Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 02 23 COURT FILE No.: Metro North, Toronto Region 19-45004694

BETWEEN:

HIS MAJESTY THE KING

— AND —

Hacar KHESRO-MOHAMED-RASHEED

Before: Justice Cidalia Faria

Evidence Heard on: July 13, 14, November 1, 19, 2021, October 21, 2022 Submissions Heard on: October 21, November 15, 2022 Reasons for Judgment released on: February 23, 2023

Counsel: Oslyn Braithwaite, counsel for the Crown Rupinjit Singh Bal, for the defendant Hacar KHESRO-MOHAMED-RASHEED

Faria J.:

I. Overview

[1] Hacar Khesro-Mohamed-Rasheed, hereinafter referred to as Rasheed was charged with assaulting Mohamad Sulyman, hereinafter referred to as Sulyman, causing him bodily harm contrary to s. 267 (b) of the Criminal Code.

[2] Over the course of five days of evidence, the Crown called three witnesses: two officers and the complainant and filed 50 photographs. Rasheed testified on his own defence, filed two photos, and Sulyman’s audio statement to the police.

[3] In brief, both men testified they were friends, met up at a fundraiser for their community, and then went their separate ways on the evening of November 8, 2019. Both men testified Rasheed attended Sulyman’s apartment in the early morning hours of the next day in the company of a woman. Both men testified the couple smoked a marijuana joint had a few shots of tequila. Both men testified the woman, neither of whom can even remember her first name, ended up on Sulyman’s bed in his bedroom.

[4] How the woman got to the bed, who was trying to sexually assault her, and who was trying to protect her, is where they differ. Rasheed strikes Sulyman which lands him in hospital for two days with multiple injuries.

[5] The date, jurisdiction and identity of the parties is not at issue. Given the evidence and position of the parties, neither is the fact Rasheed struck Sulyman.

[6] The specific nature of the injuries Sulyman sustained were also unchallenged. He testified his nose was fractured, his eye was swollen shut, his tooth was chipped, and his face was beaten with multiple cuts to the forehead, the bridge of his nose, and all over his face which constitutes bodily harm.

[7] Therefore, all the elements of the offence were proven beyond a reasonable doubt.

[8] The issues to be decided are: (i) Whether Rasheed had reason to strike Sulyman. (ii) Whether Rasheed’s response was reasonable in the circumstances.

II. Positions of the Parties

[9] The Crown submits Sulyman’s testimony was unshaken and should be accepted and Rasheed’s testimony of self-defence should be rejected as having no air of reality. She submits Rasheed had other options, he is untruthful about how often he struck Sulyman, and his use of force was unreasonable in the circumstances. Therefore, she submits she has disproven self-defence beyond a reasonable doubt.

[10] Counsel for Rasheed submits Sulyman’s testimony was inconsistent and therefore not credible and reliable. He submits the court should accept his client’s testimony that he struck Sulyman only twice in self-defence and he should be acquitted.

III. Legal Principles

Onus / Presumption / Burden

[11] As in every criminal case, the onus rests on the Crown to prove guilt beyond a reasonable doubt which is inextricably linked to the presumption of innocence. The onus rests with the prosecution throughout the trial and never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

Credibility and Reliability

[12] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she/he/they believes it to be. Reliability relates to the actual accuracy of the testimony. To determine this, I must consider the witness’ ability to accurately observe recall and recount the events at issue. A credible witness may give unreliable evidence. R. v. Morrissey, [1995] O.J. No. 639 (C.A.) at para. 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at para. 41. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at para. 47; R. v. J.W., [2014] O.J. No. 1979 (C.A.) at para. 26. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para. 27.

[13] I must consider internal consistency, consistency with previous accounts, the significance of any inconsistencies, a witness’s interest in the outcome of the case if any, and whether an account is inherently logical.

[14] I must also consider the circumstances of the observer, their recollection of events over time, the intentional or unintentional tainting by other sources of information, a witness’ mental capabilities and limitations if any, their level of sophistication, and to a lesser degree, a witness’ testimonial demeanor.

