HIS MAJESTY THE KING - v. –, 2023 SKKB 79

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 79 Date: 2023 04 19 Docket: CRM-PA-00238-2021 Judicial Centre: Prince Albert BETWEEN: HIS MAJESTY THE KING - and – SPENCER DEAN BIRD Counsel: Kristen L. Hubbard for the Crown Brent D. Little for the accused ___________________________________________________________________________ JUDGMENT LABACH J.

April 19, 2023 ___________________________________________________________________________ INTRODUCTION [ 1 ] The accused, Spencer Dean Bird, is charged that on May 17, 2020, at Ahtahkakoop First Nation [Ahtahkakoop], in the Province of Saskatchewan, he committed an aggravated assault by wounding Paul Ahenakew [Paul], contrary to section 268(2) of the Criminal Code , RSC 1985, c C-46 , and that he did carry a weapon, to wit: a knife, for a purpose dangerous to the public peace, contrary to section 88(2) of the Criminal Code .

Upon being arraigned on these charges, the accused pled not guilty. [ 2 ] His trial began in front of me on September 6, 2022. After three days it had to be adjourned because the accused ended up in the hospital and his counsel contracted COVID-19. His trial was adjourned to February 21-24, 2023 for completion. [ 3 ] At some point prior to the resumption of his trial, the accused and his counsel parted ways and he retained his present counsel, Mr. Little. It is not an easy task to join a trial midstream. New counsel is stuck with the evidence heard to date.

New counsel may very well have questioned witnesses in a different fashion, brought out different points in evidence, or followed a different strategy, but they are not able to now go back and start over nor re-question witnesses. Despite these limitations, Mr. Little has represented the accused very well in these proceedings. [ 4 ] The trial recommenced on February 21, 2023 and has now been completed. In total, nine witnesses testified – seven for the Crown and two for the defence.

For the most part, the witnesses were consistent in their testimony as to what occurred on the evening of May 16 and into the early morning hours of May 17, 2020. Where they differed will be the subject of my comment later in this decision.

[5] In closing argument, the accused accepted that he had wounded Paul on May 17, 2020, at Ahtahkakoop FirstNation. However, he alleged that it occurred in the course of him defending himself, his girlfriend and the house in which it occurred.The Crown took issue with whether the defence of self-defence or the defence of property applied in this case to excuse the accusedwounding Paul.

They acknowledged that if I found they had proven beyond a reasonable doubt that self-defence and the defence ofproperty did not apply, and convict the accused of aggravated assault, the charge of possession of a weapon for a purpose dangerous tothe public peace should be stayed by operation of the principles set out in R v Kienapple, (SCC), [1975] 1 SCR 729[Kienapple]. They also advised that if I acquitted the accused of aggravated assault on the basis that he was defending himself, hisgirlfriend or property, they would not be seeking a conviction on the weapons charge.

FACTS [6] In May 2020, the accused and his girlfriend, Stephanie Aisaican [Stephanie], were staying at Eric Bird’s [Eric]home on the Ahtahkakoop First Nation. Eric was the accused’s brother and the two of them had grown up in this house. The accused hadsince moved to Regina, but he and Stephanie had returned to Ahtahkakoop in March 2020 to visit family. [7] In the late afternoon of May 16, 2020, there was a party on the deck of Eric’s house. There were a lot of peoplethere, including the accused, Stephanie and Paul. Many of the people there were related, and indeed, Paul considered the accused hisgrandfather.

They were having fun, music was playing, many were drinking, and a few were doing drugs. The accused did not havemuch to drink but Stephanie drank one-half of a two litre cooler and smoked some marijuana. Paul shared a half of a 40-ounce bottle ofCaptain Morgan rum with two other people and he may have used some marijuana and/or cocaine. [8] The party ended shortly before midnight. Eric had gone to bed earlier. People started leaving. By midnighteveryone was gone. The accused cleaned up and then he and Stephanie went inside to go to bed.

There were two doors from the deckinto the house – an outer screen door and an inner door. Before going to bed, the accused locked the screen door. The lock on the innerdoor was broken so the accused propped a chair under the doorknob. [9] There was an outside light on, on the deck, and a nightlight on in the kitchen, but other than that, the housewas dark. The accused and Stephanie were staying in a bedroom midway down a hallway from the kitchen to a living room. The door totheir bedroom did not lock. The accused had a steak knife that he would wedge between the door and the frame to “lock” their bedroomdoor.

