Case Name:

[REDACTED]. v. [REDACTED]

IN THE MATTER OF the Youth Criminal Justice Act,

[REDACTED]

Between

Her Majesty the Queen, and

[REDACTED]

[REDACTED]

[REDACTED]

Ontario Court of Justice

Youth Justice Court - Brampton, Ontario

Judge: [REDACTED]

Heard: [REDACTED].

Oral judgment: [REDACTED].

(15 paras.)

Counsel:

[REDACTED]: Counsel for the Crown.

[REDACTED] Counsel for [REDACTED]

REASONS FOR JUDGMENT

1 Judge: [REDACTED] (orally):-- [REDACTED] is charged with committing an aggravated assault on [REDACTED] and [REDACTED] He is also charged with possession of a weapon for the purpose of committing an offence. As I stated to counsel at the end of submissions, based on [REDACTED]'s explanation for why he initially had the knife in his possession on April 17th, 2007, namely that, although he sometimes carries it for protection, he had not actually realized when he left the house that the knife was even in his pocket, it was my view that the offence had not been made out and he will be acquitted of that charge.

2 After considering all of the evidence relating to the charge of aggravated assault against [REDACTED], I am not convinced beyond a reasonable doubt that [REDACTED] caused [REDACTED]'s injury and he will be acquitted on that count.

3 [REDACTED] testified that although he was waving this pocket knife around and the blade was exposed, he did that to defend both himself and his friend, [REDACTED], who had been jumped by a number of youth. As well, it was his evidence that he did not believe that he cut anyone while he was doing that. I have no reason to reject his evidence on that point.

4 [REDACTED] testified that he felt only one blow. He did not see who inflicted that blow. It felt like a punch and later when he locked under his shirt, he saw that he had been cut. His evidence was less than satisfactory in terms of explaining what his involvement in the fight had been. He testified that he moved to protect A. from what he perceived would be an attack from [REDACTED], and then he played no further role in the fight that broke out. That was contradicted by both [REDACTED] and his sister, [REDACTED] testified that he became involved in the melee because [REDACTED] was being punched by a number of people and that he wanted to pull him out of the fight. He described A. as being involved in a separate and different fight. [REDACTED]'s sister, S., testified that she saw her brother fighting, albeit, she testified that she believed he was likely defending himself and she persuaded him to leave the fight. Even if I had not accepted [REDACTED]'s evidence, I would not have been prepared to rely on the other evidence relating to this count to found a conviction.

5 It is the final count of aggravated assault against [REDACTED] that is the most contentious. It is agreed by all of the witnesses that a fight did break out on April 17th, 2007, in front of Rick Hansen Secondary School and that a number of youths were involved. [REDACTED] testified that he did use the corkscrew on his pen knife to stab [REDACTED] when they were fighting at the fence. The issue is whether he was acting in self-defence and whether he used no mere force than necessary to prevent the assault or repetition of it. If I believe that [REDACTED] was using force to defend himself and that he used no more force than necessary to do so, or if I'm left in a state of reasonable doubt on these issues, then he must be acquitted.

6 [REDACTED]'s evidence is of little assistance in assessing the reasonableness of [REDACTED]'s actions since he purports to remember nothing of the fight, claiming to have "blanked out" until he found himself on the ground some distance from where the fight had started and realized. that he had a 0.8 centimetre cut on his stomach and a scratch on his buttocks. I agree that there was a break in the action between the first fight and the second when [REDACTED] pulled [REDACTED] out of the group that was beating up on who he describes as the "brown boy." However, given the connection between the two fights, both in time and the players, [REDACTED]'s actions have to be considered in the context of what had just occurred on the other side of the school yard.

7 [REDACTED]'s evidence was that the fight grew out of a dispute about whether he or others had been a snitch. He said he was punched in the face and then jumped by the group that he had been arguing with. He said that [REDACTED] was part of that group. He described being under a pile of people and being punched and kicked. He thought that the guy who was on top of him, apparently having taken him to the ground, was also receiving blows. His evidence is confirmed, at least in part, by [REDACTED], who testified that [REDACTED] was rushed by a group of youth and ended up on the ground being assaulted by that group.

