R. v. Smith, 2016 NSCA 42

Nova Scotia Court of Appeal Citation: R. v. Smith , 2016 NSCA 42 Date: 20160526 Docket: CAC 431793 Registry: Halifax Between: Max Demarco Smith Appellant v. Her Majesty the Queen Respondent Judges: Farrar, Oland, Hamilton, JJ.A. Appeal Heard: January 21, 2016, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Hamilton, J.A.; Farrar and Oland, JJ.A. concurring Counsel: Roger Burrill, for the appellant Jennifer MacLellan, Q.C. for the respondent Reasons for judgment: [ 1 ] Justice Patrick J.

Duncan of the Nova Scotia Supreme Court found the appellant, Max Demarco Smith, guilty of second degree murder. He sentenced him to life imprisonment without the chance of parole for eleven and a half years. The appellant appeals his conviction. [ 2 ] His appeal concerns the defence of self-defence provided for in s. 34(2) of the Criminal Code prior to its March 11, 2013 amendment. It specifically deals with whether the judge properly applied s. 34(2) (

b) when he found the appellant did not hold a reasonable belief that he could not otherwise preserve himself from death or grievous bodily harm, except by fatally stabbing the deceased, Casey Downey. [ 3 ] For the reasons that follow, I would dismiss the appeal. Trial Judge’s Reasons [ 4 ] At trial, the appellant refused to say he stabbed Mr. Downey or that the knife he was holding entered Mr. Downey’s body. He argued that he had no intent to cause Mr. Downey grievous bodily harm. The defence of accident was raised, along with self-defence under s. 34(1). [ 5 ] The judge rejected these submissions.

He set out his findings of fact in his thorough written reasons reported at 2014 NSSC 351 : [193] I accept that Mr. Smith arrived at the party as he said, and that Mr. Downey entered the party at the invitation of Jermaine Simmonds, aka “Dee”. [194] I accept that Mr. Smith remained sober through the course of the evening but that Mr. Downey was impaired by alcohol and drug ingestion. I also accept the evidence that describes Mr. Smith as a little shorter than Mr. Downey but approximately 45lbs heavier. Mr. Smith, as seen in the video statement to the police, was healthy and fit at that time.

He was also approximately 4 years older than Mr. Downey who was around 20 years of age at the time. I accept that Mr. Smith and Mr. Downey were essentially strangers to each other before that night. I accept that Mr. Smith had exhibit 6, the knife, in his possession when he arrived at the party. It is possible that he had a second knife with him as well. I do not accept, however, that Mr. Smith found a knife outside in the snow. I do not accept that he picked up a knife without looking to see what it was. His explanation that he wanted to keep it out of harm’s way was not credible.

He made no attempt to identify an owner of the knife. [195] Once in the party, Mr. Smith and Mr. Downey had little to do with each other until Mr. Provo began to pack up his equipment in preparation to leave. That would have been sometime between 5 a.m. and 6 a.m. I base this time estimate on the general agreement that

the 911 call was made almost immediately after Mr. Downey fell to the floor and that the police arrived approximately a half hour after the 911 call was made. [196] I accept that Mr. Downey became belligerent with Mr. Smith. I accept that it may have begun as Mr. Smith says, with the two of them sitting in close proximity to each other and with Mr. Downey poking at Mr. Smith telling him to help out Mr. Provo, and not accepting Mr. Smith’s explanation that he had already offered to do so but was refused. No witness, other than Mr.

Smith can say how the argument began, but it is apparent from other witnesses that this was the topic of the initial argument. [197] I do not accept Mr. Smith’s version of the argument once Mr. Provo returned to the house. When Mr. Provo came in he, and others observed Mr. Smith and Mr. Downey in an argument. Both men were displaying anger. I have previously noted in my review of Mr. Smith’s testimony that I do not accept his assertion that he did not get angry with Mr. Downey. I accept that Mr. Downey was the aggressor and that Mr. Smith, although vocal, did not attempt to approach Mr. Downey. Mr.

Provo restrained Mr. Downey to keep him from going after the accused. I do not accept Mr. Smith’s allegation that Mr. Downey took a swing at him while Mr. Smith was getting up out of a chair. Mr. Smith has Mr. Provo grabbing Mr. Downey when that occurred, but Mr. Provo did not see a swing. In fact what Mr. Provo describes when he came in is a different scene than what Mr. Smith would have the court understand. What he sees are two individuals that are in direct conflict with each other. As well no other witnesses at the party observed seeing Mr. Downey take a swing, as was described by Mr.

