IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Tremblay,

 

2019 BCSC 410

Date: 20190308

Docket: 84485

Registry: Nanaimo

Regina

v.

Matthew Dean Tremblay

Before: The Honourable Madam Justice DeWitt-Van Oosten

Reasons for Judgment

Counsel for The Crown:

Catherine D. Hagen
James K. Kulla

Counsel for the Accused:

Jordan D.A. Watt

Place and Dates of Trial:

Nanaimo, B.C.

February 4–8, 11–14;
March 4–8, 2019

Place and Date of Judgment:

Nanaimo, B.C.

March 8, 2019


 

[1]            These Reasons for Judgment were delivered as oral reasons.  They have since been edited for distribution and publication.

OVERVIEW

[2]            Matthew Dean Tremblay (the accused), is charged with two offences under the Criminal Code ("Code"), R.S.C. 1985, c. C-46: aggravated assault (s. 268(2)) and assault with a weapon (s. 267(a)).

[3]            The events underlying the charges occurred in Nanaimo on March 31, 2018.

[4]            The complainant is Brendan Lapoleon.  Mr. Tremblay admits that he stabbed Mr. Lapoleon four times: twice in the abdomen; once in the right forearm; and, once in the left groin.  Mr. Lapoleon lost a significant amount of blood as a result of the wounds, and required emergency surgery to survive.

[5]            The main issue in this case is whether the accused acted in self-defence.  Under s. 34(1) of the Code, a successful defence of self-defence provides a justification for what would otherwise be an unlawful act of assault if the statutory requirements are met: R. v. Kandola (1993), 80 C.C.C. (3d) 481 (B.C.C.A.) at para. 22.

EVIDENCE

[6]            The trial proceeded by judge alone.  The evidence consumed approximately 10 days of court time.  This included a blended voir dire involving two issues: (1) the voluntariness of a statement provided by the accused to police following his arrest; and (2) an application to exclude that statement, as well as derivative evidence, on grounds it was obtained in violation of s. 10(b) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter").

[7]            On completion of the voir dire, the accused conceded voluntariness of the statement and withdrew his Charter-based application for exclusion.  By consent, evidence from the voir dire rolled over to the trial proper.

[8]            Some of the evidence called on the voir dire involved after-the-fact conduct by Mr. Tremblay.  The defence argued that this evidence should not form part of the roll over because its prejudicial effect outweighed its probative value.  The application to have this evidence excluded was dismissed and it too became part of the record on the trial proper.

[9]            I will not recite the testimony of each witness at trial.  Instead, I will summarize the evidence I consider most salient to the issues I need to resolve. The continuity of exhibits was not in issue.

A.       Circumstances of the Stabbing

Complainant

[10]        Brendan Lapoleon is 26 years old, 6'2" or 6'3" in height, and weighs between 180–190 pounds.  He was this weight in March 2018.

[11]        Mr. Lapoleon has been in a relationship with Kimberley George for approximately five to six years.  Until January 2018, they were living in Sooke.  In January, Ms. George moved to Nanaimo to live with her family.  Mr. Lapoleon followed a month or so later.

[12]        Mr. Lapoleon testified that he has no memory of an altercation with Mr. Tremblay in the early morning hours of March 31, 2018.  This is not surprising, given the nature of the injuries he sustained and their likely traumatic impact.

[13]        On the afternoon of March 30, Mr. Lapoleon got a haircut and spent time at a local dam with Ms. George and a friend, David Sampson.  He testified that he consumed between four to six beers.  He later spent the evening at his residence on Watfield Avenue, playing video games in his room.  He likely consumed another four to five beers.

[14]        He testified that David Sampson asked him if he wanted to go for a drive.  They went to see a friend of Mr. Sampson, remained for only a short time and returned home.  Mr. Lapoleon said he does not remember much beyond that.  He recalls Kimberley George and her sister, Sarah Stewart, screaming and talking about a lot of blood.  He remembers looking down, seeing a clear stream of bright red blood coming out of his leg.  He remembers trying to make his way to Kimberley George and Sarah Stewart.  He remembers seeing his mother and sister at the hospital.  He remembers waking up at the hospital with tubes coming out of his mouth.

[15]        Mr. Lapoleon received four stab wounds on March 31: two in the left abdomen; one in his left groin; and, a wound to his right arm.  He underwent surgery that necessitated an incision up the centre of his torso.  He remained in hospital for about one week.

[16]        He was told after the fact what had happened to him.  He spoke to various people about the incident involving Mr. Tremblay, including Kimberley George, Sarah Stewart and David Sampson.  They told him what they saw.

[17]        In cross-examination, defence counsel suggested to Mr. Lapoleon that he was not being truthful about his lack of memory and, in fact, he was the aggressor in the incident involving Mr. Tremblay.  Mr. Lapoleon denied this.

[18]        The theory of the defence was put to Mr. Lapoleon.  It was suggested to him that on the evening of March 30, 2018, he got into an argument with Kimberley George about his drinking and left the residence with David Sampson to "cool off".  When he got back home, Ms. George was not there.  He was intoxicated, got angry because he did not know where she was, jumped out of a window and went to look for her.  It was suggested that he found Ms. George in the parking lot of a townhouse complex called King Arthur's Court, and got angry about the presence of the accused.  It was said that he demanded to know who this person was.  Ms. George told him to "fuck off" and he then climbed a chain link fence with the intention of beating up the accused.  It was put to Mr. Lapoleon that he was vocal about what he intended to do, telling Ms. George and Ms. Stewart (who was also present), that some "shit was going to go down".  It was suggested that he went straight to Mr. Tremblay, initiated a physical altercation and that is when the stabbing occurred.

[19]        Mr. Lapoleon denied having an argument with Ms. George.  He denied going for a drive with David Sampson to "cool off".  He does not recall jumping out of a window.  He acknowledged that he was probably "drunk" by the time the incident with Mr. Tremblay occurred.  He put himself at a "7" on an intoxication scale of one to ten.  However, he said he was not staggering around and he would not have done what is suggested.  He does not attack people.  He said if he did move aggressively toward Mr. Tremblay, it must have been because the accused said something to him, instigating an altercation.

[20]        Mr. Lapoleon has no criminal record.  However, he acknowledged that he was on bail conditions at the time of the incident in King Arthur's Court, including a condition that he no have contact with Ms. George and not consume alcohol.  He said he did not remember the latter term, but if it existed, he was non-compliant.

[21]        The bail conditions arose out of an allegation that in January 2018, he assaulted Ms. George while intoxicated at their residence in Sooke.  Mr. Lapoleon was charged with assault.  However, the charge was stayed after Ms. George provided a letter to the Crown containing information different from a statement she previously provided to police.

[22]        Mr. Lapoleon acknowledged that in the past, he and Ms. George have argued when he is intoxicated.  He acknowledged that some of these arguments have been over his drinking, and, on a couple of occasions, police were called.  He agreed that on prior occasions, he has become jealous in relation to Ms. George when he is drinking.  He agreed that he can be argumentative and "stuff like that".  However, he does not consider himself a "rowdy drunk" and he denied that he is prone to violence.  However, he did accept that in January 2018, he was violent with Ms. George.  He also took her clothes, her phone and he tried to prevent her from leaving the residence.

Kimberley George and Sarah Stewart

[23]        Kimberley George is 26 years old and lives with Mr. Lapoleon and their daughter, sharing a residence with her mother, stepfather and Sarah Stewart.

[24]        She confirmed that on March 30, 2018, she was with Mr. Lapoleon and David Sampson at a dam near Nanaimo.  Later, they went to a lake, returning to the residence where she and Mr. Lapoleon lived.  She confirmed that Mr. Lapoleon and David Sampson were consuming alcohol at the dam.  She thought they shared a six-pack, having three beers each.

[25]        When she got home, there were a number of people in the house.  A few more joined later in the evening.  She believes Mr. Lapoleon and David Sampson obtained another six-pack of beer and were drinking.  She described Mr. Lapoleon as intoxicated, but "not that drunk".

[26]        One of the people at the house was Alisia Strongarm.  Someone with Ms. Strongarm became very intoxicated and began "flipping out" in front of the residence.  Police were called and she was taken away.  Kimberley George and Sarah Stewart decided to walk Ms. Strongarm home.  She lives at King Arthur's Court.

[27]        When Ms. George went outside her home, she noticed that David Sampson's car was gone.  She did not know that Mr. Lapoleon and Mr. Sampson had left the house.

[28]        Ms. George testified that herself, Sarah Stewart and Ms. Strongarm began walking toward King Arthur's Court.  They ran into the accused.  He lived at the end of Ms. George's street.  He had come out to see what all the commotion was about and was talking to Sarah Stewart.

[29]        The three women went into Mr. Tremblay's basement suite.  Ms. George did not know why.  She did not know Mr. Tremblay.  They only stayed for about five minutes.  The plan was to go to a 7-Eleven near Ms. Strongarm's residence.

[30]        Kimberley George had not met Mr. Tremblay before.  They left the basement suite and Mr. Tremblay accompanied them.  Ms. George testified she had consumed alcoholic cider the afternoon and evening of March 30, but was not intoxicated.  She was not "even buzzed" and felt "totally fine".  Her sister was intoxicated.  Ms. George knows what her sister is like when she is "drunk" and, in her view, she was "drunk".  She thought Alisia Strongarm was also intoxicated.  She was staggering and talking loudly.  Ms. George said she did not talk with Mr. Tremblay, but thought he was sober.

[31]        The four of them walked to King Arthur's Court.  Ms. Strongarm wanted to use her washroom before they went to the 7-Eleven.

[32]        As they entered the parking lot, Ms. George saw Mr. Lapoleon walking along Georgia Avenue behind a fence.  The avenue runs parallel to the parking lot.  She asked him what he was doing.  They next thing she knew, he had been stabbed.  She said she did not approach Mr. Lapoleon at the fence.  Nor did she see anyone else from the group do so.  She did not see Mr. Lapoleon climb over the fence.  Ms. George said she did not realize Mr. Lapoleon had been stabbed until he dropped to the ground and she could see a pool of blood by his feet.  By that time, Mr. Tremblay had already left the scene.  She, Sarah Stewart and Ms. Strongarm began screaming.

[33]        David Sampson showed up.  She said he was also "freaking out".  Ms. George and her sister tried to put pressure on Mr. Lapoleon's wounds.  He was looking at her.  She was telling him to "stay with us".  Her brother, Timothy Sutherland, arrived to assist.  They thought Mr. Lapoleon was dying.

[34]        Eventually, help arrived.  There were lights everywhere, police and paramedics.  Ms. George testified that she does not remember much.  It all "seems like a blur".  She does remember speaking with police that night.  She subsequently went to the hospital to be with Mr. Lapoleon.

[35]        Ms. George said she did not see the stabbing occur.  She never saw a knife, either in the parking lot at King Arthur's Court or earlier, in Mr. Tremblay's suite.

[36]        In cross-examination, Ms. George denied that she was arguing with Mr. Lapoleon before she left the residence to walk Ms. Strongarm home, or that Mr. Lapoleon left the residence to "cool off".  She was taken to her evidence at the preliminary inquiry, where she testified they had a disagreement about his drinking.  She said she cannot remember saying that.  It could be true, but she does not remember.

[37]        She acknowledged that when Mr. Lapoleon drinks, the two of them will sometimes argue.  However, she denied it is common for this to happen.  She admitted that on at least one prior occasion, it resulted in police attending their residence.

