Court File and Parties

Ontario Court of Justice

Date: November 21, 2017

Court File No.: Oshawa 2811-998-16-34096-00

Between:

Her Majesty the Queen

— and —

Ali Gharjy

Before: Justice Michael S. Block

Heard: September 7, 8 & 14, 2017

Reasons for Judgment released: November 21, 2017

Counsel

Michael Hill — counsel for the Crown

Sara Samet — counsel for the defendant Ali Gharjy

Judgment

BLOCK J.:

The Incident

[1] At 4:20 p.m. on the afternoon of March 24, 2016 Police Constable Jack Stelwagen received a call to attend a fight in north Ajax. A large group of teenage males dispersed when he arrived at the intersection of Rossland Road and Salem Road in his marked police vehicle. On the east side of Salem, north of Rossland, the constable saw a young, possibly Afghan, man kneeling on the ground with his hands in the air. He then saw a young black man running northbound in the curb lane of Salem. This man was bleeding profusely from his right arm. Constable Stelwagen assisted the injured man until the arrival of the paramedics. They attended the young man in the back of the ambulance while another police officer drove the vehicle to Sunnybrook Trauma Centre, in Toronto. The attending physician described his condition on arrival as "in extremis". Ultimately, the patient was revived, stabilized and recovered after a hospital stay of a number of days.

The Charges

[2] As a result of these events Ali Gharjy finds himself before this Court charged with aggravated assault, assault with a weapon and possession of a weapon for a purpose dangerous to the public peace.

Issues Before the Court

[3] It is not contested that the defendant inflicted the wounds that are the subject matter of the charges of aggravated assault and assault with a weapon. The sole issue in respect of these charges is whether the Crown has proved beyond a reasonable doubt that Mr. Gharjy was not acting in self-defence when he stabbed Mr. Joshua Lawrence. In respect of the charge of possession of a weapon for a purpose dangerous to the public peace, Mr. Gharjy's possession of the knife in question is uncontroversial. The issue for the Court is whether the Crown has proved beyond a reasonable doubt that the possession was for a purpose dangerous to the public peace when Mr. Gharjy left his home with the knife for the intersection of Rossland and Salem where the fight took place.

Evidence of Joshua Lawrence (The Victim)

[4] Joshua Lawrence was a confident, intelligent, adroit, pleasant and engaging witness. Sometime on the afternoon of March 24, 2016 Mr. Lawrence and his friend Roshawn Rochester received a number of telephone calls from close friends. He was advised of an ongoing confrontation between his friends Quaran, also known as "Q", and Isaiah on one side and Ali Gharjy, the defendant before the Court, and his younger brother Massih on the other. To put these issues in context, Mr. Lawrence, a former student at J. Clarke Richardson Collegiate in Ajax, was already aware of a fight that day between his friends at the school and persons allied with Massih. There was other evidence, chiefly in the Agreed Statement of Facts filed with the Court, which confirmed that a serious brawl at the Collegiate had taken place earlier that day.

[5] As a result of the information received during these phone calls, Mr. Lawrence and Mr. Rochester drove to the corner of Rossland and Salem. He told the Court that he went there for the purpose of backing up his friends. He also told the Court that as he got out of the car he slipped on the ice and his blue box-cutter knife fell out of his pocket. He put the knife back in his pocket. He said that he had forgotten to leave the knife at work, where he used it in his job as a tire installer. He assured the Court that he did not have the blue box-cutter for the purpose of any confrontation that afternoon. After leaving the car just east of the intersection, he walked west-bound across Salem. He then encountered the two Gharjy brothers.

[6] He told the Court that he did not yell threats or make violent gestures at the Gharjy brothers. He testified that he simply asked the defendant "what's up?" or "what's poppin?" In other words, his conduct on approach was no more than an innocuous, friendly greeting, even though he already knew that the Gharjy brothers had fought with his friends Isaiah and "Q" at the intersection moments before and that he also believed that the younger Gharjy was an adversary of his tight-knit group of close friends. He testified that he was then stabbed without warning in the right arm by the defendant. He then fled northeastward because the defendant was chasing him and attempted to stab him a second time. According to the initial testimony of Mr. Lawrence, not only did he not threaten or attempt to attack the defendant with the blue box-cutter but it remained in his pocket throughout the incident.