Smith. [198] I do believe that Mr. Downey uttered a threat to Mr. Smith and that Mr. Smith took a knife, probably exhibit 6, out of his pants and held it by his side. Dee joined in the argument. I accept that this knife was taken away from Mr. Smith. What is less clear is whether it was returned to him so that ultimately it was in fact the knife that was used to stab Mr. Downey; or as he says, that he had a second knife in his possession that was used when Mr. Downey was stabbed. [199] Mr. Provo released Mr.

Downey, in part to deal with the problem that he thought Dee was creating and in part because I believe he concluded that a fight between Mr. Smith and Mr. Downey was inevitable. This is a view that was offered by a few witnesses, that is, that it was expected that these two individuals, Mr. Smith and Mr. Downey, were going to have a fight. [200] I accept that at one point in this argument that took place around the dance floor area, that Mr. Downey did put up his fists as if to fight. I also accept that there is no evidence that Mr.

Downey had a weapon in his possession or that he threatened to use one, or that Mr. Smith had any belief that Mr. Downey was armed. The evidence does not support a conclusion that Mr. Downey had a present ability to carry out the threat to “dome” Mr. Smith, which Mr. Smith interpreted as a threat to kill. [201] I accept that Mr. Smith moved away from the dance floor area to an area closer to the laundry room where the bar had been set up. That area was also in close proximity to the staircase going up to the main floor. [202] Mr. Smith was standing there with Ashley Fraser.

He had sufficient time to pull out the knife and open the blade. Almost immediately Mr. Downey came toward him and the two met face to face. [203] Until that time, Mr. Smith gave no indication that he feared Mr. Downey. To the contrary, the evidence suggests that he welcomed the opportunity to have a physical confrontation with Mr. Downey. I do not accept his evidence that he was not angry with Mr. Downey. I do accept the evidence that says he was “mad”, “loud” and verbally aggressive toward Mr. Downey. While he may have had no intention of making the first strike, Mr. Smith was not going to back down either.

The accused had ample opportunity to withdraw from the confrontation, but his response was to stand his ground and on two occasions take out a knife in anticipation of Mr. Downey’s anticipated attack. Mr. Smith was not surprised by Mr. Downey’s pursuit of him – he expected it and had prepared to greet it while armed with a knife. He had no reason to believe that Mr. Downey would be similarly armed. Their relative ages, and physical build did not suggest that Mr. Smith was going to be at any disadvantage in a fist fight. [204] Mr. Smith’s description of the manner in which he put his hands up to ward off Mr.

Downey is inconsistent with the physical evidence describing the angle and thrust of the knife into Mr. Downey’s chest. … [207] The blade of the knife pierced three layers of clothing, scalloped a rib and continued to follow a path through pulmonary arteries and veins and into the heart chamber. It is not credible to say that the force associated with Mr. Downey colliding with the accused in the manner that Mr. Smith and Mr. Fraser described would account for this type of wound. [208] There are further difficulties with the collision described by Mr. Smith.

I have previously reviewed the testimony of Ashely Fraser and drawn attention to concerns over his evidence. Initially he said there was no such collision. He agreed ultimately that the two did collide but for about two seconds and that he got pushed, although he couldn’t say how that occurred. I accept that any contact that took place between Mr. Smith and Mr. Downey was brief and not of significant force. I do accept that Mr. Downey came toward Mr. Smith, that he was moving quickly and that the parties came into close contact face to face during which time the knife plunged into Mr.

Downey’s body. … [213] I have also set out my views of Mr. Smith’s demeanour during the altercation with Mr. Downey. I conclude that he minimized, to the point of being untruthful, what he was really thinking about, and saying to Mr. Downey. I conclude that he saw Mr. Downey as disrespectful and aggressive and that it made him angry. At one point in his testimony he did acknowledge that when he pulled out the first knife it was because he was “agitated”, which was his word.

