



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kraljevic, 2016 ONCA 860

DATE: 20161116

DOCKET: C60468

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruno Kraljevic and
Branka Kraljevic


Appellant

Frank Addario and Andrew Burgess, for the appellant

Frank Au, for the respondent

Heard: November 1, 2016

On appeal from the conviction entered by Justice Matthew
    C. Webber of the Ontario Court of Justice on March 26, 2015.

By the Court:

[1]

The appellant, Branka Kraljevic, was convicted of aggravated assault.
    There was a scuffle on the driveway at the appellants home in Ottawa. The
    participants were her husband Bruno and three male members of the neighbouring Paquette
    family  father Claude and adult sons Christian and Nicholas.

[2]

The Paquettes instigated the fight over an objection to the noise caused
    by the Kraljevics leaf blower machine. The behaviour of the Paquettes could
    only be described as loutish. After a heated verbal argument, a physical
    altercation ensued. There was a dispute at trial about who threw the first
    punch.

[3]

Several facts were undisputed. The fight took place on the Kraljevic driveway.
    The Paquettes were trespassers there. At some point, Claude punched Bruno in
    the face.

[4]

As the fight continued, Bruno, Claude and Christian were prostrate on
    the driveway. Either or both Claude and Christian were pinning Bruno to the
    driveway surface. The appellant testified that Bruno called to her for
    assistance, telling her to get a knife.

[5]

The appellant ran into the house and grabbed two knives, one of which
    was a two-pronged kitchen knife. She came back outdoors, ran down the driveway,
    and stabbed Claude with the two-pronged knife, causing two breaks in his skin.
    The wound to his left flank area required three stitches to close.

[6]

The evidence about the few seconds before the stabbing and the actual
    stabbing was conflicting.

[7]

The appellant testified that as she approached the melee and immediately
    prior to the stabbing, Claude was just getting up off Bruno. She also said that
    Claude was coming towards her just before she stabbed him.

[8]

The trial judge rejected the appellants testimony on this issue. He
    said that the appellants description of the stabbing scenario was at odds
    with the evidence of the preponderance of witnesses in this case who described
    Claude Paquette standing at the front of the driveway not engaged with Bruno Kraljevic
    immediately prior to the moment of the stab wound. In particular, the trial
    judge accepted and relied on the testimony of Safina Khan, Christians wife, to
    this effect.

[9]

Against the backdrop of these factual findings, the trial judge turned
    to the appellants claim of self-defence under the current s. 34(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

[10]

The trial judge had no hesitation concluding that the appellant was at
    all times subjectively of the belief that her actions were motivated to defend
    herself or her husband.

[11]

However, the trial judge could not find that the appellants stabbing of
    Claude was reasonable in the circumstances. He said: I believe Claude was
    applying no force, and thus was an improper target of any defensive reaction
    engaged in by Branka.

[12]

The trial judge convicted the appellant of aggravated assault and
    assault with a weapon. He stayed the latter conviction on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729.

[13]

The appellant appeals her conviction on the basis that the trial judge
    erred in his application of the law of self-defence. She advances three
    related, indeed overlapping, grounds of appeal.

[14]

First, the appellant submits that the trial judge impermissibly weighed
    the appellants response to a nicety contrary to
R. v. Baxter
(1975),
    27 C.C.C. (2d) 96 (Ont. C.A.). The appellant says that the trial judge paid
    insufficient attention to the important facts that Claude had punched Bruno in
    the face and that Claude was involved in a chaotic assault and was in the
    vicinity of Bruno when he was stabbed.

[15]

We do not accept this submission. The trial judge was well aware of
Baxter
;
    he discussed its principles with counsel during submissions and referred to it
    in his reasons for judgment. He carefully reviewed the evidence. He clearly
    recognized that self-defence was a real possibility as the events unfolded,
    saying, at p. 46:

Lets be clear. If she had come out of the house, armed with a
    knife at the request of her husband, and I found as a fact that Claude Paquette
    was, in fact, still perched on Bruno, and was striking him  if under those
    circumstances, Branka Kraljevic had used a knife to inflict a stab wound, we
    could be in a very different situation.

[16]

However, the trial judges crucial factual findings led him to conclude
    that at the moment of stabbing, Claude was not fighting Bruno; nor was he near
    enough to Bruno to justify the appellant in stabbing him. The trial judges
    reasoning was, in our view, fair and balanced.

[17]

Second, the appellant submits that the trial judge failed to consider
    her mistake of fact, namely, that she thought that Claude was on top of her
    husband and got off him to come towards her.

[18]

We are not persuaded by this submission. What the appellant labels
    mistake of fact is in fact two diametrically opposed versions of the fight as
    the appellant approached with the knife. There was no suggestion at trial that
    the appellant was mistaken, let alone reasonably so.  As the trial judge
    explained at p. 36 of his reasons for judgment, this is simply not one of those
    cases where the competing versions of events could both be reasonable.

[19]

Third, the appellant asserts that the trial judge erroneously considered
    reasonableness in the criminal negligence sense of the word rather than how it
    has been interpreted in self-defence cases.

[20]

We disagree. The trial judge properly considered the appellants
    circumstances as she approached the confrontation and the proportionality of
    her response, all in the context of the wording of s. 34 of the
Criminal
    Code
.

[21]

The preceding reasons dispose of the appeal. However, before stating the
    formal disposition we offer a final comment.

[22]

In his sentencing reasons, the trial judge said this about the appellant,
    who is employed by the Canada Border Services Agency, and had no prior criminal
    record:

Ive read your employment history, and Ive read about all the
    good work youve done over the years. I do hope, given that we have registered
    a conviction against you, that this record will not frustrate or complicate
    your employment. I noticed that your place of employment may be at a location
    that might have security prerequisites. It would be a shame indeed if it did,
    and everything Ive read about you and know about you at this time, would lead
    me to indicate that it surely would be a shame and an injustice if this finding
    of guilt were to have that kind of effect on you. So I hope that doesnt
    happen.

We agree with these sentiments.

[23]

The appeal is dismissed.

Released: JCM NOV 16 2016

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