Credibility Issues with Lawrence's Testimony

[7] The examination in chief of Mr. Lawrence disclosed multiple reasons for using extreme caution when considering his evidence. In particular, Mr. Lawrence knew that he was attending the scene of a fight between his friends and their opponents. He knew that this was a continuation of the brawl at the collegiate. He believed that one of his friends had been stabbed in that confrontation. He observed that stabbings were common in Ajax. Yet, on his evidence he was in possession of a knife because he had forgotten to leave it at his workplace. He was alerted to the presence of the knife when it fell from his pocket. Yet, instead of leaving it in the car, he brought it to the scene of the ongoing confrontation. The innocuous greeting Mr. Lawrence said he gave the defendant just before the stabbing is inconsistent with the purpose of his attendance and is also contradicted by independent evidence. In my view his explanation for his possession of the blue box-cutter was farcical.

[8] Mr. Lawrence claimed that he threw the blue box cutter into the snowbank on which it was found on the east side of Salem because he didn't want to be found in with it by the Durham Regional Police. He said that he would be at a disadvantage with the police because of his race and that would be aggravated by possession of the knife.

[9] During examination in chief Mr. Lawrence gave the following additional explanation for throwing the box-cutter into the snowbank:

"because I knew the police were coming and my hand was hurting, so I couldn't hold it in my hand for any longer, my hand was hurting."

[10] The only reasonable interpretation of this passage is that Mr. Lawrence had the blue box-cutter in his hand at the time he was stabbed and then continued to hold it until his serious injury made that excessively painful.

[11] Despite his protestations in examination-in-chief it is clear that Mr. Lawrence had his mind set on confrontation. He had been informed that his close friends, "like brothers" in his phrase, were being chased by their opponents. He agreed that he viewed this as an emergency situation. He believed that his friends got into a fight and ran because they needed help. He observed to defence counsel that he had never lost a fight. He acknowledged that he sometimes carried a knife with him.

[12] As Mr. Lawrence approached the intersection of Salem and Rossland he neither heard nor saw any commotion. He said he didn't hear "Q" and Isaiah or anyone else yelling. He heard no threats. He saw no ongoing fight but, accompanied by Mr. Rochester, continued walking west until he ran into the Gharjy brothers.

[13] Mr. Lawrence gave several prior inconsistent statements on significant issues in his interview with the police and a prior related trial. He told Detective Yamada that he had the knife in his hand because of the attack on his friends. He ultimately agreed in cross-examination that it was indeed possible that the knife was in his hand at the moment of the confrontation with the defendant. He maintained that he never yelled at the intersection or attempted to strike the defendant with the blue box cutter. After being taken to an excerpt of his testimony in a related previous proceeding Mr. Lawrence agreed that he told a YCJA Trial Court that the blue box-cutter blade "was probably open" at the time of his confrontation with the defendant.

[14] The blue box-cutter was an exhibit at trial. It had obvious blood on it. Subsequent DNA analysis indicated the blood was that of Mr. Lawrence. It was closed when found. Photographs of this knife, entered as part of the Agreed Statement of Fact, show a large amount of blood on the blade portion and very little visible blood on the handle portion. Counsel for the defendant contended that this blood distribution confirms that the blade was open at the time is was used to confront Mr. Gharjy. I was initially skeptical of this proposition as there was no expert evidence to assist the Court. However, this issue must be considered in the context of the other evidence at trial, particularly the evidence of Mr. Lawrence. I find it likely that the knife was open when Mr. Lawrence was wounded and that it became saturated at that time. Mr. Lawrence's testimony itself strongly suggests that he closed the knife as he discarded it.