I also conclude that he controlled that anger sufficiently so that he was not going to be the aggressor; but that he would prepare himself for when Mr. Downey came after him, which Mr. Smith knew was going to happen. In a sense he was lying in wait for Mr. Downey to attack him. [214] I reject Mr. Smith’s evidence that he forgot that he had a knife in his hand at the time of the alleged collision. This is simply not credible. I do not accept the defence theory that Mr. Smith raised the knife to Mr. Downey’s chest as a reflex action that occurred

without thought on the part of Mr. Smith. Nor do I accept the suggestion of counsel for the defence that Mr. Downey impaled himselfon the knife. [6] The judge found the appellant stabbed Mr. Downey, intending to cause him death or grievous bodily harm. He found theappellant knew the stab to the heart would likely be fatal and that he showed deliberate disregard for the fatal consequences that he knewwere likely to happen (para. 220). He rejected the appellant’s defence of accident.

He also found the appellant’s actions were not justifiedself-defence under s. 34(1) because the appellant intended to cause death or grievous bodily harm to Mr. Downey and his use of the knifewas more than necessary to enable him to defend himself. [7] The judge then considered self-defence under s. 34(2). He correctly identified its three constitutive elements: (1) the existenceof an unlawful assault, (2) a reasonable apprehension of a risk of death or grievous bodily harm and (3) a reasonable belief that it was notpossible to preserve oneself from harm except by killing the adversary.

He recognized there was a subjective and objective component toeach element. [8] In considering the first question, the judge was satisfied Mr. Downey’s final approach to the appellant, where they came chestto chest, was an unlawful assault. [9] In considering the second question, the judge had a reasonable doubt about whether the appellant subjectively believed, andhad reasonable grounds to so believe, that Mr. Downey could cause him grievous bodily harm or injury. [10] It was in considering the third question that the judge determined the appellant’s actions in fatally stabbing Mr.

Downey werenot justified under s. 34(2). He found the appellant did not have a reasonable belief that the only way he could preserve himself fromdeath or grievous bodily harm was by fatally stabbing Mr. Downey: [242] The third question. Has the Crown proved beyond a reasonable doubt that Mr.

Smith did not reasonably believe that he could nototherwise preserve himself from death or grievous bodily harm? [243] People are justified in causing death or grievous bodily harm to others in self-defence, but only if they reasonably believe theycannot otherwise protect themselves from death or grievous bodily harm. [244] So am I satisfied beyond a reasonable doubt that it was not reasonable for Mr. Smith to believe that he had no other means topreserve himself from death or grievous bodily harm? [245] I am so satisfied. There was no reasonable basis upon which Mr. Smith could believe that he needed to stab Mr.

Downey in thechest to preserve himself from death or grievous bodily harm. In this context, it is significant that Mr. Smith never expressed any fear ofMr. Downey. One would expect that if he felt that stabbing Mr. Downey was the only way to preserve himself from harm, then he wouldhave testified to that effect. [246] Mr. Smith had ample opportunity to leave the area to avoid conflict with Mr. Downey and he chose not to do so on more than oneoccasion. Had he done so, we probably would not be here today. Mr. Smith was present when Mr. Provo demonstrated that Mr.

Downeycould be managed by grabbing him and pinning him. Mr. Smith was not facing an attacker who was armed or who had a significantphysical advantage. In fact, the opposite is true. It was Mr. Smith who had more weight and his height was not substantially less. [247] The evidence shows Mr. Downey to have been quite significantly impaired, while Mr. Smith was not. While some persons underthe influence can be more aggressive, as Mr. Downey was at times, the toxicologist's evidence suggests that Mr.

Downey's motor skillsand judgment would be significantly impaired, making him a much less formidable opponent in a fight. [248] In my view Mr. Smith did not reasonably believe that it was necessary to stab Mr. Downey in order to preserve himself fromdeath or grievous bodily harm. He did not say that was the case and the circumstances of the offence say that it would have beenunreasonable for him to have had that belief.

I conclude the Crown has met its burden. [Emphasis added] Issue and Standard of Review [11] The only issue on appeal is whether the trial judge erred in applying s. 34(2) as it appeared at the time of the allegation. Thestandard of review is correctness. Analysis [12] Section 34(2) of the Code provided as follows at the relevant time: 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 wasoriginally 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. [13] In R. v. Cinous, 2002 SCC 29 , [2002] 2 SCR 3, the Supreme Court of Canada summarized the constituent elements ofs. 34(2), noting that each has a subjective and an objective component: [93] In Pétel, supra, at p. 12, Lamer C.J. stated the three constitutive elements of self-defence under s. 34(2): "(1) the existence of an

unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is notpossible to preserve oneself from harm except by killing the adversary". All three of these elements must be established in order for thedefence to succeed. The air of reality test must therefore be applied to each of the three elements. If any of these elements lacks an air ofreality, the defence should not be put to the jury. See Hebert, supra; Latimer, supra. [94] Each of the three elements under s. 34(2) has both a subjective and an objective component.

