nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 444 Date: 2011 10 07 Docket: C.R. No. 3/2010 Judicial Centre: Prince Albert BETWEEN: HER MAJESTY THE QUEEN and FREDERICK JUNIOR KNIFE Counsel: Maureen M. Longworth for the Crown Valerie N. Harvey for the accused ORAL JUDGMENT POPESCUL J. October 7, 2011 I. Introduction [1] The accused, Frederick Junior Knife (the “accused” or “Knife”), is charged with one count of aggravated assault and one count of common assault relating to a violent incident that took place in the maximum security unit of the Saskatchewan Penitentiary at approximately 8:30 p.m. on September 1, 2008. The accused and the two alleged victims were inmates at the prison and were being held on “B” Block, range designated for gang members. [2] Given that the incident was captured by two security videos, there is no doubt as to what happened. The issues raised by the accused pertain to how his actions ought to be characterized. [3] The two DVD videos were entered as exhibits and played during the trial. Also, have subsequently watched the videos in private on number of occasions. The videos show Common Room “C”, an area where the “B” Block inmates are permitted to occasionally congregate to watch television, play cards and take some meals. The room is equipped with microwave. Immediately prior to the incident that gives rise to the charges, there were nine inmates in Common Room “C”. summary of what is depicted in the videos is as follows: [4] At 8:25:27, inmate Keith Coutu (“Coutu”) places cup into the microwave and turns it on. At 8:29:10, Coutu takes the cup out of the microwave and walks over to one of the four tables where the first victim, inmate Murray Dorion (“Dorion”), is sitting, apparently doing nothing. Coutu is immediately followed by Knife and inmate Tristan Raphael (“Raphael”). Raphael and Knife place themselves in close proximity to Dorion. It is obvious from the actions of Knife, Coutu and Raphael that they are acting in concert and for common purpose. [5] Coutu then sits down next to Dorion at the table momentarily. Then at 8:29:24, Coutu immediately rises and throws the hot liquid from the cup directly into Dorion’s face. Dorion jumps up, at which time Coutu starts making numerous stabbing motions that connect with the body of Dorion. [6] Immediately after Coutu initiates the assault, Knife jumps into the fray. Knife, brandishing some type of weapon, can be seen to be making numerous stabbing motions towards the body of Dorion. It is evident that the stabbing blows are connecting with the intended target. Dorion, disabled by the hot liquid and the surprise attack, is getting the worst of it. [7] Inmate Darren Demeria (“Demeria”) comes to the aid of inmate Dorion and appears to attempt to pull Knife out of the fray. At this point, inmate Cory Dreaver (“Dreaver”), who also appears to be armed with knife‑like object, begins to stab Demeria multiple times. [8] Knife then twists away from Demeria, and Knife, Dreaver and Demeria grapple with one another. Knife then finds himself in the immediate vicinity of Dorion, at which time he takes the opportunity to repeatedly stab him again. [9] In the meantime, Dreaver throws television at Demeria, and Demeria deflects it away. Knife grabs the television and throws it at Demeria, who blocks it with his arms. Knife and Dreaver then turn their attention to Demeria and stab him repeatedly. Eventually, Demeria gets away and heads to the back of the room. [10] Knife then approaches one of the tables in the common room where Dorion is being stabbed by Raphael. Knife then joins Raphael, Coutu and Dreaver, who continue to repeatedly and viciously stab Dorion. [11] Then, gunshot rang out, and the violence came to an abrupt halt. corrections officer, from vantage point above the common room, fired live round into the common room in order to quell the disturbance after verbal commands to stop were not heeded. [12] The inmates were then directed to lie prone on the floor and were eventually removed one by one. Seven homemade knives, known as “shanks”, were found in and around the common room. [13] Dorion received severe first and second degree burns to his face, eye, neck and shoulders. He also sustained numerous puncture wounds and lacerations. Somewhat incredibly, despite the nature of the assault, Dorion was not critically injured. The burns were treated in hospital, and full recovery, with the exception of some possible scarring, occurred or was expected to occur. The puncture wounds, although numerous, did not result in permanent or life‑threatening injuries. Major organs were not affected. In fact, although some of the puncture wounds may have been deep, none of them required suturing because they were not gaping. [14] In addition to the videos, several corrections officers testified as to what they saw and how and why they reacted and did what they did. These corrections officers also provided evidence about the prison environment and the challenges that they and the inmates face in attempting to keep everyone safe. None of the inmates testified at the trial other than the accused. [15] The accused chose to testify. The essence of his testimony was that he was justified in making pre‑emptive strike on Dorion because he feared that if he did not hurt Dorion, then Dorion would hurt him. [16] There is no issue as to identity. In voir dire held before the trial proper, granted the Crown’s request to permit it to call recognition evidence in accordance with the principles set out in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] S.C.R. 393, [1989] W.W.R. 332. Officer Layman, who was very familiar with Common Room “C” and the inmates on that range, gave evidence as to “who was who” on the video recording. Further, the accused was wearing distinctive jacket during the altercation. The evidence was that once the shot was fired, the accused laid on the floor until removed by the guards. His jacket was seized by the guards and placed into evidence at