When the door was not locked, the steak knife sat on a shelf in the closet in the bedroom. The accused did not wedge this knife inthe door frame on the night of May 16. [10] After Paul left the party, it is unclear from the evidence whether he began walking home or went to JessicaBird’s [Jessica] house with his cousin, Lynnette Ahenakew [Lynnette] and others. Paul had a backpack with him when he went to theparty at Eric’s house and at some point he realized that he had left it there. So, in the early morning hours of May 17, he walked back toEric’s to get it. [11] It is at this point that the evidence diverges.

Paul, Stephanie and the accused all give somewhat differingaccounts of what occurred when Paul returned to Eric’s house and immediately thereafter. What occurred is crucial to the applicability ofthe defences of self-defence and defence of property, and I will resolve these differences later in this decision. Suffice it to say that Paulentered the house, was stabbed by the accused, left the house, returned thereafter in a truck and left again. [12] There is no dispute about what happened after Paul left Eric’s home in the truck. He drove to JoanneSarhpwassum’s [Joanne] home and woke her up.

He was bleeding a lot and looked like he was on the verge of passing out. She calledthe police and an ambulance. [13] Corporal McDonald and Constable Tweedie were dispatched to Joanne’s home at 3:37 a.m. on May 17, 2020and arrived five to ten minutes later. Constable Tweedie began applying first aid to Paul. He had a lot of blood on the front and back ofhis shirt. He was having a hard time breathing and was groaning and panicky. She noted a puncture wound on his right breast and asecond puncture wound on the left side of his back by his kidneys.

She tried to keep him awake and calm. [14] An ambulance attended and took Paul to the Shellbrook Hospital where he was airlifted by STARS to RoyalUniversity Hospital in Saskatoon. He spent four days in the hospital. It took some time for his injuries to heal. He still cannot lift heavythings like he used to and his lower back gives him problems when it gets cold. [15] Lynnette, Paul’s cousin, had been at the party at Eric’s on May 16. When the party ended, she went to Jessica’sresidence and later, Lisa Smallboy’s [Lisa] residence, and carried on drinking and enjoying herself.

While at Lisa’s, she got a phone callfrom somebody that there was a fire at her mother’s house. She grabbed her things and drove to her mother’s home. There was no firethere, but she observed a fire burning outside of Eric’s home. She went to the door of Eric’s home and banged on it, but nobodyanswered. Security and the fire department were there so she left and went to Donna Bird’s [Donna] house. [16] She woke Donna up, looking for Paul. She found out that Paul had taken Donna’s truck, so her and Donna begandriving around looking for him. They eventually found him at Joanne’s home.

When they arrived, the police and an ambulance werealready there. Paul was being loaded into the ambulance on a gurney. ISSUES & ANALYSIS [17] The parties agree that the issues in this case are as follows: (

a) does the defence of self-defence apply to excuse the accused’s conduct in wounding Paul Ahenakew; and (

b) does the defence of property apply to excuse the accused’s conduct in wounding Paul Ahenakew? [18] Before moving on to address these issues, I must address the three conflicting versions of the evidence of the

time frame most pertinent to this case, that is, the evidence of Paul, of Stephanie and of the accused as to what occurred when Paul returned to Eric’s home in the early morning hours of May 17, 2020. I will begin by setting out what each of these witnesses testified happened. Paul Ahenakew [ 19 ] Paul testified that when he got back to Eric’s house, the house was dark. He looked around outside for his bag but could not see it. He yelled out “hey”, but nobody answered. He knew that the inner door at Eric’s house did not lock so he opened the window on the screen door, unlocked it, and then opened the inner door.

He did not recall a chair falling over when he opened the inner door. [ 20 ] Paul said that the dining room light was on, but the rest of the house was dark. The accused came out of the dark, stabbed him in his upper front chest and told him to get out. He turned the lights on. Paul told the accused he was just there to get his bag. Paul turned around to go back out the deck door and the accused stabbed him in the lower back. He went out on to the deck and saw his backpack. He grabbed it and turned towards the accused. Paul said, “What’s going on?” and reached out to shake the accused’s hand.

