Court File and Parties

Court File No.: Central East - Newmarket 13-06186 Date: 2015-01-13 Ontario Court of Justice

Between: Her Majesty the Queen — And — Ahmad Faquiry

Before: Justice P.N. Bourque

Counsel:

• M. Ventola, for the Crown
• M. Henry, for the accused Ahmad Faquiry

Heard: In Writing

Judgment

Released on January 13, 2015

Overview

[1] In the early morning hours of August 4, 2013, the complainant went to speak to a person in a parked car. An altercation ensued and the complainant received a broken jaw. The defendant is charged with assault cause bodily harm.

The Crown's Case

Reza Afshar

[2] Reza Afshar is 20 years old and states in the early morning hours was helping his friend Pedram at a restaurant on Yonge Street. They both went out into the night to have a cigarette. The witness states that he saw a Black BMW parked in a parking lot nearby and he went across the street and he saw a back door open and recognized the person (Salman) in the back seat as being a friend from school. The person was slumped back in the car and the defendant went up to speak to him and put his head in the back of the car. The friend did not respond but the witness said that the driver got out of the car and began to yell at him. He said another taller person (the tall guy) also came out and was also yelling at him.

[3] The witness said that within seconds, the persons began to punch him. He could not remember which of the two started. He stated that in self-defence, he punched back two or three times.

[4] He stated that the driver (whom he identified and described as having long hair and glasses, which fits the general description of the defendant) grabbed a glass "bong" and stuck him on the lower left side of the jaw. The witness fell down and his friend came up and the people got into the car and left. He described his jaw as being broken in two places and it required two surgical procedures to fix it. He stated that he could only consume liquids for 2 months and he still has some pain and numbness in the right side of his jaw.

[5] In cross-examination, he was asked to place all of the various participants in and around the car. He was somewhat confused as to the location of the tall guy. He also put himself initially at the opposite side of the car to the driver. He also placed his friend Pedram as beside him and somehow having an exchange of blows with another person. In his statement to the police taken on November 5, 2013, it is not clear in some spots as to who is hitting him, and certainly not clear that it is the driver, but he insists it was the driver. He admitted that after the fight, his friend was engaging the driver through the window of the car. He denied that he and his friend had pushed the driver down onto the ground earlier in the fight.

[6] He contradicted himself when he described the actions of Salman, who was the person he said was asleep in the car. In his testimony, he said that Salman was trying to be a "peacemaker", but in his statement to the police, he described Salman as fighting with Pedram. He admitted that whatever he said in his statement to the police was true as it was given 2 to 3 months after the events. He said that he remembered that big things, such as the defendant hitting him with the bong but not a lot of the little things.

Pedram Ahadinejae

[7] Pedram Ahadinejae is a friend of the complainant and went out with him that night to have a cigarette. He stated that he saw the black BMW but it was actually moving slowing in the parking lot. The vehicle stopped and they saw the back door open and Reza went up to the door as he recognized the person and he stuck his head inside the door. When he did so, the driver began to yell at him asking, "why are you coming into my car?". Reza said that he was just saying high to his friend. There was some further talking back and forth and some swear words. A man in the front passenger seat (the tall guy) came and said "just leave cause this guy is gonna get out and it will be a mess".

[8] The witness identified the defendant as the driver and stated that he had long hair tied up in a tail and he had glasses. The driver came out of the car with the tall guy. They started to fight with Reza. The witness said that the tall guy walked past him and pushed him, then the person in the back seat woke up and came out and was pushing the witness. The witness stated that the tall guy grabbed and held Reza from the back and then the driver reached into the car and got a glass bong and said that if Reza moved, he would hit him with it. The witness did not see the defendant strike Reza with the bong but he then heard Reza cry out in pain and he looked and saw blood all over his face. After that he said that he saw the defendant throw the bottle to the ground and it broke.

[9] The witness stated that Salman was trying to stop him from getting to his friend and help him before he was hit by the bottle. After the bottle broke, the witness stated that all the people got into the car. He went up to the driver's side window and tried to stop him from getting away but was unsuccessful. The witness then stated that he walked his friend back to the restaurant and he called the police.

