• Lewis Waring

Winnipeg Stabbings Part 1 (Memory and Provocation) - Ashley Bains

Stabbings have been on the rise in Winnipeg in 2020. In this two-part blawg, I will be looking at two recent stabbing cases that took place around near Winnipeg: R v. Assi (“Assi”) and R v. Belyk. These cases are particularly interesting because in both circumstances a defendant was trying to argue that second-degree murder charges should be reduced to manslaughter. In order to provide an overview of the two ways that second-degree murder could be reduced to manslaughter, I will go through the facts and decisions of each case and provide my opinion on each decision. This first blawg will focus on Assi, in which the defense of provocation was argued.


Accused Fights Second-Degree After a Stabbing


In Assi, the accused was charged with second-degree murder and attempted murder. He was involved in an altercation with a group of patrons at his workplace, a café in Winnipeg. Mr. Almousa, one of the patrons, had been standing on a bench for 20 seconds, taking a selfie with his friends when the accused asked him to stop. This angered Mr. Almousa and this anger angered the accused. An altercation ensued between the two which involved exchanging insults and pushing. When the café manager realized what was happening, he told the accused to go home for the evening and asked the group to step outside to calm down. The accused, after grabbing a knife from the back room, left the café while Mr. Almousa and his group were standing outside. The accused then stabbed one of the group members, Mr. Alhorani, and Mr. Almousa. Mr. Alhorani subsequently died.

The accused stated that he does not remember what ensued after leaving the café building. The accused did not dispute the fact that he stabbed Mr. Almousa and Mr. Alhorani and was willing to plead guilty to manslaughter. However, the Crown sought charges of second-degree murder. The issue in Assi was thus whether the Crown was able to prove the essential elements of second-degree murder, and if so, whether the defense of provocation could reduce the accused’s charge to manslaughter. The Crown was able to prove beyond a reasonable doubt that the accused was guilty of second-degree murder. This finding in Assi was based on the evidence that the attack was targeted and that the stab wounds were in vital areas of the victim’s body.


Excluding Provocation


The Crown in Assi was required to prove beyond a reasonable doubt that the defense of provocation did not apply. To do this, five questions were considered by the Manitoba Court of Queen’s Bench (“the MBQB”) in Assi. First, it was asked if the Crown had proven “beyond a reasonable doubt that Mr. Almousa did not engage in conduct that would constitute an indictable offense punishable by five or more years of imprisonment”. Taking into context all of the events that occurred, the answer was no. Secondly, it was asked if the Crown had proven “beyond a reasonable doubt that Mr. Almousa's conduct was not sufficient to deprive an ordinary person of the power of self-control”. Using an objective test, outlined in R v Thilbert, it was concluded that, although threats were exchanged, Mr. Almousa’s conduct was not sufficient to deprive an ordinary person of the power of self-control. This would mean that the defense of provocation failed. However the MBQB in Assi continued to assess the remaining three questions.

The third question asked was whether the Crown had “proven beyond a reasonable doubt that when Mr. Assi killed Mr. Alhorani, he had not lost the power of self-control as a result of Mr. Almousa's conduct”. At this stage, the MBQB took into consideration specific personal characteristics about the accused, as dictated in R v Hill. The accused was considered a regular person prior to this incident and his actions, such as grabbing the knife from his workplace before he headed outside, all indicated that he still had the power of self-control. Therefore, the answer to this third question was yes. This question was answered this way despite the accused not being able to remember anything regarding the attack because R v Harris states that this defense only considers evidence that is direct and circumstantial.

The next question considered was whether the Crown had “proven beyond a reasonable doubt that Mr. Almousa's conduct was not sudden”. According to R v Tran, sudden conduct would be anything that was expected by the accused, and anything that his mind could have been prepared for. In the situation in Assi, the accused was acting within his normal capacity as a server and could not have expected what had occurred. Therefore, the answer to this question was no.

Lastly, it was asked whether the Crown had “proven beyond a reasonable doubt that Mr. Assi did not act suddenly and before there was time for his passion to cool”. When considering this, the MBQB looked at the passage of time between all the events that ensued and the stabbing, as well as the deliberate actions of the accused prior to the stabbing which indicated that the answer to this question was no. Taking all of this into consideration, the MBQB found the accused guilty of second-degree murder.


Memory Loss Not Fatal to Provocation


The simplicity of Assi made the argument for the defence of provocation easy to follow and understand. Although I agree with the MBQB’s reasoning, I was surprised to learn that the provocation defense is available to those that do not remember the circumstances of the attack. That seems counter-intuitive because it seems impossible that one would remember that they were provoked if they don’t remember the details of the attack. Also interesting was the fact that a senseless attack’s classification as to whether it is a second-degree murder or manslaughter turns on a few key circumstances. In addition to this, I did not realize that personal characteristics should be brought in when determining if provocation can succeed as a defense. Overall, this was a greatly laid out decision that enabled me to fully understand how the defense of provocation is assessed.

Check out the Robson Crim MLJ
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