COURT FILE No.: Scarborough 310272-99

DATE: 2012·01·20

Citation: R. v. Akhtar, 2012 ONCJ 48

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MOHAMMAD AKHTAR

Before Justice S.E. Marin

Heard on September 12, 14, 21; October 18; December 24, 2011.

Reasons for Judgment released on January 20, 2012.

Robert Fried .............................................................................................................. for the Crown

Uma Kancharla ......................................................................... for the accused Mohammad Akhtar

Marin J.:

[1] Mohammad Akhtar entered pleas of not guilty to charges of assault with a weapon, assault causing bodily harm and possession of a sharp-edged weapon for the purpose of committing an offence. All of the charges arise out of an incident of road-rage that took place in Scarborough on April 24, 2008 involving Mr. Akhtar and the complainant, Mr. Mike McNabb.

[2] Mr. Akhtar and Mr. McNabb provide diverse accounts of the incident and each describes the other as the aggressor. The issues to be determined involve findings of credibility and reliability and depending upon the determined facts, whether the injury suffered by Mr. McNabb was caused intentionally, whether the fight was consensual or whether self-defence applies.

[3] An overview of the evidence is necessary to provide a context for the determination of facts and any legal defences that might arise from those facts.

The Evidence

[4] Mr. McNabb is forty years of age, 6’4” tall and 240 pounds in weight. He concedes that he cut off Mr. Akhtar while both men were driving northbound on Morningside Avenue in the afternoon rush hour. He testified that after this, Mr. Akhtar drove recklessly, speeding and braking suddenly and cutting him off. Mr. McNabb works as a private investigator and he had a camcorder with him in the car. He used it to record Mr. Akhtar’s driving. Fearing an accident, Mr. McNabb called “911” while he was still recording.

[5] Mr. Akhtar pulled abruptly in front of him and stopped his car ahead of Mr. McNabb’s in the same live lane of traffic. Mr. Akhtar got out of his car and walked back to Mr. McNabb. The two men had a heated argument as Mr. Akhtar stood by the driver’s window and Mr. McNabb remained seated in his car. Mr. Akhtar can be heard on the 911 tape[^1] asking Mr. McNabb why he cut him off. Mr. McNabb told Mr. Akhtar a number of times to get back into his car. Using profanity, he told Mr. Akhtar that he would get out and punch him in the head. He asked Mr. Akhtar three times if he wanted him to get out of his car.

[6] Mr. McNabb testified that Mr. Akhtar took a swing at him through the partially open window of his car, grazing him. Mr. Akhtar’s approach and stance at the driver’s window with his hands clasped in front of him at chest level is captured on the videotape[^2] but the swing through the window is not. Mr. McNabb got out of his car after Mr. Akhtar took the first swing. He dropped the camera and the 911 call was disconnected at this point. The operator’s two call-backs went to Mr. McNabb’s voice mail.

[7] Mr. McNabb said that Mr. Akhtar backed up and then came at him with both hands raised in a menacing way. In order to defend himself, Mr. McNabb hit Mr. Akhtar on the right side of his head using a forceful open handed blow. Mr. McNabb said that he used his left hand although he is right handed because he did not want to hurt Mr. Akhtar. Mr. Akhtar fell down then got up and came at Mr. McNabb again. Mr. McNabb hit him again in the same manner, warning Mr. Akhtar that he did not want to fight him due to the disparity in their sizes.

[8] Mr. Akhtar grabbed Mr. McNabb by his shirt to prevent himself from falling after the second blow, tearing Mr. McNabb’s shirt off. He came at Mr. McNabb once more and Mr. McNabb took Mr. Akhtar by the shoulder, put him on the back of the trunk of his car and told him to pick his fights more wisely. Mr. McNabb saw the male passenger in Mr. Akhtar’s car at this time, just standing there. He did not intervene and Mr. McNabb did not say anything to him. Mr. McNabb walked back to his car. As he did so, he realized that he was bleeding from a deep cut on his shoulder. He was not certain when he was cut. He did not see Mr. Akhtar with a weapon or keys in his hand at any time.