[10] Interestingly, he sparred with the defence counsel about where he was when he called the police. He insisted it was not back at the restaurant but in the middle of the street. The witness was shown the transcript of his interview with the police where he said he did not know how the police were contacted. He agreed that the transcript was correct. It is interesting that he was totally wrong about calling the police but he believed so strongly that he had called the police that he was combative with defence counsel about the details of the call.

[11] The witness was shown some other inconsistencies in his evidence and the statement to the police such as:

1. In his statement, he did not mention that Salman was stopping him getting to his friend and pushing and kicking him. In the statement he simply said that he and Salman were talking. He also in his statement asserted that Salman and the others were trying to break up the fight and there was no reference to that in his viva voce evidence at trial;

2. In his statement he made several references to Reza being hit by the defendant with the bottle but only later in his statement did he admit that he had not seen the actual strike;

3. In his statement to police he made reference to some personal injuries when being kicked but he did not sustain any injuries.

The Defendant

[12] Ahmad Faquiry testified in his own defence. He stated that he is 21 years old and he works as an apprentice automotive technician at a Goodyear Tire store. He stated that on that evening, he and four other friends were in his car and they had been at a car show and he was driving them home. It was about 3:00 or 3:30 in the morning. He stated that he parked in the Quiznos restaurant at Yonge and Centre Street in Richmond Hill. He stated that Muzamel was being dropped off and he and Milad were smoking outside the car.

[13] The defendant was in the driver's seat and Mohamad Akhtiari was in the front passenger seat and Salman was asleep in the back seat. He saw two persons (he did not know them) come up to the car and one of them opened the rear passenger door. He was surprised and a little frightened by this and he said "What are you doing in my car?". The person replied "fuck your car and "what are you going to do, you dumb pussy?" They began to further swear at each other. The defendant got of his car and went up to the two persons. He thought that they wanted to fight. He said that one of them (now known to him as Pedram) punched him. The defendant began to defend himself. Mohamad came up and was trying to break it up. The person now known to him as Reza was pulling his hair and the defendant swung a few times at him. Milad and Muzamel came up to help to break it up. They were trying to get Reza off him. The defendant continued to "hit back".

[14] The defendant stated that he went into his car and started it and put it into reverse but the two persons slammed his door onto his leg and were hitting him through the open window. Milad pushed then and he got out of the car and grabbed the bong. He stated that Mohamad was grabbing at him and the bottle was kicked out of his hand and it broke onto the ground. He stated that Reza jumped on him and grabbed his hair again and he was dragged down almost to the ground. There were punches being thrown by all. He believes that Reza was pulling his hair and the defendant got Reza into a headlock and after this, the defendant got into the back seat of the car and he told Milad to drive the car and they left. They went to get some ice as his left eye was beginning to swell and he was taken home. He stated that he was unconscious for part of the time. He produced a picture taken two days later which shows the defendant with a black left eye.

[15] In cross-examination, it was revealed that there was some discrepancies in his evidence today and what he told the police in the interview on August 4, 2013, namely:

1. In his interview he said he was mad when he got out of the car the second time while in court he said he was not mad but only trying to defend himself;

2. In his interview he did not mention picking up the bong until much later in the interview and after it was referred to by the police; and

3. He did not mention in his evidence that he had used threatening words to Reza and Pedram when he came out of the car when he told that to the police.

Muzamel Sikander

[16] Muzamel Sikander testified for the defence. He is a friend of the defendant. He stated that he and four friends had been out that evening "hanging out in Mississauga". He stated that they drove to a parking lot at Yonge and Centre Street and he and another person were having a cigarette before he walked the short distance to his home. He stated that he and Milad were out of the car and two people whom he did not know came up and asked for a cigarette and they did not give them one. He stated that each of them had a beer bottle in their hand. He then went back to his smoke and then he saw a fight broke out between the defendant and these two men. He did not see much of it but saw the defendant down on the ground with one of the men on top of them. He went forward with the others and pulled them apart. He saw some blood on both of them. Once they were pulled apart, he then left for his home and did not see anything else happen.

