) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 6674

CITATION : R. v. Nahmabin, 2013 ONSC 6674 COURT FILE NO.: 1714/13 DATE: 20131028 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – JOHN EDWARD NAHMABIN ) ) ) ) ) ) ) ) N. Stoner, for the Crown Donald Elliott, for the Accused ) ) HEARD: October 15 and 16, 2013 DESOTTI, J. [ 1 ] The accused, John Edward Nahmabin, is charged with a two count indictment as follows: 1. That on or about the 19 th day of June in the year 2013, at the City of Sarnia, in the Province of Ontario, did in committing an assault upon Darren Tunstill use a weapon, to wit: knife, contrary to

Section 267 (

a) of the Criminal Code of Canada . 2. That on or about the 19 th day of June in the year 2013, at the City of Sarnia, in the Province of Ontario, did wound Darren Tunstill thereby committing an aggravated assault, contrary to

Section 268 of the Criminal Code of Canada . [ 2 ] There is no issue that the accused stabbed the complainant, Darren Tunstill, with a knife. The only issue is whether the accused reacted to a life threatening situation that forced him to use a knife in self-defence. [ 3 ] The operative

section of the Criminal Code is 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. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purposeof doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. A.

The Facts [ 4 ] From the accused’s video statement to the police (Ex. 10) and the written transcript (Ex. 11), the accused indicated that after smoking a joint with the complainant at Loretta Harris’ residence situated at 322 Wellington St. in the City of Sarnia, the complainant, the accused, and the accused’s surety (friend) Kathy Rogers departed to his brother’s girlfriend’s residence on College St. to look for an expensive pair of sunglasses, or as suggested by Detective Constable Whelpley and agreed to by the accused to acquire a ¼ ounce of marijuana. [ 5 ] The complainant coincidentally lived in the same College St. complex but either departed to a different apartment or attended at the accused’s brother’s girlfriend’s apartment (I will have more to say about this confusing scenario in the analysis portion of this decision).

Thereafter, all parties drove back to the Harris residence wherein the complainant asserted that he had given the accused a ¼ ounce of marijuana and wanted the money for this weed. The accused indicated that he denied having received any weed from the complainant and a confrontation occurred. [ 6 ] During this confrontation, the accused indicated that he was struck in the mouth by the complainant and indicated that he saw stars. The accused indicated that the complainant wanted $50.00 for the ¼ ounce of weed. He then indicated that he knew Kung Fu and a fight ensued.

During the course of this confrontation, the accused indicated that the complainant got him in a ‘guillotine’ hold’ (a choke hold) and that is when the accused ‘poked’ (stabbed) the complainant a couple of times. [ 7 ] The accused indicated that even in this ‘guillotine hold’ he was able to grab something from the floor that turned out to be a knife but that the accused used his finger on the blade so that he wouldn’t stab the complainant too severely or deeply. [ 8 ] The complainant tells a different version of events.

He indicated that after he had given the accused a joint that the accused wanted to buy more weed. The complainant and the accused agreed to a price of $55.00 for the ¼ ounce of weed. The complainant then departed from the Harris residence to his residence to retrieve the weed.

There is some confusion as to whether he walked to the Harris residence and thus walked back to his residence and then drove back to the Harris residence or that he had his motor vehicle with him when he first met the accused at the Harris residence. [ 9 ] In any event, upon giving the accused the ¼ ounce of weed upon returning to the Harris residence, the accused then denied have the ¼ ounce and indicated that he would not pay for the ¼ ounce that he had not received. A consensual fight then ensued, initially with some pushing but then the accused pulled out a knife brandishing it at the complainant.

The complainant asked the accused to put the knife away and fight fairly, but at this point the accused lunged at him with the knife. [ 10 ] The complainant got the accused in a headlock with the accused’s left arm and shoulder under his right arm. He acknowledges that he administered some punches to the face and side of the accused with his left arm as he was frightened for his life. The complainant then felt a sharp pain in his stomach and the accused and the complainant fell apart. The complainant then observed the deep stab wound to his stomach and departed for his vehicle with the accused right behind him.

