WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Court File No.: Toronto Y122513-00
Date: April 18, 2012
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1
Parties
Between:
Her Majesty the Queen
— AND —
N.F., a young person
Judicial Officer and Counsel
Before: Justice Penny J. Jones
Heard on: March 16, 2012
Reasons for Judgment released on: April 18, 2012
For the Crown: Ms. Satinder Besrai
Counsel for the accused N.F.: Mr. Terry Leon Kirichenko
JONES, P. J. J.:
[1] Charge
N.F., a young person within the meaning of the Youth Criminal Justice Act, is charged with assaulting Ahmed Ibrahim on July 2, 2011 in the City of Toronto, Province of Ontario.
[2] Issues at Trial
At the outset of the trial, counsel for the defence conceded that identity was not at issue. Counsel for the Crown took the position that the defendant had used force against the complainant without consent. Defence counsel submitted that any use of force was consensual and consequently the defendant's actions were justified on the basis of the defence of consent. The two issues in play in this trial therefore were credibility and consent.
[3] Witnesses
There were three witnesses called. Both the defendant and the complainant testified as well as an independent witness, Craig Davidson.
UNDISPUTED EVIDENCE
[4] The Incident
The incident which gave rise to the charge before the court took place at the intersection of Bloor and High Park, in Toronto on Saturday afternoon at around 6 p.m. on July 2, 2011. The complainant, Ahmed Ibrahim, was the driver of a vehicle travelling west on Bloor Street. The defendant N.F. was the passenger in a vehicle which was also travelling west on Bloor Street but which was travelling behind the complainant's vehicle. Craig Davidson was out jogging and happened upon the scene.
[5] The Accident
There is no dispute that the driver of the car in which N.F. was a passenger hit the rear of the complainant's vehicle causing damage to his rear bumper. The accident occurred at or near the intersection of Bloor St and High Park as both vehicles turned off Bloor Street. No one was injured in the accident.
[6] The Altercation
After the collision, the complainant exited his vehicle. First the passenger, N.F., and then the driver got out of the vehicle that rear ended the complainant's car. An argument ensued and an altercation took place. The incident took place over a short period of time and it was observed by Craig Davidson.
[7] Irreconcilable Versions
The version of events as recounted by the complainant and the defendant are irreconcilable and call for a credibility determination.
DISPUTED EVIDENCE
(a) AHMED IBRAHIM
[8] Complainant's Account of Events
Ahmed Ibrahim testified that he is a 35 year old truck driver. On the day of the accident, he testified that he first noticed the other vehicle at around Keele Street and Bloor when that vehicle was beside him in the left lane. When asked about any contact before the accident, he denied that he had been on his cell phone, or that there had been any interaction between the occupants of the two vehicles involved in the accident, such as yelling or rude hand gestures, prior to the accident. He said that he was trying to make a right on High Park Avenue, but that he had to stop for a pedestrian who was crossing the road. It was when he began to accelerate after the stop, and before he actually made the corner that he was struck from behind.
[9] The Assault
He said that he pulled around the corner and got out as he would after any accident. At this point, the passenger in the car that struck his vehicle got out and began yelling and swearing at him. He said he went to his car to get his phone (not to retrieve a weapon). It was when he turned around that the defendant began throwing punches and struck him on the left side of his face near his eye. He said that he began to exchange blows with the defendant in order to protect himself but, at that point, the driver in the other vehicle got out and then there were two against one. He said that he fell to the pavement, at which time the defendant and his uncle began to kick and punch him on the ground. He recalled that the driver kicked him in the left chin area.
[10] Injuries
He noted that there was swelling to the left side of his face near his eye, a cut to his lip and chin, bruises to the left side of his body, bruises and cuts on his left knee. He said he was off work for a week, and was prescribed pain killers.
[11] Assistance at Scene
When the incident was over, a passerby helped him to get up and that same passerby (now identified as Craig Davidson) also wrote down the plate number of the car that rear ended him.
(b) CRAIG DAVIDSON
[12] Independent Witness Observations
Craig Davidson testified that he was out jogging heading for High Park when he heard the squealing of tires. As he did not hear the sound of a collision, he said that he felt that a collision had been avoided. However, he noted that almost immediately thereafter, he heard a second screech of tires and the sound of an impact. He saw that a car had rear ended another car and he said that he began to walk back slowly to "suss" out the situation.
