K&P Trail stabbing ruled self-defence

Content warning: This article discusses violence and drug use, which some readers may find disturbing.

Justice Owen Rees found a Kingston man not guilty of aggravated assault, ruling that when he stabbed another man in late 2022, it was in self-defence.

Rees heard the case over three days in late August 2024 at the Superior Court of Justice, 5 Court Street, Kingston, with Andrew Scott representing the Crown and Michael Mandelcorn defending the accused. Rees delivered his verdict on October 18, 2024. The accused had been charged with aggravated assault on December 7, 2022.

The judge's decision stated that “[the accused] admits that there was an altercation during which he wounded [the victim] with a knife. [The accused] says he did so in self-defence. The Crown disputes this.” Therefore, the charge of aggravated assault itself was not at issue, but the Crown needed to establish beyond a reasonable doubt that the accused man did not act in self-defence.

The relevant parts of the "defence of person provision" in Section 34 of the Criminal Code state that "a person is not guilty of an offence if 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," if "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 if the act is deemed “reasonable in the circumstances.”

Rees analyzed the evidence through that lens in his decision, writing, “If I accept the accused's evidence and, based on it, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find the accused not guilty.” Furthermore, “Even if I do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence, I must find the accused not guilty.”

According to the judge, the victim and the accused offered differing accounts of what occurred in the early hours of December 7, 2022. The Crown did not call any eyewitnesses to the altercation.

Judge summarizes victim's recollections

The victim was 50 at the time of the trial. At the time of the incident, he was unhoused and living in a makeshift cabin in the bush behind the Integrated Care Hub (ICH) on Montreal Street. He had been living in the cabin for over a year with his girlfriend and his dog, which he described as a good-sized pit bull pup weighing about 30 pounds.

The victim lived in this area because he was using the ICH’s services. The victim testified that he used crystal meth once a day or once every other day in small amounts. By the time of the trial, he was still using crystal meth with the same frequency as he had for the last 10 years. However, he said he had not used crystal meth on the day of the incident. 

The victim testified that he let his dog out to relieve itself on the night of the incident. His dog went running outside and ran up to a dog standing nearby. According to the victim, his dog was not fighting but circling around the other dog, wanting to play, while the other person’s dog was just standing there. This occurred near the K&P Trail, about 250 feet from the victim's cabin.

The victim testified that the other dog's owner started calling him names, yelling and cursing at him, and telling him to leash his dog. The victim said he told the other person to relax, that his dog was just a puppy and needed to pee.

The victim’s initial account was that the other man pulled out a knife and hit the victim's dog with the butt of the knife. As the victim swooped down to get his dog, the other man stabbed him in the face. The victim testified that the man who stabbed him was standing directly in front of him.

According to the report, the victim said he did not have any weapons on him and did not touch the man. The man then ran northbound towards a light post.

Justice Rees noted that the victim’s account varied. Later, he testified that the man pulled out a knife and showed it to him for a short period of time. Even later, he said the other man had the knife out while they argued back and forth for 12 or 15 minutes.

According to the victim, the argument attracted others from the nearby encampment who were observing. The judge said the victim was “somewhat inconsistent in his evidence about how many people were attracted because of the argument," variously describing the numbers as a “crew,” a “bunch of people,” and a “crowd.” At one point, the victim testified that the only person who approached as they were arguing was "about 75 to 100 feet away" when he got stabbed. He could not recall if anyone was closer during the argument, but he testified that no one else was involved.

The victim testified that the argument lasted between 10 and 15 minutes from the time he saw the knife to the time the other person stabbed him. After he was stabbed, the victim said he ran to back to his cabin, he said. He described blood pouring through his fingers. Friends came running to his aid, and one gave him a cloth.

The victim described the other person involved in the altercation as a white male in his mid-30s with dirty blond or light brown hair and a goatee. The victim couldn’t remember details about the other man’s clothing except that it was all dark: dark jeans and a dark coat. He had never seen this man before.

The judge noted that “reliability” concerns a witness’s ability to accurately observe, recall, and recount the events. The term “credibility” concerns a witness’s veracity, honesty, or truthfulness.

Considering the victim’s reliability, Justice Rees wrote, “I accept his recollection that he had not consumed crystal meth the night of the incident. I also accept that he had consumed a small amount of crystal meth around lunchtime the day before… [The] quantity of the meth he consumed… did not impair his ability to recollect events accurately."

The judge found the victim’s memory of the details about the knife was highly accurate and noted that he also provided an accurate description of the accused’s main features and the colour of the clothing the accused was wearing at the time of the incident.

As to the victim’s credibility, the judge found he was “forthcoming about his drug use and readily acknowledged his criminal record” and noted that the accused's criminal record is“dated” and “modest.”

“He answered directly and without evasion on cross-examination,” the judge wrote. “That said, [the victim] made a prior inconsistent statement on a core issue which leads me to doubt that his account was fully frank.”

“Shortly after the incident, while at the hospital, [the victim] told Police Constable Dan Clarke that he had chased the accused and got a punch to his cheek,” the judge noted, observing, “his statement that he chased the accused is an important inconsistency which leads me to doubt his credibility at trial on this point.”

He also questioned the victim’s account that he and the other person “argued between 10-15 and 15-20 minutes before he was stabbed.”

“Given how little was said between them,… I find this unlikely... When considered together with [the victim] omitting the chase, I find that his time estimate suggests more was going on between [the victim] and the accused than a mere argument or exchange of words.”