[ 11 ] The complainant had been stabbed both in the stomach and his back. The wounds required stitching and the complainant was incapacitated for some two months with the pain in his abdomen. B. Analysis [ 12 ] The video statement of the accused was admitted by counsel for the accused as voluntary. Clearly, certain elements of the statement supported the accused’s position that the stabbing of the complainant was in self-defence.

By inference, and now with the submissions of the Crown after the evidence at the trial, the Crown consented to allow this statement in as part of the ‘Agreed to Statement of Facts’ because there were significant inconsistencies in the statement of the accused.

These inconsistencies and his version of events to a greater extent supported the theory of the Crown. [ 13 ] Furthermore, from the Crown’s perspective, the statement of the accused was both in conflict with his own version of events as reflected in this statement and that of his friend Kathy Rogers who testified as to what she observed at the Harris residence before the fight, at the College St. apartment, and then back at the Harris residence during the fight. [ 14 ] In considering the version of events as reflected by the accused in his video statement, there are some discrepancies that are significant and defy any reasonable common sense explanation.

In order of story sequence, I will refer to them as follows:

a) There is no question that the accused and the complainant smoked a joint that was provided by the complainant at the Harris residence. There is no question that the accused and the complainant discussed the sale of some weed by the complainant to the accused. On this point the accused in his statement states at page 7: Whelpley: To try it? Nahmabin: Yeah to test it yeah. Whelpley: Test it to see if it’s good shit before you maybe buy some? Nahmabin: Before yeah I turn me on yeah for. Whelpley: Okay. Nahmabin: Yeah. Whelpley: So you smoke this joint and now you say okay I’ll take some. Nahmabin: Yeah, yeah I say. Whelpley: Okay. Nahmabin: I’m definitely in count me in .

b) We know from the complainant that he then departed the Harris residence to retrieve the marijuana. However, the accused indicated that he and his surety Kathy Rogers also left with the complainant. The complainant, on the other hand, indicated that he went alone. This departure to the complainant’s College St. apartment then leads to the second inconsistency by the accused. Whelpley: And the whole reason going there is to. Nahmabin: To um. Whelpley: Get some weed .

Nahmabin: No, no I wanted to go get my cousin right (unintelligible) have my glasses. [ 15 ] Later at page 8 and the top of page 9, the accused confirms that Kathy Rogers was also in the complainant’s motor vehicle. He states: Nahmabin: Yeah, no he went inside and Kathy, and me and Kathy waited out in the car.

Whelpley: Okay, Darren comes back to the car. Nahmabin: Yeah. Whelpley: And. Nahmabin: And passed me my duffel bag with my coat and tent in it. Whelpley: Okay. Nahmabin: Because this is Dan’s (unintelligible) you know. [ 16 ] There are a number of troubling, confusing and decided manufactured inconsistencies in the explanation by the accused for his attendance at this apartment complex. On the assumption that this complex also was the residence of his brother’s girlfriend, how is it that the complainant fetched a duffel bag with the accused’s coat and his tent from his brother’s girlfriend’s apartment?

How is it that he both knew where to go and that his brother or his girlfriend would then provide this stranger with these items? [ 17 ] More importantly, why were these items retrieved when the whole point of the accused’s attendance at this apartment was to search for his sunglasses? Ironically, in light of what the accused had already told Detective Constable Whelpley, even Whelpley believed the three parties were at the apartment complex to as Whelpley stated, “Get some weed”. [ 18 ] This incredible version of events became even more incredible when Kathy Rogers took the stand.

She indicated that she and the accused attended together at the brother girlfriend’s apartment but that she waited outside. This caused me to comment on this difference because I had remembered that the accused had stated that they had both waited in the complainant’s car. I also commented that if they had both departed the motor vehicle to a different apartment, (one for the marijuana and one to look for the sunglasses) it was most curious that both parties happened by chance to re-attend at the complainant’s motor vehicle when apparently there had been no determination at what time they should re-attend.

c) The third inconsistency concerns the accused’s discovery of “something on the floor”. The “something” turned out to be a knife. The complainant indicated that as a result of the accused’s refusal to give him either the money for the marijuana or to return the marijuana, a consensual fight ensued occasioned at the outset with some pushing.