The accused's perception of thesituation is the "subjective" part of the test. However, the accused's belief must also be reasonable on the basis of the situation heperceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second andthird conditions. Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault.

Withrespect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to askwhether those perceptions were objectively reasonable in the circumstances. [14] The appellant argues the judge erred in applying s. 34(2) by: (1) overemphasizing his opportunity to leave the basement inadvance of Mr. Downey’s final approach, (2) ignoring the “Baxter” instruction and (3) relying too heavily on his failure to testify that hewas afraid of Mr. Downey or that he felt stabbing him was the only way to preserve himself. 1.

Overemphasized his opportunity to leave the basement in advance of Mr. Downey’s final approach [15] The appellant points to the following finding of fact by the judge in support of his argument that the judge erred byoveremphasizing the appellant’s opportunity to retreat in advance of Mr. Downey’s final approach: [203] …While he may have had no intention of making the first strike, Mr. Smith was not going to back down either. The accused hadample opportunity to withdraw from the confrontation, but his response was to stand his ground and on two occasions take out a knife inanticipation of Mr.

Downey’s anticipated attack…. [16] The judge also referred to the appellant’s opportunity to retreat in his analysis under s. 34(2)(b): [246] Mr. Smith had ample opportunity to leave the area to avoid conflict with Mr. Downey and he chose not to do so on more than oneoccasion. Had he done so, we probably would not be here today…. [17] The appellant suggests the judge should not have considered his opportunity to retreat in advance of Mr. Downey’s finalapproach, as it was not relevant to the reasonableness of his belief in a lack of alternatives to homicide when he stabbed Mr. Downey ashort time later.

He says it is only his state of mind, and the reasonableness of his state of mind, at the moment of the stabbing that isrelevant. [18] The appellant relies on R. v. Pilon, 2009 ONCA 248, for the proposition that consideration of the appellant’s failure to retreatprior to the moment he stabbed Mr. Downey was an irrelevant factor that the judge should not have considered: [66] While the trial judge properly considered the entirety of the record, she correctly focused on the evidence concerning theappellant’s state of mind when the fatal shots were fired.

The defence of self-defence is only available if on the evidence there is a basisto conclude (or at least have a reasonable doubt) that the appellant had the required reasonable apprehension and reasonable belief whenhe fired the fatal shots. The events leading up to the shooting, the prior history between the parties, McKinnon’s habit of carrying a gun,and his violent disposition provide important context. However, the justification for killing as defined in s. 34(2) must exist when thefatal shot is fired.

It is irrelevant to the availability of the defence that on the evidence the defence may have been available at someearlier point in the confrontation: see R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, at pp. 884, 889; R. v. Pintar (1996), (ON CA), 30 O.R. (3d) 483 (C.A.), at p. 506; R. v. Currie (2002), (ON CA), 166 C.C.C. (3d) 190(Ont. C.A.), at para. 51. [19] As I read Pilon, the principle to be drawn from it is that the appellant’s reasonable belief in a lack of alternatives to homicidemust exist at the time of the fatal blow.

It does not stand for the proposition that the context in which the events occurred, such as theappellant’s failure to retreat a short time before Mr. Downey’s final approach, is irrelevant to determining if a reasonable belief existed atthe time of the fatal blow, i.e. that a judge is precluded from considering this context. [20] There was a close temporal connection between Mr. Provo’s restraint of Mr. Downey, giving the appellant an opportunity toretreat, and the appellant fatally stabbing him.

I am satisfied the judge did not err by considering the appellant’s opportunity to retreat,along with the rest of the context he considered, in determining the reasonableness of the appellant's belief at the time he stabbed Mr.Downey. [21] The appellant’s opportunity to retreat was but one of seven factors the judge considered in determining the appellant did notreasonably believe he had no alternative but to kill Mr. Downey. He also considered the appellant’s failure to testify that he was afraid ofMr. Downey or that he felt stabbing Mr. Downey was the only way to preserve himself.