Judge reviews testimony of accused

Next, the Judge analyzed the accused man’s version of events.

The accused testified that at the time of the incident, he had been living on Rideau Street for about a year. He had a three-month-old Tennessee Walker coonhound named Misfit. She weighed about 15 pounds. The accused testified that he would walk Misfit every night along the K&P Trails because she was shy around people. He testified that the best time to walk her was early morning (or very late night). Another witness confirmed this habit.

The accused took Misfit for a walk around 3:30 a.m. on December 7, 2022. He went through his backyard and took the K&P Trail, which ran behind his residence, south toward Belle Park. He had been walking for about 10 to 15 minutes before he came upon the victim.

The accused testified that Misfit was approached by another dog, which he estimated to weigh between 60 and 70 pounds. Misfit was on a leash and was sniffing the other dog. The accused testified that the other dog leaped and tried to bite Misfit. All this happened within about six seconds. The accused told the victim that his dog had attacked Misfit, but the victim swore at him and told him not to tell him what to do with his dog. They argued in raised voices.

The accused testified that the other man started acting aggressively and walked towards him quickly, looking angry, with his fists balled up. He said he told the man, “Hey, man, I don’t want trouble; just keep your dog on a leash.” The accused testified that the other man started calling his other friends over and that people nearby in the encampment came towards them, and six or eight people started surrounding him in a semicircle. The accused said some of them were holding things, and he saw a metal bar in the hands of one person.

The accused testified that he started backing away with his leashed dog. He turned to run, but Misfit spooked and got away. As soon as he started running, so did the others. The accused said that he ran towards Belle Park on the trail and that his pursuers were calling ahead to the encampment on the side of the trail. He testified that someone came out of a tent with a baseball bat and threw it at him, but it missed. Then rocks were being thrown at him, and one hit his hand.

The judge wrote that the accused had testified that as the group began to catch up, he was “terrified and afraid for his life.” 

One person was getting too close and, though he "hated to do it,” he took his knife out, “which he had for his protection," Justice Rees wrote.

The accused lashed out. The person he struck fell, but the accused testified that he kept running. He ran off the trail onto Montreal Street, around the ICH onto Rideau Street, and to his home. He testified that he was pursued the whole time by people on bikes.

The accused testified that when he reached the front door, he fumbled with his keys, entered, and slammed the door. His pursuers pushed on the door, but he was able to get it closed. The accused said his pursuers tried to break down the door and get at him. They kicked at the door, and something heavy was thrown at the window. He heard the window breaking. 

The Judge confirmed this damage based on photographic evidence of the door.

The accused man testified that he yelled at his roommate and they called 911. Eventually, his pursuers left, and the police came to his door.

The judge wrote, “[The accused] was generally a reliable witness. There were no significant issues regarding his ability to accurately observe, recall, and recount events. For example, I find that his perception and memory of how long he and [the victim] were arguing is more accurate than [the victim]'s, given they were briefly arguing about the need for [the victim] to keep his dog on a leash.”

The judge found the accused man was mostly credible.

However, the accused was not truthful with police the first time he was interviewed, the judge wrote: “He made no mention of having stabbed [the victim] in self-defence or of carrying a knife."

The accused explained that during the interview, he didn’t disclose what happened at the station because he was afraid he was being charged. He described himself as "confused, angry and upset.” 

“Ultimately,[the accused]’s failure to be forthright with police does not lead me to conclude that he is lying about acting in self-defence,” the judge wrote.

No motive besides self-defence established by Crown

Next, the judge considered whether the Crown had established beyond a reasonable doubt that the accused had not wounded the victim in self-defence. “I cannot be sure of exactly what happened during the altercation, but I am left with a reasonable doubt on the following points,” he wrote.

The Crown had presented “grainy” and “distant” video evidence from the ICH that the judge did not find helpful in establishing the Crown’s case.

The police search of the encampment revealed a homemade spear, a metal bar, and a knife. The victim acknowledged that encampment members sometimes armed themselves with weapons. “All of this lends an air of reality that the encampment residents were holding objects or were armed,” Rees wrote, “The Crown has not disproved this.”

The accused believed the victim was chasing him and about to overtake him. When considered together with several encampment members having drawn close --- some of whom he perceived were armed --- this presented a threat of force against him, Rees stated. “The Crown has not disproven that [the accused] believed his life was at risk.”

Any “reasonable person” in the accused man’s circumstances would perceive that the victim was threatening to use force and that the presence of the other encampment members, some of whom appeared to be armed, heightened the gravity of the threat, wrote the judge.

The Crown had failed to produce a motive beyond self-defence, the judge wrote. “I am not persuaded that [the accused] stabbed or slashed [the victim] when the latter was bending down to grab his dog during their argument. Nor am I persuaded that [the accused] was the initiator or aggressor in the stabbing.”

Ultimately, the accused man’s defence came down to whether his stabbing of the victim was “reasonable in the circumstances.”

“There was no relationship between the parties to the incident. Nor was there any history of interaction or communication between them,” wrote the judge, noting that the victim and the accused had never met before.

The judge concluded that any reasonable person would have had “a heightened sense of the threat given the presence of the other, potentially armed, encampment members. It was dark, and [the accused] was isolated.” 

Ultimately, Justice Rees ruled that the assault was done in self-defence and pronounced the accused not guilty of aggravated assault.

Editor's note: The identities of the accused and the victim have been removed from this article out of respect for the privacy of those involved.