The accused then stabbed his hand with the knife. Paul told the accused to chill out, jumped off the deck and ran away. [ 21 ] Paul said that this all happened fast. He did not have anything in his hands at the house and no weapons with him. He did not threaten the accused or Stephanie. Stephanie was in the house yelling at the accused to “quit”. The accused did not appear to be scared. The accused did not pursue him after he left.

He had only just met the accused and never had any issues with him or Stephanie at the party. [ 22 ] After Paul left, he walked to his mother’s house and asked his younger brother to get him the keys to their mother’s truck. His brother refused so Paul grabbed the keys himself. He got in the truck and drove back to Eric’s residence. He was not certain why he went back except to say that he was being dumb and stupid. He said that the accused was family and he wanted to talk to him about what had happened. [ 23 ] He saw the accused and Stephanie outside Eric’s house.

The accused came out from behind a garbage can and was threatening him. The accused told him to get away before he did it again. Paul swore at the accused and drove away. Paul denied returning to threaten the accused or Stephanie or to start a fire. Stephanie Aisiacan [ 24 ] Stephanie testified that the noise of the door being opened and the chair falling over woke her and the accused. The accused said, “Someone is here”. They got out of bed, put some clothes on and went to the bedroom door. The accused opened the door and they both began walking down the hallway toward the kitchen.

As they went, the accused was saying, “Who is there? What are you doing here?” The accused had a steak knife in his hand. She was scared. [ 25 ] Stephanie said that she saw a guy in the hallway by the kitchen. He was a bit taller than the accused and laughing like a lunatic. The accused said, “How the hell did you get in here?” and “Who is that?” The guy had his hand behind his back and kept laughing. The accused threw a hammer at the guy and it bounced off his chest. As her and the accused got closer to the kitchen, she recognized the guy in the house as Paul Ahenakew.

Paul said he had brought some weed and wanted to get high with them. She said that she went back to the bedroom and got their stuff together. She did not see the accused stab Paul. She heard the accused yelling at Paul and telling him to leave. When she came out of the bedroom, Paul was gone. [ 26 ] Stephanie did not hear Paul say anything about a backpack. She could not say that Paul had anything in his hand or threw anything at the accused. She does not know where the accused got the hammer.

Paul did not threaten her, was not violent with her, did not follow her into the bedroom, and never stopped her or the accused from leaving the house. She felt threatened when he broke into the house, was scared and wanted him out of the house. [ 27 ] Stephanie said that after Paul left, her and the accused went to his sister, Wanda’s house. Wanda would not let them in. As they were sitting on the edge of the bush, they saw Paul return to Eric’s in a truck. He was driving around crazy, yelling and taunting. She saw smoke. Then she saw Paul pouring gas on the grass outside Eric’s house.

The Accused, Spencer Bird [ 28 ] The accused testified that he and Stephanie were sleeping when they were awoken by a loud noise. He believed it was someone opening the door to the house and the chair falling over that he had propped against the door. He got up, put his sweat pants and shirt on and went to the bedroom doorway, wondering who was there. Stephanie got up and put some clothes on too. He said he opened the bedroom door and there was a guy standing in the hallway about one to one and a half feet from him.

He was startled and backed up into Stephanie. [ 29 ] There was a light switch on the wall by the bedroom door, but he did not turn it on. There was a lamp on a side table in the bedroom that was on and the hallway was dim from the nightlight in the kitchen. He could “partly see” but he did not recognize the guy in the hallway. He said, “Who let you in?” And the guy laughed at him. So he said, “Get the fuck out of here, man, you didn’t even knock. I would have let you in if you would have knocked”.

He then reached up and grabbed the steak knife off the closet shelf because he did not know who this guy was. [ 30 ] The accused said the guy chuckled at him again and reached out towards him with his hand. He knew the guy had something in his hand, but he did not know what it was. He could not see what this guy had in his hand, but he felt threatened and that his and Stephanie’s life was in danger. He slashed out with the knife and cut the guy’s hand. He heard something drop. The guy came towards him again, so he stabbed him in the upper left chest area.

He swore at the guy and told him to leave, that he was not wanted there, and that they were in bed. The guy turned around and started walking away. He was chuckling and laughing.