the trial. It is easy to connect the jacket in evidence to the person wearing the jacket in the video. Further, the accused testified and admitted to the actions depicted in the video. There is no doubt as to what Knife did. [17] The issue, as stated at the outset, is how the acts should be construed. III. Defence Argument [18] The defence advances three main arguments: (1) that the Crown has failed to prove beyond reasonable doubt that the injuries caused to Dorion falls within the definition of “... wound, maim, disfigure or endanger life”. (2) that the acts of Knife alleged by the Crown to be an aggravated assault, vis‑à‑vis Dorion, were done in self‑defence as contemplated by s. 34(2) of the Criminal Code. (3) that the acts of Knife alleged by the Crown to be common assault, vis‑à‑vis Demeria, were done in self‑defence as contemplated by s. 34(1) of the Criminal Code. IV. Parties to the Offence and Joint Principal Offender Analysis [19] Before embark on an analysis of the three arguments, it is useful to firstly discuss the concepts of “parties to the offence”, “principal offender” and “secondary offender”. [20] It is clear from the video, the evidence of corrections officers and the testimony of Knife that Raphael, Coutu, Dreaver and Knife were involved in the assaults against Dorion. In the circumstances of this case, it is not legally necessary to distinguish and isolate the specific acts of Knife from the acts of the other joint participants for the purpose of determining which acts caused which injuries. Section 21 of the Criminal Code attaches criminal responsibility to person as party to an offence if that person, with the requisite intent, plays any one of three roles in the offence: (a) Section 21(1)(a) imposes liability for acting as principal. If the person actually commits the offence, liability follows; (b) Section 21(1)(b) imposes liability by virtue of person doing, or omitting to do, acts for the purpose of aiding principal to commit an offence; and (c) Section 21(1)(c) imposes liability if person abets the principal. To “abet” means to actively encourage or to assist or support in the achievement of purpose. [21] The law is well settled that each of principal, an aider and an abettor is party to the particular offence charged, and each bears the same responsibility for that offence. It is immaterial which particular role (principal, aider or abettor) an individual plays. Consequently, the difference between aiding and abetting and personally committing an offence is legally irrelevant. See R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] S.C.R. 652. [22] Where one of the parties to crime actually carries out the physical act (actus reus) and possesses the requisite intention (mens rea), then that party “actually commits” the offence by operation of s. 21(1)(a). This person is considered to be the “principal offender”. There can be more than one “principal offender”. This concept is summarized by E.G. Ewaschuk in Criminal Pleadings and Practice in Canada, 2nd ed., vol. 1, looseleaf (Aurora, Ont: Canada Law Book, 2007) at para. 15:1015: 15:1015 Acting together toward common object (joint principal offender) Where several persons act together toward common criminal object, with the “requisite intent”, and any of them jointly or severally achieves the common object, all who are present at the commission of the crime commit the crime as joint principal offenders. This principle has been pithily stated in concrete terms that “the blow of one is, in law, the blow of all of them”. [Reference to authorities omitted] [23] In the circumstances of this case, it has been established beyond reasonable doubt that Knife acted in concert with Raphael, Coutu and Dreaver in the commission of the assault on Dorion. It is legally irrelevant whose shanks caused which injuries. Therefore, have no difficulty in concluding that Knife is legally considered to have caused the injuries to Dorion by virtue of s. 21(1)(a) of the Criminal Code, and so find. Even though he did not throw the water in Dorion’s face, he participated and assisted in the joint assault on Dorion that led to the injuries. [24] This, however, is not the end of the analysis. The Crown must also establish the mental element. The mens rea requirement for aggravated assault is an objective foresight of bodily harm. See R. v. Godin, 1994 CanLII 97 (SCC), [1994] S.C.R. 484. Further, an accused is not required to have objective foresight of specific wounds. The evidence establishes beyond reasonable doubt that the assault upon Dorion was about to happen, and Knife voluntarily joined in. Although Knife denies that there was specific plan, he admits that his group moved in unison with the purpose of attacking Dorion. The Crown does not need to establish that Knife knew that Raphael was going to throw hot liquid in his face, although that would be reasonable conclusion to draw. Clearly, Knife knew that something was about to happen and that it was going to be “bad” and that Dorion was going to be the recipient of some type of violence. [25] find that, in all of the circumstances of this case, the Crown has established beyond reasonable doubt that bodily harm to Dorion was objectively foreseeable by Knife as probable consequence to the plot to which he was party. After all, he admitted that his purpose was to inflict “hurt” on Dorion. [26] As an aside, should note that the evidence, which have accepted as proving beyond reasonable doubt that Knife was joint principal offender, is also alternatively capable of constituting Knife as an “aider”. It is, in my view, conceptually possible to be liable as both “joint principal offender” and as “secondary offender”. Had not found Knife to be “joint principal offender”, would have found him to be an “aider” pursuant to s. 21(1)(b) of the Criminal Code. The terms “aiding” and “abetting” have similar meanings, although they are separate concepts. To “aid” under s. 21(1)(b) means to assist or help the actor. To “abet” under s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed. See R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825. [27] Here, at the very least, Knife clearly assisted and helped Coutu in committing the assaults on Dorion. [28] With these principles in mind, will now deal with the three defences raised by counsel for Knife. V. Defences A. The injuries do not constitute “... would, maim, disfigure or endanger life ...” [29] The defence argues that the Crown failed to prove beyond reasonable doubt that the injuries caused to Dorion fall within the definition of “... wound, maim, disfigure or endanger the life”. [30] find that the actions of Knife are such that, as matter of law, he is legally responsible for the burn wounds and the stab wounds, either of which would be easily capable of establishing the “wounding” component of the offence of aggravated assault. Although it is true, somewhat remarkably, that Dorion did not sustain more serious injuries, multiple stab wounds and first and second degree burns to the face, eyes, neck and shoulders unquestionably satisfy the “wounding” element. It does not matter, from legal perspective, that Knife did not actually throw the liquid, nor is it necessary for the Crown to establish which puncture wounds belonged to Knife and distinguish them from the others. [31] The Crown has established beyond reasonable doubt, subject to whether the defence of self‑defence has application, that the assault on Dorion constitutes an aggravated assault within the meaning of the Criminal Code. [32] Accordingly, the argument that the injuries inflicted by Knife were not serious enough to be considered “aggravated” is rejected. B. Dorion: the s. 34(2) defence [33] I will next deal with the argument that Knife’s actions against Dorion were done in self‑defence as contemplated by s. 34(2) of the Criminal Code. [34] Section 34(2) reads as follows: (2) 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 was originally 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. [35] preliminary condition to the operation of s. 34(2) is that the accused caused death or grievous bodily harm to the victim. In this case, have concluded that the accused inflicted injuries to Dorion that fit within the category of an aggravated assault and also constitute grievous bodily harm. Accordingly, find that the preliminary condition having been met, self‑defence under s. 34(2) will succeed if it is proved, or where there is reasonable doubt about whether the three conditions of that subsection are met. [36] All three elements must be established in order for the defence to succeed. See R. v. Hebert, 1996 CanLII 202 (SCC), [1996] S.C.R. 272. If the Crown proves beyond reasonable doubt that any one of the above three elements is lacking, self‑defence is not available to the accused. See R. v. Cinous, 2002 SCC 29 (CanLII), [2002] [37] Each of the three elements under s. 34(2) have both subjective and objective component. The accused’s perception of the situation is subjective, but the accused’s belief must be objectively reasonable on the basis of the situation that he perceives. The requirement of an objective analysis ensures that the criminal law encourages reasonable and responsible behaviour. See R. v. Thibert, 1996 CanLII 249 (SCC), [1996] S.C.R. 37 at 46. [38] In Cinous, at paragraph 94, the Supreme Court directs that: 94 ... With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances. [39] The three ingredients of s. 34(2) are: (1) Did Dorion unlawfully assault Knife (or Knife reasonably believed that Dorion assaulted him); (2) Did Knife cause the death or grievous bodily harm to Dorion under reasonable apprehension of death or grievous bodily harm to him; and (3) Did Knife believe on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm at the hands of Dorion. [40] Before address these three elements, it is worthwhile to review, in some detail, the evidence of Knife. [41] Knife was transferred from Stony Mountain Penitentiary in Manitoba to Saskatchewan Penitentiary on November 30, 2007. He says that he was transferred to Saskatchewan Penitentiary because he wanted to be closer to his family. Knife admits that he was on “gang range” in Manitoba and that he needed to be on “gang range” in Saskatchewan. He admits that he was member of the Indian Posse. Knife testified that as soon as he got to Saskatchewan Penitentiary and learned that he was about to be placed on “B” Block, he told the authorities that he did not want to be placed on that range. He states that his request was ignored. He testified that he was victim of violence on two occasions while at Saskatchewan Penitentiary. Once he was assaulted by two inmates on “A” Range, and on another occasion he got “shot in the head” by three of the inmates on “B” range. He did not elaborate on the specifics of these alleged incidents. [42] He states that in the days leading up to the September 1, 2008, incident, he noticed things that caused him to become suspicious. For example, he noted that two inmates appeared to have been crafting weapons. He also claims that he believed that he and some of his friends, including Coutu, were being shunned by some of the other inmates on his range. [43] Knife testified that at approximately 11:30 a.m. on September 1, 2008, the “B” Block inmates were let out of their cells by corrections officers. He says that shortly thereafter, Dorion and several other inmates approached Knife, who was with Coutu, Raphael and Dreaver. According to Knife, Dorion and two of the other inmates in Dorion’s group were brandishing shanks, and Dorion said, “We are going to take you out.” Knife testified that this came “out of the blue” and that “we had no clue as to what was happening”. [44] Knife testified that before anything really got going, fellow inmate Jeremy Wincup (“Wincup”) intervened to smooth over the waters, and the situation stabilized. Knife said that the two groups agreed to talk out their differences over lunch, but