[38]        Ms. George was asked whether Mr. Lapoleon gets "physical" with her when he is intoxicated.  She admitted that he had been violent on a prior occasion, in January 2018.  She acknowledged that he slapped her, bit her arm and hid her phone.  She called 9-1-1.  She denied that when he drinks, Mr. Lapoleon gets possessive or jealous.

[39]        Ms. George acknowledged that after Mr. Lapoleon was charged with assault in January 2018, she provided a letter to Crown Counsel indicating that she was the aggressor.  The charge was stayed.

[40]        Ms. George has a criminal record, including convictions for resisting a peace officer, theft under and breach of court orders.  She knew, after Mr. Lapoleon moved to Nanaimo in February 2018, that he was on a condition to have no contact with her.  However, she said she was "taking care of it" when the incident involving Mr. Tremblay occurred.

[41]        Specific to what happened at King Arthur's Court, Ms. George acknowledged in cross-examination that when she saw Mr. Lapoleon on the other side of the offence, he was running.  It was suggested to her, that she told him to "fuck off".  She denied this.  It was suggested that Mr. Lapoleon was "amped up" and would not calm down.  She said it was "possible", but cannot remember.  She was asked whether Mr. Lapoleon said he was going to "start some shit" and "fucking punch this guy out".  Ms. George said that does not sound like him.  She had no recollection of Mr. Lapoleon saying, "Who is this guy, who is this guy".  She denied she was trying to tell him to "leave it alone".

[42]        It was suggested that she has deliberately claimed a limited memory to protect Mr. Lapoleon, because she knows that he went after Mr. Tremblay.  She denied this.

[43]        Sarah Stewart was also present at the stabbing.  She is 22 years old and lives with her parents, Ms. George and Mr. Lapoleon at the Watfield Avenue residence.

[44]        Ms. Stewart testified that she worked until about 2:00 p.m. on March 30.  She then went home.  At about 8:00 p.m., she accompanied her mother to the liquor store and purchased alcohol.  They took it home, sat around and had some drinks.  Mr. Lapoleon was at the residence, Ms. George and perhaps David Sampson.  She remembers Mr. Lapoleon and Ms. George being in their bedroom.

[45]        Alisia Strongarm arrived, along with her boyfriend, Joe Thomas, and his 18-year old sister.  They hung around the kitchen, drinking and listening to music.  Mr. Thomas's sister "got really intoxicated".  She was asked to leave.  A cab was called, but she "ended up kicking the driver in the face".  The cab driver told her to get out of the car and he left.  This happened in front of the Watfield Avenue home.  Ms. Stewart, Ms. George and Alisia Strongarm decided to walk the young woman to her home.  They began walking toward King Arthur's Court.  The young woman began to scream and someone called police.

[46]        Ms. Stewart said she saw Mr. Tremblay near a gate at the dead end of Watfield Avenue.  Police had arrived and he came out, asking what the commotion was about.  Ms. Stewart apologized to him for what was happening and they laughed.  She said Mr. Tremblay told her to get behind the fence where he lived, so that she would not get arrested.  She thought that was "cool" and went behind the gate.  The young woman who was screaming was arrested.

[47]        Mr. Tremblay introduced himself to Ms. Stewart.  She thought his name was familiar.  He said he had a brother named Dylan and she believed she had talked with his brother a couple times through Facebook.  They spent about 10 minutes watching the situation with police.  Ms. Stewart testified that the accused brought hard liquor out from the house and she "slammed it back".

[48]        By this time, police had left.  Ms. George called out for her.  Ms. Stewart was still behind Mr. Tremblay's gate.  She emerged.  Ms. George and Alisia Strongarm were present, as well as Ms. Stewart and Mr. Tremblay.

[49]        Ms. Stewart needed to go to the store.  She invited Matthew Tremblay to go with them.  Before they left, they went inside his basement suite for about five minutes.  Ms. Stewart drank some cider while there.  It had come from her place and she had it with her.  She said Mr. Tremblay was drinking from the "26er" that he handed to her while out by the gate.  She finished it off.  They headed to the 7-Eleven.  Mr. Tremblay seemed "pretty normal" to her in terms of his sobriety.  Ms. Stewart described herself as "pretty intoxicated".

[50]        While walking to 7-Eleven, Alisia Strongarm had to use the washroom.  As a result, the group went to King Arthur's Court.  They stopped in the parking lot and stood at a set of mailboxes.

[51]        Ms. Stewart testified that while at King Arthur's Court, she saw Brendan Lapoleon on the other side of a fence.  She ran over to him and said "hey".  He was wondering what they were doing there and who Matthew Tremblay was.  She told him that she and Ms. George were okay, and they were going for smokes.

[52]        Mr. Lapoleon climbed over the fence.  Ms. Stewart was asked whether he said anything while doing this.  She testified that she does not remember much.  He climbed over the fence because he wanted to "talk" to Mr. Tremblay.  She "guessed" that he wanted to see her and Ms. George.

[53]        Ms. Stewart said that when she went to the fence, Ms. George remained beside Matthew Tremblay.  Ms. Stewart's back was toward them.  She was about three feet away from the fence.  Mr. Lapoleon seemed "pretty sober" to her.  He seemed "fine".  She had not seen him drinking earlier that night.

[54]        When Mr. Lapoleon climbed over the fence, Ms. Stewart stood there with him.  She testified that he then walked over toward to Ms. George and Mr. Tremblay.  She does not "really remember" anything else.  She saw Mr. Tremblay "move a little bit" and Mr. Lapoleon fall to the ground, but that is about it.  It was "pretty dark".  She does not remember seeing anything in the hands of either Mr. Lapoleon or Mr. Tremblay.

[55]        When asked to explain what she meant by Mr. Tremblay "moving a little bit", she said he was moving his arms and legs in a "half circle".  She does not believe Mr. Lapoleon said anything to Mr. Tremblay.  He was talking with Ms. George.  She does not believe Mr. Tremblay said anything to Mr. Lapoleon.  She cannot remember if Ms. George said anything while this was occurring.

[56]        In her direct examination, Ms. Stewart denied that Mr. Lapoleon moved toward Mr. Tremblay.  She said she walked with Mr. Lapoleon to where Mr. Tremblay and Ms. George were standing.  They were all in a circle.  She does not know what happened after that.  It went very fast and Mr. Tremblay stabbed Mr. Lapoleon four times.  Mr. Tremblay left.  She thought she heard him yell, "I hope you like getting stabbed" while he was leaving.  He was by the mailboxes when he said this.

[57]        Ms. Stewart tried running after Mr. Tremblay, but returned to Mr. Lapoleon.  There was blood everywhere.  Ms. Stewart described herself as being in a "traumatic state".  She and Ms. George were screaming.  Ms. Stewart was yelling for someone to call an ambulance.  Ms. George was over top of Mr. Lapoleon, crying.  Mr. Lapoleon was not moving.  They put their hands on his stomach and there was blood.  It took about 15 minutes for the ambulance to arrive and Mr. Lapoleon was taken to hospital.

[58]        Ms. Stewart testified that David Sampson arrived while Mr. Lapoleon was on the ground.  He was trying to ask what happened.  She was in shock.  She believes he went back to their residence and got her brother, Tim Sutherland.  Mr. Sutherland arrived at the scene in his underwear and put pressure on Mr. Lapoleon's wounds.  She and Ms. George were crying too much to do that.

[59]        Ms. Stewart cannot remember if Alisia Strongarm was present.  She remembers people were looking out their windows and came outside of their units, wondering why the women were screaming.  She remembers speaking with police and going with them to show them where Mr. Tremblay lived.  Eventually, police took her back to her residence.

[60]        In cross-examination, Ms. Stewart agreed that on the evening leading up to the altercation, her sister and Mr. Lapoleon got into a "disagreement".  However, she said did not know what it was about.

[61]        Ms. Stewart denied that Mr. Lapoleon was running when she first saw him on the other side of the fence.  She agreed that he was saying things such as, "Who is that guy, what's his name, what are you doing with him".  She also agreed that Ms. George told Mr. Lapoleon to "fuck off" while he was on the other side of the fence.  She denied that when she walked over to Mr. Lapoleon, he was "amped up", or that he said anything such as "I'm going to fucking punch this guy out", or, "I'm going to start some shit".

[62]        Ms. Stewart acknowledged providing a statement to police on March 31, while at King Arthur's Court.  The statement was put her.  She told police that Ms. George saw Mr. Lapoleon on the other side of the fence and said "fuck you" to him because they were in an argument.  Mr. Lapoleon jumped over the fence and said, "Shit gonna happen" or "I'm just gonna start some shirt", and "I am going to fucking punch this guy out".  He would not "calm the shit down and he got fucking stabbed".  Ms. Stewart acknowledged that she was telling the truth when she spoke with police.  However, she testified that she does not remember saying these things.  She was "in shock" and "drunk".

[63]        Ms. Stewart also explained the discrepancies between this statement and her testimony on grounds that she was told to give a statement or she would be "taken to jail".  She said David Sampson told her at the scene that one of the officers said if Ms. Stewart did not provide a statement, she would go to the "drunk tank".

[64]        A statement provided to police on April 3, 2018 was also put to her, in which she said she had walked into the room shared by Ms. George and Mr. Lapoleon on March 30, and they were arguing.  Ms. George was yelling at Mr. Lapoleon.  Ms. Stewart agreed that in the statement, she described Mr. Lapoleon as a "little intoxicated" when he was on the other side of the fence.  She acknowledged that he "could have been".

[65]        Ms. Stewart also told police that Mr. Lapoleon approached Mr. Tremblay saying, "Who are you, what are you doing here, how do you know my girlfriend and sister-in-law", and that she and her sister were telling Mr. Lapoleon to "leave it alone".  They were explaining that they had just met the accused.

[66]        It was put to Ms. Stewart that Mr. Lapoleon went "right for" Mr. Tremblay and she was trying to calm him down.  She denied this.  She said Mr. Lapoleon was not looking for a fight.  He did not attack Mr. Tremblay, he just wanted to know who he was.  She denied that she was trying to hide behind a lack of recall on the specifics of Mr. Lapoleon's conduct to protect him.

David Sampson

[67]        Mr. Sampson is 24 years old.  On March 30, 2018, he was living at the Watfield Avenue residence with Mr. Lapoleon, Ms. George and Ms. Stewart.  He had been in a relationship with Ms. Stewart, but they were broken up.  He had only met Mr. Lapoleon one or two months prior.

[68]        Mr. Sampson testified that he spent time on March 30 with Mr. Lapoleon and Ms. George.  They went to a local dam and a lake.  They were "chilling" and "hanging out".  Mr. Sampson had a couple of beers that day.  So did Mr. Lapoleon.

[69]        They returned to the Watfield Avenue residence at dinner time.  Sarah Stewart was there.  People in the house were consuming alcohol.  He thinks he had another two to five beers.  Mr. Lapoleon was also drinking.

[70]        Somewhere between midnight and 2:00 a.m., Mr. Sampson and Mr. Lapoleon went for a drive.  Mr. Lapoleon wanted to get out of the house.  He did not want to be around Ms. George.  They drove to a lake.  The drive lasted about 10 to 15 minutes.

[71]        Mr. Sampson said when they returned to Watfield Avenue, he saw Ms. George, Sarah Stewart and Alisia Strongarm at the dead end of the road, by an alley.  They were walking away from the residence.  When he and Mr. Lapoleon got home, Mr. Sampson was ready to go to bed.  He had a smoke outside with Mr. Lapoleon, who was upset with Ms. George because she had left the residence.  He did not know where she was going.  Later, Mr. Sampson saw Mr. Lapoleon hop out of a bedroom window and start running.  He thought Mr. Lapoleon was running after Ms. George.  This was about 15 to 20 minutes after Mr. Sampson saw the women on Watfield Avenue.