Salman Faizi

[17] Salman Faizi is also a friend of the defendant and on that night stated that he had been drinking earlier in the evening and was asleep in the back seat of the defendant's car, when he heard someone talking to him. He stated that he believes it was Reza speaking to him and then he heard the door being closed very hard. He didn't see what was going on outside of the car and he remembers that he was splashed with water from the bong. The defendant was in the front seat of the car and holding the bong, and people were punching him from outside of the driver's window. They were trying to pull the defendant out of the car.

[18] The witness stated that he got out of the car and when he got out, the defendant was out of the car and was being held in a headlock. The defendant had the bong in his hand and the witness grabbed it and threw it away. The witness says that Reza and Pedram were holding onto the defendant and hitting him. The witness stated that he broke up the fight and he saw blood. He stated that the defendant could not breath and was throwing up.

[19] In cross-examination, the witness agreed that said in his statement to the police indicated that he was worried that the defendant would hurt someone with the bong and said to him "Do you want to hurt him or what?".

Milad Ahmad

[20] Milad Ahmad was also a friend of the defendant and was outside with Muzamel smoking a cigarette when Reza and Pedrah came up and asked for a cigarette. He believed that they were both drunk but did not know for sure but they each had a beer bottle in their hands. The witness said that he did not have a cigarette to give them and they went to the car. He stated that he then saw (but could not hear an argument) and he saw Pedrah throw a punch on the defendant. He went over and he held Reza back and others came up to try and stop the fight. The witness said that the defendant got back into the car but Reza and Pedrah came up to the window of the car and began to punch the defendant through the open window. The defendant gets out of the car with the bong in his hand but Salman gets the bong from him and throws it away. The defendant then gets back in the car and tells the witness to drive away as he is throwing up and bruised from the fight.

Analysis

[21] The Crown's case rests upon the allegations of the complainant and his friend that the defendant attacked the complainant with a bottle and broke his jaw. The defendant admits that he was in an altercation with the complainant but such altercation was based on the attack of the complainant, by first inserting himself into his car, then by striking him when confronted and by assaulting him while he was sitting in his car. The defendant denies striking him with a bottle.

[22] Clearly the defendant suffered bodily harm. While the defendant says he was struck by a bottle (his friend did not see him being struck by a bottle) the defendant denies that he struck the complainant with a bottle. The medical evidence does not assist in determining whether the complainant was struck by a bottle. A blow from the defendant's fist (without any bottle) could possibly have caused the injury. Clearly if I find that the defendant had struck the complainant with a bottle, then the Crown has gone a long way in proving his case. Even if I find that the defendant was acting in self-defence, the use of the bottle could, in my opinion, create a situation of excessive force.

[23] The combination of the defence evidence is that he was acting in self-defence, and while he may have caused the injury to the complainant, his response was a reasonable one to the attacks of the complainant and thus he should be found not guilty. I apply the doctrine of R. v. W.D., [1991] 1 S.C.R. 742, and if I accept the defendant's evidence, I must acquit him of the charge. Even if I do not believe his evidence, I must inquire whether it still leaves me with a reasonable doubt. Even if I reject the evidence of the defendant, I must still see if the Crown's evidence convinces me beyond a reasonable doubt about the guilt of the defendant.

[24] The defendant's statement of events is largely backed up by the three witnesses called by the defence. Clearly all of these people are friends and clearly they all spoke about the incident before speaking to the police later that day. They do not all say the same thing and there were some small things that were different from their statements to the police but for the most part their evidence in court was the same as their statements made to the police over a year before.

[25] None of the witnesses in this matter have criminal records.

[26] None of the parties to this matter had any previous animosity to each other. The meeting on the street that early morning was solely by chance. There is no indication that any of these people were involved in any other criminal activity as the time of this meeting. What I can be sure of in this matter, is that several young men exchanged harsh words at first meeting and then there was an immediate fight. Both the defendant and the complainant were injured, the complainant more severely.