that this did not happen. [45] Knife testified that he became suspicious that something was going to happen on his range when inmate Shawn Ireland (“Ireland”) was abruptly transferred out of “B” Block that day. To Knife, who had some experience within the federal penitentiary system, the fact that an inmate is abruptly moved off range signals that the inmate was uncomfortable for some reason. [46] Later on that day, Knife says that he briefly came in contact with Ireland, who told Knife that “they’re going to kill us kill me and Keith Coutu.” Ireland did not say who “they” were, but it was obvious to Knife that the “they” was the group they had had an encounter with earlier. [47] Knife then indicated that he felt that he was being shunned and that this was significant to him because inmates tend to stay away from those who are about to be assaulted. [48] Knife’s counsel drew to Knife’s attention the fact that the video recordings seem to indicate that he was mixing with the other inmates, to which Knife responded with words to the effect that the “vibe was still there” and that he was “trying to get along”. Around 7:30 in the evening, Knife says that he received another type of tip from another inmate that violence might happen. The warning was somewhat vague. [49] Knife admits that he obtained shank from fellow inmate around 8:00 p.m. that evening because he says that he was concerned his life was in jeopardy. Knife testified that he was concerned about Dorion because Dorion had pulled weapon on him and Coutu, and that Dorion was the main threat because he was lifer and had nothing to lose. Knife admits that his intention was to hurt Dorion so that he would not hurt him. He denies, however, that Coutu and he formulated plan. However, when asked by Knife’s counsel as to why it was that he, Coutu and Raphael all moved at the same time, Knife responded with words to the effect that: “I don’t know. It just happened, It just happened. In jail environment after awhile, if you are with the same people, you know what happens when when you see someone move. It just like us don’t know kinda like sign of ‘go‑tell” or whatever. It just happened. It just happened.” [50] Knife was asked what he was thinking as Coutu was moving towards Dorion, to which Knife responded with words to the effect that: “I was just thinking about Dorion because he’s the one who pulled the weapon on us. And Barry Dean wasn’t there. Neither was Ivany. And felt that Dorion was the main threat to me cos as soon as he pulled out his blade on me, felt that he was going to stab me or maybe even take my life. He’s lifer and doesn’t have anything to lose. felt that he was threat to me and threat to my safety and security in the prison system.” [51] When Knife was asked if he though of any alternatives other than the use of violence, he stated: “I never thought about that. The only thing that was going through my head at the time was that might die in the prison system. didn’t want to be person who gets killed in there. And sure didn’t want my friend to get killed. And didn’t want me shanked vice versa.” [52] Knife was also asked why it was that he did not ask that the guards take him off the range if he thought he was in jeopardy. Knife responded by saying: “Yeah, it doesn’t happen like that. Nobody runs and tells to the guards. “It’s kind of code it’s kind of an inmate code. Nobody says anything. What happens amongst you stays amongst you, but that’s what it is. That’s why nobody said anything of this case. I’m the first to get up on the stand and right now doing this is kinda not kinda fear for my life. The gang that left are I’m nervous sitting up here right now.” ... “It never really came to me at that time never thought of it. If moved from that unit that day, either way of where would have went, it would have looked bad and it probably would have been open season on me wherever went because of the known affiliation. ‘Max’ is not very big. Everybody knows everybody. Word gets around fast.” [53] However, it is interesting to note that Knife indicated that at 4:00 p.m. on December 28, 2008, he decided not to continue on with the gang lifestyle and buzzed the corrections officer on the intercom and asked him to remove him from the range. According to Knife, the corrections officer initially laughed and did not take him seriously. Knife then reiterated his request. The corrections officer asked him why it was that he wanted to be taken off the range, to which Knife responded that he did not have to tell him. Knife acknowledges that he was removed forthwith from the range to different area. He states that he is no longer member of gang. [54] will then now deal with the three elements. 1. Did Dorion unlawfully assault Knife (or did Knife reasonably believe that Dorion assaulted him)? [55] Lamer C.J. in Pétel, 1994 CanLII 133 (SCC), [1994] S.C.R. 3, determine that the existence of an actual assault is not prerequisite for defence under s. 34(2). Rather, Lamer C.J. stated at page 13: ... The question that the jury must ask itself is therefore not “was the accused unlawfully assaulted?” but rather “did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?”