[72]        Mr. Sampson decided to follow Mr. Lapoleon.  He followed him all the way to King Arthur's Court.  Mr. Lapoleon was running.  Mr. Sampson was "sort of like jogging".  He was a fair distance behind Mr. Lapoleon and lost sight of him at times.

[73]        When he got to King Arthur's Court, he saw Mr. Lapoleon hopping a fence.  He saw "the girls" in the parking lot.  He does not know where Mr. Lapoleon climbed the fence.  He was still trying to catch up with him.

[74]        From where he was, he saw an "upper cut punch", delivered from the hip, upward.  The punch was delivered to Mr. Lapoleon.  Mr. Sampson was still on the Georgia Avenue side of the fence when he saw this.  Mr. Lapoleon dropped and "the girls" were screaming.

[75]        He testified that he saw "roughly" between two to four upper cuts.  They were landing in Mr. Lapoleon's stomach area, around the belly button.  After the punches, the male who delivered them ran in the direction of Harewood School.  Mr. Sampson heard the male say, "You're going to die tonight, bitch".

[76]        Mr. Lapoleon was falling to the ground.  Mr. Sampson went to him.  It looked like he was going to pass out.  Mr. Sampson tried to see where the male had gone.  He went to the parking lot exit, looked up Fifth Street and saw him.  The male was moving at a pace "between jogging and running".  Mr. Sampson returned to Mr. Lapoleon.  Ms. George and Ms. Stewart were hovering over him and crying.  He put his hand on Mr. Lapoleon to try to stop the bleeding.  He did not know what to do, so he ran back to the Watfield Avenue residence (which he thought took between five to seven minutes), and woke up Ms. Stewart's brother, Tim Sutherland.  The two drove back to the scene.  Mr. Sampson tried to call police.  Mr. Sutherland helped out with Mr. Lapoleon.  He thought it took police another five minutes to get there.  Eventually, an ambulance arrived and Mr. Lapoleon was taken to hospital.

[77]        Mr. Sampson said he did not see Mr. Lapoleon with a knife.

[78]        In cross-examination, Mr. Sampson acknowledged that Mr. Lapoleon could have consumed between four to six beers at the dam and/or lake.  He agreed that when they returned to their residence, Mr. Lapoleon was intoxicated.  Mr. Sampson "felt a little bit of a buzz".  Once home, he and Mr. Lapoleon continued to drink.  Mr. Sampson thought he had three or four more beers, maybe six.  Mr. Lapoleon was "acting a little dumb".  Based on Mr. Sampson's observations, it appeared that "something was going on with him and [Ms. George] that day" and Mr. Lapoleon was upset.  Later that night, they were arguing.  Mr. Sampson walked in to their room, saw it and left.  It was after this argument that he and Mr. Lapoleon went on the drive.  The drive was for the purpose of allowing Mr. Lapoleon to get some air and "cool off".

[79]        Mr. Sampson confirmed in cross-examination that when he and Mr. Lapoleon returned home from the drive, Mr. Lapoleon "might have been a bit upset" because he was worried that Ms. George was going out and she was pregnant.  He does not recall Mr. Lapoleon making a big scene about it, but acknowledged that in a statement he provided to police, he described Mr. Lapoleon as "freaking out" and "making a big scene".  He agreed he was truthful when he provided his statement.

[80]        He agreed that when he heard the words he attributed to the male leaving the scene, he was on the opposite side of the fence and it was before he climbed over.  He agreed he was a fair distance away.  However, he is "positive" that is what he heard and it is not something someone else told him after-the-fact.  He said he still had a "little buzz" at the time, but was not intoxicated.  He knew what he was doing.

Residents in Townhouse Complex

[81]        The altercation drew the attention of persons inside the homes at King Arthur's Court.

[82]        Evelyn Brown was staying in unit 22.  She heard screaming and went outside to see what was happening.  There were quite a few people standing in a circle, with a male laying on the ground.  Some women were screaming and shouting.  Ms. Brown thought they were intoxicated.  One of the women was attempting to do CPR on the male.  Ms. Brown asked her several times to stop, as she could see that the male was alive.  She described the woman as "very intoxicated".  She continued with CPR and ultimately, Ms. Brown pushed the woman off the male.  Ms. Brown stayed with him until emergency personnel arrived, applying pressure to his wounds.  She thought it took about 15 minutes for paramedics to arrive.

[83]        Margaret George lives at King Arthur's Court.  She was getting ready for bed and heard people screaming and asking for help.  She also heard what she believed to be a male voice yell, "I hope you fucking die".  Someone was shouting to call an ambulance.  Ms. George went downstairs and called 9-1-1 while standing in her front doorway.  She could see the parking lot.  People were hovering over a body.  She saw one woman trying to administer CPR.

B.       Video Surveillance from Complex

[84]        Video surveillance footage was obtained from the scene.  Various clips and still photos from the footage were put before me.  This includes a compilation of sequential clips that captured the altercation between the accused and Mr. Lapoleon.  Authenticity and reliability of the compilation is not in issue.

[85]        I have reviewed this footage multiple times, including portions that were adjusted for light, trying to make them as clear as possible without becoming too grainy.

[86]        At the start of the footage, four persons enter the parking lot at King Arthur's Court.  I understand these individuals to be Alisia Strongarm, Sarah Stewart, Kimberley George and the accused.  The camera captures their backs.  Mr. Tremblay is on the far right and appears to have his hands in his pants pockets.  Ms. George is to his immediate left.

[87]        While they are walking into the parking lot, a person can be seen running along a chain link fence on the far right of the screen.  I understand this to be Mr. Lapoleon.  He is on the other side of a chain link fence and he stops by a tree.

[88]        The group walking into the lot looks over to the right.  Ms. Strongarm appears to point in that direction.  Mr. Lapoleon has stopped and is facing them, from the other side of the fence.  According to the time recorded on the video, it is 1:54:33.

[89]        The group continues walking.  Mr. Tremblay has his hands behind his back for a bit.  It is not clear what he is doing with them.

[90]        Ms. Strongarm begins to move to the left, toward the townhouse complex.  Ms. Stewart crosses in front of Ms. George and heads to the fence, where Mr. Lapoleon is situated.  Ms. George walks across the front of a van parked with its rear end at the fence, around the side of the van, and moves toward the fence.  Mr. Tremblay initially stops by the left front driver's side of the van.  He then crosses in front of the van and stands to the left of the right front driver's side.  It appears that his hands are in his front pants pockets, or the pockets on the front of his sweater. Ms. Strongarm has gone off the left of the screen, presumably into one of the townhouse units or an entranceway associated with one of the units.

[91]        In the interim, Mr. Lapoleon can be seen climbing the chain link fence.  He drops to the ground on the parking lot close to where Ms. Stewart is standing.  Ms. Stewart leaves the fence and begins to move along the driver's side of the van, toward its left front.  It is unclear where Ms. George is at that moment.  She is not visible in the footage and I infer she is on the other side of the van, close to the fence.  Mr. Tremblay continues standing to the left of the right front driver's side of the van.  He is not doing anything.

[92]        Mr. Lapololeon can be seen moving around the back of the van and emerging from the other side where Ms. George is situated.  By this time, Ms. Stewart is standing at the left front of the parked van.

[93]        Mr. Lapoleon moves directly toward Mr. Tremblay.  The video registers the time when he reaches Mr. Tremblay as 1:55:09.  Ms. George is behind Mr. Lapoleon.

[94]        Initially, as Mr. Lapoleon approaches him, the accused is standing still, facing his direction.  He is not doing anything with his hands.  They still appear to be in his pants pockets or pockets on his sweater.  As Mr. Lapoleon gets close to him, the accused begins to take steps back.  Mr. Lapoleon appears to raise and stretch out his right arm toward Mr. Tremblay.  The accused puts up his left arm, bends his head and body forward, the two men merge and almost immediately, the accused makes a jabbing motion with his right arm, more than once.  Mr. Lapoleon swings his right arm at least once after the jabbing motions have started.  The upper parts of the two men's bodies are against each other (leaning in).  Mr. Lapoleon is taller than Mr. Tremblay.  Their legs are apart and separate, but they are moving in a circular motion, intertwined.  Ms. Stewart and Ms. George are right there, with Ms. Stewart standing alongside the men with her back to the camera, and Ms. George standing behind Mr. Lapoleon.

[95]        Mr. Tremblay extricates himself from Mr. Lapoleon and runs from the group, off to the left of the screen.  He appears to pull himself out from under Mr. Lapoleon.  The video registers the time as 1:55:14.  The accused begins walking toward the parking lot exit on Fifth Street.  He is swinging his arms.  Ms. Stewart and Ms. George stay with Mr. Lapoleon, who is bent over.  It appears he has his hands on his knees.

[96]        While walking away, Mr. Tremblay turns around.  His back is toward the camera.  He gestures with his right hand raised in the air.  He resumes walking to the parking lot exit.  When he gets near a set of mailboxes, he turns around again. He leaves the view of the camera.  He then comes back into view, facing in the direction of Mr. Lapoleon and the two women.  It appears he says something in their direction.  There is no audio associated with the video footage.  He again leaves the view of the camera.  The video registers the time as 1:55:34.

[97]        Ms. Stewart and Ms. George have remained with Mr. Lapoleon.  He first sits on the ground, then lays back.  Ms. Stewart and Ms. George attend to him, kneeling at his side and head.

[98]        The time between the group, including the accused, first looking in Mr. Lapoleon's direction on the other side of the fence when they enter the parking lot, and Mr. Tremblay leaving the view of the camera after the altercation, the second time, consists of approximately one minute.

[99]        At 1:56:15, a second male climbs over the fence into the parking lot.  This is David Sampson.  He goes to Mr. Lapoleon, Ms. George and Ms. Stewart.  People begin to emerge from townhouse units.  Mr. Sampson heads toward the parking lot exit on Fifth Street, following the path of Mr. Tremblay.  He gets to just past a set of mailboxes, looks to the right, turns around and goes back to Mr. Lapoleon.  The video now registers 1:57:06.

[100]     Mr. Sampson runs back to the fence, climbs over and can be seen running along Georgia Avenue, back in the direction from where he came.  More people emerge from the townhouse units.  Ms. George remains with Mr. Lapoleon.  Ms. Stewart runs toward the parking lot exit on Fifth Street.  She leaves the view of the camera.  Not long after, she re-emerges, running back to Ms. George and Mr. Lapoleon.

[101]     At about 2:00:34, a car arrives in the parking lot.  It is David Sampson and Ms. Stewart's brother, Tim Sutherland.  They provide assistance to Mr. Lapoleon.

[102]     At 2:02:20, Mr. Sampson is again heading to the parking lot exit on Fifth Street.  He leaves the view of the camera.  The first police car is on the scene at 2:04:34, about the same time that Mr. Sampson re-emerges in the view of the camera and runs back to Mr. Lapoleon, Ms. George and Ms. Stewart.

C.       Police Observations at the Scene

[103]     Cst. LaForest was the first officer on the scene.  It was 2:04 a.m.  He saw a male laying on his back in a pool of blood.  There were a number of people present, including Ms. George and Ms. Stewart.  He described both women as "hysterical".  In notes he made at the time, he used the words "screaming and crying".  He could smell alcohol on their breath, but because of their emotional state, he was not able to assess their level of intoxication.  Ms. Stewart's pants were covered in blood.