[9] Mr. McNabb got into his car and left the scene, looking for a place to pull over and call “911”. He noticed Mr. Akhtar pull alongside and yell something through his window. Mr. McNabb denied that he followed Mr. Akhtar. He drove on to an Esso station near a Tim Hortons where he made contact with “911”. He went to the police station to give a statement and have photographs[^3] taken of the injury to his shoulder. He later received four stitches to close the gash on his shoulder[^4].

[10] Wayne Davies works as a dispatcher for the Toronto Fire Department. He was stopped in his pick-up truck directly behind Mr. McNabb’s car when the altercation between Mr. McNabb and Mr. Akhtar took place. He observed Mr. Akhtar stop his car abruptly for no reason, get out and approach Mr. McNabb’s car. Mr. Akhtar was yelling and screaming in a rage. Mr. Akhtar backed up towards his car, making a gesture with both hands as though inviting Mr. McNabb to get out and fight. When Mr. McNabb got out of his car, Mr. Akhtar seemed surprised about his size but approached to stand in front of him. Both men were yelling at each other but Mr. Akhtar was the aggressor. He initiated the physical proximity by approaching Mr. McNabb. Mr. McNabb pushed Mr. Akhtar back two times with an open right hand to his chest or collarbone area. Mr. Akhtar approached for a third time and threw a right hook at Mr. McNabb. Mr. Davies was not sure if this punch landed. Mr. McNabb punched Mr. Aktar in the mouth when he approached for the third time. He staggered and approached again and was punched a second time. The fight was on after this, involving pushing, shoving, and body punches.

[11] Mr. Davies agreed that it is possible that Mr. McNabb pushed Mr. Akhtar before Mr. Akhtar’s fist actually made physical contact with him. Mr. Davies did not see any kicking. Mr. Davies heard cursing but he did not hear racial slurs. He heard Mr. Akhtar complaining about being followed and tail-gated. He did not hear Mr. Akhtar complain about being video recorded.

[12] Mr. Davies testified that the passenger in Mr. Akhtar’s car got out during the fight but did not intervene. Mr. McNabb broke off the fight by retreating to his car even though Mr. Akhtar was yelling at him to re-engage in the fight. Mr. Davies thought that Mr. McNabb seemed tempted to continue the fight but he returned to his car instead. At the end of the altercation, Mr. Davies noticed that Mr. McNabb’s shirt was torn diagonally across his chest and he was bleeding from a gash on his shoulder. Mr. McNabb tore his shirt off, threw it into the car and got in. Mr. Akhtar drove off and some twenty seconds later, Mr. McNabb left in his car.

[13] Constable Andrew Ford obtained a statement from Mr. McNabb at the Tim Hortons and he viewed Mr. McNabb’s camcorder videotape[^5]. The footage had no sound. The small screen showed a man in a car videotaping another man in a car that pulled ahead and then stopped. The driver got out of the lead car with his right hand down by his leg. He came to the driver’s side of the car where the man was filming. It appeared to Constable Ford that the man standing by the driver’s side window brought both hands up to his chest and adjusted something very small held in his right hand. He couldn’t say what the object was or describe its colour or material. The object held by Mr. Akhtar was “possibly” a set of keys. The officer did not seize the camcorder because it also contained Mr. McNabb’s work product. The next day he called Mr. McNabb and asked him to make a copy for the detectives. Mr. McNabb testified that when he did so, he inadvertently deleted a few seconds of the video, including that portion where any object held by Mr. Akhtar might be more clearly seen and possibly where Mr. Akhtar allegedly leans in through the window to try to hit Mr. McNabb.

[14] Mr. Akhtar is 26 years of age and currently unemployed. He is 5’8” tall and weighs 120 pounds. He has a very slim build. In 2008, he was working as an apprentice electrician. On the day in question, he met a casual acquaintance from school, Raphael Guerra, whom he had not seen for some years. They decided to play soccer and Mr. Guerra got into the front seat of Mr. Akhtar’s car.