[15] Inconsistencies must be addressed. They vary in their nature and importance. Some are minor, others are not. Some concern material issues, others are peripheral. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

[16] In assessing competing evidence, I cannot compare each account and decide which account I believe. R. v. Esquivel-Benitez, 2020 ONCA 160. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence. Frailties and/or inconsistencies in a witness’ evidence does not necessarily mean their evidence should be rejected. R. v. J.J.R.D. at paras.46-48, leave to appeal to SCC. Refused, [2007] S.C.C.A. no. 69.

[17] The leading applicable case guiding my analysis provides the following test: R. v. W.D. (1991), 63 CCC (3d) 397 (S.C.C.) 1

1. If I accept Rasheed’s evidence, I must acquit him.
2. Even if I do not accept Rasheed’s testimony, if it leaves me with a reasonable doubt, I must acquit him.
3. Even if Rasheed‘s evidence does not raise a reasonable doubt, I must consider all the evidence I accept to satisfy myself the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offence.

[18] I also instruct myself that though Defence counsel played portions of Sulyman’s audio statement to the police that contained prior consistent statements, I must disabuse my mind of those prior consistent statements. Saying the same thing repeatedly does not make it true. R. v. D.C., 2019 ONCA 442 at paras. 19-23.

Self-Defence

[19] Section 34 of the Criminal Code states:

34 (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person. (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances.

[20] To determine whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties, and the act, including, but not limited to, the following factors:

(2) (a) the nature of the force or threat. (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force. (c) the person’s role in the incident. (d) whether any party to the incident used or threatened to use a weapon. (e) the size, age, gender, and physical capabilities of the parties to the incident. (f) the nature, duration, and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat. (f.1) any history of interaction or communication between the parties to the incident. (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[21] The three inquires are (1) the catalyst; (2) the motive; and (3) the response. The onus is on the Crown to disprove self-defence beyond a reasonable doubt. R. v. Khill, 2021 SCC 37.

IV. Evidence

Officers

[22] SOCO officer Justin Lee testified he took photos of Sulyman’s injuries at Sunnybrook Hospital the morning of November 9, 2019, and then of his apartment shortly thereafter. The photos depict:

• The bridge of Sulyman’s nose was cut, bleeding and swollen.
• His left eye was swollen shut, bruised and red.
• There were cuts around the area of the eye.
• There were various cuts to the forehead.
• The entire face was covered in dried blood. So much so that blood had dried as it had dripped down the Complainant’s face, and down the side of his neck.
• There was chip to the upper right front tooth.
• A large pool of blood under the dining room table, the volume of which was sufficient to thicken and coagulate.

[23] Officer Lee testified about the “noticeable absence of any bruising, or more serious cuts or injuries to the tops of the hands”. There was only “minor redness”. In cross-examination, he testified “if there is excessive amounts of blood present, it is hard to find the cuts and scrapes”.

[24] PC Mustafa Safari testified he sat across a table and spoke to Rasheed for about an hour the day after the altercation. He was able to see the Rasheed’s face, neck, the front of his head, and his hands. He observed no injuries. Though Rasheed complained his head was sore, and showed the officer the back of his head, the officer saw no injury. The officer offered him medical attention; he declined the offer.

Mohamad Sulyman

[25] Sulyman testified he met Rasheed while at work, painting, through a mutual friend Dana about two months before the altercation. They became friends and went out to eat, drink, walk and mostly hung out in his apartment on Bathurst Street in Toronto. As he was the older of the two, and they were from the same community, he felt like an older brother. He had told Rasheed about a fundraiser for the Kurdish community in Syria held the evening of November 8, 2019. It was a family affair with no alcohol, music, and dancing.

[26] He testified he went with their mutual friend Dana and arrived at 9:00 p.m. He brought a ¼ full 750 ml bottle of vodka to drink and finished it that evening. He spent some time with Rasheed who arrived around 10:00 p.m. with his own ¼ bottle of alcohol to drink, though he said Rasheed is not much of a drinker. Rasheed told him he was going downtown, and Dana drove Sulyman home around 1:00 a.m. He thinks it took 20-30 minutes but is unsure.