. [56] Generally speaking, person commits an assault, according to the law, when he attempts or threatens to apply force to another person, if that person who makes the attempt or threat has or causes the other person to believe on reasonable grounds that he has the present ability to carry out that purpose. This seemingly simple statement has been given somewhat expansive meaning by the Supreme Court of Canada. In R. v. McConnell, 1996 CanLII 189 (SCC), [1996] S.C.R. 1075, the Supreme Court of Canada adopted the dissenting opinion of the Alberta Court of Appeal in the decision of R. v. McConnell (1995), 169 A.R. 321 (Alta. C.A.). In that case, our highest Court held that an assault may be made by threat where the recipient reasonably believes that the person making the threat has the present ability to carry out that threat, notwithstanding that the physical aspect of the assault is not imminent or immediate. McConnell makes efforts to reconcile the assault requirement with the absence of an immediacy requirement by focussing on the words, “present ability to effect his purpose” within s. 265(1)(b) that reads in full as follows: 265. (1) person commits an assault when ... (b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or [57] Accordingly, close reading of the jurisprudence would indicate that s. 34(2) defence may succeed where there is past threat, followed by physical proximity (so that there is present ability), but the danger is still in the future. [58] The requirement that the accused “is being ... assaulted” or reasonably believes that he “is being ... assaulted” does not impose an imminence requirement, although imminence of the attack is factor that can be taken into account when determining the reasonableness of the accused’s response. See R. v. Cinous, supra. This concept would mean, therefore, that battered wife, for example, would not have to wait for the “uplifted knife” but could act before becoming physically incapable of repelling an impending albeit not imminent assault. [59] The defence contends that the assault component requirement is met because the earlier threat that took place at 11:30 a.m. that morning was still in play, which justified pre‑emptive strike by the accused. However, with respect, this is not correct interpretation of the law in this area. It is important to appreciate that one of the underlying principles for the existence of the assault component requirement in the s. 34(2) defence is to prevent self‑defence from being used “... as cloak for aggression, retaliation or revenge”. See R. v. F. (D.S.) (1999), 1999 CanLII 3704 (ON CA), 169 D.L.R. (4th) 639 (Ont. C.A.). There must still be some temporal connections between the perceived assault and the alleged act of self‑defence. In other words, the accused must believe that the victim was going to attack him and that the assault was pending and not just an apprehended event that would occur sometime in the future. [60] For example, in R. v. Currie (2002), 2002 CanLII 44973 (ON CA), 166 C.C.C. (3d) 190, C.R. (6th) 377 (Ont. C.A.), leave to appeal to S.C.C. refused, it was found that it is not self‑defence for the accused to take the opportunity, when it presented itself, to kill victim that had earlier attempted to kill him. Although the accused in that case had reason to fear the victim, he had no reason to believe at the time of the shooting that the victim was going to attack him or that pre‑emptive strike was required to repel an attack. [61] Now, will apply the above principles to the circumstances of the case before me. It is first necessary to determine whether or not the Crown has proved, beyond reasonable doubt, that the subjective component of the first prong of the s.34(2) of the defence is missing. There is direct evidence on Knife’s belief in the form of the his testimony. He claims that he had been assaulted earlier in the morning by way of the threats made by Dorion and his group when they were brandishing their knives. That aspect of his testimony, at the very least, might reasonably be true, and therefore, accept it for the purpose of this analysis. However, at the time that the incident erupted at 8:30 p.m., the 11:30 a.m. threat had long dissipated. While it is true that the accused was suspicious about certain goings‑on and while it is also true that, from his perspective, he may have been justified to be “on guard”, given his perception of what was potentially brewing, there is insufficient evidence before me from which could conclude or be left in reasonable doubt that the accused believed that he was being unlawfully assaulted as required by the first prong of the s. 34(2) test. If, in fact, as the accused contends, the Dorion group was going to take out the Coutu/Knife group, why was the focus of the assault only on Dorion? Further, unlike the circumstances in Cinous, supra, there was no evidence, even from Knife’s point of view, that he was about to be attacked. It may be fair comment that, given the unfortunate penitentiary environment especially on the gang range it is survival technique to be “on guard”. However, it is clear that the accused was not about to be assaulted but, rather, that he was planning to assault Dorion. Even accepting Knife’s testimony in its best light leads to the conclusion that although an earlier threat had been made, he was not concerned that he was about to be assaulted in the common room, which was monitored by corrections workers and security cameras. He may have been concerned or even fearful of Dorion, but by his own admission, any possible violence towards him was not imminent, albeit it might happen sometime in the future if at all. [62] Similarly, with respect to the objective component, even if the accused’s perception of the attack was genuine, which reject, but as argued by the defence, it was not reasonable in the circumstances for him to hold that view. Objectively speaking, there was nothing happening prior to Knife’s decision to attack Dorion, which would lead to the conclusion that the accused reasonably believed, in the circumstances, that he was being unlawfully assaulted. While true that he did not have to necessarily wait for the “upheld knife” before taking action, it is equally true that he is not legally permitted to bank the previous threat and make pre‑emptive strike when he sees golden opportunity. [63] Accordingly, I conclude that the accused did not believe that he was being assaulted, within the meaning of the law, and that, even if he did hold this belief, which I find not to be the case, such a belief was not reasonable in the circumstances. [64] Accordingly, find that the first component of the three‑part self‑defence test, under s. 34(2) is not met. In order for the s. 34(2) self‑defence plea to be successful, must be left with reasonable doubt as to the existence of all the elements of the defence. The fact that have found that am not in reasonable doubt respecting the absence of the first element of the s. 34(2) defence, the defence of self-defence, as whole, cannot succeed. However, will, nonetheless, go through and deal with the other two components. 