[ 31 ] When the guy got to the kitchen, he stopped and turned around again. That was when he realized in the light from the nightlight that the guy was Paul Ahenakew. Paul then turned around again and left out the deck door. He followed Paul to the door but did not go outside. He did not see where Paul went because it was dark out. He locked both doors and he and Stephanie went back to bed. [ 32 ] The accused said that Paul was only in the house for two to three minutes. He was adamant that he only stabbed Paul twice – in the hand and in the left front chest area.

He did not know how Paul got stabbed in the back but he denied doing that. Paul never said anything to them when he was in the house. He asked Paul to leave at least three times. Paul never answered any of his questions. He just kept laughing. Paul was bigger than him and he felt intimidated, threatened and scared. He did not want anything to happen to him, Stephanie or his brother, Eric. He did not have any problems with Paul at the party the night previous.

He had only met Paul a month earlier for the first time and there were no problems then either. [ 33 ] The accused said that after going back to bed, Stephanie decided they should go to his sister, Wanda’s. They dressed and as they were leaving, Paul returned in his mother’s truck. Stephanie said, “Look, it’s him”. The accused said, “What are you doing, what’s wrong with you?” Stephanie told Paul he was bleeding and said, “Let’s get out of here.” Paul asked if they needed a ride somewhere. The accused said, “Fuck no, not with you” and he and Stephanie walked towards Wanda’s house.

While outside Wanda’s, they noticed Paul flicking a lighter. Wanda let them in and while standing in her front window, they saw a fire outside Eric’s and people showing up. [ 34 ] Having carefully considered these three versions of what occurred at Eric’s home, I do not believe the accused’s testimony as to what happened.

It is inconsistent with pretty much all of what Stephanie and Paul testified to, it belies common sense in a number of respects, and it is self-serving. [ 35 ] By way of example, when the accused was awoken by the noise of someone entering the home, he testified that he got up wondering who it was. But at no point did he say that he called out asking who had come into the house. Instead, he said he asked who let him in. Then he told the intruder to get out. He asked the intruder why he did not knock and said that had he knocked, he would have let him in.

This last comment is a particularly strange comment to make if you do not know who has come into your home and you are scared for your safety. [ 36 ] The accused denied knowing the identity of the person in the house until later in the altercation when the guy was in the kitchen, about to leave. But the aforementioned comments made by the accused are more consistent with him recognizing the fellow in his home when he first saw him in the house. The common-sense inference of telling a person that had they knocked, you would have let them in, is that you knew the person.

This is not a comment you would make to a stranger. [ 37 ] The accused testified that it was not pitch black in the house. He admitted that there was a lamp on in the bedroom that he and Stephanie were in and that the nightlight from the kitchen somewhat illuminated the hallway to the point that he described it as dim. If the intruder was really standing in the hallway, one to one and a half feet from the doorway to the bedroom, the accused would have had no problems recognizing him. He was not, after all, intoxicated or under the influence of drugs.

So either the accused was untruthful about not recognizing the intruder or the intruder was not just outside the bedroom door as the accused would have me believe. [ 38 ] The accused testified that while it was not light enough for him to recognize that the person in the house was Paul, he knew that the guy had something in his hand. If it was that dark that he could not recognize someone standing right in front of him, I cannot accept that he saw that there was something in this person’s hand. Moreover, that “something” was never identified.

The accused said that when he stabbed the guy’s hand he heard something drop, but he never picked it up and there was no evidence a weapon of any nature was recovered from the bedroom doorway area. [ 39 ] The accused testified that the light switch for the bedroom was by the doorway to the bedroom, but he did not turn the light switch on. This makes no sense.

I appreciate that there is no manual for how to deal with these types of situations, but if someone enters your residence, and it is dark, and you do not know who they are, why they are there or what they have in their hands or with them, it is reasonable to expect that you would turn on the lights to not only identify the threat but to possibly scare away the intruder. The logical conclusion to draw from this piece of testimony was that there was no need to turn the light on.

There was enough light that the accused recognized that the intruder was not an intruder but was Paul. [ 40 ] There were other parts of the accused’s testimony that caused me reason to pause. The accused made a point of telling me how scared he was and that he feared for his safety and that of Stephanie’s. Yet his actions were not consistent with someone who was scared. For example, he immediately engaged the intruder. He followed the intruder to the back door but never followed them outside to make sure they were leaving the property.