[13] The Fight
Craig Davidson said that he witnessed a fight in which two men were against one man, and that the two men were definitely the instigators of the fight. It was his impression that the single man was completely baffled by the actions of the other two men, and that the most violent blows were struck by the two men. He testified that, from his observations of how the fight developed, the blows struck by the lone man were blows struck in self defence.
[14] Defendant's Aggressive Conduct
Craig Davidson testified that the defendant was the first one to act aggressively and he recalled the first blows being struck near the complainant's car door. He said that the defendant was yelling and screaming obscenities at the complainant. Craig Davidson said that at one point he observed the defendant reach down his pants and he thought that the defendant was reaching for a gun. When no gun was produced, he felt that the defendant had simply been feigning that he had a gun to intimidate the complainant. He said that the fight was very violent and that the most violent blows were struck by the two men from the second car.
[15] Pattern of Aggression and Injuries
Craig Davidson noted that there was a pattern with the two being aggressive and the complainant striking back in self defense. When the complainant fell to the ground, both the defendant and the second man began punching and kicking the complainant who was on the ground. He said that after the two aggressors fled, he noted that the complainant had a big lump on his forehead, with a visibly bloody mouth, and scrapes on his elbows. He recalled thinking that given the violent nature of the attack, he was surprised that the complainant had not been more seriously injured.
(c) N. F.
[16] Defendant's Version of Events
N.F. testified that he and his uncle were travelling behind the vehicle driven by the complainant. It was his evidence that the complainant was driving very slowly and talking on his cell phone. N.F. said that his uncle became angry with the man in the other car and yelled at the driver to get off his cell. He told the court that the complainant then cut his uncle off, and gave his uncle the finger. The two cars continued with N.F.'s uncle following the complainant's vehicle until the complainant began to turn north on High Park Avenue. N.F.'s uncle also turned north on High Park Avenue. According to N.F., the complainant slammed on his brakes and caused the accident as N.F.'s uncle rear ended the complainant's vehicle because of his seemingly unnecessary quick stop.
[17] Defendant's Confrontation with Complainant
N.F. testified he got out of the vehicle to ask the complainant why he had stopped so abruptly. When asked why his uncle, as the driver, did not get out of the vehicle, he told the court that his uncle did not get out of the car because his uncle did not have a license. He agreed he was angry at the time and asked the complainant when he first met up with the complainant, "Are you fucking retarded?", referring to the complainant's sudden stop which he maintained had caused the accident.
[18] Defendant's Account of the Altercation
It was N.F.'s evidence that the complainant, when he got out of his car, was very angry, and when he talked he was so angry that spittle was coming from his mouth, striking N.F.'s face. He testified that he believed there was going to be a fight and as a result he hitched his pants up and tucked his shirt into his pants. (He denied carrying any weapons or reaching for a weapon). After words were exchanged, he said that the complainant went back to his car and opened the door and reached under the seat in such a way that he thought the complainant was reaching for a weapon, although no weapon was ever seen. He said that he then turned his back on the complainant and began walking away, and at that point, the complainant ran up behind him and struck the first blow-- hitting him just behind the ear on the back of the head. He said that they exchanged blows but he denied that he struck the complainant on the left side of his face.
[19] Defendant's Injuries and Departure
He testified that they struggled, and exchanged punches, but that it was his uncle who was the only one who struck or kicked the complainant when he was down on the road. He said that his uncle has a lengthy criminal record whereas he has no record, and he blamed the escalation of the incident on the actions of his uncle. He said that he suffered some scratches and cuts as a result of the incident but that he did not report his injuries to the police because he and his uncle did not remain at the scene of the accident because his uncle had no license.
FINDINGS OF FACT
[20] Reconciliation of Versions
As the two versions of events from the complainant and the defendant cannot be reconciled, the court must assess the credibility of each witness. The two versions of events may be summed up as follows:
[21] Defendant's Position
According to the defendant, he was involved in a consensual fight where no excessive force was used by him, and that if excessive force was used, it was his uncle who did so without his participation or his encouragement.