[15] As they were driving, Mr. Akhtar was cut off in traffic by Mr. McNabb. He had to swerve into the oncoming lanes of traffic to avoid a collision. At the next signal lights, he drove up beside Mr. McNabb and raised his hands in a questioning gesture as though to say, ‘what was that all about?’ Mr. McNabb said something that Mr. Akhtar could not hear. After the light, Mr. McNabb pulled out his camcorder and started recording Mr. Akhtar. Mr. Akhtar testified that it was Mr. McNabb who was driving erratically and following him. When Mr. Akhtar attempted to get away from Mr. McNabb, he would adjust his speed to that of Mr. Akhtar’s vehicle and pull alongside so he could continue taping. Throughout the pursuit, Mr. McNabb had his window down and was swearing and using racial slurs. Mr. Akhtar was upset because Mr. McNabb was following him and videotaping him. He denied that he was upset at being called a ‘Paki’. While he was driving, Mr. Akhtar was able to tell that Mr. McNabb was a much bigger man.

[16] Mr. Akhtar stopped his vehicle safely in a live lane of traffic and sat there for 20 to 30 seconds, hoping that Mr. McNabb would go around him and leave. When Mr. McNabb did not leave, Mr. Akhtar turned off his engine and got out of his car with the intention of asking Mr. McNabb why he was following him and telling Mr. McNabb to stop videotaping him without his consent. Mr. Akhtar believes he took his car keys with him because it is his habit to do so. He agreed that he approached Mr. McNabb’s window. He agreed that Mr. McNabb was taping him and talking to the “911” dispatcher. He testified that he stood there with both hands clasped before his chest in a cultural gesture of respect and asked Mr. McNabb to please stop following him and taping him. He agreed that it was possible that he was holding his keys in his hand at this point in time. Mr. Akhtar said that he was “somewhat angry” and “upset” but not enraged.

[17] He said that Mr. McNabb opened his car door suddenly and forcefully into him, almost causing him to fall backward into a live lane of traffic. Mr. Akhtar testified that he moved to the front of the car and asked Mr. McNabb what he was doing. He told Mr. McNabb that he was just talking and not trying to fight with him. Mr. McNabb got out of his car and immediately started hitting Mr. Akhtar. The first punch caused Mr. Akhtar to feel dizzy and fall to the ground. He was kicked at least two to three times on his legs while he was on the ground. Mr. Akhtar said that he got up and tried to retreat towards his car but Mr. McNabb was “fisting” him numerous times, hitting him about his body and face with both closed fists. He kept backing up towards his car as he was being beaten by the much larger man. Mr. Akhtar raised his hands in a defensive gesture, for protection and he may have held onto Mr. McNabb’s shirt. Mr. Akhtar denied ever hitting Mr. McNabb. He had no idea how Mr. McNabb sustained a scratch to his neck and a cut on his shoulder.

[18] Mr. Akhtar testified that the fight stopped when he stopped his defensive posture and just let his hands drop to his sides. When Mr. McNabb saw that he was not resisting, he left and got back into his car. Mr. Akhtar did not see any blood on Mr. McNabb. Mr. Akhtar suffered minor abrasions and lacerations to his upper lip, arm and hand as indicated in the photographs[^6] taken the next day.

[19] Mr. Akhtar denied being in possession of any weapon or sharp-edged instrument when he was confronting Mr. McNabb. He said that he never intentionally struck Mr. McNabb with a weapon or anything else.

[20] Mr. Akhtar maintains that Mr. McNabb followed him for a considerable distance after the altercation in the road. Mr. Akhtar later videotaped the lengthy route that was travelled after the incident and indicated where the two men in their cars met[^7]. Nothing happened when they crossed paths for the final time, near the Tim Hortons.

[21] Ms. Sachak is an experienced supply teacher with the Toronto District School Board who works in Scarborough. She observed a part of the altercation between Mr. Akhtar and Mr. McNabb while she was driving by and she called “911” to report the fight. She saw Mr. McNabb with a badly torn shirt and apparently angry. She saw him punch Mr. Akhtar several times to his body as Mr. Akhtar was peering into the open trunk of his car.

[22] Ms. Sridharan has worked as a community support representative at a probation office for the past twenty years. She was driving slowly southbound on Morningside Avenue on April 24, 2008 when she saw what she believed was an accident and two men standing by a parked car. The men were “probably arguing”. She recalled that both men were about the same height and build. She saw the Caucasian man push the Asian man away two times and then saw the Asian man start hitting him back. She passed by slowly and based on her observations, she believed that the Asian man was trying to defend himself against the pushes of the other man before they started a fist fight. She didn’t see anything in either man’s hand or note any injuries or torn clothing. She called 911 to report the incident. She conceded that she did not see the beginning of the fight and that her memory of the event was vague due to the passage of time and her lack of notes. She was primarily paying attention to her driving and only taking brief periodic glances at the two men.