He locked the screen door after Paul left but did not put the chair back under the doorknob of the inner door. He did not wedge the steak knife into the frame of the inner door or his bedroom door to lock the doors in case Paul tried to return. [ 41 ] The most significant flaw in the accused’s testimony, though, was that he maintained he only stabbed Paul twice, and not in the back. The evidence was uncontroverted that Paul was stabbed three times – in the hand, in the right upper chest area and in the left lower back area.

There was no evidence that Paul had been stabbed prior to returning to Eric’s home to find his backpack or that he was stabbed after leaving Eric’s home but before the police and ambulance attended on him. There was no evidence that Stephanie had stabbed Paul when he came into Eric’s home. The only evidence before the Court is that the accused stabbed Paul. I do not believe the accused when he said that he only stabbed Paul twice and not in the back. That testimony is self-serving; it would hurt his self- defence argument if he admitted stabbing Paul in the back.

I have no hesitation accepting that the accused stabbed Paul three times, including in the back. [ 42 ] Taken together, these problems and inconsistencies lead me to conclude that the accused’s testimony was not credible and where it diverges from that of the accused and Stephanie, I do not accept it. I do not believe his evidence as to what took place in Eric’s home in the early morning hours of May 17, 2020.

[43] What I do accept occurred at Eric’s residence is gleaned from Paul’s testimony and Stephanie’s testimony.While both of them were consuming alcohol and drugs that evening, but for a few points, their respective testimonies are consistent witheach other. [44] Based on their evidence, I accept that Paul returned to Eric’s house in the early morning hours of May 17, 2020to retrieve his backpack. He was not able to see it on the deck so he assumed it was in the house. He knew that the lock on the inner doorwas broken. He also knew how to unlock the screen door.

As he proceeded to do that, he knocked over the chair that the accused hadpropped against the inner door. [45] The noise of the chair falling over woke the accused and Stephanie who were sleeping in a bedroom down ashort hallway off the kitchen. Wondering who was in the house, they both got out of bed, put their clothes on and went out into thehallway. On the way out of the bedroom, the accused grabbed a steak knife that was on the shelf in the closet. Stephanie was scared. [46] Meanwhile, Paul was in the kitchen looking for his backpack. There was a nightlight on in the kitchen providingsome illumination.

When the accused and Stephanie came out of the bedroom, they saw a guy at the end of the hall in the kitchen. Theywalked toward him and when they got to the kitchen, they recognized that it was Paul. [47] When Paul noticed them, he told them he was looking for his backpack and that he had some marijuana andwanted to get high with them. Stephanie was not interested in getting high, so she went back to the bedroom. The accused was upset Paulwas in the house and began yelling at him, telling him to get out. Paul laughed at him and reached out with his hand to shake theaccused’s hand.

The accused stabbed Paul in the hand and then in the upper chest area. Paul told the accused to “chill out” and turned toleave. As he was walking towards the deck door, the accused followed him and stabbed him a third time in the lower back. As Paul wentout the deck door, he noticed his backpack laying on the deck. He grabbed it, jumped off the deck and ran away. [48] This whole incident occurred quickly. Paul did not have a weapon or anything in his hands. He did not threatenthe accused or Stephanie, throw anything at them or accost them.

I do not accept Stephanie’s testimony that before the stabbinghappened, the accused threw a hammer at Paul and hit him in the chest. Paul did not testify to this, he did not complain of any bruising orother injury to his chest besides being stabbed in his upper chest area, and the medical evidence filed did not speak of other bruising orinjuries to Paul’s chest. Moreover, there was no evidence how the accused ended up with a hammer in his possession. [49] After Paul left, he went to his mother’s home. He got the keys to his mother’s truck and drove back to Eric’shouse. He had been stabbed and was mad.

As he put it, he was being dumb and stupid. [50] When he arrived back at Eric’s, the accused and Stephanie were leaving the house. The accused began yelling atPaul, and Paul was yelling back at him. The accused and Stephanie walked away in the direction of the accused’s sister, Wanda’s house.As they were walking away, Paul was still yelling at them and taunting them from the truck. Wanda only lived a short distance away.When they got to her home, they could see Paul still at Eric’s. He was now outside the truck pouring gas on the ground outside thehouse.

