt that any one of the elements is not established.” The decision continues at para 8, stating, “Judges like me are not to look at the consequences of the accused’s actions in terms of resulting injuries, but rather, the reasonableness of the force used in repelling the complainant’s attack which was occurring.” [emphasis mine] In addition, at para 9, the court states, “…an accused’s actions can only be justified if he or she is repelling force with force. In other words self-defence cannot be used as a ‘cloak or a means to injure someone’.

Similarly, if someone acts in anger or frustration to retaliate, rather than to defend himself or herself, the defence has no application.” [ 45 ] It should be remembered that in this case, the force was allegedly used, “for the purpose of defending [another] person from that …force”, (s. 34(1)(b)), rather than for defending himself, that person being R.D.L.’s dad. [ 46 ] Secondly, the principles to be applied in assessing when self-defence arises are essentially now codified in

section 34 of the Criminal Code , including a non-exhaustive list of considerations when assessing whether or not the force used was “reasonable in the circumstances”. ( s. 34(1) (c)) ANALYSIS: [ 47 ] The Crown concedes they cannot disprove beyond a reasonable doubt, the preconditions set out in sections 34(1)(

a) and (

b) of

the Code. That is to say, they agree that they cannot prove beyond a reasonable doubt that R.D.L. did not believe, on reasonablegrounds, that force or a threat of force was being made against his dad.

In addition, they agree that they cannot prove beyond areasonable doubt that the act by R.D.L. of stabbing Travis was not for the purpose of defending or protecting his dad from the use orthreat of force by Travis. [48] The issues that remain are, firstly, analysis of the evidence to determine what actually happened that day, and why, afterassessing the credibility and reliability of the testimony of the witnesses, and secondly, the application of s. 34(2) to those findings.

Indetermining the credibility of the witnesses where defence evidence has been called, the Court must also be mindful of the decision of R.v. W.D. (SCC), [1991] 1 S.C.R. 742, although it is not necessary that it be applied in a formulaic fashion for it to still berespected. That is the situation here. [49] As mentioned above, several aspects of the testimony of some of the witnesses are simply not reliable. That applies mostsignificantly to the testimony of the dad.

His description of the incident veers so far from the evidence of all of the other persons whowere there, including R.D.L., that it is not capable of belief. In addition, no other witness was questioned about this version of events. As such, I reject the bulk of his evidence. What his evidence and his manner of testifying did disclose however, was a hostile andaggressive individual who was unable to restrain himself, even in the confines of a courtroom where his son was on trial for seriouscharges.

His refusal to cooperate with the police in their investigation of the incident that evening is further evidence of this attitude. [50] In addition, I am giving very little weight to the evidence regarding the source of the conflict between R.D.L. and Travis,including the reason for the initial conflict between them at the door. It seems clear that it was the result of R.D.L. apparently owing amodest amount of money to Travis but beyond that, I do not accept any of the descriptions as being reliable or credible.

I also accept thatTravis was the aggressor in the conflict primarily based on the fact that he came to R.D.L.’s house and brought two other males with himas a form of back-up. [51] I find also that after a confrontation at the entry door of the house, that the dad intervened, told Travis that he would pay him theamount of money owing, and then slammed the door on Travis and his two friends. It should be noted that although the argumentbetween R.D.L. and Travis was loud, with them each swearing at each other, that at no time was there any effort made by Travis or hisfriends to enter the house.

When the door was closed, they turned and walked in a direction to leave the property. [52] Instead of leaving directly, Travis stopped and either pretended to or actually took photographs of the house and a car parked inthe driveway. He stated that was to “get in the heads” of R.D.L. and his dad. For whatever reason, the dad decided to further inserthimself into this dispute by leaving the house and confronting Travis, demanding he delete the pictures. He did this aggressively,coming right up to Travis - within one foot - and swearing at him.

This description of his behaviour by Travis and Sam is highlyconsistent with the dad’s behaviour in the courtroom during the trial. It seems unlikely that R.D.L. did not know of his dad’s propensityto behave in an aggressive and confrontational manner, although that was not addressed directly in the evidence. [53] In his own evidence, the dad said he did not give any particular consideration to his fragile health before engaging with Travis. He was not asked if R.D.L. ordinarily tended to show concern for the state of his health.

Nonetheless, if he thought he was engaging inrisky behaviour at the time, he did not let those thoughts deter him from such apparent aggression. The hot-headed nature of the dad’sactions are all the more clear when one considers that it was obvious that Travis and his friends already knew the address and thedescriptions of the cars, because they were there. There was absolutely nothing to be gained by having those photos deleted. [54] One of the discrepancies in the evidence is the precise location of the confrontation between the dad and Travis.