[104]     Cst. Penton also attended the scene.  When he arrived, there was a male (Mr. Sampson) standing on the side of Fifth Street.  He told Cst. Penton that the person responsible for the stabbing was running up Fifth Street, wearing a hoody and jeans.  Cst. Penton made a brief effort to go after the suspect; however, he was called back to the scene.

[105]     Emergency health personnel were present when he got there.  There were many people in the parking lot, including two women Cst. Penton described as "hysterical".  He spoke with Ms. Stewart and took a statement from her.  Her speech was slurred.  However, she was able to walk to his car.  She was not "falling down drunk".  Had she told him she would be driving, he would have prevented her from doing so.

[106]     Ms. Stewart provided police with Mr. Tremblay's name and said she could show them where he lived.  She was escorted to a police vehicle.  Cst. Penton followed the vehicle to 320 Harewood Road.  It was understood that Mr. Tremblay lived in the basement suite.  Police were not able to locate him.  They began roving patrols with the assistance of one or more tracking dogs.

[107]     Sgt. Mattes also attended the scene.  She described it as "chaotic".  There was a male on the ground with stab wounds.  Multiple people were attending to him.  The witnesses were "quite frantic", and all but one of them appeared to be highly intoxicated.  They were trying to do first aid.  Sgt. Mattes saw quite a bit of blood under one of the complainant's legs.  She could see there were multiple stab wounds.

[108]     Sgt. Mattes interacted with David Sampson at the scene.  He appeared to be sober and was calmer than the rest.

D.       Forensic Examination of the Scene

[109]     After Mr. Lapoleon was taken to hospital, a forensic identification officer with the Nanaimo R.C.M.P. examined and photographed the parking lot.

[110]     The parking lot is sandwiched between the front of a number of townhouse units and a chain link fence.  The fence runs parallel to Georgia Avenue.  It is close to 6 feet high and the chain link extends beyond the top of the fence.  In other words, rather than wrapping around the top bar of the fence, the chain link continues straight up, with its spiked edge unprotected.

[111]     Photographs taken at the scene show the clothing that was removed from Mr. Lapoleon by emergency health personnel; two pairs of medical shears on the ground that were likely used to cut the clothing; and, what appears to be a considerable amount of staining from blood round and about the clothing.  There is also a purse on the ground.  It is beige with wide green stripes.  This was Ms. Stewart's purse.

[112]     Not far from the clothing, toward the chain link fence, is a wooden enclosure housing garbage dumpsters and a parked van.

[113]     Cpl. Zayonc marked what he believed to be a blood trail leading south from the parking lot to Fifth Street.  The trail went around the corner, to the right and continued along the sidewalk on Fifth Street.  This is in the direction of the accused's residence.  For approximately a block or so from the parking lot, reddish brown stains can be seen along the sidewalk.  Some of these stains and registered "presumptively" positive for blood.

[114]     Along this same route, police eventually examined two storm drains.  On the second drain, west of King Arthur's Court, police found a knife.  It was removed from the drain using a magnet.  The knife is a black-handled folding knife with an approximate 8- to 10-centimetre blade.

E.       Arrest of Matthew Tremblay

[115]     The accused was found at 610 Sandy Court.  This is a residence southwest of King Arthur's Court.  He was located in a small camping trailer parked in the driveway of the residence.  Mr. Tremblay emerged from the trailer and was placed under arrest for attempted murder just before 3:40 a.m. on March 31.  He was described by one of the officers in attendance as "afraid" and "nervous".

F.        Evidence Obtained from the Accused

[116]     A forensic examination was conducted of the accused following his arrest.  His clothing was seized.  Stains presumed to be blood were noted to his face, hands and right knee.  There was a cut to the index finger of his right hand, which was later treated at hospital.  It did not require stitches.  No other external injuries were visible.

[117]     Mr. Tremblay was interviewed while in custody on March 31, 2018.  He provided a statement.  As noted, the defence concedes that the statement meets the common law test for voluntariness.

[118]     Mr. Tremblay was reminded at the start of the interview that he had been arrested for attempted murder.  Initially, he said he did not want to talk about the incident involving Mr. Lapoleon because he had been told to not say anything, and, he did not want to incriminate himself.  Cst. Reynolds, the interviewing officer, began to speak to the accused about things he saw in the surveillance video footage.  He asked where the knife was.  Mr. Tremblay responded, "It's … in-between where the incident happened and where my house is".  He said he "dropped it down in the drain …".  He then told Cst. Reynolds that it was not his knife.  Instead, it belonged to the complainant.  "[T]hat's how [he] got the cut on [his] hand is when [he] grabbed it".  Mr. Tremblay went on to say, "Like it wasn't just, I didn't just walk up and stab the kid out of nowhere".

[119]     Mr. Tremblay began to speak about the circumstances surrounding the altercation.  Among other things, he said:

…  I was walking down the road with a couple a chicks that I'd just seen, they were all yelling and screamin' in front of my house and then the cops came and picked up one, one of them …

And then we walked around a corner into … King Arthur's Court and all I remember is someone jumping a fence and then he's like start comin' at me 'cause of, I guess I was hanging out with the girls that he was with earlier or sumpin'? I, I think that's when the whole shit show started …

[Cst. Reynolds]: And what was he yelling?

Sumpin' I, I heard the word bitch a couples times, I believe and then sumpin' about him, he's that he's gonna come punch me out …

… he came, he came right after me and he had a knife in his hand like kind a like it was closed, I remember that part and he had it in his hand like this and that was the first and only thing I remember really looking at and then when he started, we had a little kerfuffle and I grabbed the knife out of his hand as he was trying to open it and when I had it that's pretty much all I remember …

… I was just watching his, he had it in his hand so that I went right for his hand right away, and then … of that, I don't, I don't even know if he dropped the knife and I picked it up or if I just got it right from his hand or? …

[Cst. Reynolds]: And when you two first sort of merge, tell me about that moment in as much detail as you can.

Mmmm he was just yellin' like agitated that I was hanging out with these girls …

I just remember grabbin', I think I grabbed his wrist or I grabbed the top of his hand, the hand that had the knife.

[Cst. Reynolds]: Okay. Were you carrying a knife beforehand?

Nope …

[Cst. Reynolds]: Do you remember how many times you stabbed him?

No, I don't …

[120]     Starting at page 35 of the statement, Mr. Tremblay began to acknowledge that the knife belonged to him, not the complainant.  Among other things, he said:

… Well it's, I don't remember pulling the knife out or anything like that …

[Cst. Reynolds:] But when this happened, you had a knife and you took it out. Okay? I don't think this was your intention.

No this wasn't my intention no …

I thought when I showed the knife, he was gonna stop and stop coming after me …

And didn't, he just kept coming …

Walking into the parking lot, I heard a … someone yell at the girls and then he said oh sumpin', he's back again or sumpin' like that and then he … start while he was hopping the fence, he goes now you got, you girls are gonna getting' to watch me punch this guy out and this and that so I just kind a like backed away a little bit and kind a stood my ground and then once I seen that he was a bit bigger than I was, I just put my hands in my pocket where the knife was …

He came at me, I pulled the knife out, he kind a like looked to me like he seen the knife and well he would a heard it open too as well and then he just kept coming at me and I just swung my arm out with the, with the knife …

Yeah well there's that's all I remember though. I don't remember how I did it, why I just remember him coming at me, at I feared and I just, I just reacted like it's all that part is all a blur. All I remembered is it happening and I remember hearing blood hit the ground and then I just I realized that's when everything registered …

But it was very terrifying and I just so I just took off and just went home 'cause I was like right by my house. Which probably wasn't the best idea but …

[Cst. Reynold's:] Okay and then at the conclusion of the stabbings, where does the knife go? …

I walked away with, with it in my hand …

And then once I got a, around the corner at King Arthur's there, I just dropped it in the storm drain …

… I don't remember …

Pulling the knife out until he was already on the ground, on the other side of the fence or on my side of the fence …

[121]     During the statement, Mr. Tremblay agreed to show police where he disposed of the knife.  At about 4:44 p.m. on March 31, he accompanied Cst. Reynolds and Sgt. Eggen to Fifth Street near the King Arthur's Court.  He identified the first of two storm drains on that street as the drain in which he dropped the knife.  Sgt. Eggen pulled the vehicle over, looked in the drain and did not see a knife.  He made no further efforts to locate the knife at that time, as he had no tools with him.

[122]     The drive with Mr. Tremblay continued and he pointed out other places of relevance to the police investigation, including the route he took to his residence after disposing of the knife; where it was that he first encountered Ms. George and Ms. Stewart; and where he was located in the camper trailer.  He was sober and noted by the police who were dealing with him as non-aggressive and compliant.

G.       Search of Accused's Residence

[123]     Police obtained a warrant to search the accused's residence.  Photographs were taken.  Reddish brown staining was noted throughout.  A few of these stains "presumptively" revealed blood.

[124]     On one of the entry doors to the basement suite, police saw the word "help" written in what appeared to blood.  Inside the suite, on one of the walls, more words were written in what appeared to be blood: "I [heart] Mack Daddy".  This is a nickname the accused used for his then girlfriend.  There was a notebook on a desk in the living room, which read: "Mom give this to michaelia I Fucked Up I never deserved her."  A pill bottle and various documents in the name of Matthew Tremblay were in the suite.

H.       Injuries Sustained by Complainant

[125]     It is not disputed that the injuries sustained by Brendan Lapoleon wounded, maimed or endangered his life within the meaning of the Criminal Code.

[126]     Dr. Wells was the physician who treated Mr. Lapoleon upon his arrival at hospital.  It was clear he was critically ill.  He required blood and emergency surgery.

[127]     Dr. Wells assisted with the surgery.  Mr. Lapoleon had four wounds: a superficial wound to his right arm; two close-in-proximity mid-line wounds to the abdomen (one of which extended through to the bowel); and a wound to his groin.  The latter wound was the most serious.  The femoral vein was completely dissected.  The femoral artery had been cut to about 80 or 90%.

[128]     The femoral vein was tied off by a surgeon (Dr. Rudson-Brown).  The femoral artery was sewn up.  The injury to the groin was life-threatening.

[129]     After surgery, Mr. Lapoleon was transferred to intensive care.  He responded "fantastically well" to the surgery and his treatment.  He was discharged from hospital on April 5 or 6.  He showed no signs of cognitive disability arising from a deprivation of oxygen, and he did not sustain long-term injury to his left leg.  Mr. Lapoleon was able to converse; there were no gross deficits; he had memory impairment around the incident, which Dr. Wells would have expected; and his leg was swollen.  However, he had good mobility.

[130]     Dr. Wells opined that the injuries were consistent with the use of a knife.  The wound to the groin would have required a depth of 2 to 3 centimetres to dissect the femoral vein and artery.

[131]     When he arrived at hospital, a toxicology exam showed that Mr. Lapoleon had a blood alcohol level that was above normal.  He registered a "high".

[132]     Mr. Lapoleon testified that it took him over a month to heal from the surgery.  Although he is doing much better now, his leg will swell after he has walked a longer distance, or following a full day of work.

I.         Testimony of Accused

[133]     Matthew Tremblay is 28 years old, 5' 5" in height, and weighs between 130–135 pounds.  In March 2018, he weighed just over 120 pounds.

[134]     Prior to March 31, 2018, he had never met the complainant.  On March 30, he was walking to his home on Harewood Road after getting out of a cab shared with his younger brother.  As he got close to a gate at his residence, he could hear yelling and screaming.  It was coming from behind his yard.  He saw four or five "girls".  One of them was on the ground, kicking and screaming.  He did not recognize them.