[22] Complainant's Position
According to the complainant, (whose version of events is corroborated in part by Craig Davidson), it was not a consensual fight. Rather, in an unprovoked attack, he was punched and kicked by the two occupants of the car that rear ended him, and that he only struck back in self defence in an attempt to avoid a more serious beating.
[23] Credibility Framework
One of the key issues in this case is credibility and for that reason I have utilized the formula in R. v. W. (D), [1991] 1 SCR 742 which provides as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
CREDIBILITY ANALYSIS
[24] Assessment of Defendant's Credibility
I have considered the defendant's evidence, and I have concluded that I do not accept his version of events, nor do I find that his evidence raises a reasonable doubt for the following reasons:
1. Logical Inconsistency Regarding Anger
It is logically inconsistent for N.F. to contend he got out of the car to ask why the complainant had stopped abruptly—as if this was just a matter of curiosity—then agree he was so angry he said, "Are you fucking retarded?"—a posture more in keeping with a person intending a confrontation.
2. Illogical Conduct After Perceived Threat
The evidence of the defendant is not logical or consistent in another way: he testified that he thought the complainant went to retrieve a weapon from under the front seat of his car, and in spite of this belief, he supposedly just fearlessly, turned his back on the complainant, walked away and was then struck from behind. Given that his evidence was that the complainant was very angry, "spitting mad" and, in his mind, "looking for a weapon", I do not accept that once he was satisfied that when no weapon was forthcoming, he would simply turn his back and walk away.
3. Inconsistent Blame of Uncle
His evidence is also illogical and incredible in blaming the escalation of the incident on his uncle. He was the one who emerged from the car, angry and ready to confront the complainant. He sustained cuts and scratches then fled the scene with his uncle. Even on his version of the facts, he was an initiator and equal participant in the attack (aside from the violence inflicted while the complainant was down on the road— which he denied.)
4. Contradiction by Independent Witness
The major reason for disbelieving the defendant is the fact his evidence was so significantly contradicted by the independent witness Craig Davidson. Mr. Davidson had no interest in the outcome. His evidence was not seriously challenged in cross-examination. He said that the defendant and the driver of the other car were yelling and swearing at the complainant and were very aggressive, and the complainant seemed completely baffled. He testified the blows directed at the complainant fell on him near his car door. This evidence is more consistent with the version of events as related by the complainant who said that as he emerged from the car, he was struck on the left side of his face by the defendant. Mr. Davidson testified that the defendant and the second man (the driver) were both punching and kicking the complainant (who was on the ground) so violently that he thought he could have been more seriously injured. This evidence is stunning in its clarity, detail and logically consistency – so much so that the evidence contradicting the defendant's version of events is overwhelming.
[25] Assessment of Complainant and Independent Witness Credibility
As indicated, I am prepared to accept the evidence of Craig Davidson as consistent, balanced and credible. The evidence of the complainant, Mr. Ibrahim, was found to be credible because it was fully consistent with the evidence of the independent observer, Mr. Davidson.
[26] Conclusion on Guilt
I do not believe the defendant's version of events, nor do I find that his version of events, viewed in the context of all the evidence, raises a reasonable doubt. I have reviewed the evidence as a whole and, on the evidence I accept, I am satisfied that the defendant assaulted the complainant without any justification. I am satisfied that the defendant struck the complainant on the side of the face, then continued to strike at the complainant and eventually participated with his uncle in kicking and punching the complainant while he was down on the pavement. His assertion that the fight was consensual has no air of reality, and is not supported by any other evidence at the trial. The fact that the complainant attempted to fight back in self defense does not support a characterization of the altercation as consensual. I accept the evidence of the complainant that this was not a consensual fight and that any blows he struck were in self defense and were made in an attempt to stave off more serious injury. I am satisfied the Crown has proven beyond a reasonable doubt that the defendant assaulted the complainant Ahmed Ibrahim, without consent.
CONCLUSION
[27] Finding of Guilt
For all the above reasons, I find the defendant guilty of assault on July 2, 2011.
Released: April 18, 2012
Signed: Justice P. J. Jones