[27] He was “a little bit drunk” and played backgammon online. After a while, there was a knock on the door and Rasheed was there with a woman. She was about 30 years old, and blonde. Sulyman did not know her and could not remember her name. She did not seem drunk, and Rasheed was a “little intoxicated”. He let them both in. They all sat on the couch. Rasheed rolled a joint and the couple smoked it. They all drank two or three shooters of tequila each.

[28] He was not expecting Rasheed and a woman that night, however, Rasheed had attended Sulyman’s apartment twice before with a woman to have sex. Rasheed had made a mess in his bathroom and on his sheets, but Rasheed had cleaned up and paid for new sheets, so there was no problem.

[29] He also did not have a problem because on “previous occasions whenever he would bring a girl over, they were friendly, they were all aware and conscious. Whatever business they would be doing, they would be doing it and finishing it. Happily come, happily go, they were all conscious.”

[30] On this particular evening, Sulyman testified after the two tequila shots and the joint, the woman, who was sitting between the two men, “fell on” his left shoulder. So, he picked her up and carried her to his bedroom. He lay her on her back on his bed. He left her there. She was not moving. Rasheed then went into the bedroom. Sulyman followed him a minute later.

[31] Sulyman testified the woman was now on her side, and he saw Rasheed lying next to her on the bed, face to face “handling the girl”. He was “rubbing” her thighs with his hand repeatedly from her hips to her knees over her clothes. She was wearing tights and a black top. She was not responding in any way and was not saying anything. He “held” the woman. Sulyman said to Rasheed “that girl is already passed out. She doesn’t give you any response or nothing. Leave her alone.” Rasheed did not “give up”. He said, “Go and leave us alone.” “He wanted to continue” “wanted to stay with her on the bed.” Sulyman testified he told Rasheed repeatedly to leave, and said “you take her anywhere else, whatever you do, you do there, it’s out of my place. But in my place you cannot treat her like that.”

[32] The two men argued. They both raised their voices. The woman woke up. She screamed “Oh, my God. Oh, my God. I can’t do this, I can’t do this. I don’t believe it. I don’t believe it.” The argument heated up in the living room. Rasheed was leaning on the dining room table and said Sulyman was “nothing” and was “a person without loyalty.” At this insult, Sulyman testified that he “slapped” Rasheed with his right hand on Rasheed’s left cheek. He did so as “an older brother” “because in our culture it’s common that an older brother figure slap the younger one”.

[33] With his back to the kitchen, Sulyman testified Rasheed grabbed his shirt with clenched fists and threw him to the ground. He sat on Sulyman’s chest, grabbed his throat with one hand and punched him in the face with the other. On the first punch, Sulyman’s nose gushed blood. Rasheed kept punching. “It wasn’t like one or two punch. Maybe it was 10 punch, beating my left eye.” Sulyman “begged” to be left alone and punched Rasheed back, one or two punches “to the back of the head” as Rasheed sat on him, but was “unsure where he hit” Rasheed.

[34] The beating ended when he was screaming that he was dying, he was suffocating, and his breathing became rapid while he continued to bleed. The woman he felt was “close to us” and “screaming and crying”. Rasheed then fled.

[35] Sulyman stated he “hysterically” looked for a phone and called 911. He does not recall how long it took him to do that, or when EMS or the police arrived. He knows he left the woman in his apartment when he was taken to Sunnybrook Hospital. He estimated the time from when the argument started to when it ended to be about half an hour, and the actual beating to have been about 10 minutes.

[36] He was in hospital for two days. He sustained a fractured nose. His eye was swollen shut. His head was swollen. He identified himself and the injuries depicted in the photos put to him as accurate. He identified the pool of blood by the dining table in his living room to be where he was beaten. He also recalled providing police with an audiotaped statement in the English language without the assistance of an interpreter and while in severe pain. The statement had to be interrupted for him to get treatment.

