Court File and Parties

Court File No.: Central East - Newmarket 4911-998-10-11782-01 Date: 2012-04-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Arash Goneh-Farahani

Before: Justice Richard Blouin

Heard on: October 5, 6, November 22, 2011 and March 2, 2012

Reasons for Judgment released on: April 23, 2012

Counsel:

• S. Kumaresan, for the Crown
• A. Davidson, for the defendant A. Goneh-Farahani

BLOUIN J.:

Introduction

[1] The defendant stands charged that he committed the offences of Dangerous Driving and Assault with a Weapon (a motor vehicle) on December 15, 2010.

[2] A group of young people came together in a parking lot of a community centre in Thornhill in the mid-afternoon. Although the origins of the meeting are unclear, two groups of youth took part in a physical altercation involving weapons. Some of the confrontation was captured on a surveillance video, Exhibit 1, but most occurred just off camera, including the allegations the defendant faces.

Eyewitnesses

[3] The Crown called independent observers and participants in the altercation. The surveillance video, and the defendant's statement to police, were admitted on consent. The defendant also admitted he was the driver of the red Mazda, and testified in court regarding his actions.

[4] Let me say at the outset that I heard many varying accounts from many different perspectives. I cannot conclude with any certainty that the red Mazda driven by the defendant struck any of the combatants. Although, on the surveillance tape, the defendant's vehicle is seen leaving its original stopped location in the parking lot, making close to a 360 degree turn towards the area people were gathered and back, no contact with any person or car is captured.

[5] One of the independent witnesses, Julie Weis, observed two men hitting a young man on the ground, with a pipe, and then a silver car and a red car threatening to hit someone, or each other, with the cars. Ms. Weis believed the silver car hit something. She did not see the red car actually hit anything, although she thought it might hit her vehicle.

[6] Assal Vasiri was the ex-girlfriend of a young man named Shayan Heravi, whom the defendant drove to the community centre. The fight was between her and her friends, and the friends of Mr. Heravi. She testified that the defendant sped over her right foot and pinned two of her friends (Tiam and Shaheen) against a parked car. She was not injured.

[7] Ms. Vasiri agreed the defendant was standing by his car and was never involved in the fighting. She never saw the defendant with a weapon. Ms. Vasiri's friend, Elnaz Ranjbari, also testified that the red car peeled out, ran over Assal's foot and hit Tiam and Shaheen into the air.

[8] Another independent witness, Michael Sokoloff, observed a group of 12 to 15 people. Only two or three appeared to be fighting. Only two had weapons. At the point when the police were close (he could hear the sirens), two cars were driving "recklessly" around the parking lot. One was the red Mazda driven by the defendant, which passed by the witness quickly and exited the parking lot, heading eastbound on Green Lane. He did not see the red Mazda impact any people, but thought it contacted a parked van because the van "tilted" as the Mazda approached. The second vehicle, a silver Honda, hit a concrete pillar after the driver threw a pipe out from the window. Mr. Sokoloff did not see the red Mazda hit any person. He recalled damage to the red Mazda's side view mirror.

[9] A third independent witness, Chris Tomkins, saw some young people with weapons milling about in the parking when he was in the parking lot checking on his truck. He phoned 911 after he saw a silver car and a red car. The red car hit at least three people and then took off, travelling around 30 kilometres per hour. The red vehicle made no attempt to avoid collision with the people.

[10] Tiam Behdarvandan was the complainant regarding the Assault with a Weapon charge. He was a friend of Ms. Vasiri and was involved in the fight. He thinks he was hit by a car since he received a scratch, but he could not say what the car looked like. He thought he was the only person to be hit by a car. He did not feel the driver was trying to hit anyone. He conceded he had little interest in the court proceedings.

The Defendant's Videotaped Statement to Police on December 15, 2010

[11] The defendant provided a video statement to Detective Joe Tanezos the night of the incident. It was admitted on consent. The defendant told Tanezos that he had driven his employee (Shayan Heravi) to the community centre to drop him there to meet his friend in the Honda Civic. Two girls and 10 to 15 guys came out of the community centre with bars and pipes. Those people chased Shayan, and attacked one of Shayan's friends that had arrived on-scene in a silver Honda Civic. The defendant had taken an extendable baton from the door of his car, and placed it in his back pocket when he saw the people coming. The defendant claims he acted as a peacemaker. This contention was supported by the surveillance video (Exhibit 1), and most of the witnesses. He then admitted doing a circle with his car and then did not remember what happened, except one of the guys broke his side view mirror with a weapon.