2. Did Knife cause the death or grievous bodily harm to Dorion under reasonable apprehension of death or grievous bodily harm to himself? [65] The analysis, as it relates to this second prong of the s. 34(2) defence, follows substantially the same path as with respect to the first prong. Not only must the accused reasonably believe he was facing an attack but he must also reasonably believe that he faced death or grievous bodily harm from that attack. There is no question that the accused testified that he feared death or grievous bodily harm in the sense that he claimed that Dorion and his gang, who had access to shanks, was going to kill him or, at the very least, seriously harm him. Nonetheless, I reject both the subjective and objective components of the second prong of the test for the same reasons that I rejected the first prong of the test. [66] Admittedly, if the first prong would have been resolved in favour of Knife, the second prong would have also been resolved in Knife’s favour. If he reasonably believed, in the circumstances that he was being unlawfully assaulted, it flows that the assault that he was facing would have been such that he would have reasonable apprehension that he faced death or grievous bodily harm from that assault. However, as I stated previously, I do not accept, on a subjective or objective basis, Knife reasonably believed that Dorion had the present ability to carry out the threat, notwithstanding that the physical aspect of the assault need not be imminent or immediate. [67] Accordingly, find that the second prong of the three‑part test has not been made out. Specifically, am not left in doubt as to the absence of prong two of the three‑part test. 3. Did Knife believe on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm at the hands of Dorion? [68] As with the other components of s. 34(2) defence, this third prong has both subjective and an objective component. The Supreme Court has directed, as mentioned previously, that the inquiry starts with the subjective perceptions of the accused at the relevant time, and then moves to whether those perceptions were reasonable. It must be established both that the accused believed that he could not preserve himself except by stabbing Dorion, and that he held this belief on reasonable grounds. [69] The decision of R. v. Raphael, 2009 SKCA 16 (CanLII), [2009] W.W.R. 611, is particularly helpful in the context of this case. Jackson J.A., speaking for the Court, made the following comments: 36 When we come to the third element of s. 34(2) ... the trial judge was required to consider all of Mr. Raphael’s circumstances, including that he was serving prisoner, on range populated by rival gang, in the prison setting as it existed for him on March 16, 2006. In assessing the alternatives available to Mr. Raphael, the trial judge was required to consider that Mr. Raphael had broken hand, the fight took place in six foot wide corridor, and there were no open doors other than the door to his own cell. The trial judge also had to consider that Mr. Sparvier did not remain passive in this fight. Mr. Sparvier did not appeal to the guards for help or retreat to them, even though he was losing the fight, and indeed he continued to fight throughout the altercation. As one of the guards testified, “they were exchanging blows as normal boxing ring fight.” Even after having been stabbed 14 times, and being restrained by the guards, he was not spent force. He was able to break free from his guards and stomp on, or kick, Mr. Raphael’s head. It also must be remembered that at the initial point of the confrontation, the guards were on the wrong side of locked gate, and it was Mr. Sparvier who put them there. [70] There are many parallels between this case and the Raphael case, and have taken into consideration all of Knife’s circumstances, including the type of circumstances mentioned by Jackson J.A. in Raphael. [71] Firstly, dealing with the subjective element, I find that Knife did not believe that he had no other option. He admitted, in fact, that he did have other options but, rather, he chose not to avail himself of them. He could have notified corrections officers that he felt that he was not safe. There were variety of ways of bringing his concern to the corrections officers’ attention. He could have told the corrections officers personally because he is in regular contact with them, or he could have availed himself of the use of the intercom system. Also, testimony was provided that inmates routinely slip notes to the guards, called “kites”, in which they can secretly notify the corrections officers of their concerns. The accused acknowledged that he was aware of these avenues. [72] However, Knife chose not to avail himself of any of these opportunities. The reason that he chose not to avail himself of any of these options at that time was because he was still embracing the gang lifestyle and was not then prepared to disassociate himself from his gang. From his perspective, this led to two problems. Firstly, it was unseemly, in his view, to ask for assistance from the corrections officers because there is “prisoners’ code” that “what goes on in prison, stays in prison”. Secondly, he indicated that he believed that if he was to request to be moved, other gang members would become suspicious of him, and he feared that he would be the recipient of further violence. [73] Knife also intimated that he was concerned about whether the corrections officers would have moved him because, upon being transferred to the Saskatchewan Penitentiary, he indicated to officials, prior to being placed on Block “B”, that he did not want to go there. The corrections