[23] Raphael Guerra is 26 years of age and involved in film and music video production. He had attended school with Mr. Akhtar in 2003 and the two men had little contact until April 24, 2008, when they happened to run into each other. He confirmed that Mr. McNabb cut them off on the road and that Mr. Akhtar made a gesture with both hands in response. He testified that Mr. McNabb seemed angry upon seeing the gesture. Mr. Guerra saw Mr. McNabb videotaping them. He agreed with Mr. Akhtar that Mr. McNabb seemed to be following them, braking and accelerating and changing lanes when they did to keep pace with their vehicle. When Mr. Akhtar stopped his car, Mr. McNabb also stopped.

[24] Mr. Akhtar got out of the car to ask Mr. McNabb why he was recording them. Mr. Guerra could not recall whether Mr. Akhtar had anything in his hand when he got out of the car or where the keys to the ignition were. Mr. Guerra initially watched what happened by looking over his shoulder while seated in the front passenger seat. He said that he saw his friend approach the driver’s window and speak to Mr. McNabb. Then he saw his friend fall back as Mr. McNabb got out of his car. The two men started arguing and then Mr. McNabb hit his friend and began attacking him. Mr. Akhtar kept backing up but Mr. McNabb kept hitting him. The blows were consistent and he didn’t count them. He saw Mr. McNabb kicking Mr. Akhtar.

[25] Mr. Guerra got out of the car, approached the two men and said to Mr. McNabb, “What are you doing? What’s wrong?” Mr. McNabb asked him if he wanted some, too. Mr. Guerra stood there, shocked. Mr. Akhtar got up and tried to make his way to the car but Mr. McNabb was still beating him. Mr. Akhtar was able to get into the car and close the door. He was dazed and disoriented. He had a little bit of blood on his lip and his hand. They left in the car. Mr. Guerra didn’t see where the ignition keys came from. He could not recall any of the words that were spoken that day. Mr. Guerra agreed with Mr. Akhtar that Mr. McNabb followed them for some distance after the fight.

[26] Mr. Guerra testified that he did not discuss the incident with Mr. Akhtar at all over the fifteen minutes that it took for Mr. Akhtar to drive him to his home. He called Mr. Akhtar two days later to make sure he was okay but that was the end of their contact until Mr. Akhtar asked him to come to Toronto from London to meet with his lawyer some 18 months to two years later.

Position of the Parties

[27] The defence submits that Mr. Akhtar and his witnesses gave credible and reliable testimony that should be accepted by the court as constituting the facts in this case. On that evidence, Mr. McNabb provoked Mr. Akhtar by cutting him off in traffic, using racial slurs and videotaping him without his consent. Mr. Akhtar stopped his car and got out with the intention of asking Mr. McNabb to stop following and videotaping him; not to invite a fight. Mr. McNabb was the aggressor at all times when the two men were out of their cars. He got the better of Mr. Akhtar in the fight because of his size and strength and Mr. Akhtar’s refusal to fight back. The defence submits that there is no evidence that Mr. Akhtar was armed with any straight-edged instrument when he got out of his car to approach Mr. McNabb or during the struggle that followed. Similarly, the defence contends that there is no evidence as to how Mr. McNabb was injured or that any weapon was used to cause his injury. Ms. Kancharla states that it would be speculation to conclude that Mr. Akhtar used something on his keychain to cut Mr. McNabb or that if a key or other cutting instrument was responsible, that the injury was caused intentionally rather than by accident when Mr. Akhtar held his hands up to protect himself. At the very least, the defence submits that Mr. Akhtar’s evidence raises a reasonable doubt as to his guilt and he should be acquitted of all charges.

[28] If I find that Mr. Akhtar caused Mr. McNabb’s injury, counsel submits that the onus is on the Crown to prove that Mr. Akhtar was not justified by the defence of self defence in using the force that he did. Ms. Kancharla argues that under section 34(1) of the Code[^8], Mr. Akhtar was justified in using proportionate force to defend himself against an unprovoked assault as he did not intend to cause grievous bodily harm when he used that force. Even though Mr. Akhtar may have been mistaken about the nature and extent of force necessary for self defence, his mistake was reasonable in the circumstances and the defence is still available to him. In the alternative, she contends that “a person defending himself against an unprovoked assault who did not intend to cause grievous bodily harm and who accidentally causes grievous bodily harm is entitled to invoke section 34(2)”[^9] and that Mr. Akhtar used no more force than was reasonably necessary to defend himself.