[15] Mr. Lawrence had no difficulty shaping his testimony to fit his story of loyal friend and innocent victim. It is clear that he deliberately went to the scene of an anticipated brawl with the folding box-cutter available for use. His evidence that he didn't yell or aggressively gesture or threaten the defendant at the intersection, and that the defendant attempted to chase him and stab him a second time, was contradicted by the independent witnesses. Mr. Lawrence showed a confidence and sophistication unusual in a witness of his youth. During a key point in his cross examination, when asked whether the blue box cutter was open at the time he was stabbed, Mr. Lawrence hesitated. When asked why he hesitated, he calmly replied "I haven't decided on my answer yet". In my view, this engaging and highly intelligent young man was completely indifferent to his obligation to tell the truth in Court. I reject his evidence.

Evidence of the Defendant

[16] The defendant testified that on the afternoon of the incident two young black men came to the door of his home. It was clear from all of the evidence that they were "Q" and Isaiah. They had been involved in the earlier brawl at J. Clarke Richardson Collegiate. They appeared surprised when the defendant answered the door. They drew their hoodies close around their faces, pulled their hats down, kept their hands and arms out of sight and generally behaved in a suspicious and furtive manner. They asked for Massih. When the defendant asked them their business they gave answers that made no sense. After the defendant shut the door on them, he observed them speaking on their cell phones on the street.

[17] The defendant testified that he was aware of the earlier fighting at his brother's high school. Massih had disclaimed any direct personal role in provoking the confrontation, although he was clearly perceived responsible by his adversaries. The defendant concluded that the sinister and otherwise inexplicable visit was linked to the earlier brawl. He thought that the visit sent a message: "we know where you live". The defendant was concerned that the two young men were armed because their hands stayed in their jacket pockets. He knew that his 11-year-old sister and his mother were expected home imminently. Bearing in mind that Massih couldn't give him a reason for this troubling attention, the defendant thought it appropriate to speak to the two young men and see if the dispute was caused by a misunderstanding that could be resolved.

[18] The two brothers each armed themselves with a knife and set off northwest, in the direction "Q" and Isaiah walked when the left the Gharjy house. They caught up with them at the intersection of Rossland and Salem. The defendant told the Court that both he and his brother took knives with them because he knew that the attempt at discussion might well be unsuccessful and that a confrontation might ensue.

[19] Ali Gharjy said he called out peaceably to "Q" and Isaiah when he and his brother arrived at the north-east corner of the intersection. He testified that they responded with threats and hostile gestures. "Q" then punched the defendant and a fist-fight started. The defendant got the worst of it. His glasses were knocked off his face and damaged. He said his face was bruised and scuffed. PC De Rusha noted superficial marks on the right side of the defendant's face on arrest later that day. At the end of the fight, the defendant said, the combatants were some 20 meters west of the intersection. The un-contradicted evidence is that during that confrontation, Ali Gharjy's knife never left the sheath in his waistband.

[20] Immediately after the confrontation "Q" and Isaiah, in the evidence of the defendant, began to yell threats and make "pistol" gestures with their hands at the two brothers. In particular they yelled: "you know what we're about" and "we know where you live". The Gharjy brothers decided to go home. Turning eastbound to retrace their route across the intersection, the brothers encountered Mr. Lawrence and Roshawn Rochester. According to the defendant, one to one and a half minutes had elapsed from the first fight.

[21] Mr. Gharjy said that Mr. Lawrence and Mr. Rochester yelled and gesticulated at the two Gharjy's. According to the defendant, they looked like they were pumping themselves up for a fight. As the two sides came toward each other, the defendant testified, Mr. Lawrence had the blue box-cutter in his right hand and was struggling to open it. As the distance closed to near contact he succeeded in opening it and raised it toward Mr. Gharjy. When the defendant spotted the blue box-cutter in Mr. Lawrence's right hand move toward him he drew his own knife from the sheath in his waistband in one motion and thrust it at Mr. Lawrence. He believed himself to be in danger of grievous harm. The defendant testified that he intended to stab Mr. Lawrence in the abdomen and thought he had done so. He denied attempting to stab the complainant a second time and denied chasing his wounded opponent. On these latter two issues the evidence of the defendant is supported by the evidence of the two independent witnesses.