He considered the appellant’s presence whenMr. Provo demonstrated that Mr. Downey could be managed by grabbing him and pinning him to the wall and the fact that Mr. Downeywas not armed, had no physical advantage over the appellant and was significantly impaired while the appellant was not. [22] The appellant correctly points out there is no requirement to retreat contained in s. 34(2).

There is nothing in the judge’s reasonsto suggest that he precluded the appellant from relying on self-defense because he did not retreat at the initial stage of the confrontation. [23] I am not satisfied the judge overemphasized the appellant’s opportunity to leave the basement in advance of Mr. Downey’s finalapproach. One of seven factors is not overemphasis. 2.

Ignored the “Baxter” Instruction [24] The appellant titles this argument as a failure by the judge to consider the “Baxter” instruction when he applied s. 34(2)(b),meaning that he failed to caution himself that “a person defending himself against an attack, reasonably apprehended, cannot be expected

to weigh to a nicety, the exact measure of necessary defensive action.” – R. v. Baxter, (ON CA), [1975] O.J. No. 1053(Ont.C.A.), para. 45. [25] Under this heading however, the appellant also says the judge erred by failing to consider that (1) the fact the appellant had hisknife out before Mr. Downey approached him did not per se negate self-defence (2) the appellant had no obligation to retreat and (3) theappellant’s actions did not need to be proportionate to the attack.

He says the judge also erred by failing to consider the immediacy of thesituation he was in. [26] As indicated in paragraph 21 above, the judge referred to seven factors in explaining why he found that the appellant’s beliefthat he could not preserve himself from death or grievous bodily harm except by fatally stabbing Mr. Downey was not reasonable. Henoted the appellant’s opportunity to retreat earlier in the confrontation, as well as his failure to testify that he was afraid of Mr. Downeyor that he felt stabbing him was the only way to preserve himself. He also pointed to the appellant’s presence when Mr.

Provodemonstrated Mr. Downey could be managed by grabbing him and pinning him to the wall and the fact Mr. Downey was not armed, hadno physical advantage over the appellant and was significantly impaired while the appellant was not. [27] The judge did not say he was disallowing the defence of self-defence under s. 34(2)(

b) because the appellant should have morecarefully weighed the amount of defensive action necessary to respond to Mr. Downey’s approach. Nor did he say he was disallowingthis defence because the appellant had his knife out before Mr. Downey approached him, that the appellant had an obligation to retreat,that the appellant’s actions were not disproportionate or that there was no immediacy to the situation. [28] His reasons indicate the judge was well aware of the facts, including the immediacy of the situation the appellant was in: [202] Mr. Smith was standing there with Ashley Fraser.

He had sufficient time to pull out the knife and open the blade. Almostimmediately Mr. Downey came toward him and the two met face to face. … [208] … I accept that any contact that took place between Mr. Smith and Mr. Downey was brief and not of significant force. I do acceptthat Mr. Downey came toward Mr. Smith, that he was moving quickly and that the parties came into close contact face to face duringwhich time the knife plunged into Mr.

Downey's body. [Emphasis added] [29] The appellant’s argument that the judge did not appropriately consider immediacy and the legal maxims he raises in determiningthat the appellant’s belief was not reasonable, is based on the judge not specifically referring to them in his otherwise extensive reasonsfor conviction. The appellant submits that the judge’s reasons were underinclusive. Thus, I see this as an issue of whether the judge’sreasons are sufficient. [30] It is useful to recall some principles regarding the sufficiency of reasons set out in R. v.

R.E.M., 2008 SCC 51: [15] This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy ofreasons in a criminal case.

The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted oracquitted, providing public accountability and permitting effective appellate review. [16] It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of theevidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, atparas. 46 and 50; R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524). [17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object isnot to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge madethat decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to givereasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt.

Doherty J.A. in Morrissey, at p. 525,puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he orshe made that decision”. [Underlining in original] What is required is a logical connection between the “what” — the verdict — and the“why” — the basis for the verdict.

The foundations of the judge’s decision must be discernable, when looked at in the context of theevidence, the submissions of counsel and the history of how the trial unfolded. [18] Explaining the “why” and its logical link to the “what” does not require the trial judge to set out every finding or conclusionin the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states: A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road mapto direct lay jurors on their journey toward a verdict.