[135]     One of the women walked over to him and apologized for the noise.  She had a bottle of alcohol with her.  He said she asked if she could come inside his yard so that it would not be poured out by police.  She came inside the gate.  This was Sarah Stewart.  Police came and took one of the women away.  Ms. Stewart's sister, Kimberley George, began calling out for her.  Mr. Tremblay and Sarah Stewart emerged from behind the fence.  The women asked if he had smokes.  He thought he might and they went inside his suite to look.  While there, Sarah Stewart offered him a drink of the alcohol she had with her.  He took a drink and she finished the rest.  It was decided that the women would go to the 7-Eleven to get cigarettes.  Someone asked him along.

[136]     While walking to the 7-Eleven, one of the women said she lived at King Arthur's Court and had to use the washroom.  As a result, the group began to cut through the parking lot of the townhouse complex.  They entered from Fifth Street.

[137]     Mr. Tremblay remembers seeing a "guy" on the other side of the fence.  He was yelling at one of the women.  Someone said, "Oh shit, it's him again", or, "Not him again".  Something to that effect.  Two of the women moved toward him.  Mr. Tremblay said he walked toward the third woman, who was intending to use the washroom.  He heard the male on the other side of the fence say, "Why are you with him".  He then came over the fence.  Mr. Tremblay heard him say that he would "smash" him out, or that the "girls were going to watch him smash or punch [the accused] out".

[138]     The male (Mr. Lapoleon), came right to Mr. Tremblay and put his arm up.  Mr. Tremblay said he put his arm up to block the punch and brought his knife up.  He swung two or three times, ducked out from under and moved away.  He then ran back toward his home.

[139]     He testified that prior to being approached by Mr. Lapoleon, "for the most part [he] wasn't paying attention to him".  But then he was coming toward Mr. Tremblay.  He was "very scared" that Mr. Lapoleon was going to "smash" him.  Mr. Lapoleon seemed angry, agitated.

[140]     He said he was not sure how many times he stabbed Mr. Lapoleon.  He pulled out a knife to defend himself and stop the attack from continuing.  He testified that between his first glimpse of Mr. Lapoleon and the stabbing, he said nothing to him.

[141]     Mr. Tremblay was asked why he used a knife and not his fists, or hands.  He said he did not think his hands would have been sufficient to stop the attack.  He testified that when he took out a knife and stabbed Mr. Lapoleon, he did not intend to hurt him as bad as he did.  However, he did intend to hurt him to stop the attack, and Mr. Lapoleon from advancing.

[142]     His right index finger was cut during the altercation.

[143]     After the stabbing, he walked away as quickly as he could.  He remembers turning around and yelling something at Mr. Lapoleon, but he cannot remember what he yelled.  He agreed it is possible that he may have said something like that which the witnesses have attributed to him.  He said he was no longer being attacked.  He was angry about the fact that he had been attacked and would have been "voicing" that anger.  He was "escaping" and "safe".

[144]     Mr. Tremblay headed straight up Fifth Street to his basement suite.  He said he got about half to three-quarters a block up the street and realized he still had the knife in his hand.  He was going to toss it away.  He did not want to have it in his possession.  He dropped it blade first into a storm drain and continued to his house.

[145]     He was asked why he got rid of the knife.  He explained that he was scared no one would believe him that he had stabbed Mr. Lapoleon to defend himself.  He began to think of his options and none of them were good.  There were four or five people who witnessed the altercation and they were together.  He would be the "lone individual" with a different version.  He did not think people would believe him.

[146]     He got to his house, went through the front gate and into his suite.  His hand was bleeding.  His mind was "going around a mile a minute".  He was running around looking for a first aid kit, but could not find one.  He went to the bathroom sink and washed the blood off his hand.  He saw that the cut was not that bad.  He decided to go to his parents' house, so that they could hear his "side of the story".  He was panicking and "full of adrenalin".  He did not know if he had killed the male.  He did not know what was going on.  He was not thinking clearly.

[147]     As soon as he got into his suite, he removed the sweater he had been wearing.  He was hot from having sprinted home.  He said he did not remove it to change his appearance, or get rid of evidence.  He remembers writing something on a door to the suite, a wall and in a notebook.  He does not remember the content.  He had a "thousand thoughts going through his mind".  He said he remained in his suite for only 10 to 15 minutes.  He began to leave and wanted to go out the front.  However, a police car and police SUV pulled up.  He turned and walked out the back gate.  He got just about to Sandy Court, when he saw another police car coming.  He started to cut through yards.  He could see the police were using dogs.  He looked for the first place he could find where he might get up high, or "tuck in", so that he would be out of the reach of the dogs.  He was worried the police would release the dogs and he would be chased and bitten.

[148]     He was arrested on Sandy Court.  On March 31, he provided a statement to police.  He said he was truthful "for the most part".  He lied "at first" about whose knife was involved in the incident to make him seem more believable on the issue of self-defence.  He continued to think that no one would believe he was defending himself.  During the interview with police, he began to think about the video footage and how it would show his side of the story.  After reflecting on that, he decided to tell police what he remembered happening.  He then acknowledged to them that he had the knife for about three or four months prior to the incident, and it was in his possession when he entered King Arthur's Court.  He said he always carries a knife with him.  He goes into the bush a lot, he hunts, fishes and rides mountain bikes.  He uses the knife for a lot of different things.

[149]     In cross-examination, Mr. Tremblay was asked whether he wrote the things he did on the door and wall of his suite because he was feeling "desperate".  He said he was not sure what he was thinking at the time.  It was suggested that the knife he was carrying was not a "normal pocket knife" as he described to police in his statement, but something much bigger.  He disagreed.

[150]     He acknowledged that he lied to police about whose knife it was.  He said he was thinking about a "million things" after learning that he was being charged with attempted murder, and he thought being untruthful about the knife would minimize his involvement and place him in the "best light".  In his direct examination, Mr. Tremblay said he decided to tell the truth about the knife after hearing that there was video footage of the altercation.  Crown Counsel pointed out to him that it was not until 34 or 35 pages into his statement that he began acknowledging the knife was his, and the existence of video footage had been mentioned to him seven or eight times by then.  He had also been offered an opportunity to review portions of the video and he declined.  Mr. Tremblay agreed that the lie about the knife was persistent.  He said it took him awhile to think about the video and how it would show his side of the story.

[151]     Crown Counsel suggested to Mr. Tremblay that he had the knife out and ready to use as soon as he saw Mr. Lapoleon on the other side of the fence.  He denied this and said he pulled it out when he saw the complainant coming over the fence.  The knife was in one of his front pants pockets or the kangaroo pocket of his sweater.

[152]     Mr. Tremblay acknowledged that he did not warn Mr. Lapoleon he had a knife.  He did not wave it around and say, "Don't come any further".  He said he did not have time to do that.  Crown Counsel suggested that he could have showed the knife to Mr. Lapoleon, raised it above his head, told him that he had a knife and tell Mr. Lapoleon to back off.  Again, Mr. Tremblay said he did not have time to do that.

[153]     Crown Counsel also suggested that he could have walked away when Mr. Lapoleon was approaching him.  He said when he saw the complainant coming toward him, he was only a few steps away.  He thought Mr. Lapoleon was focused on the women, not him.  It was put to him that in the amount of time required to pull out the knife and "plunge" it into Mr. Lapoleon, he could have walked away.  He said he did not want to turn his back on the complainant.

[154]     Mr. Tremblay was cross-examined on the manner in which he disposed of the knife.  He agreed that he carefully dropped it down a storm drain, putting it between the slats.  This was a deliberate act.  He acknowledged that the purpose of doing so was to get rid of the knife.  When it was suggested that he was trying to get rid of evidence that linked him to the stabbing, he denied the proposition and said he was going to let police know where the knife was when he "turned himself in".  In his statement to police on March 31, as well as in his direct examination, he made no mention of an intention to turn himself in.  He agreed that when police first arrived at his house on March 31, he saw them, but did not turn himself in.  Instead, he left out the back yard.  In explaining this, Mr. Tremblay said he "waited for the police to come to him".

[155]     Mr. Tremblay has a criminal record, including multiple convictions for breaches of a court order and possession of stolen property.  He was taken to various portions of his statement to police in which he made comments to the effect that he did not "play by the rules" and wanted to speak with his mom to tell her that he "might not be around for awhile".  It was suggested to him that he made these comments because he knew he crossed the line with Mr. Lapoleon, did not act in self-defence and was responsible for culpable acts.  He denied this.  He said he understood Mr. Lapoleon was hurt.  But, he was worried people would not believe him when he said he acted in self-defence.  It was his word against whoever else was there.

[156]     Mr. Tremblay acknowledged that he said something to Mr. Lapoleon before he left the scene and gestured with one of his hands.  It was suggested that he was "taunting" Mr. Lapoleon.  He disagreed and reiterated that he was angry at having been attacked.

[157]     Mr. Tremblay has no explanation for why he wrote on his door and wall, or said in a notebook that he had "fucked up".  However, he denied it would have been because he knew he had committed a culpable act.  He said he appreciates that he hurt someone and he feels badly about it, but he did not see that he had any options at the time.

POSITIONS OF THE PARTIES

A.       Defence

[158]     Counsel for Mr. Tremblay argues there is only one issue in this case; that is, whether the Crown has proved beyond a reasonable doubt that the acts committed by the accused were not reasonable in the circumstances: s. 34(1)(c) of the Code.

[159]     Mr. Tremblay argues that the evidence of Mr. Lapoleon, Ms. George and Ms. Stewart is of little assistance in determining this issue.  Mr. Lapoleon has no recollection of how the incident at King Arthur's Court unfolded.  The evidence of Ms. George and Ms. Stewart suffers from significant credibility issues, including inconsistencies between their testimony and the video footage.  Defence counsel argues they are loyal to Mr. Lapoleon; have had time to share their stories in support of a collective narrative, tainting the reliability of their testimony; and, Mr. Tremblay says it is apparent from their demeanour while testifying that they were reluctant to relay any evidence, or acknowledge propositions, that potentially painted Mr. Lapoleon as the initial aggressor.  When taken to portions of previous statements in which they made these sorts of admissions, they conveniently claimed a lack of recall.  Mr. Sampson's evidence was better, but even he had to be pushed with reference to his prior statement to acknowledge facts that potentially weighed against Mr. Lapoleon.

[160]     The defence says the most critical pieces of evidence in this prosecution are the video footage, coupled with Mr. Tremblay's testimony.

[161]     Mr. Tremblay has asserted that he stabbed Mr. Lapoleon in self-defence.  Mr. Lapoleon attacked him; he believed he had no choice but to defend himself; and, using a knife in aid was the only viable option in the circumstances.  There was no time for him to retreat or think through alternatives.  The defence argues that in light of the video footage, which shows Mr. Lapoleon heading straight to Mr. Tremblay; things Mr. Lapoleon was saying while enroute; the size difference between the two men; Mr. Lapoleon's propensity for aggression when intoxicated; and the speed at which the event unfolded, the Court should accept Mr. Tremblay's testimony and acquit him on that basis.

[162]     At the very least, the defence argues that the accused's testimony should raise a reasonable doubt on the Crown's burden of proof.  He initially lied in his statement to police about the origin of the knife, but that does mean the Court should reject the whole of his testimony.  The lie, as well as Mr. Tremblay's conduct after-the-fact, has been rationalized by him and does not support the Crown's challenge to his credibility, or provide a principled basis from which to infer that at the time he stabbed Mr. Lapoleon, the accused was acting offensively, rather than defensively, and conducted himself unreasonably.

