Ontario Court of Justice

Date: 2024 01 22 Court File No.: 19-45004694 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Hacar KHESRO-MOHAMED-RASHEED

Before: Justice Cidalia C.G. Faria

Heard on: November 2, 2023

Reasons for Judgment After Re-Opening After Finding of Guilt

Released on: January 22, 2024

Counsel: Glen Tucker, for the Crown Rupinjit Singh Bal, counsel for Hacar KHESRO-MOHAMED-RASHEED

Faria J.:

I. Overview

[1] On February 23, 2023, I released my judgment after a trial that took 7 days over the course of 16 months and found Hacar Khesro-Mohamed-Rasheed (hereinafter Rasheed) guilty of assault causing bodily harm. [1] On September 8, 2023, the defence applied to re-open the case as a witness to the altercation in dispute had been located. I granted the application, vacated my finding of guilt, and permitted the defence to call the witness. [2]

[2] The defence called Kelly Farkas to testify on November 2, 2023.

[3] Having considered the fresh evidence of this new defence witness, as well as reviewing it in the context of all the other evidence heard at trial, I find Rasheed struck the complainant, Mohammad Sulyman (hereinafter Sulyman) an unreasonable number of times, with excessive force and not in self-defence. I find Rasheed guilty of assault causing bodily harm and these are my reasons.

II. Issue

[4] The central issue is whether the Crown has proven that Rasheed’s response to Sulyman’s slap was unreasonable in the circumstances and did not constitute self-defence.

III. Legal Principles

[5] The applicable legal principles are those I articulated in paragraphs 11 to 21 of my February 23, 2023 decision. The onus rests on the Crown throughout the case and never shifts. The Crown must prove every element of the offence beyond a reasonable doubt. The credibility and reliability of each witness must be assessed. I can accept some, all or none of their evidence.

[6] If I accept Rasheed’s evidence, I must acquit him.

[7] If his evidence raises a reasonable doubt, I must acquit him.

[8] Even if I neither accept his evidence, nor it raises a reasonable doubt, based on all the evidence I do accept, I must satisfy myself the Crown’s burden is met, and the charge has been proven beyond a reasonable doubt.

[9] In this case, Rasheed asserts that he struck Sulyman in self-defence thereby requiring the Crown to disprove the defence. Section 34(1) of the Criminal Code applies. To determine whether the act committed is reasonable in the circumstances, I must consider the circumstances of the person, the other parties, and the act, including all the factors enumerated in s. 34(2).

IV. Evidence

[10] The crown called Sulyman to testify, as well as the officer, Justin Lee, who took photos of Sulyman’s injuries that were filed as exhibits. The photos depict:

• The bridge of Sulyman’s nose was cut, bleeding and swollen.
• Sulyman’s left eye was swollen shut, bruised and red.
• Sulyman had cuts around the area of the eye, as well as various cuts to his forehead.
• Sulyman’s face had dry blood, including dried blood that dripped down his face and the side of his neck.
• His upper right front tooth sustained a chip.
• There was a large pool of thickened and coagulated blood under the dining room table.

[11] Sulyman was hospitalized and the officer observed the noticeable absence of any bruising, or more serious cuts or injuries to the tops of Sulyman’s hands, though he agreed that if there were “excessive amounts of blood on the hands”, cuts and scrapes would be hard to find. There was no excessive amount of blood on Sulyman’s hands.

[12] The officer also testified that he did not observe any injuries on Rasheed’s face, neck, the front of his head, and his hands when he spoke to him the next day. The officer spoke to him from across a table for about an hour. Though Rasheed complained of a sore head, and showed the officer the back of his head, the officer saw no injuries and Rasheed did not want medical attention.

[13] I summarized Sulyman’s evidence in some detail, in paragraphs 25 to 38 of my February 23, 2023 decision, and will not do so again here. In essence, Sulyman testified he knew Rasheed from work, and they were friends. Rasheed unexpectedly attended at his apartment in the early morning hours of November 9, 2019 with a woman he had just met. Rasheed had done this before, and this was acceptable to Sulyman. The three had a few drinks and according to Sulyman, when the woman went to his bedroom and passed out on his bed, Rasheed got into bed with her and touched her sexually when she was unresponsive. Sulyman found this unacceptable which led to a verbal dispute.

[14] Sulyman testified he slapped Rasheed, and then Rasheed repeatedly punched him about the face, breaking his nose, chipping his tooth, and causing the injuries as depicted in the photographs.

[15] I summarized Rasheed’s evidence, again in some detail, in paragraphs 39 to 48 of my February 23, 2023 decision, and will not do so again here. Rasheed testified Sulyman called him while he was downtown asking him to bring a woman to his home. He (Rasheed) met a woman at a bar, had a couple of drinks with her and brought her to Sulyman’s apartment without calling Sulyman first. Once at Sulyman’s apartment, the three had drinks and the couple smoked marijuana.

[16] Rasheed testified Sulyman put his hand on the woman’s thigh and wanted to be with her, but she did not want to be with Sulyman, so she went into his bedroom and lay on his bed. Sulyman followed her and talked to her in the bedroom. When Sulyman walked out of his bedroom, Rasheed told Sulyman to leave the woman alone. The two men argued.

[17] Rasheed testified Sulyman slapped him, put him in a choke hold, tried to poke his eyes out, and struck him on the back of the head several times. Rasheed “guessed” one of his arms hit Sulyman’s face, and when Sulyman came at him again, he hit Sulyman’s face once, and Sulyman went down. Rasheed then got his shoes and ran out. Rasheed was confident he struck Sulyman only once in the face, at most twice, but once may have been accidental.