workers, nonetheless, placed him there, which, according to Knife, made him doubt whether they would, in fact, move him if requested. [74] However, do not accept Knife’s testimony in this regard, and it does not leave me in reasonable doubt with respect to the nonexistence of the subjective component of the third prong of the test. Clearly, Knife had options. He testified that he only had 30 days left on his sentence before he would have been moved out of Saskatchewan Penitentiary. As result, placing himself out of harm’s way, should he have chosen to do so, was not lifelong ordeal but would have only occupied 30 days of his time. Further, Knife was aware, despite what he said about his initial request to not be placed on “B” Block, that his request to be moved from “B” Block would have been quickly honoured. This was evident by the fact that Knife knew that the very day Ireland expressed desire to be moved, he was, in fact, moved. Further, and particularly revealing, Knife testified that, subsequent to the incident, on December 28, 2008, he decided to give up the gang lifestyle and requested to be moved, and was moved, from “B” Block. Knife testified that once he made the decision to be moved from “B” Block, he contacted corrections worker and demanded to be taken off the range. He claims that, initially, the corrections worker laughed at him and did not take him seriously. Knife testified that he then used the intercom second time to contact the guards and told them that he wanted to be moved off the “B” Block range that moment. The corrections officer asked “why?”, to which Knife responded that he did not have to give him reason and that it was none of the corrections officer’s business. Knife acknowledged that he was moved immediately from the range. Clearly, Knife knew what to do to get himself out of harm’s way should he have chosen to do so. [75] The evidence from number of corrections officers confirmed that attempts are made to keep the prisoners safe and attempts are made to house compatible inmates together. However, if an inmate wants to move due to safety concerns, they accommodate that request. [76] Further, unlike in the Raphael case, Knife was in monitored common room which was equipped with video surveillance cameras and under the watchful eyes of corrections officers. The accused was aware of this and knew, or should have known, that under those circumstances those in the common room ought to have been considered safe from attack except from the most brash, defiant and contemptuous. [77] Also, it does not make sense that it was somehow necessary to preserve Knife (and his cohorts) from death or grievous bodily harm by inflicting injuries upon just Dorion. What about the other inmates who allegedly joined in the threat with Dorion? Also, Knife testified that his intention was not to kill Dorion but was only intended to hurt him so that he would not, in turn, hurt Knife. However, his statement is inconsistent with the violent actions depicted in the video and with the balance of the evidence before me. His actions, and those of the other inmates that acted in concert with Knife went far beyond what was necessary to repel any alleged threat. [78] Likewise, the objective evaluation also leads to the same conclusion. Evaluated objectively, it was not reasonable for the accused to believe that he could not preserve himself from death or grievous bodily harm other than by assaulting Dorion in the way that he did. Going to his cell, which was an option, or asking to be moved from the range were reasonable options open to him, but rejected for objectively unreasonable reasons. [79] As result, in the final analysis, find that all three prongs of the s. 34(2) defence have not been proved and am not left in reasonable doubt as to whether or not any of them might be established. [80] should add, as well, that am mindful of the comments made by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742, which guides triers of fact in analysing the testimony of an accused. The concepts raised in R. v. W.(D.) ought to be kept in mind, especially when considering the subjective component of each of the three elements set out in the s. 34(2) defence. In particular, need to assess whether believe the accused’s testimony or, even if do not believe the testimony of the accused, whether am left in reasonable doubt by it. Further, even if am not left in doubt by the evidence of the accused, still must ask myself, on the basis of the evidence which do accept, whether am convinced beyond reasonable doubt by that evidence of the guilt of the accused. [81] Finally, on this point, would be remiss if did not comment that pre‑emptive strikes in the guise of self‑defence are available in only very limited circumstances. Certainly, the law cannot be that if someone makes threat to cause one death or grievous bodily harm, then that would give one licence to cause death or grievous bodily harm to that person at subsequent time of the accused’s choosing. While prisons undoubtedly present difficult and unique problems for those within the system, including both inmates and prison officials, it ought not to be considered zone of anarchy where the laws of the land are not applicable. Rather, the special circumstances of the prison environment must be considered and have been considered by me, but, in these circumstances, the defence of s. 34(2) must fail. C. Common assault on Demeria: s. 34(1) self-defence [82] recap of the salient facts respecting the common assault allegation respecting Demeria is as follows. Coutu throws hot liquid on Dorion’s face and body and then begins to stab him repeatedly. Knife immediately jumps into the fray and also begins to stab Dorion repeatedly. Demeria, who was in Common Room “C” but who had thus far been uninvolved in the altercation, comes to the assistance of the outnumbered Dorion and grapples with Knife. Dreaver then attacks Demeria, who was involved with Knife and stabs Demeria numerous times. Knife