B.       Crown

[163]     The Crown accepts there is an air of reality to the defence of self-defence in this case.  In fact, it concedes under s. 34(1)(a) of the Code that at the time he stabbed Mr. Lapoleon, the accused believed, on reasonable grounds, that force was being used against him, or a threat of force was being made against him.

[164]     However, the Crown argues that on the evidence, it has disproved that ss. 34(1)(b) and (c) are available to Mr. Tremblay.  It is the Crown's position that Mr. Tremblay did not stab Mr. Lapoleon for the purpose of defending himself, and that the acts committed by him were not reasonable in the circumstances.

[165]     The Crown acknowledges that Mr. Lapoleon's evidence is not "useful" in deciding what happened in the parking lot at King Arthur's Court.  He has no recollection of the specifics.  It further concedes that Ms. George's testimony is of little assistance, and her behaviour and demeanour in the witness stand adversely affected her credibility and reliability.  Ms. Stewart's evidence about what occurred was not borne out by the video evidence.  However, David Sampson, in the Crown's view, gave a forthright and reliable account, and this Court should accept his testimony.  This includes his evidence that after the stabbing, he heard Mr. Tremblay say, "You're gonna die tonight, bitch".

[166]     It is the Crown's position that Mr. Tremblay is not credible and the versions of events he put forward in his statement to Cst. Reynolds, and in his testimony, should be rejected.  In particular, the Crown says his assertion that he stabbed Mr. Lapoleon for a defensive purpose is not credible.  Among other things, his behaviour after-the-fact, including what he said when leaving the parking lot, disposing of the knife in a storm drain, removing his clothing at his residence, leaving notes for his mother and girlfriend, and hiding in a camper trailer, is consistent with a culpable state of mind.  He lied to police about the origin of the knife and persisted in this lie for a considerable period during his in-custody interview, knowing that if he was truthful about the knife, his true culpability would be revealed.

[167]      With respect to s. 34(1)(c) of the Code, the Crown argues that delivering four stab wounds to Mr. Lapoleon was not reasonable.  There was time to retreat or pursue a different option.  Mr. Tremblay could have shown Mr. Lapoleon the knife and warn him about approaching further.  He could have used his fists to defend himself, rather than a knife.  Instead, he immediately chose a knife and proceeded to deliver four blows.  Mr. Lapoleon was unarmed.

LEGAL PRINCIPLES

[168]     It is not disputed that on the evidence, the essential elements of aggravated assault have been made out: R. v. Godin, [1994] 2 S.C.R. 484 at p. 488; R. v. Fontaine, 2011 BCCA 140 at para. 25.

[169]     Nor is it disputed the evidence establishes that Mr. Tremblay intentionally applied force to Mr. Lapoleon with a weapon: R. v. Shepperd, 2018 ONCJ 692 (Ont. Prov. Ct.) at para. 102.

[170]     The issue before the Court is whether the defence of self-defence is available to Mr. Tremblay.  Self-defence is governed by s. 34 of the Criminal Code:

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.

[171]     The factors to consider in assessing whether an act was "reasonable in the circumstances" are delineated in s. 34(2).

[172]     The Crown bears the burden of disproving the defence of self-defence.  To meet this burden, it need only prove beyond a reasonable doubt that one of the three elements of the defence does not apply.  All three of the s. 34(1) criteria must be present for the defence to be available: R. v. Randhawa, 2019 BCCA 15 at para. 34. [Internal references omitted.]

[173]     In deciding whether the Crown has met its burden, the Court must consider the whole of the evidence: R. v. Fontaine, at para. 12.  Throughout the course of the analysis, I must also remain mindful of the fact that the accused is presumed innocent unless and until the Crown meets its burden of proof.

[174]     The law does not require that an accused retreat before acting in self-defence: R. v. Sandhu, 2018 BCPC 122 at para. 11, although a failure to do so may be relevant to the ss. 34(1) and (2) analysis.  It is also well-established that a person who is under attack, and defending themselves, cannot be expected to weigh, to a nicety, the exact measure of the defensive action required: R. v. Sandhu at para. 13, citing Palmer v. The Queen (1971), 55 Cr. App. R. 223 at p. 242.  See also R. v. Kandola.

[175]     In self-defence cases, evidence showing that the complainant has a predisposition to violence is admissible:

[47]      Propensity evidence is circumstantial evidence and may be introduced to enhance the probability that the deceased acted in a particular way as a matter of habit at the time of the incident.

[48]      Evidence of a victim's disposition for violence may be established by evidence of his reputation for violence, by evidence of specific acts of violence, even if those acts do not constitute similar acts, or by expert opinion evidence.

R. v. Hamilton, 2003 BCCA 490.

[176]     The Crown has called evidence of after-the-fact conduct and asks, based on this evidence, that the Court draw an inference of consciousness-of-guilt on the part of Mr. Tremblay.  In particular, the Crown argues that the post-offence conduct shows that when he committed the stabbing, Mr. Tremblay had a culpable state of mind, one that was inconsistent with a defensive purpose.

[177]     In considering this evidence, the Court is obliged to consider alternative explanations for the impugned behaviour and "avoid a mistaken leap from [the] evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear, or a false accusation, or some other innocent explanation": R. v. Calnen, 2019 SCC 6 at paras. 116–117.  Moreover, to convict on the basis of inferences drawn from circumstantial evidence, I must be satisfied beyond a reasonable doubt that the inferences sought are the only rational inferences to draw: R. v. Griffin, 2009 SCC 28; R. v. Villaroman, 2016 SCC 33.

[178]     Because Mr. Tremblay testified, I must instruct myself in accordance with R. v. W.(D.), [1991] 1 S.C.R. 742 at p. 758:

·        If I believe the evidence of Matthew Tremblay, I must acquit him;

·        If I do not believe his evidence, but am left in reasonable doubt by it, I must acquit;

·        Even if I am not left in doubt by the evidence of Mr. Tremblay, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt.

[179]      There is a fourth step to the W.(D.) analysis; that is, if I am unable to decide whom to believe, I must acquit: R. v. C.W.H. (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) at p. 155.

[180]     In R. v. Reid (2003), 65 O.R. (3d) 723 (O.N.C.A.), Justice Moldaver, as he then was, suggested that in self-defence cases, the first two principles of the W.(D.) analysis are appropriately cast in this language:

·        If I accept Mr. Tremblay's evidence and on the basis of it, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find him not guilty.

·        Even if I do not accept Mr. Tremblay's evidence, if, after considering it alone or in conjunction with other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find him not guilty.

[181]     Finally, the principle of reasonable doubt applies to the issue of credibility.  On any given point, I may believe a witness, disbelieve a witness, or not be able to decide.  I do not have to fully believe or disbelieve one witness or a group of witnesses: R. v. Tom, 2014 BCSC 2660.  If I have a reasonable doubt about the guilt of Mr. Tremblay arising from the credibility of the witnesses, I must find him not guilty.

APPLICATION OF LEGAL PRINCIPLES

[182]     Counsel referenced a number of authorities in their closing submissions.  I do not propose to summarize or analyze each of these cases.  Where necessary, I will reference the facts or principles embodied therein.  I have reviewed the authorities.

[183]     As noted, the main issue before me is whether the accused acted in self-defence.  Accordingly, I consider it appropriate to analyze the evidence, make my findings of fact and apply the relevant legal principles with reference to the three criteria embodied within s. 34(1) of the Code.

A.       Section 34(1)(a) – Force or Threat of Force

[184]     The Crown concedes that at the time he stabbed Mr. Lapoleon, the accused believed, on reasonable grounds, that force was being used against him, or, at the very least, that there was a threat of force.  The concession is well-founded.

[185]     The video footage from King Arthur's Court clearly shows Mr. Lapoleon moving directly toward Mr. Tremblay once he climbs over the fence.  Mr. Tremblay was simply standing there.  There is no indication he was engaged with Mr. Lapoleon, verbally or otherwise.  When Mr. Lapoleon reaches Mr. Tremblay, he appears to have his right arm raised and outstretched.  He is moving quickly and is considerably taller than Mr. Tremblay.

[186]     I also find, as a fact, that Mr. Lapoleon was likely angry when he approached Mr. Tremblay, confrontational and intent on physically challenging the accused.  Mr. Lapoleon has no recollection of the altercation with Mr. Tremblay.  However, David Sampson testified that Mr. Lapoleon was upset when he discovered that Ms. George was not at the Watfield Avenue residence, jumped out of a bedroom window and ran to find her.  I accept this evidence.  It rationally explains Mr. Sampson's presence at the parking lot.  It is also consistent with the video footage, which shows Mr. Lapoleon running down Georgia Avenue, alongside the parking lot at King Arthur's Court.  Despite his intoxication, he climbs over a 6-foot chain link fence that had small spikes at the top, moves behind a parked van and heads directly to Mr. Tremblay.  He did not know Mr. Tremblay.  Approaching him as quickly as he did is consistent with an intent to confront.  He initiates the physical contact between the two men.

[187]     In her testimony, albeit reluctantly, Ms. Stewart agreed that when she first saw Mr. Lapoleon on the other side of the fence, he was saying things like, "Who is that guy, what's his name, what are you doing with him".  She also agreed that Ms. George told Mr. Lapoleon to "fuck off", which, in my view, is consistent with the defence theory (confirmed by Mr. Sampson), that the relationship between Mr. Lapoleon and Ms. George was tense that night, and likely to have been fuelling Mr. Lapoleon's behaviour.

[188]     Ms. Stewart denied that when she walked over to Mr. Lapoleon at the fence, he was "amped up".  She did not deny that he may have said things about challenging Mr. Tremblay, but could not remember if he did.  She acknowledged providing a statement to police on March 31, while still at King Arthur's Court.  She agreed that in the statement, she told police that Mr. Lapoleon jumped over the fence and said, "Shit gonna happen" or, "I'm just gonna start some shit", and "I am going to fucking punch this guy out".  She agreed that she told police he would not "calm the shit down and he got fucking stabbed".  Ms. Stewart acknowledged that she was telling the truth when she spoke with police, but could not remember the things she said.  Later in her testimony, she said she "barely" remembered the things she said.  Her denial of Mr. Lapoleon being in an agitated or "amped up" state lacks credibility.

[189]     Mr. Lapoleon acknowledged he was "drunk" on March 31.  This was confirmed by Mr. Sampson's evidence.  There is evidence that when intoxicated, and he and Ms. George are not getting along, Mr. Lapoleon has the potential to become angry, jealous and prone to violence.  I accept that this does not always happen.  However, it did happen at least once prior to March 31, 2018, as acknowledged by Mr. Lapoleon.

[190]     On the whole of the evidence, I find that this is likely what occurred in the early morning hours of March 31.  When Mr. Lapoleon arrived at King Arthur's Court, he was angry about the fact that Ms. George was out; he demanded to know who Mr. Tremblay was; and, he climbed over the fence and headed for the accused in an aggressive manner.  He was the initial aggressor, not Mr. Tremblay.

[191]     I find that in their testimony, Ms. George and Ms. Stewart each attempted to downplay the possibility of Mr. Lapoleon having started the altercation.  I do not find their evidence credible in this regard.