[12] The defendant then explained that, "Doing that circle was just to scare – like to ask them to back off so I can leave." He was concerned about injuries so he used a scare tactic. When asked if it was possible he hit someone and that person flew into the air, he said he didn't think so. Again he reiterated he was just trying to scare them and if one got hit, he didn't recall that, but did recall one of the weapons hitting his car. He did not know if he hit someone's hand or someone's foot.

Defendant's Evidence

[13] The defendant's evidence in court was substantially consistent with his videotaped statement to police. He added in court that some of the group of combatants possessed weapons such as pliers, crowbars, poles, and a knife. He also added that he saw his passenger (Shayan) get out of the defendant's vehicle carrying two pipes or poles, four to five inches in length, that were produced from the sleeves of his jacket. He was not aware of the poles until Shayan got out of his vehicle. He confirmed that he exited his vehicle with an extendible baton in his back pocket, but that baton was taken from his pocket by someone. He took it as a "scare tactic".

[14] Both the defendant and the driver of the silver Honda, Parham, were concerned about Shayan getting hurt in the altercation. Shayan was on the ground with this group of people assaulting him. Parham revved his engine and honked his horn. The defendant entered his vehicle and did a u-turn to exit the plaza in order to take attention away from Shayan. When asked if he drove near to any people, the defendant said, "I suppose I can really I did come within close proximity with the group of people, but not near to them." One of the "kids" hit his side view mirror with a crowbar. He did not hit anyone, and certainly did not intend to hurt anyone. He feared for his life.

The Surveillance Video

[15] Fortunately, the community centre parking lot was protected by a surveillance camera, which the police seized. The video confirms much of what the defendant described regarding the confrontation. Shayan was confronted and pursued by a number of young people, with weapons, and he continually retreated. Nothing about the defendant's actions picked up on tape suggest anything other than his contention that he was acting as a peace-maker. However, the video also clearly depicts the defendant entering his red Mazda, and circling approximately 360 degrees before he leaves the parking lot. Instead of driving directly to the exit he ultimately employed, he made a u-turn toward the area of the violence, which was just to the left of the screen. He gave evidence that he was concerned about Shayan getting hurt. He explained in the video statement to police that his intent was only to scare the combatants. It is clear the defendant went out of his way to do so.

Conclusions

[16] It is abundantly clear from the eyewitnesses, the defendant's statement to police, and the defendant's evidence in court that he drove at people in the parking lot in order to scare them away from Shayan. Although he likely did, I cannot conclude he hit anyone because the evidence on that point is inconsistent and ultimately inconclusive. Nevertheless, contact or not, this type of driving is, by its very nature, dangerous. I accept the defendant was not an aggressor in the altercation in the parking lot between the two groups. I accept the defendant's mirror on his vehicle was struck by one of the thugs with a weapon when he tried to leave the parking lot. However, he had the option to leave the lot directly but chose not to, choosing instead to circle back. His actions fell well below the standard of care that a reasonable person would observe in those circumstances. The defendant had to be aware of the risk of injury to those people he drove towards, even if he did not hit them. This is a significant departure from the standard of a prudent person.

[17] Even the defendant's version in his statement to the police was that his intent was to frighten people. Even then, he was not sure if he made contact with anyone. The defendant will be found guilty of Dangerous Driving.

[18] The Criminal Code provides that an assault can be committed where the defendant threatens, by act or gesture, to apply force to another if he causes that person to reasonably believe he has the ability to apply that force. In this way, the defendant used his car as a weapon, and he will be found guilty as well on that count. Since both offences involve the same criminal conduct, I will stay one of the charges, pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729.

Released: April 23, 2012

Signed: "Justice Richard Blouin"

NOTE: The official version of these reasons for judgment is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. The reasons may have undergone editing changes.