[37] In cross-examination, several inconsistencies and emerged:

• He may have met Rasheed 4 months before the altercation, not two months.
• He had told the police he arrived at the fundraiser at 5:00 p.m. not 9:00 p.m.
• He told the police he did ask Rasheed to take him home, but testified he made no such request.
• He testified he went straight home but told the police he had spoken to the owner of the building for 40 to 50 minutes before he went into his apartment.
• He testified in-chief that Rasheed knocked on the door, but in cross-examination said he couldn’t remember because he always left his door open.
• He testified he had not communicated with Rasheed between the time he left the fundraiser, and the time Rasheed came to his door, but there was a text with “Bwdw 587” to Rasheed at 11:43 p.m. that night, another one that said “Any good news” at 1:31 a.m. and one from Rasheed to him at 3:16 a.m. that said “Wazi le bena.” (Leave it alone in Kurdish).
• He testified he was grabbed by the “collar”, but his top was like a “blouse” a “t-shirt” with no buttons.
• He denied he had met the Crown and the Officer-in-Charge to review his audio statement with an interpreter twelve days before the trial began and then returned after a break and said he remembered he had.

[38] Sulyman’s explanation for these inconsistencies was:

• He may be wrong about how long he had known Rasheed.
• He was surprised he knew such details during his statement to the police given he was in severe pain, and was speaking in English, his fourth language, without an interpreter.
• When he reviewed his audio statement, he was late and was pre-occupied. He did not review it carefully.
• He does not know what Bwdw 587” means, the “good news” text he believes was intended for someone else in relation to news from Kurdistan in Syria about which the fundraiser was about, and he does not know what ‘Wazi le bena” meant or referred to. He only saw it in hospital and showed the police officer.
• This is his first time in court, and when he is facing people asking him questions, he does not think properly, but on break he is able to relax his mind and remember.

Hacar Khesro-Mohamed-Rasheed

[39] Rasheed testified he met Sulyman 4 months before the altercation through Dana, their mutual friend at work. They were from the same hometown, and he agreed they went out to eat and have a few drinks regularly. He frequently went to Sulyman’s apartment alone and with other friends. Sulyman had told him about the fundraiser and asked for a ride, but as Rasheed worked late on November 8, 2019, he did not drive Sulyman to the event. He arrived after 9:00 p.m. and met Sulyman and Dana there. He disagreed he brought any alcohol with him and testified he said “no” when offered a drink as he was driving.

[40] Rasheed testified he left the event at about 11:00 p.m. to go to downtown Toronto, King Street specifically. While he walked around for about an hour and half, Sulyman called him “a few times” asking him to “bring female friends”. He had asked him to do this “around 10 times” before and it was “something usual.” Rasheed went to the bar, Drums and Flats near closing time. A woman bought him a drink and had two herself. She wanted to drink more, and smoke a joint, Rasheed drove her to Sulyman’s apartment two minutes away explaining his living arrangements were not conducive to bringing a woman home and Sulyman had invited him.

[41] It was after 2:00 a.m. when he knocked on Sulyman’s door. He had not called first. The couple went in and sat on the couch. Rasheed had one shot of tequila, and the woman and Sulyman had two shots each. The couple smoked a joint. Sulyman was “a little bit drunk”.

[42] While on the couch, Rasheed testified Sulyman went to sit beside the woman to talk to her and he put his hand on her thigh. Rasheed “got the feeling the woman is trying to keep a distance between herself and Mr. Sulyman” and so in Kurdish, he said to Sulyman “don’t be too pushy with this girl.” Sulyman did not take his comments well and they got into a verbal quarrel where Sulyman said “unpleasant’ things. The woman got up and went toward the washroom and then so did Sulyman.

[43] Rasheed noticed they were both in the bedroom and he went into the room. He said the woman had laid down on the bed, Sulyman was on his feet at the foot of the bed, and the two were talking. Rasheed left the bedroom and sent a text message to Sulyman “Wazi la bena” telling him to “leave it alone” in Kurdish. He did so because he did not want the woman to see them argue. He thought the woman had gone to the bedroom to “be away from him and to make herself not available to him by being away.”