Basedprimarily on the evidence of Sam as well as the physical evidence, I find that by the time the dad came up to Travis, he was already offthe property and walking in the general direction of the car. They continued to move in that direction as the argument continued. By thetime the stabbing occurred, they were about two houses away from R.D.L.’s house, near the middle of the street.

This location isconfirmed by the start of the apparent blood trail located by the police, reinforced by the description of blood “gushing” from the woundimmediately. [55] On the basis of all of the evidence, I find that the push that Travis gave to the dad was of limited force, for the purpose ofgetting the dad to move away from him, rather than to begin a fight. However, once the dad swung back at Travis it seems certain that aphysical fight was going to be underway. It was at that moment that R.D.L. intervened and stabbed Travis.

That action brought mattersto a close. [56] In evaluating R.D.L.’s evidence, I accept that he was aware of his father’s medical condition before that day and that he hadtaken on extra home chores because of it. He also knew that because of his dispute with Travis, he was the reason that this trouble hadcome to their house. He had to have known about his father’s disposition and the possibility that he could exacerbate an already tensesituation. In his evidence, he testified that he told his father not to go outside, but that he went out anyway.

It is not clear from theevidence where the older brother was during all of this other than, at the end, he was outside. R.D.L. said he did not know he was thereuntil after the stabbing; Sam said he came outside about the same time as R.D.L.. Nobody suggests that the brother intervened in anyway or was involved in any way with the matter, including doing nothing to stop what was unfolding. [57] Section 34(2) requires the court to consider a number of factors as they relate to R.D.L., his dad and Travis in determining if theact was “reasonable in the circumstances”. R. v.

S.L., para 73, indicates that this section, “makes clear that the reasonablenessdetermination is to be done by applying a modified objective evaluation where the reasonableness of the act is judged bearing in mindthe relevant and appropriate considerations personal to the accused.” [emphasis added] [58] The pertinent factors in this case are as follows:

a) The nature of the force or threat of force made by the complainant: [59] The force used by the complainant, Travis, against the dad was modest, entailing a simple shove. However it cannot beconsidered in isolation from the fact that Travis came over to the home to have a confrontation with R.D.L.. I accept that in the case ofthe earlier encounters that some threats were exchanged although there is no evidence that any were ever acted upon. In addition, the

force must be considered in the context of R.D.L.’s knowledge of his dad’s fragile medical condition which could result in even a modest physical encounter having grave consequences, even if the dad himself gave no thought to these consequences.

b) The extent to which the use of force was imminent and whether there were other means available to R.D.L. to the potential use of force: [ 60 ] According to R.D.L.’s evidence, he called to his father not to leave the house, which comment was ignored. R.D.L. then put the dogs downstairs, seemingly to keep them from following his dad. When he looked outside, he could see Travis and his father in the verbal confrontation about one foot apart. He testified that he then saw Travis push his father and them punching at each other so he then went to the kitchen, obtained the knife and left the house.

He ran up to Travis and stabbed him. He said they were still hitting each other when he went outside. [ 61 ] This evidence stands in contrast with the evidence of Sam who describes the physical confrontation as the shove by Travis, the swing by the dad which Travis ducked, and Travis swinging at about the same time as he was stabbed.

Travis, in his evidence, describes pushing the dad, the dad swinging at him and hitting him in the head and the two of them starting to physically fight at which time he was almost immediately stabbed. [ 62 ] The degree of “imminence” in this case is obviously measured in matters of seconds. Time estimates given by witnesses in stressful situations are notoriously unreliable, so I cannot reasonably find whether 15 to 20 seconds, 30 to 50 seconds or up to one and a half minutes passed, as variously described, between the time that the dad left the house and that R.D.L. left with the knife.

I do not find that they all left the house together. I do find that the verbal confrontation had begun by the time that R.D.L. armed himself and left the house. That being the case, I do find that the use of force was reasonably imminent. [ 63 ] In terms of there being other means available to R.D.L. to respond to the potential use of force, in purely objective terms there were. The most obvious in the moment would be to enlist the aid of the older brother who was there. Somehow the older brother surfaced but there is no suggestion that he became involved in any way.

R.D.L. could have physically intervened himself, without the use of a weapon, or could have tried to persuade his father to back off. There is reason to be uncertain of the likelihood of success of such an effort however. In addition, the time that it would have taken to end the confrontation in one of these ways would have been more than momentary. [ 64 ] When considering the fears that R.D.L. had over the fate of his father, and the danger of the matter being prolonged the question becomes whether or not this meets the modified objective test of reasonableness, in the mind of this particular seventeen-year old.

c) R.D.L.’s role in the incident: [ 65 ] Travis had been the aggressor in the earlier confrontation at the door of the house. He continued to be, at the least, mischievous in pretending to or actually taking photos. It has been argued that that was intended to be intimidation but I do not agree. The aggressiveness then shifted to the dad. I am satisfied that Travis and his friends were leaving the area when he was confronted by the dad. I am further satisfied that any reasonable adult would have known that there was no threat implicit in the apparent taking of the photos.