[29] The Crown submits that Mr. Akhtar was very angry at being cut off in traffic by Mr. McNabb. He chose to confront Mr. McNabb by stopping his car, getting out and approaching him. Mr. Akhtar knew that Mr. McNabb was the bigger man from his observations of him while both were driving. The Crown submits that Mr. Akhtar armed himself with a small sharp-edged instrument, either something on the key chain Mr. Akhtar admitted possibly carrying or something else he picked up, before he approached Mr. McNabb. Mr. Fried argues that Mr. Akhtar used this instrument to intentionally stab Mr. McNabb at some point during their confrontation, causing him bodily harm. At the very least, the risk of bodily harm was objectively foreseeable in all the circumstances.

[30] In the Crown’s submission, there are four issues to be determined. These are the following: (1) the credibility and reliability of the evidence of the various witnesses; (2) whether Mr. Akhtar had the requisite intent to assault Mr. McNabb; (3) whether the struggle was a consensual fight; and (4) whether Mr. Akhtar acted in self-defence. With respect to the matter of credibility, the Crown commends the evidence of Mr. McNabb and the corroborating testimony of the independent witness, Mr. Davies. The Crown points to the frailties in the testimony of Mr. Akhtar, Ms. Sachak, Ms. Sridharan and Mr. Guerra and submits that their evidence should be rejected. On the evidence of the prosecution witnesses, the Crown invites a finding of fact that Mr. Akhtar intended to assault Mr. McNabb using a sharp-edged weapon and that he did assault him, causing bodily harm. The Crown takes the position that there is no air of reality suggesting that this was a consensual fight. In the event that I reach a different conclusion, the Crown argues that serious bodily harm was both intended and caused, vitiating any consent.[^10] Finally, the Crown submits that it has met its onus of proving that self-defence does not apply because one or more of the elements of the defence are negated by the evidence.[^11]

Analysis

[31] I agree with both counsel that the first step must be the determination of the facts in this case, given the disparity in the testimony on key issues.

[32] As a matter of convenience rather than shifting the burden of proof, I propose to deal with the defence evidence first.

[33] I did not find Mr. Akhtar to be a believable witness. His evidence was internally and externally inconsistent, evasive and embellished. In my view, his account of clasping his hands together in respect as he stood by Mr. McNabb’s window is simply absurd given his evident anger with Mr. McNabb. I find that Mr. Akhtar’s explanation for taking the car keys with him when he got out of the car is implausible. I find it equally incredulous that Mr. Akhtar would not discuss these events or remember discussing them with any of his family members or with Mr. Guerra.

[34] A telling inconsistency was Mr. Akhtar’s description of his emotional state at the time. Mr. Akhtar denied that he was very angry when he got out of his car despite being the victim of Mr. McNabb’s poor driving, racial slurs, profanity and non-consensual videotaping. In my opinion, the restraint he describes is contrary to common sense and it is belied by the 911 tape, where the extent of his fury can be heard. His rage was noted by Mr. Davies. Mr. Akhtar testified that he got out of his vehicle to ask Mr. McNabb to stop videotaping him. The 911 tape and the words overheard by Mr. Davies indicate that he complained about Mr. McNabb’s driving not his recording of the events. Mr. Akhtar’s testimony that he was never aggressive towards Mr. McNabb is contradicted by the fact that he initiated the confrontation. Furthermore, Mr. Davies characterized Mr. Akhtar as the aggressor despite the obvious advantage in size and strength that Mr. McNabb had. I find that Mr. Akhtar’s decision to engage Mr. McNabb indicates the measure of his anger.