[44] Rasheed testified Sulyman came out to the hall while the woman stayed in the bedroom. He said Sulyman was angry, “generally speaking he’s always angry and when he drinks he gets even more angry”.

[45] Sulyman was saying “a lot of bad words” “insulting” him and saying he had no respect and no loyalty, so Rasheed said he was “nothing, worth nothing.” At this, Sulyman said “I’m twice as old as you, how dare you say certain things to me” and slapped Rasheed on the left side of the face. He testified Sulyman grabbed his head with his left arm and put his throat in a choke hold and hit the back of his head. He was “very scared” and tried to release himself from the hold while Sulyman was “trying to poke” his eye out. He panicked and stated, “I guess one of my arm hit his face while I was in a panic and trying to release myself.” When he freed himself, Sulyman came to attack him again and so he “hit him back, and it hit his face, and then he fell on the ground. When he fell on the ground, I was so scared, I took my shoes and started to run out of the place”. He testified Sulyman “hit the wall, maybe he fell on the ground” while he was “escaping”. He had no time to look at Sulyman as he was “mostly worried about myself at the time.”

[46] When asked how many times he hit Sulyman, he replied “All together, twice.”

[47] After he left, Rasheed called a friend, Danny, to ask for advice as he was very upset and scared. He did not call the police because he did not “want to make it bigger than it is.” He sought no medical attention. He was “busy with work, and I didn’t have time to go to the hospital until the police called.” He testified he had a swollen head, there was a “bump”, “signs of a scratch” and “his eye” was injured. He showed these injuries to the police he said.

[48] In cross-examination, Rasheed testified:

• There was no animus between them, and they had never had any previous altercations.
• They had had only two minor disagreements, one about the way he urinated in the bathroom and the other when he messed up the mattress after having sex with a woman in Sulyman’s bed.
• He had taken women to have sex with in Sulyman’s apartment with Sulyman’s consent.
• Though Sulyman gets angry when he is drunk, he could not recall seeing Sulyman drunk before. He himself is a happy drunk.
• Sulyman yells and loses his temper over little things, but he only recalled the two minor incidents.
• He brought the woman to Sulyman’s apartment even though he did not speak to Sulyman when he met the woman at the bar or call him to tell him he was coming over. He brought her there because Sulyman “had asked for it”.
• He did not agree that Sulyman told him to leave during the argument.
• He did not remember seeing any blood though he conceded the blood under the dining table was not his, and it was where the physical altercation occurred. He agreed it was “a lot of blood” but when asked if it was the result of what happened between the two men, he responded “could be.”
• Sulyman hit him 10 times in the back of the head, but he only hit Sulyman “could be once or twice.” When asked where he hit Sulyman, he responded “well, could be the face, maybe”
• He did not agree he caused Sulyman’s injuries because “chances are that once or twice I might have hit him, might have hit him in the face, might, so then he started to barge and attack me again. At that point I was frightened, chances are that I had hit him and he had fallen on the ground.”
• It all happened in a second and he was frightened for his life.
• He wanted to go before but “that woman also had come along with me to that place.”
• He sustained “red spots on” his eye and it was hurting “even a few days after the incident” but never sought medical attention or went to the hospital.

V. Findings and Analysis

[49] The colour photos filed as exhibits corroborate Officer Lee’s observations of Sulyman’s injuries, and his observations of Sulyman’s hands and knuckles. There is only minor redness, no noticeable bruising, or cuts or injuries to the tops of his hands. There is also no excessive dried blood obscuring his observation. I accept Officer Lee’s testimony in its entirety.

[50] Officer Sarfari’s evidence was clear and unshaken. He had a clear opportunity to observe Rasheed and look at the injuries Rasheed complained of.

Sulyman

[51] Counsel submitted Sulyman was inconsistent and therefore not credible or reliable, and that his demeanour was questionable.

[52] The issue of the texts is troubling at first instance; however, ultimately they are ambiguous, and of no relevance to the issues to be determined. Neither man could identify what the first message “Bwdw587”, either interpretation of “Any good news” is possible, and the last message, “wazi le bena” meaning “leave it alone” is not helpful one way or the other. I make no findings as to their meaning.