Nonetheless, the dad chose to involve himself, literally nose to nose. Travis’ shove of the father in these circumstances, to give himself some “personal space” as Sam described it, after the dad had been shouting and swearing at him in his face, objectively did not warrant R.D.L.’s response.

d) Whether any party to the incident used or threatened to use a weapon: [ 66 ] At no time did Travis or his friend’s possess, produce or use a weapon. Counsel on behalf of R.D.L. argues that the comment made earlier that day by Travis that he would slit R.D.L.’s throat justified R.D.L.’s apprehension that the use of a weapon was threatened. In addition, R.D.L. testified to having previously heard a rumour about Travis threatening someone with a machete. There was no evidence as to whether or not that was true and R.D.L. had never seen Travis with either a knife or machete. The only weapon used was the knife wielded by R.D.L. during the stabbing.

e) The size, age, gender and physical capabilities of the parties to the incident: [ 67 ] From the evidence including photos of Travis taken the night of the incident, there did not appear to be a lot of difference in size between Travis and R.D.L.. The dad was older and in poor health, although there is no evidence that his condition would necessarily have been apparent to someone who did not know him.

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: [ 68 ] R.D.L. and Travis were acquainted for about three months before this incident, as the result of their having a mutual friend. The exact nature of their relationship was unclear on the evidence. According to R.D.L., there had been no previous threats directed to him by Travis before that day.

I find that any threats that had been made that day had diffused once the door was slammed on Travis and his friends and they had left the property. f.1) Any history of interaction or communication between the parties to the incident: [ 69 ] This is unclear given the unreliability of all the parties regarding the prior relationship between R.D.L. and Travis. The evidence of R.D.L. is that it did not include any threats before that day. g.) The nature and proportionality of the person’s response to the use or threat of force: [ 70 ] As stated in R. v. S.L. :

94. Self-defence can be available even where the force used outstrips the force being defended against, so long as it was reasonable in the circumstances to use such force to achieve a successful self-defence. 95. While an accused person is not expected to weigh with nicety the force they used in self-defence, and due allowance must be given to the urgent circumstances the accused was in when choosing the force used, acting in self-defence has never been considered a licence for gratuitous escalation, or an unreasonable/excessive response.

Only force commensurate to the threat or necessary to prevent the threat is called for. An excessive reaction can disqualify the defence. 96. Therefore, not only is the relative measure of force an important consideration but so is its necessity. [ 71 ] In addition, in Canadian law, the availability of retreat must also be considered as an option. See R. v. S.L. , para 82 and R. v. Williams , para 84 . In this case, the dad clearly had a choice to retreat, however did not do so.

CONCLUSION: [ 72 ] After reviewing all of the evidence and the application of the appropriate case law and Criminal Code factors as set out in section 34(2) , there remain three pieces of evidence regarding R.D.L. that cannot be ignored when considering if the act was reasonable in the circumstances.

These three matters are firstly, R.D.L.’s taking the time to secure the dogs, secondly, his going to the kitchen to obtain a knife rather than getting something else less lethal like a stick for example, and thirdly, his not seeking the assistance of the older brother who obviously was present. [ 73 ] If R.D.L. had really been so fearful of the possible consequences of a direct encounter between his dad and Travis on his dad’s health, then surely he would have wanted to disrupt the encounter as quickly as possible.

It would seem that this might have been accomplished by calling out to his dad and interrupting him, by letting the dogs run outside, or by calling his brother for help and running outside himself immediately to either get between them or to convince his dad to return to the house. In fact, in Sam’s evidence, he testified that R.D.L. walked, not ran, out of the house, and I accept that evidence.

R.D.L.’s delay in leaving the house, and then only leaving it once he had armed himself with a knife, was the action of someone who was thinking deliberately about his response, rather than acting with such urgency that he was not thinking of his alternatives with nicety. [ 74 ] As a result of these findings, I am satisfied that the Crown has disproven beyond a reasonable doubt that the response to the use of threat of force was proportional in these circumstances, or in other words, I find that the Crown has proven that the force used in stabbing Travis with the knife was disproportionate to the existing threat to R.D.L.’s father. [ 75 ] As such, I find that the Crown has proven both charges and, based on the principles in R. v.

Kienapple , and subject to the comments of counsel , a verdict of guilty will be entered on the charge of assault with a weapon. The Honourable Judge D. Pothecary Provincial Court of British Columbia