[18] Farkas testified she had been drinking at a bar for quite a while, having had at least 3 drinks, when she met Rasheed there. She lied to him that her name was Ashley. She had two more drinks with Rasheed, and they were having a good time when Rasheed suggested they go to his friend’s place close by. She agreed. Rasheed drove her to his friend’s place. Once in the friend’s apartment, Farkas had a couple more drinks and smoked marijuana with Rasheed.

[19] Farkas testified she felt tired, light-headed, nauseous, and sick to her stomach, which is the effect marijuana has on her. Rasheed suggested she go to the friend’s bedroom. She did. She could not remember how long she laid down for. She remembered one of the men opened the door and peeked in but did not know which one.

[20] When she heard loud voices yelling in a different language, Farkas testified she came out to the living room and saw the friend “smack” Rasheed. The two men argued some more, the friend “attacked” Rasheed, grabbed him by the throat and they had a scuffle, “fighting back and forth”. She testified the friend had Rasheed by the throat and she tried to intercede. She was pushed away. Rasheed then punched the friend two or three times and the friend fell. He was “out cold.” Farkas observed Rasheed get his shoes and run out. Farkas got her purse, stepped over the unconscious man to get her own shoes, and left. She waited outside for her friend to pick her up and saw both police and the ambulance arrive and said nothing.

[21] In cross-examination, Farkas explained she regularly lied to people about her name because she was involved in controversial public matters. She first testified Rasheed punched his friend 2 or 3 times, then she testified it was 3 or 4 times. She was unsure how long she was in the bedroom. It could have been as long as 45 minutes. She was unsure how long it was after the altercation police and EMS arrived. It could have been 10 minutes, 15 minutes, or 25 minutes.

[22] Farkas claimed to be a clinical psychologist who specializes in human behaviour and therefore knew that the friend was insulting her and Rasheed, and that he was “dismissive” of her, though both men spoke a language she did not understand. When shown the photos of Sulyman’s injuries, Farkas claimed to be an expert in two martial arts disciplines. She believed the injuries could be caused by one punch. Then she said couple of punches.

V. Analysis

[23] When analyzing Sulyman’s evidence in paragraphs 51 to 62 of my February 23, 2023 decision, I articulated how Sulyman was evasive, exaggerated, dramatic, indignant, and inconsistent. However, I found that at the core of his narrative, Sulyman was both reliable and credible as to how the altercation started, what he did, what Rasheed did, and the injuries he sustained.

[24] In paragraphs 63 to 74 of my February 23, 2023 decision, I analyzed Rasheed’s testimony. I rejected his evidence that after Sulyman slapped him, Rasheed only punched him once, maybe twice accidentally. I did not accept that Sulyman’s injures may have been caused when he hit the wall on his way to the ground after Rasheed’s one intentional punch.

[25] Farkas, by her own testimony, had consumed a minimum of 7 drinks, and was so tired, light-headed, nauseous, and sick to her stomach from drinking and her marijuana use, she had to lie down in a strange person’s bed, for an undetermined length of time.

[26] Both men testified the other man was in the room with her. Sulyman testified Rasheed was on the bed touching her sexually. Rasheed testified Sulyman followed her into the bedroom and was talking to her. Farkas recalled neither narrative, nor was she asked about either. She could only recall someone, she did not know who, peeking in on her.

[27] Both men testified the other was sexually interested in Farkas. Farkas testified to neither man being sexually interested in her and was not asked about this possibility. However, contrary to Rasheed’s evidence, that Sulyman was interested in her, her perception was that he was insulting her and dismissive of her.

[28] Neither Sulyman or Rasheed referred to the woman trying to intervene in their altercation and pushing her away. She testified she both intervened and she was pushed away.

[29] Farkas’ sense of time, by her own admission, was unclear and unreliable.

[30] Her recollection of the physical altercation was that it was a fight, described as a struggle, with the friend and Rasheed swinging at each other. Farkas’ evidence was that Rasheed definitely punched Sulyman from 2 to 3 to 4 times, contrary to Sulyman’s exaggerated tens of times, and Rasheed’s one punch, maybe two by accident.

[31] Although intoxicated, high, sick, in an unfamiliar apartment, describing men she did not know speaking in a language she did not understand, about an evening that happened 4 years ago, Farkas’ testified as if she could confidently ascertain “human behaviour”. She made unsolicited assertions of expertise. She opined Rasheed was “stunned”, was “mentally regulating himself”, and was “paranoid”.

[32] I find Farkas was too intoxicated and too high to be reliable. Her over-confidence and hasty conclusions were implausible. She was neither a credible nor a reliable witness.

[33] There is no dispute Sulyman slapped Rasheed first. The photos of Sulyman in the hospital depict numerous injuries to his face and head sustained in that altercation. I find those injuries were not caused by one or two punches as Rasheed testified. After having been slapped, Rasheed could have left the apartment, or pushed Sulyman away, or even punched him. However, I find that Rasheed, the younger, stronger, heavier, more sober, of the two, punched Sulyman numerous times about the face and head knocking Sulyman unconscious. His response to a slap to the face was an unreasonable one, and his beating of his friend was not self-defence.

VI. Conclusion

[34] I find the Crown has proven beyond a reasonable doubt that Hacar Khesro-Mohammad-Rasheed is guilty of assault causing bodily harm.

Released: January 22, 2024 Signed: Justice Cidalia C.G. Faria