[22] After he wounded Mr. Lawrence, the defendant saw the police arrive. Mr. Gharjy said that he attempted to surrender to a police officer but fled after the police officer ignored him and went to assist Mr. Lawrence. It is clear that Mr. Gharjy was the young man PC Stelwagen saw with his hands up, though when asked at trial, the constable noted some distinctions between the defendant's appearance and that of the young man at the roadside.

Assessment of Defendant's Credibility

[23] I accept the defendant's evidence of the confrontation. He had the opportunity to use his knife during the first fight that he lost at the intersection but he did not. That reinforces his claim that his ultimate use of the knife was a response to the appearance of the blue box-cutter, the opening of that weapon by Mr. Lawrence and the movement of that weapon toward the defendant. The defendant testified that believed he stabbed Mr. Lawrence in the abdomen. While Mr. Lawrence was nearly killed by the arm wound he suffered, I take it as uncontroversial that abdominal wounds are commonly much more serious than arm wounds. The defendant's unforced admission enhances his credibility.

[24] The conclusions the defendant drew from his contact with "Q" and Isaiah at his doorstep were subjected to rigorous cross-examination. I do not agree with the submission that his responses were incredible. He was already aware of the brawl at his younger brother's high school. In this context his apprehension when the two furtive strangers at his door asked for Massih was not misplaced. He was clearly concerned that the two strangers conferred on their phones after leaving. It suggested to him that they were reporting to a third-party on their attendance. The defendant's particular concern that the next act was a home invasion may well have been speculative. His general concern that a violent denouement might be pending was entirely accurate and eminently reasonable. That concern was substantiated by the events that immediately followed at the Salem and Rossland intersection. In my view the totality of the evidence leaves no doubt that the brawl at the Collegiate, the visit of "Q" and Isaiah to the Gharjy home and the speedy attendance of Mr. Lawrence and Mr. Rochester at the intersection of Rossland and Salem were a chain of temporally and causally related events.

Evidence of Independent Witnesses

[25] There were two independent civilian witnesses to the wounding of Mr. Lawrence. Both witnesses had the advantage of being mature, concerned citizens. Both witnesses had the disadvantage of observing rapidly unfolding and shocking events. Quite properly, the credibility of these witnesses was not called into question. The only live issue is the accuracy of their observations.

Rose Meuyi Msengo

[26] Rose Meuyi Msengo was stopped in her car at the intersection in question. She was north-bound on Rossland and was waiting for the traffic light to turn green. As the weather was very cold she had her windows rolled up. She saw four boys fighting at the north-east corner of the intersection. On one side were two young white men, on the other side were two young black men. People emerged from their cars to intervene. The four boys then walked away west on Rossland.

[27] A short time later the two white boys came walking back eastbound. Two young black men, who had not been involved in the earlier fight, walked toward them from the east. They were yelling and gesticulating at the two white boys. She could not hear what they were yelling. As they came together one of the black youths had his right arm raised. He was then stabbed once by one of the white boys. After he was stabbed the black youth ran north a short distance and collapsed. He was not chased by anyone. No one attempted to stab him again. She did not see a blue box-cutter. She was shocked, surprised and shaken by these events.

Lesley Dyce

[28] Lesley Dyce was stopped at the light while driving south-bound on Salem in the curb lane. She testified that she was at the corner of Taunton road and Salem, but it is clear that the intersection was, in fact, Rossland and Salem. Her attention was drawn to two black males. They were yelling and gesticulating in a hostile and aggressive manner to someone on the other side of the street. They were walking westbound. The objects of their hostility were two young white men heading east. They were also yelling and gesticulating.