[53] During his testimony, Sulyman was, at times, evasive. For instance, he did not want to answer when he reviewed his audio tape. Sometimes he was dramatic, repeating that “every part of my body was broken”. He went on rants, describing his financial worries, his travels, and his sick mother.

[54] At other times, he was indignant at having to repeatedly describe the altercation and exaggerated. For instance, he was unable to say how many times he was struck. He knows the first punch caused his nose to bleed profusely, he knows it was “a lot”, he estimated about “10”, but as he put it, he was “not in a position to actually keep count” – an insightful observation. So, when repeatedly pressed on the issue, he became dramatic saying he was hit “tens of times” and “1000 times”. Understandably though, he points to the photos of himself and says they are self-explanatory.

[55] He becomes frustrated with counsel’s questioning and states “we are standing in front of each other trying to make each other guilty. This breaks my heart. Something like that between us. The thing is that I never wanted him to be punished for anything. I am ready even to leave this place for him to win this case because it hurts me.”

[56] There is little wonder he reacted this way. He was cross-examined over 3 days on whether he did drugs, if he was ever married, if he has children, what contact he has with them, if he always lived alone, where he worked out west, for how long and when. He was cross-examined on who Rasheed brought to his apartment, their names, and what restaurant he would go to with Rasheed. He was accused of ripping people off and being violent, both of which he denied. He was asked if he had a wine opener, or an ice pick. He was asked how the bottle of tequila ended up in the fridge. Though these questions were permitted because counsel indicated he was meeting his Browne and Dunn obligations – that was not the case.

[57] Sulyman’s explanation as to why and how his mind works is rational “Imagine me sitting here, all these people facing me, I am looking at them. They’re all asking me questions, I’m quite preoccupied and then I go outside. It’s break time, my mind is free then I could remember certain things easier”. He admits he gets confused and why.

[58] I find the inconsistencies to be peripheral, none go to the heart of the allegations.

[59] The weight of demeanour is limited. Sulyman repeatedly referred to his culture of origin, he speaks four languages, and in context, though some of his behaviour may be odd or in excess, his explanations were valid and rational in its context.

[60] I find that, ultimately, Sulyman was consistent on the core of his evidence. His narrative is logical and internally consistent on the essential nature, progression, and extent of the altercation. He admitted facts against his interest such as sneaking alcohol into the fundraiser, getting drunk, being confused at times, slapping Rasheed and trying to hit him in the back of the head repeatedly.

[61] Sulyman was clear and unshaken on why and how he was assaulted. Rasheed brought a woman to his apartment, she was on Sulyman’s bed passed out. Rasheed was in bed with her, rubbing her thigh when she was unable to consent. Sulyman took issue with that. The men argued. Rasheed insulted Sulyman. Sulyman slapped Rasheed. Rasheed then punched Sulyman’s face repeatedly, breaking his nose, swelling his eye shut, and “savagely” beating him. The photos definitively corroborate his description of the beating.

[62] I accept his evidence.

Rasheed

[63] Their history and logic does not support Rasheed’s testimony. He is a happy drunk, and Sulyman is generally angry, and more so when he is drunk, but he does not remember any incidents of him being drunk, much less drunk, and angry at the same time.

[64] Sulyman yells and loses his temper, yet his only disagreements with Sulyman were minor, and both easily resolved.

[65] Though he has benefited from using Sulyman’s apartment as a location for sex with women, and on this occasion, as a location to socialize with the woman he has met at a bar, he insists he brought her there for Sulyman’s benefit and at Sulyman’s request.

[66] Though he believes the woman wants to get away from Sulyman, he testifies she goes to Sulyman’s bedroom and lies on his bed.

[67] Rasheed brought a woman to Sulyman’s apartment to socialize with her, as he testified, not because Sulyman asked him to. Drinking and smoking weed had been agreed upon. Any other act between the couple, had not been agreed to. Sulyman’s observations of Rasheed’s conduct led to a physical altercation between the two men

[68] It is only after Rasheed is insulted before and after the woman goes to the bedroom and Sulyman says many bad words to him, that he responds with an insult of his own that Sulyman is not worth anything. The suggestion is that Rasheed was patient.