Paul lit the gas on fire and drove away. [51] The accused and Stephanie spent the rest of the night at Wanda’s and in the morning, they drove back to Regina.They did not report the matter to the police. The accused was a parole violator at the time. [52] Having determined this to be what took place in the early morning hours of May 17, 2020, I turn now to theissues of self-defence and defence of property. (

a) Does the defence of self-defence apply to excuse the accused’s conduct in wounding Paul Ahenakew? [53]

Section 34 of the Criminal Code sets out the defence of person. An accused is justified in acting in defence ofthemselves or another person if the following three requirements are met: (

i) the accused must believe on reasonable grounds that force was being used or threatened against them or anotherperson; (ii) the purpose of the accused committing the offence must be to defend or protect themselves or another person fromthe use or threat of force; and (iii) the accused’s actions must be reasonable in the circumstances. [54] The first requirement, referred to as the catalyst, considers the accused’s state of mind and the perception ofevents that led them to act. The accused must believe on reasonable grounds that force or a threat of force was being used against them oranother person.

The test is what would a reasonable person with the characteristics and experiences of the accused perceive? The secondrequirement, called the motive, considers the accused’s purpose in committing the act that constitutes the offence. It is a subjectiveinquiry. The motive must be to protect or defend one’s self or another and not for the purpose of vengeance. The third requirement, theresponse, examines how the accused responded to the use or threat of force. The question to ask is what would a reasonable person havedone in the circumstances?

See R v Khill, 2021 SCC 37 at paras 52-67, 462 DLR (4th) 389. [55] Where the accused asserts they were defending themselves or another, there must be an air of reality to thedefence. If there is an air of reality to the defence, then the defence will succeed unless the Crown proves beyond a reasonable doubt thatone of the three requirements has not been made out. See R v Hebert, (SCC), [1996] 2 SCR 272 at para 25 and R vRandhawa, 2019 BCCA 15 at para 34, 371 CCC (3d) 177. [56] In the present case, the Crown acknowledges there is an air of reality to the defence of person.

However, theyargue that the accused could not have reasonably believed that Paul threatened to use force against him or Stephanie and, secondly, thatthe accused stabbing Paul three times, and especially in the back as he was leaving, was not reasonable.

[ 57 ] The defence disagrees. They argue that Paul broke into the home the accused and Stephanie were staying in, Paul was acting strangely, and the accused felt Paul had something in his hands, and he was genuinely concerned for his and Stephanie’s safety. His belief that Paul was about to use force on them was reasonable and he wanted to get Paul out of the house. They also argue that the accused’s response to the threat Paul posed was reasonable in the circumstances.

Catalyst or No Catalyst? [ 58 ] Based on the facts that I have accepted Paul broke into the house the accused and Stephanie were staying at to try to find his backpack. When the accused and Stephanie came down the hallway and found Paul in the kitchen, he did not say anything threatening to them. He did not rush at them or make any gestures or motions toward them. Paul had nothing in his hands. There was light in the kitchen and Stephanie recognized Paul.

If Stephanie was scared when she did not know who was in the house, she was no longer scared when she realized it was Paul because she just returned to their bedroom and left the accused alone with him. [ 59 ] Given that I believe Stephanie recognized Paul, I infer the accused would have recognized him as well. They were, after all, related and the accused had just seen him at the party at the house a few hours earlier. There was no evidence of any ill will between the accused and Paul or that they had had any issues at the party. Paul gave the accused no reason to believe he was going to attack him.

The only problem that Paul presented was that he was in the house. When the accused first heard someone breaking in, his belief that some harm could come to him or Stephanie was reasonable. He did not know who or even how many people were in the house. He armed himself with a knife. But when he saw it was only one person and that person was Paul, I do not accept that the accused was scared any longer.

His comments bear out that he was irritated; he was irritated Paul had come into the house and had woken them up, and he wanted Paul to leave. [ 60 ] Paul did not appear to take the accused’s comments to leave seriously. He laughed and reached out to shake the accused’s hand. But the accused’s view that this gesture was a threat of force was also not reasonable. Paul was laughing, not threatening. There was nothing in his hand and he gave the accused no reason to assume anything was in his hand.