[192]     There are material inconsistencies between these witnesses' descriptions of what occurred and the video footage.  Their evidence is also at odds with the testimony of Mr. Sampson (which I do accept), about what occurred on the night of March 30 when everyone was still at the Watfield Avenue residence, specific to the dynamics between Mr. Lapoleon and Ms. George, as well as Mr. Lapoleon's state of sobriety.  There were inconsistencies between the testimony of Ms. George and Ms. Stewart, and what they said in their statements to police and/or at the preliminary inquiry.  I find that they lacked recall on material issues for which they were previously able to provide greater detail.  When taken to prior statements in which they said certain things, they were reluctant to adopt the content, even though acknowledging that they spoke the truth when the statements were made.  During her evidence, Ms. George refused to answer certain questions and after being warned about the possibility of contempt, she was given time to consult with a lawyer about her testimonial obligations.  She answered the questions, but was openly disrespectful of counsel for the defence and the testimonial process, using derogatory language.

[193]     The demeanour of both Ms. George and Ms. Stewart while testifying has led me to conclude that they were biased toward Mr. Lapoleon in their evidence, with animus toward the accused.  As a result, in the absence of confirmation, the Court must be cautious about the amount of weight attached to their evidence.  In its closing submissions, the Crown acknowledged that Ms. George's "behaviour and demeanour on the stand adversely affected her credibility and reliability".  The Crown further conceded that Ms. Stewart's evidence "in regard to how the parties were positioned, prior to and during the altercation, was not borne out by the video evidence".

[194]     I indicated earlier that I accept the evidence of David Sampson.  In my view, Mr. Sampson's demeanour while testifying was qualitatively different than Ms. George's and Ms. Stewart's.  He answered questions in a straightforward way; when prior things he said were put to him to refresh his memory, he acknowledged their truthfulness to the extent he could remember them; and, I saw no evidence of collusion or bias on his part.  He moved out of the Watfield Avenue home shortly after the March 31 incident.  I accept that he spoke with the other witnesses after the fact, including Mr. Lapoleon, but in my view, there is no indication that he has purposefully tried to align his version of events with a collective narrative.  His evidence is also supported by the video footage.  His description of what he did after arriving at King Arthur's Court is consistent with the footage.  His testimony of what he heard Mr. Tremblay say as he walked away from the scene is corroborated, at least in part, by Margaret George, a resident of the townhouse complex.  She testified that she heard a male yell, "I hope you fucking die", which is not substantively inconsistent with Mr. Sampson's version.

[195]     Defence counsel suggests that Mr. Sampson could not have seen or heard the things he described in his evidence because of his physical proximity to the altercation and, more importantly, the fact that he is not seen on the video climbing over the fence until after Mr. Tremblay has left and is out of view of the camera.  I appreciate this evidence but find, overall, that it does not undermine Mr. Sampson's credibility.  The fact that the video footage does not show Mr. Sampson emerging from the back shadows until a certain time, does not mean he was not there, with the capacity to make observations, even from a distance.  Sgt. Mattes with the Nanaimo R.C.M.P. spoke with Mr. Sampson at the scene.  Based on her observations, he appeared sober.

B.       Section 34(1)(b) – Whether the Act was Defensive

[196]     Under the second prong of the self-defence analysis, the Crown must prove that Mr. Tremblay did not stab Mr. Lapoleon for the "purpose of defending" himself.

[197]     When Mr. Tremblay was interviewed by police on March 31, he told them that he heard Mr. Lapoleon say he was going to punch him out.  He backed away, but stood his ground, putting his hand(s) in his pocket where the knife was.  Mr. Lapoleon came at him.  Mr. Tremblay said he pulled the knife out, Mr. Lapoleon kept coming and he swung his arm out, with the knife.

[198]     His testimony at trial was essentially to the same effect.  He saw Mr. Lapoleon on the other side of the fence, yelling at one of the women.  He heard him demanding to know why they were with him (Mr. Tremblay).  Mr. Lapoleon came over the fence.  Mr. Tremblay heard him say something like he was going to "smash" him, or that the "girls were going to watch him smash or punch [the accused] out".  Mr. Lapoleon came straight to Mr. Tremblay and put his arm up.  Mr. Tremblay put his arm up to block the punch and brought his knife up, swinging to or three times.  When Mr. Lapoleon was approaching him, he was "very scared" that Mr. Lapoleon was going to "smash" him.  Mr. Lapoleon seemed angry, agitated.  Mr. Tremblay pulled out the knife to defend himself and stop the attack from continuing.

[199]     The Crown argues that Mr. Tremblay's testimony should be rejected.  A number of reasons are offered for this, including (but not limited to): (1) the video footage shows that rather than moving away from Mr. Lapoleon when he was approaching Mr. Tremblay, the accused only takes a few steps back, then plants himself and gets ready to engage; (2) he delivers four blows to Mr. Lapoleon, they are in quick succession, purposeful and "powerfully delivered"; (3) when interviewed by police on March 31, Mr. Tremblay lied about the origin of the knife and maintained this lie well into the interview; (4) there are inconsistencies between his testimony and his statement to police, including offering for the first time, in cross-examination, that before his arrest, he had formulated the intention to "turn himself in"; and (5) the Crown places considerable emphasis on Mr. Tremblay's after-the-fact conduct, arguing that it speaks to a state of mind inconsistent with a defensive, and, therefore, non-culpable purpose.

[200]     I do not intend to review each of the Crown's challenges to Mr. Tremblay's evidence.  The closing submissions are fresh in my mind and I have reviewed the written materials put before me.

[201]     I do not believe everything Mr. Tremblay said in his evidence.  I agree with the Crown that there are credibility concerns.

[202]     For one, the lie that Mr. Tremblay told Cst. Reynolds about the knife belonging to Mr. Lapoleon was not insignificant.  He also persisted in this lie for quite some time.  The lie was specifically calculated to diminish his level of responsibility in the stabbing incident.

[203]     Second, I find Mr. Tremblay's testimony that he intended to "turn himself in" after the stabbing and let police know where he put the knife, was likely made up on the fly to counteract the theory being put to him by Crown Counsel; namely, that he carefully disposed of the knife after-the-fact to avoid police finding it.  The stated intention of turning himself in is, in my view, inconsistent with the evasive measures he took to avoid police when they arrived at his residence.  It is inconsistent with the explanation he provided for those evasive measures, which was that he thought no one would believe him when he said he acted in self-defence.  It is also inconsistent with lying to Cst. Reynolds about the knife after he was arrested and maintaining the lie for a prolonged period during the interview.

[204]     Mr. Tremblay made no mention to Cst. Reynolds of an intention to turn himself in when interviewed on March 31, 2018.  He made no mention of it in his direct examination.  He did tell Cst. Reynolds that when he got home after the incident, he was "gonna phone", but he does not say police were the intended recipients of this call.  Instead, he said it was his parents that he wanted to talk to, "just [to] let them know everything that just happened".

[205]     Third, Mr. Tremblay has convictions for multiple breaches of court orders.  Repeated demonstrations of non-compliance with court orders reflect a contempt for laws that, in my view, speak to an individual's trustworthiness: R. v. Corbett, [1988] 1 S.C.R. 670 at para. 25.

[206]     I also agree with Crown Counsel that Mr. Tremblay speculated in answering questions, both to police and at trial.  There were also times he could remember considerable detail; but times when he could not, including on aspects of the evidence that would not look favourable for him.  As an example, he could remember saying something after the altercation at King Arthur's Court, but not what he said.  He could remember writing on the door and wall of his suite, but not the reason why.

[207]     However, the existence of one or more untruths, as well as other testimonial frailties, does not mean that the entirety of Mr. Tremblay's evidence must be rejected.  I did not find him evasive when testifying; he was not argumentative; he acknowledged adverse propositions put to him by Crown Counsel; and, although there were differences between the statement he provided to Cst. Reynolds and his testimony, a number of the differences cited by Crown Counsel were relatively minor.

[208]     He lied to Cst. Reynolds, but Mr. Tremblay eventually did tell the truth about the knife, and he showed police where he had disposed of it.  The version of events he ultimately provided to Cst. Reynolds on the altercation itself, and his testimony at trial, are similar in material aspects.  In his statement to police, his description of how Mr. Lapoleon approached him is consistent with the events captured on the video footage.  The Crown has conceded, based on this footage, that Mr. Tremblay reasonably believed force was being applied against him, or that there was the threat of force.  This is consistent with his testimony.

[209]     When speaking with Cst. Reynolds, Mr. Tremblay said he heard Mr. Lapoleon say something about how he was "gonna … punch [him] out".  Ms. Stewart's evidence, to the extent it acknowledges that Mr. Lapoleon was making enquiries about who Mr. Tremblay was, climbed over the fence, wanted to talk to him and went over to Mr. Tremblay, is not inconsistent with a set of dynamics within which a statement such as this has an air of reality to it.

[210]     Mr. Tremblay told Cst. Reynolds that Mr. Lapoleon was "yellin' like agitated that [he] was hanging out with these girls".  In her testimony, Ms. Stewart agreed that Mr. Lapoleon was saying things such as, "Who is that guy, what's his name, what are you doing with him".  Again, her description of what Mr. Lapoleon was saying, and the description provided by Mr. Tremblay, are not materially different.  The accused's description of Mr. Lapoleon as yelling and agitated is also consistent with Mr. Sampson's observations about Mr. Lapoleon's demeanour and a common sense inference that Mr. Lapoleon was at King Arthur's Court looking for Ms. George and upset at the fact that she was not at home.

[211]     Mr. Tremblay did not know Mr. Lapoleon.  There is no indication that prior to Mr. Lapoleon heading in his direction, Mr. Tremblay said anything to him; moved toward him; displayed animosity, verbally or otherwise; or engaged in provocative or other conduct indicative of a planned or anticipated confrontation with Mr. Lapoleon, a willingness to fight, or that he was operating on the offensive.  There is no indication that Mr. Tremblay brought a knife with him to King Arthur's Court for a dangerous purpose, with the intent to use it against another person.

[212]     In light of Mr. Lapoleon's direct approach to Mr. Tremblay; the unprovoked nature of the confrontation; the things Mr. Tremblay says he heard immediately before the incident, consistent with the dynamics as they appear on the video and inferentially reasoned from the evidence as a whole; and the size difference between the two men, as captured on the video, Mr. Tremblay's assertion of a defensive purpose in pulling out his knife and using it to apply force is not implausible.  All four stabs occurred while the two men were up against each other.  It is apparent from the video footage that after the first thrust, Mr. Lapoleon continued to aggress, throwing what appears to be a right-handed punch at Mr. Tremblay.  Less than one minute passed from Mr. Lapoleon's initial arrival at the fence to completion of the altercation.  The stabbing motions are in rapid succession.  When the men pull apart, Mr. Tremblay immediately moves away.  There is no display of gratuitous violence after-the-fact.

[213]     I am not prepared to reject the entirety of Mr. Tremblay's evidence on his state of mind at the time of the stabbing.

[214]     In support of its position on Mr. Tremblay's credibility, as well as the second prong of the self-defence analysis, the Crown places considerable reliance on Mr. Tremblay's post-offence conduct.  It is the Crown's position that the statements attributed to Mr. Tremblay as he is leaving the scene; disposing of the knife; taking off his sweater; the words written on the door and wall of his suite, as well as in the notebook; attempts to evade police by hiding in a camper trailer at Sandy Court; and then lying to Cst. Reynolds, undermine the credibility of his testimony that he stabbed Mr. Lapoleon for a defensive purpose and, to the contrary, speak to a culpable state of mind.

[215]     Mr. Tremblay has offered an explanation for these behaviours, including not knowing what to do; panic; feeling afraid because of what happened to him but, at the same time, angry about the fact that Mr. Lapoleon was aggressive when he had done nothing to provoke it; feeling badly about what happened, but also believing that no one would accept his version of events because the witnesses were aligned with Mr. Lapoleon and he would be the "lone" individual with a different version of events; and, hiding in the camper because he was afraid the police dogs would come after him.