[69] He testified Sulyman struck him about 10 times in the back of the head, and “guesses” one of his arms hit Sulyman so he could release himself and he hit him only one more time when Sulyman came at him before he fled.

[70] When it was suggested to him his injuries were not that bad, he responded “No, that is not correct”, yet he called up his friend afterward, chatted with him, and went to work the next day. There were no cuts, no bleeding, and no visible injuries. He did not go to the hospital or seek medical attention. He insisted that there were “red spots” on his eyes even days after the incident, but Officer Safari sat across from him for an hour the next and observed no injuries on his face.

[71] I find Sulyman did not hold Rasheed in a choke hold and did not try to poke his eyes out. I reject his evidence that Sulyman struck him 10 times in the back of the head while in said headlock.

[72] Rasheed denied seeing a large volume of blood where they fought, a pool large enough to coagulate. He suggested Sulyman hit the wall on his way to the ground from Rasheed’s second strike “maybe.”

[73] Perhaps most astonishing, is that in the face of photos of the injuries Sulyman sustained, which clearly depict wounds that could not be inflicted by only two strikes, Rasheed maintained that he only hit Sulyman “all together twice” he says.

[74] For these reasons, I reject Rasheed’s evidence and it does not raise a reasonable doubt.

Self-Defence

[75] As it is not disputed Sulyman initiated the altercation by slapping Rasheed’s face with his hand, the first inquiry, is resolved. I find Rasheed did believe on reasonable grounds that force was used against him.

[76] I accept Sulyman’s evidence that after he slapped Rasheed, Rasheed grabbed him by his shirt, threw him on the ground and punched his nose. This strike caused the immediate gushing of blood.

[77] Had Rasheed stopped there, though a severe response to a slap, nonetheless, in the heat of an argument, after having been slapped, punching once, even if it causes a fractured nose, could in some circumstances be considered an act committed in self-defence. In this case, the matter could have ended at this point of the inquiry. Had Rasheed, without the benefit of time, and reflection, in the heat of the moment, not measured with precision the force of his one punch to Sulyman, I could find that act to be one of self-defence.

[78] However, that is not what occurred here.

[79] The nature of the force Rasheed faced was a slap to the face.

[80] There was no weapon or threat of a weapon. There had never been any violence between the men informing this altercation.

[81] Rasheed’s role, as a participant in a verbal argument, did not warrant being struck, regardless of whether he hurled some sort of “insult” that disrespected Sulyman, and regardless of any cultural context Sulyman claimed. The slap was an assault pure and simple.

[82] However, given the fact it was one strike, Rasheed could have left the apartment. He did not. As indicated earlier, he could have responded with a hard punch, that would have been severe, but an act of self defence. He did not.

[83] Rasheed who was 23 or 24 years old at the time, was younger and taller. He has a stocky build and is broad-shouldered. Sulyman was about 46 years old at the time. He is shorter, lighter, with a slim build and by all counts more intoxicated than Rasheed.

[84] Once Rasheed punched Sulyman and Sulyman was on the ground bleeding, Rasheed had the upper hand. The threat of force no longer existed as Sulyman was severely injured. Rasheed could have left the apartment. He did not.

[85] Instead, Rashed continued to pound Sulyman’s face with his fists after his face was slapped. These punches, be they five or seven or ten, the number need not be determined, were not acts committed for the purpose of protecting himself. Sulyman was already down and bleeding. I find the numerous injuries to Sulyman’s face were caused by multiple strikes and they were not a reasonable response in the circumstances.

VI. Conclusion

[86] I find that Rasheed’s savage beating of Sulyman was not an act self-defence but rather a vicious assault that caused Sulyman bodily harm.

[87] I find Hacar Khesro-Mohamed-Rasheed guilty of Assault Bodily Harm.

Released: February 23, 2023 Signed: Justice Cidalia C.G. Faria