[27] The defendant denies hitting the complainant with a bong bottle. The three witnesses called by the defendant support the defendant's allegation that the bottle was taken from him and no blow was struck with the bottle. In assessing the defendant's evidence, I am mindful that they are friends and may have a reason to support each other. I also note that there were no serious discrepancies in their statements to the police and their evidence in court. I note that their stories do not match in their entirety and this would confirm that they are only speaking about what they saw and heard. None of the witnesses for the defence were seriously shaken in their testimony.

[28] I must admit that the allegation that the defendant, in his angry state, let his friend take the bong bottle from him at the height of the confrontation does not strike me as entirely logical. The question is whether I am in doubt about this issue.

[29] When I consider the evidence of the complainant Reza Afshar and his friend Pedram Ahadinejae, I can see several inconsistencies. There was clearly more than one altercation that night. I find that the complainant and his friend did indeed attempt to strike the defendant while he was in his car. The evidence of Pedram about his belief that he called the police causes me great concern. As I have noted, he insisted that he called the police and even squabbled with the defence over the details, when in fact he did not call the police at all. I find that the complainant and his friend were entirely aggressive and indeed may have struck the first blow. In other words, their evidence, while it may be correct in the essential allegation (that is a blow from the defendant caused the injury) is severely compromised by the issues I have raised.

[30] I must therefore state that I am in serious doubt about whether the defendant struck the complainant with a bong bottle. The fact that the injuries to the complainant are consistent only with a strong blow to the jaw and not necessarily a blow from a glass object also leads me to have doubts.

Self Defence In Law

[31] Even if I do not find that the Crown has proven beyond a reasonable doubt that the defendant struck the complainant with a bottle and caused the injury, I must accept that at some point in the altercation, the complainant suffered a broken jaw from a strike by the fists of the defendant. I also decide that the course of events happened as the defendant describes, that is:

(a) the altercation began with a verbal argument;

(b) the complainant or his friend struck the first blows;

(c) the defendant's friends broke up the scuffle;

(d) the defendant returned to his car;

(e) the complainant and his friend were trying to strike the defendant from outside the car;

(f) the defendant left the car, and that while he did not strike with the glass bong, he struck a blow at some time with his fists that caused the injury.

[32] I also find (from Exhibit 4) that the defendant suffered injuries including bruising around his eyes. The issues to be decided is whether section 34 of the Criminal Code (as amended as of March 11, 2013) affords the defendant a defence.

[33] Section 34 reads as follows:

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.

Factors

(2) In determining 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:

(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.

[34] Applying those sections to this case, I accept that the defendant believed on reasonable grounds that he was under an assault. The Crown argues that since the defendant admitted that he was mad and was striking out at the time he caused the injury, at that precise moment, he could not be said to committing the offence for the purpose of the defendant or protecting himself. I disagree.

[35] The defendant was being struck by two people. He had a short time to formulate a response. He was sitting in his car and in a vulnerable position. He was being struck repeatedly by persons he did not know. He was being struck with fists to such an extent that he suffered bodily injury. The time from the leaving the car, to the striking with the fist was no more than seconds. He was no larger than the persons who were assailing him. While he had a weapon for a short period of time, I find that he did not use it in the altercation. I'm sure that almost all instances of self-defence, there can be a sense of anger at what is happening to you.

[36] Finally, was the striking out with his fists reasonable in the circumstances? I would have to say it was. As I note in R. v. Antly, [1963] O.J. No. 853, where the defendant struck the complainant with a stick breaking his ankle the court adopted the words in R. v. Ogal, 50 C.C.C. 71 at paras 73-73:

"it was of course, not possible for him to measure with nicety just the amount of force necessary to protect himself, under all the attendant circumstances."

[37] I may also have said that the striking out with some sort of object close by (such as the glass bong) may also have been reasonable, but I do not have to decide that as I am not convinced that the defendant actually struck the complainant with the glass bong.

Conclusion

[38] I find the defendant not guilty of the charge.

Signed: "Justice P.N. Bourque"

Released: January 13, 2015