The accused is said to have then produced a knife that was red or orange in colour and brandished at the complainant. [ 19 ] The complainant then indicated that when the accused lunged at him with the knife that the accused got him in a headlock with his left arm and head immobilized. Unfortunately for the complainant, the accused’s right arm and shoulder was free and the complainant was stabbed in the back and stomach.

The complainant only felt the knife in his stomach. [ 20 ] The accused on this point stated as follows at page 10 of his statement: Nahmabin:…he comes at me and he fucking got me in a guillotine, I seen something on the floor and I just grabbed it and started going, doing, to get him off me right I don’t know what it was, poked him a couple of times. Whelpley: Yeah. Nahmabin: He let go of me, he went away. Whelpley: Okay who uh, do you know what you poked him with? Nahmabin: Uh no, no. Whelpley: Okay was it a knife? Nahmabin: Uh I think believe so yeah. Whelpley: Yeah okay. Nahmabin: It was on the floor.

Whelpley: Okay and when you were arrested there was a knife on you right. Nahmabin: Yeah, oh, oh yeah. Whelpley: Is that the knife you used? Nahmabin: No I dunno, I dunno, I don’t even know.

[ 21 ] On this point, the complainant, Darren Tunstill, described the knife as orange or red and the handle of the knife found on the accused was orange or red. Detective Constable Whelpley believed the staining on the knife blade was blood but no DNA analysis was conducted for reasons expressed by the officer.

In addition, although the accused indicated initially that he didn’t know if the knife found on his person that is Exhibit 12 at this trial was the knife used to cause the wounding , he later indicated that he left the knife used at the scene and just happened to pick up another knife at his residence when he was driven home from the Harris residence. [ 22 ] No other knife was found at the crime scene although there was both blood and a blood soaked mop found at the residence and generally the room, where the fight occurred, was in a dishevelled state. [ 23 ] The testimony of the complainant, Darren Tunstill, was thoroughly consistent as to what occurred at the Harris residence and why he was eventually assaulted with the knife brandished by the accused.

While I acknowledge some small inconsistencies in the evidence of the complainant as reflected in the written addendum provided to the court by counsel for the defence, I absolutely accept why there may be present some of those inconsistencies, particularly concerning the details of the fight. [ 24 ] The complainant was interviewed by the police at the hospital under the influence of drugs administered for the pain from the wounding and eventual stitching.

He was at times non-responsive to questions posed by the police and I counted at least three times that the complainant asked the police officer to repeat the question. On at least two occasions, the complainant’s answer or response had nothing to do with the question posed. [ 25 ] For those reasons, I place far greater emphasis on his written statement and oral evidence in chief and cross-examination to that of the audio statement heard in the courtroom.

Frankly, even with his testiness with counsel for the defence, I found that the complainant’s attitude, demeanour and comportment to the answers he provided to be genuine and absent any attempt to camouflage his involvement in this occurrence. [ 26 ] Furthermore, I found the complainant to be chagrined and embarrassed by this same involvement in this drug transaction and the resulting confrontation that was both a surprise to him and a source of personal angst and guilt for being found in this sleazy encounter. I do acknowledge one inconsistency in the complainant’s description of the knife.

He describes it as a paring knife, but I accept that in the extreme circumstances that the complainant found himself in that this discrepancy is, on balance, insignificant. [ 27 ] On the other hand, the evidence of Kathy Rogers called on behalf of the defence was inconsistent, vague and purposefully in conflict with the evidence of the accused, as reflected in his video statement, and the complainant through his testimony. In addition, as the accused’s surety, Ms.