[35] Mr. Akhtar was vague and evasive about who took the photographs of his injuries and who took the videotape of the route taken after the events in the roadway. Initially, he testified that he took the photographs of his injuries until it was pointed out to him that both of his hands are visible in two of the photographs. He then equivocated, saying that he may have taken the photos himself by pre-setting the camera or that it was “possible” someone else took them. He could not remember who the photographer was or where the photographs were taken. However, he was certain that if another person took these pictures, he did not talk about the cause of his injuries with that person. The photographs do not show any injuries to his lower body despite his evidence that he was kicked a number of times in the legs when he was lying on the ground. He initially denied that the kicking would leave bruises and then conceded it was possible that he had bruises but it “never occurred” to him to examine his legs for any injury. I note that his account of being kicked is not corroborated by any of the witnesses except Mr. Guerra.

[36] Mr. Guerra’s testimony was problematic. I find that he lied about his outstanding charges in order to misrepresent his character to the court. It is simply incredulous that he would omit any reference to serious charges he was facing just because they were in another Ontario jurisdiction. I do not accept that he did not discuss the incident with Mr. Akhtar during or immediately after the incident. When he was contacted by Mr. Akhtar to meet his lawyer, he missed work, took a bus to Toronto from London and he testified that he never asked why he was required to meet with Mr. Akhtar’s counsel. I find this implausible. Mr. Guerra’s memory for detail was poor. He made no notes of the event and was not asked to recall it for well over a year. Many of his observations were made from a difficult vantage point, in the car, looking over his shoulder out the rear window. I do not find his evidence to be either believable or reliable. In particular, I do not accept those portions of his evidence where he states that Mr. McNabb forcibly opened his car door into Mr. Akhtar, that Mr. Akhtar was not the aggressor and that Mr. Akhtar was kicked.

[37] Ms. Sachak and Ms. Sridharan made their observations while driving by the incident. Each was concentrated primarily on driving in safety and only secondarily on the events unfolding in the roadway. Ms. Sridharan admitted that she made her observations over a few seconds, by means of periodic and intermittent glances. She conceded it was possible that her impression about who was the aggressor was a mistake, just as she was mistaken about the men’s heights and that there had been an accident. Ms. Sachak conceded that her focus was divided between driving and the fight she observed and that her memory of the events was flawed due to the passage of time. She was clearly mistaken in her recollection that the trunk of Mr. Akhtar’s car was open. Neither of the women saw the incident from beginning to end. I find that the testimony of each was honest but unreliable.

[38] I turn to a consideration of the Crown evidence.

[39] Mr. McNabb testified in an assertive manner, with confidence. He was not shaken on the point of who was the aggressor. His account of the altercation is logical and it is largely corroborated by the evidence of Mr. Davies, portions of the 911 tape and the videotape. Mr. McNabb’s testimony that he did not want to engage Mr. Akhtar is corroborated by the 911 tape, where he is heard to repetitively ask Mr. Akhtar if he wants him to get out of the car. He was candid with the court that he was angry when confronted by Mr. Akhtar and that he likely wanted to “show the punk a lesson” by getting out of his car and showing him how big he was. He admitted that he pre-emptively slapped Mr. Akhtar with a “pretty good” level of force when Mr. Akhtar lunged at him with his hands raised in a menacing way. I find that Mr. McNabb did not embellish his testimony. He agreed that he never saw a weapon or keys in Mr. Akhtar’s hands and that he did not know when or how he was cut on the shoulder. He described the first punch by Mr. Akhtar though the car window as a glancing blow, if indeed there was any contact.

[40] All that being said, Mr. McNabb’s evidence was not without its frailties. He testified with a certain attitude of superiority which makes his assertion that it is not in his character to give Mr. Akhtar the finger and use racial slurs less convincing. I find that Mr. McNabb likely used racial slurs shortly after Mr. Akhtar confronted him about being cut-off, when both men were in their cars and before the video-recording began. However, I accept Mr. Davies’ evidence that Mr. McNabb did not continue to use racial slurs when the cars were stopped and the actual confrontation took place. At times, Mr. McNabb’s evidence was far from precise due to the passage of time and his answers consisted of “probably” and “I don’t know.” He gave inconsistent evidence as to when his shirt was torn off and seemed to resile from his testimony at the first trial that there was “scuffling” after the two slaps. He drove for a considerable period of time after the incident before pulling over and calling 911 for help. His explanation for doing so is that he was in shock not that he was following Mr. Akhtar. I find this improbable but I note that the two vehicles merely intersected one another after some minutes and nothing untoward happened when they met this second time. The videotape does not show Mr. Akhtar reaching in through the partially open driver’s window and taking a punch at Mr. McNabb. Although uncorroborated by other evidence, I accept this portion of Mr. McNabb’s account as factual. It is consistent with Mr. Akhtar’s enraged state and it provides a logical reason for Mr. McNabb to get out of the car rather than continue to offer Mr. Akhtar the opportunity to retreat.

