A Whitehorse man has been convicted of aggravated assault for an incident involving a pocket knife in the fall of 2016 that left another man with nerve damage.
On Jan. 18, Yukon territorial court Judge Michael Cozens found Wesley Quash guilty of the charge resulting from a confrontation with Steven Smith on the evening of Oct. 14, 2016. He recently released his reasons for the decision online.
According to court documents, Smith had arrived in the McIntyre subdivision at around 8:00 that night to play radio bingo with his partner.
He was “somewhat intoxicated” walking down the middle of the road toward her home “saying things loudly to no one in particular and for no particular reason, other than the intoxicated and boisterous mood that he was in.”
On his way, Smith passed Quash, who was sitting in a vehicle outside of a home in the subdivision listening to music.
Hearing Smith, Quash stepped out of the vehicle and yelled at him something along the lines of, “Why are you being so loud?”
Smith responded to the effect of, “I am not being loud” and “I can be loud if I want,” and went up to Quash “quickly, in an aggressive manner.”
Quash then pulled out a pocket knife with the blade open and swung it at Smith, cutting his face from just below the ear to his chin.
The resulting injury caused considerable nerve damage to Smith.
He needed surgery, was hospitalized for three days and will have to take medication for life.
Cozens noted he had seen photographs of the wound and said “it was a significant injury that left Mr. Smith with a scar, besides the pain, discomfort and other effects of the nerve damage that he has incurred.”
At trial, Quash had testified he was acting in self-defence. He said he had no time to think of an option other than using the pocket knife to avoid being assaulted himself.
Quash claimed Smith had swung at him, “kind of grazing him in the cheek.”
And he said he thought Smith was going to “whip out a bar” and try to hit him and he was afraid Smith was “going to kill (him) or something.”
He also claimed when he looked Smith up and down he noticed he was wearing steel-toed boots and thought he might kick him.
Smith, however, denied taking a swing at Quash and said he did not believe he was wearing steel-toed boots that night.
He also claimed Quash had yelled at him aggressively. He said he responded by running up to Quash aggressively based on past experiences of being beaten up in the same location.
Quash told the court he was afraid as he has been assaulted by strangers in the past, believing this is due to his resemblance to his older brother.
He said this has included incidents where he has had a knife pulled on him and a sock with a rock in it swung at him.
“I get hit often and a lot of people just randomly cheap-shot me and lie about it,” he said.
And he claimed Smith has mistaken him for his brother in the past and yelled, “keep walking .... ”
Smith testified he has no memory of ever meeting or speaking to Quash before the night of the assault.
Quash’s lawyer, Vincent Larochelle, argued Smith is not a credible and reliable witness due to inconsistencies in his evidence “too numerous to be exhaustively listed.”
Those included that Smith had denied being intoxicated despite an RCMP officer stating he was an eight out of 10 on a scale of intoxication.
Larochelle also alleged that Smith has a past of portraying himself to be a victim in encounters of “unwarranted and random aggressive behaviour while intoxicated.”
Crown prosecutor Paul Battin, however, argued Smith admitted to his wrongdoings during trial while Quash tried to put himself in the best light, calling his testimony “contrived and inconsistent.”
He pointed to Quash’s claim that he was concerned the noise Smith was making might disturb children next door.
On cross-examination, he acknowledged he did not know how many children were there nor what their names were.
Battin also rebuked Quash’s claim he was afraid Smith would return with others to harm him.
He noted a police officer’s evidence that Quash was relaxed and had a “braggadocios tough guy attitude” following the assault.
Cozens said Quash’s testimony was delivered in a “fairly calm and matter-of-fact manner” while Smith was “very emotional” and “defensive and argumentative” on cross-examination.
But he found that Quash’s version of events was “somewhat incredible.”
He noted if Quash was afraid of being assaulted, it would have made more sense for him to just let Smith pass.
And he was skeptical of Quash’s claim that Smith had swung at him.
In his decision, Cozens noted that for a conviction in cases where self-defence has been raised, the Crown must prove the accused did not reasonably believe a threat of force was being used against them, the response to the threat was not in self-protection and that the response was not reasonable in the circumstances.
The judge concluded that when Smith ran quickly and aggressively at Quash, it did give rise to a reasonable belief there was a threat of force being used.
He noted that while Quash had called out to Smith, he did not intend nor expect that Smith would react how he did.
Cozens also found it was reasonable for Quash to have reacted in a defensive and self-protective manner in the circumstances.
But he said that Quash’s use of the pocket knife was excessive and unreasonable.
“There was no attempt by Mr. Quash to take any other action than what in fact constituted the use of the maximum force available to him,” he said.