Even if the accused mistakenly believed that Paul had a weapon of some nature, Paul did not do anything that would indicate he was going to use that weapon. He reached out his hand, he did not lunge or thrust his arm at the accused, nor did he launch himself at the accused. [ 61 ] After stabbing Paul in the hand, the accused stabbed him in the upper chest area. Paul did not react angrily to this. He did not fight back and he did not say anything to the accused except telling him to “chill out”. He then turned and left. There was no evidence that he made any effort to engage the accused.

He just turned and left the house. As he was leaving, the accused stabbed him in the back. There was no reason to stab Paul in the back. He was leaving. [ 62 ] I accept that the accused was upset at Paul for being in the house and for not immediately leaving when he yelled at him to do so. But a reasonable person looking at these circumstances would not perceive that Paul presented a threat of harm to the accused or Stephanie. The Crown has proven beyond a reasonable doubt that the accused’s belief was not reasonable.

Reasonable Response or Unreasonable Response? [ 63 ] In answering this question, I must ask myself whether it was reasonable in the circumstances for the accused to stab Paul? In determining the answer to this question, I must consider the non-exhaustive list of factors set out in s. 34(2) of the Criminal Code . Considering those factors that apply in this case, it was not reasonable for the accused to stab Paul. [ 64 ] Paul was younger and bigger than the accused, but there was no evidence that they did not get along. They were related but had never met each other until a month before the party.

Their few interactions had been civil. There was no evidence of any previous altercations between them, including that night at the party. There was an argument towards the end of the evening at the party, but it did not involve the accused, Stephanie and Paul. [ 65 ] Paul did not do anything to the accused or Stephanie in the early morning hours of May 17. He had broken into the house they were staying in, but only to find his backpack and he told them this.

Throughout the entire time he was in the house, Paul never yelled at them, threatened them, made any movements at them or brandished a weapon towards them, even after the accused was yelling at him and had stabbed him. I appreciate that it would be frightening to find someone in your house, but it is not reasonable to assume that just because Paul was there, he was going to harm them in some way. They were related and people often came into Eric’s home to partake in drugs. The accused and Stephanie knew this. As a matter of fact, once Stephanie realized who was in the home, she went back to their bedroom.

Paul was obviously not a threat to her and there was no reason for the accused to believe he was a threat to him either. [ 66 ] Even though Paul was in the house, there was no imminent use of force. Nothing Paul said or did indicated that he was going to do any harm to the accused or Stephanie. The only thing he did that could have been a threat was reaching his hand out towards the accused. But there was nothing in his hand, no sudden movement towards the accused, he was not lashing out with his fist or lunging at the accused.

There was nothing in the facts that would lead me to conclude that there was any imminent threat of violence to the accused or Stephanie. [ 67 ] The accused had other options if he really felt threatened by Paul’s presence in the house. He could have retreated back to the bedroom with Stephanie and wedged the steak knife in the door frame to lock the door. He could have tried talking to Paul, telling him they were tired and wanted him to leave so they could go back to sleep. He could have helped Paul look for his backpack.

But he did not do any of these things. [ 68 ] Paul may have been the one who started the incident by breaking into the house, but the accused was the aggressor in the incident. He was the only one that had a weapon. He immediately concluded that Paul was in the house for some nefarious reason when there was nothing indicative of that. Paul never fought the accused. Even after he was stabbed, Paul never fought the accused; he just turned to leave. Yet despite the fact that Paul was leaving the house as the accused wanted, he still pursued Paul and stabbed him a third time in the back.

[ 69 ] Paul had no weapon and nothing in his hand. The accused said that he heard something fall to the floor when he stabbed Paul, but he could not say what it was. There was no evidence that the accused, Stephanie or anyone else found a weapon on the floor in Eric’s house after the accused stabbed Paul. As a matter of fact, Stephanie testified that she never saw Paul with anything in his hands. The only person that had a weapon that night and used a weapon that night was the accused. [ 70 ] Paul posed no threat to the accused or Stephanie.

