A man has been found not guilty of attempted murder for a stabbing that occurred last November near Moberly Lake.
On Monday, Joel Joseph Babin, 47, was acquitted of the major charge, but convicted of assault, a lesser offence, for punching a man in a Moberly lake home in 2014. He was sentenced to time served and released.
The judge found that the Crown had not been able to prove beyond a reasonable doubt that Babin had attempted to kill Mieczyslaw (Matt) Smusz.
On the night of Nov. 12, Babin returned to a residence he and Trina Brown had been sharing, which was owned by West Moberly First Nation.
Brown was an on-again, off-again girlfriend who he met while working at the Willow Creek Mine.
Babin went to bed, but woke up around 2 a.m. to the sound of Brown, Smusz and another man entering the house. He said he knew Smusz as a former boyfriend of Brown's.
Babin said he told Smusz to leave or he would punch him, saying he was worried the man might assault Brown. Smusz and Babin disagreed whether Brown had passed out from drinking before the altercation. Smusz said she had not.
Babin testified that he punched Smusz as he sat on the couch. The man punched back as he stood up, and the two tumbled backwards.
The accused said he noticed earlier that Smusz had tucked a kitchen knife beside him on the couch, which he said somehow got "in between" the two men.
Babin’s lawyer, Georges Rivard, said Smusz likely wounded himself in a "defensive accident" and played the part of victim in a courtroom reenactment, using a ruler as the knife. The blade entered the right side of Smusz's neck and partially hit his throat.
According to the Crown, the injury was life-threatening. Smusz survived and testified in court.
Regardless of how Smusz was stabbed, Rivard said the Crown had to prove that Babin intended to kill the man.
The Crown’s attempts to prove this failed to convince the judge.
Rivard said, “there were two transactions in the act. One punch, and then one struggle.
“If you split the punch and the act that he was charged with, the Crown has not proved [attempted murder],” said Rivard. “What’s left is actually the assault, the initial assault that started all this.”
In the end, Babin was sentenced to time served. According to the court, this was about 150 days. Because time served before sentencing can be counted as more than time served afterwards in the court’s eyes, Babin served 218 days.
He was ordered to stay away from Moberly Lake, Brown, and Smusz. An exception will be made if he goes with a peace officer to pick up his belongings, or if he is going through the area in a moving motor vehicle.
He is also barred from possessing a weapon or knife outside a residence except for eating or employment purposes.
— With files from Jonny Wakefield
reporter@ahnfsj.ca