[29] The four men came together at the northwest corner. Up to this point, Ms Dyce saw no knives at all, but as the four made contact one of the white males pulled out a long object and thrust it in the belly of one of the black males. This man then doubled over and collapsed. The witness saw no blue box-cutter at any point. She saw no other stabbing motions made by anyone.

Analysis of Independent Witness Evidence

[30] Neither independent witness saw the blue box-cutter, though Ms Msengo saw a right arm motion by Mr. Lawrence that would be consistent with an attempt to stab the defendant. Ms Msengo would have had great difficulty seeing an object in Mr. Lawrence's right hand from her vantage point. In my view, Ms Dyce, though she had an excellent vantage point, would similarly have her powers of observation compromised by the extreme rapidity of the dynamic, unfolding events. There can be little doubt, based on the evidence of Mr. Lawrence himself, that he held the blue box-cutter in his right hand as he closed the distance to the defendant.

[31] Both independent witnesses confirm that Mr. Lawrence and Mr. Rochester were yelling and making hostile gestures to the defendant. This contradicts the absurd evidence of Mr. Lawrence that his approach was mild and convivial. Ms Dyce told the court that the Gharjy's were also making gestures and yelling. A contention that the defendant denied in his evidence. I do not find this issue, standing alone, significant in my determination of the credibility of the defendant, as he never suggested that he mildly welcomed the approach of his adversaries.

Legal Analysis: Self-Defence

Applicable Law

[32] The applicable Criminal Code self-defence provisions are:

Section 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.

Section 34(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.

[33] In determining whether the stabbing of Mr. Lawrence was reasonable, I must apply the factors listed in s.34(2).

Application of Self-Defence Factors

[34] The defendant reasonably perceived an imminent assault with a knife. Mr. Gharjy's knife appeared to have a blade of approximately 7 inches, the blue box-cutter appeared to have an overall length of approximately 5 ½ - 6 inches when opened. Knives of this kind have a replaceable blade to readily provide a very sharp cutting edge. Such a knife is capable of inflicting grievous bodily harm. In my view the display of this weapon at a distance of several feet by Mr. Lawrence and the apparent movement of the weapon toward the defendant didn't just reasonably suggested the probability of imminent use, it demanded immediate response.

[35] In the situation described above our law does not confine the available response to flight. The defendant testified that when the knife was displayed he had no opportunity to retreat. I accept that evidence. Retreat at the moment Mr. Lawrence displayed the box-cutter would have exposed the defendant to immediate wounding. In the minute amount of time available to him it is my view that meeting armed force with armed force was, quite possibly, the most reasonable choice available to him. This is especially true in view of the icy surface conditions to which the defendant alluded and that were confirmed in the evidence of Mr. Lawrence. The defendant also testified he wore boots that made running from the scene difficult or impossible.

[36] It is clear from the evidence of both the defendant and the two independent witnesses that Mr. Lawrence approached the defendant with an aggressive display of assaultive intent. The fight between Mr. Gharjy and Mr. Lawrence was not an isolated event. This second phase of the confrontation at Salem and Rossland immediately followed the initial attack on Mr. Gharjy by "Q" and Isaiah. In that part of the narrative both physical force and threats by way of pistol gestures were employed against the Gharjy brothers.

[37] All of this took place just after the sinister attendance of "Q" and Isaiah at the Gharjy home. This visit occurred on the same day as the school confrontation described earlier. The defendant would have been foolish not to expect violence once he spotted the approach of Mr. Lawrence and Mr. Rochester yelling and gesticulating on the other side of Salem.

[38] The chief protagonists in the stabbing were both young men, essentially the same age and height. Mr. Lawrence appeared to be somewhat huskier in build, though I do not know whether that was the case at the time of the incident.

[39] In considering the merit of Mr. Gharjy's claim of self-defence, I accept his evidence that he didn't want to use the knife when he left the house but armed himself and his brother because he knew that he might well face violent confrontation if his efforts to resolve the conflict through discussion were unsuccessful. I accept that he didn't leave the house with the desire to use the knife because he didn't use it during the first fight.