Reasons for judgment are given after a trial judge has reached the end of thatjourney and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as averbalization of the entire process engaged in by the trial judge in reaching a verdict. [Underlining in original] [19] The judge need not expound on matters that are well settled, uncontroversial or understood and accepted by theparties. This applies to both the law and the evidence.

Speaking of the law, Doherty J.A. states in Morrissey, at p. 524: Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflictingevidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to theCourt of Appeal, that he or she was aware of and applied those principles. …

[43] …— what is required is that the reasons, read in the context of the record and the submissions on the live issues inthe case, show that the judge has seized the substance of the matter. Provided this is done, detailed recitations of evidence or thelaw are not required. [44] The degree of detail required may vary with the circumstances. Less detailed reasons may be required in cases where thebasis of the trial judge’s decision is apparent from the record, even without being articulated.

More detail may be required where thetrial judge is called upon “to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a keyissue”: Sheppard, at para. 55, point 6. [45] Just as it is reasonable to infer that the trial judge seized the import of the evidence, it is generally reasonable to inferthat the trial judge understands the basic principles of criminal law at issue in the trial. Indeed, for this reason it has repeatedlybeen held that “[t]rial judges are presumed to know the law with which they work day in and day out”: R. v.

Burns, (SCC), [1994] 1 S.C.R. 656, at p. 664, where the Court rejected the notion of a positive duty on trial judges to demonstrate that theyhave appreciated every aspect of the relevant evidence. The trial judge is not required to recite pages of “boilerplate” or review well-settled authorities in detail, and failure to do so is not an error of law. As Binnie J. pointed out in Sheppard, at para. 55, point 7: Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to someabstract standard of perfection.

It is neither expected nor required that the trial judge’s reasons provide the equivalent of a juryinstruction. [Bolding added] [31] Applying these principles, the appellant has not satisfied me the judge erred in the process he followed to determine whether theappellant’s belief was reasonable. His reasons are not to be held to some abstract standard of perfection. They are not to be read oranalyzed as if they are an instruction to a jury. The judge is presumed to know the law. He is not required to reveal each step in hisreasoning process.

His reasons, read in the context of the record and the submissions on the live issues in the case, are to show he “seizedthe substance of the matter”. [32] Here, the “substance of the matter” was whether the appellant’s fatal stabbing of Mr. Downey was justified under s. 34(2),based on the judge’s findings of fact from the evidence before him. Paragraphs 242 to 248 of his reasons, set out in paragraph 10 above,indicate the judge “seized the substance of the matter” – whether the appellant’s belief under s. 34(2)(

b) was reasonable. He askedhimself the right questions and explained the evidence he relied on in reaching his conclusion that the appellant’s belief was notreasonable. He is not required to reveal each step in his reasoning process. There is no impermissible reasoning displayed in his reasons.His reasons for judgment were consistent with the test mandated by s. 34(2). 3. Relied too heavily on the appellant’s failure to testify that he was afraid of Mr. Downey or that he felt stabbing Mr.

Downey was theonly way to preserve himself [33] The appellant argues the judge erred in determining whether his belief that his actions were necessary to preserve himself wasreasonable under s. 34(2)(b), by focussing on his failure to testify (1) that he was afraid of Mr. Downey or (2) that stabbing Mr. Downeywas the only way to preserve himself at the expense of considering his evidence that he had a sense of “agitation” and “nervousness”. [34] The judge very thoroughly reviewed the whole of the appellant’s evidence in over forty paragraphs in his reasons.

He alsoreferred to it in reviewing the other evidence before him and in finding the facts. In doing so, he referred not only to the appellant’stestimony that he was not afraid of Mr. Downey and his failure to testify that stabbing him was his only option, but also to the appellant’sevidence that he was nervous and agitated at certain times during the confrontation (i.e. paragraphs 64, 79 and 82). The judge againnoted the appellant’s testimony that he was “a bit nervous” as to what Mr. Downey would do in paragraph 225, when analyzing theevidence in applying s. 34(2).

His reasons demonstrate a thorough understanding of the appellant’s testimony, along with that of theother witnesses. [35] I am satisfied the judge did not err by improperly considering and weighing the whole of the appellant’s evidence, as well as allof the other evidence before him, when he found the appellant did not have a reasonable belief that he had no other alternative but tofatally stab Mr. Downey. Disposition [36] I would dismiss the appeal. Hamilton, J.A. Concurred in: Farrar, J.A. Oland, J.A.