Two accused, boyfriend and girlfriend, had their appeals heard together. Boyfriend was convicted of robbery, possession of weapon for purpose dangerous to public peace and three counts of breaching probation orders in connection with his involvement in drug transaction (aggravated assault charge stayed via Kienapple). Boyfriend testified that when complainant leaned into car, stabbed his girlfriend and tried to engage handbrake, he wrestled knife away and stabbed complainant in effort to defend his girlfriend. Trial judge rejected this evidence for several reasons, all of which were available to him on evidence. Further, trial judge made findings of fact in relation to essential elements of aggravated assault and found that boyfriend unabashedly admitted to stabbing complainant eight times and also found that complainant was wounded as result. Appeal dismissed; under s. 686(3)(b) of Criminal Code, court had power to substitute verdict that should have been found by trial judge, so court quashed conviction for robbery, lifted stay and entered conviction on aggravated assault charge. Defence is only available if actions of accused were reasonable in circumstances; force could not be excessive. Accused submitted that trial judge erred in concluding that he had time to extricate himself, and get out of car. Even if trial judge erred factually with respect to this issue, his ultimate finding was based on proportionality. Trial judge concluded that, even if accused’s evidence was accepted in its entirety, once he wrestled knife from complainant, stabbing him eight times was disproportionate to threat he posed. Accused’s conduct went far beyond what could be considered reasonable or necessary. No error was seen in trial judge’s consideration of this defence.
R. v. Breton (June 1, 2016, Ont. C.A., Janet Simmons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., CA C58374) Decision at 109 W.C.B. (2d) 88 was reversed. 131 W.C.B. (2d) 395.