turns his attention away from Dorion, at which time an altercation occurs as between Knife and Dreaver versus Demeria. fan is thrown by Dreaver at Demeria. Dreaver throws television at Demeria, after which Knife grabs the television and throws it at Demeria. Dreaver and Knife stab Demeria number of times before Dreaver gets away and retreats to the back of the common room. No evidence as to the injuries sustained by Demeria if any was presented. [83] The question is whether Knife is guilty of common assault on Demeria. [84] The defence argues that it was Demeria who attacked Knife, and Knife is entitled to rely upon the self‑defence provisions of s. 34(1). The defence contends that the Crown’s argument that s. 37 protects Demeria is not applicable because the section could only be used as shield and not sword. [85] The Crown argues that Demeria was justified in doing what he did by virtue of s. 37 of the Criminal Code and that Demeria’s actions in coming to the aid of Dorion were lawful and, therefore, Knife’s reaction against Demeria was an unlawful assault. [86] Section 37(1) of the Criminal Code reads as follows: (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. [87] There appears to be no definition of the term “any one under his protection”, and, therefore, there is some doubt whether s. 37 is applicable. However, I do not need to assess the application of s. 37 because I find that s. 27 of the Criminal Code is applicable. That section reads: 27. Every one is justified in using as much force as is reasonably necessary (a) to prevent the commission of an offence (i) for which, if it were committed, the person who committed it might be arrested without warrant, and (ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or (b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph(a). [88] In this case, Demeria obviously came to the aid of an individual who was being stabbed repeatedly. He was legally justified, therefore, to use as much force as was reasonably necessary to prevent the commission of an offence which would be arrestable without warrant and which was likely to cause immediate and serious injury to Dorion. Consequently, I find that Demeria was clothed in legal justification when he entered the fray. In response, Knife turned his attention to Demeria and assaulted him. I find, as well, that Knife is not entitled to the protection of s. 34(1) because Knife provoked the assault, and the force he used was more than necessary to enable him to defend himself. It is obvious from the video recordings that Knife was armed with a shank, whereas Demeria was not, and that stabbing Demeria and holding him so that he could not get away, as Dreaver and Knife were doing, was far more force than was necessary to enable him to defend himself. [89] As result, find that all of the elements of the common assault offence have also been made out by the Crown beyond reasonable doubt. Conclusion [90] In the final analysis, I find that the Crown has made out all of the elements of both counts beyond a reasonable doubt and, therefore, find Frederick Junior Knife guilty of both Count 1 and Count 2 as specified in the indictment. J. M.D. Popescul
In the evening, the accused inmate and his two co-accused inmates placed themselves in close proximity to the complainant inmate at table at the Penitentiary. The co-accused threw hot liquid from the cup directly into the complainant's face and the three inmates commenced stabbing the complainant with weapon. second complainant inmate attempted to intervene to assist the first complainant and the accused and co-accused began to stab the second complainant. The first complainant suffered severe first and second degree burns to his face and to his shoulders as well as numerous puncture wounds and lacerations but was not critically injured. The accused was charged with aggravated assault on the first complainant and common assault on the second complainant. None of the inmates testified at trial other than the accused. The accused testified that he felt he was being shunned in the Block and had received threats from the first complainant and others in the complainant's group who were brandishing shanks earlier that day. The defence argued that the Crown failed to prove that the injuries caused to the first complainant fell within the definition of 'wound, maim, disfigure or endanger life'; and that the acts done to the first and second complainants were in self-defence as contemplated by s. 34 of the Criminal Code. HELD: The accused was convicted of both counts. 1) In relation to the accused's defence of self-defence pursuant to s. 34(2) pertaining to the first complainant, the Court found the accused did not believe that he was being assaulted within the meaning of the law and, even if he did hold this belief, such a belief was not reasonable in the circumstances. Further, the Court did not accept, on a subjective or objective basis, that the accused reasonably believed that the first complainant had the present ability to carry out the threat, notwithstanding that the physical aspect of the assault need not be imminent or immediate. Lastly, the Court found that the accused did not believe that he had no other option. The accused admitted that he had other options but chose not to avail himself of them. 2) The Court found it did not need to assess the application of s. 37 of the Code in relation to the common assault charge. Rather, the Court found s. 27 of the Code applicable and determined that the second complainant was legally justified to use as much force as was reasonably necessary to prevent the commission of an offence which would be arrestable without warrant. The Court found the second complainant was clothed in legal justification and the accused was not entitled to the protection of s. 34(1) because the accused provoked the assault, and the force he used was more than necessary to defend himself as the accused was armed with a shank and the second complainant was not.