Conclusion on Self-Defence

[40] On review of all of the available evidence, I accept that Mr. Gharjy had a reasonable belief that he was faced with an imminent armed assault, that he acted to protect himself when he stabbed Mr. Lawrence and that his use of the knife was reasonable in the circumstances.

[41] This conclusion requires the dismissal of counts one and two. I now turn my intention to count three, possession of a weapon for a purpose dangerous to the public peace.

Legal Analysis: Possession of Weapon for Purpose Dangerous to Public Peace

Applicable Law

[42] The relevant provisions of the Criminal Code are:

Section 88(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

[43] Mr. Gharjy's own evidence that his purpose in taking a knife to the intersection was for self-defence, if the discussions were unsuccessful and violence erupted.

Application of Section 88(1)

[44] The application of section 88(1) of the Criminal Code to this case is governed by the analysis set out by the Supreme Court of Canada in Her Majesty the Queen v Kerr, 2004 SCC 44, [2004] 2 S.C.R 371. In Kerr, supra, the Supreme Court approved the approach set out by the Ontario Court of Appeal in Her Majesty the Queen v Nelson (1972), 8 C.C.C. (2d) 29. The trier of fact is first required to determine the "purpose" of the accused. This is a subjective determination. In this case "purpose" is defined as "intention" not as "desire". Thus the Court stated:

The question under the first stage of the purpose analysis is what object (or objects) did the accused person know would probably flow from his possession, whether he desired it (or them) or not.

Kerr, supra at paragraph 27

[45] The Court went on to make it clear that a finding that the accused acted in self-defence is relevant but not dispositive of the analysis:

It is interesting to note that, conceptually, the defence of self-defence is not something which one "intends" in the criminal law sense. A person who is attacked intends to assault the assailant; his motivation is self-protection or self-preservation. Stated otherwise, self-defence does not negate the mens rea of assault. But rather allows the accused to escape criminal liability on the basis of an acceptable motive . . .

Kerr, supra at paragraph 28

[46] The analysis of the Court requires that an objective standard be used to determine whether the subjectively determined "purpose" is "dangerous to the public peace". The question is whether, on the basis of all of the circumstances it was reasonably foreseeable that the intended purpose would have endangered the public peace. In Kerr, supra, the Court determined that the appellant had no choice but to arm himself in a prison setting where murderous attack was inescapable and resort to official protection futile. The key distinction is that possession of a weapon to meet an unavoidable immediate threat to one's life is not possession of a weapon for a purpose dangerous to the public peace. Objectively considered, the possession of a weapon in these circumstances is an abatement of a threat to the public peace.

[47] The Court went on to emphasize the distinction between possession of a weapon to deal with an unavoidable imminent threat and possession of a weapon for a defensive purpose where the threat is avoidable:

. . . the purpose is inconsistent with the duty to avoid violent confrontation by escaping, asking for police protection or even negotiating. It reflects a willingness to engage in physical conflict, if confronted, with a weapon. This purpose is contrary to public peace.

Kerr, supra, at paragraph 53

Conclusion on Section 88(1)

[48] Mr. Gharjy could have called the police and reported his concerns. It is simply nonsense to suggest that recourse would have been futile. Instead, he chose to deal with the danger directly and personally. The defendant sought to bring the dispute to an immediate conclusion by following men he suspected were armed. He desired to affect a resolution by discussion, but armed himself because he foresaw that a violent, and probably armed, response by his adversary was likely. The time and location of the ultimate confrontation, a busy intersection at rush hour, weren't forced on Mr. Gharjy, they were chosen by him. The knife fight took place in front of many onlookers. It was avoidable, nearly fatal and easily foreseeable. His conduct falls within section 88(1) of the Criminal Code and he stands convicted.

Released: November 21, 2017

Signed: Justice M.S. Block