[41] The defence contends that Mr. McNabb deliberately doctored the videotape, presumably to erase something that would be inconsistent with his complaint to the police. I disagree. I accept Mr. McNabb’s explanation that he inadvertently deleted or recorded over some seconds of the videotape as he was attempting to make a copy for police the next day while he was also working. There would be nothing to be gained from a deliberate erasure of a part of the videotape as I accept Constable Ford’s evidence that he viewed the entire video clip the day before.

[42] I am mindful that it is open to me to accept all, part or none of a witness’ account. In this case, I accept Mr. McNabb’s testimony about the glancing blow through the window and otherwise, where his evidence is corroborated by that of Mr. Davies, the 911 tape, the videotape recorded by Mr. McNabb and the medical report. I found Mr. Davies to be an impressive witness. He gave his evidence in a sincere manner, direct and forthright. His account was logical and he was not shaken in cross-examination. He was stopped and intently watching what was happening. He was in a good position to see what was happening directly in front of him and he was an impartial observer. He did not know either man and had no motive to shade his evidence to favour one over another. Mr. Davies may have heard a portion of Mr. McNabb’s evidence at the first trial. However, no inconsistencies between Mr. Davies’ initial testimony and his testimony before me were established in cross-examination. I accept Mr. Davies’ account of the confrontation between the two men as credible and reliable.

[43] Mr. Davies was clear that it was Mr. Akhtar who was the aggressor at all times. It was Mr. Akhtar who abruptly stopped his vehicle and got out, who began yelling and swearing, who put himself right in Mr. McNabb’s face and who took the first swing. Mr. Davies did not hear any racial slurs when he was present and listening to the two men argue loudly. Mr. Davies did not hear Mr. Akhtar complain about being video-taped; he did hear Mr. Akhtar complain about being tail-gated. Mr. Davies did not see Mr. McNabb open his car door forcibly into Mr. Akhtar nor did he see Mr. McNabb kick Mr. Akhtar. The 911 tape makes it clear that both men were very angry but also that Mr. McNabb tried to give Mr. Akhtar the opportunity to retreat before he got out of his car. The videotape makes it clear that Mr. Akhtar positioned his vehicle in front of Mr. McNabb’s, stopped abruptly and then got out of the car to confront Mr. McNabb.

[44] On the evidence that I accept, applying the analysis mandated by R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.)[^12], I am satisfied beyond a reasonable doubt that Mr. Akhtar assaulted Mr. McNabb when he punched him through the window and continued to be in his face, menacing and eager to fight. I am satisfied beyond any reasonable doubt that Mr. Akhtar was the aggressor at all times.

[45] I am also satisfied that Mr. McNabb suffered the cut to his shoulder in the course of the altercation. It is not clear on the evidence when he was cut or what caused the cut. In terms of timing, the only evidence is that the blood was visible at the end of the brief altercation and not visible when Mr. McNabb first stepped out of his car. It is a live issue whether the cut was the result of an intentional act on Mr. Akhtar’s part or merely accidental. Whether or not Mr. Akhtar possessed a weapon in the course of his altercation with Mr. McNabb is also in issue. In my view, the two issues are inextricably connected.

[46] The evidence with respect to the existence of a sharp-edged weapon is purely circumstantial. There is evidence that Mr. Akhtar knew he was about to confront a much bigger man than himself when he got out of his car. There is evidence in the videotape that Mr. Akhtar had something in his hand when he held both hands up by his chest as he was arguing with Mr. McNabb by the car window. Constable Ford observed this when he viewed the tape immediately after the event, before any erasure had taken place. Mr. Akhtar concedes he may have had his keys in his hand. In my view, while something can be seen, it is impossible to discern the precise nature of the item from watching the videotape given the quality of the image and the speed of the relevant frames. There is evidence that no-one else saw any weapon of any kind, including keys, in Mr. Akhtar’s hand. If there was a weapon, it was something small enough to be concealed in a closed hand. I find that the straight-edged nature of the wound is the most compelling evidence of the presence of a weapon. The cut is not consistent with a graze from a blow or contact with another person or a car. It is consistent with a sharp-edged instrument being the cause of the injury, as was noted by the doctor who treated Mr. McNabb[^13].