It was clear that the accused was mad at Paul for being in the house and not leaving when he told him to do so. But there was no need to stab him once, let alone three times. Paul was not threatening any physical violence nor was he physical with the accused or Stephanie. The accused’s decision to stab Paul was a disproportionate response to the situation. The accused’s assessment of the threat was not reasonable. His actions were not for protection but were to punish Paul for not leaving the home. A reasonable person in these circumstances would not have stabbed Paul.

The Crown has proven beyond a reasonable doubt that the accused stabbing Paul was not reasonable in the circumstances. [ 71 ] The Crown has established that s. 34(1)(

a) and (

c) have not been met in this case and, as such, the accused is not able to rely on the defence of person to excuse his actions in wounding Paul Ahenakew on May 17, 2020. (

b) Does the defence of property apply to excuse the accused’s conduct in wounding Paul Ahenakew? [ 72 ]

Section 35 of the Criminal Code sets out the defence of property. It has four requirements: (

i) that the accused had a reasonable belief that he was in peaceable possession of property or was lawfully assisting someone whom he reasonably believed was in peaceable possession of property; (ii) that the accused had a reasonable belief that a person was trespassing on the property, taking the property or damaging the property or was a threat to do so; (iii) that the purpose of the accused committing the offence was to prevent the person from trespassing or removing them from the property, from taking or damaging the property, or to retake the property from the person; and (iv) that the accused’s action was reasonable in the circumstances. [ 73 ] The first and second requirements relate to the accused’s state of mind, but the belief in both instances must be on reasonable grounds.

The third requirement is assessed on a subjective standard. The last requirement entails an objective analysis of all the circumstances to determine if the accused’s response was reasonable. However, unlike s. 34 , there is no list of factors that must be considered when assessing the reasonableness of the accused’s actions. [ 74 ] Here, too, there must be an air of reality to the defence and if there is, then the Crown bears the onus of proving beyond a reasonable doubt that the defence has not been made out.

Again, the Crown is not required to prove beyond a reasonable doubt that the accused’s conduct fails on every requirement of the defence. It is sufficient if they prove beyond a reasonable doubt that any one of the four elements of defence of property was not made out. [ 75 ] In this case, the Crown accepts that there is an air of reality to the defence of property. They also concede that the first three requirements are established. However, they argued that the accused’s actions in stabbing Paul to get him to leave the house were unreasonable.

The defence disagrees. [ 76 ] Without reiterating the comments I made when assessing the reasonableness of the accused’s actions in terms of self-defence, the accused’s actions in defending Eric’s home were not reasonable in the circumstances. Paul had returned to Eric’s house simply to retrieve his backpack. While he broke into the home and was certainly trespassing, he exhibited no signs of aggression towards the accused and posed no threat to him or Stephanie. He did not steal anything nor was he damaging anything.

The accused’s decision to stab Paul to get him to leave the house was disproportionate to what was required in the circumstances. The accused could have told Paul that he and Stephanie wanted to go to bed and that he needed to leave. He could have helped Paul find his backpack and then asked him to leave. He could have pushed him towards the door and encouraged him to leave. A reasonable person would not have stabbed Paul to get him to leave the house. [ 77 ] After the accused stabbed Paul, Paul left. He returned shortly thereafter and set a fire on the grass outside of Eric’s house.

I have determined he did this because he was mad at the accused for stabbing him. But this occurred after the accused had stabbed Paul and does not bear on my assessment of the reasonableness of the accused’s actions in stabbing Paul to begin with. [ 78 ] The Crown has proven beyond a reasonable doubt that the fourth requirement of the defence of property has not been made out. The accused is therefore not able to rely on defence of property to excuse his actions in wounding Paul Ahenakew on May 17, 2020.

CONCLUSION [ 79 ] The evidence establishes that in the early morning hours of May 17, 2020, the accused stabbed Paul Ahenakew three times, wounding him and causing him significant medical distress. Neither defence of person, nor defence of property, apply to excuse the accused’s actions in stabbing Paul.

As such, I find the accused guilty of the charge of aggravated assault contrary to s. 268(2) of the Criminal Code . [ 80 ] At the urging of the Crown, the charge of possession of a weapon for a purpose dangerous to the public peace pursuant to s. 88(2) of the Criminal Code shall be stayed pursuant to the principles set out in Kienapple . ______________________________J.

D.E. LABACH