Ontario Criminal


Victim entitled to respond to accused’s attack

Accused claiming self defence in stabbing death of victim. Accused having attempted to rob victim at knifepoint. In course of struggle, victim being stabbed to death. Accused making out-of-court statement that victim had gained control of knife, and would have stabbed him. Trial judge holding self defence under s. 34(2) or s. 35 having no air of reality. Trial judge holding bald statement by accused that victim had knife did not provide basis for objectively reasonable belief accused would unlawfully assault him. Appeal from conviction for first degree murder dismissed. Bald statement about deceased having knife not evidence of objective reasonableness of threat posed by deceased, to trigger s. 34(2). Victim entitled to respond to accused’s attack as matter of law. No air of reality to show accused reasonably believed victim doing anything other than defending himself lawfully. No air of reality to s. 35 self defence as no evidence accused attempted to extricate himself from perilous situation he brought about.

R. v. M. (S.) (Apr. 20, 2012, Ont. C.A., Weiler, Sharpe and Blair JJ.A., File No. C50403) 102 W.C.B. (2d) 317 (18 pp.).

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