Rogers was without a doubt an unmitigated disaster with little regard for the conditions that were to bind the accused upon his release into her care and custody. [ 28 ] To highlight this latter point, the accused had attended the Harris residence the evening before without his surety. This residence was described by the investigating officer as a ‘meth’ residence. Furthermore, on the morning/afternoon in question, the accused acknowledged smoking a joint with the complainant at this residence contrary to the conditions of his bail release but seemingly, the surety was unaware of this breach.

Furthermore, if the complainant is believed, the accused was said to also have partaken of a hit of ‘meth’ as well. [ 29 ] ‘Keep the peace and be of good behaviour’ would not fall within the parameters of a consensual fight and then a wounding with a knife regardless of the circumstances that led to the encounter. [ 30 ] If these shortcomings as a surety were not enough to place her testimony on the ‘highly questionable’ list, her evidence of what she heard upon the return to the Harris residence was incredible.

She states that the complainant was yelling at the accused to return to him a “parcel” that allegedly had already been taken from the complainant. [ 31 ] At one point she indicated that the complainant wanted the accused to show him his pockets to see if the “parcel’ was present in that location. Why or how a parcel could find its way into a pocket defies common sense. [ 32 ] Of course and without any question, both the accused and the complainant agreed that the argument between them was over the

assertion that the accused had refused to pay for the ¼ ounce of marijuana or refused to return the marijuana. Neither of the main combatants acknowledged any reference to a “parcel” as the source of their conflict. Where this expression arose is unknown but perhaps it is indicative of attempt by the surety to disguise the fact that the accused and the complainant were arguing over an illicit drug, a drug that was not supposed to be present with the accused. [ 33 ] Finally, she observed no blood or cut on the accused or on the floor or anywhere in the residence.

Nothing of significance had actually happened as far as she was concerned as reflected in her activities at her residence upon her return there after the fight. C.

Decision [ 34 ] Without hesitation, I reject the evidence of the accused with respect to how he acquired coincidentally and fortuitously a knife from the floor as opposed to his pocket while in a ‘guillotine hold’; additionally, upon my rejection of the accused’s evidence that it was the complainant and not he who was belligerent; and accepting beyond any reasonable doubt that it was the accused who aggressively attempted with his knife to intimidate and then purposefully lunged at the complainant with the knife; the clear version of the evidence, which I do accept beyond a reasonable doubt, is obvious and straightforward. [ 35 ] This is a drug deal that went bad and the seller was assaulted with a knife held by the purchaser to avoid any payment for the marijuana and to retain the drug.

In the drug culture, the seller was ‘ripped off’. Whether the accused, John Edward Nahmabin, Kathy Rogers and the complainant attended at the College St. complex in the complainant’s motor vehicle is really not germane to the evidence that I do accept, which is that the complainant attended at his residence as he indicated to retrieve the marijuana to effect a sale of this ¼ ounce to the accused. [ 36 ] Even a W. (D). analysis does not help the accused because of the many inconsistencies within his video statement.

This total rejection of the video statement of the accused with respect to his assertion of self-defence is a conclusion that I have arrived at absent any vigorous cross-examination by the Crown. There is no air of reality to the defence of self-defence particularly since I accept the evidence of the complainant that he did not have the accused in a choke hold or ‘guillotine’ as described by the accused. [ 37 ] Out of an abundance of caution, in reviewing the new self-defence

section of the Criminal Code, s. 34 , I see nothing contained within the numerous subsections that would assist the accused in proffering his assertion that this knife attack upon the complainant arose to protect himself from the assault of the complainant. This assertion is not borne out by the evidence. [ 38 ] There will be a finding of guilty on count #1 and count #2 in the indictment. In light of the Kienapple principle, count # 2 is stayed. “Justice J.A. Desotti” The Honourable Mr. Justice J.A. Desotti Released: October 28, 2013 CITATION : R. v. Nahmabin, 2013 ONSC 6674 COURT FILE NO.: 1714/13

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOHN EDWARD NAHMABIN REASONS FOR JUDGMENT DESOTTI, J. Released: October 28, 2013