[47] After a careful consideration, I am satisfied that the only reasonable inference to be drawn from all of the evidence is that Mr. Akhtar had a sharp-edged instrument in his hand when he got out of his car to confront Mr. McNabb and that he used that weapon with the intent of inflicting bodily harm in the course of the fight between the two men. There is no evidence as to when the injury was caused and it would be conjecture to find that it was when the first glancing blow was struck through the partially-open car window. I expect that it more probably happened later, during the brief exchange of fisticuffs after Mr. McNabb’s two slaps but I cannot be confident of the timing. The entire event took place quickly and I draw no conclusion from the fact that no-one noticed that Mr. McNabb was bleeding from his shoulder until after the fight had stopped.

[48] I reject defence counsel’s submission that if I find that Mr. Akhtar had a weapon, I cannot be satisfied beyond a reasonable doubt that he used that weapon intentionally rather than accidentally. In support of her submission, Ms. Kancharla relies on Mr. Akhtar’s evidence that he did not touch Mr. McNabb at any time in an aggressive manner apart from grabbing his shirt and that Mr. Akhtar merely held his hands up to protect himself as Mr. McNabb was beating him. Based on these actions, any contact with the item in Mr. Akhtar’s hand was accidental rather than intentional. The difficulty with this submission is that I reject Mr. Akhtar’s evidence that he was never physically aggressive towards Mr. McNabb. I accept Mr. McNabb’s account, as corroborated by Mr. Davies, that Mr. Akhtar was very angry and that he threw the first blow and then others during the struggle. Given his rage, his knowledge while driving that Mr. McNabb was a big man and his possession of a sharp-edged instrument, I am satisfied beyond a reasonable doubt that Mr. Akhtar was armed with the intent of causing harm to Mr. McNabb and that he did cause that harm.

[49] On the facts that I have found, this was not a consensual fight and the issue of Mr. Akhtar acting in self-defence simply does not arise. It is not necessary for me to discuss the authorities provided by counsel in relation to those issues apart from noting that the Crown has proved beyond a reasonable doubt that Mr. Akhtar was not unlawfully assaulted; that he provoked the assault upon himself; that he was not justified in repelling force by force; that he did intend to cause grievous bodily harm; and that the force used was not proportionate. As all of the requirements under s. 34(1) are negated by the evidence, the defence of self-defence has no application in this case. I would note that Mr. Akhtar never testified that he was acting in self-defence; his evidence was that he never struck Mr. McNabb and merely grabbed him by the shirt to maintain his balance. Finally, I am satisfied beyond a reasonable doubt that there is no air of reality to the defence of provocation.[^14] I rely on Mr. Akhtar`s evidence that he was not unduly disturbed by the racial slurs he heard in traffic and the evidence indicating that he was concerned about Mr. McNabb’s tail-gating rather than videotaping.

[50] In the result, Mr. Akhtar will be found guilty on all three counts.

Released: January 20, 2012

Signed: “Justice S.E. Marin”

[^1]: Exhibit 3. [^2]: Exhibit 4. [^3]: Exhibit 1. [^4]: Exhibit 2. [^5]: Exhibit 4. [^6]: Exhibit 7. [^7]: Exhibit 9. [^8]: R. v. Kandola (1993), 27 B.C.A.C. 226; R. v. Oppenheimer, 2011 ONSC 4901; R. v. W.W.R., [1998] B.C.J. No. 2677, 115 B.C.A.C. 311 [^9]: R. v Baxter, [1975] O.J. No. 1053 (C.A.) [^10]: R. v. Jobidon, [1991] 2 S.C.R. 714 [^11]: R. v. Paice, [2005] 1 S.C.R. 339 [^12]: R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) [^13]: See Exhibit 2. [^14]: See R. v. Gill, 2009 ONCA 124, [2009] O.J. No. 495 (C.A.)