[216]     On a prima facie basis, the Crown's argument on the post-offence conduct has appeal, especially when considered in its cumulative effect.  The comments said to be overheard by Martha George, David Sampson and Sarah Stewart are troubling.  Although it is not clear precisely what was said, with Ms. Stewart hearing, "I hope you like getting stabbed", and Martha George and David Sampson hearing an expressed wish for Mr. Lapoleon's death, these are clearly words of anger, with recognition of serious harm having occurred and, on their face, inconsistent with a non-culpable state of mind.

[217]     However, on the whole of the evidence, I am not satisfied that the inference of consciousness-of-guilt that the Crown seeks me to draw from this conduct is the only rational inference to be drawn.  I agree with counsel for Mr. Tremblay that the altercation with Mr. Lapoleon happened very quickly (Ms. Stewart described it as "super-fast").  It is possible, within that context, to experience different emotions within a short period, moving from fear, to anger and back to fear.  Mr. Tremblay's stated concern about not being believed and wanting to speak with his parents before anyone else, is not implausible.  Panicking after the event, not knowing what to do – as a matter of logic, common sense and human experience, these experiences are also not implausible.

[218]     I note that although Mr. Tremblay removed his sweater at his residence, he did not attempt to destroy it.  It was left on his couch, in full view.  He made no attempt to disguise himself when he left his residence.  When arrested, he was described by one of the officers at the scene as "afraid".  In his interview with Cst. Reynolds, and when he accompanied police to identify the location of the knife, he expressed a desire to speak with his mother, consistent with what he says he wanted to do immediately following the incident.  I accept his testimony that there were likely a "thousand" things going on his mind at the time.  He told Cst. Reynolds that back at his house, he "just kind a did the whole panic and ... asked myself what the fuck just happened …".  The words written on the door and wall in blood have an element of randomness about them, consistent with muddled thinking.  Telling his mother that he "fucked up" can have several meanings attached to it – including simply a recognition that he badly hurt someone.

[219]     As I indicated, I do not believe everything Mr. Tremblay said in his evidence.  However, his testimony on the second prong of the self-defence analysis, considered in light of the rest of the evidence, does leave me with a reasonable doubt.  Accordingly, I find that the Crown has not proved beyond a reasonable doubt under s. 34(1)(b) of the Code that the stabbing was not committed for a defensive purpose.

C.       Section 34(1)(c) – Reasonableness of the Acts

[220]     It is the third criteria under s. 34(1)(c) of the Code that I consider to be the critical issue in this case.

[221]     The question asked under this provision, as informed by the non-exhaustive list of factors delineated in ss. 34(2)(a)–(h) of the Code, is not whether Mr. Tremblay believed on reasonable grounds that he had no other course of action available when he stabbed Mr. Lapoleon but, rather, whether the Crown has proved beyond a reasonable doubt that what Mr. Tremblay did was not reasonable in the circumstances as he knew, or reasonably believed them to be: R. v. Randhawa at para. 24.  This is an objective analysis.

[222]     With reference to the s. 34(2) factors, the evidence satisfies me that Mr. Lapoleon climbed over a 6-foot high chain link fence in an agitated state and headed directly for Mr. Tremblay.  He was moving purposefully; raised his right arm; and, even though Mr. Tremblay stepped back, Mr. Lapoleon continued to advance and initiated physical contact.  The evidence establishes that he was likely upset, demanding to know who Mr. Tremblay was and threatening to "punch" him out, or something to that effect.  Things were moving very quickly.  Mr. Tremblay was not familiar with Mr. Lapoleon, which might otherwise have enabled him to guage or assess the degree of violence that might ensue: R. v. Mateo-Asencio, 2018 ONSC 173 at para. 156.  Based on the video footage, the aggressive movement was unprovoked.  I am satisfied that when Mr. Lapoleon approached Mr. Tremblay, he presented a serious threat and was intent on "punching out" the accused: s. 34(2)(a).

[223]     On the evidence, the threat and use of force was imminent: s. 34(2)(b).  The Crown argues that Mr. Tremblay had time to retreat, or pull out his knife, wave it around and warn Mr. Lapoleon about coming closer.  However, this incident unfolded in a matter of seconds.  A maximum five seconds passed between Mr. Lapoleon moving directly to and reaching the accused, and Mr. Tremblay removing himself from the altercation and going toward Fifth Street.  There was no break in the physical contact between the two men.  Mr. Lapoleon initiated the physical contact; the video shows that the first physical move made by Mr. Tremblay likely involved raising his left arm in response to the right arm outstretched by Mr. Lapoleon; and, it appears that after the first of Mr. Tremblay's thrusts, Mr. Lapoleon continued to punch: s. 34(2)(c).

[224]     Mr. Tremblay had a knife with him and he used it against Mr. Lapoleon, who was unarmed and, because of this, the more vulnerable of the two.  Knives carry an inherent risk of serious harm and, when pulled out immediately preceding or during the course of a physical altercation, they necessarily heighten the gravity of a person's conduct.  At the same time, there is no evidence that Mr. Tremblay brought the knife to King Arthur's Court for the purpose of inflicting violence; that he provoked or invited Mr. Tremblay to get into a fight; and, the Crown has not proved that at the time he used the knife, Mr. Tremblay was acting for a purpose other than a defensive one.  The after-the-fact conduct of Mr. Tremblay was taken into account in reaching the latter determination: s. 34(2)(d).

[225]     The law is clear that in assessing the availability of self-defence, and the reasonableness of a chosen response to force, or the threat of force, the Court is not to focus on the physical consequences of the path taken: R. v. Kandola.  The extent of the injuries sustained by a complainant may be considered as evidence of the degree of force used, but their seriousness, standing alone, does not mean that the force must have been unreasonable: R. v. S.(F.), [2017] O.J. No. 244 (Ont. C.J.) at paras. 45–46.  In this case, there is no expert opinion evidence indicating the degree of force that would be necessary to inflict the wounds sustained by Mr. Lapoleon.

[226]     Mr. Tremblay and Mr. Lapoleon were not far apart in years.  From the video, they appeared equally agile.  However, Mr. Lapoleon is about 9 inches taller than Mr. Tremblay and, in March 2018, he weighed approximately 60 pounds more than the accused.  Their size difference is readily apparent on the footage.  In her testimony, Ms. Stewart acknowledged that the size difference would likely have been "intimidating" to Mr. Tremblay: s. 34(2)(e).

[227]     There was no prior relationship between Mr. Tremblay and Mr. Lapoleon, and no verbal or physical interaction between them leading up to the altercation: ss. 34(2)(f) and (f.1).

[228]     Mr. Tremblay stabbed Mr. Lapoleon four times.  Mr. Lapoleon was unarmed.  Apart from the cut on his right index finger, Mr. Tremblay sustained no physical injuries in the incident: s. 34(2)(g).

[229]     As noted, the aggression displayed toward Mr. Tremblay was unprovoked and involved the intentional application of force, and/or threat of force, without his consent.  Section 34(2)(h) of the Code has no application.

[230]     When I consider these factors, there are certainly elements that point to disproportionality in Mr. Tremblay's response, especially the immediate production of a knife, followed by four thrusts, in response to an aggressive approach and punching.

[231]     However, on a consideration of the evidence as a whole, I am not satisfied that the Crown has met its burden of proving, beyond a reasonable doubt, that what Mr. Tremblay did in this case was not reasonable in the circumstances as he knew, or reasonably believed them to be: R. v. Randhawa at para. 24.  The Crown bears a heavy onus.

[232]     Although I do not believe the entirety of Mr. Tremblay's evidence, his testimony that he was fearful when Mr. Lapoleon headed in his direction; believed that the complainant was intent on punching him out; pulled out his knife to defend himself; and did not think that using his fists or hands would have been sufficient to stop the "attack", raises a reasonable doubt in my mind under s. 34(1)(c) of the Code.

[233]     The video footage shows that the incident unfolded rapidly and the punching and stabbing were essentially instantaneous, while the accused and Mr. Lapoleon were intertwined and moving.  I accept that there was little, if any time for reflection and a weighing of alternatives.  In circumstances such as these, the law does not require that a person who defends himself be "expected to know exactly how to respond or to deal with the situation or to know how much force to use to achieve his purpose": R. v. Randhawa at para. 24.

[234]     In my view, the circumstances before me are qualitatively different from the ones in R. v. S.L., [2016] B.C.J. No. 36 (P.C.), a case relied upon by the Crown on the application of s. 34(1)(c).  In that case, the accused stabbed the complainant four times, resulting in serious injuries.  The stabbing was found to be excessive, rendering the defence of self-defence unavailable.  However, the accused brought a weapon with him to the scene in contemplation of a possible confrontation with the complainant.  Witnesses described the altercation as initially consensual, meaning there was mutual aggression.  The accused acknowledged that he had time to run away before the stabbing occurred.  At one point, the complainant was 8–10 feet away from him, with both hands at his side.  The complainant was "highly intoxicated" and his condition was known to the accused.  Some witnesses described the complainant as being so drunk earlier in the evening, that he had to lean on others to stand.  These features are not present in the case before me.

[235]     This case is also different from R. v. Jeffrey, 2009 BCSC 643, another authority relied upon by the Crown.  In that case, the accused assaulted the complainant after going to the kitchen, obtaining a knife, turning around and stabbing him.  In his testimony, he agreed that he "had a chance to get away" before that occurred: at para. 102.  He was headed toward the back door of the residence through which he could have left the scene, "stopped, opened a kitchen drawer and took out a steak knife with a 6-inch blade.  He then, by his own admission, immediately used it" on the complainant: at para. 121.  Instead of running away, he chose to get a weapon and when he did, he knew that the complainant did not have one: at para. 103.  The trial Judge found as a fact that at the time he committed the stabbing, Mr. Jeffery did not believe he was required to use a knife to protect himself: at para. 172.

[236]     At one point in his evidence, Mr. Jeffery agreed that he was angry when he picked up the knife: at para. 106.  After the stabbing, he chased another household member down the stairs, with a "mad" look on his face and the knife, covered in blood: at para. 125.  Again, these features are not present in the case before me.

[237]     I appreciate that Mr. Lapoleon was unarmed in the early morning hours of March 31, 2018 and, as a result of Mr. Tremblay's conduct, he sustained life-threatening injuries that have had a significant impact on him.  He was understandably traumatized by the event and the injury to his left leg continues to present a challenge for him.

[238]     However, the Crown bears a stringent onus of proof in establishing not only the essential elements of each offence charged, but where the defence of self-defence arises on the facts before the Court, as it did here, the Crown must also prove beyond a reasonable doubt that it is not available to the accused.  Making this determination involves a case-by-case analysis, informed by the whole of the evidence.

[239]     In the circumstances of this particular case, I find that the Crown has not met its legal and evidentiary burdens.  After considering Mr. Tremblay's evidence in conjunction with the other evidence, I am left with a reasonable doubt that he was acting in lawful self-defence.  As a result, I must find him not guilty: R. v. Reid.

DISPOSITION

[240]     For the reasons provided, the Crown has not proved that one of the three criteria set out in s. 34(1) of the Criminal Code is not available to the accused.  He is therefore entitled to be acquitted on both offences charged against him.

[241]     Mr. Tremblay, I find you not guilty on counts 1 and 2 of the Indictment.

"DeWitt-Van Oosten J."