8 [REDACTED](ph) confirmed that [REDACTED] was jumped by a number of people, he thought maybe 12. He testified that he and [REDACTED] attempted to pull some of the people who were assaulting [REDACTED] away and then that group, or portions of that group, turned on them.

9 [REDACTED] further testified that when he was able to break free of the first group, he saw someone getting beat up at the fence which was some distance away. He walked towards the fence where he said one of his boys was getting beaten up and he, [REDACTED], and [REDACTED] were trying to take people off of him.

10 [REDACTED] testified that he was involved in both of the altercations which took place on April 17th. He said that when he and his friends arrived at the school, [REDACTED] was confronted by a number of guys. He saw him pull his fist back and then get jumped by the group. He and [REDACTED] intervened. A number of the group started fighting with him. He ended up on the ground and was getting beaten up.

11 He pulled out his knife and started waving it around to get free. It apparently worked. The fight broke up and he and [REDACTED] were leaving when they saw, who he described as a random brown guy, getting jumped at the fence by a bunch of guys, one of whom was [REDACTED] He pulled [REDACTED] off the guy and they started to fight. They ended up on the ground. He testified that at some point he had the upper hand and he pulled out his pen knife and used the corkscrew twice on [REDACTED] He was not sure if [REDACTED] kept fighting, but it would appear that that action allowed him to break free and he and [REDACTED] left. The Crown argues that because the corkscrew was used at a time when, on [REDACTED]'s own admission, he had the upper hand that he was not acting in self-defence, or at the very least, that the force he used was excessive, albeit for a defensive purpose.

12 I am not convinced that I can determine the issue based solely on that excerpt of [REDACTED]'s evidence. He also stated that when he and [REDACTED] hit the ground, he was thinking, "Oh, my God, all these guys are going to jump on me because [REDACTED] is their boy." He testified that the whole incident happened very quickly and he didn't have time to think. He had just witnessed his friend, [REDACTED], getting jumped, as was he when he moved to intervene in that assault. Although at the time he used the corkscrew he was involved in a one on one fight, it was a fight occurring in the context of a number of youths beating up another person. His fear that if he did not get away other members of that group at the fence might join in with [REDACTED] was reasonable in the context of the events of that afternoon.

13 One cut was on the stomach, the other on the buttock[REDACTED] said that he used the corkscrew twice. If both injuries were caused by the corkscrew, it seems logical to me that both he and [REDACTED] must have been thrashing around since there is a cut on [REDACTED]'s front and his back.

14 On the evidence before me it does not seem to be a situation where [REDACTED] had gained control over [REDACTED] and a decision was simply made to stab him with the corkscrew. Rather, the scuffle would appear to be continuing when he used the corkscrew, regardless of whether or not he was getting the upper hand at that time. I accept that his actions of stabbing [REDACTED] with the corkscrew were to get away before the fight got worse.

15 In determining whether the force used was more than necessary, I am required to consider the degree of force exerted, the nature of the struggle, and all of the surrounding circumstances. I am mindful that an accused person cannot be expected to weigh with a nicety the force used when defending himself. I am also mindful that [REDACTED] was 15 at the time of this incident and 16 when he testified, and I take that into account when assessing the reasonableness of his belief that the force was necessary at the time and also assessing his evidence at this trial. I have already found that [REDACTED]'s fear that the group might join in was reasonable. The evidence led with respect to [REDACTED]'s injury appears consistent with a jabbing with a corkscrew in the course of an ongoing struggle and it would appear that once his goal was achieved, namely to break free, that he did leave. I accept that [REDACTED] was acting in self-defence when he stabbed [REDACTED] with the corkscrew and, given all the circumstances of that day, I find that the force used was not excessive and he will be acquitted.

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